Owens-Corning Fiberglass Corp.

National Labor Relations Board - Board Decisions

Feb 20, 1963

140 N.L.R.B. 1323 (N.L.R.B. 1963)

OWENS-CORNING FIBERGLASS CORPORATION 1323
Owens-Corning Fiberglass Corporation and United Brotherhood
of Carpenters and Joiners of America , AFL-CIO, Local 329.
Case No. 16-CA-1646. February 20, 1963
DECISION AND ORDER
On September 26, 1962, Trial Examiner W. Gerard Ryan issued his
Intermediate Report, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices, and recommend-
ing that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Intermediate Report. Thereafter,
the Respondent filed exceptions to the Intermediate Report together
with a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner to the extent consistent herewith.
The complaint alleged, and the Trial Examiner found, that the
Respondent, at its Oklahoma City, Oklahoma, warehouse operations,
threatened and interrogated its employees, discharged and failed to
reinstate warehouse employees Carl McLemore and Vernon Horse
to their former or substantially equivalent positions because of their
union activities, and refused to recognize and bargain with the Union
which represented a majority of its warehouse employees, all in viola-
tion of Section 8(a) (1), (3), and (5) of the Act. We adopt the Trial
Examiner's findings of violations of Section 8(a) (1) and (3) of the
Act.' However, we do not adopt his finding of a violation of Section
8(a) (5) of the Act.
At the Respondent's warehouse, customary warehousing duties are
performed by one regular, full-time employee and, as the need arises,'
by one or more additional employees. The Respondent hires the ad-
ditional employees through the State employment service for as long
as they are needed and, when their work is completed, discharges
them, with no promise of recall. The Respondent does not ask for
employees by name, and it is the employment service's practice to refer
any individual who happens to be present and available. The record
is silent as to whether the employment service or the employees hired
therefrom are told that their employment will be of a relatively short
i The Respondent did not except to the Trial Examiner's finding that McLemore was
unlawfully discharged . Also, in adopting the Trial Examiner 's finding that Horse was
also unlawfully discharged, we rely on evidence , not adverted to by the Trial Examiner,
that Respondent's warehouse manager, Neal, knew that Horse had left with McLemore
because of his, Neal's , opposition to the continued employment of union members
2 As the Respondent does not stock a large inventory, the amount of work in the ware-
house fluctuates greatly, on a nonseasonal basis.
140 NLRB No. 116.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duration. It shows, however, that, over a period of approximately 6
months, the employees so hired worked on an average of less than 5
days, and that, during 4 weeks of that time, no additional employees
were required? The additional employees receive $1.25 an hour and
$1.87 overtime for more than 40 hours' work a week. The regular full-
time employee, who is not hired through the employment service, re-
ceives $1.65 as a starting rate, plus overtime. The record also shows
that, from the week ending January 5, 1962, to the week ending Feb-
ruary 9, 1962, McLemore, who had been hired as a regular , full-time
employee, worked alone in the warehouse, but thereafter, to April 12,
1962, the date McLemore and Horse were discharged, at least one
additional, though not necessarily the same, employee worked there.
Horse was initially employed through the State employment service
on March 13, 1962, and worked 38 hours that week. He again was
referred by the employment service on March 27, 1962, when the Re-
spondent put in a request for an employee. Horse worked 15 hours
on March 27 and 285 1962.
McLemore's testimony, credited by the Trial Examiner, reveals that
on March 30, Respondent's Office Manager Lunsford told McLemore
that employee Self, who had been working as an extra employee for a
period of 4 weeks, had quit. McLemore suggested hiring Horse. As
the Trial Examiner found, Lunsford then told McLemore to telephone
Horse to report for work. McLemore made the call, and Horse re-
turned to work on Monday, April 2.4 He worked all that week, and
181/2 hours the next week until Thursday, April 12, when he was un-
lawfully discharged under the circumstances described in the Interme-
diate Report. Neither at the time he reported for work on April 2,
nor at any time thereafter, was his employee status discussed with
Horse.
The Trial Examiner found that Horse was reemployed as a result
of the telephone call from McLemore "not as a temporary employee
but for an indefinite period of time," and that therefore Horse should
be included in the warehouse unit which he found appropriate. Hence,
he found that the Respondent's refusal to recognize and bargain with
the Union as the majority representative of the employees in the unit
was in violation of the Act.
s From the week ending February 16 to July 6, 1962, the Respondent hired 18 addi-
tional employees. Of these 4 were hired before April 23, and 14 thereafter Of the 14,
none had worked for the Respondent before April 23, and only 5 worked for the Respondent
on more than 1 occasion . Also, none of the four who had been hired prior to April 23
worked for the Respondent thereafter , and only one such employee worked for as long
as 4 weeks.
4 The Trial Examiner inadvertently found that Horse, when reemployed on March 27,
worked continuously thereafter until his discharge on April 12 . The record shows, how-
ever, and we find, that Horse did not work for the Respondent on March 29 and 30, and
that he was hired again on April 2.
I
OWENS-CORNING FIBERGLASS CORPORATION 1325
The Respondent contends that Horse was a temporary employee;
that, as it is the Board's established practice to exclude temporary em-
ployees from collective-bargaining units, the Union requested bargain-
ing in an inappropriate unit since it comprised only one employee, to
wit, McLemore ; and, therefore, that it was not required by the Act
to recognize and bargain with the Union.
While we agree with the Trial Examiner that Horse was reemployed
as a result of McLemore's call, we find inadequate support in the
record for the Trial Examiner's conclusion that Horse was not re-
employed as a temporary employee.
As indicated above, it was Respondent's established practice to hire,
at irregular intervals whenever it had extra business, additional em-
ployees for the warehouse for only as long as they were needed and,
when no longer needed, to discharge them with no promise of recall.
These employees actually worked for periods of time varying from
less than a day to 4 weeks. Upon hire, they are never told that their
employment is of indefinite duration or of a permanent nature or that
they have any substantial expectancy of continued employment. They
are recruited through the State employment service, and their rate
of pay is at least 40 cents an hour less than that of the permanent
full-time employee who is not hired through that agency. The same
practice was continued after Horse's discharge, when 14 employees
were hired for irregular and short intervals of time.
Under all the circumstances, we find that Horse was hired as a tem-
porary employee on April 2.5 He had been hired on two prior occasions
through the State employment service, each time for only a few days.
Except for the manner in which he was hired on April 2, it does not
appear that his terms and conditions of employment, including his
rate of pay, were any different from those of the other additional em-
ployees temporarily hired. Horse was not told on April 2 that his
employment was to be of an indefinite nature, nor had he ever received
any assurance of recall prior thereto. In addition, the record does
not show that the Respondent's practice with regard to the hire of
additional help had changed after Horse's discharge. No extra em-
ployee hired thereafter worked more than 4 consecutive days, and, in
any event, it was not until April 23, almost 2 weeks after Horse's dis-
charge, that any extra help was again hired. Moreover, from that date
until July 6, there were 14 such extra employees hired through the
State employment service, and their average individual length of
employment was less than 2 days.
As we have found that, at the time of his discharge, on April 12,
just before the Union made its demand to bargain, Horse was a tem-
8 Sealite, Inc., 125 NLRB 619, 620; Interstate-Trinity Warehouse Company , 74 NLRB 521
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
porary employee, we also find, in accordance with established Board
practice, that, having been a temporary employee, Horse was ineligible
for inclusion in a bargaining unit at Respondent's warehouse at the
critical time herein s It follows that the unit requested by the Union
which the Trial Examiner found to be appropriate for collective
bargaining consisted of but a single employee, to wit, McLemore. Inas-
much as the Board has held that it is precluded by the Act from direct-
ing an employer to bargain with respect to a one-man unit and, there-
fore, that an employer's refusal to bargain with a representative on
behalf of such a unit is not a refusal to bargain within the meaning
of Section 8(a) (5) of the Act,' we conclude, contrary to the Trial
Examiner, that the Respondent's refusal to bargain herein did not
violate Section 8(a) (5) of the Act. We shall, therefore, dismiss the
complaint as to the Section 8(a) (5) allegation."
ORDER
Upon the basis of the entire record in this case and pursuant to
Section 10 ( c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respondent,
Owens-Corning Fiberglass Corporation , Oklahoma City, Oklahoma,
its officers , agents, successors , and assigns , shall:
1. Cease and desist from :
(a) Interrogating employees concerning their membership in or
activities on behalf of United Brotherhood of Carpenters and Join-
ers of America , AFL-CIO , Local 329, or any labor organization, in a
manner constituting a violation of Section 8(a) (1) of the Act.
(b) Threatening employees with discharge or other reprisals be-
cause of their membership in or activities on behalf of the above-
named or any other labor organization.
(c) Discouraging membership in the above -named labor organiza-
tion or any other labor organization of its employees by discharging
employees or otherwise discriminating in regard to their hire or tenure
of employment or any term or condition of employment.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
9 E. F Drew h Co., Inc., 133 NLRB 155, 156; Pepsi Cola Bottling Company of Chat-
tanooga, Inc , 132 NLRB 1441, 1444 ; Sealite, Inc, supra
7Foreign Car Center, Inc, 129 NLRB 319, 320 . See also Cincinnati Division , Davison
Chemical Company, etc, 110 NLRB 85, 87.
8 Member Brown agrees with the Trial Examiner ' s determination of Horse ' s status
When employed on April 2, Horse was not told that his employment was for any specified
time But for the unlawful motivation which resulted in his discharge , it does not appear
that Horse would have been terminated on April 12 Nor was it foreseeable on April 12,
so far as the record shows, how long Horse would have been retained . Under all the
circumstances , Member Brown would find, as the Trial Examiner did, that Horse was
employed on April 2 for an indefinite period of time, that he belonged in a bargaining unit
of Respondent's employees as of April 12, the date the Union requested recognition, and
that the Respondent unlawfully refused to bargain with the Union for such a unit.
OWENS-CORNING FIBERGLASS CORPORATION 1327
form labor organizations, to join or assist United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, Local 329, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other aid or protection
as guaranteed in Section 7 of the Act, or to refrain from any and all
such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Carl McLemore and Vernon Horse immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges, and
make them whole for any loss of pay they may have suffered by rea-
son of Respondent's discrimination against them in the manner set
forth in the section of the Intermediate Report entitled "The Remedy,"
as modified by this Order.'
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay due
and the rights of employment under the terms of this Order.
(c) Post at its plant in Oklahoma City, Oklahoma, copies of the
attached notice marked "Appendix." 10 Copies of said notice, to be
furnished by the Regional Director for the Sixteenth Region, shall,
after being duly signed by the Respondent's authorized representative,
be posted by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to its employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for the Sixteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
s Interest at the rate of 6 percent per annum shall be added to the backpay to be com-
puted in the manner set forth in Isis Plumbing & Heating Co ., 138 NLRB 716. For
reasons set forth in the dissent in that ease, Members Rodgers and Leedom would not
award interest on backpay.
10 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent violated Section 8(a) (5) of the Act, be, and it hereby
is, dismissed.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their mem-
bership in and activities on behalf of United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, Local 329, or any
other labor organization.
WE WILL NOT threaten employees with discharge or other re-
prisals because of their membership in or activities in behalf of
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, Local 329, or any other labor organization.
WE WILL NOT discourage membership in or activity in behalf
of United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, Local 329, or any other labor organization of our
employees by discriminating in any manner in regard to hire or
tenure of employment or any term or condition thereof except
to the extent permitted under Section 8(a) (3) of the National
Labor Relations Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist United
Brotherhood of Carpenters and Joiners of America, AFL-CIO,
Local 329, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of mutual aid or protection
as guaranteed in Section 7 of the Act, and to refrain from any and
all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor or-
ganization as a condition of employment as authorized in Sec-
tion 8 ( a) (3) of the Act, as modified by the Labor -Management
Reporting and Disclosure Act of 1959.
WE WILL offer Carl McLemore and Vernon Horse immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and
privileges and make them whole for any loss of pay suffered as
a result of our discrimination against them.
OWENS-CORNING FIBERGLASS CORPORATION 1329
All our employees are free to become or remain, or refrain from be-
coming or remaining, members of the above-named or any other labor
organization.
OWENS-CORNING FIBERGLASS CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify any of the above-named employees presently
serving in the Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the Selective Serv-
ice Act after discharge from the Armed Forces.
This notice must remain posted for 60 days from the date of posting
and must not be altered , defaced,, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, Sixth Floor, Meacham Building , 110 West Fifth Street, Fort
Worth 2, Texas, Telephone No. Edison 5-4211, Extension 2131, if
they have any question concerning this notice or compliance with its
provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Trial Examiner
W. Gerard Ryan in Oklahoma City, Oklahoma, on July 10 and 11, 1962. The issue
presented by the pleadings is whether Owens-Corning Fiberglass Corporation, herein
referred to as the Respondent, violated Section 8(a)(1), (3), and (5) of the Act.'
Briefs from General Counsel and the Respondent have been considered.
Upon the entire record and from my observation of the witnesses, I hereby make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is now, and has been at all times material herein, a Delaware
corporation with its principal office and place of business at the National Bank
Building, Toledo 1, Ohio, having a warehouse and other facilities at 4610 North
Cooper, Oklahoma City, Oklahoma, hereinafter referred to as the warehouse, where
it is now, and has been at all times material herein, continuously engaged in the
wholesale sale and distribution of fiber glass and related products. During the year
preceding the issuance of the complaint, the Respondent, in the course and conduct
of its business operations, sold and distributed at said warehouse products valued
in excess of $200,000, and goods valued in excess of $50,000 were sold and shipped
to Respondent directly from States of the United States other than the State of
Oklahoma. The complaint alleged, the answer admitted, and I find that the
Respondent is now, and has been at all times material herein, an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The complaint alleged, the answer admitted , and I find that United Brotherhood
of Carpenters and Joiners of America , AFL-CIO, Local 329, herein referred to
as the Union , is and has been at all times material herein, a labor organization within
the meaning of Section 2(5) of the Act.
The charge was filed on April 6, 1962, a first amended charge was filed on May 22, 1962,
and the complaint was issued on June 1, 1962.
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The 8(a) (1) and (3) violations
The complaint alleged and the answer denied that the Respondent on or about
April 12, 1962, discharged employees Carl McLemore and Vernon Horse because
they joined or assisted the Union or engaged in other union activity or concerted
activities for the purpose of collective bargaining or mutual aid or protection; and
that since April 12, the Respondent has failed and refused to reinstate them to their
former or substantially equivalent positions of employment.
On April 11, 1962, employees Carl McLemore and Vernon Horse, who were the
only two employees employed in the warehouse, discussed with Harold Salyer,
business agent for the Union, the possibility of organizing a union. At that time
they each signed cards authorizing the Southwestern Oklahoma Building and Trades
Council and Its Affiliated Organizations to act as their exclusive bargaining agent
in regard to wages, hours, and working conditions. Later that evening, about 5:30,
Dan Starnes, field representative for the AFL-CIO, Harold Salyer, above-named
business agent for the Union, Carl McLemore, nand Vernon Horse went together to
the Respondent's office in Oklahoma City and talked with Office Manager Anthony
T. Hirsch (also referred to as Tony Hirsch) where they told Hirsch that they repre-
sented a majority of the employees and would like to bargain for a contract. Hirsch,
in substance, told Starnes that he (Hirsch) did not have authority to bargain and
said Jack Spier from Toledo was the person for them to talk to concerning recogni-
tion. Hirsch promised to telephone to Spier. Starnes gave Hirsch his business card
and told Hirsch he would give him for his files, a letter requesting recognition.
Still later that same evening on April 11, McLemore telephoned to Hirsch and
asked if Hirsch wanted him to pick up a rental truck for deliveries in the morning.
McLemore testified that Hirsch replied: "Yes, you might as well go ahead, but it
will probably be the last time you pick up a truck for this company." Hirsch testified
that McLemore inquired about two things in the telephone conversation, one,
whether McLemore was to pick up the truck, and the other was that he asked what
Hirsch thought "about the little deal previous in the evening," and Hirsch testified
that he replied that maybe McLemore had loaded or unloaded, or rented the last
truck for Owens-Corning Fiberglass.
On the morning of April 12, 1962, Manager James L. Neal testified that he
arrived at the company office shortly after 8 o'clock and was advised by Hirsch
that there was a movement underway to organize the employees in the plant. Neal
testified that he then asked Hirsch to bring McLemore to his office. Neal further
testified that McLemore came to his office and they held a 10-minute conversation,
during which Neal asked him, "What's this all about?" and McLemore replied some-
thing about having to get more money and that was the only way he knew to get it.
Neal further testified that he gave McLemore a choice-either stay with the Union
or stay with Neal, because he could not do both.
McLemore testified that when he entered Neal's office at approximately 8:15 a.m.,
Neal was sitting with his back to the door. When McLemore sat down, Neal whirled
around in his chair, hit his hands against the desk and asked: "What the g
d hell do you think you are doing?" Neal stated further, according to McLe-
more, "You think you are awful g d smart. Are you tired of working
here?" Neal further stated, "We have enough trouble as it is right now without a
g d union coming in here . I can fire a nonunion man as well as I can
a union man. I don't want anybody around here that's got any notion of going union.
They can get the hell out." McLemore testified further that Neal told him if he would
forget about the Union he could stay and it would all be forgotten, but that McLe-
more could take anybody with him that had any idea about going union and "get
the hell out."
Neal, in his testimony, denied that he told McLemore if he decided to leave,
to take anybody else with him, as follows:
I said nothing about anybody else at all.
Q. You didn't mention that?
A. I never mentioned anyone but Carl McLemore.
I credit McLemore's testimony and find that Neal did tell him that McLemore
could take anybody with him that had any idea about going union and "get the hell
out."
McLemore then returned to the warehouse and told employee Vernon Horse
what Neal had said. Horse remarked that he was with McLemore 100 percent,
OWENS-CORNING FIBERGLASS CORPORATION 1331
whereupon McLemore and Horse went together to the office, returned the company
key to Hirsch, shook hands and left.
Upon the basis of the foregoing facts, I find that the Respondent discharged Me-
Lemore and Horse and thereafter failed and refused to reinstate them to their
former or substantially equivalent positions because of their concerted union ac-
tivities and in order to discourage union membership and activities, thereby violating
Section 8(a)(3) and (1) of the Act.2 I further find that by Office Manager Hirsch
on April 11, 1962, threatening McLemore with loss of employment and that on
April 12, 1962, by Neal's questioning and threatening McLemore with loss of em-
ployment, the Respondent thereby interfered with, restrained, and coerced its em-
ployees in the exercise of the rights contained in Section 7 of the Act and thereby
directly violated Section 8(a)(1) of the Act.
B. The 8(a)(5) violation
On April 12, 1962, Dan Starnes and Harold Salyer, above-named union rep-
resentatives , went to the company office at approximately 9:30 a.m. After the
introductions Starnes delivered a letter, which is in evidence, demanding recognition
and requesting that they bargain for a contract. Starnes testified that Manager Neal
asked Starnes how the Union could help him and after Starnes replied, Neal stated
he did not see how that could help his business in any manner, and then Neal added,
"Besides that, they no longer work here."
Neal testified that after he read the letter demanding recognition, he said to
Starnes, "I don't think we have anything to talk about." Neal testified, "It could be
that I told him that McLemore was already gone." Neal testified further that he
does not know whether he told Starnes that Vernon Horse had already gone, too.
I find on the above-credited testimony of Starnes that Neal told him on April 12
that "they (McLemore and Horse) no longer work here."
Upon hearing that Starnes told Neal that the next step would be to file charges
with the National Labor Relations Board, the meeting terminated. No further meet-
ings have been held.
The Respondent contends that there is no appropriate unit for which to bargain
since it consisted of only one warehouse employee, namely, Carl McLemore. The
Respondent contends that Vernon Horse was a temporary employee and not entitled
to be counted in the unit.
On April 11 and 12, 1962, five persons were employed at the Respondent's ware-
house in Oklahoma City: James L. Neal, manager; Anthony T. Hirsch, office
manager; Bonnie Tipton, office girl; Carl McLemore, warehouseman; and Vernon
Horse, warehouseman.
The warehouse is divided into an office and warehouse facilities. Neal, Hirsch,
and Tipton were located in the office part of the building. McLemore and Horse
worked in the warehouse, performing customary warehousing duties. Tipton was
an office clerical employee and did not work in the warehousing area.
During the period from the week ending February 16, 1962, to the week ending
April 13, 1962, the record establishes that Carl McLemore worked in the warehouse
with at least one employee to assist him in warehouse duties.3 After McLemore
and Horse were discharged on April 12, the employment of two or more employees
in the warehouse continued. The payroll records in evidence show there were only
4 weeks from the week ending April 13 to the week ending July 6 in which only one
employee worked in the warehouse.
Vernon Horse was first employed through the Oklahoma State Employment Service
and worked 38 hours from Monday through Thursday of the workweek ending
March 16, 1962. On Thursday he was paid off because there was no further work
for him to do. Horse was reemployed on March 27, and worked thereafter until
his discharge on April 12. Hubert Self worked 59 hours (including 19 hours over-
time ) in the week ending March 30, and did not work thereafter.
McLemore testified that Lunsford, who was then office manager, discussed with
him the filling of Self's job. McLemore testified that the substance of the conversa-
tion was that Lunsford directed McLemore to telephone to Horse and tell Horse to
report for work. Nothing was said as to whether Horse's work was to be temporary
or permanent. Lunsford denied that he had even discussed the matter with Mc-
2 McLemore was rehired in May 1962 Although General Coun"el contends be was not
reinstated to his former or substantially equivalent position, it is unnecessary to pass on
this inasmuch as it is a matter for compliance.
In some weeks he had two or more.
681-492-63-vol. 140-85
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lemore and denied that he had ever directed McLemore to tell Horse to return
to work. Counsel for the Respondent in his brief comments that Lunsford was the
only witness at the hearing with no direct or indirect interest in the outcome .4
I credit McLemore's testimony. 1 do not credit Lunsford's denial. Although Luns-
ford may have had no apparent direct or indirect interest in the outcome of this
hearing, he was not entirely truthful in his testimony. In fact, I would say he
was purposely untruthful in his testimony when he testified on cross-examination
that the only source of the information noted on papers to which he referred when
testifying on direct examination was his "memory" and it was not until late in his
testimony that he admitted that he had obtained the information on the paper by
telephone to the Respondent's office in Toledo. Accordingly, I find that Vernon
Horse resumed his employment on March 27, as a result of a telephone call from
McLemore which McLemore was authorized to make by Lunsford. It should also
be noted that no one challenged Horse's right to work there at any time. Horse
was reemployed not as a temporary employee but for an indefinite period. Although
Horse may have been terminated at some unpredictable future time, it does not
necessarily make him a temporary employee and eliminate him from the unit.
New York Water Service Corporation, 100 NLRB 1246 at 1247. I accordingly find
that Horse should be included in the unit. I further find that all employees of Re-
spondent employed at its warehouse, exclusive of all office, clerical, technical and
professional employees, guards, and supervisors as defined in the Act, constitute a
unit appropriate for the purpose of collective bargaining within the meaning of
Section 9(b) of the Act.
The refusal of the Respondent to recognize the Union resulted in a refusal to
bargain in violation of Section 8(a)(5) of the Act. The record is clear that (1)
the Respondent's failure to bargain was motivated by its complete rejection of the
principles of collective bargaining; (2) McLemore and Horse were discharged in
order to dissipate the Union's majority; and (3) at no time did the Respondent
raise a good-faith doubt concerning the Union's majority
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the Respondent's operations described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act.
Upon the foregoing findings of fact and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local
329, is a labor organization within the meaning of Section 2(5) of the Act.
2. All employees of Respondent employed at its warehouse, exclusive of all office,
clerical, technical and professional employees, guards, and supervisors as defined in
the Act, constitute a unit appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
3. The above-named Union was on April 11, 1962, and since that date has been
at all times the exclusive representative of all employees in the aforesaid appropriate
unit for the purposes of collective bargaining within the meaning of Section 9(a)
of the Act.
4. By refusing on April 12, 1962, and at all times thereafter to bargain col-
lectively with the above-named Union as the exclusive representative of its em-
ployees of the aforesaid appropriate unit, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act.
5 By terminating the employment on or about April 12, 1962, of employees Carl
McLemore and Vernon Horse, the Respondent discriminated in regard to the hire
and tenure of employment of employees, thereby discouraging membership in labor
organizations and engaging in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
4 Lunsford left Respondent 's employ on or about March 30, 1962.
MAYFAIR COAT & SUIT CO . 1333
6. By the foregoing conduct , by interrogating its employees concerning their union
activities, and by notifying employees to abandon the Union if they desired con-
tinued employment , the Respondent interfered with, restrained , and coerced its em-
ployees in the exercise of rights guaranteed in Section 7 of the Act and thereby has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Mayfair Coat & Suit Co.' and Alfred Galina
International Ladies ' Garment Workers' Union , AFL-CIO, Local
55 and Alfred Galina. Cases Nos. 21-CA-4444 and 21-CB-1746.
February 20, 1963
DECISION AND ORDER
On June 12, 1962, Trial Examiner David F. Doyle issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action as set forth in the attached Intermediate
Report. Thereafter, the Respondents and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this proceeding and adopts the Trial Examiner's findings, conclusions,
and recommendations only to the extent consistent with the decision
herein.
The Trial Examiner found that Mayfair and the Union discrimi-
nated against the Charging Party, Alfred Galina, in violation of
Section 8(a) (1) and (3) and Section 8(b) (1) (A) and 8(b) (2) of the
Act, respectively. We do not agree.
Mayfair, a manufacturer of ladies' apparel, is a member of the
Los Angeles Coat and Suit Manufacturers' Association that represents
its employer-members in collective bargaining with the Union on a
multiemployer basis. The most recent agreement, which became effec-
tive on January 21, 1960, and had a termination date of May 31, 1962,
provided for an exclusive hiring hall, called the employment bureau,
where union and nonunion employees were to be registered and offered
jobs for which they were qualified in the same sequence in which they
registered with the bureau. The agreement also contained a union-
Herein called Mayfair.
140 NLRB No. 130.