Rayford Stone Co.

National Labor Relations Board - Board Decisions

Jan 22, 1952

97 N.L.R.B. 1118 (N.L.R.B. 1952)

1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RUSSELL C. DOHS AND A. J. KAVANAUGH, CO-PARTNERS , D/B/A RAY-
FORD STONE COMPANY and UNITED CEMENT, LIME AND GYPSUM
WORKERS INTERNATIONAL UNION, LOCAL No. 254. Case No. 16-
CA-164. January 22,1952
Decision and Order
On July 31, 1951, Trial Examiner Albert P. Wheatley issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had not engaged in the unfair labor practices al-
leged in the complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the General Counsel and the
Respondents 1 filed exceptions to the Intermediate Report and sup-
porting briefs. The Respondents also filed a reply brief and a brief
in support of the Trial Examiner's findings on the merits.
The Board 2 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 and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
The General Counsel takes issue with the Trial Examiner's find-
ings primarily because of his disagreement with the Trial Examiner's
resolution of conflicting testimony. As the Trial Examiner has had
the benefit of personal observation of the witnesses, and as his credi-
bility findings are consistent with the clear preponderance of all the
relevant evidence, we see no reason to disturb these findings.'
Accordingly, we shall dismiss the complaint herein.
Order -
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint against the Re-
spondents Russell C. Dohe and A. J. Kavanaugh, co-partners, d/b/a
Rayford Stone Company, Dougherty, Oklahoma, be, and it hereby
is, dismissed.
'The Respondents ' exceptions are directed only to the Trial Examiner 's jurisdictional
findings. We find no merit in those exceptions.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Herzog and Members Houston and Styles].
3 Standard Dry Wall Products , Inc., 91 NLRB 544, enfd 188 F 2d 362 ( C. A. 3) ; cf.
N. L. R. B . v. Universal Camera Corp ., 190 F. 2d 429 ( C. A 2), on remand from Universal
Camera Corp . v. N. L R. B ., 340 U. S. 474.
97 NLRB No. 180.
RAYFORD- STONE COMPANY • 1119
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
The disputed matters in the above-captioned proceeding concern: (1) Juris-
diction; (2) the discharge of Cecil Busby on or about April 19, 1949; (3) a
refusal to reinstate Russ Moore, on and after May 20, 1949; (4) a strike which
occurred on or about May 16, 1949; and (5) allegations concerning interference,
restraint, and coercion of employees. The issues, framed by a complaint, as
amended at the hearing, and an answer, were fully litigated at a hearing before
the undersigned on March 20, 21, 22, 23, 26, April 10, 11, 12, 13, 16, 17, 18, and
May 8, 9, 10, 11, 14, 15, 16, and 17, all in 1951' Counsel for the General Counsel
of the National Labor Relations Board, herein called the General Counsel,
counsel for Russell C. Dohe and A. J. Kavanaugh, co-partners, doing business
as Rayford Stone Company, and a fourth general vice president and a district
representative for the above-named Union participated in the afore-mentioned
hearing. All parties were afforded full opportunity to be heard, to examine and
to cross-examine witnesses, and to introduce evidence bearing upon the issues.
At appropriate times during the hearing, counsel for Respondent moved to dis-
miss the complaint, as amended. The undersigned took these motions under
consideration and they are now disposed of in accordance with the following
findings and conclusions. After the close of the hearing, briefs were received
from the General Counsel and from counsel for Respondent which have been of
material benefit in the preparation of this Report.
Upon the entire record in the case, and from his observation of witnesses, the
undersigned makes the following findings of fact, conclusions of law, and
recommendations.
Jurisdiction
Russell C. Dohe and A. J. Kavanaugh, co-partners, doing business under the
trade name and style of Rayford Stone Company, herein called Respondent,
operate a quarry and stonecrushing plant located near the town of Dougherty,
Oklahoma. Respondent owns "a lease on a small mountain of Rock" ("more
than two hundred acres") and at this location produces crushed stone, "a
very crude primary product" used for building and construction purposes, i. e.,
surfacing roads, mixing or manufacturing concrete, and used in the manufacture
of asphalt paving. Respondent's operations consist of blasting rock loose from
the mountain and reducing the rock in size by crushing and screening so that
the finished product will meet customer specifications. All of the crushed stone
or rock produced by Respondent is marketed and sold within 150 miles of
Respondent's quarry and crushing plant and none of it is shipped or transported
across State boundries.
In 1949 the dollar volume of business done by Respondent amounted to
$341,142.90. Total sales for 1950 amounted to $234,441.43.2
The record reveals that a substantial portion of the stone or rock sold by
Respondent since about May or June 1949, was used in the construction of a
sewage disposal plant in Oklahoma City. So far as this matter is concerned the
plant consists of a large concrete tank containing filter rock. This tank was
built by Earl W. Baker Company' and in the construction thereof, Earl W.
1 The hearing was held in Sulphur, Ada, and Ardmore, Oklahoma.
2 Respondent estimated "the average value of the rock is about a dollar a ton "
3 A general contractor engaged in Oklahoma City in street paving and other municipal
contracting.
6
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Baker Company used approximately $17,250 worth of rock purchased from
Respondent and delivered at the filter plant site. The tank contains filter rock
purchased from Respohdent by Metropolitan Paving Company, Inc.,' and delivered
at the filter plant site. Metropolitan Paving Company, Inc., thus purchased
and used $130,067.80 worth of filter rock in 1949 and $52,775.98 worth in 1950.
This filtration project is in operation, but at the' time of the hearing had not
been completed and Respondent has continued to make deliveries thereto of filter
rock-a shipment having been made on March 21, 1951, and there is a possibility
"they might need one or two more cars even yet." This sewage disposal plant
is "Oklahoma City's major unit." It treats "mixed sewage, both industrial' and
residential."
In 1949 Respondent made additional sales to Metropolitan Paving Company,
Inc., in the amount of $65,220.33, and in 1950 in the amount of $102,513 88.° A
major portion of this represents stone or rock used in street resurfacing projects
in Enid, Oklahoma, and Oklahoma City.
Included among the customers of Respondent are the following :
1. Oklahoma State Department of Highways. Sales by Respondent to this
department in 1949 totaled $18,465 39 and in 1950 totaled $5,849.94. These
figures represent crushed stone used on highways in the State of Oklahoma.
2. City of Oklahoma City (population-city proper 242,450, metropolitan
county 322,520, and urban area 273,424), Purcell (population 3,527), Wynnewood
(population 2,417), and Davis (population 1,934), all in Oklahoma. Sales to
these cities in 1949 totaled $692.17 and in 1950 totaled $831.71, and the crushed
rock was used primarily in street maintenance work
3 Layman and Company, a general contracting concern located in Tulsa,
Oklahoma, and engaging in highway construction, maintenance, or repair.
During 1949 Respondent's sales to this concern totaled $38,752 09, and the
material "was used to re-surface or to surface a state road between Wynnewood
and Elmore City," Oklahoma. -
4. Earl W. Baker Company, a general contracting firm engaged in street
paving and other municipal contracting and a regular customer of Respondent.
During the 24-month period from January 1, 1949, to January 1, 1951, Earl W.
Baker Company purchased from Respondent crushed stone amounting to a
dollar volume of $37,113.15.'
5. A. J. Spicer In April 1950 Respondent's sales to A. J. Spicer totaled
$34166 and in May 1950 totaled $257 85. These figures represent crushed
rock used for "city street work in Oklahoma City."
6. H. D. Youngman. About March 1950, H. D. Youngman purchased from
Respondent $1,070.63 worth of crushed stone. This crushed stone was "used on
Highway 18 between Sulphur and Stratford, on the sealing of the shoulders
after the paving is completed."
4 Principally a city-street-paving contracting firm.
s All types of industry including heavy industrial. However, it is a sanitary sewerage
system not ordinarily handling industrial waste, such as refinery waste.
e Metropolitan Paving Company , Inc., engages extensively in street paving operations in
Oklahoma City and vicinity and the crushed stone used by this concern in these operations
comes "largely from" Respondent . Metropolitan Paving Company , Inc, purchases an-
nually from Respondent between $50 , 000 and $100 , 000 worth of crushed rock and Respond-
ent estimated that between 90 and 95 percent of the materials represented by these figures
goes "into city streets in and around Oklahoma City." Metropolitan Paving Company,
Inc., also perfoims various highway construction work in Oklahoma , and Respondent
supplies substantial quantities of crushed rock used in these operations
7 This figure includes $17 ,250 worth of crushed stone used by Earl W . Baker Company
in constructing the sewage tank mentioned above.
RAYFORD' STONE COMPANY 1121
7. Oakes Material Company, a ready-mixed concrete company operating in
and near the city of Edmond, Oklahoma, and supplying ready-mixed concrete
for installations in the oil field in and near Edmond, Oklahoma, and for in-
stallation in individual houses in that area. Respondent's sales to this concern
in 1949 totaled $5,375.93 and in 1950 totaled $1,211.94. The record reveals that
the crushed stone sold by Respondent to Oakes Material Company was probably
used in the construction of houses.
8. W. D. Amis and R. T. Amis, Jr., d/b/a Amis Construction Company.
This concern has its principal office in Oklahoma City and engages primarily
in dirt moving, road, bridge, dam, airport, and railroad construction. During
1949 Amis Construction Company's purchases from Respondent totaled $828.11.
This record does not reveal the specific locations where the crushed stone
represented by these figures was used.
9. W. A Smith and G. E. Smith d/b/a Smith Bros. This concern has its
principal office in Noble, Oklahoma, and engages in road construction work.
Respondent's sales to Smith Bros. during 1949 totaled $146 79 and during 1950
totaled $7,108.89. Respondent estimated that Smith Bros. gross volume of
business is "about $700,000, and of that we furnished material to about half of
their jobs." The record further reveals that substantial quantities of crushed
stone from Respondent's plant are used by Smith Bros. in connection with their
highway construction business.
10. Vinsonite Sales Company, a concern engaged in the manufacture of "ready
mixed cold laid asphalt"-a patching material used to patch streets, highways,
driveways, and things of that kind. Purchases from Respondent during 1949
totaled $1,937.93 and during 1950 totaled $4,561.13.
From January 1, 1949, to December 31, 1950, Respondent expended for repairs
and materials the sum of $471,179.84. This figure includes the following:
1. Explosives. Respondent's purchases from Atlas Powder Company during
1949 totaled $4,148 60 and during 1950 totaled $1,646.18. The record
reveals that "much of the material that goes into the manufacture of powder
is necessarily imported into the State of 'Oklahoma." Although Atlas Powder
Company operates a magazine located in northeast Oklahoma, Respondent esti-
mated that more than half the explosives received by Respondent comes from
outside Oklahoma.
2. A small water tank costing $470.24 from Black, Sivills and Bryson, Inc., an
Oklahoma City concern engaged in the manufacture of tanks and oil field pro-
duction equipment. The steel used in the manufacture of tanks by Black,
Sivills and Bryson, Inc., is manufactured outside Oklahoma. Out-of-State pur-
chases of steel plates, pipe, and similar supplies by Black, Sivills & Bryson, Inc.,
during 1950 exceeded $900,000. This concern's out-of-State shipments during
this period approximated $750,000.
3. Machinery parts. During 1949 Respondent's purchases from Clarence
Boyd Company of Oklahoma City were $722.37 and during 1950 were $754.53.
Respondent estimated that 80 percent of these figures represents materials
supplied to Respondent, and that most of the materials came to Clarence Boyd
Company from outside of Oklahoma.
4. Parts, from Buda Engine Sales and Service Inc., an Oklahoma City concern.
Respondent's account with this concern during 1949 totaled $2,542.15 and dur-
ing 1950 totaled $331.77. Respondent estimated that 90 to 95 percent of these
figures represents expenditures for parts. Buda Engine Sales & Service, Inc,
during 1950 received from outside Oklahoma materials valued in excess of
$150,000 and during this same period sold and delivered outside Oklahoma
equipment valued in excess of $47,500.
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Tires, batteries, and auto and truck parts from Cooper Auto 8 Stores of
Sulphur, Oklahoma. Respondent's account with this concern during 1949 totaled
$3,340.92 and during 1950 totaled $1,449.38.
6. Repair parts from Davey Compressor Company. The record reveals that
in July 1949 Respondent's account with this concern was $62.13 and that the
repair parts were sent to Respondent from Ohio.
7. Parts from Eicher Reo Company of Oklahoma City, a concern engaged in
the sale of Reo trucks and parts. Respondent's purchases of parts from this
concern in 1949 totaled $293.21.
8. Electric power from Oklahoma Gas & Electric. During 1949 Respondent's
account totaled $11,338.15 and during 1950 totaled $4,741.97.
9. A conveyor belt costing $1,400 from Shovel Supply Company of Dallas,
Texas.
10. Metal screens from Southwest Machinery Company. These screens were
made in Cedar Rapids, 'Iowa, by the Iowa Manufacturing Company. In 1949
Respondent purchased one such screen from Southwest Machinery Company at
a cost of $3,325.15 and in 1950 purchased another at a cost of $4,169.17. In
addition, Respondent's purchase account with Southwest Machinery Company
during 1949 totaled $7,620 82 and during 1950 totaled $4,343.51, and Respondent
estimated that 75 percent of these figures represents parts.
11. Gasoline 8 and oil from The Texas Company. During 1949 Respondent's
account with this concern totaled $22,560 16 and during 1950 totaled $10,200 03.
In summary, Respondent's sales during 1949 and 1950 were made locally
and totaled $578,584.33. Of these sales, rock valued in excess of $200,093
was sold for the construction of a local sewage disposal plant and during each
of these years crushed rock valued in excess of $50,000 was sold for repair,
maintenance, and operation of U. S. highways, State and -county roads, and
city streets. Also during this period Respondent purchased materials and
repair parts and expended therefor approximately $471,179. Some of these
materials and parts were supplied to Respondent from outside Oklahoma
(explosives, repair parts from Davey Compressor Company, a conveyor belt),
others were purchased from suppliers located within Oklahoma but were
produced or manufactured outside the State (machinery parts from Clarence
Boyd Company, metal screens manufactured in Iowa), and others were pur-
chased from local concerns which themselves engage in a business subject to the
jurisdiction of this agency.
Upon the foregoing facts and the entire record herein the undersigned finds
that Respondent's operations affect commerce within the meaning of the Act.
In a series of cases the Board has recently announced certain quantitative
and other standards which will be used in determining how it will exercise
its discretion to assert or not assert jurisdiction in a particular case. As
Respondent furnishes materials valued in excess of $50,000 necessary to the
maintenance and operation of the highways, roads, and streets in Oklahoma,
which form a part of the arteries of commerce, the undersigned finds it will
effectuate the purposes of the Act to exercise jurisdiction over Repondent's
operations. (See Camp Concrete Rock Co., 94 NLRB 296; Depew Paving Company,
Inc., 92 NLRB 142; and Tampa Sand & Material Company, 88 NLRB 861.)
Moreover, the fact that Respondent supplied materials valued in excess of
e The record reveals that Cooper Auto Stores sells B. F. Goodrich tires
The record reflects that "all the gasoline and the Diesel fuel and most of the lubricants
are manufactured at the Tulsa plant out of Oklahoma crude produced out of Oklahoma "
RAYFORD- STONE COMPANY 1123
$50,000 which are necessary to the operation of a public utility 10 affords an
additional ground for asserting jurisdiction . ( See Donovan, James, Wismer &
Becker, 92 NLRB 1698; William W. Kimmins & Sons, 92 NLRB 98; and Rock
Asphalt Inc., 91 NL$B 1515.)
Respondent contends that construction of sewage disposal plants is sporadic,
variable, and uncertain, and that therefore the Board should not assert juris-
diction based upon rock going into such plants. The undersigned does not
agree. (See Stone & Webster Engineering Corporation, 94 NLRB 197.)
Respondent 's motion to dismiss on jurisdictional grounds is hereby denied.
Merits 11
Charges of Union Hostility on the Part of Respondent and Alleged Intimidation
and Coercion of Employees
The General Counsel contends that Respondent was hostile toward the Union
as shown by alleged bad faith bargaining," by certain statements, purportedly
made by Street Boyd (superintendent), and by building up its payroll preparatory
to ridding itself of the Union.
Between November 1948 and May 15, 1949, there was a series of meetings
between representatives of Respondent and representatives of the Union which
culminated in a failure of the parties to agree on the terms and conditions
of a collective bargaining agreement. Despite the absence of allegations that
Respondent refused to bargain or bargained in bad faith, the General Counsel
contends that at these meetings Respondent evidenced an antiunion attitude
and that this together with the unfair labor practices- alleged was the reason
for the strike which occurred on May 16, 1949.
By letter dated August 28, 1948, the Union advised Respondent that the
Union represented a majority of Respondent's employees and requested a meet-
ing "no later than September 3, 1948, so that we may negotiate a contract for
this group." This letter also stated "should I fail to hear from you, our mem-
bers there have taken action to strike your plant as of that date." Enclosed
was a proposed contract. The letter was addressed to Rayford Stone Company
and mailed to Respondent's office 13 in Oklahoma City. R. C. Dohe, the partner
in charge of operations at the plant and quarry, was absent from the office
10 There is a doubt as to whether the sewage disposal plant is the type of public utility
contemplated in the Board's decisions. However, the undersigned believes that the type
of utility contemplated is any public utility furnishing a service without which the indus-
trial concerns serviced would be hampered Accordingly, it is believed that the sewage
disposal plant here involved comes within the meaning of public utility as used in Board
decisions. Although the rock was sold to intervening concerns the record reveals that
the rock was actually delivered at the plant site and, at least In the case of filter rock, used
in the disposal plant without any change by the intervening company-Metropolitan
Paving Company, Inc.
11 The testimony concerning the incidents involved in this proceeding is thoroughly con-
flicting and contradictory and the findings of fact made herein result from my attempt
to reconcile the evidence and determine what probably occurred. The findings of fact
are based upon my consideration of the entire record and my observation of witnesses.
All evidence on disputed points is not described so as not to burden unnecessarily this
Report However , all has been considered and where required resolved . In determining
credibility the undersigned has considered inter alga. The demeanor and conduct of wit-
nesses ; their candor or lack thereof ; their apparent fairness , bias, or prejudice; their
interest or lack thereof ; their ability to know, comprehend , and understand matters about
which they have testified ; and whether they have been contradicted or otherwise impeached.
32 There is no allegation in the complaint that Respondent did not bargain In good
faith.
33 In addition to its plant and quarry near Dougherty , Respondent maintains a sales and
business office in Oklahoma City.
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between August 29 and September 2, 1948, and there was no one there "who was
operating in your [Dohe's] behalf to look after such matters." "Early on the
morning of September 2, 1948, while Dohe was still in bed in Kansas City,
Mathis, then superintendent of the plapt and quarry, telephoned Dohe and told
him there was a strike in effect at the plant and inquired "what to do." Dohe
returned to Oklahoma City on September 2, 1948, and then for the first time,
opened the Union's letter dated August 28. Respondent immediately contacted
its local attorneys. The local attorneys told Respondent that they (the local
attorneys) had called the Union and been informed "that all we [Respondent]
had to do was sign a contract and that was all that was required of us and fur-
ther than that [the Union] didn't want to bother with it " The local attorneys
further informed Respondent that they (the local atorneys) were no versed in
labor laws and were not competent to represent Respondent in the matter. The
following day (September 3, 1948) Dohe conferred in Tulsa, Oklahoma, with
A. Langley Coffey, Respondent's attorney herein.
Sometime prior to October 20, 1948, Respondent and a committee of the local
Union 14 executed a stipulation effecting a return to work of the employees.
In this stipulation it was agreed, inter alia, that the employees would return
to work on October 20, 1948, that "a general 5 cent per hour increase will apply
to all jobs or classifications over and above the rate in effect at the time, the
strike occurred," that a consent election would be conducted and that if the
Union won the election the parties would "make every endeavor possible to
consummate a labor contract." Pursuant to the stipulation work was resumed
on or about October 20, and the wage increase was made effective. On or about
November 1, 1948, a consent election was conducted among the employees in-
volved and a majority thereof designated the Union as their representative
for collective bargaining purposes.
The first bargaining conference, after the election, was held during the latter
part of November 1948. At this meeting it was agreed that, since employees
of two concerns belonged to the same local union, the union bargaining committee
throughout the negotiations for a contract would be composed of employees
of Respondent Is It was also agreed that J. M. Youngblood, district representa-
tive for the Union, would act as union spokesman and that A. Langley Coffey,
attorney for Respondent, would act as spokesman for Respondent. Various-
provisions of the Unions proposed contract were discussed in detail and some
tentative agreements were reached. Included in the matters discussed were
wages, seniority, union shop, checkoff, management rights 'provisions, hours
of work, use of bulletin boards, and overtime.
The Union in its proposed contract sought substantial wage increases in vari-
ous classifications. Respondent contended it could not afford the increases
sought and stated it handled a commodity in a low price level and that wages
14 Union committee consisting of M S. Lance, recording secretary of the local, Ernest
Haney, president of the local, and Cecil Busby, trustee of the local.
15 There is a dispute as to whether this conference occurred on November 30 only or on
November 29, 30, and December 1, 1948. The undersigned does not deem it necessary to
resolve this dispute.
11 The union committee consisted of Ernest Haney, president of the local, M. S. Lance,
recording secretary of the local, and Cecil Busby, trustee of the local. Busby was injured
on March 17, 1949, and thereafter Ellis Sayler served on this committee in his place On
or about April 14, 1949, M. S Lance was discharged by Respondent and thereafter H. E
Rhodes, another employee of Respondent, replaced Lance on the committee.
RAYFORD- STONE COMPANY 1125
should be comparable `to wages paid by other such similar concerns. The wage
scales prevailing at various other concerns were considered, discussed, and
compared.
In its proposal the Union sought a clause stating :
All present employees will become Union members of the Union im-
mediately and all new employees will become members after fifteen days
and continue in good standing for the duration of this agreement.
Respondent opposed this clause "for the reason that only part of our employees
belonged to the Union" and a discussion ensued. In the course of discussion of
this clause, seniority, application of the Labor Management Relations Act, and
means of governing membership and policing the contract were considered.
The discussion resulted in Respondent's proposing that the Union accept check-
off provisions in lieu of the above clause.
The parties conferred again during the early part of December 1948.17 At this
conference the parties again discussed various provisions of the Union's proposed
contract, including wages, seniority, vacation, and union shop. During the meet-
ings it developed that there were only six or seven employees who were not
members of-the Union and that the Union was insisting upon a contract requiring
their membership in the Union as a condition of employment. It further devel-
oped that among this group of six or seven were employees who were senior, in
length of employment with Respondent, to many union members and that Re-
spondent was not willing to sign an agreement requiring their involuntary mem-
bership in the Union. It was asserted by one member of the union committee
(Lance) that these "employees had refused to join the Union because they
thought they would gain greater favor with the Company by staying out of the
Union" Dohe then volunteered to 'go with Youngblood and advise these non-
union employees that "the Company had no interest whatsoever in whether they
joined the Union or did not join the Union." Respondent advised the Union
that if these nonunion employees joined the Union that would eliminate "the
Company's objection to a union shop proposal." The conference ended with an
agreement that Dohe and Youngblood would contact the employees involved and
give them an "opportunity to join the Union it they saw fit."
Between this meeting and the next, Dohe and Youngblood went to Respond-
ent's plant near Dougherty, Oklahoma, and Dohe talked to all of the nonunion
employees and "tried to get them to join the Union." These employees told Dohe
they "would join if you [Dohe] wanted them to" and Dohe told them he "wanted
them to." Nevertheless these employees (five in one family), after conferring
among themselves and with others, advised Dohe that they "didn't feel they were
welcome in the Union" and "if they had to join the Union, they just as well go
some place else to work."
The next meeting of the parties was held on February 13 and 14, 1949. At
this meeting the Union's proposed contract was again discussed and tentative
agreement was reached concerning seniority and grievance procedure. Other
•matters discussed included wages, union security, and checkoff. Considerable
time was spent on the wage issue. Respondent took the position that it "couldn't
pay any more than our competitors and we would meet any wage rate" of a com-
petitor. A discussion ensued as to who was a "competitor" and concerning the
17 There is a dispute as to whether this conference occurred on December 5, 6, and 7 or
'on December 5 and 6. Whether this conference lasted 2 or 3 days does not appear crucial
'herein. Accordingly I am not resolving this issue.
986209-52-vol. 97-72
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage rates effective at Southern Rock and Asphalt Company, Southwest Stone
Company, Deloese Bros., and Makins Sand and Gravel Company. The Union
sought a wage rate similar to that existing at Southern Rock and Asphalt Com-
pany and Respondent opposed such rate and endeavored to explain that that
concern was not a competitor. Respondent contended that Southwest Stone
Company, Deloese Bros., and Makins Sand and Gravel Company were its com-
petitors and stated that it (Respondent) "would meet any wage scale our
competitors were paying." No agreement was reached on wages. At this meet-
ing Dohe reported that he had gone to the plant, as it was previously understood
he would do, with Mr. Youngblood and that the six or seven employees were not
willing to join the Union. Respondent then reiterated its objections to union-
shop provisions At this point Youngblood and the union committee held a
separate conference "in the hall" wherein they discussed "union shop." Lance,
one of the committee members, remarked that he "wouldn't sign a contract that
didn't have a union shop provision in it." Youngblood advised the committee to
accept an irrevocable checkoff provision in lieu of union shop. Youngblood
testified the committee was in accord with his thoughts. Nevertheless when
this committee returned to the meeting room, where Respondent's representa-
tives were waiting, Youngblood did not advise Respondent that the Union was
withdrawing its proposal for a union shop and accepting in lieu thereof checkoff
provisions. To the contrary, Youngblood suggested that the parties "break off
negotiations." The conference ended with an agreement that the parties would
again assemble at a date to be fixed at a later time. Shortly after this meeting
adjourned Coffey and Dohe met Youngblood near the hotel in Sulphur, Oklahoma.
Discussion ensued as to the position of the Union on "union shop" and Young-
blood informed Coffey and Dohe that he (Youngblood) was satisfied with check-
off in lieu of union security. There is a conflict as to whether Youngblood
stated the committee was willing to exchange union shop for checkoff provisions
or whether Youngblood stated he personally was satisfied with such exchange
but that he was having difficulty with the union committee. On the basis of
the entire record it appears very unlikely that Youngblood informed Coffey and
Dohe that the union committee had agreed to accept checkoff provisions in lieu
of union security, and the undersigned rejects Youngblood's testimony to this
effect.
The parties met again on March 20, 1949. At this meeting Respondent sub-
mitted a proposed contract in written form and the parties discussed various
provisions thereof including wages and checkoff.18 Union security was also
discussed. In Respondent's proposed contract the rates of pay after the job
classifications were left blank. At this meeting the parties considered each
classification separately and discussed the rate of pay applicable. Respondent
did not offer a general wage increase but did indicate a willingness to grant
increases to "eliminate what appeared to be intraplant inequities." In some
job classifications Respondent offered wage increases and in at least one
instance the increase amounted to 15 cents per hour. This meeting lasted
from about 2 p. m. until about 8 p. m., and the principal subject matter
discussed concerned wages. At the conclusion of this meeting Youngblood
18 This proposed contract stated, inter alia, voluntary, irrevocable , checkoff of union dues
shall prevail during the life of this contract. On written authorization from Its employees,
the Company agrees to deduct from the employees ' wages union dues and such other fees
and assessments which are the subject of the written authorization and not contrary to
law. Such authorization, once filed with the Company, shall be irrevocable during the life
of this contract.
RAYFORD STONE COMPANY 1127
Tequested the opportunity to take Respondent's contract proposal, as revised
at the meeting, to the entire membership of the Union for its approval or
disapproval and agreed to advise Respondent at the next meeting (the date
to be set upon request therefor from the Union) whether or not the contract
was acceptable to the Union. The next meeting was held on May 15, 1949,
at which time the union committee reported the contract was not acceptable.
An employee by the name of Rhodes replaced Lance as a union committee
member at the May 15, 1949, meeting. Nevertheless Lance was also present
at this meeting. When the meeting opened Coffey inquired the reason for
Lance's presence and was advised by Youngblood that Lance was present "to
discuss the matter of his earlier discharge." Coffey responded that the "last
meeting had adjourned subject to call for the express purpose of the Union
reporting on whether the Company's proposed contract was acceptable and until"
Respondent received that report he (Coffey) objected to taking up other matters.
Coffey then indicated that before handling Lance's case he wanted to know
"whether we were proceeding under a grievance provision of the contract or some
other basis" and inquired what action the union membership had taken on the
contract. Youngblood responded that "they didn't like it" and refused to
be more specific or to discuss the matter although interrogated as to the
particulars in which the proposed agreement was not satisfactory. There is
no evidence that the Union after notifying Respondent of its rejection of the
proposed agreement sought to discuss the Lance discharge and the meeting
ended without a discussion thereof. The following day (Mar 16, 1949) a
strike began at Respondent's plant.
Upon the basis of the foregoing findings of fact the undersigned rejects the
contention of the General Counsel that Respondent evidenced an antiunion
attitude at the aforesaid bargaining conferences.
Statements by Street Boyd I
Russ Moore, as a rebuttal witness for the General Counsel, testified that
sometime in February 1949 and "somewheres in the latter part, maybe around
the 20th or somewheres along in there" he (Moore) and Street Boyd, then
superintendent, had a conversation about the Union and
he [Boyd] said that he used to work for the railroad company and that a
bunch got together and was trying to organize the union there and that
hisself and several other of the men that was working joined up with the
union and later they all lost their jobs over it and he [Boyd] said "It
looks like that's what is going to happen to you fellows down here.""
From 1917 to 19'22 Boyd worked for the Santa Fe Railroad and while working
as machinist apprentice became a member of a labor organization. On July
1, 1922, "a general strike" occurred in which the machinists, including Boyd,
-participated. According to Boyd the Union "lost the strike" and he (Boyd)
"started another line of work" and did not thereafter work for the Santa Fe
Railroad.
On cross-examination during Respondent's case-in-chief Boyd testified :
Q. Now, Mr. Boyd, if I can direct your attention just briefly back to
the spring of 1949, do you recall having any discussion with Russ Moore
about this old union connection that you had with the Santa Fe people
back prior to 1922?
1@ The General Counsel offered and this testimony was received as evidence of Boyd's
:antiunion bias and not as proof of a violation of the Act by Respondent.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. I don't remember it. I don't remember discussing it with Russ
Moore or anyone.
Q. You can't recall it at all at this time?
A. No.
In the same sequence of questions and answers Boyd further testified :
Q. Were there any other employees which you can remember, Mr. Boyd,
with which you discussed your earlier union connections?
A. No, sir.
Moore is so involved in the evidence concerning his status as a supervisor
and in the evidence concerning the overturning of the crane, that a rejection of
his testimony on these issues casts suspicion upon his entire testimony. As
hereinafter noted the undersigned rejects material portions of Moore's testi-
mony. Furthermore on the basis of the entire record it appears unlikely that
Boyd made the statement attributed to him by Moore. Boyd was aware of the
negotiations mentioned above, and in fact attended two of the conferences-
the conference of February 13 and 14, and the conference of May 15, 1949. Also,
at about the time of his employment R0 with Respondent and in view of the then
current negotiations, Boyd was told by Respondent that they were working
under a temporary agreement and "had hopes of working out a contract with
the Union" and that he [Boyd] was not to discharge anyone without Dohe's.
prior approval. In addition, as noted above and in the footnote below," Dohe,
the managing' partner of Respondent, encouraged membership in the Union and
the above statement if made would be contrary to the attitude expressed thereby.
In the light of the entire record the undersigned is not persuaded that Boyd
made the statements attributed to him by Moore. Furthermore, if he did, on
the basis of the record it appears, and the undersigned finds, that they were
statements by Boyd, a supervisor, to Moore, another supervisor.
On or about March 5, 1949, a union grievance committee, consisting of M. S.
Lance, chairman, Cecil Busby, and Ernest Haney, talked to Boyd about a griev-
ance involving the transfer of an employee (Glen Brounlee) from a job as oiler
at the quarry to a job as truck driver at the crusher plant. Boyd told the com-
mittee that the quarry foreman had said that Brounlee "wasn't any good as an
oiler" and that he (Boyd) "taken him off and put him down there [as truck
driver] and (sic) see if they could get any work out of him there." It is appar-
ent from the record that this did not settle the matter to the satisfaction of the
committee. Nevertheless the only evidence as to what further steps were taken
by the union committee consists of the testimony by Boyd hereinafter noted.
The next day (on or about March 6, 1949) Boyd, according to Haney and Moore,
approached Haney and said "Haney, if you are backing that Union and old man
Lance and backing them strong you just as well quit now for you are just here
for a matter of time. I am not recognizing old man Lance as a union committee-
man any more." Moore testified that Boyd further said that Haney could spread
that "amongst the men on the job if he wanted to."
Boyd, concerning this matter, testified that on or about March 5, 1949, Lance
approached him while he (Boyd) was sitting in a pick-up truck and wanted to
talk about the transfer of Brounlee and (Lance) said "that man was going back
on his job [as an oiler at the quarry] the next morning." Boyd testified he told
20 Boyd's employment with Respondent began January 7, 1949.
21 Moore testified that in December 1948 Dohe "asked me if I belonged to the Union
and I told him I did, and he said, 'Well, I am proud you do.' He said , 'I have decided to
give you fellows a union contract down here.' " In this same conversation Dohe, according
to Moore, asked Moore's help in "talking to the men that don't belong to the Union here
and in seeing if they will join the Union without giving any trouble."
RAYFORD STONE COMPANY 1129
Lance that Brounlee had been "moved in an effort to keep from firing him" and
that Lance "got mad, he wanted to fight." Boyd told Lance he (Boyd) didn't
want to fight and that "if he had any grievance, to bring it to the committee after
work hours and he [Boyd] would talk to them, I [Boyd] wasn't discussing those
things during work hours any more." Lance answered "I will just lay off and
argue with you the rest of the day," and Boyd told him he "wouldn't because
I [Boyd] wasn't going to listen." 22 That afternoon the union committee
did come to the office after work and discussed the grievance Boyd told
them the reason for the transfer was because Brounlee wasn't satisfying the
foreman of the quarry, and Lance said, "Well, we will wait on Mr. Bob [Robert
Elting, quarry foreman] this afternoon." 2"
According to Boyd, that afternoon at the end of the workday, as he approached
the gate (the entrance to Respondent's lease), he saw Haney and Lance standing
nearby and saw Lance jerk open the door to Bob Elting's car and heard Lance
using some profane language and upon observing this situation he (Boyd) got
out of his car, walked over and closed the door to Elting's car, and told Elting
to drive on and when "I [Boyd] turned around to get into my ear, I bumped into
Haney. He was standing at my back very close.2' I got in the ear and left"
Boyd testified further
The next day I got to thinking about it. I asked him [Haney] what he had
in mind when he was looking down my collar. He said he was going to
see that old man Lance didn't get hurt. I told him that he was going to listen
to Mr. Lance until he was going to get fired and might get whipped and that
was the extent of the conversation.
On the basis of the foregoing and the entire record the undersigned believes
the conversation on or about March 6, 1949, to be as related by Boyd rather
than as related by Moore and Haney. Furthermore, in the light of the entire
record the undersigned is not persuaded that this statement, under the
prevailing circumstances, was violative of the Act.
Bill Fisher testified that about the first of March 1949, while on the way to
Respondent's plant in search of employment, he saw Boyd and Charles Stockton,"
an office worker,26 and stopped and asked Boyd "how about going to work?"
According to Fisher he told Boyd he wanted "to get on the dozier" (sic) and
Boyd said he would give him such a job as soon as there was an opening but in
the meantime he (Boyd) wanted Fisher "to get on a truck." Fisher testified
that Boyd stopped a passing truck and took the driver off and put Fisher on as
truck driver. Fisher further testified that at this time Boyd asked him if
he "was a union man" and when he (Fisher) answered no, Boyd said "That
is good. Don't join up with them because I am going to run every union man off."
Fisher testified he did not know Boyd before going to the plant around
March 1, 1949, that he had not previously met Boyd, that he knew Boyd "from
what my brother said," and that as far as he knew that was the first time
Boyd ever saw him. Fisher testified he went to the plant that morning with
one or more other people but was unable to state how many. He did however
22 Lance did not testify in this proceeding.
2a Neither Haney nor Moore testfied concerning this statement and, as noted above, Lance
was not a witness herein.
2 On cross -examination Boyd testified that Haney was so close he (Boyd ) could not
avoid bumping into him.
26 Fisher was not sure whether Stockton was present but testified that he believed
Stockton was present.
" Near Respondent 's garage. ( Boyd "was there with his pick -up"-Fisher couldn't re-
member whether Boyd "was sitting in his pick-up.")
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
identify one as Bill McAbee.n Fisher testified that Boyd was observed as%
they "drove in on the property" and they went directly to where Boyd was.
Fisher could not remember whether he told Boyd where he "had worked before."
Fisher testified concerning a written application :
Q. You didn't make a written application or anything there?
A. Well, I probably did. I don't know for sure 28
Boyd testified that in February 1949 he and Fisher lived in the same vicinity
and that Fisher came to his "house several times" 29 in search of employment.
"He wanted the bulldozer operator's job and I [Boyd] told him there wasn't
one available and he [Fisher] said he would take a truck and there wasn't a
truck available." According to Boyd, there came a time in February when
there was an opening for two driller helpers and he talked to Fisher via tele-
phone and told Fisher "there was a job as a laborer helper helping the driller,
I [Boyd] needed two men, and he [Fisher] got another man [McBee] 90 to come
with him, and they went to work the next morning" at the quarry" but within
3 or 4 days Fisher was given a job as a truck driver. Boyd denied that he ever
discussed with Fisher "matters pertaining to union activity," denied inquiring
of Fisher as to whether or not he belonged to a union, denied inquiring of any-
one who came there as a prospective employee about his union membership or
affiliation, and denied telling Fisher or any other employee or prospective em-
ployee "don't join up with them (referring to the Union) because I am going
to run every union man off." Boyd further testified that Fisher and another
employee (Brounlee) made special efforts to let him know they were not union
members and that he (Boyd) told them "they could belong to a sewing circle,
if they wanted to, that we weren't interested." In addition Boyd testified he
did not know Fisher before Fisher applied at his house for work and that he
(Boyd) knew Fisher had a "brother that worked for me several years as a shovel
operator" before he (Boyd) "went to work for Rayford Stone Company." Boyd
also testified that on the day Fisher and McBee reported for work the only
conversation he had with them was such as was necessary to tell them where
and to whom they should report, and that Stockton was not present during
this conversation.
Charles Stockton testified that he did not hear Boyd tell Fisher "that he,
Mr. Boyd, was going to get rid of everybody working for the company that
belonged to the union" or "that statement in substance" and that he (Stockton)
wasn't there (at the location named by Fisher) at any time it was made.
Stockton, during the period of time involved, lived with Boyd and he cor-
roborated Boyd's testimony concerning Fisher's visits to Boyd's home and the
telephone conversation wherein Boyd offered Fisher employment. Stockton
also testified that Fisher "started out in the quarry" and "in a day or so, one
of the truck drivers quit and he [Fisher] started driving a truck."
The circumstances related by Fisher appear improbable. Furthermore, in
the light of the entire record, it is doubted that Boyd would make statements to
a new employee or prospective employee which are inconsistent with Respond-
ent's efforts to work out a contract with the Union (which was known by Boyd)
and which would be contrary to the attitude evidenced by Respondent through
statements and conduct of .its partners. The undersigned is cognizant of the
anxiety of Stockton to testify contrary to the interests of the Union and of
27 The payroll reflects that a truck driver named W. C. McBee started working for
Respondent the same week Fisher did and does not reflect an employee named McAbee.
28 Boyd testified Fisher did not "at any time make written application " for work.
29 Two or three times.
20 Neither McAbee nor McBee testified in this proceeding.
21 The payroll records reveal Fisher 's employment with Respondent started during the
payroll period ending February 26, 1949.
RAYFORD STONE COMPANY 1131
his more than casual relationship to Boyd-only office worker at Respondent's
plant, dates of employment with Respondent approximate dates Boyd was em-
ployed by Respondent, now employed at same concern where Boyd works, and
lived at Boyd's house-and has scrutinized his testimony. On the basis of the
entire record the undersigned rejects and does not credit Fisher's uncorroborated
testimony that Boyd asked him if he was a union man and, upon receiving a
negative reply said "That is good. Don't join up with them because I am going
to run every union man off."
On direct examination Fisher testified:
Q. All right now, about three weeks after you started to work, that would
be three weeks after March 1, 1949, did you have another conversation
with Street Boyd?
A. Yes sir.
Q. Was the Union mentioned during that conversation?
A. Yes, sir.
Q. Where did this take place, Bill?
A. Down there at the rock quarry where the trucks dump We were
standing there talking to Street and he said, "There is some fellow from
Oklahoma City who is coming down to check on Mr. Lance. Going to watch
him and see what he can find for him so he can stand up in court."
On cross-examination Fisher testified that this conversation occurred "prob-
ably a week, ten days, maybe two weeks" after he started to work," that it took
place "at the loading ramp" at the "crusher plant," that Stockton and a truck
driver identified as Fats were present during the conversation and
Q. All right, now, what drew that conversation out? What started it?
Did you say something to him or did he come out of a clear sky and say,
"Now, I am going to get rid of everybody down here that belongs to the
Union" or something like that?
A. No, standing up there and looking down at Mr. Lance, r believe is the
way it started, and he said, "I got a man coming down," I believe he said two
men coming down from the city. "They are going to watch him and they
are going to get an excuse to fire him so it will stand up in court."
Q. Did he say who the two men were?
A. No.
Q. A minute ago you said one man and now you say two men.
A. I said one man and I say two men now. I believe that is what he said.
I believe he said two men.
Q. They were going to have him come down and watch Mr. Lance is that
right?
A. Yes, find an excuse to fire him.
Q. So it would stand up in court, is that right?
A. That is right.
Q. What did you say to that?
A. I didn't say anything.
Q. You weren't interested in it, were you?
A. No.
Q. You don't know why Mr. Boyd would be telling you what his plans
were with respect to firing Lance, do you?
A. No, I don't see why he should tell me.
Concerning this alleged conversation Boyd testified :
Q. Mr. Boyd, about three weeks after March 1, 1949, did you have a
conversation with Bill' Fisher down at the rock quarry where the trucks
12 Fisher didn ' t know whether the conversation took place in the morning or afternoon.
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dump in which there was a discussion about a proposal on your part that
you were going to get some fellow from Oklahoma City to come down and
check on Mr. Lance with a view to finding some basis for discharging him
that would stand up in court?
A. No, sir.
Q. Did you have any conversation at the time and place just stated with
Bill Fisher whatsoever that you recall?
A. No, sir.
On cross-examination Boyd testified that he "didn't have any conversation at
that point about any of the men with Fisher. There was times when those
trucks would line up ahead and all the drivers would drop off and talk among
themselves and I could have been there, but I didn't discuss the Union with any
of them or the men." Boyd also testified on cross-examination that prior to
March 20, 1949, he had recommended the discharge of M. S. Lance, that on
several occasions he recommended to Dohe that Lance be discharged and that
on these occasions Dohe stated "he would take it under advisement," and that
Dohe indicated (though Boyd could not remember what Dohe said) that he
was more interested in getting a contract with the men and that a discharge of
Lance would interfere with the contract negotiations.
As noted above, Respondent maintains a sales and business office in Oklahoma
City and Dohe and Kavanaugh reside therein- and direct Respondent's operations
therefrom. It can be argued that this together with Boyd's testimony concern-
ing his efforts to discharge Lance and the fact that Lance was thereafter dis-
charged 33 give support to Fisher's testimony. On the other hand, the then
current negotiations and Respondent's attitude toward the Union as evidenced
therein and by the conduct of Dohe tend to support Boyd's testimony of non-
interference with union activity.
Stockton testified that Boyd did not state in his presence, on the occasion under
consideration or on any other occasion, that he (Boyd) "had a man coming down
from Oklahoma City who was going to watch Mr. Lance to get an excuse to fire
him so it would stand up in court." .
In the light of the entire record, the undersigned credits Boyd's and Stockton's
denials and rejects Fisher's testimony concerning the statements under
consideration.
Fisher testified that "probably a week or two, week or ten days, something like
that" before the strike of May 16, 1949, at the "loading ramp" he had another
conversation with Boyd concerning the Union. He testified, on direct
examination :
We were talking about the Union and he said he was going to fire every
union man that was there and he was going to start on Busby, Haney, Moore
and Saylers.
Fisher testified that Stockton was present when this conversation occurred.
On cross-examination Fisher couldn't remember the date or the day of the
week when this conversation occurred or how the conversation started. He
also testified :
Q. What was the first thing they said to you, if you remember?
A. I don't remember. Street said he was going to start, I believe he said,
next week. He was going to fire every union man he had. He was going
to.start with Haney, Busby, Moore and Saylers.
* * * * * *
38 As noted above, Lance was discharged on or about Aplil 14, 1949 . However, his dis-
charge was not litigated herein.
RAYFORD- STONE COMPANY 1133
Q. You didn't say he was going to start Monday or anything like that ;
he was going to start next week, is that right?
A. I believe he said, I am going to start the first of next week. I
believe that is the way he said it.
Fisher testified that this conversation occurred after the discharge of Cecil
Busby. The record reflects that Respondent also employed a Paul Busby, and
Fisher testified that he believed Paul Busby was a member of the Union
but that he did not know whether he [Paul Busby] held any office in the Union.
There is no evidence that Haney, Moore, Saylers, or Paul Busby were discharged
by Respondent. '
Boyd denied telling Fisher that he was "going to fire every union man that
was there," and that he said he was "going to start on Busby, Haney, Moore
and Saylers."
Concerning this statement Stockton testified :
Q. Now, Mr. Stockton, directing your attention to a period of time about
a week or ten days before the strike at the Company plant in May
of 1949, at a place described in the record as being at the ramp, I will ask
you whether or not Mr. Boyd made this statement to Mr. Fisher in your
presence, or this statement in substance, that Mr. Board (sic) said he
was going to fire every union man he had and he was going to start
with Haney, Busby, Moore and Sayler?
A. No.
Q. Did you ever hear Mr. Boyd make such a statement to Mr. Fisher
at any time or any place?
A. No.
In considering this evidence the undersigned is cognizant of the General
Counsel's theory that Respondent was building up its payroll preparatory to
ridding itself of the Union and that if this theory can be substantiated it
would give weight to Fisher's testimony and his testimony would tend to
support this theory. Nevertheless, as hereinafter noted, the undersigned be-
lieves this theory is not supported by substantial evidence. Furthermore, on the
entire record, Boyd and Stockton's denials amount to more than categorical
denials of affirmative testimony and must be weighed in the light of whether
the statements allegedly made by Boyd are consistent or inconsistent with
other evidence in the record concerning Respondent's dealings with the Union,
and in that light it appears unlikely that Boyd would make the statements
attributed to him by Fisher. On the basis of the entire record the undersigned
is not persuaded that Boyd made this or the other statements attributed to
him by Fisher.'
x At the hearing Respondent endeavored to obtain from the General Counsel a statement
signed by Fisher. The undersigned, under the circumstances then prevailing, denied a
motion to quash the subpena requiring the production of this document. The undersigned
has reconsidered this matter and is now of the opinion, as he was at the hearing, that the
information should be disclosed unless it plainly appears irrelevant and that the motion
to quash should be denied. (See N. L R. B. v. Yawman & Erbe Mfg. Co. (C. A. 2), decided
March 28, 1951 ) After denial of the motion to quash, the General Counsel, relying upon
Section 102 90 of the Rules and Regulations of this agency, refused to produce the state-
ment and the undersigned raised a question as to what inference, if any, could be drawn
from such refusal. In analyzing and weighing Fisher's testimony the undersigned has
concluded it is not necessary to answer the question raised and has not considered the
failure to produce this document (has not drawn any inference).
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Payroll Padding
The General Counsel contends that Respondent was building up its payroll
preparatory to ridding itself of the Union.
A complete analysis of Respondent's payroll cannot be made since the
record does not reflect the total man-hours or records of production. From
the information available it appears that the total number of employees rose
from a January 8, 1949, level of 26 employees to a May 7 and May 14, 1949, weekly
high of 41 and that the peak was reached on May 10, 11, 12, and 13. Employment
dropped on May 14 to 31 employees and May 15-a Sunday-to 14 employees.
May 16, the day of the strike, 3 employees worked. Employment then rose to
an average of about 35 employees with a high of 39 employees on the October
15, 1949, payroll (see chart of total employees on weekly payroll, Appendix
A, and chart showing daily employment, Appendix B). Except in a few instances,
and then only by inference, the record does not reflect whether persons first
employed after January 8, 1949, were members of the Union or active on
its behalf.
The reason for the increase in the number of employees (after January 8)
is explained by Dohe in his testimony as due to plant changes and expansion
in preparation for an increased volume of business, and the need for more
employees to obtain the -required production to meet contract commitments.
Dohe testified that April 1 was an approximate date for the first production of
filter rock, but increased employment was necessary to prepare for the production
of this rock from a new quarry. There is nothing in the record which refutes
the fact that a new quarry was opened, and that it was necessary to increase
employment to make changes in the machinery and equipment and to do
initial stripping 35 of the new quarry and build roads. The first filter rock
was shipped in June, but it was necessary to build up a 30-day storage reserve
before shipment.
The employment figures and classifications of new employees, as reflected
by this record, bear out Dohe's testimony as to the opening of the new
quarry about March 12. For example, two mechanics and a shovel operator
were hired that week. Although all classifications are not shown, thereafter
Respondent hired a group of common laborers, another mechanic (Roy Hen-
ager-April 9), and a group of employees paid 85 cents per hour. Whether any
of these employees were added to the payroll as "padding" in the event of a
strike cannot be accurately disclosed without a complete analysis of Respondent's
records on production and activity, but on the basis of the information available
this appears unlikely.
Russ Moore testified that six named employees "did maybe one thing one day
and a little something else the next, maybe they would have four or five different
jobs" and that they did what "I call just peddling around jobs, first one little
thing then another, just to be-just to find something to do, maybe cleaning up a
little around the crusher, maybe go up on a tractor, throw junk up off of the
tractor." However, even if this testimony is credited, it is hardly a refutation
of the evidence that the increased number of employees was for the purpose
of meeting the order of filter rock media. -
Dohe testified that for the year 1949 Respondent "required an average payroll
of between 35 and 40 people." The record herein bears this out. The exception
appears to be, however, in the 2-week period just prior to the strike where
weekly employment rose to 41 employees. Since complete data as to production
during this period is not available, it cannot be determined whether or not it
As Removal of unsatisfactory rock and dirt on the surface , trees and shrubbery , and grass.
'RAYFORD STONE COMPANY 1135
was necessary to have 41 people on the payroll to meet ,production requirements.
The inference , if any, from the record as a whole is that such was necessary.
In any event , the evidence is not sufficient to establish "padding."
Boyd, as a witness for Respondent, testified on cross-examination that he
did not know a strike was going to occur on May 16, 1949, until "the morning it
occurred."
Russ Moore as a rebuttal witness for the General Counsel testified that on
April 7 , 1 949, Boyd made reference to the strike vote taken by the Union on April
6 and asked when the strike would occur and upon being informed by Moore
that he [ Moore] did not "know , that that wasn't talked about at all , as to when
they would strike" said,
Well , I'll tell you . You can strike today if you want to. We are going to
run and operate this plant here regardless of when you strike.
The General Counsel stated at the hearing that this testimony by Moore was
not offered as evidence of violation of the Act on the part of the Respondent
because it was not pleaded , but that it was offered to show antiunion bias on
The part of the Company and to show motive on the part of Boyd, and as
impeaching testimony In his brief the General Counsel argues that this testi-
mony by Moore when considered with the increase of employment reveals "that
the Respondent systematically built up its payroll preparatory to replacing
union employees and the Respondent did more-they invited the union members
to strike ." As previously indicated the undersigned believes that absent this
testimony , the evidence is insufficient to establish that Respondent "system-
atically built up its payroll preparatory to replacing union employees ." In the
opinion of the undersigned this testimony, if properly worthy of consideration
on this issue , does not, when considered with other evidence in the record,
establish a systematic Luilding up of the payroll preparatory to replacing union
employees and does not establish an invitation "to union members to strike."
In the opinion of the undersigned it amounts to nothing more than a statement
that if, and when, a strike is called Respondent will endeavor to operate despite
the strike.
The General Counsel in his brief , and as part of his argument that Respondent
was building up its payroll preparatory to replacing union employees, notes
that "Respondent was able to operate on a full time basis a few days following
the beginning of the strike , with some one-third of the employees away from
their jobs." However , Dohe in answer to a question as to "what effect the
strike had on your operations in terms of activity out there" responded :
Well , 27 of our people elected to come back into the plant and with that
reduced crew we abandoned entirely the operation of the Viola quarry and
concentrated on the operation of the Sycamore quarry, which was a filter
rock quarry . That condition only existed for the rest of that week and the
two following weeks. By that time our organization wa's back up in the 30's.
The employment records received in evidence tend to support Dohe's testimony.
(See Appendices A and B.)
Dohe, Coffey , and, as noted above, Boyd testified that prior to the strike
they were not notified that a strike was under consideration . On the basis
of the entire record , the undersigned credits this testimony and finds Respondent
was not aware that a strike was in the offing until picket lines were established
on May 16, 1949.
On the basis of the foregoing and the entire record herein , the undersigned
finds the evidence adduced insufficient to establish that Respondent was building
up its payroll preparatory to ridding itself of the Union.
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Busby Discharge
On March 17, 1949, the crane (a Lima S/4 yard shovel, crane, dragline or pull-
shovel) which Cecil Busby, a crane operator, was operating, overturned, dam-
aging the crane and the metal screen being shifted, and injuring Busby. Busby
was discharged on or about April 19, 1949. The issue for determination herein
is: Was Busby discharged because of his union membership or activity (noted
above) or for some other reason, namely, because of his activity in connection
with the overturning of the crane?
In evaluating and weighing the evidence and resolving credibility there are
two items (both disputed) which seem to form the crux of this dispute: (1) Was
Russ Moore a supervisor? and (2) Was the crane swung (rotated), at such a
rate of speed that the screen, which was in a position similar to that of a pendu-
lum, moved outward thereby increasing the radius from the crane to the screen
beyond the capacity of the crane and at the same time thereby jerking the tag-
line" from the hands of those assisting? Resolution of these issues leads to a
natural, logical, and reasonable resolution of other disputed issues. If Moore
was a supervisor, as contended by Respondent, then the course of action taken
by Respondent, as related by its witnesses, appears logical and probable :
That Moore was consulted -about the movement of the screens both before and
after the accident and was entrusted with the movement of the second screen
(the one being moved when the accident occurred). On the other hand, absent
a supervisory status, it may well be that Moore was not so consulted and
entrusted, as contended by the General Counsel.
If the crane was swung at an excessive rate of speed, thereby causing it to
overturn, Respondent's evidence that it was told about this excessive speed by
those present and was told that the tagline was jerked from their hands does
not appear unlikely. However, if the crane was not swung too fast and the
accident occurred because of the lack of capacity of this crane to handle the load
under prevailing conditions, then considerable emphasis is given to the General
Counsel's contention that Boyd was told about this lack of capacity and neverthe-
less directed the movement of the load, and to the testimony offered by the Gen-
eral Counsel that those present at the accident were not consulted concerning it.
Supervisory Status of Moore
Concerning his status as a supervisor, Moore was an evasive and reluctant
witness. Nevertheless, it appears from the record as a whole, including Moore's
testimony, that he was in fact a supervisor. (See Palmer Mfg. Corp., 94 NLRB
1477, and Tr't-Pack Machinery Service 94 NLRB 1715.)
As indicated above, Respondent's facilities near Dougherty, Oklahoma, con-
sist of a quarry and a crusher plant. At this location Respondent employs a
superintendent over both operations and a foreman over each. During the
period of time material herein, Boyd was the superintendent and Robert Elting
was the foreman over the quarry. It is not denied that Elting was a foreman.
Moore, who preferred to designate himself as a working foreman, was the indi-
vidual in charge of "looking after" and "running the plant." Moore and Elting
received the same rate of pay ($1.25 per hour) which was higher than the pay of
most of those working with them 37 They held comparable jobs except Elting,
3e Line from screen used to keep screen from rotating and twisting while suspended
34 Some skilled employees received as much or more than Elting and Moore-thus the
electrician (Don Hofford) received $ 1.25, mechanics 0. D. Beck and Lester Picking received
$1 38, and the welder (C 1i Mehagen) ^ received $1 25
RAYFORD STONE COMPANY 1137
according to Moore, had authority to hire and fire and to call the electrician.
Nevertheless , Moore did have authority to transfer and assign employees and
to recommend such action and did direct and supervise the work of those working
at the crusher plant. Furthermore, he was "the go between" between the em-
ployees working at the crusher plant (mostly unskilled or semiskilled workers)
.and management ( the superintendent-Boyd and the operating partner-Dohe).
Speed of the Crane
On the basis of the record herein, including testimony as to the position of
the crane and the object being moved and the documentary evidence in the
record relating to the crane in question, (which shows the lifting capacity, tip-
ping loads at different boom radii, and other manufacturing data) the undersigned
believes and finds that the crane was swung too fast, the screen was whipped,
causing it to overturn, and jerking the tagline from the hands of those assisting.
Furthermore, the undersigned believes and finds that the hoist line brake was
set (locked) and that this was a contributing cause to the accident.38 It appears
to the undersigned that absent the hoist line being locked the operator of the
crane (Busby), at the time the crane started to overturn, could have released
the screen and thereby possibly have avoided turning over the crane. There is no
evidence that the load was thus released and there is positive evidence (although
disputed) that this brake was locked.
Facts Concerning Accident
After receipt of the order for filter media, Respondent, in addition to the
changes and modifications previously noted , endeavored to adapt its crushing
facilities to handle this large-size rock. Considerable difficulties arose in con-
nection with this experiment and on or about March 7, 1949, Boyd telephoned
Dohe and advised him that "they were having so much trouble that something
would have to be done in order to get the plant into production and to meet
specifications."
On March 13, 1949, Dohe went to Respondent's plant near Dougherty and there
conferred with Boyd and Moore 80 and discussed various means of rectifying
the difficulties, including switching the position of two screens (hereinafter
referred to as screen No. 1 and screen No. 2, respectively).
The following day (March 14, 1949), Dohe took Mr. Blanchard, an engineer
of the Iowa Manufacturing Company, and Mr. Sampson, of the Sampson Testing
Laboratories, to the plant. At the plant the advantages of exchanging the
positions of screens Numbers 1 and 2 were again discussed . Boyd and Moore
were present during the discussion but neither took part therein.40 As a result
38 With respect to this matter the undersigned is cognizant of the testimony by rebuttal
witnesses for the General Counsel that the crane was "off balance " ( right track 3 inches
higher than left ). Even if this were a fact, which the undersigned doubts, it appears
unlikely that the crane would have overturned absent excessive speed and locked hoist
line. Furthermore , Busby alone selected the location of the crane and must assume the
responsibility for attempting on his own to swing a heavy load with the crane off balance.
There is no evidence that he directed Boyd's or anyone else's attention to this off -balance
position.
30 Moore testified that there was "trouble" with the screens and that efforts were made
to rectify this trouble and that for this purpose Dohe came to the plant . However, he
denied that Dohe talked to him on March 13, 1949, "about moving any screens." Moore's
denial is not credited Moore was in charge of this operation and it appears very likely
that he was consulted concerning every change therein.
40 Moore testified he recalled the day Dohe visited the plant with two other men and that
Dohe said one of them was from the Cedar Rapids Screen Works and testified that he
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.of this discussion, it was determined by Dohe that the positions of the screens
should be exchanged, and Boyd was instructed "to go ahead" with these plans-
Moore did not work an March 15, 1949.
On March 16, 1949, Boyd advised Moore of the plan to switch the screens
and gave him the details to be followed for this entire operation" On March 16
and 17, Boyd also talked with Busby about this matter and cautioned him,
at least with respect to screen No. 1, not to swing the crane.
On March 17, 1949, screen No. 1 was removed safely, by backing the crane on-
its tracks (not by swinging), from a position about 45 feet above the ground
and placed on a truck. The truck then carried this screen a short distance
beyond the location of screen No. 2 and the men who had participated in the
removal of this screen went to the location of screen No. 2 and endeavored to^
remove it. There is a dispute as to whether Boyd also went to the location of
screen No. 2. No particular difficulty was anticipated in the removal of this
screen and on the record as a whole it appears unlikely that Boyd did go to
this location. The undersigned credits his testimony that he did riot. At the
position of screen No. 2, Busby placed the crane so that the tracks thereof
were parallel to the object holding this screen and turned the cab and boom to
the right, toward the screen. The boom was locked in position after being
adjusted at the correct angle (radius) to lift this screen and the radius
from the screen to the crane was not thereafter changed unless it was changed
by momentum during the swinging of the screen. According to Busby the radius
from the screen to the crane after adjustment was "around 35 maybe 40 feet." 48
Busby then, by means of the crane, lifted the screen, which weighed approximately
4.000 pounds and was about 12 feet from the ground , and endeavored to swing
it to the left side of the crane . While engaged in this operation the crane
overturned.
Busby's testimony and that of Haney and Moore, who were holding the tag-
line, is that Boyd was present during the removal of screen No. 2 and told Busby
to put the screen "over there" and pointed in the direction where it was to be
placed. According to Busby when this instruction was first given he replied,
"I don't think that this machine will handle that much weight with this long
boom [55-foot boom] on it" and Boyd said "I said put it right over there"
Boyd denied this testimony and, as inferred above, the undersigned credits this
denial. The machine had just previously handled safely a similar weight using
(Moore ) was consulted about the quantity of oil one of the screens was using. Never-
theless, Moore testified he did not "have any discussion with Mr. Dohe that day with
reference to the removal of the screens " The general tenor of Moore's testimony is that
he was not consulted or advised and was not present at discussions concerning this
subject matter ., Moore's testimony to this effect is not credited . It does not seem likely
that a matter of this importance would be considered without the benefit of the thinking
and experience of the individual immediately responsible for successful operation of this
equipment.
41 Moore denied that Boyd discussed with him the plan of operation and testified he
heard about it-from, Haney, Lance , and Sayler while riding to work on March 16, 1949.
He did admit , however , that on March 16 Boyd told him that Busby "seems to be afraid
to try to handle that screen [screen No. 1], to drag it out of there with it altogether on
the frame and motor and everything being on it ," and that Boyd told him ( Moore) "You
boys go ahead and take it out of the frame that it is setting in and take the motor off
from the motor base" and thus "lighten the load." It was anticipated that because of the
physical location of this screen ( in a building and about 45 feet above the ground) and
its weight , that there might be difficulty in removing it. It seems probable , in view of all
the circumstances , that Moore was given full and detailed instructions concerning the
removal of these screens and the undersigned does not credit Moore's denial thereof.
42 Other , testimony in the record indicates this distance was nearer to 35 feet than to
40 feet.
RAYFORD, STONE COMPANY 1139
the same boom (removed screen No. 1). Furthermore, there is no testimony
that Boyd told Busby to "swing" the load and the record reveals this screen
could not have been "put over there" 49 without "swinging" the load. In addition,
In the opinion of the undersigned, on the basis of information in this record,
it could.have been "swung" safely so long as it was not "swung" too fast and
with the hoist brake locked
Boyd was standing back of the crane and 60 to 70 feet therefrom during the
removal of screen No. 2 and upon hearing the crash of the crane as it overturned,
ran toward it. Busby was asked if he was hurt and said he "didn't think so." 44
At this time Busby told Boyd that he (Busby) "thought the damn thing would
turn over" and Boyd said "Well, why did you swing it." Busby answered "He
said to" and when Boyd asked "Who?" Busby "first said Russ [Moore] told me
to and then he backed up on that. He said I don't know who told me. Some-
body told me set it over here." At that time Boyd inquired of Busby "if he
couldn't have set it over there without turning it over" and Busby said "he
guessed he could have scooted the machine around and set it over." 46
Boyd testified that when he went to the scene of the accident on March 17, he
observed that the hoist line brake was set (locked). This line has two brake
mechanisms, one operated by a foot pedal and one operated by a latch. When
the latch is placed in a set or locked position, the foot brake is not effective and
a suspended load will not come down until this latch brake is released. Busby
denied that this brake was locked. As previously indicated, the undersigned
believes this brake was locked. On the basis of the entire record the under-
signed does not credit Busby's denial that this brake was locked.
The day after the accident (on March 18, 1949), Boyd located Dohe in Tulsa,
Oklahoma, and conferred with him via telephone. Boyd told Dohe about the
accident and reported to him the extent of the damage. Dohe then told Boyd
that he was coming to the plant and would talk it over there. Later that after-
noon Dohe went to Oklahoma City and there Dohe and A. J. Kavanaugh, one of
the partners of Respondent, discussed the facts and circumstances of the accident
and Dohe stated that he was going to the plant to make an investigation.
The next day (March 19, 1949), Dohe went to the plant and made an "on the
spot" investigation. Dohe conferred with Boyd, Moore,40 Cecil Hunter, the oper-
ator of the crane after Busby, and other men (Lance and Hofford) in the vicinity
at the time of the accident. Dohe testified that Boyd told him the details con-
cerning the moving of the screens , and explained why he ( Boyd ) was not present
when the crane overturned.47 Boyd told Dohe that it was not necessary to swing
the crane when moving the second screen, but, nevertheless, and contrary to his
(Boyd's) instructions (to Busby), Busby did swing the screen and in doing so
" In a general area to get it out of the way while screen No. 1 was being placed in the
location previously occupied by this screen.
44 Later that day it developed that Busby was injured and he was sent to a physician.
He did not thereafter return to work at the plant.
46 The above conversation is based upon the testimony of Boyd which the undersigned
credits. Furthermore , other testimony in this record indicates that it is not unlikely
that Moore or some other person participating in the removal of this screen made sugges-
tions as to what Busby should do with the screen Busby testified that immediately after
the accident he did not have a conversation with Boyd The testimony is not credited
by the undersigned.
"Moore testified that Dohe talked to him within a week after the accident , possibly
within 2 days thereafter , but that Dohe "never did say anything to me about the crane
accident , never mentioned it to me." The undersigned does not credit this denial by
Moore
41 The information given to Dohe was substantially the same as that testified to by Boyd
herein and referred to above.
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"made a wide violent swing" which resulted in "throwing the screen some 50 feet
from the original position." Boyd told Dohe that Busby "had performed the work
in a negligent manner, if, in fact, he had not deliberately turned the crane over."
Boyd also reported to Dohe that the hoist line brake was set, and gave Dohe the
substance of his conversation with Busby immediately after the accident (set
forth above). Dohe testified that Moore's description of the moving of these
screens was substantially the same as that reported by Boyd except that Moore
added that to his "surprise" the swing was so rapid "that the tag line that some
of them were holding was pulled from their hands. 11 41
Hofford, according to Dohe, told him "they were. all very surprised with the
violence with which Cecil [Busby] swung the crane around" and his (Hofford's)
account of the accident was "more or less" the same as Moore's. Hofford did
not testify herein.
After talking to those concerned and observing the scene of the accident, Dohe
obtained information concerning the lifting capacity of this crane and computed
"the radius at which the load would have to be in order to overturn the crane."
Dohe concluded that the radius would have "to be in the neighborhood of 40 to
45 feet," 4° which was considerably more than the "normal working radius on
lifting loads of that type."
On the basis of his independent investigation, Dohe concluded that the acci-
dent was not due to an equipment failure or improper work assignment.
The following day Dohe and Kavanaugh conferred and discussed this accident.
After Dohe's report that the crane overturned because it had been "swung" either
"too fast or too far with the brakes set." Kavanaugh concluded that Busby
lacked sufficient judgment to operate the crane in a safe and proper manner
and favored Busby's discharge. However, in view of the then current negoti-
ations with the Union and the lack of need for immediate action since Busby
was recovering from an injury and unable to work, Dohe and Kavanaugh de-
cided to consult Coffey, Respondent's attorney, before taking any definite action.
During the first week of April, Dohe conferred with Coffey 5° and was advised
that, based on the information given (by Dohe), Respondent had just grounds
for discharging Busby. Two or three days later, Dohe told Kavanaugh about
the conference with Coffey. On or about April 16, 1949, Dohe and Kavanaugh
decided to discharge Busby and to give him notice thereof before he recovered
from his injury and while he was still drawing compensation.
Dohe called Boyd and asked if he knew where Busby was or where to reach
him and told Boyd :
Well, if you see him, if he comes by , tell him we are not going to be able to
use him.
On April 19, 1949, Busby "came to the office to see about a compensation check"
and Boyd notified him that he was discharged. There is a conflict as to what
was said at that time. On the basis of the entire record, the undersigned believes
and finds the relevant portion of the conversation to be, in substance, as follows :
Boyd told Busby that he thought it was only fair to give him (Busby)
as much advance notice as possible, and while he was still receiving compensation
48 Moore testified the screen was swung slow ( about 2 miles an hour ) and denied that
the tagline was pulled from his hand or possession . Haney, who was also holding a
tagline at the time of the accident , corroborated Moore's testimony concerning the speed
of the crane and testified the tagline was not jerked from his hand. On the basis of the
entire record the undersigned does not credit this testimony of Moore and Haney.
49 These figures are not at substantial variance with similar information computed by
the undersigned . My computation indicates this distance to be about 48 feet.
50 Coffey was not available immediately.
RAYFORD STONE COMPANY 1141
for his injury that Respondent was not going to use him any more, and told
Busby he was being discharged because he had turned over the crane. Boyd
asked Busby if he had overturned the crane deliberately and Busby answered
"No, anybody will have an accident every once in a while" and that if he
had wanted to turn it over he could have at any time. Boyd accused Busby of dis-
obeying instructions when he "swung the load" and Busby answered "Yeoh,
but they said to sit it over here." Busby was asked who told him to "sit it
over here" but did not identify the person giving this instruction. Boyd asked
Busby "couldn't you have twisted the machine around and placed it where
they might have told you safely," and Busby answered "I guess I could have,
but anybody will have an accident once in a while." During this conversation,
mention was made of the hoist brake and Busby denied that it was locked.
Busby was not thereafter employed by Respondent.
On the basis of the foregoing and the entire record, the undersigned con-
cludes and finds that the evidence adduced is not sufficient to support the
allegations of the complaint concerning Cecil Busby.
The Strike
The General Counsel contends that the strike which occurred on May 16,
1949, was caused by Respondent's "bad faith" negotiations and by the unfair
labor practices alleged in the complaint. As previously - noted herein, the
undersigned believes and finds the evidence adduced insufficient to establish
that Respondent exhibited "bad faith" in its negotiations with the Union and
insufficient to establish that Respondent committed the unfair labor practices
alleged. Accordingly, the undersigned rejects the contention of the General
Counsel that the strike which occurred on May 16, 1949, was an unfair labor
practice strike.
Russ Moore
The General Counsel contends that Russ Moore, one of the employees partici-
pating in the strike of May 16, 1949, sought reinstatement on and after May 20,
1949, but was denied such. The General Counsel's contention that the strike
was an unfair labor practice strike and that therefore Moore was entitled to
reinstatement upon application, displacing if necessary the person taking his
job after the strike began, must be and hereby is rejected by the undersigned
in view of the finding above that the strike was not an unfair labor practice
strike.
Assuming the strike to be an economic one 51 the position of the General Counsel
is not clear, but he seems to contend, in that event, (1) that Moore was denied
reinstatement because of his union activities," and (2) that his former-job was
vacant on or about September 1, 1950, and that Moore should have been rein-
stated, at least on and after that date.
Moore testified that on or about May 20, 1949, he talked with Boyd about some
pay he (Moore) was due and during this conversation he said, "Well you fellows
are operating. I guess I will be back over tomorrow to go to work," and Boyd
"'The strike has not been officially or formally terminated
az As previously noted the undersigned believes and finds that Moore was a supervisor.
Consequently there is serious doubt that his participation in the concerted activities of
rank-and-file employees are protected by the Act. However, in some cases the Act has
been extended to supervisors participating in rank-and-file strikes It is therefore deemed
advisable to discuss the evidence concerning Moore's efforts to obtain reinstatement or
reemployment.
98620ii-52-vol 97-73
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said "Well, I won't be needing you any more. I have got another man in your
place." 6a
Boyd testified that on or about May 18, 19, or 20, 1949, he and Moore, in the
presence of Dohe, discussed some pay due Moore for work previously performed.
Boyd testified that Moore did not say anything about returning to work and
stated "We didn't discuss his return to work." Dohe recalled the incident on
or about May 20, 1949, when certain checks were distributed (the incident re-
ferred to in Moore's and Boyd's testimony) but could not remember whether or
not Moore was present. Dohe testified "if he [Moore] was there, he was in a
group with all the other people on picket duty that day."
On the basis of the entire record the undersigned does not credit Moore's testi-
mony (set forth above) that on or about May 20, 1949, he sought and was denied
reinstatement.
Moore testified that on or about May 23 or 24, 1949, he drove up beside Boyd
and Dolie, and
told them where I was going, that I was going over to the plant after my
check, and they said it would be all right, just go ahead, and Mr. Dohe said,
"Well, I heard you was going to California" and I said, "Some talk; I don't
know for sure yet." I said, "I thought I would come back over here and go
to work," and he says, "Well, not right now." He said, "Wait till this thing
is all over with, the strike and all is all over with, then come back and there
will be a chance for you to go to work."
Boyd testified that about a week after May 18, 19, or 20, 1949, Moore "flagged
us [Boyd and Dohe] down to stop" and "asked if it would be all right for him
to go in and get his check and his tools and Mr. Dohe told him it would, and he
told Mr. Dohe that he was sorry that things had turned out like they did, that
he had tried to talk them out of it" but that he was a member and had to go with
them and that he thought he would just leave and go to the west coast to go to
work. Boyd denied that Moore said "anything in that conversation about re-
turning to work."
Dohe testified that "some few days following May 20, 1949," lie and Boyd met
Moore and Moore "stated that he would lie to go in and get some tools that he
had at the plant and asked my permission, which I granted him. He [Moore]
further stated he was leaving for California, going out there to seek work with
his brother." Dohe denied that Moore said anything in that conversation "about
his wish or desire to return to work for Rayford Stone Company."
Moore testified that "in the latter part of June" 1949, he went to California
and stayed there until "some date" in October 1949.
On the basis of the entire record, the undersigned credits the testimony of
Boyd and Dohe rather than that of Moore and finds that Moore did not seek
reinstatement on or about May 23 or 24, 1949, and that Dohe did not tell Moore
"wait till this thing is all over with, the strike and all is all over with, and then
come back and there will be a chance for you to go to work."
Moore testified that about December 1949, lie met Boyd and said to him "Well,
Mr. Boyd, you remember Mr. Dohe telling me when the strike was all over with
there would be a chance for me to come back to work?" and that Boyd said
"Yes, but I can't hire a damned one of you boys. If I put you back to work
that board will fire hell out of me."
ea On May 18, 1949, Cecil Hunter became foreman of the plant, taking the job left by
Moore. Hunter continued in this job until September 1, 1950, when he left R espvndeut's
employ.
RAYFORD STONE COMPANY 1143
Boyd testified that several months after May 1049, Moore "flagged me down
and said, Well; my year is about up 5A How about my job back," or "How about
going back to work?" and that he told Moore "there wasn't an opening at that
time, that we were operating." 66 Boyd denied telling Moore if lie "took him
back that Board would fire hell out of you [Boyd] or something to that substance."
The undersigned credits Boyd's rather than Moore's testimony concerning this
conversation.
Moore testified that around the last of April 1950, he telephoned Dohe and
asked him about going to work and Dohe said "Well, yes, I think there would be
a chance. Why don't you come down to the plant sometime when I am going to
be there and I will talk to you, about it?" Moore testified that the following
Saturday he saw Dohe at the plant and that in the presence of Stockton and
Clyde Ingraham, superintendent after Boyd left on or about April 1, 1950, Dohe
said to Ingraham, "Clyde, Russ is wanting to go back to work down here. What
do you think about it?" According to Moore, Ingraham said "Well, I haven't
got anything open right now." Moore testified that then he and Dohe rode over
to the quarry and back and that Dohe said "Well, I am going to put you back
to work, but I may not be able to give you as much money as you were getting at
the time you left." Moore testified he (Moore) answered "that would be all.
right, that any sort of a job that he had at that present would suit me, that I
was needing a job," and Dohe said "well, to come back and see Clyde." Moore
testified he "made several trips 60 back after that and Clyde would always tell
me that they didn't need anybody." The record reveals that a Mr. Baldwin
succeeded Ingram or Ingraham as superintendent 64 and that on two occasions
(dates not revealed) Baldwin told Moore there were no vacancies.
Dohe testified that Moore, in the presence of Ingram, then superintendent, said
he would like to go back to work for Respondent and that he turned him (Moore)
over to Ingram and told Ingram "as far as I was concerned it was all right,
but Ingrain didn't have any job he could put him. on." Dohe further testified
that Ingrain i8 told Moore "to keep in touch with him."
The record contains payroll data for the period from June 1, 1949, through
October 29, 1949, but not thereafter, and it cannot be determined from the record
that there were vacancies, which Moore was qualified to fill, in December 1949
or April 1950, or thereafter. From the payroll data available it does appear
however, that prior to October 15, 1949, Respondent was operating with a normal
complement of employees.
In his brief the General Counsel contends that since Cecil Hunter left Respon-
dent' s employ on or about September 1, 1950, the job previously held
by Moore was available at that time and Moore was entitled to reinstatement
at least as of that date. Even if it be assumed that, after Moore's job was
filled (by Hunter) and after the normal complement of employees was obtained,
Moore, nevertheless, maintained the status of a striker and therefore had priority
over other applicants for employment (over nonstriking applicants) the evidence
adduced is not sufficient to establish that on or about September 1, 1950, Moore
was seeking reinstatement or reemployment and that Respondent was aware
thereof. There is no evidence herein that Respondent normally sought those
6e Boyd testified he did not know what Moore "meant lly his year was about up."
se The record' does not reveal whether there was "an opening" in December 1949. As
noted above, Hunter, at this time, was filling the vacancy left by Moore.
cc The record does not reveal the dates of these trips.
6s The record does not reveal the date.
58 No one by the name of Ingram or Ingraham testified in this proceeding. Presumably
the same individual is referred to regardless of the spelling.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in a nonwork ( i. e., laid -off) status and offered them work , and the evidence
herein establishes that Moore , at least in April 1950 , was advised that if he
was interested in reinstatement or reemployment he should "keep in touch with"
Respondent . Nevertheless , the evidence does not establish with sufficient clarity
that Moore was "in touch with" Respondent in September 1950. Furthermore,
under the circumstances involved herein ( after Moore 's job had been filled on a
permanent basis and after the normal complement of employees had been at-
tained ), the undersigned believes that Moore did not have an unqualified right
to the vacancy created by Hunter's leaving Respondent 's employ and that it is
incumbent upon the General Counsel to establish that Moore did not get this
job (the job vacated by Hunter ) because of Respondent ' s opposition to union
membership and activities . The evidence does not establish that Moore was
denied this job because of such opposition.
Upon the basis of the foregoing and the entire record herein , the undersigned
concludes and finds that the evidence adduced is not sufficient to support the
allegations of the complaint with respect to Russ Moore.
In the light of all the foregoing considerations and upon the entire record
in the case , the undersigned makes the following:
CONCLUSIONS OF LAW
1. Russell C. Dohe and A. J. Kavanaugh, co-partners, doing business as Rayford
Stone Company, the Respondent herein, are engaged in a business within the
jurisdiction of the National Labor Relations Board, and it will effectuate the
purposes of the Act to exercise jurisdiction over this business.
2. United Cement, Lime and Gypsum Workers International Union, Local
No. 254, is a labor organization within the meaning of Section 2 (5) of the Act.
3. The preponderance of the evidence adduced does not establish that Respon-
dent has engaged in or is engaging in the unfair labor practices alleged in the
complaint herein.
Recommendations
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the record in the case, the undersigned recommends that the complaint herein
against Russell C. Dohe and A. J. Kavanaugh, co-partners, doing business as
Rayford Stone Company, be dismissed in its entirety.
PORTSMOUTH CLAY REFRACTORIES Co. and UNITED STONE & ALLIED
PRODUCTS WORKERS OF AMERICA, CIO, PETITIONER. Case No.
9-RC-1428. January 22, 1952
Decision and Order
Upon a petition duly filed under Sectiton 9 (c) of the National
Labor Relations Acts' a hearing was held before Richard C. Curry,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
1 The petition was filed on November 16, 1951.
97 NLRB No. 190.