Ross Porta-Plant, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1967

166 N.L.R.B. 494 (N.L.R.B. 1967)

494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ross Porta-Plant, Inc. and International Union of
Operating Engineers, Local 826 , AFL-CIO. Cases
16-CA-2393, 2449, and 2503
June 30,1967
DECISION AND ORDER
On September 23, 1966, Trial Examiner James
F. Foley issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor prac-
tices and recommended that those allegations of the
complaint be dismissed. Thereafter, Respondent
and the General Counsel filed exceptions to the
Trial Examiner's Decision and supporting briefs.
Respondent also filed a reply brief.
The National Labor Relations Board has
reviewed the rulings of the Trial Examiner made at
the hearing and, for the reasons set forth below,
finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has con-
sidered the Trial Examiner's Decision, the excep-
tions and the briefs, and the entire record in this
case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, only
to the extent consistent with this Decision and
Order.
1. After a hearing before a Hearing Officer in
Case 16-RC-3949, in which the only contested
issue was the supervisory status of certain depart-
ment heads, on July 14, 1965, the Acting Regional
Director for Region 16 in a Decision and Direction
of Election ruled that the departments heads were
employees within the meaning of Section 2(11) of
the National Labor Relations Act, as amended, and
directed an election in a unit of Respondent's
production and maintenance employees including
the department heads.
The Respondent filed with the Board a request
for review of the Acting Regional Director's deter-
mination which was granted on August 4,1965. On
October 6; 1965, the Board, in a Decision on
Review,' found that the record substantially sup-
ported the Acting Regional Director's determina-
tion that the department heads were employees and
affirmed his determination. Since the Union had
won the election (45 to 32, with 5 challenged bal-
lots), the Regional Director, on October 15, 1965,
certified the Union as the collective-bargaining
representative of a unit of Respondent's production
I Not published in NLRB volumes.
2 130 NLRB 113.
3 365 F 2d 898 (C.A.D C.), remanding 153 NLRB 309
166 NLRB No. 40
and maintenance employees, including the disputed
department heads.
On October 23, 1965, and several times
thereafter, the Union requested the Respondent to
recognize it and bargain collectively with respect to
the employees in the unit found appropriate. On
October 25, 1965, the Union requested that
Respondent furnish it a seniority list, wage rates,
and job classifications for the employees in the unit.
The Respondent refused to recognize and bargain
with the Union and to give the requested informa-
tion, asserting as its reasons that (1) the majority
vote received by the Union in the election was
coerced by participation in union activities by the
department heads, and (2) the unit is inappropriate
in that it included the departments heads, who are
supervisors within the meaning of the Act and
hence must be excluded from the unit under the
provisions of the Act.
The Respondent also admittedly interrogated the
department heads about their union activities, uni-
laterally granted them wage increases, forbade them
to attend union meetings, discharged seven for their
union activities, and requested that some of them
obtain copies of statements that they had given to
a Board agent.
As a result of charges filed by the Union, the
General Counsel issued a consolidated complaint
in the unfair labor practice cases here involved, al-
leging that Respondent had violated Section
8(a)(1), (3), (4), and (5) of the Act by the foregoing
and certain other acts.
At the hearing in these cases, Respondent at-
tempted to introduce evidence to support its con-
tention that the department heads were supervisors.
The General Counsel objected on the grounds that
the issue of the status of the department heads was
resjudicata by reason of the Board's decision in the
representation case and could not be relitigated in
these unfair labor practice cases. Relying on
Leonard Niederriter Company, 2 and N.L.R.B. v.
Amalgamated Clothing Workers of America
(Sagamore Shirt Co.) 3 the Trial Examiner found
that Section 102.67(f) of the Board Rules and Regu-
lations which precludes relitigation in a subsequent
unfair labor practice case of an issue previously
litigated in a representation proceeding was not ap-
plicable in a situation, such as presented by these
cases, where the issues in the unfair labor practices
case proceeding arise from allegations of violation
of Section 8(a)(3) and (1) as well as Section 8(a)(5).
Hence, the Trial Examiner overruled the General
Counsel's objection insofar as the 8(a)(3) and (1) al-
legations were concerned and permitted the
Respondent to present evidence with respect to the
supervisory status of the department heads.4
4 After the Trial Examiner's ruling , the General Counsel also presented
evidence to support the contention that the department heads were em-
ployees.
ROSS PORTA-PLANT, INC.
As a result of this evidence, and taking into con-
sideration the evidence presented in the representa-
tion case,5 the Trial Examiner concluded that the
Board was not correct in its determination in the
representation case and found on all the evidence
that the department heads were supervisors not
only on the date they were discharged but likewise
had been supervisors on June 15, 1965, a date prior
to the hearing in the representation case. Thus,
since the Trial Examiner found the department
heads to be supervisors, he found that the Respond-
ent did not violate Section 8(a)(3) when it
discharged them for attending union meetings and
did not violate Section 8(a)(1) by interrogating and
threatening them with respect to their union activi-
ties, granting them wage increases, and requesting
that they obtain copies of statements that they had
given to a Board agent. However, insofar as the
8(a)(5) allegation was concerned, the Trial Ex-
aminer found that he could not "look behind" the
Board's certification of the Union and that the
Respondent had violated Section 8(a)(5) and (1) by
refusing to recognize and bargain with the Union
and by refusing to give the Union certain requested
information about the employees in the unit.
The General Counsel excepts to the Trial Ex-
aminer's rulings and findings on the grounds that (1)
relitigation of the status of the department heads
should not have been permitted, and (2) even if
relitigation were permissible, the record evidence
in this case shows that the department heads were
employees ,at all pertinent times. We find merit in
the General Counsel's second ground. As we do not
reach the issue of whether relitigation should have
been permitted,6 we do not adopt the reasoning and
findings of the Trial Examiner with respect thereto.
Consideration of the entire record with respect to
the supervisory status of the department heads
reveals the following facts:
The Respondent, in operation since 1958, manu-
factures portable equipment for the making of
concrete for heavy construction and portable heavy
duty self-contained motor truck and vehicle sales.
The Respondent's board of directors, consisting
of Ruben Ross and his sons, Robert H. Ross and C.
L. Ross, determines all policy matters. Ruben
Ross and his sons are also Respondent's officers.
Joseph Keith is the production manager; Elmer
Wells is the plant superintendent; and E. A. Mc-
Bride is the assistant plant superintendent. The
parties agree that Keith, Wells, and McBride are su-
pervisors. Wells and McBride constantly move
throughout the plant observing all areas a number
of times daily, and, Keith does so a number of times
a week.
5 The transcript of the representation case hearing was introduced into
the record in this proceeding
6 Cf Amalgamated Clothing Workers of America (Sagamore Shirt
Co.), supra.
7 The employees who head these departments had no particular title
495
The Respondent's operations are divided into 18
departments. Each department is headed by a
so-called department head.7 The number of em-
ployees in each department in 1965 varied from 2
to 18 depending on the department and the season.
One of the admitted supervisors assigns work to
the department heads who are required to see to it
that the work is performed. The department heads
also train new employees, are hourly paid em-
ployees who punch timeclocks like other em-
ployees, do manual work a substantial portion of
the time, and receive no fringe benefits not received
by other hourly employees. Of the seven depart-
ment heads who testified at the representation case
hearing, five received $2.25 per hour. Of the depart-
ments represented by these five, one department
had an employee receiving this same rate; two had
employees receiving $2.10; one had an employee
receiving $1.75; and one had an employee receiving
$1.50. The other two department heads who
testified received $2.10 per hour, with the highest
paid employee under one receiving $1.75 and under
the other receiving $1.25 per hour.
Departments heads do not have the authority to
hire, discharge, transfer, grant time off, or grant
wage increases. Time-off requests are referred to
the admitted supervisors. The Respondent stated
that an employee was supposed to request time off
through his department head, but the department
heads stated that employees did not always follow
this procedure. Department heads recommend
wage increases, discharges, and transfers of em-
ployees. However, not even the three admitted su
pervisors have the authority to grant wage in-
creases; wage increases are granted only on the
unanimous approval of the board of directors. Some
department heads testified that they have recom-
mended wage increases which were later received
by employees, but that they did not consider such
increases to be the result of their recommendation
since they were granted such a long period after the
recommendation was made.
With respect to transfers and discharges, Super-
visor Wells stated that he usually knows the type of
work employees are doing, and "I usually can see
when it is not good enough when they recommend
this [discharge], then I am aware of it and I have
usually pretty well made up my mind what I am
going to do just as soon as they recommend on it. "s
When not familiar with the work an employee is do-
ing, he stated, "I talk it over- we talk it over very
lengthy sometimes, I talk it over with the
[department head]. I see what the conditions are.
I might even talk it over with some of the other
[department heads] to see if they can effectively
until after the Union commenced organization . The Respondent said it
had been too busy to give them a title and besides titles do not mean
anything.
8 Representation case transcript, p. 308.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work this man before I would discharge him."9 He
testified further that he seeks to try out a man on
another job when a department head has recom-
mended a discharge.
On June 15, 1965, after the Union commenced
its organizational activities and after the Respond-
ent learned that some of the department heads
were taking part in such activities, the Respondent
had its attorney speak to the department heads. The
Respondent's attorney drew a line on a blackboard
and stated that there was a very narrow distinction
between leadmen and supervisors and that it was a
close question whether they were supervisors. He
then informed them that they were assistant
foremen and, as such, were supervisors. The
Respondent admitted that some of the department
heads seemed surprised. The department heads
were also told that they had the authority and
responsibility to exercise specifically outlined su-
pervisory functions. After the meeting, the Re-
spondent posted a notice on the bulletin board
which listed the department heads as supervisors
and the names of the employees under them.
All of the department heads, except one, who
testified at the representation case hearing also
testified in the unfair labor practices hearing. Other
department heads also testified. To a great extent
their testimony was cumulative in that it dealt with
the same matters and was substantially the same as
in the representation case hearing. However, new
evidence was also presented to cover matters which
took place after the close of the representation
hearing. Thus, on June 1Q Respondent informed
the department heads in writing of their supervisory
functions and required them to recommend wage in-
creases in writing. Respondent admitted that this
was done because the testimony of some depart-
ment heads at the June 25 representation case hear-
ing indicated that they were not sure of their duties
and responsibilities. Some time after the representa-
tion case hearing, Respondent also instituted Mon-
day morning meetings of the department heads and
furnished them manuals containing methods and
techniques for directing plant operations and em-
ployees. On August 30, Respondent again gave the
department heads a written list of their supervisory
functions, had them sign such a list, and then
granted them a 25-cent-an-hour wage increase.
Whether an individual is a supervisor within the
Act's definition cannot be determined simply by
referring to a job title or by examining a theoretical
expression of his responsibilities and duties. As the
court stated in N.L.R.B. v. Southern Bleachery &
Print Works, Inc.: 10
[T] he employer cannot make a supervisor out
Representation case transcript, p 309
10 257 F 2d 235, 239 (C A. 4), cert denied 359 U S 911 See also
American Oil Company, 154 NLRB 393, American Finishing Com-
pany, 86 NLRB 412
11 American Oil Company, supra, N L R B v Lindsay Newspapers,
Inc, 315 F 2d 709 (C A 5)
of a rank and file employee simply by giving
him the title and theoretical power to perform
one or more of the enumerated supervisory
functions. The important thing is the posses-
sion and exercise of actual supervisory duties
and authority and not the formal title. It is a
question of fact in every case as to whether the
individual is merely a superior workman or
lead man who exercises the control of a skilled
worker over less capable employees, or is a su-
pervisor who shares the power of management.
Further, in circumstances such as presented by
this case, where the Employer attempts to
"beef-up" the authority and responsibilities of em-
ployees after a union organizational campaign
begins in the attempt to remove them from the bar-
gaining unit, the Board carefully scrutinizes all the
surrounding facts and circumstances in determining
whether the authority conferred was real or only
theoretical. 11
On the facts of these cases, we are convinced that
our original determination that the department
heads were employees at the time of the representa-
tion hearing was correct. We are also convinced
that the Respondent's action, in "beefing-up" their
authority and responsibility after it became aware
of the union's organizational campaign and before
the representation hearing, was an attempt on is
part to prevent these employees from exercising
their Section 7 rights and also was an attempt to
concoct an excuse for not recognizing and bargain-
ing with the Union. We find that the authority con-
ferred on the department heads was not real but
theoretical.
We note, moreover, that if we were to find the de-
partment heads supervisors, it would result in a
marked disproportion in the ratio of supervisors to
nonsupervisors. Thus, in 1965, the Respondent's
employee complement ranged from approximately
56 to 115 employees. In determining the
supervisor-employee ratio, two department heads
who were excluded from the unit by agreement of
the parties and the eight employees under them
must be subtracted from the total. Thus, the em-
ployee complement for the purpose of determining
this ratio would range from 46 to 105. If the remain-
ing 16 department heads are supervisors, the em-
ployee complement then would range from 30 to 89,
and the ratio of supervisors12 to employees would
range from 1-1.6 to 1-4.7.13The Trial Examiner
states that the Respondent's operations are "com-
plex" and "require close supervision at each depart-
ment level" and that "if the department heads are
not supervisors, the employees are without
adequate direct supervision in a high cost operation
12 It was agreed that Keith, Wells, and McBride are supervisors Thus,
the total number of supervisors would be 19
13 If the two excluded department heads and the employees under them
are included in this computation , the ratio of supervisors to employees
would nevertheless be 1-I 8 to 1-5 4
ROSS PORTA-PLANT, INC. 497
a large part of the time." As pointed out by the
General Counsel, however, while Respondent's
operations may be "high-cost," they cannot be con-
sidered "complex" since they basically involve rou-
tine welding and assembly work. Further, we be-
lieve that the Trial Examiner's findings in this
respect are inconsistent with his earlier finding and
the record evidence that the department heads work
with their hands a substantial part of the time. Since
the department heads do manual work along with
the other employees, it is most improbable that they
also exercise "close supervision" over such em-
ployees.
It is true that before as well as after June 15, the
department heads have had and have exercised
authority which the average rank-and-file employee
does not possess. This authority derives from their
working skill and from their responsibility for the
assembly of machinery. However, it is not the type
of authority contemplated in the statutory defini-
tion, nor is it the authority responsibly to direct
others which flows from management and tends to
identify or associate an individual with manage-
ment. In many industries, there are highly skilled
employees whose primary function is physical par-
ticipation in the production and operating processes
of their employer's plants and who incidentally
direct the operations and movements of less skilled
employees. Such employees have a close communi-
ty of interest with their less skilled coworkers, and
the Act grants them the right to be represented by
a collective-bargaining agent in dealings with their
employer. The Board has consistently included in
bargaining units such employees, often craftsmen
or persons in comparable positions, whose authori-
ty is based upon their working skill and exper-
ience.'4
On the basis of the entire record, we are satisfied
that the department heads were employees before
the Respondent attempted to "beef-up" their
authority and responsibility and that the asserted
delegation of authority to them after the Union
commenced its organizational activity did not result
in a genuine change in their status, either in fact or
in law.
Therefore, as we have found the department
heads to be employees,15 and as the Employer ad-
mittedly discharged themes for their union activi-
ties, we find that such discharges constitute viola-
tions of Section 8(a)(3) and (1). We further find that
Respondent violated Section 8(a)(1) by interrogat-
ing and threatening these department heads about
their union activity, by granting them wage in-
creases, and by requesting that they obtain for
Respondent copies of the statements they had given
to a Board agent.
2. The Trial Examiner found that Vice President
Robert Ross' request of employee George King to
help Respondent by voting "No" in the election
was violative of Section 8(a)(1). As this request did
not constitute a threat or promise of benefit, we find
it was protected by Section 8(c) of the Act and,
therefore, not violative of Section 8(a)(1).
3. The Trial Examiner found that Respondent
violated both Section 8(a)(1) and (5) by issuance of
written rules of conduct, covering both old and new
matters, on August 9. The Trial Examiner found
also that rule 15 of these rules of conduct con-
stituted an independent violation of Section 8(a)(1),
since it contained a broad no-solicitation clause
which prohibited the distribution of union literature
or the collection of union dues in nonworking areas
of the plant during the employees' nonworking time
without Respondent' s permission . We agree that
the issuance of written rules and the broad no-so-
licitation clause of rule 15 constituted violations of
Section 8(a)(1). However, we find it unnecessary
to decide whether such issuance was also violative
of Section 8(a)(5), since such a finding would be cu-
mulative and would in no way affect the remedy or-
dered herein. Further, we find that it will effectuate
the policies of the Act to order Respondent to
rescind that portion of rule 15 which we have found
to be unlawful.
4. On June 7, Vice President Robert Ross called
a meeting of all employees and stated that he had
14 Southern Bleachery and Print Works, Inc , 1 15 NLRB 787, enfd
257 F 2d 235 (C.A 4), cert denied 359 U S 911
15 Although the Trial Examiner states that his evidentiary findings are
based upon demeanor , his only findings that appear specifically to relate
to credibility with respect to the supervisory issue are in footnote 17 of
the Trial Examiner's Decision as follows
Ruben Packer, Billy Ray Weatherman , and Billy Hobbs. on direct ex-
amination in this representation proceeding , in effect testified that the
work of their departments was largely a do-it-yourself operation in
which they as older employees gratuitously offered to help the
younger employees to learn the ropes They also testified that in their
opinion they did not effectively recommend increases in wages for
their men when they asked Wells or McBride to see that increases
were granted to certain employees . Packer, Weatherman , and Hobbs
had enlisted in the Union 's cause of organizing Respondent ' s plant,
and because their interest favored the Union' s cause the testimony
they gave in response to leading questions by Frazier. the Union's in-
ternational representative , is not on all fours with the facts They
repudiated this testimony on cross -examination , and in the unfair
labor practices proceeding, Long, who did not testify in representa-
tion proceeding , gave similar testimony on direct examination in the
unfair labor practice proceeding that the others gave on direct in the
representation proceeding . He modified this testimony considerably
in his cross-examination [Emphasis supplied ]
However, the record does not support the findings by the Trial Examiner
that Packer, Weatherman , and Hobbs "repudiated" their representation
case direct examination on cross-examination and in the unfair labor prac-
tices proceeding or that Long "modified" his direct testimony "con-
siderably" in his cross-examination While, as might be expected, there
are slight differences between their testimony on direct and cross-ex-
amination and between the representation case testimony and the unfair
labor practices cases testimony , the differences are not substantial enough
to support a conclusion that the testimony has been "repudiated" or
"modified considerably " A clear preponderance of the relevant evidence
indicates that these findings by the Examiner are erroneous , and they are
hereby overruled Standard Dry Wall Products, Inc , 91 N LRB 544, enfd.
188 F.2d 362 (C.A 3)
16 The Respondent contends it discharged Department Head Frank
Long for cause For the reasons stated by the Trial Examiner, we agree
with him that Respondent discharged Frank Long for his union activities
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received word that someone was trying to start a
union; that Respondent did not want a union as
Respondent could do as much or more for the em-
ployees as a union could; that Respondent was
going to try to avoid a layoff because it had plenty
of work; that if the employees selected a union
Respondent would lose all its business "up north"
because its higher labor costs would have to be
reflected in its prices; that he had heard that
someone had passed around a petition to get the
union in, and that he would be happy if someone
passed around a petition to keep the union out; and
that some of the employees were eligible for raises
but the Respondent would not be able to give any
raises because of the union's organizational activi-
ty. After this speech, Vice President C. L. Ross
told the employees that he did not believe that "the
shop can survive with a union."
The Trial Examiner found that the speech and the
comment thereafter did not violate Section 8(a)(1)
as they "did not threaten employees or promise
them benefits, and merely expressed ... opinion
about economic conditions over which Respondent
had no control that would result from the em-
ployees being represented by a union." We dis-
agree. In the total context of these cases, especially
considering Respondent's avowed hostility to the
unionization of its employees and its commission of
many serious violations of the Act, we find that this
speech constituted both a threat if the employees
selected the Union and a promise of benefit if the
employees rejected the Union. Therefore, we find
that such speech was violative of Section 8(a)(1).
working areas of the plant during nonworking time
without Respondent's permission."
4. Amend new paragraph 2(e) by changing the
semicolon after the word "request" in the 15th line
to a period and by deleting all thereafter.
5. Amend the notice attached to the Trial Ex-
aminer's Decision marked "Appendix" by:
(a) Placing a period after the word "bargaining"
in the fifth paragraph and by deleting all thereafter.
(b) After the sixth paragraph, add the following
as a new paragraph:
WE WILL rescind that portion of rule 15 of
the Rules of Conduct issued on August 9,
1965, which prohibits the distribution of union
literature or the collection of union dues in non-
working areas in the plant during nonworking
time unless our permisssion is obtained.
(c) Amend the present seventh paragraph by ad-
ding after the name "Gary W. Carriger" the
following names: Frank Long, Fred Bates,
Donald J. Cox, Earl H. Dabney, Billy L.
Hobbs, Doyle H. Ward, and Billy Ray
Weatherman.
(d) Amend the present eighth paragraph by plac-
ing a period after the word "bargaining" in the 17th
line and by deleting all thereafter.
(e) Amend the "Note" immediately below the
signature line by adding after the name "Gary W.
Carriger" the following names: Frank Long, Fred
Bates, Donald J. Cox, Earl H. Dabney, Billy L.
Hobbs, Doyle H. Ward, and Billy Ray Weatherman.
TRIAL EXAMINER'S DECISION
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, as modified
below, and hereby orders that Respondent, Ross
Porta-Plant, Inc., Fort Worth, Texas, its officers,
agents, successors, and assigns, shall take the ac-
tion set forth in the Trial Examiner's Recom-
mended Order as herein modified:
1. Amend paragraph 1(e) by putting a period
after the word "bargaining" in the fourth line and by
striking all thereafter.
2. Amend paragraph 2(a) by adding after the
name "Gary W. Carriger" the following names:
Frank Long, Fred Bates, Donald J. Cox, Earl H.
Dabney, Billy L. Hobbs, Doyle H. Ward, and Billy
Ray Weatherman.
3. Add the following as paragraph 2(d) and
renumber the present paragraphs 2(d), 2(e), and 2(f)
as paragraphs 2(e), 2(f), and 2(g), respectively.
"2(d) Rescind that portion of rule 15 of the Rules
of Conduct which prohibits the distribution of union
literature or the collection of union dues in non-
STATEMENT OF THE CASE
JAMES F. FOLEY Trial Examiner: These cases,
16-CA-2393, 16-CA-2449, and 16-CA-2503, were
brought before the National Labor Relations Board
(herein called the Board) under Section 10(b) of the Na-
tional Labor Relations Act, as amended (61 Stat. 136,73
Stat. 519), herein called the Act, against Respondent
Ross Porta-Plant, Inc., herein called Respondent, on a
second amended complaint (herein called complaint) is-
sued December 15, 1965, by the Regional Director, and
an answer filed by Respondent on December 20, 1965.
The Charging Party is Local 826, International Union of
Operating Engineers, AFL-CIO, herein called the
Union.'
The complaint contains allegations of numerous viola-
tions of Section 8(a)(1), (3) and (5) by Respondent during
the period from May 25, 1965, up to and including
December 3, 1965. Respondent denied it committed the
illegal conduct alleged. At the outset of the hearing,
' The second amended complaint is premised on the followir5 charges
filed by the Union: Original and first amended charges in Case
16-CA-2393, filed July 6 and 14, 1965, respectively; original and first
amended, second amended , and third amended charges in Case
16-CA-2449,, filed August 27, October 8, October 28 and November 3,
1965, respectively , original, first amended and second amended charges
in Case 16-CA-2503, filed on October 28, November 22, 1965, respec-
tively.
ROSS PORTA-PLANT, INC. 499
described below, General Counsel was given leave to
amend the complaint by adding two additional allega-
tions. One is the allegation that in violation of Section
8(a)(1) Respondent on or about June 8, 1965, at a meet-
ing of employees suggested to them that they circulate an
antiunion petition, and on June 8 and 9 by interrogation
and orders, sought to force employees to sign an anti-
union petition prepared under its instructions. The second
is the allegation that Respondent engaged in discrimina-
tion violative of Section 8(a)(3) and (1) against
rank-and-file employees by shutting down the plant on
June 2 and 3, 1965, and depriving the rank-and-file em-
ployees of 2 days' employment, pretextually to take a
plantwide inventory, but actually in reprisal for em-
ployees participation in organizational activity of the
Union. Respondent also denied these allegations.
General Counsel's motion on the 6th day of the hearing
for leave to strike from the complaint paragraphs 7(a) and
9(b) was granted without opposition. These paragraphs
alleged that Respondent sent letters to employees' homes
in which the employees were threatened with reprisals for
union activity.
A hearing on the complaint as amended, and the an-
swers of Respondent was held before me from January
17 to January 21, 1966, and from January 24 to January
28, 1966, in Brownwood, Texas. General Counsel,
Respondent, and Charging Party were represented at the
hearing. All parties were afforded an opportunity to offer
evidence, make oral argument, and file briefs. General
Counsel and Respondent filed briefs after the close of the
hearing.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent, a Texas corporation, with principal office
and place of business, in Brownwood, Texas, is engaged
in the manufacture of heavy duty equipment for the
batching of cement, sand, and gravel in the making of
concrete, and of replacement parts and subassemblies for
this equipment. During the calendar year 1965, Respond-
ent manufactured and sold to customers outside the
State of Texas, and transported directly to points outside
the State of Texas, equipment, parts, and subassemblies
valued in excess of $50,000. Respondent at all times
material to this proceeding has been engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act, and jurisdiction of these cases will effectuate the
purposes of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Status of Department Heads as Supervisors or
Rank-and-File Employees
1. Preliminary discussion
Respondent's defense, at least in part, to the allegations
of discriminatory discharges of Department Head Frank
Long on August 20, 1965, and Department Heads Fred
Bates, Donald Cox, Earl Dabney, Billy L. Hobbs, Doyle
Ward, and Billy Ray Weatherman on November 3, 1965,
is that they were supervisors within the meaning of Sec-
tion 2(11) of the Act. Respondent's defense to many of
the allegations of violations of Section 8(a)(1) is also that
its department heads are supervisors within the meaning
of Section 2(11). The Regional Director in a decision and
direction of election dated July 14, 1965, Case
16-RC-3949, ruled that the above department heads and
Department Head Ruben R. Packer, John B. Croft, G. C.
Medcalf, Truman Clyde Adams, Dalton Ferguson, Har-
vey Hamlett, Larry Jackson, Reggie Wells, and Joe Cer-
venka were rank-and-file employees within the meaning
of the Act, and directed an election in a unit of Respond-
ent's production and maintenance employees, after a
hearing before Hearing Officer T. Lowry Whittaker, a
Regional Office attorney, in which the only contested
issue was the supervisory or nonsupervisory status of
these department heads. The petitioning Union claimed
that the department heads had signed union authorization
cards, and Respondent gave them supervisory authority
to prevent their voting in the election.
Respondent requested the Board to review the action
of the Regional Director, and the Board by telegraphic
order on August 4, 1965, granted the request and stayed
the direction of election issued by the Regional Director.
However, the election scheduled for 10 to 11:30 a.m. on
August 4, 1965, was held and completed before the tele-
graphic order reached the Regional Director and the
parties. On October 6, 1965, the Board, sitting in review
of the Regional Director's decision of July 14, 1965, af-
firmed it. On October 15, 1965, the Regional Director
certified the Union as the collective-bargaining represent-
ative of a unit of Respondent's employees consisting of
all production and maintenance employees including
draftsmen, shipping and parts employees, and excluding
field servicemen, over-the-road drivers, office clerical
employees, and all other employees, watchmen , guards,
and supervisors, as defined in the Act. In the August 4,
1965, election, 45 of 77 employees voted for the Union,
and 32 employees voted against the Union. It is un-
disputed that in the latter part of October, 1965, and on
many dates thereafter, the Union, pursuant to the certifi-
cation, has requested the Respondent to bargain collec-
tively with respect to the employees in the unit found ap-
propriate, but the Respondent has refused on the ground
that the department heads who voted were supervisors,
and that if their votes were subtracted from the 45 votes
for the Union, it did not obtain a majority of votes in the
election, and, therefore, was not the legal collective-bar-
gaining representative.
The General Counsel contends in this unfair labor
practice proceeding with respect to the allegations of
violations of 8(a)(1) and (3) as well as alleged violations
of Section 8(a)(5) that the issue of the status of the de-
partment heads as supervisors or rank-and-file employees
is "res judicata," by reason of the Regional Director's
decision, and the Board's affirmation of it, and cannot be
relitigated. General Counsel raised this contention timely
by objection to introduction of any evidence relating to
this issue. I overruled this objection, and received
evidence insofar as it related to the allegations of viola-
tions of Section 8(a)(1) and (3) of the Act, and the defense
of Respondent to these allegations. The parties stipulated
into evidence the record of the representation proceeding.
Also received in evidence was the decision of the Re-
gional Director, the Board's order granting the request for
review and staying the election, the Board's decision on
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
review, and the Regional Director's certification. Rehear-
ing of the evidence in the representation hearing was
avoided. Both the General Counsel and Respondent of-
fered additional evidence on this issue. I rely on the
decision of June 27, 1966, of the United States Court of
Appeals for the-District of Columbia in N.L.R.B. v.
Sagamore Shirt Company, etc., 367 F.2d 898,62 LRRM
2431, and the Board case of Leonard Niederriter Co.,
130 NLRB 113 (1961). Section 102.67(f) of the Board
Rules and Regulations precludes relitigation in a sub-
sequent related unfair labor practice proceeding of an
issue determined in a representation hearing, where there
was failure to request review, a denial of a request for
review, or the Board affirmed the Regional Director'
decision. In the present posture of Board law as ex-
pressed in its decisions, it is not clear whether the words
in Section 102.67(f), "related subsequent unfair labor
practice proceeding," refer only to a proceeding, or part
of a proceeding, involving an alleged violation of Section
8(a)(5) related to the prior representation case, or also
refer to an unfair labor practice proceeding, or part of a
proceeding, insofar as it involves violations of Section
8(a)(1), (3) or other sections of the Act in addition to Sec-
tion 8(a)(5).2 It appears to me that Niederriter is the
Board law on the matter. It held that its ruling in the prior
representation case that employee Schwartz was not a su-
pervisor did not "finally and conclusively resolve that is-
sue" for the purpose of the case before it involving an al-
leged violation of Section 8(a)(3) and (1). There is nothing
in Section 102.67(f) of the Board Rules and Regulations,
subsequently issued, or elsewhere that indicates the
Board has delegated more authority to the Regional
Directors than under Niederriter it considered it, itself,
had.3
Additional evidence received by me discloses that the
matter was not fully litigated in the representation
proceeding. There is the question whether this highly
contested mixed issue of law and fact involving an in-
terpretation of Section 2(11) of the Act could be resolved
finally and conclusively in a representation proceeding
where the Regional Director decided without evaluation
of demeanor testimony as he did not hear the evidence,
and where the laws of evidence in courts of law and equi-
ty were not controlling (Section 102.66 of the Board
Rules and Regulations). See Morgan v. United States
2988 U.S. 468, 480-482; 304 U.S. 1, 19-22. If the issue
first arose by way of challenges or objections in connec-
tion with an election held by consent, it would have been
referred to a trial examiner or a hearing officer for a hear-
ing thereon, and for credibility determinations, findings
of fact and recommendations . See Jones Packing Com-
pany, supra, and Section 102.69 of the Board Rules and
Regulations.
2. Evidentiary findings4
Respondent manufactures portable equipment for the
making of concrete for heavy construction. It also manu-
factures portable heavy duty self-contained motor truck
and vehicle scales. -
Respondent's concrete making equipment, which sells
in a price range from $20,000 to $80,000 per unit, batches
cement and aggregates of sand and gravel, and either
mixes them or leaves that operation to the truck mixers.
Water is added when the mixing begins or when the ag-
gregates and cement are poured into the truck mixer. The
end product is concrete. Batching is the gathering at one
place in separate compartments, and the individual
weighing, of the cement and the aggregates of sand and
gravel or rock (or both). The quality of the-concrete is de-
pendent on the accurate weighing of the components, and
the metering of the water so that each of them is present
only in the prescribed measure.
Respondent manufactures separate units for batching
the cement, called silos, and for batching the aggregates.
It also manufactures a unit called a Uniplant which
batches both the cement and each of the aggregates in
separate interlocking weighing systems. The aggregate
batching units manufactured by Respondent are complex
mechanisms of substantial size . They range from 34 to 75
feet in length, 7 feet 8 inches to 10 feet in width, and
weigh from 7,000 to 50,000 pounds. The travel heights
range from 12 feet 4 inches to 14 feet, and the discharge
heights are slightly less. The silos for batching the cement
range to 38 feet in discharge height, and 10 feet in width
and length. The travel lengths extend to 42 feet, and
travel heights reach 14 feet 6 inches.
The basic overall units, called blanks in the initial stage,
are fashioned of heavy gauge steel or iron, and angle iron,
welded together, and fabricated. Then there are built in or
attached the many subassemblies, parts, and wiring which
make the equipment functional and automatically opera-
tional. The overall units and many of the major subassem-
blies and parts are designed, engineered, and built in
Respondent's plant. The industry is highly competitive so
the finished units must not only be of high quality func-
tionally, but also appearancewise. For example, as re-
gards appearance, the welds, which take many man
hours, must be free of holes, and have smoothness and
evenness as well as strength.
Y See cases cited in fns. 12, 13, and 14 of the court of appeals decision
in Sagamore Shirt, etc., supra , 367 F.2d 898, 900. Also see Heights Fu-
neral Home Inc., 159 NLRB 723; Harold Gorlick and Moms Gorlick,
etc., 153 NLRB 370; The Standard Products Company, 159 NLRB 159;
and Wagner Industrial Products Co , Inc., 162 NLRB 1349.
1 See Shreveport Packing Corporation, 141 NLRB 1255, 1259, and the
court of appeals decision in Sagamore Shirt, supra.
4 These evidentiary findings are premised on the evidence, evaluated in
context, consisting of documentary evidence received in the unfair labor
practice proceeding , oral testimony of the Petitioner Union's witnesses
and Company's witnesses in the representation proceeding, and the
demeanor and oral testimony of General Counsel's witnesses and
Respondent ' s witnesses in the unfair labor practice proceeding . In resolv-
ing conflicts between the testimony in the representation proceeding of
petitioner's witnesses when on direct examination and the testimony of
these same witnesses in the same proceeding when on cross-examination;
and the conflicts between the testimony of petitioner's witnessess in the
representation proceeding , on the one hand, and the testimony of Com-
pany's Vice President Robert J Ross and Plant Superintendent Elmer N.
Wells, who testified for the Company, on the other hand, I have con-
sidered the demeanor testimony of these witnesses in the unfair labor
practice proceeding , and the record made in the unfair labor practice
proceeding. The Petitioner Union's witnesses in the representation
proceeding , although the Company's department heads, had signed
authorization cards of the Petitioner Union, and had been in communica-
tion with William Harvey Frazier, the Union's International representa-
tive. The latter appeared on behalf of the Petitioner in the representation
proceeding, and asked the questions to which the direct testimony of Peti-
tioner's witnesses was the response . The presentation of evidence in the
hearing in the representation proceeding was not controlled by the rules
of evidence , while the presentation of evidence in the unfair labor practice
proceeding was controlled by the rules of evidence. The hearing officer in
the representation proceeding did not make credibility determinations,
findings of fact, or recommendations , and the Regional Director, not the
hearing officer, made the decision.
ROSS PORTA-PLANT, INC. 501
As indicated by the heights, widths, and weights of the
equipment , Respondent manufactures aggregate hatching
units in a number of sizes. Respondent classifies them as
its smaller plants; its models 35-4, LP 60-7, and LP
105-7, the larger units ; Uniplant identified as models
160, 200 , and 250; and a combination of the largest
separate aggregate batching and cement batching units for
a central mixing operation , identified as model 600. The
batching plants for the cement , called silos , are manufac-
tured in different sizes or models having a barrel capacity
ranging from 250 to 600 barrels. All the cement and ag-
gregate hatching units are manufactured on order, and in
some degree custom made to the requirement of the
purchaser. Delivery is made 30 to 60 days after the
receipt of the order or sales contract . In some instances,
delivery is in 90 days.
Some functional subassemblies and parts are storage
bins; weigh bins; clamshell gates for closing and opening
the bins; the conveyor arm, approximating 35 to 40 feet
in length , which carries the weighed aggregates to the
mixer; the cylindrical flue, or screw , 13 to 14 feet in
length , for carrying the weighed cement to the mixer, and
spreading it over the aggregate ; water storage tank with
pump and meter ; motors and their wiring to provide 9 to
185 horsepower for automatic interlocking operation of
the functional subassemblies and parts, and an instrument
panel and electronic devices for power control run by a
single operator ; and a transportation system for making
the units mobile upon being attached to a truck -tractor,
consisting of single or tandem axles, single or dual
wheels, airbrakes, and kingpin rub plate for a fifth wheel
connection.
Respondent ' s motor truck and vehicle scales are
complete units of welded steel construction . They are
designed for steel decks, but wooden decks may be sub-
stituted . They are manufactured in single and in tandem-
connecting units. The single unit, in five models or sizes,
is suitable for weighing dumptrucks , bobtail trucks, and
Department
Engineering
Purchasing
Stockroom , Shipping,
and Receiving
Automatic Controls
Shear and Break
Parts
Conveyor Roller
Conveyor
Small Batch Plants
35-4, and LP 60-7
Uniplant
Silo
Scales
No. 1 Finish-up
No. 2 Finish-up
Electrical
Machine Shop
Paint
Department Heads
on June 25,1965
James Isom
Barton Keeler
John B. Croft
other light vehicles , and their loads. The two scale sec-
tions connected in tandem , in six models , provide a large
platform size to weigh large trucks, trailers, and off-
highway vehicles, and their loads. The platform of the sin-
gle unit has a capacity that ranges from 10 to 30 tons, and
size that ranges from 20 by 10 feet to 30 by 10 feet. The
platform capacity of the tandem-connected units ranges
from 30 to 70 tons, and the platform size ranges from 40
by 10 feet to 60 by 10 feet.
Respondent is relatively new both in the manufacturing
business , and in the manufacture of this equipment. It
made its first deliveries in 1958. It is housed , on substan-
tial acreage , in an office or administration building and
two plant buildings . The second plant building was
completed in April 1965 . Ruben Ross , and his sons,
Robert H . Ross and C. L. Ross, constitute the Board of
Directors . The Board of Directors determines all policy
matters. Ruben Ross is president , Robert H. Ross is ex-
ecutive vice president , and in charge of sales and adminis-
tration , and C. L. Ross is vice president in charge of en-
gineering , with management authority over plant opera-
tions. Ruben and Robert Ross have their offices in the of-
fice administration building. C . L. Ross has his office in
the plant. Joseph P . Keith , a graduate engineer, is the
production manager of the plant . Elmer Wells is the plant
superintendent, and E. A. McBride is the assistant plant
superintendent . Keith, Wells, and McBride are located in
the plant, and have the overall supervisory responsibility
for the employees who numbered in 1965 from a low of
55 or 56 employees to a high of 115 employees.
Plant operations under Keith, Wells, and McBride are
departmentalized in 18 departments . Respondent has
operated by departments since its origin in 1958. These
departments, the department heads's the approximate
highest member of employees assigned to each depart-
ment in 1965, and the number on or about June 25, 1965,
are shown in the following schedule:
Highest number
of employees in Number
each department on June 25,
in 1965 1965
6 5
6 3
6 5
4 3
6 3
13 8
4 2
6 3
8 3
18 10
16 10-12
12 8
8 5
5 4
5 2
2 2
8 6
46 2
Larry J ackson
Doyle Ward
Ruben Packer
Billy Ray Weatherman
Fred Bates
Reggie Wells
Donald Cox
Dalton Ferguson
Gilbert Medcalf
Frank Long
Billy Hobbs
Earl Dabney
Joseph Cervenka
Harvey Hamlett
Truman Clye Adams
Each named department head had been in charge of his respective de-
partment since at least May 1964
', The highest plantwide total number of employees was 115. Some de-
partments had their highest numbers on dates different than dates on
which other departments had their highest numbers
308-926 0-70-33
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Each of the above departments perform important
tasks in Respondent's operations. The equipment is
designed, planned, and drawn on blueprints by the En-
gineering Department, headed by James Isom, a graduate
engineer, pursuant to company policy conveyed by Vice
President C. L. Ross. The plants and their parts and sub-
assemblies are high cost items and are made for the com-
petitive market. Each plant model, and subassembly and
part which Respondent makes are planned, and drawn on
blueprints, in detail to avoid deviation at the departmental
levels. The Automatic Controls Department, headed by
Larry Jackson, builds the electronic devices which con-
trol the separate and interlocking operations of the func-
tional parts or subassemblies of each complete plant or
unit. These controls are built to meet Federal, State, and
local government requirement.
The Purchasing Department under Barton Keeler han-
dles the purchasing of the machinery and equipment to
operate the plant, materials, and the subassemblies, and
parts not made in Respondent's plant that go into the
making of Respondent's end products. This department
also handles the taking of annual and quarterly plant in
ventories. Until June 30, 1965, there was a Stockroom,
Shipping and Receiving Department headed by John B.
Croft, which carried an inventory of parts, received
deliveries, made shipments, and prepared the completed
units and other items scheduled for shipment. It built
rubber chutes or shrouds to cover equipment when in
transit, put belt lining on pulleys, and packed scales and
other pieces of equipment to protect them against damage
when in transit. When Croft resigned on June 30, 1965,
this department was merged with the Purchasing Depart-
ment under the direction of Keeler.
The Parts Department, headed by Ruben Packer,
builds many of the parts and subassemblies built into the
Uniplants, the large and small batch plants, and the silos.
The crown tail pulleys and flat head pulleys which this de-
partment builds in many sizes, as original equipment as
well as replacement equipment, sell in the replacement
market in a range from $86 to $400. It makes hook-up
bearings, clamshell gates by which the storage and weigh
bins are opened and closed, the cylindercal flue or screw
which carries the weighed concrete to the mixer, and
bogey axles to make the equipment mobile. These items,
like the remainder of the parts and subassemblies it
makes, are precision made items, and must meet the
blueprint specifications to ensure that each of the subas-
semblies performs its intended functional operation in a
chain of automatic synchronized interlocking operations.
Here subassemblies and parts are made on special order.
For example, Packer and Calvin Ingram, at the time the
latter was laid off, were making, and assisting in the
design of, a large bogey axle to make mobile an extra
large aggregate batching plant which Respondent had
contracted to build. In January 1964, Respondent
adopted the policy of training welders, and assigned this
task to the Parts Department.
The Conveyor Department, headed by Fred Bates,
builds the conveyor, an integral and vital part of the ag-
gregate batching equipment. It is a metal trough, 30
inches in width, from 35 to 40 feet in length, with a depth
running to 41 inches, in which a belt approximately 30
inches wide revolved by rollers automatically powered,
carries the aggregates from the weigh bin to the mixer.
Like the other subassemblies and parts, it is precision
made to ensure its operation in a scynchronized inter-
locking chain of operations. The troughing rollers and
idlers that revolve the belt in the conveyor, and the idlers
which move the elevator buckets and their chains in the
silo are made in the Conveyor Roller Department,
headed by Billy Ray Weatherman. These items of equip-
ment are also precision made in accordance with
blueprint specifications. The troughing rolls, comprised
of rollers on a round steel belt, made by this department,
sell in the replacement market in a range, depending on
belt size, from $85 to $180. The idlers it makes, also as-
sembled on a round steel belt, sell in the replacement mar-
ket in a range, depending on size, from $40 to $62.
The Scales Department, headed by Frank Long, builds
the separate lever type scales installed in the aggregate
batching plant, as well as the scales installed in the silo for
weighing the cement. The gauge or dial head unit in the
scales is purchased from the Fairbanks-Morse Company.
The complete building of Respondent's platform scales,
ranging in platform capacity from 10 to 70 tons, and in
size from 20 feet by 10 feet to 60 feet by 10 feet, is also
done by this department. The gauge or dial head unit is
also furnished by Fairbanks-Morse. The Shear and Break
Department, headed by Doyle Ward, operates the shear-
ing machine that cuts the heavy gauge sheet steel for the
sides, tops, and bottoms of all of the batching equipment,
and for the platform and other sections of the scales for
weighing heavy loads. In this department, lighter steel is
cut for subassemblies and parts. This department also
operates the break machines that shapes the steel cut with
the shearing machine for parts and subassemblies. This
department, under its department head, is entrusted with
a large shearing machine, two break machines, and a
rolling machine. It is expensive equipment.
The small batch plants are built in the Small Batch De-
partment, headed by Reggie Wells. The 35-4, LP 60-7
Department, headed by Donald Cox, builds the larger ag-
gregate hatching models. The Uniplant, a combination of
separate aggregate batching equipment and cement
batching equipment in its three models is built in the
Uniplant Department, headed by Dalton Ferguson. The
Silo Department headed by Gilbert Medcalf, builds the
silos that batch the cement. These departments cut the
lengths that go into the making of the frame and reinforc-
ing sections from angle iron, weld them together to form
the frame, weld to the frame the sheet steel sheared for
the particular unit by the Break and Shear Department,
to form the blank or basic unit, builds in the parts and sub-
assemblies which are made in Respondent's plant, and
perform the fabricating work that readies it for the finish-
ing operations of the Finish-Up Crews.
The two departments identified as Finish-Up Crew
No. I and Finish-Up Crew No. 2, headed by Billy Hobbs
and Earl Dabney, respectively, attach to the units motors,
air compressors, controls, and other parts and subassem-
blies not made in Respondent's plant. Some of these
items are elevator buckets and chains, belts, meters, scale
heads, protex dispensers, and additive dispensers. The
Electrical Department, headed by Joe Cervenka, does the
wiring, and works with the Finish-up Departments in in-
stalling the automatic controls. The units are then painted
by the Paint Department headed by Truman Clyde
Adams. Certain attachments are left off until the painting
is completed. The Finish-Up Crews then affix these at-
tachments. A complete machine shop, headed by Harvey
Hamlett, is available to all production departments. This
is also a separate department.
On August 20, 1965, the position of quality control en-
gineer was established by Respondent, and offered to
ROSS PORTA-PLANT, INC. 503
Hobbs by Production Manager Keith on instruction from
Robert Ross. Hobbs accepted it. The Finish-Up Depart-
ment No. 1 which he headed was consolidated with
Finish-Up Department No. 2, and Dabney, who headed
No. 2 was given charge of this consolidated operation.
On August 23, 1965, Keith handed Hobbs a schedule on
which was listed his duties as quality control engineer.
Under the supervision of Wells and McBride, he had the
responsibility of inspecting both products and equipment.
He was to inspect the work as it was being done to see if
plans, specifications and standards, and the plant work
orders, were being followed, assist in checking out scales,
automatic equipment, motor rotation, and related items
on all hatching equipment, complete a final inspection
check list for each product sold and list serial numbers for
outside suppliers equipment being used , assist in the
tie-down and crating of materials being sent separately
with the unit being shipped, make a final checkout at the
time the equipment was scheduled to leave the plant, and
to see that no Ross product left without quality control
clearance. Hobbs was also charged with making a safety
inspection of plant equipment. He was to check hoists,
electrical equipment, look for oxygen and gas line leaks
and air leaks, see that safety guards were present on
machinery, prepare safety bulletins, and maintain a safety
bulletin board, watch for safety hazards in general, and
assist in the evaluation of Respondent's insurance pro-
gram.
The department heads receive work orders from
Production Manager Keith. The heads of the Purchasing
Department, Engineering Department, and Automatic
Controls Department receive them directly from Keith.
The heads of the Parts Department; Shear and Break De-
partment; Conveyor Roller Department; Scales Depart-
ment; Silo Department; the No. 1 and No. 2 Finish-Up
Departments, which were merged on August 20, 1966;
the Machine Shop; Electrical Department; and Paint De-
partment, receive the work orders indirectly from Keith,
through Plant Superintendent Wells. The heads of the
Uniplant Department, the 35-4 and LP 60-7 Department,
the Small Batch Plant Department, and the Conveyor
Department, receive them indirectly from Keith through
Assistant Plant Superintendent E. A. McBride. The de-
partment heads, who work with their hands along with the
rank-and-file employees they direct,7 assign the particular
departmental work to be done under a work order to
these employees, and schedule its completion to meet the
delivery date shown on the work order. Some department
heads have set up within their departments particular
groups to handle the diversified work their departments
do. In the case of parts, subassemblies, scales, and con-
trols, they are scheduled for completion by the depart-
ment heads of the departments building them so they can
be transferred to the departments which build them in or
attach them to the plants being built, in time to permit the
latter to meet their schedules. The head of the department
building a plant- a silo, small batch plant , uniplant, a
35-4, or 60-7 plant,-gears the work under him to a time
that will permit the Finish-Up Crews, the Electrical De-
partment, and the Paint Department to perform the
finishing operations within a time that will permit delivery
on the date scheduled in the sales contract. The head of
the Machine Shop schedules the work his department
does as an auxiliary service to the production depart-
ments to permit the particular department for which the
work is done to meet its time schedule.
The department heads closely direct the work of the
employees in their departments by designating the em-
ployees who are to handle certain types of work, or assig-
ning the work to be done on each work order, and by
checking the progress of the work being done. Close
direction is necessary to ensure that the equipment manu-
factured has the quality required to meet the competition
in the industry, and to withstand the heavy pressure on it
in its use in construction work , and to see that each of the
many functional subassemblies of the overall unit or plant
are precision built, and built-in or installed, to perform
smoothly its intended interlocking operations. In view of
high production costs and the time scheduling, any delay
due to faulty work would seriously impair the economic
position of Respondent.8
The control or direction of employees by each depart-
ment head is geared to the part each department plays in
the manufacturing of a plant or its subassemblies or parts.
For example, each department head has the authority to
request from the plant superintendent or Assistant plant
superintendent, or Production Manager Keith, depending
on the department involved, the termination as a depart-
mental employee any employee who is not contributing
to the work of the department. This has been done by de-
partment heads who have had employees not doing, in
their opinion, satisfactory work. The employee who is not
wanted by the department head will be transferred out of
the department as soon as practicable, and will be as-
signed to another department by Keith, Wells, or
McBride, or terminated. Some department heads have
not exercised this authority. However, the authority
is there for them to exercise. The department heads have
the authority to recommend raises for departmental
employees, subject to review and approval by Wells
and Keith, or by Keith and McBride, or by Keith
alone, depending on the department. The recommenda-
tions are approved and sent to the Board of Directors,
absent some inequity to the employees as a whole,
if the employee has spent the minimum time as an
employee or at the wage rate he is receiving when the
recommendation is made. An unanimous vote by the
three directors is necessary for favorable action. The
Board maintains what it considers a proper balance
between costs and revenue. Labor costs are a substantial
cost factor and a change in an employee wage due to a
wage increase will affect that balance. If the balance
would not be adversely affected by the raise, or a pattern
of raises, at the particular time, and there would be no
breach of policy by the raise, the Board of Directors will
' The amount of work they do with their hands depends on the extent
the employees need personal direction In some instances . the employees
do not require the close direction that is needed in other instances In the
former case, the department head has more time to work with his hands
He is an expert in the work of his department , and his participation in it
contributes to the instruction of his crew
s As previously found , the units manufactured range in price from
$20,000 to $80,000 per unit In 1965, in the months of April, May, June,
and July, respectively, 24, 15, 19, 11, and 23 units, respectively, were
delivered. The number of units in production can be estimated to average
20 per month for this period . Since only a limited number of units . even in
the high production months , are produced , the unit costs are high . Rejec-
tion , or reworking, of plants, subassemblies or parts , because of faulty
work would entail substantial economic loss not only because of high
production costs, but also because the delivery schedule, so vital to the
continued in-flow of payments to meet financial obligations , would be seri-
ously impeded . Failure to deliver just one plant because of faulty work
would substantially reduce gross receipts.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
favorably act on the_ department head's recommendation.
Each department head trains employees to-do the work
of the particular department. As previously found, Ruben
Packer, as head of the Parts Department, was also as-
signed the task of training welders for all of Respondent's
departments.9 Frank Long, as head of the Scales Depart-
ment, was assigned the task of training Assistant Plant
Superintendent E. A. McBride in making and maintaining
of scales, and also had the special assignment of training
a Charles Kizer in this work. Kizer was assigned to his
department for this training. The Machine Shop, En-
gineering Department, Automatic Controls Department,
and Scales Department, may accept outside work. Har-
vey Hamlett, James Ison, and Larry Jackson, the head of
the first three departments, decided independently if their
particular departments can accept the work. If the par-
ticular department can, the department head will
designate the employees to do the outside work. To ac-
cept outside work for the Scales Department, Long must
be able to assure Wells or Keith that it will not interfere
with his department's scheduled production require-
ments. If the work may be done, he assigns the employees
to do it. The Scales Department is the only one of the four
directly involved in the production line. For 3 weeks,
starting in May 1965, the Break and Shear Department
had a night shift operation under Department Head
Doyle Ward. There were two employees in this depart-
ment under his supervision. Two or three painters of the
Paint Department worked the same night shift as the
Shear and Break Department under Ward. Ward was in
charge of the painters, as well as the employees in his de-
partment, and checked their work. He was in charge of all
the employees on this night shift.
Overtime is specifically authorized by Plant Superin-
tendent Wells or Assistant Plant Superintendent Mc-
Bride. However, overtime work depends on the needs of
each department for the additional man-hours. Each de-
partment head has the responsibility of requesting over-
time for his department when it is needed to get the work
on parts, subassemblies, or plants being done by the de-
partment completed on schedule. The department head
will usually work the overtime assignment. He will
recommend for overtime the employees working on the
particular unit to be completed. The recommendation is
followed, unless Keith, Wells, or McBride assigns em-
ployees from other departments who are temporarily
available because of a drop in the work load of their de-
partments. The department heads keep Keith, Wells, and
McBride advised of the extent their employees are
getting out the work scheduled for their departments,
and whether they need additional men or could do with
less. Keith, Wells, and McBride, therefore, know of the
availability of employees for temporary assignment to
other departments, and the departments which need addi-
tional help. They then assign the available employees
where they are needed.
Leaves of absences and timeoffs are specifically
authorized by Wells or McBride. The policy is to grant
leave or timeoff because of illness, and to grant leave or
timeoff for other purposes if the work schedule of the par-
ticular department permits. Any excessive amount of
leave or timeoff has the attention of Wells, McBride, and
Keith, as well as the department head, as' it is contrary to
plant policy. The employee requesting leave or timeoff
makes the initial request to the department head. If the
latter has no objection, he sends the employee to Wells or
McBride. In the absence of objection by the department
head, the request is granted. If the leave or timeoff will in-
terfere with the work schedule of the particular depart-
ment, or the employee making the request has had more
than a reasonable number of absences or timeoffs, the de-
partment head so informs the employee. The latter may
still go to Wells or McBride but the department head must
inform Wells or McBride of his position. The leave or
timeoff will be denied in this situation absent some
unusual or extraordinary circumstances. There are in-
stances where an employee will bypass the department
head, and make the initial request to Wells or McBride for
a wage increase, leave of absence, or timeoff. It is not un-
common for a few employees to do this in any group of
employees. Wells or McBride will talk to him about his
request, but will consult the department head before tak-
ing action on it. Wells testified that the proper procedure
is for the rank-and-file employees to make these requests
initially to the department head.
The department heads are paid an hourly rate, and not
an annual wage. The hourly rate they receive is substan-
tially higher than the rate of the rank-and-file employees.
In June 1965, two leadmen working under department
heads were receiving the same hourly rate as their depart-
ment heads.10 The rate for all the department heads was
increased by 25 cents on August 30, 1965, to $2.50 per
hour. This increase enlarged the margin between the rates
for these department heads and leadmen.
The Examiner had the opportunity to view the
demeanor of the department heads who testified for the
General Counsel in the unfair labor practice proceeding.
These witnesses were Ruben Packer, John B. Croft, Joe
K. Cervenka, Billy Ray Weatherman, Earl Dabney,
Frank Long, Doyle Ward, Fred Bates, Donald Cox, Billy
Hobbs, and Reggie Wells. This testimony disclosed that
these employees were accustomed, and had been ac-
customed, to exercising authority. This testimony and
their substantive oral testimony disclosed that they knew
they had the authority to responsibly direct the men in the
performance of the work assigned to the departments
which they headed in Respondent's business, and exer-
cised it, and had the authority to effectively recommend
wage increases, discharges, and transfers, and exercised
it.
3. Analysis and concluding findings
I find from all the relevant testimony that the heads of
the departments listed in the tables under section III, A,
9 Welding is a basic task in all production departments and the Machine
Shop Department, as it is a means of Joining precut pieces or sections of
steel together to form a plant, part or subassembly, or building-in subas-
semblies or parts. However, it is only part of the work of building a part,
subassembly or complete plant. In the making of a garment, considerable
sewing is done in joining the precut pieces together but, there is much
more involved if the garment is to fit and have an attractive appearance.
Analogously, in fashioning a part or larger unit, much more than welding
is involved if the unit is to conform to the specifications on the blueprint,
be a finished product, and be adquate to perform its intended function. It
must be fabricated.
11 There were five leadmen on August 30, 1965, under department
heads. They were John Newby under Hobbs, Ben Gilbert under Hamlett,
Elbert Sledge under Medcalf, Bobby Blackmon under Donald Cox, and
William Crim under Ferguson Newby received $2 25 per hour, the same
rate Hobbs received, and Sledge received $2 25, which was the rate Med-
calf received. The rate for an experienced rank and file employee ranged
from $1 75.
ROSS PORTA-PLANT, INC. 505
2, supra, and the holders of the position of Quality Con-
trol Engineer , held by Billy Hobbs , are supervisors within
the meaning of Section 2(11) of the Act. tl The depart-
ment heads responsibly direct employees , and effectively
recommend wage increases , transfers , and discharges.
The quality control engineer responsibly directs em-
ployees. Each of them has numerous complex assign-
ments to perform in a high cost operation . Such a situa-
tion requires close supervision at each department level.
Keith who plans the whole production program , in terms
of plant operation and coordination of all its factors, that
is planning , manpower , equipment and material , could not
exercise this type of supervision. Wells and McBride
could not exercise adequate direct supervision of the
work and conduct of the 70 to 115 employees in two
separate plant buildings who perform the many complex
operations leading to the completed plants Respondent
manufactures .'''-' If the department heads are not super-
visors, the employees are without adequate direct super-
vision in a high cost operation a large part of the time.
There is testmony that Wells and McBride are constantly
moving through the plants a number of times daily, and
that Keith does so a number of times a week . However,
there is undisputed testimony that they do not stop to
direct the work of rank -and-file employees , but to consult
with department heads from time to time about the many
plant operations which they must coordinate if the units
are to be completed and delivered as scheduled."
In reaching this conclusion , I have considered General
Counsel's evidence showing that on June 15, 1965, after
11 James H. Matthews & Company v. N L.R.B., 354 F 2d 432,
434-435, 61 LRRM 2070, 2072-3 (C A. 8), enfg. 149 NLRB 161, 171;
N.L R.B. v. Inland Motor Corp of Virginia, 322 F 2d 457, 458-460,
(C A. 4), enfg. 138 NLRB 516, 518-519; Crown Aluminum Industrials
Corp. v. N.L R B, 352 F.2d 84 (C A. 3), enfg 150 NLRB 58; N.L.R B.
v. Hamilton Plastic Molding Co., 312 F.2d 723, 725-727 (C A. 6), enfg.
as modified 135 NLRB 371; Jones Packing Company, 159 NLRB 988,
Powers Regulator Company, 149 NLRB 1185; Irving Air Chute Co.,
Inc, 149 NLRB 627, 633-635, enfd 350 F.2d 176 (C.A. 2) In these
cases, the ruling that the employees were supervisors favored the unions.
Here it favors the employer. There is only one standard.
12 Donald Cox, who headed Respondent's 35-4 and LP 60-7 Depart-
ment, testified that his department had space in one of the plant buildings
60 feet in length, on both sides of the aisle, and had hoists 16 feet high on
both sides of the aisle. He separated his employees into two crews, and as-
signed a crew to each of two plants his department built at the same time
He directed one crew, and Bobby Blackmon, his leadman, directed the
other crew. The plants his department built ranged in travel length from 53
feet to 54 feet 6 inches, had a travel width from 7 feet 10 inches to 9 feet
10 inches, a travel height of approximately 13 feet 6 inches, and weighed
16,000 pounds and 23,000 pounds. As can be seen from the description of
the plants built by other departments, supra, the Uniplant, Silo, Small
Batch Plants, Finish-Up No. I and No. 2, Paint, Scales, and Conveyor
Departments, must each occupy space in length of 50 feet to 70 feet. It
can be assumed that the Break and Shear Department which houses
the large shearing machine for cutting large sheets of steel, and two
cutting machines and a rolling machine, occupies 50 feet, and the Purchas-
ing Department which includes the Stockroom, Shipping and Receiving
Department occupies from 50 to 70 feet The employees in the Engineer-
ing, Automatic Controls, Parts, Machine Shop and Electrical Depart-
ments work at benches or tables. It can be assumed that each of these de-
partments occupies a space of 25 feet. The total approximates 700 feet or
the equivalent of two city blocks. There is testimony that the original plant
building is a large L-shaped building. The second plant building, which
was completed in April 1965, to permit expanded operations must also be
a building of substantial size. Cervenka, the head of the Electrical Depart-
ment, testified that his department was 350 feet across the plant building
from Long's Scales' Department
13 James H. Matthews & Co v. N L R.B., 354 F.2d 432, 435 (C.A. 8);
Vega et al. v. N.L.R B., 341 F.2d 576, 577 (C.A. 1), affg. 145 NLRB 452,
N L R.B. v. Supreme Dyeing and Finishing Corp., 340 F.2d 493, 494
the Union began its organizational activity, Respondent,
by its attorney, informed these department heads for the
first time they were assistant foremen14 and supervisors,
and also informed them they should not engage in union
activity, and that they had the authority and responsibility
to exercise specifically outlined supervisory duties. How-
ever, the department heads exercised the supervisory
authority related above before June 15, 1965, and con-
tinued to do so after that date, independently of the oral
statement to them of their duties, and also independently
of the written statement of duties which Respondent's
representatives handed to the department heads on June
30 and August 30, 1965, and had them sign."
Respondent, apparently on advice of counsel, began
"beefing up" the status of the department heads as super-
visors within the meaning of the Act by holding meetings
of these personnel every Monday morning, furnishing
them manuals containing methods and techniques for
directing plant operations and employees, raising their
wages, and informing them in writing of what their
responsibilities were with respect to the direction of em-
ployees. As stated above, these department heads exer-
cised supervisory authority within the meaning of Section
2(11) of the Act prior to the inauguation of this beefing-up
activity by Respondent. 16 It is true that they recom-
mended wage increases in writing for the first time after
the June 25, 1965, representation hearing'17 upon instruc-
tions from Respondent. However, they effectively
recommended wage increases orally prior to this date.
The Act does not require recommendations to be in writ-
(C A. 1), enfg 147 NLRB 1094; N.L.R.B v. Mt. Clemens Metal
Products Company, 287 F.2d 790, 791 (C.A. 6), enfg. as modified 126
NLRB 1297, 1298, fn. 4
14 At least Long and Weatherman met that evening with William Har-
vey Frazier, the Union's international representative in charge of the or-
ganizational activity, and he told them that in his opinion they were lead-
men. Vice President C. L. Ross testified that the business grew rapidly in
the 8 years of its existence, and the department heads grew with the busi-
ness, that time was not taken to give them titles as they did not mean
anything, and they may have been referred to as crew chiefs or heads of
departments.
is I have considered the evidence that Respondent has the same retire-
ment plan, an accident insurance plan, and vacation plan, for department
heads, as it has for rank-and-file employees While this evidence causes a
closer scrutinizing of the department heads' duties in determining whether
they are the duties of a supervisor, it does not foreclose a finding they are
supervisors. There is nothing in the Act that precludes supervisors from
the enjoyment of the above protection that rank-and-file employees enjoy.
16 A leadman may be a supervisor within the meaning of Section 2(11).
James H. Matthews & Co v. N.L R.B, supra
11 Vice President C. L Ross testified that Respondent informed the de-
partment heads in writing on June 30 and August 30, 1965, of their super-
visory responsibilities, and required them to recommend wage increases
in writing, in view of their testimony in regard to their duties in the June
25, 1965, hearing. Ruben Packer, Billy Ray Weatherman, and Billy
Hobbs, on direct examintion in this representation proceeding, in effect
testified that the work of their departments was largely a do-it-yourself
operation in which they as older employees gratutiously offered to help
the younger employees to learn the ropes. They also testified that in their
opinion they did not effectively recommend increases in wages for their
men when they asked Wells or McBride to see that increases were granted
to certain employees Packer, Weatherman, and Hobbs had enlisted in the
Union's cause of organizing Respondent's plant, and because their in-
terest favored the Union's cause the testimony they gave in response to
leading questions by Frazier, the Union's international representative, is
not on all fours with the facts. They repudiated this testimony on cross-ex-
amination, and in the unfair labor practice proceeding Long, who did not
testify in the representation proceeding, gave similar testimony on direct
examination in the unfair labor practice proceeding that the others gave on
direct in the representation proceeding He modified this testimony con-
siderably in his cross-examination.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing in order to be effective recommendations. The super-
visory authorities listed in Section 2(11) of the Act are
stated in the disjunctive , and the exercise of one only
makes the person exercising it a supervisor , and the
amount of time an employee works with his hands is not
conclusive for or against the proposition he is a super-
visor. The question is; "Does he have any one of the
authorities listed in Section 2(11)9" James H. Matthews
& Co., supra. It is not necessary that he exercise it.
Leonard Niederriter Co., 130 N LRB 113
B. Union A nimus and Alleged 8(a)(1) 1 iolation.s 'H
As stated below , Production Manager Keith
questioned employee Jack W. Hughes on June 1, 1965,
about his interest in representation by a union , and his
soliciting signatures on a petition for representation by a
union . On June 7, 1965, Vice President Robert Ross held
a meeting of employees in which he stated that he had
gotten wind that someone was trying to start a union; that
they did not want a union as Respondent could do as
much or more for them as a union could, that they were
going to try to avoid a layoff because they had plenty of
plants to build ; that in a sales area of 300 miles around
their Brownwood plant they could sell cheaper than their
competitors if they stayed nonunion, that if the em-
ployees went union they would lose all the business they
had up North because the higher labor cost would have
to be reflected in their prices ,'" and that they could not af-
ford to close down as they had a lot of contracts to fill,
and had done a lot of expanding and owed money to the
bank . He said that he heard that someone had passed
around a petition to get the Union in, and would be happy
if someome passed a petition around to keep the Union
out, and also said that some of the new men were eligible
for a raise, but Respondent would be unable to give any
raises because of the union organizational activity. In the
course of this speech , he asked if they would not prefer
Wells and Keith as supervisors instead of some union
representative , and picked up a booklet showing union
salaries , and made a reference to a provision in it that
presumably disclosed that International Representative
Frazier received $ 50,000 a year, and accompanied the
reference with a statement that they would have to con-
tribute to this salary . The booklet , however, identified the
recepient of the $50 ,000 annual salary to be George
Meaney, president of AFL-CIO. A day or so later, Hary
Hamlett , head of the Machine Shop Department, asked
employee Gary Wayne Carriger to sign a petition against
the representation of employees by a union. 11
Employee Glenn C. Strickland testified for the General
Counsel that on July 15, 1965, Vice President Robert
Ross held another meeting of employees . He talked to
them , and then introduced his father , President Ruben
Ross, who talked to them . Bob Ross then asked if any-
body else had anything to say. Vice President C. L. Ross,
who was already standing, said "I don't believe the shop
can survive with a union ." C. L. Ross admits he made
such a statement , but claimed he made it following the
speech of his brother, Vice President Robert Ross, in
early June in regard to the economic impact union
representation would have on Respondent ' s sales. This
would be his June 7 speech. Strickland, in an affidavit he
gave to a representative of the Regional Office, dated
September 8, 1965, stated that the statement of C L.
Ross followed the speech of Robert Ross in which he said
"they were selling a lot of plants in various areas, but
wouldn't be able to sell them if the shop went union."
This would be Robert Ross' June 7 speech. At the hear-
ing, Strickland testified that he made a mistake when he
stated in the affidavit of September 8, that in a speech
which preceded C. L. Ross' remarks about the survival
of Respondent if a union represented the employees,
Robert Ross made reference to the impact of union
representation on the sales of Respondent ' s equipment.
He testified he saw this error after he had been inter-
viewed a few days before the hearing by Norman W.
Eckhardt, counsel for General Counsel, and mentioned
the error to Eckhardt. Eckhardt crossed out the reference
in Strickland's affidavit to Robert Ross' speech regarding
the impact union representation would have on Respond-
ent's sales On this evidence. I find that Vice President
C L. Ross, on June 7, 1965, following his brother's
speech about the economic impact representation by a
union would have on Respondent's sales, said he did not
see how Respondent could survive with a union.
About a week before the August 4, 1965, election, Pre-
sident Ruben Ross came to employee Strickland's work
station and said, "Shorty, I Just want you to know that if
we beat this union, and I think we will, that we're going to
have a happy shop, and everybody's going to be happy,
and we're going to give raises according to the cost of liv-
ing, and if any of the employees get into a financial strain
we are going to help them out." This testimony by
Strickland is unrebutted. On August 3, 1965, the day be-
fore the election, Vice President Robert Ross approached
employee Joe Huro and asked him how he felt about the
Union. Huro said he did not know, that he did not know
what was going on. Ross then said the Union would lead
to trouble for the employees financially, since it would be
their first experience with a union , and the individual em-
ployees not the union would decide if they wanted to
strike, and it was up to the Company whether it wanted
to agree on a contract. Vice President Ross then asked
IN It is undisputed that Respondent 's president and vice presidents have
been and are opposed to employee representation b^ the Union or any
labor organization The question is whether they have acted illegally in re-
gistering their opposition to union organization There is an area of allowa-
ble economic conflict
19 Robert Ross illustrated Respondent 's competitives position with two
maps On one map, he illustrated with colored thumbtacks where Re-
spondent 's plants were sold He said that Respondent sold more plants
in his competitors ' backyards , than they sold in Respondent 's backyard
20 On June 15, 1965, Vice President Ross held a meeting of department
heads, and introduced to them Alan Schoolfield , Esq as Respondent's at-
torney Schoolfield told them they were assistant foremen and super-
visors , and recited to them what their duties were as assistant foremen He
told them they should not engage in union activity or attend union
meetings, and if any of them went out on strike they would be replaced
On June 30 , 1965, Production Manager Keith furnished to the department
heads assembled in a meeting , statements of their duties as heads of the
departments On August 30, 1965 , in a separate meeting with each depart-
ment head, Keith and Vice President C L Ross furnished them with
statements of their duties as heads of the departments, which they signed
The department heads were notified of a 25-cent-an - hour increase in their
hourly rates at these August 30 meetings On advice of Attorney School-
field, Vice Presidents Robert Ross and C L Ross , and Keith , Wells, and
McBride undoubtedly made reference to them as assistant foremen
Production Manager Keith held meetings of the department heads every
Monday morning following the June 25 , 1965, representation hearing, and
gave them manuals containing instructions dealing with plant management
and the directing of employees I find nothing illegal in this conduct of
Respondent as the department heads are supervisors within the meaning
of Section 2(11) of the Act It very likely increased the competency of
these employees and contributed to more efficient operation by Re-
spondent
ROSS PORTA-PLANT, INC. 507
Huro how he was going to vote, and he replied that he did
not know. This testimony is also unrebutted. On August
3, 1965, Vice President Robert Ross said to employee
George W. King that he would like him to help "us" de-
feat the Union, that he hoped he would vote "No" on Au-
gust 4. King said he would help all he could.
On August 5, 1965, the day after the election, Vice
President Robert Ross assembled all the employees,
about 95, in a meeting, and addressed them. Vice Pre-
sident C. L. Ross, Production Manager Keith, and Plant
Superintendent Wells were also present. Vice President
Robert Ross said that all he wanted was to see everybody
going back to work. He also said there were to be no
further union activities going on in the plant during work-
ing hours, and if anyone was caught violating this rule he
would be penalized by a 3-day layoff. On August 9, 1965,
a Thursday, each of the department heads was handed co-
pies of written rules of conduct to guide employees in
their conduct during their employment. There were two
copies for the department head, and two copies for each
of the employees in his department. One copy was to be
signed by the employee, and returned. There were no
compiled written rules to guide employees' conduct in
connection with their employment prior to that time. The
rules contain a broad no-solicitation rule, rule 15, banning
any type of solicitation or promotion on Respondent's
premises unless special permission is received from the
plant manager. Solicitation or promotion includes the dis-
tribution of written material, but does not include per-
sonal discussion among employees on any subject during
nonworking time. This rule is broad enough to include the
no-solicitation rule announced by Robert Ross on August
5, 1965, and a ban on the distribution of union literature
and collection of union dues in nonworking areas of the
plant during nonworking time without the permission of
the plant superintendent. Otherwise, the written rules are
those which an employee would normally expect to con-
trol his moral conduct in connection with his employ-
ment, whether or not announced to him by his employer,
other rules governing his employment which were already
in effect, but which had not been reduced to writing in the
form of a complied set of rules, and rules identified as
those being placed in effect to permit Respondent to
comply with the Federal Wage and Hour Law. The last
group has to do with the time an employee must "clock"
in or out, when he may leave and return from a break, and
related matter.
C. The Discharges
1. Preliminary findings
Respondent began operating in 1958. During the
8=year period from January 1958 to December 31, 1965,
it delivered plants in each of these years in the numbers
of 103 for 1958; 204 for 1959; 155 for 1960; 138 for
1961; 109 for 1962; 122 for 1963; 153 for 1964; and 150
for 1965. It delivered three less plants in 1965 than it did
in 1964, although it opened a new plant building in April
of 1965 and had this added plant space for additional em-
ployees. In 1965, the number of employees ranged from
a low of 55 or 56 to a peak of 115. This peak number was
reached around the first of May. At the time of the
representation hearing on June 25, 1965, Respondent had
approximately 90 employees. In 1965, the number of
plants delivered each month was 5 for January, 12 for
February, 24 for March, 15 for April, 19 for May, 11 for
June, 23 for July, 13 for August, 11 for September, 10 for
October, 1 for November, and 6 for December. In 1964,
the number of plants delivered each month was 6 for
January, 8 for February, 20 for March, 11 for April, 19
for May, 14 for June, 17 for July, 21 for August, 6 for
September, 12 for October, 13 for November, and 6 for
December. Ordinarily, production demands in Respond-
ent's plant drops to a low in November. December, and
January, begins to pick up in February, reaches a peak in
the period of March, April, and May, decreases slightly
in June, increases again in July, and then tapers off to the
low in November.
While Respondent delivered three plants less in 1965
(the sales price of a plant ranges from $20,000 to
$80,000) than in 1964, and its gross receipts were less in
1965 than in 1964 in the amounts representing the sales
value of the three units, the number of employees in 1965
ran 20 percent higher than the number in 1964. Respond-
ent's month-to-month operations are geared to the sales
orders it receives.21 The Board of Directors consisting of
President Ruben Ross, Vice President Robert H. Ross,
and Vice President C. L. Ross, informs Production
Manager Keith to reduce labor costs as well as other
costs when there is a falling off in sales orders, and, as a
consequence, the estimated gross receipts figures are ad-
justed downward. Another factor that requires reduction
in labor costs as well as other factory costs is a cancella-
tion of orders either before production is started, or after
it is started or completed, and the plant is waiting
delivery, is in transit or has been delivered. Reduction in
factory costs is vitally necessary to the maintenance of a
proper balance between costs and receipts especially in
a high cost operation such as Respondent's.
Respondent also has the established policy of tem-
porarily merging a department with another when the
production needs of the department do not, on a cost ba-
sis, justify operating it as a separate department. In addi-
tion, employees are transferred to departments where
their services are needed. The department head stays
with his crew and directs them during the temporary
merger, and goes with them on a transfer unless there is
work in his department which requires his attention. As
previously stated, he is a working supervisor, and works
with his hands. For example, if there is a need for addi-
tional workers in the Parts Department or Uniplant De-
partment, and there are no orders for a 35-4, LP 60-7, or
105-7 plant, the employees in the 35-4, LP 60-7 Depart-
ment may be transferred to the Parts Department or the
Uniplant Department. The department head will go with
them, and they will work as a group unless the depart-
ment head's services are needed for something to be done
in his own department. In the fall of 1965, Long's Scales
Department in anticipation of an order for heavy scales,
accelerated its work output, and finished the work
scheduled. The order for the heavy scales did not materi-
alize, so his workers were assiged elsewhere. He
remained in his department to complete some unfinished
work. The work demands on his department had in-
creased by the first week of October, and he had two em-
ployees returned to him by the time he was discharged on
October 20, 1965.
21 As previously found, deliveries are scheduled for 30 to 60 days after
the sales order, and in some cases 90 days.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In June 1965, a two-unit plant was returned by the
purchaser to L. B. Smith Co., Albany, New York, one of
Respondent's distributors. These two units were returned
to Respondent at Brownwood, Texas, in September or
October 1965. One was still on the premises at the time
of the hearing in January 1966. Anderson Equipment
Company in June 1965, returned a unit of a two-unit
plant shipped to them. This unit was also on Respond-
ent's premises at the time of the hearing. In May or June
1965, an order for an accumulated batch plant from
Respondent's distributor in Guatamala was canceled.
Van Lott, Inc., another distributor of Respondent, can-
celed an order for a plant in May or June 1965. Produc-
tion had not been started on these units. In June 1965,
George & Associates, a distributor of Respondent in
Pennsylvania, canceled an order for a Model 160
Uniplant, with a selling price of $45,000, while it was in
transit, and only 200 miles from destination. Respondent
rerouted the unit to Chesapeake Bay and Supply Com-
pany, Washington, D.C., to fill another order scheduled
for delivery 30 days later. In May 1965, Manatt Con-
struction Company, Brooklyn, Iowa, canceled a sales
order of a plant. with a selling price of $36.000, that had
been built in April and May 1965, and was in Respond-
ent's plant year in Brownwood, Texas, awaiting delivery
to the destination named by Manatt. Respondent
delivered this plant to another customer from whom it
had a sales order. In July 1965, Olsen Equipment Com-
pany, Minneapolis, Minnesota, canceled an order for a
unit that had been completed. Respondent was waiting
for delivery instructions at the time of the cancellation.
Sometime in the period of 1965, between June and
December, Western States Machinery Company can-
celed an order for a plant when it was in production. This
unit was completed and used to fill another sales order.
On the morning of June 29, 1965, Respondent Vice
President Robert Ross held a meeting of all employees,
and informed them of the cancellations that had been
made in that month, and in May, and stated that Respond-
ent may have to terminate some employees. In the after-
noon of June 29, 1965, Vice President Robert Ross held
a meeting of the department heads in which he referred to
the cancellations, and stated again that some employees
may have to be terminated. He asked the department
heads to give some thought to selecting the ones in their
departments who could be let go. Vice President C. L.
Ross testified that his brother also referred to a dropping
off in sales orders. He also testified that in the middle of
June the Board of Directors decided to reduce costs
because of the drop in sales, and to advise Production
Manager Keith to reduce labor costs by $500 a week. C.
L. Ross testified that he so informed Keith shortly
thereafter. This is corroborated by Keith's testimony. C.
L. Ross also testified that toward the latter part of May
1965, the Board of Directors decided that Keith should
start reducing the number of personnel by laying off the
incompetent employees or deadwood. Keith cor-
roborated this testimony.
2. Termination of Jack W. Hughes
General Counsel contends that Respondent, on June
1, 1965, discriminatorily discharged Jack W. Hughes, a
welder with 3 to 4 years' experience. Hughes was
discharged about 11 a.m. on June 1, 1965. He had been
hired on May 10, 1965. He was employed in the Uniplant
Department headed by Pete Ferguson. About 10:30 a.m.
when he was in the back of the Uniplant Department lay-
ing out material, Production Manager Keith motioned to
him to come to where he was standing. He went there.
Keith asked Hughes how he liked his job. He said he
liked it, but not the wages. Keith then asked him what he
knew about the Union. He asked Keith, "What Union?"
Keith replied it was rumored someone was getting up a
union. Hughes then said that all he knew about it was that
employees were asked how they felt about a union, if they
would vote for it or against it, and why. Keith then asked
him if he circulated the union petition. He said yes. Keith
said that the circulation of the petition could be dan-
gerous. On May 21, 1965, Hughes had signed a petition
for union representation prepared by Calvin David In-
gram, and obtained 37 other signatures in it. He returned
it to Ingram about 5:15 p.m. on May 21. Respondent did
not have a no-solicitation rule.
About 11 a.m. on June 1, 1965, Plant Superintendent
Wells went to Hughes' work station, and told him to get
his tools, and come with him. Hughes asked him if he was
being let go. Wells said yes. Hughes asked if he was being
let go because of his union activity. Wells denied it was.
He said to Hughes that his work had not improved as it
should have. He brought him to Keith's office, and gave
him a termination slip to sign. The explanation on the
form for the discharge was that Hughes' work was not as
good as it should be. He told Hughes he could not have
his check unless he signed the termination form. He
signed it, but told Wells he was doing so in order to obtain
the check, and not because the explanation for the
discharge was true. He told Wells it was not the truth.
Pete Ferguson, who had signed a union authorization
card, told Hughes at the beginning of his employment,
that his vertical and horizontal welds were satisfactory,
but his overhead welds needed improvement. Ronald
Coleman, a welder with whom he worked, told him a
short time later that he was catching on fast. Ferguson
told him the same thing. Vice President Robert Ross saw
him without glasses, cutting a hole with a torch in a con-
trol box for a conduit, and told him not to do that work
without glasses. He obtained a pair of glasses from
Keith's office.22
Production Manager Keith testified that he had been
informed by the Board of Directors in the latter part of
May that sales were off, and to start reducing the number
of personnel by getting rid of the incompetent employees.
Vice President C. L. Ross corroborated his testimony.
Keith also testified he had decided the week prior to June
1, 1965, to terminate Hughes, and employees Bush and
Haak, and informed the Rosses on Friday, May 28, that
Hughes would be one of the three let go. Respondent's of-
ficials testified that Respondent did not have a policy of
giving notice of termination or layoff, but did give notice
if it was possible to do so, and laid off and terminated on
the basis of ability, and considered seniority only where
abilities of employees being considered were equal. How-
ever, when Keith spoke to Hughes shortly before Wells
notified him he was laid off, he did not mention or indicate
in any other way that he had decided to lay him off. When
22 On evaluation in context of Hughes' and Keith's testimony in regard
to Hughes' employment and discharge, I credit the testimony of
Hughes
ROSS PORTA-PLANT, INC. 509
Wells informed Hughes of the layoff, the latter asked him
ironically to thank Keith for notice of the layoff, and
Wells replied, "It's not his fault or mine, either one." 2^'
Hughes has not been reinstated or recalled.
3. The alleged layoff of all rank-and-file
employees on June 2 and 3, 1965
On June 1, 1965, there was posted on the bulletin
board on which notices to employees were posted a
notice that the plant would be closed down on June 2 and
3, 1965, for the purpose,of taking a general inventory.
The plant was closed down for these 2 days. During that
time, Barton Keeler, head of the Purchasing Department,
with the assistance of office employees took the invento-
ry. General Counsel contends that the closedown, and
the cutting off of earnings for rank-and-file employees for
June 2 and 3, 1965, were in reprisal for employees union
activity, and that Respondent's reason that the inventory
was needed in connection with a financial statement to be
given to the Citizens National Bank of Brownwood, Tex-
as, was pretextual.
General Counsel subpenaed Vice President Robert
Ross to testify in regard to this issue. He testified that
during the Memorial Day weekend there was an an-
nouncement in the Brownwood newspaper that there was
a change in ownership of the Citizens National Bank of
Brownwood, and that the Board of Directors became
concerned because Respondent's accounts receivable
were high, and Respondent had borrowed considerably
more money than its financial position indicated was ap-
propriate. The Board decided that a financial statement
should be prepared to show the current financial condi-
tion of Respondent, and that in connection with the
preparation of the statement, it was necessary that an in-
ventory be taken of equipment used in production and
maintenance, and of the plants, subassemblies, and parts
being built and in the process of construction. An inven-
tory of parts, subassemblies and other materials on hand
in the Stockroom, Shipping and Receiving Department
headed by Croft was not necessary as that department
kept a running inventory of these items. Vice President
Ross testified that the inventory was taken by Keeler and
the office pesonnel, and the financial statement was
prepared and furnished to the Bank. Ross testified that
President Drinkard of the Bank did not request the taking
of the inventory, but did request that the statement be
prepared and furnished to the Bank. This testimony is un-
rebutted. General Counsel contends that the reason for
the inventory advanced by Respondent is pretextual
because in the past a general inventory was always taken
at the end of the fiscal year which was in November, or
when the plant was closed down for vacation. He con-
tends that the plant was shut down for the inventory in
reprisal for the union activity of the rank-and-file em-
ployees.
The only evidence of union activity known to Respond-
ent was the circulation of the petition for union
23 Bush was also notified in June that he was laid off Haak was laid
off June 4. He was absent on June 1. A general inventory was taken on
June 2 and 3, 1965, and the rank-and-file employees did not work on
those days. General Counsel does not allege that Bush and Haak were
discriminatorily discharged
24 Employee Calvin David Ingram had the petition in his possession
from May 21 until June 2, when he gave it to Union International Repre-
sentative Frazier
25 Ingram testified Wells informed him of the layoff, and had the
termination form in his hand Keith testified it was he. I credit Keith
representation, identified as the "barbecue list."24 While
the decision to take the inventory was made over the
weekend, the earliest day on which the notice could be
posted that it would be taken was on June 1. Memorial
Day was on Sunday, May 30, but celebrated on Monday,
May 31. This was a nonworkday. The Union's Interna-
tional Representative Frazier held a meeting during Wed-
nesday, June 2, 1965, at the Holiday Inn in Brownwood,
which was attended by rank-and-file employees and 13
department heads. The rank-and-file employees and the
department heads signed union authorization cards at this
meeting. Another union meeting was held by Frazier on
the evening of June 3, 1965, at Flat Rock, a short
distance away. There is no evidence that any activity in-
volving Frazier occurred any earlier than June 2, and the
activity on that day occurred away from Respondent's
plant. The decision during the Memorial Day weekend to
take the inventory, and the posting of the notice of the in-
ventory on June 1, 1965, could not be due to the union
activity on June 2 and 3, 1965. No evidence was ad-
vanced by General Counsel that Respondent had ad-
vance knowledge of the plans to hold the two union
meetings. Very likely, the union meeting on June 2 during
the workday hours was not even arranged until it was
found, on the posting of the notice of the inventory on
June 1, that the rank-and-file employees would not be
working during June 2. General Counsel contends that
the inventory, if made in good faith, would have been
taken on the Memorial Day holiday of May 31, 1965.
4. The layoff of Calvin Ingram and James S. Cox on
June 29,1965
Calvin Ingram, an experienced welder with 6 to 8
years' experience, was laid off on Wednesday, June 29,
1965, about 4:15 p.m. by Production Manager Keith in
the presence of Vice President C. L. Ross and Plant Su-
perintendent Wells. Wells had come to Ingram's work
station, and said to him that Keith wished to see him.
They went to Keith's office. Keith said to him that due to
financial difficulties Respondent was having, he was
going to have to lay off some of the men, and he was one
of them. Keith said the layoff would be effective Friday,
July 2, 1965. He had a termination form in his hand, and
asked Ingram to sign it.25 Ingram refused, and asked
Keith if he was being let go "on account of the Union
business." Keith replied that he said it, not him, and In-
gram retorted that he knew "damn well that's what it's
for," and asked him why he was keeping welders who
could not weld, and letting welders go who could weld.
Apparently Keith did not reply, and he asked him if his
work was satisfactory. Keith answered that it was, and
Ingram said that since he was going to lay him off any-
way, he might as well tell him he was the one who started
the union activity. He then asked Keith if he still wanted
him to work until Friday. Keith answered no, that he
would have his check ready for him in 5 minutes, and for
him to check his tools into the supply room.26
26 Wendel Ingram, the brother of Calvin, Wayne Turner, and James
Shelby Cox were also notified on June 29, 1965, they were being laid
off because of financial difficulties Respondent was experiencing. General
Counsel only alleges the layoffs of Calvin Ingram and James Cox to be
discriminatory discharges The record does not disclose the circum-
stances of the layoffs of Wendel Ingram and Wayne Turner on Tuesday,
June 29, or of their election to leave on June 29 instead of working until
Friday, July 2. According to Keith, Calvin said on June 29 that he would
take his check then, after he told him he could work until July 2 I have
credited Ingram's testimony.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Calvin Ingram began work on May 17, 1965. When
Wells looked at the preemployment test in welding which
he gave to Ingram, he said to him that it was the best he
had seen for a long time. Wells informed Keith of the
results of the test, and Keith said to Ingram he would like
him to work for them. Ingram asked him how permanent
the job would be, and Keith answered that Respondent
had a slack period during the winter months, but enough
men quit so a layoff was not necessary. Keith then added
that in case of a layoff, from the looks of his work and ex-
perience, he should not have anything to worry about,
because seniority did not mean anything there, that it was
always the best workers they kept. Ingram accepted the
job of welder, and was assigned to the Parts Department
under Ruben H. Packer.
On June 25, 1965, which was the Friday before the
Tuesday on which he was laid off, Calvin, along with his
brother Wendel and James Cox, attended some of the
representation hearing which was being held that day in
the courthouse in Brownwood, Texas. The three of them
lived in Cisco, Texas, and commuted together daily to
and from Respondent's plant in Brownwood, Texas.
When the work day ended at 5 p.m. on June 25, they
stopped by the hearing instead of driving direct to Cisco,
after having coffee at the restaurant across the street from
the plant. It was 5:15 to 5:30, when they arrived at the
hearing. I credit Ingram's testimony that at the conclu-
sion of the representation hearing of June 25, 1966, he
and his brother, employee Wendel Ingram, shook hands
with Union International Representatives D. A. Braze]
and W. H. Frazier , in the small hearing room of the
courthouse in Brownwood, Texas, where the hearing
took place , and in which Vice Presidents Robert Ross
and C. L. Ross, Production Manager Keith, and Plant Su-
perintendent Wells were present when the hand shaking
took place.
On May 21, 1965, Calvin Ingram prepared the petition
for union representation, identified as a "barbecue list"
to conceal its true identity, signed it, and gave it to em-
ployee Vergil Haak, who signed it and secured 8 other
signatures on it. Haak returned it to Ingram about 10 a.m.
Ingram then gave it to employee Jack Hughes. Hughes
returned it to Ingram about 5:10 or 5:15 that afternoon
with 40 or 45 signatures on it . On May 22, 1965, Ingram
placed it under the blotter on the desk of Ruben Packer,
the department head. Six to eight other employees signed
it when it was under the blotter. Ingram gave the list to
Union International Representative Frazier on June 2,
1965.227 On June 2, 1965, Ingram attended an unofficial
meeting of the Union in International Representative
Frazier's room at the Holiday Inn Motel, and a meeting
on June 3, 1965, at Flat Rock, Texas, called by Frazier.
The latter meeting lasted approximately 1-1/2 hours. In-
gram signed a union card on June 6, 1965.
Ruben Packer, who headed the Parts Department to
which Ingram was assigned during the period of his em-
ployment from May 17 to June 29, 1965, told him during
this period that he wished he had more men who could
just take a job and do it, without having to be told about
it, and on several occasions told him that Production
Manager Keith said he did a fine job. Packer testified that
both Keith and Wells praised Ingram's work, and that In-
gram did fine work on light gauge steel. On June 29,
Wells asked Packer to permit Ingram to help Ben Gilbert
of the Machine Shop Department to run a weld on a con-
trol box for a conduit. Wells said to Packer at the time
that Ingram did fine work. Later that day Packer was in-
formed by Ingram that he was being let go. Packer was
not consulted prior to notice of the layoff which Ingram
received. Packer had testified in the representation hear-
ing on June 25,1965, on behalf of the petitioner Union.
James Shelby Cox, a welder with 7 years' experience,
was also laid off on Tuesday, June 29, 1965, effective
Friday, July 2, 1965. He was informed by Keith on June
29 that he was going to have to lay him off on Friday. Cox
refused to sign a form entitled "Termination of Employ-
ment" handed him by Keith. The reason for "termina-
tion" typed in on the form was, "Reduction in
forces - No expectation of future recall. Termination to
take effect 7-2--65." Cox said he did not sign because of
the statement, "No expectation of future recall."
Cox is the James Shelby Cox who accompanied Calvin
and Wendel Ingram to the representation hearing at the
courthouse in Brownwood, Texas, on June 25, 1965,
after 5:15 to 5:30 p.m. when they had finished their daily
employment at Respondent's plant. Cox shook hands
with Union International Representative Frazier after the
hearing was over, and when Vice Presidents Robert and
C. L. Ross, and Keith and Wells were present in the hear-
ing room.
Cox was hired in April 1965. He was assigned to the
35-4, LP 60-7 Department, headed by Donald Cox.
Assistant Plant Superintendent McBride came to Cox's
work station at the end of the workday on June 29, and
took him to Keith's office. When Cox returned, he told
Donald Cox he was laid off. Donald Cox told McBride he
should not lay off Cox as he was a good welder, and a real
good hand. McBride did not answer. Donald Cox
testified that at the time Cox was laid off, Cox, Blackmon,
and Millhollon were his top welders, and that Coy Brooke
and James Land, two of his other welders at the time,
were not good welders. He had complained to McBride
and Wells about the poor quality of their work, and they
had said to use them inside of the plants where their welds
would not show.
About 10:30 am. on July 2, 1965, McBride came to
where Cox was working, and said that it was going to hurt
his department to lose him. Cox replied that he was not
that important, and McBride said that he knew what was
going on .28 About 11:30 a.m., McBride told Cox to check
in his tools. He did, and McBride and he went to Keith's
office. Keith told him that they were going to pay him
through 5 p.m., and let him go early. When he left, shortly
afterwards, there were wives of other employees and a
barbecue truck in front of the plant building. A barbecue
was being held that day.
Cox signed the petition for a union , the "barbecue list,"
and signed a union authorization card, and passed out 15
to 20 of them at the June 2 and 3 meetings. He obtained
signatures on 15 cards between June 3 and 7. He col-
lected a signed card on Respondent's property from Dal-
ton Ferguson, head of the Uniplant Department.
Keith testified he let Cox go because he was not as
good as welders who were retained, and lived 50 miles
away in Cisco, and commuted daily with Calvin David
Ingram and Wendel Ingram . Cox has never been rein-
stated or recalled by Respondent.
"Upon evaluation of relevant demeanor and oral testimony, I do not
credit Keith's testimony that Hughes admitted to him on June I, he was
soliciting signatures on the "barbecue list" on June I
'"This is Cox's testimony. McBride denied it On demeanor, I credit
Cox. McBride admitted that on the day Cox was laid off he told him
he hated to see him go because he was a good worker
ROSS PORTA-PLANT, INC.
5. The discharge of Gary Wayne Carriger
Gary Wayne Carriger was discharged after 5 p.m. on
August 12, 1965 . Carriger began working for Respondent
on February 25, 1965, as a helper in the Finish-Up De-
partment No . 2 under Pete Dabney.
About 5:05 p.m. on August 12, Plant Superintendent
Wells informed him that Keith wished to see him. He
went to Keith's office, and Pete Dabney, his department
head , came into the office shortly afterwards . Wells was
also present . Keith showed Carriger four or five photo-
graphs of writings on silos, and said to him that they had
definite proof that he wrote the writings on the silos. He
denied he wrote any of the writings . Keith said he had had
his handwriting examined . Carriger then picked out one
photograph , and said " I wrote this one." This photograph
showed the writing "Vote Yes" on a silo top or cover.
Keith thereupon said that he had to take disciplinary ac-
tion , and lay him off for 3 days.29 Carriger said that he
could not be laid off for 3 days, that his wife was expect-
ing. Keith said he had to lay him off. Dabney asked Keith
if the layoff was not "pretty stiff punishment for such a
small act?" Keith replied he had to go along with Robert
Ross's disciplinary action . Carriger then said "he'd be
back in the morning to pick up his check."
Dabney visited Carriger at his home that evening, and
asked him if he would take the 3 -day suspension if Keith
and Wells would put him back to work . Carriger said he
would . Dabney asked Keith and Wells the next morning,
August 13 , if they would put Carriger back to work after
the 3-day suspension . He told them Carriger agreed to go
back to work . They said they would have to ask the
Rosses, that they were in doubt. When Carriger reported
to Keith 's office at 9 a.m. on August 13, he asked him if
they had decided whether he could come back after the 3
days. Keith said yes, that he could pick up his check. Car-
tiger has not been reinstated or recalled.
Carriger testified that on August 1, 1965, during his
lunch hour he wrote with soapstone the "Vote Yes" on
the top to a cement silo in 8-inch letters. Employee Luster
testified that he saw the words "Vote, No" painted on the
side of a tractor that was driven around the plant area be-
fore the election . Luster, also testified that he wrote in
12-inch letters "Vote Yes" on a silo 3 days before the
election . Employee John Newby testified he saw Luster
writing "Vote Yes" on the silo, and saw President Ruben
Ross photograph what Luster wrote on the silo a day or
two before the election.
It is undisputed that Carriger signed a termination form
when he picked up his check on August 13. The form he
identified as the one he signed is dated August 5, 1965. It
is stated therein that the last day worked was August 5,
and that the reason for the discharge was:
Resigned in lieu of acceptance of 3-day layoff for
transgression of Rules (entering pro-union informa-
tion on Company Property).
Production Manager Keith signed the form in the space
provided for his signature, and Carriger signed it below
the written certification that the reason given was a true
statement of the reason for his termination. I have found,
supra that Harvey Hamlett, head of the Machine Shop
Department, asked Carriger on or about June 16, 1965,
" As found supra, Vice President Robert Ross announced to the
employees in a meeting on August 5 that there was to be no union
511
to sign an antiunion petition. Carriger refused to sign it.
Carriger signed a union authorization card on June 2,
1965, and attended union meetings on July 22 and 29,
1965.
6. The discharge of Frank Long
Frank Long, who headed the Scales Department, was
discharged on October 20, 1965.
Long was first employed on February 4, 1959. Two or
three years later, Respondent set up a Scales Depart-
ment, and Long was placed in charge. Barton Keeler ad-
vised him of the assignment, and told him that they
wanted the best welder in charge. Long's department
made the scales for the small batch plants; the larger
units, that is the Models 35-4, LP 60-7, and LP 105; the
Uniplants, and the silos, and built the heavy duty scales
described supra, Building lever type systems and calibrat
ing weights, as well as the doing of other assignments in
scale building, are exacting and precision work. The jour-
neyman must not only have ability as a welder, but also
in all the facets of fabrication. Long was the
acknowledged expert in scale building. The scales were
designed in the Engineering Department under Isom, and
Long and his crew built them. Vice President Robert
Ross was highly satisfied with the Scales Department,
and what it was doing under Long. On one occasion,
Robert Ross almost exultingly said to Long that he and
Long were in the scale business. Respondent was the
only company in Texas building heavy duty scales. The
Rosses, Keith and Wells were satisfied to rely on his
judgement in connection with problems arising in the con-
struction, cleaning and overhauling of the scales. On one
occasion, when Long departed from the blue prints in the
building of a weigh bin, Wells endorsed the variance
because Long was of the opinion it was permissible.
Assistant Plant Superintendent McBride was trained by
Long in the building of scales, their cleaning, and over-
haul. So was Charles Kizer, an employee highly regarded
by Respondent.
I have found that Long and the other department heads
responsibly directed the employees in their respective de-
partments, and effectively recommended wage increases,
terminations, and transfers, and were supervisors within
the meaning of the Act. Long's testimony of his duties,
and the direction of employees, especially on cross-ex-
amination, supports this finding. Long was subpenaed by
petitioner Union to testify at the June 25 representation
hearing, although he did not testify. After the hearing,
when he was talking to International Representative Fra-
zier, the latter interrupted their conversation to shake
hands with Vice President C. L. Ross. A short time later
he and Ruben Packer again talked to C. L. Ross. Long
said to Ross that he wanted him to know he was for the
Union all the way, and wanted to tell him so, before
someone else did. Packer said that it was the same with
him. Ross replied that he knew they were, and ap-
preciated their being honest with them. He also said,
"We're going to do everything we can to beat the Union,
even if it means selling the plant." Long signed a union
authorization card on June 2, 1965, met with Interna-
tional Representative Frazier on June 2, and attended the
June 3 meeting of the Union at Flat Rock. He joined the
Union after he was discharged.
activity during working hours, and that a breach of this ban on such
activity would result in a 3-day layoff
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As stated supra, Harvey Hamlett, Machine Shop De-
partment head, solicited signatures on a petition against
union representation, a day or so after Vice President
Robert Ross spoke on June 7 to the employees about the
union organizational activity. At the time of the solicita-
tion, Robert Ross asked Long if he had signed this peti-
tion, and for him to remember who was paying him.
Although Long received a 20-cent-an-hour increase on
August 30,30 Robert Ross was unfriendly to Long follow-
ing the June 25 hearing. On one occasion, he told Donald
Cox, head of the 35-4, LP 60-7 Department, to avoid as-
sociating with Long because of the latter's union activity.
Robert Ross called a meeting of employees on August 5,
the day following the election, to announce the Board's
telegraphic order granting a review of the Regional
Director's decision of July 14, and staying the election.
Ross said that they did not understand what the order
meant. He then said that Frank Long was so smart, that
maybe he could tell them. When Long saw the order the
previous evening, he told employee Kizer it was a delay-
ing tactic. Kizer told employees Jackson and Morris what
Long said, and they told Vice President C. L. Ross.
Robert Ross, C. L. Ross, Keith, and Wells met with the
department heads later on August 5. Robert Ross said to
them that the union activity had caused poor production
and sloppy work. Long stood up and said he did not be-
lieve it did. One of the Rosses said it did, but the other
Ross told him to restrain himself, that they did not want
any personal feelings involved in the matter.
Ross and Long had a number of differences between
August 5 and October 20, from which it was apparent
that Long irritated Ross. Ross told him on one occasion
to keep his mouth closed, that he was causing trouble in
the plant. On another occasion, Ross told him he had
better straighten up his attitude or get out, and Long
replied, "Mr. Ross, your attitude toward me could
straighten up also." Following this exchange between him
and Robert Ross, Keith called him into his office, and told
him that he had been insubordinate, and while he could
discharge him or fine him 3 days, he would just write it
up, and put it in his file. He asked him not to be insubor-
dinate anymore. Long said Keith was his boss, and he
would do as he instructed him.
During this period, Long "clocked out" a number of
times before the end of the workday, which was at 5 p.m.
He always had permission. On one occasion, Keith asked
him if he was going to attend a union meeting. Long
adopted the practice of making frequent trips to the drink-
ing fountain and the restroom, the stockroom, and other
departments. Long testified he visited other departments
to see how the work on the plants was progressing so he
would know when his department had to have the scales
completed for installation. He said the Engineering De-
partment could change the design of the lever systems,
and he did not want to go ahead until he had to, if there
was that possibility.
Joe Cervenka, head of the Electrical Department,
resigned his position on July 9, 1965, and later Respond-
ent4iiredRay Manning. It was rumored in the plant that
he was hired at $3 per hour. The department heads
received $2.50 per hour. The two journeymen electri-
cians received $2.25. On the evening of October 19,
1965, which was payday, Long, Manning, and Salas had
coffee in the restaurant across from the plant. Long
testified Manning showed them his paycheck, and the slip
showing the regular and overtime work. He received $3
per hour. The next morning Long informed Larry
Jackson, head of the Automatic Controls Department,
and Wendel Morris, that Manning was receiving $3 per
hour. Shortly afterwards, Long saw them in Vice Pres-
ident C. L. Ross' office talking to him. Later in the morn-
ing, Wells accused Long of spreading a rumor Manning
was getting $ 3 per hour. Long denied spreading such a ru-
mor. About 4:30 p.m., C. L. Ross and Keith told him Bob
Ross wished to see him. They went with him to Bob
Ross' office. The latter said "hello Frank, I hate to have to
do this", and Keith handed him a termination form. It was
stated therein that he was discharged for not doing his job
as assistant foreman, poor attitude, and quality of his
work was poor. He was terminated effective October 20,
1965. Keith drove Long to his home in his automobile.
On September 8, 1965, Hugh Smith, of counsel for
Respondent, met with Long in Robert Ross' office. After
they were introduced by Robert Ross, Smith said to Long
he understood he gave a statement to the Board, and
Long answered that he had. Smith said he would ask him
some question, and he, Long, would decide if he would
answer, and what answer to give, and if he decided not to
answer, his decision would not be held against him. He
also asked if Long would sign a letter to the Board in
which would be a request for a copy of Long's statement.
Long said he would think about it. That evening he met
with Board Agent Sharon Stubbs to whom he gave a
statemen The next morning he met again with Smith.
Smith asked him a question about an alleged incident.
Long asked him if what he said the day before about Long
being the one to decide whether he would answer his
questions, was still good, and Smith said yes. Long then
said that he would not say anything and left. On the after-
noon of September 9, C. L. Ross called him into his of-
fice, and handed him a letter prepared for his signature in
which a request was made for a copy of his statement. He
told C. L. Ross he had told him he would not give him a
copy of his statement, and Ross said he thought he might
have changed his mind. Long answered that he had a lot
of respect for him, but did not intend to help his lawyer do
his job.
7. The discharge of Department Heads Fred Bates,
Donald J. Cox, Earl H. Dabney, Billy L. Hobbs, Doyle H.
Ward, and Billy Ray Weatherman
It is undisputed that at the weekly Monday morning
meeting of the department hheads on November 1, 1965,
Production Manager Keith advised them to disregard
material of the Union sent through the mail, and not to at-
tend the meeting of the Union scheduled for Tuesday,
November 2, 1965. Department Heads Pete Dabney,
Billy Hobbs, Reggie Wells, Clyde Adams, Harvey Ham-
lett, Donald Cox, Fred Bates, Tom Huddleston, and Billy
Ray Weatherman were present. President Ruben Ross,
Vice President Robert Ross, and Assistant Plant Su-
perintendent McBride were also present. Company busi-
ness was discussed during the remainder of the meeting.
Bates, Cox, Dabney, Hobbs, Ward, and Weatherman
attended the meeting of the Union at the Browntowner
Motor Inn, Brownwood, Texas, on November 2, 1965,
beginning at 8 p.m. There were a total of 26 employees of
Long was receiving $2.30 So his raise to $2 50 meant only a 20-cent
increase
ROSS PORTA-PLANT, INC. 513
Respondent present. Twenty-five paid dues, and officers
were elected. Doyle Ward was elected a member of the
Bargaining Committee, and Wayne Cornelius was elected
secretary of that Committee. On November 3, 1965, in
the morning, Wells asked Bates, Cox, Dabney, Hobbs,
Ward, and Weatherman to go to Keith's office. They did,
and waited in the outer office. Each was called separately
into the inner office. Production Manager Keith,
Assistant Plant Superintendent McBride, Vice President
Robert Ross, and Plant Superintendent Wells were
present. Keith asked each of them if he was at the union
meeting. Each admitted he was. Keith then told each of
them he was discharged. Dabney said the Board held they
were not foremen. Ross said the paper they signed on Au-
gust 30 changed all that. Keith then said to Dabney that
two different outfits were not going to run the place. Ross
said to each of them he could not be both a dog and a cat.
Ross and Keith told each of them that he was a good
hand, and they hated to see them go. Keith told each of
them that his check would be ready at 1 o'clock. They
picked up their checks about 1:30 p.m. at Robert Ross'
office in the administration office at the top of the hill.
On September 8, 1965, Hugh Smith, of counsel for
Respondent, asked Hobbs and Donald Cox if they had
given statements to the Board which they signed. They
admitted that they did. Dabney was asked by Smith on
September 9 if he gave a statement to a man from the
Board. He said he did not. He admitted on the stand that
he did give a statement to a Board representative, but the
representative was Sharon Stubbs, a lady. Smith asked
Hobbs and Cox if they would sign a letter to the Board in
which a copy of the statement was requested. They said
they would. Hobbs was never asked to sign a letter. Cox
was asked to sign such a letter on September 9 by Vice
President C. L. Ross. He declined, and Ross said, okay.
When Smith interviewed Dabney, Hobbs, and Cox, he
said that they did not have to answer any questions he
asked them, that they should decide whether to answer or
to keep silent.
At the time of the hearing, Truman C. Millhollon was
in charge of Shear and Break, Wayne Cornelius of Con-
veyor Roller, Bobby J. Blackmon of Small Batch Plants,
Gilbert of Scales, Reggie Wells of 35-4 and LP 60-7,
Thomas Huddleston of Parts, and Ronald Coleman of
Conveyor. The record does not show whether Ray
Manning was placed in charge of the Electrical Depart-
ment to replace Joe Cervenka, who left on July 9, 1965,
even though he was paid $3 per hour. Nor does the record
show who succeeded Dabney as head of the Finish-Up
Department. Newby was the leadman in that department.
There was no replacement for Billy Hobbs as Quality
Control Engineer. McBride took over this work. On June
25, 1965, Doyle Ward was in charge of Shear and Break,
Weatherman of Conveyor Roller, Reggie Wells of Small
Batch Plants, Long of Scales, Donald Cox of 35-4 and LP
60-7, Packer of Parts, Bates of Conveyor, and Dabney of
Finish-Up No. 2. This last department was merged with
Finish-Up No.1 under Dabney on August 20, 1966,
when Hobbs was placed in charge of Quality Control.
Ward, Weatherman, Cox, Bates, and Dabney were in
charge of the departments they headed on June 25 when
they were discharged on November 3, 1965. Hobbs was
in charge of Quality Control.
8. The layoff of George W. King, Bud Strickland,
Marion O'Dell Norman and Gary Brown on
November 12, 1965
It is undisputed that Respondent laid off George W.
King, Bud Strickland, Marion O'Dell Norman, and Gary
Brown on November 12, 1965. Respondent informed
them they were laid off for economic reasons, and con-
tends that this was the true reason for the layoff. General
Counsel contends that King, Strickland, and Norman
were discriminatorily selected for layoff, and that Gary
Brown, while not discriminatorily selected for layoff, was
denied reinstatement earlier than January 4, 1966, for
discriminatory reasons. King, Strickland, Brown, and
Norman were offered reinstatement on December 22,
1965, and except Strickland, returned to their jobs on
January 4, 1966. Strickland did not respond to the offer
of reinstatement. King, Strickland, and Brown are wel-
ders, and Norman is a helper.
At the time of the layoff, Brown was in the Parts De-
partment under Thomas Huddleston. King, Strickland,
and Norman were in the merged Uniplant and the 35-4,
LP 60-7 Departments, under the direction of Pete Fer-
guson. Ferguson had been in charge of the Uniplant De-
partment for sometime. Donald Cox had been in charge
of the 3 5-4, LP 60-7 Department. Cox was discharged on
November 3, 1965, for attending a meeting of the Union
on November 3, 1965. About November 29, 1965, the
two departments were again operated separately. Fer-
guson retained his position as head of Uniplant. Reggie
Wells was placed in charge of the 35-4, LP 60-7 Depart-
ment.
It is undisputed that King, Strickland, and Norman
were skilled and able workers at the time of the layoff.
Assistant Plant Superintendent McBride, under whom
the merged Uniplant and 35-4, LP 60-7 Departments
operated, made this clear in his praise of them when they
were terminated. When the layoff occurred, there were in
the merged departments, in addition to Pete Ferguson,
King, Strickland, and Norman, employees Bill Crim,
Eddie Reigle, Norman Cox, Bobbie Blackmon, and Tru-
man Millhollon. King and Strickland and Millhollon had
the lowest seniority. Ronnald Coleman had been trans-
ferred to the Conveyor Department on November 10,
1965. However, he had more seniority than the three laid
off.
Pete Ferguson, Crim, King, Strickland, Reigle, Cox,
Norman, and Millhollon had signed union authorization
cards sometime in early June 1965. The evidence does
not disclose that Bobbie Backman signed an authoriza-
tion card. So eight of the nine in the merged departments
were allied with the Union. Blackmon, according to
Donald Cox's testimony, had been his leadman. As stated
above, Ferguson was the head of the merged depart-
ments. The two latter employees obviously would be the
last to go on any king of a layoff. They had seniority, skill,
and experience. Blackmon was later placed in charge of
the Small Batch Department. Millhollon, who had signed
a union authorization card, was to become head of the
Shear and Break Department.
The evidence shows that the lowest production month
is November, and that layoffs always occur at that time.
McBride's testimony and the testimony of General Coun-
sel's witnesses show that there was little work in the
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merged departments during the first 2 weeks of
November. Two Uniplants, a Model 100 and a Model
160, to be completed by January 15, 1966, for display by
Respondent in Chicago, were started on November 9.
This was the only work until the middle of November.
According to McBride, the crew in the merged depart-
ments prior to November 12 should have been working
on four units instead of two. Three orders came in on
November 15, but there is no evidence that these orders
were in the sales department , and were deliberately held
there until after the layoff.
General Counsel relies on the evidence that King, Nor-
man Cox, Strickland , Crim, and Reigle told McBride on
November 3 that they had attended the meeting of the
Union on November 3. However, General Counsel does
not explain how Norman Cox, Crim, and Reigle retained
their jobs if Strickland, Norman, and King were laid off
because they attended the meeting of the Union. Nor
does he explain why these six employees made the disclo-
sure to McBride, or assumed that Respondent would be
so naive to fall for what might be a trap. Nor does he ex-
plain the appointment of Wayne Cornelius to head the
Conveyor Roller and Small Batch Plant Departments in
November 1965. He had been elected secretary of the
Union 's bargaining committee at the meeting on
November 2, 1965. The appointment was after the meet-
ing of the Union.31 Counsel for General Counsel also
contends the discrimination is clear because all those laid
off except Brown were in one department , and, therefore,
the layoff was not plantwide but limited to a department.
There is no evidence that the low level in business on
November 12 was elsewhere than in the merged Uniplant
and 35-4, LP 60-7 Departments. It is to be noted that
Gary Brown who was also laid off on November 12 was
in the Parts Department . And Millhollon, a signer of a
union authorization card, was in a few days to become
head of the Break and Shear Department . Counsel for
General Counsel argued that John Newby, who began
working part time in the merged departments on
November 12, was not laid off although all he had was
the highest seniority . Skill and not seniority was the stan-
dard for retaining an employee at the time of a layoff.
However , Newby had been a leadman under Billy
Hobbs in the Finish-Up No. 1 Department, and had been
receiving $2.25 an hour , the same as Hobbs, until the de-
partment heads were raised to $2.50 on August 30, effec-
tive September 5. This evidence shows that Newby had
skill as well as seniority . He signed a union card , and told
Wells on November 3, 1965, he was a member of the
Union.
I credit the testimony of C. L. Ross that five workers
without prior employment history were hired before wel-
ders King, Strickland, and Gary Brown were offered rein-
statement because they were hired to learn and operate
the semiautomatic welding machines that Respondent has
installed. Another worker without prior employment his-
tory was also hired . But he is a steel stockman , and his
classification was needed. None of the employees laid off
were of this classification. I credit C. L. Ross' testimony
that Respondent had made a study which disclosed that
persons with no welding experience make better opera-
tors of the semiautomatic welding machines , than welders
who have welded under the old welding methods. The
latter are accustomed to taking "breaks," and have dif-
ficulty in operating the machines without the "breaks,"
with the result they do not have the smooth weld or the
output of the operator who has had no experience with
frequent taking of breaks. Breaks are few and far between
with the semiautomatic machines . I also credit the
testimony of C. L. Ross that Respondent did not have the
policy of recalling laid off workers. He testified , however,
that they would be given consideration if they came to the
plant, and made known their availability for employment.
D. Alleged Refusal to Bargain
As stated supra, section III, A, the Regional Director,
on October 15, 1965 (16-RC-3949), certified the Union
as the collective-bargaining representative of a unit of
Respondent 's employees comprised of employees en-
gaged in production and maintenance including draft-
smen , shipping and parts employees , and excluding field
servicemen, over-the-road drivers, office clerical and all
other employees , watchmen , guards, and supervisors as
defined in the Act. On July 14, 1965, as stated supra, the
Regional Director in regard to the highly disputed issue
of the status of Respondent's department heads, whether
supervisors or rank-and-file employees, ruled that they
were rank-and-file employees. On August 4, 1965, the
Board granted Respondent's request for review, and
stayed the direction of election issued by the Regional
Director. However, the Board's telegraphic order
reached the Regional Director and the parties in the
representation proceeding after the election had been
held on August 4, 1965. The election was held although
Section 102.67 (b) of the Board's Rules provides that
"the regional director, in the absence of a waiver, may
issue a notice of election but shall not conduct any elec-
tion or open and count any challenged ballots until the
Board has ruled upon any request for review which may
be filed." I assume that when the Board on October 6,
1965, affirmed the Regional Director's decision of July
14, 1965, it had knowledge that the Regional Director
conducted the election although Respondent had filed a
timely request for review , and it was under consideration
by the Board.
It is undisputed that the Union, on October 23, 25, and
29, and November 3 and December 3, 1965, requested
Respondent to bargain in regard to the rates of pay,
wages, hours of employment, or other conditions of em-
ployment , and Respondent has refused to bargain as
requested . It is undisputed that Respondent contends the
Regional Director, affirmed by the Board, erred in hold-
ing that Respondent's department heads were
rank-and-file employees, included them in the appropriate
unit as rank-and-file employees, and permitted them to
vote in the August 4, 1965, election. Respondent con-
tends, and has contended , that this action of the Board
resulted in the Union receiving a majority of votes cast on
August 4, 1965, but that if the Board excluded the depart-
ment heads from the appropriate unit, which it alleges it
should have done, the Union would not have received a
majority of the votes cast. General Counsel contends that
Respondent ' s refusal to bargain as requested violates
Section 8(a)(5) and (1) of the Act.
It is also undisputed that on October 25, 1965, the
Union requested Respondent to furnish it with a seniority
list, the wage rates, and job classifications for the
31 Cornelius had had experience in the Small Batch Plants, Scales,
Conveyor, and Conveyor Roller Departments
ROSS PORTA-PLANT, INC.
employees in the appropriate unit, for the Union's use in
bargaining on behalf of these employees, pursuant to the
Regional Director's certification of October 15, 1965.
Respondent has refused to furnish the data requested for
the same reason, stated above, that it has refused to bar-
gain in accordance with the Union's other requests to
bargain. General Counsel claims that his refusal by Re-
spondent also violates Section 8(a)(5) and (1) of the Act.
In addition to the layoff on November 12, 1965, al-
legedly for economic reasons, Respondent laid off four
employees on August 6, three on August 13, and eight on
August 20, 1965. Respondent also claims that the layoffs
were for economic reasons. While General Counsel does
not contend the layoffs were discriminatory, or the em-
ployees laid off were discriminatorily selected, he does
contend that the Union should have been notified in ad-
vance of the layoffs, and afforded an opportunity before
each occurred to discuss them with Respondent. The
General Counsel contends that the failure to notify and
afford an opportunity to discuss the August 6, 13, and 20
layoffs as well as the November 12, 1965, layoff violate
Section 8(a)(5) and (1) of the Act.
I have found that Respondent issued written rules of
conduct on August 9, 1965, and required each employee
to sign a copy to be returned to Respondent. I have also
found that these rules were comprised of rules governing
moral conduct during employment, special rules in effect
but never collected in a compiled set of written rules, and
new rules governing the times for reporting to the job,
leaving the job, taking breaks, lunch periods, and related
matter, which the Respondent in the written rules
identified as being necessary to compliance with the
Federal Wage and Hour Law.
Rule 15, in the set of written rules issued on August 9,
as I have found, is a broad no-solicitation rule. It states
that absent permission from the plant superintendent,
there cart be no solicitation or promotion in the plant, in-
cluding gathering sums of money, subscriptions, dues,
and distribution of literature, with the proviso that the
rule does not apply to oral communication between em-
ployees on nonworking time.
General Counsel contends that Respondent violated
Section 8(a)(5) and (1) of the Act, by not notifying the
Union in advance of the issuance of the rules, and afford-
ing the Union an opportunity to discuss them in advance
of the issuance, and by requiring each employee to sign a
copy which would be returned to Respondent.
E. Analysis and Concluding Findings
On the foregoing evidentiary findings, I make the anal-
ysis and concluding findings stated in the following
paragraphs.32
1. Violations of Section 8(a)(1)
Respondent violated Section 8(a)(1) of the Act by
Production Manager Keith's interrogation of employee
Jack Hughes on June 1, 1965, about the Union; President
Ruben Ross' statement about a week before the August
4 election to employee Bud Strickland promising him and
the other employees benefits if the Union did not win the
August 4, 1965, election; Vice President Robert Ross'
interrogation of employee Joe Huro on August 3, 1965,
32 The findings herein are made on the evidence evaluated in context,
and upon resolutions of conflicts after consideration of relevant de-
meanor, oral and documentary evidence.
515
concerning how he was going to vote in the election, and
his admonition that union representation would not
benefit the employees as they had no experience in being
represented by a union, the employees and not the Union
would decide when to strike, and Respondent would be
the one to decide if it wished to enter into a collective-bar-
gaining contract with the Union; and Vice President
Robert Ross' statement to George King on August 3,
1965, the day before the election, that he would like King
to help "them" and vote "No" in the election on the next
day, August 4.
Respondent also violated Section 8(a)(1) of the Act on
August 9, 1965, by issuing a written set of rules of con-
duct, and requiring a copy to be signed by each employee
and returned to Respondent. The union activity of the
employees had apparently resulted in a victory for union
representation in the August 4, election. Then the Board
by telegraphic order on August 4, which did not reach the
Regional Director and the parties until after the polls
were closed, agreed to review the Regional Director's
decision of July 14, 1965, the Respondent's department
heads were rank-and-file employees, and stayed the elec-
tion. The employees were informed of the Board's tele-
graphic order on the morning of August 5. In the midst of
their realization that their efforts to have union represen-
tation might fail after all, they were presented with a writ-
ten set of rules, and required to acknowledge that they
had read them by signing a copy.33 Moreover, rule 15 of
the written rules is an illegal no-solicitation rule, and by
itself is violative of Section 8(a)(1) of the Act, since it
bans the distribution of union literature or the collection
of union dues in nonworking areas of the plant during the
employees nonworking time without the permission of
the plant superintendent. 34
I do not find Vice President Ross' speech to the assem-
bled employees on June 7, 1965, to be violative of Sec-
tion 8(a)(1) of the Act. Ross did not threaten employees
or promise them benefit, and merely expressed his
opinion about economic conditions over which Respond-
ent had no control that would result from the employees
being represented by a union. Nor do I find violative of
Section 8(a)(1) of the Act the remark of Vice President C.
L. Ross following his brother Robert's speech that he did
not believe that Respondent could survive with a union
representing the employees. Here again was an expres-
sion of opinion as to what would happen to Respondent
from economic conditions resulting from union represen-
tation of employees over which Respondent had no con-
trol. Both the speech of Robert Ross and the comment of
C. L. Ross are protected by the proviso to Section 8(a)(1)
of the Act. There is nothing in the evidence of what was
said in the speech of Robert Ross to the assembled em-
ployees on July 15, 1965, to warrant a finding that he
threatened or promised benefits. Therefore, I do not find
this speech violative of the Act.
I do not find violative of the Act the meetings of depart-
ment heads held by Respondent on June 15, and
November 1, 1965, or what was said to them by Respond-
ent's representatives in these meetings. The department
heads were supervisors within the meaning of Section
2(11) of the Act prior to the initiation of union activity,
and prior to these meetings. So the "beefing-up" of their
supervisory status on June 15, did not bring into being
their supervisory status to defeat union organizational ac-
33 Southland Paint Company, Inc., 157 NLRB 795.
The Singer Company, Wood Products Division, 153 NLRB 922;
Stoddard-Quirk Manufacturing Co, 138 NLRB 615.
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tivity. Production Manager Keith had a right to tell the
department heads on November I not to attend the meet-
ing of the Union scheduled for the evening of November
2, as they were supervisors
There is nothing violative of Section 8(a)(1) in the ac-
tion of Respondent on August 30, 1965, of increasing the
hourly wage rate of the department heads, to be effective
September 5, 1965, since they were supervisors, and for
the same reason there is nothing violative of Section
8(a)(I) of the Act in Respondent 's action of June 30, and
August 30, 1965, of distributing to the department heads
written statements of their duties , and on August 30 hav-
ing them sign a copy of the statement handed them.
2 Violations of Section 8(a)(3)
I find that Respondent discriminatorily discharged em-
ployees Jack Hughes, Calvin David Ingram, James Cox,
and Gary W. Carriger , to discourage membership in the
Union in violation of Section 8(a)(3) and (1) of the Act.
Hughes' discharge followed Production Manager Keith's
interrogation of him regarding his interest in the Union,
and his solicitation of signatures on a petition for union
representation . He said nothing to Hughes whatever
when he interrogated him about laying him off , or about
the quality of his work He had been employed only 3
weeks, and the evidence discloses that the quality of his
work improved during this brief employment His im-
mediate supervisor , Pete Ferguson , and Ronald
Coleman, the welder he worked with, were pleased with
his work . Ferguson pointed out to him one of the three
phases of welding which he felt Hughes could improve,
and Hughes improved this phase of his work Hughes was
active in soliciting the signatures on the petition for union
representation , and when Hughes admitted doing this to
Keith, the latter said that such activity could be dan-
gerous
While the Board of Directors informed Keith that he
could lay off at the end of May the incompetent or dead-
wood , there is no showing that Hughes was incompetent
or was deadwood . This was the burden of Respondent in
view of Keith 's interrogation of Hughes regarding his
union activity j ust before laying him off, Hughes' union
activity, Respondent ' s antiunion animus , and Keith's
silence in regard to laying off Hughes when he talked to
him a half hour before he was laid off
Respondent 's policy was to give notice of layoff or
discharge when it was possible. Keith testified that he had
decided a week before to discharge Hughes, and had in-
formed the Rosses , and they had approved his selection
of Hughes for layoff I do not credit this testimony of
Keith. If he had selected Hughes prior to June I for layoff
because of incompetency he would have given Hughes
notice at least when he first talked to him on June 1. He
learned on June 1 that Hughes solicited signatures on the
petition, corroborated this knowledge on talking to
Hughes, communicated with one of the Rosses, and then
instructed Wells to give Hughes notice of discharge after
a decision was made to discharge Hughes for his union
activity Keith could not be located when Wells gave
Hughes the notice . Wells' statement to Hughes that the
layoff or discharge was not his doing or that of Keith dis-
closes that the decision was made by one of the Rosses.
Calvin Ingram and James Cox were exceptionally
skilled welders Moreover they were the type of em-
ployees Respondent would retain when there was a
reduction in force. Keith had so informed Ingram. They
shook hands with representatives of the Union and had
friendly conversation with them at the close of the
representation hearing on June 25, 1965, in the small
courtroom in the courthouse in Brownwood , Texas. Vice
Presidents Robert Ross and C. L. Ross, Production
Manager Keith , Plant Superintendent McBride and
Assistant Plant Superintendent Wells were present.
Ingram and Cox lived in Cisco, 50 miles from
Brownwood, and commuted daily to and from Respond-
ent's plant Their presence at the hearing after the end
of the workday at 5 p.m , when they would ordinarily be
on the 50 mile route home , and their friendly relations
with the representatives of the Union disclosed to the
Rosses, Keith , Wells, and McBride that they had a deep
interest in the union activity at Respondent 's plant. C. L.
Ross told Packer and Long at the close of the June 25
hearing that Rosses would do everything in their power
to defeat the Union even to the closing down of the plant.
On August 5, 1965, Vice President Ross told the as-
sembled employees there was to be no more union activi-
ty in the plant during working hours. He said at the time
that if there was a violation the penalty would be a 3-day
layoff. On August 9, 1965, Respondent issued the illegal
no-solicitation rule that I have discussed supra , section
III, E, 1. The evidence (supra, section IIi, C, 6) shows
that President Ruben Ross photographed the writings on
the silos a few days before the election. "Vote Yes" was
written on three or four of the silos or on silo tops. Car-
nger had written "Vote Yes" with soapstone on a silo top
on or about August 1, 1965. A writing with soapstone can
be brushed off or removed with soap and water
On August 12, 1965, Carriger admitted to Production
Manager Keith that he wrote "Vote Yes" on a silo top.
Keith laid him off for 3 days as a penalty in accordance
with the rule Vice President Robert Ross stated on Au-
gust 5. Carriger said he could not take a layoff as his wife
was expecting . Keith would not change his decision so
Carriger said he would be around for his check in the
morning. Although he agreed to take the penalty instead
of quitting , on the advice of Dabney , and Dabney con-
veyed the agreement to Keith , the latter told Carriger he
was terminated when he called for his check the next
morning, and asked if Keith had decided whether he
could take the 3 day penalty instead of being terminated.
It was obvious to Keith that the "Vote Yes" was writ-
ten on the silo top by Carriger before the August 4 elec-
tion . There would be no point in writing it after the elec-
tion because the voting was over . President Ruben Ross
photographed the "Vote Yes" on the silos 2 days before
the election. Carnger testified he wrote it on August 1,
and I have credited his testimony . So he wrote it when
there was no rule against doing so. The rule was not an-
nounced until August 5 Then Keith penalized him on
August 12 for something he did on August 1 pursuant to
rules placed in effect on August 5 and August 9. In view
of the above , Keith knew that the writing was done before
the election , and before the rules were announced even
though on August 12 Carriger did not disclose that it was
on August 1 he wrote it. The writing could be easily
removed since it was done with soapstone , and, therefore,
did not deface Respondent 's property.
It is obvious, therefore, that Carriger was constructive-
ly discharged on August 12 for his union activity prior to
the election of August 4. The illegal motive is apparent
from the readiness of Keith to accept Carriger's decision
to quit instead of taking the penalty of a 3-day layoff, and
his refusal on the morning of August 13 to permit Car-
ROSS PORTA-PLANT, INC. 517
tiger to reconsider and take the 3-day layoff instead of
quitting.
It is clear from the evidence Respondent closed the
plant to rank-and-file employees on June 2 and 3, 1965,
to take a general inventory in connection with the
preparation of a financial statement to be furnished to the
new ownership of Citizens National Bank of
Brownwood. The business reasons for the taking of the
inventory and the preparation and furnishing of the finan-
cial statement are apparent . Counsel for General Counsel
argues that since a general inventory was usually taken at
the close of a fiscal year or during a closedown for vaca
tion , the financial reason given is pretextual, since the in-
ventory in June and not at the end of the fiscal year or
during a vacation closedown . However, the taking over
of the bank by a new ownership occurred in June and not
at the end of the fiscal year or during a vacation
closedown . Respondent 's accounts receivable were high,
and it was overdrawn . It obviously had to rely on cash
from the bank to meet payrolls and other expenses, and
it was vital that its credit lifeline be maintained . As stated,
there is no substantial evidence to warrant the finding that
although there existed a business reason for the taking of
the inventory , there was also an illegal discriminating
reason.35 Therefore , Respondent did not violate Section
8(a)(3) and (1) of the Act on June 2 and 3, 1965, by clos-
ing down tj plant to take a general inventory.
Respondent discharged Frank Long because of his
union 4 tivity. This activity of Long was apparent to Vice
Pre. ' ent Robert Ross at least from June 25, 1965, when
Lr^fig told him he was for the Union all the way. The vari-
us things that Long did which irritated Vice President
Robert Ross would not have affected him as acutely as
they did if he had not been sensitive to anything that Long
did which could be questioned in view of Long's espousal
of the Union's cause, but at the same time continuing to
act as one of Respondent's supervisors. The evidence
shows that Long did tell Larry Jackson and Wendell Mor-
ris that Ray Manning, the electrician, was receiving $3
per hour, when the department heads were getting only
$2.50 per hour, and they asked Vice President C. L. Ross
if that was true. However, there is no evidence that Long
spread this information any farther. Absent animosity
because of his union activity, Long may have been repri-
manded, but would not have been discharged for
discussing Manning's hourly rate with Jackson and Mor-
ris.
It is clearly a matter of record that Department Heads
Bates, Donald Cox, Dabney, Ward, Weatherman, and
Hobbs were discharged on November 3, 1965, for at-
tending the meeting of the Union on November 2, 1965,
after being instructed by Production Manager Keith on
November 1, 1965, not to attend this meeting.
I conclude and find that Respondent did not violate
Section 8(a)(3) and (1) of the Act by the discharge of
Long, Bates, Donald Cox, Dabney, Ward, Weatherman,
and Hobbs. They were supervisors within the meaning of
Section 2(11) of the Act when they were discharged.
Respondent had the right to discharge them for engaging
in union activity.36 I do not consider Attorney Smith's ef-
forts to obtain a copy of the statements Long, Donald
Cox, Dabney, and Hobbs gave to the Board to be viola-
tive of Section 8(a)(1) or (4) of the Act. There was no con-
duct here that had an impact on employees which limited
their rights under Section 7 of the Act.
I also conclude and find that General Counsel has not
supported with substantial evidence on the record as a
whole his allegation that Respondent discriminatorily
discharged or laid off employees King, Strickland, and
Norman on November 12, 1965, or that it discriminated
against Gary Brown by not recalling him to his job prior
to January 4, 1966. The weakness supra, of General
Counsel's evidence and its failure as substantial proof is
discussed. Therefore Respondent has not violated Sec-
tion 8(a)(3) and (1) of the Act by the layoff of King, Nor-
man, and Strickland, on November 12, 1965, and by not
recalling Gary Brown to his former employment until
January 4,1965.
3. Violations of Section 8(a)(5)
I do not intend to look behind the certification of Oc-
tober 15, 1965, in representation case 16-RC-3949. The
Respondent was ordered on that date to bargain with the
Union in a unit of Respondent's employees described
supra. In view of my findings in connection with the al-
legations of violations of Section 8(a)(1) and (3) of the
Act, that the department heads are supervisors within the
meaning of Section 2(11) of the Act, and not just
rank-and-file employees, the Board may wish to reex-
amine its affirmation of the Regional Director's decision
of July 14, 1965, and take the action that may be ap-
propriate to its reexamination. 37
It is also for the Board to consider the question whether
the holding of the election on August 4, 1965, when a
request for review was pending, was a fatal error, in view
of the requirements of Section 102.67(b) of its Rules and
Regulations. The Board had before it the holding of the
election at the time the request for review was pending
when it affirmed on October 6, 1965, the Regional
Director's decision of July 14, 1965.
Therefore, assuming the validity of the certification, I
find that Respondent violated Section 8(a)(5) and (1) of the
Act when it refused to bargain in response to demands for
bargaining made by the Union on October 23, 25 and 29,
November 3, and December 3, 1965. I also find that it
violated Section 8(a)(5) and (1) by refusing to furnish to
the Union as it requested on October 25, 1965, the
seniority list, wage rates, and job classifications for the
employees in the appropriate unit. These data are infor-
mation the Union needs to prepare for its bargaining with
Respondent pursuant to the certification.
I also find violative of Section 8(a)(5) and (1) of the Act
the failure of Respondent to notify the Union of the writ-
ten rules it distributed to employees on August 9, 1965,
and had them sign. These rules contained a broad no-sol-
icitation rule which recluded employees for the first time
from engaging in union activity on working time. It also
precluded distribution of literature of the Union or collec-
tion of dues in nonworking areas of the plant during non-
as Counsel's argument reminds me of the story of a person passing by
a bank, and seeing a person inside waving furiously at the door indicating
he wished to get out. The passerby looked up at the clock, saw it was
after 2 p in., knew the bank closed at 2 p.m., concluded no one could be
inside since it was after 2 p in., and went off leaving the individual inside
still waving furiously trying to enlist the assistance of someone on the
outside.
36 National Freight, Inc , 154 NLRB 621
i United Dairies, Inc, 144 NLRB 153; National Van Lines, 123
NLRB 1272, 1273, fn. 4; Pittsburgh Plate Glass Company v. N L.R B.,
313 U.S. 146, 158, N.L R B. v. WesternKentucky Coal Co., 152 F 2d
198.700 (C.A. 6), and Rule 102.67(f) of the Board Rules and Regulations.
308-926 0-70-34
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working hours unless permission was obtained from the
plant superintendent. The rules also set out new require-
ments to be followed in connection with reporting and
leaving work, and taking a break, which Respondent
claims are necessary to insure compliance with the
Federal Wage and Hour Law This is the type of change
in working conditions which the Board has held Respond-
ent must give notice of to the Union, and offer to discuss
it with the Union. Respondent's failure to do so violates
Section 8(a)(5) and (1) of the Act ;"
I do not find violative of the Act the failure of Respond-
ent to give notice to the Union of the layoffs of August
6, 13, and 20, and November 12, 1965. As can be seen
from the findings supra, and the evidence of the layoffs on
November 12, supra, these layoffs were for economic
reasons in accordance with the seasonal demands of
Respondent ' s operations . Being a high cost operation
which produces only a limited number of plants which sell
at a high price, labor costs and other costs must always be
kept in balance with receipts. When sales orders
decrease, and, therefore, production demands decrease,
the labor force and other cost factors must be adjusted
immediately to maintain the proper balance between
costs and receipts.
The evidence shows that orders start dropping in Au-
gust and continue downward through December and
January of the following year. This is the history of
Respondent since it began operations in 1958 November
is the slowest month. I find nothing in the Act or Board or
Court decisions which hold that Respondent must inform
the Union of, and discuss with it, layoffs which are nor-
mal, seasonal, and customary for Respondent, and for
economic reasons. Forthese reasons, I find that Respond-
ent did not violate Section 8(a)(5) and (I) of the Act by
not notifying the Union of the August 6. 13, and 20
layoffs, and the November 12 layoff
4. Other alleged violations
I conclude and find that General Counsel has failed to
support with preponderance of the evidence on the record
considered as a whole the other allegations of the com-
plaint, and that they should be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in certain un-
fair labor practices, I will recommend that it cease and de-
sist therefrom, and take certain affirmative action
designed to effectuate the policies of the Act. Since
Respondent engaged in considerable actions of inter-
ference, coercion, and restraint to thwart the organiza-
tional activity of Union and employees , a broad cease and
desist order is warranted , and will be recommended.
N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4).
1 shall recommend that Respondent be required to offer
the employees discriminatorily discharged , without preju-
dice to their seniority and other rights and privileges, im-
mediate and full reinstatement to their former or substan-
tially equivalent positions. I shall also recommend that
Respondent be required to make them whole for any loss
of earnings they suffered by reason of the discrimination
and other illegal conduct against them , as provided in F.
W. Woolworth Company, 90 NLRB 289, with interest at
6 percent per annum , as provided in Isis Plumbing &
Heating Co., 138 NLRB 716.
To remedy Respondent 's refusal to bargain , I shall
recommend that Respondent be required , upon request,
to bargain collectively with the Union as the
collective-bargaining representative of a unit of Respond-
ent's production and maintenance employees , including
draftsmen , shipping and parts employees, but excluding
field servicemen , over-the-road drivers , office clerical
employees , and all other employees , watchmen, guards,
and supervisors , as defined in the Act , regarding wages,
hours, and other terms and conditions of employment,
furnish to the Union the data requested by the Union to
aid it in preparing for bargaining , and if an agreement is
reached , to embody it in a signed contract.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case , the undersigned Trial
Examiner makes the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of the Act.
2. The Union is a labor organization within the mean-
ing of the Act.
3. Respondent interfered with, coerced, and restrained
employees, in violation of Section 8(a)(1) of the Act, by
interrogation , threats, promises of benefits , and issuing
rules of conduct containing an illegal no-solicitation rule,
5 days after a Board-conducted election, and requiring
each employee to sign a copy, to prevent employees from
enjoying rights guaranteed them in Section 7 of the Act,
including the right to self-organization, to form, join, or
assist the Union, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
4. By discharging employees Hughes, Calvin David
Ingram, James Cox, and Carriger, for engaging in Union
organizational activity on behalf of the Union, and
because of affiliation with the Union, Respondent dis-
criminated against employees in regard to tenure of em-
ployment and terms and conditions of employment, to
discourage membership in the Union, in violation of Sec-
tion 8(a)(3) and (1) of the Act.
5. An appropriate unit of Respondent's employees for
purposes of collective bargaining is a unit of Respond-
ent's production and maintenance employees including
draftsmen, shipping and parts employees, but excluding
field servicemen, over-the-road drivers, office clerical
employees, and all other employees, watchmen, guards
"Southland Paint Company, Inc , 157 N I RB 795 the Timken
Roller Bearing Company, 70 NLRB 500, 502, and fn 3 at 507, and in
7 at 512, Respondent cannot contend with merit that it was free to change
working conditions as it pleased until the Board found against it in the
review of the Director's decision
ROSS PORTA-PLANT, INC.
and supervisors, as defined in the Act. On October 15,
1965, the Regional Director certified the Union as the
collective-bargaining representative of this unit of
Respondent's employees.
6. On Otober 23, 25, 29, November 3, and December
3, 1965, the Union demanded Respondent recognize it
as collective-bargaining representative of this unit of em-
ployees, and requested Respondent to negotiate a collec-
tive-bargaining contract with it, and on October 25, 1965,
requested Respondent to furnish it a seniority list, wage
rates, and job classifications of employees to aid it in
preparing for bargaining, but Respondent, in violation of
Section 8(a)(5) and (1) of the Act, refused the Union's de-
mands and requests on the ground that it did not
represent a majority of Respondent's employees in an ap-
propriate unit.
7. Respondent violated Section 8(a)(5) and (1) of the
Act by failing to notify the Union of, and discuss with it
prior to issuance and placing in effect, rules of conduct
containing a newly established no-solicitation rule, and
certain other newly established rules affecting employees
work habits which Respondent claims are necessary to
compliance with the Federal Wage and Hour Law.
8. Respondent did not violate the Act in the other
respects alleged in the complaint in this proceeding, and
the complaint insofar as it contains these allegations
should be dismissed.
RECOMMENDED ORDER
Upon the basis of the foregoing facts and conclusions
of law, and upon the entire record in the case, I recom-
mend that Respondent Ross Porta-Plant, Inc., its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees in regard to their rights to
engage in union activity , to assist Local 826, Interna-
tional Union Of Operating Engineers , AFL-CIO, or to
authorize it to act as their collective -bargaining represent-
ative.
(b) Threatening employees in regard to their working
conditions by issuing written rules of conduct containing
new rules and an illegal no-solicitation rule, and requiring
each employee to sign a copy, 5 days after a Board-con-
ducted election , in order to thwart their union organizing
activity , assistance to the Union , or authorization to it to
act as their collective -bargaining representative.
(c) Promising employees benefits to thwart their union
organizing activity , their assisting the Union, and their
authorizing it to act as their collective-bargaining
representative.
(d) Discouraging membership in the Union by
discharging employees because they engage in union ac-
tivity and assist the Union.
(e) Refusing to bargain collectively with the Union as
the exclusive bargaining representative of Respondent's
employees in an appropriate unit regarding wages, hours,
and other terms and conditions of employment, and to
furnish the Union data it needs to aid it in bargaining and
issuing unilaterally new rules of conduct that effect em-
ployees' working conditions.
°" In the event that this Recommended O1dei is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words
"the Recommended Order of a Trial Examiner" in the notice In the
further event that the Board's Order is enforced by a decree of a United
519
(f) In any other manner interfering with , restraining,
or coercing employees in the exercise of their rights to
self-organization , to form labor organizations , to join or
assist the Union or any other labor organization , to bar-
gain collectively through representatives of their own
choosing , and to engage in concerted activities for the
purpose of collective bargaining, or other mutual aid or
protection , or to refrain from any and all such activities,
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization
as a condition of employment as authorized in Section
8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which I find
will effectuate the purposes of the Act:
(a) Offer Jack Hughes, Calvin David Ingram, James
S. Cox, and Gary W. Carriger , without prejudice to their
seniority and other rights and privileges , immediate and
full reinstatement to their former or substantially
equivalent positions , and make them whole for any loss
of earnings , including interest , suffered by reason of the
discrimination against them, in the manner set forth in the
section entitled "The Remedy."
(b) Notify the above-named employees if presently
serving in the Armed Forces of the United States, of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended , after discharge
from the Armed Forces.
(c) Preserve, and make available to the Board or its
agents upon request, for examination and copying, all
payroll records, social security payment records,
timecards , personnel records and reports, and all other
records relevant and material to Respondent's com-
pliance with the provision of this Order.
(d) Upon request, bargain collectively with Local 826,
International Union of Operating Engineers , AFL-CIO,
as the exclusive representative of the employees in the
appropriate unit found herein of all production and main-
tenance employees including draftsmen and parts em-
ployees, but excluding field servicemen , over-the-road
drivers, office clerical employees , and all other em-
ployees, watchmen , guards, and supervisors , as defined
in the Act , with respect to rates of pay, wages, hours of
employment , and other terms and conditions of employ-
ment, and if an agreement is reached , embody such agree-
ment in a written contract ; furnish the Union with the
seniority list, wage rates , and job classifications it has
requested , and other data that would be an aid to bargain-
ing, that it may request; and notify the Union of, and
discuss with it, the rules of conduct it issued on August
9, 1965.
(e) Post at its plant in Brownwood , Texas, copies of
the attached notice marked "Appendix ." t9 Copies of said
notice to be furnished by the Regional Director for Re-
gion 16 (Fort Worth , Texas), after being signed by the
Respondent 's representative, shall be posted by Respond-
ent and maintained by it for 60 consecutive days
thereafter , in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words
"a Decision and Order "
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 16 in writ-
ing within 20 days from the date of this Decision and
Recommended Order, what steps Rspondent has taken
to comply herewith.40
IT IS ALSO RECOMMENDED that the Board dismiss the
complaint insofar as it contains allegations of conduct not
found to be violative of the Act.
IT IS FURTHER RECOMMENDED that unless on or before
20 days from the date of the receipt of this Trial Ex-
aminer's Decision and Recommended Order the Respond-
ent notifies the Regional Director, in writing, that it will
comply with the foregoing recommendations, the Na-
tional Labor Relations Board issue an order requiring the
Respondent to take the action aforesaid.
40 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read. "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT interrogate employees in regard to
their rights to engage in union activity, to assist Local
826, International Union of Operating Engineers,
AFL-CIO, or to authorize it to act as their
collective-bargaining representative.
WE WILL NOT threaten employees in regard to
their working conditions by issuing written rules of
conduct containg new rules and an illegal no-solicita-
tion rule, and requiring each employee to sign a copy,
5 days, after a Board-conducted election, to thwart
employees union organizing activity, assistance to
Local 826, and their authorization to it act as their
collective-bargaining representative.
WE WILL NOT promise employees benefits to
thwart their union organizing activity, their assisting
Local 826, or their authorizing it to act as their col-
lective-bargaining representative.
WE WILL NOT discourage membership in Local 826
by discharging employees because they engage in
union activity, and assist Local 826.
WE WILL NOT refuse to bargain collectively with
Local 826 as the exclusive representative of our em-
ployees in an appropriate unit , or to furnish it with in-
formation that aids it in bargaining, or issue new rules
of conduct that affect employee working conditions
without first notifying Local 826 of them, and afford-
ing it the opportunity to discuss them with us before
we issue them or place them in effect.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights to self-organization , to form labor organiza-
tions, to join or assist Local 826, or any other labor
organization , to bargain collectively through
representatives of their own choosing , and to engage
in concerted activities for the purpose of collective
bargaining , or other mutual aid or protection.
WE WILL offer Jack W. Hughes, Calvin David In-
gram , James S. Cox, and Gary W. Carriger, without
prejudice to their seniority and other rights and
privileges , immediate and full reinstatement to their
former and substantially equivalent positions, and
make them whole for any loss of earnings, including
interest , suffered by reason of the discrimination
against them.
WE WILL bargain collectively with Local 826 as
the exclusive representative of our employees in the
appropriate unit of all production and maintenance
employees including draftsmen and parts employees,
but excluding field servicemen , over-the-road
drivers, office clerical employees , and all other em-
ployees, watchmen , guards, and supervisors as
defined in the National Labor Relations Act, as
amended , by meeting and negotiating a
collective-bargaining contract with Local 826, at its
request, on behalf of the above unit of our em-
ployees, and if an agreement is reached embodying
it, in a written contract and signing it by furnishing a
seniority list of employees , their wage rates and job
classifications which Local 826 has requested, and
by furnishing other information it may request that
will aid it in bargaining , and by notifying Local 826,
and discussing with it, any newly established rules of
conduct for employees, prior to issuing them or plac-
ing them in effect.
All our employees are free to become, or refrain from
becoming , members of Local 826, Iternational Union of
Operating Engineers , AFL-CIO, or any other labor or-
ganization.
Ross PORTA-PLANT, INC.
(Employer)
Dated By
(Representative) (Title)
Note: We will notify Jack W. Hughes, Calvin David
Ingram, James S. Cox, and Gary W. Carriger if presently
serving in the Armed Forces of the United States, of their
rights to full reinstatement upon application in ac-
cordance with the Selective Service Act and Universal
Military Training and Service Act, as amended, after
discharge from the Armed Forces.
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 8A24,
Federal Office Building, 819 Taylor Street, Fort Worth,
Texas 76102, Telephone 334-2941.