Selb Manufacturing Co.

National Labor Relations Board - Board Decisions

Sep 9, 1968

172 N.L.R.B. 1993 (N.L.R.B. 1968)

SELB MANUFACTURING COMPANY
Aircraft Engineering Corporation and Western,
Inc., d/b/a Selb Manufacturing Company and
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Local Union 878, affiliated with
International Brotherhood of Teamsters , Chauf-
ferus, Warehousemen and Helpers of America.
Case 26-CA-2920
September 9, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On April 29, 1968, Trial Examiner Joseph I.
Nachman issued his Decision in the above-entitled
proceeding, finding that the Respondents had en-
gaged in and were engaging in certain unfair labor
practices and recommending that they cease and
desist therefrom and take certain affirmative ac-
tion, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondents filed excep-
tions to the Trial Examiner's Decisioon and a sup-
porting brief, and the General Counsel filed an an-
swering brief to the Respondents' exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent con-
sistent herewith.
1. The Trial Examiner found, and we agree, that
the Respondents violated Section 8(a)(1) of the
Act by unlawfully interrogating employees, by
threatening to close the plant if the employees
chose the Union to represent them, and by
threatening an employee with discharge if he con-
tinued to support the Union.
2. The Trial Examiner also found that the
Respondents violated Section 8(a)(1) of the Act by
granting wage increases to dissuade employees
from assisting and supporting the Union, and vio-
lated Section 8(a)(3) by discharging employee
Carlton Cates and by laying off 18 other employees
All dates refer to 1967, unless otherwise indicated
We find no warrant in the record for the Trial Examiner 's finding that
172 NLRB No. 218
1993
allegedly because of their failure to comply with a
company rule requiring the purchase of tools. We
find merit in the Respondents' exceptions to those
findings.
The grant of wage increases: The Respondents
commenced operations at the Aircraft plant in
early 1967. The Union's organizational campaign
began on July 15, 1967,1 and the Trial Examiner
found that the Respondents became aware thereof
on or before July 31.` The Board-conducted elec-
tion herein was held on November 16.
Aircraft started production with only a few em-
ployees, but by mid-October employment had sta-
bilized at about 80 employees . During the period
July 31 to October 23, the Respondents granted a
number of wage increases to employees which the
Trial Examiner found, primarily on the basis of tim-
ing, were given with the intent and purpose of in-
fluencing employees to abandon their support of
the Union. We disagree.
We note, initially, that it was the Respondents'
practice to review the work performance of each
employee every 2 or 3 weeks to determine whether
a wage increase was warranted. The record herein
discloses the following with respect to the number
of employees, and the wage increases granted, dur-
ing the period April-October 1967: April: 33 em-
ployees, 4 raises; May: 42 employees, 3 raises;
June: 42 employees, 4 raises; July: 46 employees,
11 raises ; August: 60 employees, 12 raises; Sep-
tember: 66 employees, 8 raises ; and October: 80
employees, 12 raises.'
Under the circumstances, we cannot agree with
the Trial Examiner that the wage increases granted
by Respondents on or after July 31, when Respon-
dents became aware of the Union's appearance on
the scene, were disproportionately greater in
number than they were prior thereto. Indeed, in the
2 months immediately preceding the election,
namely September and October 1967, the number
of wage increases granted by the Respondents ac-
tually decreased, on a proportionate basis, from the
previous 2 months. Similarly, there is nothing in the
pattern of the amount of increases before and after
July 31 to suggest that Respondents altered their
wage practices in response to the organizational ac-
tivity. Additionally, there is no showing that the
recipients of the wage increases were selected on a
basis indicating any relationship to the Union's or-
ganizational efforts. In all the circumstances, there-
fore, we are constrained to conclude that the
General Counsel has not established by a preponde-
rance of the evidence that the wage increases
in November and December 1967, no wage increases were granted by the
Respondents The record is not clear as to that question
354-126 O-LT - 73 -pt. 2 - 54
1994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
granted by the Respondents during the pertinent
period were not, as urged by the Respondents,
regular, periodic, and in accordance with company
practice, or that they were unlawfully motivated.
Accordingly, we shall dismiss this allegation of the
complaint.
The layoff for failure to purchase tools: Respon-
dents require their employees to purchase their
own tools, each employee being required to own an
increasingly complete set of tools as his longevity
accumulates. On October 16, Plant Manager Swin-
dle distributed to all production employees of
Respondent Aircraft an additional copy of the tool
purchase schedule given them at time of hire, and
told them that they would have to be up to date on
tool requirements by November 3. On November 3,
the Respondents further advised the employees that
unless they had the required tools by November 13,
they would be placed on a layoff status until such
time as they reported to the plant with the required
tools. On November 13, after a toolbox check, Air-
craft laid off 18 employees for failure to have the
required tools. The Trial Examiner , relying primari-
ly on the " timing" of the enforcement of the tool
purchase rule, and the fact that it was not enforced
at the Respondents' Selb plant,3 found that the rule
was invoked by Aircraft as a retaliatory measure to
discourage union activity by the employees. We are
unable to concur in this finding.
It is clear, from the testimony, that Aircraft em-
ployees knew, at the time of hire, that they would
have to comply with the full tool list at some time
in the future. Aircraft officials tolerated the bor-
rowing of tools for a period after the plant opened
in January 1967, but when it became apparent in
late 1967, with the rapid increase of employment,
that the borrowing of tools was impeding produc-
tion, Respondent began strict enforcement of its
tool purchase rule.' The fact that the rule was in-
voked about 1 month prior to the election herein is
in our opinion insufficient in itself to provide the
requisite proof of antiunion motivation. Nor does
the fact that the rule was not enforced at the Selb
plant assist in providing such proof. Respondents'
toleration of lax tool purchase discipline at Selb did
not preclude them from initiating a more strict pol-
icy when they began the operation at Aircraft. In-
deed, the disparate treatment between the two
plants, both of which were apparently equally in-
3 The Respondents' Seib plant is in Walnut Ridge, Arkansas, about 12
miles distant from the Respondents' Aircraft plant Aircraft and Selb have
been held to be a single integrated business enterprise with a common
labor policy See Aircraft Engineering Corporation and Western, Inc , d/b/a
Seib Manufacturing Company, 171 NLRB 637
' The General Counsel's own witnesses, Jerry Cantrell, John Melton,
Robert Davis, and Ronnie Carter, testified that the borrowing of tools af-
volved in the Union's organizational campaign,
satisfies us that the motivation may have been
something other than union activity.
In all the circumstances, we do not believe that
the General Counsel has established by a preponde-
rance of the evidence that the Respondents' tool
purchase rule was discriminatorily enforced; ac-
cordingly, we find there is no valid basis for con-
cluding that the Respondents' layoff of 18 em-
ployees for failure to have the required tools vio-
lated Section 8(a)(3) of the Act.
The discharge of employee Carlton Cates: We do
not agree with the Trial Examiner's finding that the
discharge of employee Carlton Cates on October 3,
1967, violated Section 8(a)(3). Cates, with at least
34 absences, had the worst absentee record in the
plant during his less than 1 year of employment.'
He had been warned of his excessive absenteeism
on at least three prior occasions, the most recent
warning having been given in September. Respon-
dents discharged Cates upon being informed by a
plant guard that on the previous night, a night when
Cates had failed to report to work, he observed
Cates visiting employees in the plant and at a near-
by truck stop.' Cates was told that he was being let
go because of his excessive absenteeism , and when
Cates applied for unemployment compensation he
stated that he was discharged for missing too much
work. To be sure, we have found, in agreement
with the Trial Examiner , that Respondents engaged
in unlawful conduct demonstrating hostility toward
union activities and threatened Cates for engaging
in such activities. At various points in his testimony,
Cates has conflicting statements as to when the
threats took place, and the Trial Examiner found
his testimony unreliable as to timing . The threats
may have been anywhere from 2 days to 2 months
prior to the discharge. Accordingly, we are not able
to find that the sequence of events manifests that
the alleged reason for discharge was merely pretex-
tual. Nor can we overlook Cates' 34 absences in
less than 1 year, and the fact that, on the day of his
discharge, Cates was absent though he appeared
capable of working. In view of all the circumstances
attending Cates' discharge, we find that the General
Counsel has failed to show that antiunion motiva-
tion was responsible for the Respondents' action.
Accordingly, we find that the Respondents did not
violate Section 8(a)(3) of the Act in discharging
employee Cates on October 3, 1967.
fected production
s Another employee had 31 absences during the same period The next
closest absentee record involved 22 absences
6 The plant guard also testified that on previous occasions he had ob-
served Cates at or near plant property when he was supposed to be at
work
SELB MANUFACTURING COMPANY 1995
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dents, Aircraft Engineering Corporation and
Western, Inc., d/b/a Selb Manufacturing Company,
Walnut Ridge, and Pocahontas, Arkansas, their of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees regard-
ing their support of, or activities on behalf of,
Teamsters, Chauffeurs, Warehousemen and Hel-
pers of America, Local Union 878, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or
any other labor organization.
(b) Threatening any employee with discharge
for assisting or supporting any labor organization.
(c) Threatening to close the plant if the em-
ployees choose a union to represent them.
(d) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action necessa-
ry to effectuate the policies of the Act:
(a) Post at their plants in Walnut Ridge and
Pocahontas, Arkansas, copies of the attached
notice marked "Appendix."' Copies of said notice,
on forms provided by the Regional Director for Re-
gion 26, after being duly signed by Respondents'
authorized representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained
by Respondents for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by Respondents to
insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 26,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges viola-
tions not found herein.
I In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals Enforc-
ing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
After a trial at which all sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the Act and
has ordered us to post this notice to inform em-
ployees of their rights.
WE WILL NOT question you about your mem-
bership in, or your activities in support of, any
union.
WE WILL NOT threaten to discharge you if
you join or help any union.
WE WILL NOT threaten to close our plant if
our employees decide to have a union
represent them.
The law gives all our employees these rights:
To organize themselves
To form, join, or help unions
To bargain as a group through a
representative they chose
To act together for collective bargaining
or other mutual aid or protection
To refuse to do any or all of these
things.
We assure you that WE WILL NOT do anything to
interfere with you in the exercise of these rights.
Every employee is free to become or remain a
member of the Teamsters, or any other union, or
not to do so.
AIRCRAFT ENGINEERING
CORPORATION
(Employer)
Dated By
(Representative ) (Title)
SELB MANUFACTURING
COMPANY
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive 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, 746 Federal Office Building , 167 North
Main Street, Memphis, Tennessee 38103,
Telephone 534-3161.
1996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Trial Examiner: This case
was tried before me at Walnut Ridge, Arkansas, on
February 13, 14, and 15, 1968, on a complaint'
pursuant to Section 10(b) of the National Labor
Relations Act, as amended (herein called the Act),
alleging that Aircraft Engineering Corporation and
Western, Inc., doing business as Selb Manufactur-
ing Company (herein respectively called Aircraft
and Selb, and collectively called Respondents), in
their operations as a single integrated enterprise,
violated Section 8(a)(1) of the Act by interfering
with, restraining, and coercing employees in exer-
cise of rights guaranteed them by Section 7 of the
Act, and violated Section 8(a)(3) and (1) of the
Act by discharging 1 employee and by laying off 18
others because of their assistance to and support of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Local Union 878, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America
(herein called the Union or Local 878). The issues
litigated will hereafter be discussed in greater
detail.
At the trial, all parties were represented by coun-
sel and were afforded full opportunity to adduce
pertinent evidence, to examine and cross-examine
witnesses, to argue orally on the record, and to sub-
mit briefs. Oral argument was waived. Briefs sub-
mitted by the General Counsel and Respondents
have been duly considered.
Upon the entire record in the case, including my
observation of the demeanor of the witnesses while
testifying, I make the following:
1. FINDINGS OF FACT2
A. Chronology and Background of Events
A chronology, together with certain background
information, will be helpful to an understanding of
the totality of the issues involved.
Selb, located at Walnut Ridge, Arkansas, where
employment is approximately 110, has been en-
gaged in the production of aircraft and missile com-
ponents since about 1960. Aircraft, located at
Pocahontas, Arkansas, is engaged in the production
of machine tools and aircraft and missile com-
ponents. However, Aircraft did not begin operation
until early 1967, when a new building constructed
for its use became available.3 Production started
with just a few employees, but by mid-October, em-
ployment had stabilized at approximately 80. About
' Issued December 18, on a charge filed October 24, amended
November 24 and December 6 These and all dates hereafter mentioned
are 1967, unless otherwise indicated.
2 No issue of commerce or labor organization is presented The com-
plaint alleges and the answer admits facts which establish these lurisdic-
mid-July the Union began an organizing campaign
among Respondents' employees. Among the
Union's meetings were two held in a local apart-
ment building. At this point in the campaign, the
Union urged employees to keep their union activi-
ties from the attention of Respondents. Also, em-
ployees were visited at their homes, committees
were formed, authorization cards were solicited.
During August and September union agents met
with employees in both public and private locations
in the vicinity of the plants, and at times were
present near the plants during shift changes to get
reports from employees as to the progress of the
union campaign. On August 31, the Union filed two
representation petitions with the Regional Office,
one seeking certification as the representative of
employees of Aircraft (26-RC-2998), and the
other seeking such certification with respect to em-
ployees of Selb (26-RC-2999). Copies of both
petitions, and a letter from the Union demanding
recognition, were received by Respondents on or
about September 1.
On July 31, and continuing through October,
Aircraft granted approximately 35 wage increases
to specific employees, which the General Counsel
contends were granted with the intent and purpose
of persuading the employees not to assist or support
the Union. Respondents contend that the increases
were granted in the normal course of business pur-
suant to a previously adopted merit review plan,
and not because of the Union. Respondents further
contend that they had no knowledge that the Union
was organizing when the July and August increases
were granted, and that they first acquired such
knowledge on or about September 1, when copies
of the representation petitions and the Union's
request for recognition were received.
On September 26, a hearing was held on the
representation petitions, at which time the Union
proposed that the petitions be consolidated, urging
that Selb and Aircraft constituted a single mul-
tiplant unit for the purposes of collective bargain-
ing. Respondents opposed the motion, and the issue
was referred to the Regional Director. Before is-
suance of the Regional Director's decision, Selb
employee Carlton Cates was discharged on October
3, allegedly for excessive absenteeism. The General
Counsel contends that the asserted ground for the
discharge was a pretext, and that the real reason
was Cates' extensive prounion activity. Addi-
tionally, on November 13, Respondents admittedly
laid off 18 employees for failure to have certain
tools which they were required to furnish at their
own expense. The General Counsel contends that
the layoff for failure to obtain required tools was
discriminatorily motivated and hence violative of
Section 8(a)(3) and (1) of the Act.
tional elements I find the facts to be as so pleaded
'The official U S census, 1960, shows a population of 3,547 for Walnut
Ridge and 3,665 for Pocahontas The communities are about 12 miles
apart
SELB MANUFACTURING COMPANY
On October 19, the Acting Regional Director is-
sued his decision and direction of election holding,
inter alia, that the multiplant unit was appropriate.
Respondents sought Board review of numerous por-
tions of said decision, including the issue of mul-
tiplant unit. On November 15, the Board denied the
request for review. On November 16, an election
was held in the multiplant unit, which the Union
won by a vote of 129 to 15.'
In addition, the General Counsel further con-
tends that during the Union's organizational cam-
paign, supervisory personnel at Seib interrogated
employees concerning their activities in and sup-
port of the Union, all in violation of Section
8(a)(1) of the Act.
The facts concerning the several allegations will
now be considered separately and in greater detail.
B. The Events at Aircraft
1. The wage increases
The complaint, as amended, alleges that on or
about August 1 and following, Aircraft granted
wage increases to certain employees, to persuade
the latter not to assist or support the Union. Air-
craft admits that it granted wage increases as al-
leged, but contends that they were given in the
usual and ordinary course of business, in ac-
cordance with previously established, announced,
and existing practices.
Plant Engineer Franklin, who along with Plant
Superintendent Swindle administers Aircraft's wage
increase program, testified that, while no written
plan existed, it was the practice to review each em-
ployee's work record "every two or three weeks"
and, where warranted, to grant a wage increase.
According to Franklin, the elements considered in
determining whether an increase was warranted
were the "general work record" of the employee,
which would include his "attitude and ability," and
also his production and absentee records. Franklin
further testified that the element of attitude" in-
cluded an employee's willingness to buy tools which
4 For a further history of the representation proceeding, and the current
status thereof, see Trial Examiner Schneider 's decision granting a motion
for summary judgment, issued March 20, 1968 (TXD-1 74-68), in Aircraft
Engineering Corporation and Western, Inc , d/bla Seib Manufacturing Com-
pani, Case 26-CA-2978, now pending before the Board , wherein the Trial
Examiner found that Respondents ' refusal to recognize and bargain with
the Union, pursuant to a certification following the election, was violative
of Section 8(a)(5) of the Act
5 As Aircraft did not begin operations until late 1966 or early 1967, 1 find
it difficult to understand, and the record does not explain, how it could
have granted wage increases as early as March 1966 , and in some instances
even back as far as 1961 , as the exhibit reflects It is established that some
Seib employees transferred to Aircraft after the latter began operations,
and possibly the earlier increases were those granted at Seib and were in-
cluded in the exhibit to show the entire history of each individual's employ-
ment However, the record does not identify the employees that fall into
this category
1997
the Company required him to purchase, for he
thereby demonstrated his interest in his work and
his desire to make himself more productive. Exhibit
R 7, Franklin testified, reflects the wage increases
granted by Aircraft during calendar year 1966 and
1967 s For the sake of clarity a schedule showing,
separately for each month during 1967, the em-
ployees that received increases, as well as the date,
amount, and last prior increase, as reflected by Ex-
hibit R 7, is attached as Appendix A.6 These figures
show that, except for the month of September,
there was a marked increase in the number and
percentage of wage increases granted after the
Union began its campaign. The exhibit shows also
that of the 11 increases granted in July, 1 was
granted on July 24 and remaining 10 on July 31,
approximately 2 weeks after the Union began its or-
ganizing campaign. Although Franklin testified that
it was the practice to review employees every 2 or 3
weeks with respect to merit increases, the last prior
increase had been one granted on June 26, and that
after the seven increases granted on October 23, no
further increases were granted in 1967.
Although Swindle testified that failure of the em-
ployees to have required tools was adversely affect-
ing production, and Franklin testified that a man's
production and his "attitude" (which included his
willingness to buy tools) were important elements
which went into the decision whether an employee
would receive an increase, 14 of the 18 employees
laid off for failure to have the tools were granted
one or more increases during the Union's cam-
paign ; 4 of them 1 week prior, and 4, 1 week sub-
sequent to the October 16 notice.7 Chester Denton,
also laid off for failure to have tools, had received
an increase on May 22. Also employee Frangen-
berg, who had been hired about June 19, was asked
by Swindle, on or about October 1, how he would
like a 10-cent increase . Frangenberg replied that he
would like the increase but reminded Swindle that
he had not as yet purchased all the tools required
for his period of employment. Swindle replied that
Frangenberg should not worry about that, that he
had enough tools. After being laid off on November
"Franklin also testified as to the number of wage increases granted each
month from April through October 1967, and the number of employees on
the payroll during that month In some instances I have found that
Franklin's testimony and Exhibit R 7 do not agree, and in those instances I
rely on the exhibit The exhibit, however, does not reflect , nor is it possible
to compute therefrom, the number of employees on the payroll during a
particular month Swindle also testified as to the employee complement,
and distinguished between employees engaged in production and those en-
gaged in maintenance As maintenance employees participated in the wage
increases , I have used Franklin's figures
r These are Jerry Cantrell, June 19 and August 23, Jim Cantrell, August
21, John Melton, May I and August 21 , Sam Frangenberg , October 9,
Charles Collins , September 5, Ronnie Perry, October 9 , Robert Davis,
March 13 and August 21, Russell Hufstedler , October 23, Buddy Swan,
October 9, Roy Brown, October 23, Jerry Ramsey, October 23, Charles
Horn , August 28, Eddie Carmickle, October 9; and Gralen Carmickle, Au-
gust 28
1998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
13, Frangenberg bought tools sufficient to bring
him to the point required of those with 120 days of
employment and returned to work.' What tools, if
any, he purchased after returning to work, the
record does not indicate.
2. The layoff for failure to purchase tools
This evidence is undisputed that each employee
at the time of hire was given a list of tools with
which he was to provide himself at stated intervals"
and that such had been the practice since the first
employees were hired in early 1967. On October
16, Plant Manager Swindle distributed to all
production employees an additional copy of the
tool list given them at the time of hire, and told
such employees that they had to be up to date in
tool requirements by November 3. On the last men-
tioned date, Swindle made a check of each em-
ployee's toolbox, and those employees found not to
have all tools required for their period of employ-
ment, were given a further written notice that un-
less they had the required tools by November 13,
they would be laid off without pay, until such time
as they reported to the plant with the required
tools . On November 13, after another toolbox
check, 18 employees were laid off for failure to
have the required tools.10
There is no evidence that Aircraft invoked or
gave consideration to invoking its rule regarding
tools prior to October 16. Its reason for invoking
the rule when it did is that when production started
early in 1967 there were only two employees, and
so long as the employee complement remained low
the practice of employees borrowing tools from one
another was not a problem, but as the work force
increased , and by October numbered about 80,
borrowing tools was wasting too much time thus
seriously interfering with production and, to
remedy that situation, the rule was invoked.
Selb had the same rule regarding the purchase of
tools as Aircraft, and while a substantial portion of
Selb employees did not have the required tools, the
rule was not invoked there, although the latter had
a larger work force than Aircraft.tt
C. Events at Selb
1. Interrogation, restraint, and coercion
Employee James Thompson, a machine operator
at Selb who worked the third shift, credibly testified
that beginning early in August, Foremen Tucker
and Wicker, admitted supervisors, began discussing
the Union with him, and that during such discus-
sions one of them told him that if the Union came
in, the plant would close. Also about mid-Oc-
tober,12 Tucker and Wicker approached Thompson
at his machine and asked if Thompson was the
union representative on that shift. Thompson
replied in the negative. While the three were talk-
ing, employee Henderson, who worked on the same
shift, approached Thompson's machine, and the
two supervisors asked Henderson if he was the
union representative on that shift. Henderson also
replied in the negative and returned to his machine.
About a half hour later Foreman Tucker came to
Henderson and stated, "Then you don't know who
it is, huh? and Henderson replied, "No, I don't
know at all." Tucker then left. About 2 hours later
Tucker and Wicker came to Henderson's machine.
Thompson, who had loaned Henderson a tool and
came to get it back, approached Henderson's
machine while Tucker and Wicker were there and
heard them ask Henderson if he was the union
representative on that shift, and if he was not, who
was. Henderson credibly testified that in this discus-
sion, apparently before Thompson arrived, Tucker
said, "Tell me, Joe, as just one friend to another ...
[w]e hear that Henson [also a third-shift em-
ployee] is going to be the leadman and Thompson
is going to be second in line." After Henderson dis-
claimed knowledge of this, Tucker added, "We
hear that things are going to start popping around
here in about two weeks. Is that right?" Again Hen-
derson disclaimed knowledge. Wicker then laughed
and said, "I hear the Union man is going to make
you his right-hand man. Is that right?" Henderson
replied, "There is no truth in that. "13
Carlton Cates, whose alleged discriminatory
discharge is hereafter discussed, testified that he
8 Based on the credited and uncontradicted testimony of Frangenberg on
this point.
9 The list required employees to have certain tools when starting work,
and that others be acquired at intervals of 30, 60, 90, 120, and 150 days
after employment
10 The individuals so laid off are those set forth in paragraph 12 of the
complaint as amended at the trial . The amendment so allowed deleted the
names of Earnest Woods and James Hart , and added the name of Clayton
Johnson Of the 18 employees so laid off, 13 acquired the necessary tools
and had been reinstated at the time of the trial , but their identity is not dis-
closed by the record . Four did not acquire tools but were taken back for
nonproduction jobs. The record does not show the status of the 18th.
11 Based on the uncontradicted and credited testimony of Thompson
12 The witnesses placed the events hereafter detailed at or "about Oc-
tober 14," but said that it could have been 5 to 10 days either way.
13 The findings in this section are based on the composite of the credited
testimony of Thompson and Henderson Thompson I regard as the most
credible witness who testified in this proceeding His demeanor impressed
me as one who was honestly trying to give the facts as he recalled them re-
gardless of who might be helped or hurt thereby . I am crediting Henderson
also because his testimony is, for the most part , corroborated by that of
Thompson Wicker and Tucker both denied that they had any conversation
with Henderson or Thompson regarding the Union I do not credit their
denials Particularly in the case of Wicker , certain portions of his testimony
strain credulity Wicker became a foreman about August 15, and for a con-
siderable period prior to that was a rank-and-file production employee.
With all the union activity among the employees for about a month before
Wicker became a supervisor, it is simply incredible that in a plant of about
1 10 employees Wicker, as a rank -and-file employee , would not have been
fully exposed to and aware of such activity. However, the notice he
acquired at that time is not imputable to his employer so as to make the
latter responsible for his conduct after he became a supervisor Atlanta
Metallic Casket Company, 75 NLRB 208, 0.
SELB MANUFACTURING COMPANY
had a conversation with Supervisors Tucker and
Wicker while at work in the plant, in which they
asked how the Union was getting along, who was
involved in getting it started, and how many em-
ployees had signed cards. Cates further testified
that on a number of these occasions Tucker, and on
one occasion Wicker, stated that if he (Cates)
"didn't slow down pushing the Union, [he] was lia-
ble to get fired. "" Both Tucker and Wicker denied
making any of the statements so attributed to them.
Although Cates' testimony was contradictory as to
the timing of the conversations he testified about,
and his testimony was to that extent unreliable," I
am convinced and find that he was not trying to
fabricate, but was simply confused as to the timing
of those events but that such events did in fact oc-
cur. However, because of the aforementioned in-
consistencies in Cates' testimony, I can only find
that such conversations took place sometime
between August 1 and October 1, in the case of
Tucker, and between August 15 and October 1, in
the case of Wicker. 18
2. The discharge of Cates
Cates was employed at Selb in November 1966
and, until his discharge on October 3, worked the
third shift (midnight to 7 a.m.). On that shift he was
the only employee trained to operate the machine
to which he was assigned . From time to time he, as
well as other employees on his shift , was assigned to
so-called "hot jobs," which meant that the produc-
tion was urgently needed. All supervisory personnel
who testified on the subject admitted that Cates
was a good machine operator and that his work was
in all respects satisfactory. Cates was the most ac-
tive union proponent in Respondents ' plants. He
solicited the union representative to begin the or-
ganizational campaign , arranged for the meeting
places , attended virtually all meetings , and urged
" Cates also testified that at a time, which he fixed as the last week in
September , Supervisor Aden, who was in a different department than
Cates, asked him what union he was helping and how the organizing was
coming on Aden denied making any such statement to Cates I find it un-
necessary to resolve this conflict as it would add nothing to the order I shall
recommend
is As an example , Cates testified on direct that one of his conversations
with Tucker , when the latter told him that he might be fired for pushing the
Union, took place the first part of August On cross-examination Cates
placed the first such conversation at the latter part of August At another
point Cates insisted that such conversation could not have occurred in Sep-
tember, that it had to be in August , and later stated not only that it might
have occurred in September , but that it might even have been the "last part
of October " The latter date is, of course, impossible because Cates was
terminated on October 3
18 As Cates was absent from work on October 2, and was discharged on
October 3, before going to work, the last day such conversations could
have taken place was October 1
" Plant Manager Davis testified that if an employee misses 3 consecutive
days, termination is automatic , mentioning nothing in this connection
about calling the Company In view of the number of absences for 3 and 4
days shown on Exhibit G C 8 (see for example absentee record of Loy
Holder, Homer Lewis, Robert Downing, and Volnia Milgrim), with no
evidence that they were terminated or otherwise disciplined , I do not credit
1999
employees of both plants to attend union meetings
and to sign authorization cards.
Plant Superintendent Eversmeyer testified that
he does all hiring and at that time explains to new
employees company policy regarding absenteeism,
and that he did so when he hired Cates. According
to Eversmeyer, this policy is that if an employee
misses work 3 consecutive days, "he is to call in or
notify the Company in some way," and that for
failure to do so termination is automatic." Ever-
smeyer further testified that Respondent operated
under a system of "excused" and "unexcused"
absences ; that an unexcused absence takes place
when an employee fails to call in or send word of
his impending absence, but if he "sends word or
calls in he's excused all the way through," and that
this is true even though he subsequently discovers
that the reason given by the employee for his
absence was willfully false. Eversmeyer further
testified that if in the opinion of management an
employee was missing too much time from work, he
or the foreman, or perhaps both, would talk to the
employee, in an effort to correct the situation, but
if that did not produce results , the employee would
be terminated. 8
Eversmeyer testified that in April, and again in
July, he directed Foreman Tucker, Cates' im-
mediate supervisor, to speak to the latter about his
absences , and that in the early part of September
he (Eversmeyer) also spoke to Cates on that sub-
ject. Cates admits that Tucker and Eversmeyer did
talk to him on those occasions about his absences.
According to Eversmeyer, he gave such instructions
to Tucker and himself talked to Cates because the
latter was not calling in or sending word regarding
his absences. Indeed, according to Eversmeyer, ex-
cept for one occasion after he talked to Cates in
September, Cates did not call in or send word with
respect to any of his absences, hereafter referred
to, but I do not credit his testimony in that regard.19
Davis' testimony that the rule was as broad as he stated it Although
Foreman Tucker, Cates' supervisor, testified that Cates was at times absent
3 consecutive days, the stipulation as to the dates of his absences does not
bear out Tucker, and i do not credit his testimony in that regard
" In view of Eversmeyer's testimony that if an absence is "excused," the
employee is "excused all the way through," and that it cannot be made the
basis for that employee's discharge, I construe Eversmeyer's reference to
missing too much time from work, to have reference only to "unexcused"
absences, and I accordingly credit his testimony in that regard Having so
credited Eversmeyer, I do not credit the testimony of Plant Manager Davis
who, while admitting that Respondents' rules distinguished between ex-
cused and unexcused absences, testified that because Cates' absentee
record was so bad, he should have been discharged even though his final
absence, hereafter detailed, and which culminated in his discharge, was ex-
cused
" My failure to credit Eversmeyer in that regard is because of the
testimony of Foreman Tucker that he (Tucker) was the one Cates was sup-
posed to call, and on that occasion the latter called in and on other occa-
sions sent word, and that the reason Cates usually gave was that his wife
was sick or that he had car trouble. Even Plant Manager Davis admitted
that he was satisfied that Cates at times called in or sent word of his inabili-
ty to report for work Under Eversmeyer's own standard, such absences by
Cates were excused
2000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rather, I credit Eversmeyer's testimony that Cates'
absentee record "did not stand out as opposed to
any other employee," and that there was no way
"to distinguish [his absentee record] from [that of]
any other employee ......
It is admitted that Cates was discharged on Oc-
tober 2,20 allegedly for excessive absenteeism. The
parties stipulated that between January 1 and Oc-
tober 2, Cates was absent 36 times , on specified
dates, but I find the correct total to be 34.21 The
parties further stipulated that in the same period of
time employee Dale Brooks had 31 absences (ex-
cluding a period of 6 weeks when he was absent
because of an injury sustained at work), and that
employee Troy Lucas had 22 absences, and that
neither Brooks nor Lucas was discharged at the
time . The record does not show that Brooks or
Lucas engaged in anything more than minimal
union activity. As the timing and pattern of Cates'
absences is of some relevance, they are set forth in
the attached Appendix B.
Eversmeyer admitted that employees Brooks and
Lucas had a record of absenteeism which was sub-
stantially similar to that of Cates, and explained
that they were not discharged because they always
called in or sent word when they were unable to re-
port for duty, and hence under Respondents' per-
sonnel practices, disciplinary action against either
of them was unwarranted. Again, however, I credit
the testimony of Foreman Tucker that the absentee
records of Cates and Brooks differed only in the
fact that Cates claimed that his wife was ill, or that
he had car trouble, while Brooks claimed to be ill
himself. Tucker also testified that while Brooks'
absences were excused, he found it necessary to
talk to Brooks about "missing work," and told the
latter the same thing he told Cates on that subject.
Early in the day of October 3, Seib Plant Guard
Woolridge, whose hours of duty are from midnight
to 6:30 a.m., reported to Eversmeyer and Davis
that while making his rounds the preceding night,
he observed Cates in the parking lot and riding
around the plant, and that on prior occasions he
had observed Cates visiting with employees in the
plant and at a nearby truck stop when he was sup-
posedly not able to work.22 Although both Davis
and Eversmeyer referred to the information given
them by Woolridge as being the straw that broke
the camel's back, Eversmeyer admitted that Cates
Y0 Plant Manager Davis testified that he made the decision to terminate
Cates and directed Eversmeyer to do so Eversmeyer testified that he made
that decision I find it unnecessary to resolve the conflict
" The list of absences read into the record included a few hours on cer-
tain dates The record does not show whether such absences resulted from
reporting late or leaving early, but it is clear that Cates was at work for a
substantial period on each of those dates Because Respondents' complaint
was that Cates failed to call in or send word regarding his inability to re-
port, I do not regard these as the kind of absences Respondents contem-
plated and have excluded them However, it may be pointed out that
whether Cates was absent 34 or 36 times has little, if any, bearing on the
issue to be resolved
was discharged because of his unexcused absences.
According to Eversmeyer, he ascertained that
Cates had been absent for 2 successive days
without calling in or sending word, and that when
the latter reported for duty later on October 3, he
(Eversmeyer) discharged him.23 Eversmeyer ad-
mitted that before discharging Cates on October 3,
he made no-attempt to ascertain whether the latter
had called in or sent word that he would not be at
work. He also admitted that when he discharged
Cates he did not mention the information given him
by Woolridge, nor did he mention the fact that
Cates allegedly failed to call or send word that he
would not report for duty on October 2; according
to Eversmeyer he merely told Cates that he was
being terminated for missing too much time from
work.24
II. CONTENTIONS AND CONCLUDING FINDINGS
Before considering the specific unfair labor prac-
tices alleged by the General Counsel, it is necessary
to determine whether Respondents had notice of
the Union's organizational campaign at the time of
the events here involved.
Upon consideration of the entire record in the
case, I am convinced, and so find and conclude,
that knowledge of the Union's organizational cam-
paign, which began on July 15, was known to
Respondents by July 31. Although Respondents'
witnesses, by `always referring to "official" or
"definite" notice, sought to leave the impression that
their first knowledge of the Union' s campaign came
to them with the receipt of the representation peti-
tions and the Union 's letter requesting recognition,
responsible representatives of Respondents, par-
ticularly Swindle, Franklin, and Eversmeyer, ad-
mitted that information which they chose to call
"rumors" did come to their attention, and Franklin
conceded that these so-called "rumors" came to
him through the Rotary Club, Chamber of Com-
merce, and business associates . While these wit-
nesses refused to say when these "rumors " reached
them , I find it significant that , as I have found on
the basis of the credited evidence, supervisors were
interrogating employees early in August with
respect to the Union. Moreover, in view of the ex-
tensive organizational activity above set forth,
among approximately 200 employees, and the small
' How Woolridge knew that Cates was supposedly unable to work the
record does not disclose
" Plant Manager Davis and Foreman Tucker, as well as Eversmeyer,
testified that Cates was absent on this occasion for 2 successive days, but I
do not credit their testimony in that regard Neither the stipulation of coun-
sel nor G C Exhibit 8 lists October I as a day of absence
z, Although Eversmeyer testified that Cates did not call in or send word
concerning his absence on October 2, Cates testified that he did send word
on that occasion by fellow employee James Thompson Thompson was not
questioned about the matter, nor was Wicker who by that time had become
Cates' foreman , and to whom the report was to have been given I find it
unnecessary to resolve the conflict.
SELB MANUFACTURING COMPANY
size of the two communities, it is inconceivable that
prompt notice of the Union's campaign would not
have come to Respondents. Benjamin Franklin's
adage, that three people can keep a secret only
when two of them are dead, is particularly applica-
ble in small communities such as those here in-
volved.
Having concluded that Respondents were aware
of the organizational activity among their em-
ployees at least by July 31, the specific acts alleged
to constitute unfair labor practices will now be con-
sidered.
A. Regarding Allegations at Aircraft
1. The wage increases
Upon consideration of the entire record, I find
and conclude that the wage increases granted
between July 31 and October 23 were not granted
in the normal course of business pursuant to a
previously established plan, but with the intent and
purpose of influencing the employees to abandon
their assistance to and support of the Union. That
such conduct is violative of Section 8(a)(1) of the
Act is settled law. N.L.R.B. v. Exchange Parts Com-
pany, 375 U.S. 405 at 409. I am led to this conclu-
sion by the following considerations:
1. The substantial rise, both in number and per-
centage of the wage increases granted between July
31 and October 23, over the number and percent-
age granted in the period from April 1 through July
24 which began just 2 weeks after the start of the
union organizational campaign, and continued
through October 23, roughly I week after the deci-
sion and direction of election, and 3 weeks before
the election on November 16, is some indication
that the Union's campaign was a factor in the deci-
sion to grant wage increases at that time.
2. In November and December no increases
were granted, and this notwithstanding Franklin's
testimony that the normal operation of the wage
plan contemplated a review of all employees every
2 or 3 weeks. It is inconceivable that, if the normal
operation of the plan would call for 8 to 12 in-
creases each month from July through October,
such normal operation would not call for at least
some increases during November and December.
The record is clear that no increases were given in
the latter period.
3. The fact that 14 of the 18 employees laid off
for failure to comply with Respondents' rule requir-
ing employees to have certain tools received wage
increases between August 21 and October 23,26
nowithstanding Franklin's testimony that the
25 Franklin 's explanation that the number of wage increases rose because
of the increase in the number of employees is not borne out by the record.
Thus as shown in Appendix A, in May when employment stood at 42, 3 em-
ployees, or 7 percent , received an increase , but in July when the work force
stood at 46, 11 employees, or 24 percent, received an increase, and 10 of
2001
purchase of tools by an employee was a factor in
determining whether he should receive what
Franklin called a "merit" raise.
4. The raises were granted at a time when, ac-
cording to Respondents, production was falling off
because employees did not have required tools, and
production allegedly was an important factor in
deciding whether an increase should be granted.
2. The layoff for failure to have tools
Upon consideration of the entire record I find
and conclude that Respondents invoked the tool
purchase rule when they did to retaliate against the
employees for their assistance to and support of the
Union, and that the claim that such action was
taken only to maintain production is a pretext
designed to conceal the true motive.
In N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S.
26, the Supreme Court said (p. 34):
... once it has been proved that the employer
engaged in discriminatory conduct which could
have adversely affected employee rights to
some extent, the burden is upon the employer
to establish that he was motivated by legitimate
objectives since proof of motivation is most ac-
cessible to him [emphasis in text].
That Respondents laid off the 18 employees in-
volved is conceded, although it is claimed that such
layoffs were only for legitimate business reasons.
However, there can be no doubt that these layoffs
"could have adversely affected employees rights to
some extent" (N.L.R.B. v. Great Dane Trailers, Inc.,
supra), and this was sufficient to cast upon Respon-
dents the burden of establishing that they were
"motivated by legitimate objectives" (Great Dane
case, supra at 34).
To carry the burden so placed upon them,
Respondents rely upon the testimony of Swindle
and Franklin to the effect that the failure of the em-
ployees to have the required tools made it necessa-
ry for them to borrow tools from one another, and
that this resulted in great loss of time substantially
interfering with production. It was solely to put a
stop to such loss of production, Respondents con-
tend, that the decision was made to lay off the em-
ployees without the required tools. I find this un-
supported by the record. In the first place, no
production records were offered by Respondents'27
and the failure to do so supports the inference that
such records, if produced, would not support
Respondents' case. As the Supreme Court said in
Interstate Circuit, Inc. v. United States, 306 U.S.
208 at 226:
the 11 were given on July 31
2N As above stated four employees received an increase I week before,
and four received such increases I week after the October 16 notice that
employees must obtain the tools
21 That such records were kept was admitted by Plant Manager Davis
2002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The production of weak evidence when strong
is available can lead only to the conclusion that
the strong would have been adverse.
Secondly, the evidence shows that the Seib plant
performs substantially the same functions as Air-
craft, and has the same rule requiring employees to
supply tools. Although Seib has a larger production
force than Aircraft,28 and a substantial number of
them do not have the required tools, Respondents
did not invoke their rule at Seib, nor was any Seib
employee laid off or disciplined for failure to
comply with the rule. Why the borrowing of tools
among Aircraft's employees would result in exces-
sive interference with their production, while the
same conduct at Seib would not have that effect, or
why some remedial action was necessary at Aircraft
but not at Seib, Respondents did not explain. These
considerations convince me, and I find, that the al-
leged tool borrowing among employees, and the al-
leged loss in production was not the real reason for
invoking the rule when Respondents did so . Rather,
the timing of the event when the Union's campaign
was at its height , the failure to invoke it at Seib, and
the failure to invoke it at Aircraft in the months of
June, July, and August"convince me, and I find,
that the rule was invoked, and the layoffs pursuant
thereto were for discriminatory motives. As the
Court of Appeals for the Ninth Circuit said in Shat-
tuck Denn Mining Corporation v. N.L.R.B., 362
F.2d 466, 470:
If he [the trier of fact] finds that the stated mo-
tive for discharge is false, he certainly can infer
that there is another motive. More than that,
he can infer that the motive is one that the em-
ployer desires to conceal-an unlawful mo-
tive-at least where , as in this case, the sur-
rounding facts tend to reinforce that in-
ference.
B. Regarding Allegations at Sell,
1. Interference, restraint, and coercion
In section 1, C, 1, hereof, I found, on the basis of
the credited evidence, that Respondents' super-
visors interrogated employees Thompson, Hender-
son, and Cates regarding their activities in support
of the Union, threatened to close the plant if em-
ployees chose the Union to represent them, and
threatened Cates with discharge if he continued to
assist and support the Union. Such conduct, I find
and conclude, was violative of Section 8(a)(1) of
the Act, and no extended discussion or citation of
authority is required.
2. The discharge of Cates
As Cates' termination on October 3 was an act
which could adversely affect his employee rights,
the burden rested upon Respondents to establish
that the discharge "was motivated by legitimate ob-
jectives" (N.L.R.B. v. Great Dane Trailer, Inc.,
supra). Upon consideration of the entire record I
am convinced that Respondents have not
established that the discharge of Cates was for
legitimate reasons , but find and conclude that in
discharging Cates Respondents were motivated by
his union activity, and that the latter's alleged ab-
senteeism was merely a pretext seized upon in an
effort to conceal the true motive for the discharge,
and hence the discharge was violative of Section
8(a)(3) and (1) of the Act. I reach these conclu-
sions upon the totality of the following considera-
tions:
1. The record leaves no room for doubt that
Cates was the most active prounion employee in
the plant, and Respondents admit that except for
his alleged absenteeism Cates was a good operator
and a satisfactory employee.
2. Cates' absences, as shown by Appendix B,
were fairly evenly spaced over the period in
question; two to five absences a month. Although
Eversmeyer himself, and at his direction Foreman
Tucker, found it necessary to talk with Cates about
his absences , Eversmeyer 's testimony , that if an em-
ployee called in or sent word about not reporting
for work his absence was excused, makes it plain
that the talking with Cates was simply an effort to
minimize the occasions when Cates would be una-
ble to report for work even for legitimate reasons,
and were not, nor were they intended to be, repri-
mands for unexcused absences. Eversmeyer ad-
mitted that if Cates' absences had been excused
there would have been no basis for his discharge,
but that all his absences ( except one in September),
were unexcused because of his failure to call in or
send word, and that he was in fact discharged for
his unexcused absences. As heretofore pointed out,
however, Plant Manager Davis, whose secretary
kept the attendance records, testified that he knew
Cates had some excused absences, and Foreman
Tucker, Cates' immediate supervisor, testified that
when Cates was absent "on occasions he would call
us, and on other occasions he sent word in." In
light of this testimony Eversmeyer's claim, that all
of Cates' absences were unexcused because of his
failure to call or send word, does not stand up
under scrutiny.
3. It is, to say the least, difficult to understand
why Cates' absences from January through August,
Aircraft has approximately 80 employees , Seib about 1 10
In these months employment at Aircraft , according to Franklin, was
42, 46 , and 60, respectively If tool borrowing adversely affected produc-
tion in October , when the employee compliment had reached its peak and
stood at about 80, it would appear that the work force was sufficiently large
in June, July, and August , that tool borrowing should also have had a sub-
stantial effect, but Respondents apparently saw no reason to invoke the
rule at that time
'0 Although the court there was dealing with a case involving a discharge,
I see no reason why the same rule should not apply to a case involving al-
leged discriminatory layoffs
SELB MANUFACTURING COMPANY 2003
if they presented the problem Respondents contend
they did, were tolerated by Respondents, but
became intolerable with the advent of the Union, so
as to require the discharge of an admittedly
satisfactory operator, in mid-workweek.
4. The parties stipulated that during the same
period here involved employees Brooks and Lucas
were absent 31 and 22 times, respectively, and that
neither was discharged or otherwise reprimanded
for such absences . With respect to Brooks and Lu-
cas, I have found that their activity on behalf of the
Union was minimal , if it existed at all. Both Davis
and Eversmeyer claimed that the absences of
Brooks and Lucas were excused because they
called or sent word when they were unable to re-
port for work. In the case of Brooks, as I have
found, based on the testimony of Foreman Tucker,
the latter found it necessary to talk to him about his
absences, and that the only difference he observed
in the absentee records of Cates and Brooks was
that the former claimed his wife was ill, or that he
had car trouble, while the latter claimed to be sick
himself. Respondents' explanation for the disparity
in the treatment between Cates and Brooks, there-
fore, does not stand up under scrutiny.
5. It is not without significance, as I have found,
that Cates was warned that if he did not cease sup-
porting the Union he would be terminated.
Upon the totality of the foregoing considerations,
I am convinced that Respondents have not borne
the burden of establishing that, in discharging
Cates, they were motivated by legitimate considera-
tions. It is reasonable, therefore, to infer, as I do,
that Cates' absentee record was not the reason for
his discharge, but that the real reason-and the
reason which Respondents seek to conceal-was
Cates' activity in support of the Union. Shattuck
Denn Mining Corporation v. N.L.R.B., supra. I so
find and conclude.
CONCLUSIONS OF LAW
1. Respondents are employers within the mean-
ing of Section 2 (2) of the Act and are engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interrogating employees regarding their ac-
tivities in support of the Union , by threatening an
employee with discharge if he continued to assist
and support the Union , by threatening to close the
plant if the employees chose to be represented by
the Union , as well as by granting wage increases to
dissuade employees from assisting and supporting
the Union, Respondents interfered with, restrained,
and coerced their employees in the exercise of
rights guaranteed to them by Section 7 of the Act,
and thereby engaged in and are engaging in unfair
labor practices proscribed by Section 8(a)(1) of
the Act.
4. By discharging Carlton Cates, and by laying
off the 18 employees who had not complied with
the rule for the purchase of tools, because of their
assistance to and support of the Union, Respon-
dents discriminated in regard to their hire or tenure
of employment, discouraging membership in the
Union, and thereby engaged in, and are engaging
in, unfair labor practices proscribed by Section
8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents interfered with,
restrained, and coerced their employees in the ex-
ercise of rights guaranteed them by Section 7 of the
Act, and in view of the nature of the unfair labor
practices found to have been committed, which go
to the very heart of the Act, it will be recom-
mended that Respondents be required to cease and
desist from in any manner infringing upon the exer-
cise of such employee rights. N.L.R.B. v. Entwistle
Mfg. Co., 120 F.2d 532 (C.A. 4); California Lin-
gerie, Inc., 129 NLRB 912.
Having also found that Respondents discrimina-
torily discharged Carlton Cates and discriminatorily
laid off 18 other employees, it will be recom-
mended that they offer to each such discriminatee
not heretofore reinstated, immediate, full, and un-
conditional reinstatement to his former or substan-
tially equivalent position, without prejudice to his
seniority or other rights, privileges, or working con-
ditions, and make each discriminatee whole for any
loss of earnings suffered by reason of said dis-
crimination , by paying to him a sum of money
equal to the amount he would have earned from the
date of the discrimination against him to the date of
his reinstatement, less his net earnings during such
period. Backpay with interest at the rate of 6 per-
cent per annum shall be computed in the manner
set forth in F. W. Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB
716. It will also be recommended that Respondents
be required to preserve and, upon request, make
available to authorized agents of the Board, all
records necessary or useful in determining com-
pliance with the Board's order, or in computing the
amount of backpay due.
[Recommended Order omitted from publica-
tion.]
2004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
Wage Increases
Name
Date of
Increase
Amount
From - To
Date and Amount of
Last Prior Increase*
Jimmie Cantrell 2/1/67 1.35 to 1.40 12/12/66 - 10 cents
Fred Hooten 2/1/67 1.35 to 1.40 12/12/66 - 5 cents
Chesie Toy 2/1/67 1.35 to 1.40 12/12/66 - 10 cents
Terry Cresap 2/1/67 1.35 to 1.40 12/12/66 - 5 cents
James Crain, Sr. 2/13/67 1.80 to 1.85 12/12/66 - 5 cents
Arlin Davis 2/1/67 1.35 to 1.40 12/12/66 - 10 cents
Soloman Eveland 2/1/67 1.25 to 1.40 Hired 1/9/67 at 1.25
Frederick Ferguson 2/1/67 1.35 to 1.40 12/12/66 - 5 cents
Carrol Jones 2/1/67 1.35 to 1.40 12/12/66 - 5 cents
Robert Johnson 2/1 /67 1.25 to 1.40 Hired 1/13/67 at 1.25
Jonny Johnson 2/1/67 1.25 to 1.40 Hired 1/7/67 at 1.25
Billy Lovelady 2/1/67 1.35 to 1.40 12/12/66 - 10 cents
Frank Thielemier 2/1/67 1.35 to 1.40 12/12/66 - 5 cents
Total increases 1** Total employment Percentage
Marva Shoe 3/13/67 1.40 to 1.45 12/12/66 - 5 cents
Robert Davis 3/13/67 1.45 to 1.50 12/12/66 - 5 cents
Total increases 2 Total employment Percentage
Marva Shoe 4/17/67 1.45 to 1.50 3/13/66 - 5 cents
Chesie Toy 4/17/67 1.40 to 1.45 2/1/67 - 5 cents
H. Ray Orsborn 4/10/67 1.50 to 1.55 12/12/66 - 5 cents
Sonny Seagroves 4/17/67 1.40 to 1.45 Hired 3/10/67 at 1.40
Total increases 4 Total employment 33 Percentage 12
Chester Denton 5/22/67 1.45 to 1.50 12/12/66 - 5 cents
John Melton 5/1/67 1.40 to 1.45 Hired 3/13/67 at 1.40
In cases where employee received no prior increase the hire date and the
rate at time of hire are shown.
** As 12 of the 13 increases granted in February were granted on February 1,
when amendments to the Fair Labor Standards Act became effective raising
the minimum wage to $1.40, and as each of the 12 raises so granted raised
the employees hourly to $1.40, I must assume that these raises were not
granted pursuant to Respondents' alleged wage plan, but because of the
aforesaid amendments.
*** The record does not disclose total employment in February or March. For
the remaining months the figure is based on the testimony of Franklin
or Swindle.
SELB MANUFACTURING COMPANY 2005
Carrol Jones 5/1/67 1.40 to 1.45 2/1/67 - 5 cents
Total i crease 3 Total em lo t 42 P 7n s p ymen ercentage
Jerry Cantrell
Ronnie Carter
James Crain , Sr.
Allan Saala
6/19/67
6/26/67
6/12/67
6/12/67
1.40
1.60
1.85
1.40
to
to
to
to
1.45
1 .65
2.00
1.45
12/12/66
12/12/66
2/13/67
Hired 2/28/67
- 5 cents
- 5 cents
- 5 cents
at 1.40
Total in r s s 4 T t l l t 42 P t 9 5c ea e o empa oymen ercen age .
Darrell Bruton 7/31/67 1.85 to 2.05 12/12/66 - 5 cents
Thomas Holloway 7/31/67 1.40 to 1.45 Hired 4/17/67 at 1.40
Marva Shoe
Chesie Toy
7/31/67
7/31/67
1.50
1.45
to
to
1.55
1.50
4/17/67
4/17/67
- 5 cents
- 5 cents
Roger Waddell 7/31/67 2.05 to 2.25 12/12/66 - 10 cents
Lloyd Agee 7/31/67 1.55 to 1.75 12/12/66 - 5 cents
Jerry Brown
Darvin Barnes
Shirley E. Pratt
Allan Saala
7/31/67
7/24/67°
7/31/67
7/31/67
1.40
1.40
1.40
1.45
to
to
to
to
1.45
1.50
1.45
1.50
Hired 3/9/67
Hired 4/4/67
Hired 3/9/67
6/12/67
at 1.40
at 1.40
at 1.40
- 5 cents
Vance Waddell 7/31/67 1.40 to 1.45 Hired 4/17/67 at 1.40
Total increases 11 Total Employment 46 Percentage 24
Gail Bailey 8/21/67 1.50 to 1.55 12/12/66 - 5 cents
Jim Brown 8/28/67 1.40 to 1.50 Hired 6/5/67 at 1.40
Ernest Bruton 8/28/67 1.40 to 1.50 Hired 5/29/67 at 1.40
Jimmie Cantrell 8/21/67 1.40 to 1.50 2/1/67 - 5 cents
Gralen Carmickle 8/28/67 1.40 to 1.50 Hired 4/26/67 at 1.40
James Crawford 8/28/67 1.40 to 1.45 Hired 2/28/67 at 1.40
Robert Davis 8/21/67 1.50 to 1.55 3/13/67 - 5 cents
Fred Hooton 8/21/67 1.40 to 1.50 2/1/67 - 5 cents
Everett Lemmons 8/28/67 1.40 to 1.45 Hired 5/29/67 at 1.40
John Melton 8/21/67 1.45 to 1.50 5/1/67 - 5 cents
Earnest Woods 8/28/67 1.40 to 1.45 Hired 5/26/67 at 1.40
Charles Horn 8/28/67 1.40 to 1.45 Hired 6/5/67 at 1.40
Total increases 12 Total employment 60 Percentage 20
2006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charles Collins 9/5/67 1.55 to 1 . 60 12/1 / 66 - 5 cents
Thomas Holloway 9/18/67 1.45 to 1.50 7 /31/67 - 5 cents
Marva Shoe 9/18/67 1.55 to 1.60 7 /31/67 - 5 cents
Chesie Toy 9/18/67 1.50 to 1.55 7/31 / 67 - 5 cents
Charles White 9/18/67 1.40 to 1 . 50 Hired 6/ 20/67 at 1.40
Clinton Younger 9/18/67 1.40 to 1 .45 Hired 8/8/67 at 1.40
Lloyd Agee 9/25/67 1.75 to 1.85 7/31 / 67 - 20 cents
Allan Saala 9/18/67 1.50 to 1.55 7 / 31/67 - 5 cents
Total increases 8 Total employment 66 Percentage 12
Carl Baker 10/23/67 1.40 to 1 . 60 Hired 9/18/67 at 1.40
Roy Brown 10/23/67 1.40 to 1 . 50 Hired 7 / 6/67 at 1.40
Jerry Cantrell 10/9/67 1.45 to 1 . 55 6/19/ 67 - 5 cents
Eddie Carmickle 10/9/67 1.40 to 1.50 Hired 6/6/67 at 1.40
Samuel Frangenberg 10/9/67 1.40 to 1 . 50 Hired 6/ 20/67 at 1.40
Russell Hufstedler 10/23/67 1.40 to 1.45 Hired 8 /8/67 at 1.40
Hattie Kerley 10/23/67 1.40 to 1 . 45 12/12/ 67 - 10 cents
Ronnie Perry 10/ 9/ 67 1.40 to 1150 Hired 6/14/67 at 1.40
Jerry Ramsey 10/23/67 1.40 to 1 . 50 Hired 7/6/67 at 1.40
Buddy Swan 10/9/67 1.40 to 1 . 50 Hired 6/27/67 at 1.40
James Hart 10/23/67 1.40 to 1.50 Hired 7/26/67 at 1.40
Carl Midgett 10/23/67 Hired 7 /6/67 at 1.40
Total increases 12 Total employment 80 Percentage 15
SELB MANUFACTURING COMPANY 2007
APPENDIX B
Stipulated dates of Cates ' absences
Week ending Saturday Date of absence
Jan. 7 Tuesday, Jan. 3
Jan. 21 Tuesday & Friday, Jan. 17 & 20
Jan. 28 Monday, Jan. 23
Feb. 4 Sunday, Jan. 29, Wednesday, Feb. 1
Feb. 11 Sunday, Feb. 5
Feb. 18 Sunday, Feb. 12
March 4 Monday, Feb. 27
March 11 Monday, March 6
March 18 Monday & Wednesday, March 13 & 15
March 25 Monday, March 20
April 1 Thursday, March 30
April 15 Tuesday, April 11
April 29 Sunday, April 23
May 13 Sunday, May 7
June 3 Sunday & Tuesday, May 28 & 30
July 1 Wednesday & Friday, June 28 & 30
July 8 Wednesday, July 5
July 15 Sunday, Tuesday, & Friday, July 9, 11, & 14
July 29 Friday, July 28
Aug. 12 Monday & Thursday, Aug. 7 & 10
Aug. 19 Wednesday & Friday, Aug. 16 & 18
Sept. 16 Sunday, Sept. 10
Sept. 23 Tuesday, Sept. 19
Sept. 30 Sunday, Sept. 24
Oct. 7 Monday, Oct. 2