Southeastern Cast Stone, Inc.

National Labor Relations Board - Board Decisions

Sep 22, 1970

185 N.L.R.B. 688 (N.L.R.B. 1970)

688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southeastern Cast Stone, Incorporated and North
Carolina Laborers' District Council , affiliated with
Laborers' International Union of North America,
AFL-CIO. Case I I -CA-4024
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
September 22, 1970
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING AND
BROWN
On May 25, 1970, Trial Examiner Herzel H. E
Plaine issued his Decision in the above-entitled case,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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 and briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions,' and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Southeastern Cast
Stone, Incorporated, Kinston, North Carolina, its
' We do not adopt , or rely on, the observation set forth in fn 11
of the Trial Examiner 's Decision Moreover, Respondent has excepted
to the Trial Examiner 's finding that President Fred Adams "began counter-
campaigning in late July, 1969 " Our rejection of that finding, and of
the observation in fn 11, does not alter our agreement with the Trial
Examiner 's conclusions and recommendations.
' These findings and conclusions are based , in part, on credibility
determinations of the Trial Examiner to which the Respondent has except-
ed The Trial Examiner 's credibility findings are not contrary to the
clear preponderance of all relevant evidence Accordingly, we find no
basis for disturbing those findings Standard Dry Wall Products, Inc,
91 NLRB 544, enfd. 188 F 2d 362 (C A 3)
HERZEL H. E. PLAINE, Trial Examiner This is a proceeding
charging the Respondent with violations of Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act)'
Complaint was issued November 19, 1969, on a charge by
the Union (the Charging Party) filed with the Board
October 13, 1969, amended charge filed October 22, 1969,
and second amended charge filed November 17, 1969.
There are two principal issues. First under the pleadings
and proof, the Respondent has conceded that it discharged
from its employment William Dunn for engaging in union
activity. However, Respondent contends that Dunn was a
supervisor, rather than an employee, within the meaning of
the Act, and therefore not entitled to the protection of
Section 8(a)(3) of the Act, as contended by the General
Counsel. Hence the status of employee Dunn as either
supervisor or rank-and-file employee is at issue
Second, it is the contention of General Counsel, denied
by Respondent, that, in violation of Section 8(a)(1),
Respondent engaged in unlawful interrogation of
employees concerning their union membership and desires,
threatened reprisals if they attended union meetings and if
the Union came into the plant, and promised better
vacation schedules and granted paid holidays for the
purpose of undermining the Union's organizational
campaign Essentially, the events and statements out of
which these charges emanate are not disputed by
Respondent, but their alleged coercive nature or unlawful
purpose is disputed and gives rise to the second issue.
The case was tried on March 17, 1970, at Kinston, North
Carolina Counsel for the General Counsel and for the
Respondent have filed briefs
Upon the entire record of the case, including my
observation of the witnesses, and after due consideration of
the briefs, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a North Carolina corporation engaged at
Kinston, North Carolina, in the manufacture and sale of
prestressed concrete panels, sometimes referred to as cast
stone, used in the construction of buildings Annually,
Respondent receives raw materials and products, valued in
excess of $50,000, directly from points outside North
Carolina.
' Under Sec 8(a), "It shall be an unfair labor practice for an
employer-(I) to interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in section 7, (3) by discrimination in regard to
hire or tenure of employment or any term or condition of employment to
encourage or discourage membership in any labor organization
185 NLRB No. 99
SOUTHEASTERN CAST STONE, INCORPORATED
Respondent is, as it admits , an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act 2
The Union is, as Respondent admits, a labor
organization within the meaning of Section 2(5) of the Act.
If. THE UNFAIR LABOR PRACTICES
A Status of Employee Dunn
I. The business operation and Dunn's function
At the times in issue, i.e , prior to the discharge of
employee William Dunn, October 10, 1969, Respondent
conducted its operation at Kinston with about 30 rank-and-
file employees, according to the undisputed testimony of
Dunn These 30 men were engaged primarily in unskilled
hand labor, according to the testimony of General Manager
Roland Paylor.
Beginning in July 1969, Respondent had, if its version is
accepted, II supervisors, 6 of whom were called foremen,
for the approximately 30 unskilled laborers In order of
rank (or chain of command, to use General Manager
Paylor's phrase), President Fred Adams was the overall
production manager,3 Paylor was general manager, Harold
Davis was plant superintendent, Jim Tucker was assistant
plant superintendent, Phil Stroud (former plant
superintendent replaced by Davis and reassigned) was in
charge of all outside work, J B. Jackson (former assistant
plant superintendent replaced by Tucker and reassigned)
was directly responsible for the production items in the
plant and was foreman of the carpenter shop, and there
were five others classified as "foreman" (without testimony
purporting to rank them) These were shop foreman Bobby
Bird, yard foreman Lee Mitchell, casting foreman James
Outlaw, fabricating or steel foreman William Dunn, and
foreman Cleveland Cornegie
For the purposes of this case, the General Counsel
attacked only the claim of Respondent that Dunn was a
supervisor within the meaning of the Act (although the
attack cast some doubts on the validity of the claim for
some of the others designated foreman').
According to its president , Fred Adams, Respondent and tour other
companies , also engaged in the cast stone business at four other locations
in North Carolina, are owned in common by four Adams brothers
All five plants are under the common management of Adams United
Corporation , a management company formed by the five operating compa-
nies and staffed by the several Adams brothers None of the other
four operating companies , or the management company, or the Adams
brothers , were named respondents in this case
He served in this capacity also for the other four North Carolina
plants, owned and managed by the Adams' interests , see fn 2, supra,
employing, with the Kinston (Respondent 's) plant, a total of 125 employ-
ees All other supervisors mentioned served only the Respondent, at
Kinston
There was only meager testimony regarding the nature of the work
and pay of foremen Outlaw and Mitchell , a little regarding foreman
Jackson , and none regarding either foreman Cornegie , who was identified
as a foreman in 1968 and in the early summer 1969 meeting of management
and the employees (infra), or foreman Bobby Bird , who was mentioned
as among the foremen and others who attended the production meetings
inaugurated by Respondent in July 1969
689
Respondent manufactured its concrete panels mainly in-
plant, with a crew of 12 employees, known as the casting or
precasting department.-' The precasting department mixed
and poured the concrete into wooden forms (made in the
carpenter shop), inserted the reinforcing wire mesh and
steel bars, and attached the metal plates and anchors bolts
(designed for joining the panel to the ultimate building
construction). The panels were then moved into the plant
yard for finishing, storing, and shipping
Employee Dunn was a part of the precasting department,
where his prime function was cutting and bending the wire
mesh and steel rods and inserting them in the concrete
panels. As Assistant Plant Manager Tucker explained the
manufacturing process, the precasting men would pour a
few inches of concrete into a form, Dunn would insert the
reinforcement, and the precasting men would then pour the
rest of the concrete over the reinforcement If Dunn needed
help, said Tucker, it was only for bending the reinforcement
to fit in the form Frequently, said Tucker, Dunn would go
to the blueprints to see what he had to have to make a piece
of wire fit into the form
Dunn's function was referred to as reinforcing or
fabricating, and Dunn performed the task usually in a small
open area or room called the reinforcement area or steel
room, adjoining the area where precasting was performed.
Dunn was the only man regularly assigned to reinforcement
or fabricating and it occupied no more than 75 percent of
his tifne When not so occupied he spent the remainder of
his time doing other chores in the precasting department,
such as helping put the anchor plates in the concrete panels,
or carrying wood forms from the carpenter shop According
to Dunn, most of this 25 percent of his time he spent with
Foreman (and former assistant plant superintendent)
Jackson, who according to General Manager Paylor was
the foreman directly and immediately concerned with in-
plant production, and sometimes with foreman James
Outlaw whose job, said General Manager Paylor, was to see
that concrete was properly placed in the forms and vibrated
and troweled Dunn testified that Outlaw, like himself,
worked manually all of the time.6
In his prime reinforcement function, Dunn was able to do
30 to 35 percent of the work without any help, according to
Assistant Plant Superintendent Tucker Both he and Dunn
agreed that whenever Dunn needed help it was mostly one
man, and only occasionally more than one, and the time
required of the man or men to help was as little as 2
minutes and on the average 5 to 15 minutes Occasionally,
said Tucker, production requirements might necessitate
giving Dunn a helper for an hour or two.
' General Manager Paylor thought that the number of men in precasting,
in June and July 1969, was 15 to 20 employees , although he did not
differ on the total number for the whole plant of about 30 employees
There were some other such matters , concerning what the payroll actually
showed, but notwithstanding Paylor was offered the opportunity and
was even requested to produce the payroll records to help settle such
matters, he declined , through counsel , to produce the payroll records
In net effect , the differences were not cntical , where they existed, Paylor's
failure to provide the best evidence has cast doubt on the credence
of his testimony in those matters
' Neither Jackson nor Outlaw, who apparently knew most about Dunn's
work, was called to testify
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Dunn testified that, except for a four month
period prior to May 1969, when a Leo Bremage assisted
him regularly, he had no regularly assigned assistance 7
When he needed help, Dunn said, if he saw an employee
available in the precasting area he would ask him to help,
and usually kept him only a few minutes But, said Dunn, if
he found no one available, he asked his supervisor, usually
Jackson, and he would assign someone to help Plant
Superintendent Davis and Assistant Plant Superintendent
Tucker said it was their understanding that when Dunn
needed help he normally went to Foreman Outlaw who
assigned someone he could spare from the precasting men
This seeming difference in testimony ("usually Jackson" as
against "normally Outlaw") is not a conflict but an
understandable and reconcilable difference in emphasis
based upon differing backgrounds Davis and Tucker did
not come on the job until July 1969 (and then partially
displacing Jackson in his previously greater supervisory
role), whereas Dunn had been performing his reinforcing
job for at least 2 years with Jackson as his supervisor
Moreover, Davis and Tucker undoubtedly overlooked, in
testifying, the fact that Dunn got his temporary assistance
from yard employees (Kelly was an example, and so
testified) as well as from in-plant employees (like Hawkins),
and that Jackson was the overall foreman, just below
Assistant Plant Manager Tucker in rank, whereas Outlaw
was merely precasting foreman working inside the plant.
What is significant, in the combined testimony, is the
agreement on both sides that essentially Dunn did not enjoy
or exercise control to assign men to assist him in his work
Likewise, when employee Dunn came over to help with
the other work of the precasting department, Dunn neither
had nor exercised authority over the men This was not only
Dunn's testimony but the testimony of employee Jesse
Hawkins who had worked in the plant for 19 years and was
stationed in the precasting department a few yards from
Dunn's steel reinforcing area. Employee Hawkins testified
that he was one of a few who had given Dunn a hand from
time to time, a few minutes at a time, in the reinforcing
work, and that when Dunn finished this work he would
come and help in the precasting department with the
placing of the anchor plates and bolts on the concrete
panels. According to Hawkins, Dunn gave no orders or
directions to any of the men when he worked in the
precasting department, nor had he (Hawkins) been given, or
observed others given, orders or directions by Dunn in the
steel reinforcing work 8
' General Manager Paylor's faint recollection (without benefit or produc-
tion of payroll records, see fn 5, [supra]) that Dunn had a regular
helper named Cauley, who worked in form-setting , assigned to Dunn
in October and November 1969, was hardly credible evidence, since
Dunn was discharged on October 10 None of the more immediate
supervisors corroborated Paylor's recollection
' Plant Superintendent Davis claimed that when Dunn did this assisting
work he shared command of the men with foreman Outlaw, but this
is contradictory of his assertion that Dunn needed Outlaw's permission
or assignment for the same men to help with the reinforcing , an integral
part of the precasting work The claim lost any force it might have
had (to contradict employees Hawkins and Dunn ) when Plant Superintend-
ent Davis , who said that he spent considerable time observing in-plant
operations , confessed that he had never heard Dunn giving directions
to employees
Employee Dunn had engaged in this same work for
several years both for Respondent and previously for a
predecessor company In the fall of 1968 when employee
Outlaw was made a foreman, Dunn asked Phil Stroud, who
was then plant superintendent, for a pay raise and was told
by Stroud he was up for a raise and if Stroud could get two
or three men to help Dunn he would be made a foreman
Nothing further was done until May or June 1969 when,
after the firing of an employee and a sitout of the men
including Dunn, Plant Superintendent Stroud provided
Dunn with an explanation for the firing and told Dunn he
was making him a foreman, with a 10-cent-per-hour pay
raise (from $1.75 per hour to $1.85 per hour) and 15 cents
more later on. Nothing was said to him about the scope of
his authority or duties According to Dunn, Stroud told the
sitting employees he wanted them back to work and that
Dunn and Outlaw were foremen. Dunn went back to work
and the men followed.
Employee Roy Lee Kelly, who worked in the yard where
Lee Mitchell was foreman, recalled that at this meeting
Plant Superintendent Stroud told the men that Dunn,
Outlaw, Mitchell, and Cleveland Cornegie were foremen
and to take orders from them as from himself Employee
Hawkins recalled that Stroud told the men at the meeting
that Outlaw was a foreman in charge of the precasting and
that Dunn was in charge of doing the same thing he had
been doing Later, in July 1969, when General Manager
Paylor introduced the employees to their new plant
superintendent and assistant superintendent, Davis and
Tucker, and described the new assignments for the replaced
Stroud and Jackson, Dunn along with the other foremen
were introduced as foremen who would continue in their
then capacities, according to the testimony of Paylor,
Dunn, and Kelly
In talking to Dunn, and to the men, Stroud did not
indicate what employees, if any, would be assigned to Dunn
nor were any assigned to him Indeed Dunn lost the one
man ever assigned to him for a period of time, Bremage,
who left in May 1969, before Dunn was named foreman,
after helping Dunn in the previous 4 months with the
reinforcement work A substitute for Bremage was not
given to Dunn and he reverted to the previously described
means of obtaining help with the reinforcement work as
help was needed.
Employee Hawkins, as well as Dunn, testified that
Dunn's work did not change after the meeting where he was
designated foreman, that he did the same work thereafter as
he had done before and got his help as before Dunn did not
receive the additional 15-cents-per-hour pay raise discussed
by Stroud
Dunn and Outlaw were paid $1.85 per hour and Mitchell
was paid $1 80 per hour, which represented a differential for
foremen of between 10 cents and 25 cents per hour more
than the hourly rate paid the other employees, according to
General Manager Paylor In this connection Assistant
Plant Manager Tucker testified that Dunn's job, entailing
the reading of blueprints and cutting and fitting steel into
the panels, was regarded as a skilled job and gets a little
more pay than a laborer helping with the steel reinforcing
Like the other employees, said Dunn, he punched a
timeclock and was paid at hourly rates with overtime, in
SOUTHEASTERN CAST STONE, INCORPORATED 691
contrast to supervisors, such as Davis and Tucker, who
were on salary and did not punch in and out Dunn said he
had only the 6 nonpaid holidays and the I week's paid
vacation (if not lost by absences) allowed the employees at
Christmas He worked with his hands all of the time, and
testified that the only directions he gave to another
employee was to show one who might be helping him how
the wire mesh or steel should be bent In the case of
employees like Hawkins who had done reinforcing work
before, there was no need for such instruction, said Dunn.
Plant Superintendent Davis, who spent considerable time in-
plant, testified that he never heard Dunn giving directions to
employees
When Respondent inaugurated the holding of occasional
production meetings in July 1969, Dunn said he attended
three of them, up until the time of his discharge in October,
along with all of the foremen and supervisors, the chief
estimator, and the architect. Dunn testified that he did not
participate in the discussions, which related to quantity and
quality of the products (and nothing about personnel or
labor relations), and that the one time he spoke in the
meetings he mentioned the need for more adequate quarters
for the steel room, to be better protected from the rain.
Dunn had none of the authority normally associated with
supervision, such as participation in the hiring, disciplining,
or firing of employees Assistant Plant Superintendent
Tucker testified that when asked by Foreman Outlaw if
Outlaw could let a man off early Tucker told him it was up
to him. Tucker said further that Dunn didn't ask, but that
he had the same discretion Nevertheless, testified Tucker,
he did not know of any case where Dunn had let someone go
off early without checking first with Tucker
2. Dunn not a supervisor
Counsel for Respondent has relied heavily on the label or
title "foreman" in attributing supervisory status to
employee Dunn In Dunn's case, if not some of the others,
according him the title was a method for reclassifying and
providing him a little better pay as a superior or skilled
employee remaining in the same job. Assistant Plant
Superintendent Tucker madeclear that the steel reinforcing
job that Dunn performed was skilled, a cut above the
ordinary labor performed in the plant, and entitled to a
little more pay The circumstances of the 10-cent pay raise
and promotion to foreman for Dunn indicated that
management wanted to retain his skill as a worker and his
apparent influence with fellow employees that got them to
lay aside their grievance and go back to work after the May
1969 sitout.
Dunn's job and style of operation was the same both
before and after the promotion to foreman. Right up to his
discharge, he continued to do manual work full time,
frequently alone in the reinforcing work or with an
occasional helper as needed, and in turn assisting with the
other precasting work when he completed his reinforcing
work. The only control he could and did exert over a fellow
employee was to ask one who was unoccupied to give him a
hand with the bending or cutting of wire mesh or rods when
he was physically unable to handle the task alone Dunn
enjoyed and exercised this privilege before he was
accorded tho title foreman , and even after he acquired the
title, if there were apparently no unoccupiedemployees
available to help, then Dunn was obliged to request
assignment of helpers needed from Overall Foreman (and
former assistant superintendent ) Jackson or from
Precasting Foreman Outlaw . These assignments of help
were only temporary , usually for the brief time entailed in a
particular job. For a short time prior to his promotion,
Dunn had a regularly assigned helper for the reinforcing
work This lasted for a period of about 4 months, after
which Dunn reverted to the "pickup " or assignment method
of obtaining help when needed
The instructions Dunn gave to his temporary helpers
were routine instructions on how to bend wire mesh or
reinforcing bars. With employees who had done the work
before, instruction was unnecessary.
Dunn did not share in any way in the powers of
management to hire, discipline, or fire employees These
powers were reserved to General Manager Paylor, Plant
Manager Davis , Assistant Plant Manager Tucker, and
Overall Foreman Jackson Indeed . Dunn had no powers of
direction or control over the functions, assignments , or time
of any employees ( except in the very limited "pickup" of an
occasional helper , already discussed)
Dunn was essentially a skilled or superior worker with no
supervisory authority , except as he might routinely show a
new helper among his occasional helpers how to perform
the physical tasks of bending or cutting the wire mesh or
steel rods He was paid a few cents per hour more than his
fellows in recognition of his skill, including ability to read
blueprints , but in other respects was under the same
conditions of employment applicable to the rank-and-file
employees , including the punching of a timeclock , hourly
pay, 6 unpaid holidays, and a I week Christmas vacation if
not forfeited by previous absences.
The most that can be said of Dunn's position is that he
had achieved the status of a "leadman ," the superior
worker who exercises the control of a skilled worker over
less capable employees , but who does not enjoy supervisory
status in that capacity because he does not also share the
power of management , N.L.R.B. v Griggs Equipment,
Inc , 307 F.2d 275, 279 (C.A. 5). The fact that Dunn gave
instructions to occasional helpers on how to help would not
denote the exercise of supervisory discretion or independent
judgment but only the exercise of routine authority,9
N.L.R B v. Whiten Machine Works, 204 F.2d 883, 886
(C.A 1); Precision Fabricators , Inc. v . N L R B , 204 F.2d
567, 568-569 (C.A. 2)
Respondent gave Dunn the title " foreman," but "the
employer cannot make a supervisor out 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 possession
and exercise of actual supervisory duties and authority and
' Under Sec 2(11) of the Act, a supervisor is one having authority,
in the interest of the employer, (among other things ) "responsibly to
direct" other employees , if the exercise of such authority is "not merely
of a routine or clerical nature , but requires the use of independent
judgment "
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not the formal title " N L R.B v. Southern Bleachery and
Print Works, Inc , 257 F 2d 235-239 (C.A 4)
Even the occasional assumption of a position of
command or responsibility does not transform an otherwise
rank-and-file worker into a supervisor, N L R B v. Quincy
Steel Casting Co, 200 F 2d 293, 296 (C A. 1), N.L R B v
Cousins Associates, 283 F 2d 242, 243-244 (C A 2)
In sum, employee Dunn was a leadman with the title of
foreman whose only control over temporary manual
helpers occasionally assigned to him was the routine
function of instruction on how to help him, a function that
in no way identified him with management or made him
part of management Compare Evans Orchard Supply
Company, 166 NLRB 243, 248, foreman and stock room
manager held not supervisors; and Powerful Gas, 181
NLRB No. 21, assistant managers of gas stations held not
supervisors.
B. Respondent's Coercive Acts and
Discharge of Employee Dunn
The Union began its organizing campaign at
Respondent's plant and the other North Carolina plants
owned by the Adams brothers in the summer of 1969, and
made a formal demand for recognition as bargaining agent
for all North Carolina employees on August 19, 1969,
Respondent's Exhibit 8, received by President Fred Adams
on August 21, 1969. Voluntary recognition was not given,
and a Board-conducted election was held thereafter for all
of the North Carolina plants of the Adams brothers.
There was no dispute of employee Dunn's testimony that
he was active among Respondent's employees in soliciting
support for the Union, obtaining signatures to union
authorization cards and attending union meetings, and that
he included some of Respondent's supervisors in his
discussions of the Union and solicitation of authorization
card signatures Likewise it was not disputed that some of
these discussions with supervisors concerning the Union
occurred prior to August 15, 1969.
President Fred Adams conceded that he had heard that
the Union was organizing at the various Adams brothers'
North Carolina plants before August 15, and before he
received the Union's formal demand for recognition on
August 21, 1969 Indeed, he began countercampaigning in
late July 1969 As production manager of the new
management company (Adams United Corporation), newly
formed to provide a common management for all five
locations in North Carolina (including Respondent's plant
at Kinston), President Adams inaugurated*a personal
interview program for all existing employees at the five
plants As a result Adams personally interviewed each
employee separately (usually with the general manager or
plant superintendent present, as occurred at Kinston) as
though the employee were a new applicant for employment,
and covered with each a discussion of the company's views
and the employee's views (if any) on the Union
President Adams took down the answers he got in each
interview, including the employee's rating of his own
performance and Adams' version or summary of the
employee's comments, and wrote them (or checked them)
on two forms for each employee, one entitled "employee
personnel record" and the other captioned "progress
report." Adams then required each employee and the
supervisor present to sign both documents (Examples for
employees Dunn, Kelly, and Mitchell were submitted in
evidence as Resp Exhs 1, 2, 4, 5, 6, and 7). In employee
Dunn's case, as an example, Respondent's Exhibit 2 recites
among other things, that in the interview on August 29,
1969, after President Adams stated the Company's position
on the Union, Dunn said that he wasn't interested in any
union and hadn't joined a union when he worked for a
former employer, B. Altman and Company of New York
President Adams testified that he started the employee
interviews at the Durham, North Carolina, plant around
July 22, 1969, reached the Fuquay-Varina plant around
August 1, 1969, and commenced Kinston plant interviews
on August 29, 1969. (He gave no beginning dates respecting
the Raleigh and Fayetteville plant interviews that followed.)
In discussing the Union in these interviews with the
employees, President Adams said that he stated for each
employee the company position or views on the Union. He
claimed that, after he received the Union's formal demand
of August 19, 1969, for recognition, he covered this portion
of the interview by reading from a written statement he
prepared, beginning with the interviews at the Kinston
plant. However, from the evidence respecting the two
Kinston interviews of employees Dunn and Kelly, as well as
from the composition of the "prepared statement," which
was a handwritten note of an outline or series of topical
phrases and sentences (Resp. Exh 9), it was obvious that at
most Adams used the note as a reference and did not simply
read it verbatim when discussing the Union with each
employee.
In employee Dunn's meeting with President Adams on
August 29, Plant Superintendent Davis was present.
According to Dunn, Adams said that he had been made
production manager for all Adams' concrete companies and
wanted an application from Dunn for his files, as if he were
applying for a new job. When the questions were asked and
answered for this form, Adams turned to the second form
and asked Dunn what he thought about the Company, how
he got along with other employees, and what improvements
should be made Dunn said he told Adams about the steel
room.
President Adams then asked, said Dunn, what Dunn
thought about the Union. Dunn replied he didn't know
much about it Adams asked if he had signed a union card,
and Dunn said yes. Adams asked if Dunn knew what a leech
was, and Dunn answered he thought it was something that
lived at the expense of others That's what a union was, said
Adams, and went on to say, according to Dunn, that "if the
Union got in to never ask for anything else. Don't come to
him for anything else."10
10 Counsel for Respondent contends that President Adams was attempt-
ing to articulate the thought (not articulated very much clearer in Adams'
written note , Resp Exh 9, says counsel), that if the Union came in it would
represent you and speak for you However it has been well said that the
"words must be judged by their likely import," to the employees and that
'one who engages in' brinkmanship' may easily overstep and tumble into the
brink," Wausau Steel Corp v N L R B, 377 F 2d 369, 372 (C A 7),
finding Sec 8(a)(I) threats and promises coupled with interrogation in
employer interview of employees
SOUTHEASTERN CAST STONE, INCORPORATED
President Adams, after completing the "employee
personnel record," Respondent's Exhibit 1, and "progress
report," Respondent's Exhibit 2, had employee Dunn and
Plant Superintendent Davis sign each, and the interview
was concluded Davis said nothing during the interview
In President Adams' interview of employee Kelly, also on
August 29, Plant Superintendent Davis was again present,
and the same procedure was followed Adams filled out the
forms based on his discussion with employee Kelly, and
both Kelly and Davis signed the completed forms,
Respondent's Exhibits 4 and 5.
In the course of the interview, President Adams asked
employee Kelly what he thought about the Union. Kelly
replied he didn't know much Adams spoke of a "leech,"
Kelly said (Adams' note, Resp Exh 9, refers to a
"parasite"), and told Kelly a leech was something that
would fasten on him, like what the Union would do to him.
Adams explained union dues, according to Kelly, and then
told Kelly "he didn't want it [the Union] in none of his
plants, that he would fight to keep it out "
Employee Dunn had a second office meeting with
President Adams on September 2, 1969, this time with
General Manager Paylor present. At this meeting Adams
told Dunn that as a foreman he was part of management
and that he was not to attend union meetings or help the
Union in any way
On October 10, 1969, Dunn was summoned for a third
meeting with President Adams. General Manager Paylor
and Plant Superintendent Davis were also present Adams
charged Dunn with having continued to engage in union
activities and dismissed him forthwith, ordering him off the
premises Dunn did come back later, once, he said, to vote a
challenged ballot in the representation election. Following
Dunn's discharge, in a meeting with the employees,
President Adams referred to the discharge, according to
employee Kelly, and said he would fire other foremen who
attended union meetings.
In connection with his personal interview program for the
employees of all five plants in North Carolina (which began
with interviews at Durham on July 22, 1969), President
Adams said he began to hear complaints by the men about
the existing policy concerning nonpaid holidays and
vacations only at Christmas Under the policy there were 6
specified holidays during the year, without pay, and a 1-
week vacation with pay that could be taken only at
Christmas if the employee had worked not less than a year
prior to December 23 and had not been absent more than 5
days during the year
On August 15, 1969, 6 days before the receipt of the
Union's formal demand for recognition and with interviews
begun at only two of the five plants, President Adams issued
an announcement (G. C. Exh. 2), affecting all employees at
the five plants, that henceforth the 6 holidays would be paid
holidays and vacations could be scheduled at times other
than Christmas. Employee Dunn testified he was paid for
the next holiday, which was Labor Day, September 1969.
C. Section 8(a)(1) and (3) Findings
Respondent made no bones about letting its employees
know, individually, that it would fight against their
693
affiliation with and choice of the Union as bargaining
representative in the Kinston plant (and associated plants),
and did not hesitate to include several illegal actions in
furtherance of its declaration of war against the Union
Under cover of the personnel review, and with the clear
announcement that Respondent was taking a fresh look at
each employee as if he were an applicant for employment,
Respondent's president separately interviewed each
employee and, in the context of declarations of hostility and
opposition to the Union, interrogated the employees, as in
the case of Dunn and Kelly, concerning their union
sympathies or affiliation The oppressive atmosphere of the
interrogation was heightened by having the plant
superintendent present listening to the answers, without any
assurance against reprisal. In Dunn's case the interrogation
was accompanied by the express threat of reprisal-not to
come to President Adams or the company for anything else
if the Union came in-followed in a subsequent interview
by a warning not to attend union meetings. By this time,
employee Dunn was a known union activist, and telling him
he was part of management, forbidden to continue union
activities, was a pretense to short circuit his organizing of
the employees In employee Kelly's case, no express threats
accompanied the interrogation, but the implication of
employer reprisal against those who would support the
Union was there
The implication for the employees became evident with
the subsequent discharge of Dunn because he engaged in
prounion activities, including attending union meetings
The employees knew Dunn to be one of them,
notwithstanding the title foreman, and the i nport for all
employees was not softened by the employer's
announcement that he would fire other foremen who
attended union meetings."
The interrogation of the employees concerning their
union sympathies and affiliation'12 the warnings to stay
away from union meetings, the threats of reprisal for giving
union support,13 and the discharge of employee Dunn for
engaging in union activities were coercive actions that
interfered with the self organizational rights of the
employees, in violation of Section 8(a)(1) of the Act, and
the discharge of employee Dunn, in order to discourage
affiliation with and support of the Union, also violated
Section 8(a)(3) of the Act 14
In the context of Respondent's actions to destroy the
union organizing effort among its employees, Respondent's
grant, and timing of the grant, of increased holiday and
vacation benefits cannot be regarded as unrelated and
innocent benevolent action (as in the inapposite case of
Champion Pneumatic Machinery Co , 152 NLRB 300,
305-307 (1965), relied on by Respondent). The idea of the
" The meaning of the announcement to the employees was also
foreboding because it did not tell them that the employer would be
equally hard on foremen who fostered employee opposition to the Union
" Daniel Construction Co v NLRB, 341 F 2d 805, 812 (C A
4), cert denied 382 U S 831
"NLRB.v MooreDryKiln Co, 320 F 2d 30,32 (C A. 5)
NL R B v Overnite Transportation Co., 308 F.2d 284, 289-290
(C A 4), upholding 8(a)(3) and (1) finding in discharge of alleged supervi-
sor
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desirability of providing several paid holidays, and
adjusting the fixed vacation schedule to employee needs as
well as employer convenience, took root as the result of
employee complaints in the personal interviews of the
employees of the five North Carolina plants, begun by
President Adams July 22, 1969. The union organizing
campaign had already begun and Respondent was using the
employee interviews to make its opposition to the Union
known to each employee Without waiting to complete the
interviews, or even commence them at three of the five
plants (including the Kinston plant), within 3 weeks after
the start of the interviews and dust a few days before the
Union made formal demand for recognition, Respondent
announced, on August 15, 1969, the grant of the new
benefits to the employees The circumstances and timing of
the grant give rise to the inference that it was the purpose of
Respondent in providing such benefits to dissuade the
employees from pursuing their interes in the Union.
Bestowal of economic benefits by an employer for such
purpose is a restraint upon the freedom of choice of
employees for or against unionization and a violation of
Section 8(a)(I) of the Act. N L R B. v. Exchange Parts Co ,
375' U.S 405, 409-410, Betts Baking Co v N L R. B , 380
F 2d 199, 203 (C A 10).
CONCLUSIONS OF LAW
1. By discharging employee Dunn because of his union
activities and to discourage union organizing and
membership of its employees, Respondent engaged in an
unfair labor practice within the meaning of Section 8(a)(I)
and (3) of the Act.
2 By coercively interrogating its employees as to their
union sympathies and affiliation, by threatening reprisals
for union activity, and by announcing and granting new
holiday and vacation benefits to dissuade employees from
pursuing their interest in the Union, Respondent engaged in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
3. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act
THE REMEDY
It will be recommended that the Respondent
(1) Cease and desist from its unfair labor practices,
(2) Offer to reinstate employee Dunn with backpay from
the time of discharge, the backpay to be computed on a
quarterly basis as set forth in F W Woolworth Co , 90
NLRB 289, approved in N L R.B v. Seven Up Bottling
Co , 344 U.S. 344, with interest at 6 percent per annum as
provided in Isis Plumbing & Heating Co., 138 NLRB 716,
approved in Philip Carey Mfg Co v. N L R B, 331 F 2d
720 (C.A 6), cert. denied 379 U.S. 888; and
(3) Post the notices provided for herein
Because the Respondent by its conduct violated
fundamental employee rights guaranteed by Section 7 of
the Act, and because there appears from the manner of the
commission of this conduct an attitude of opposition to the
purposes of the Act and a proclivity to commit other unfair
labor practices, it will be recommended that the
Respondent cease and desist from in any manner infringing
upon the rights guaranteed by Section 7 of the Act
N L R B v Entwistle Mfg. Co., 120 F.2d 532, 536 (C A.
4), N L.R B v Bama Company, 353 F.2d, 323-324 (C A
5), P R Mallory and Co v N L R.B., 400 F.2d 956,
959-960 (C A 7), cert denied 394 U.S. 918.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions, and upon
the entire record, I recommend that Respondent, its
officers, agents, successors , and assigns , shall-
1. Cease and desist from
(a) Coercively interrogating its employees as to their
union sympathies and affiliation.
(b) Threatening employees with loss of future benefits
or with other reprisals if they support the Union or if the
Union comes into the plant
(c) Discharging employees for attending union
meetings or other activities on behalf of the Union.
(d) Announcing and granting new economic benefits in
order to dissuade employees from supporting the Union.
(e) Discouraging membership of its employees in a
union or other labor organization by discharging employees
or otherwise discriminating against them as to their hire,
tenure, and conditions of employment, or in any other
manner interfering with, restraining, or coercing employees
in the exercise of their rights guaranteed under Section 7 of
the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to employee William Dunn immediate and
full reinstatement to his former job or, if the job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole, in the manner set forth in the section of
this decision entitled "The Remedy," for any loss of
earnings he may have suffered as a result of his discharge on
October 10, 1969 Notify him, if he is serving in the Armed
Forces of the United States, of his right to full
reinstatement upon application after discharge from the
Armed Forces.
(b) Preserve and, upon request, make available to the
Board and its agents , for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to ascertain the backpay due under the terms of
this Recommended Order
(c) Post in its establishment at Kinston, North
Carolina, copies of the attached notice marked
"Appendix." Immediately upon receipt of copies of said
notice, on forms to be provided by the Regional Director
for Region 11 (Winston-Salem, North Carolina), the
Respondent shall cause the copies to be signed by one of its
authorized representatives and posted, the posted copies to
be maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted Reasonable steps shall
SOUTHEASTERN CAST
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material."
(d) Notify the Regional Director for Region 11, in
writing, within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply therewith.16
" In the event no exceptions are filed as provided by Sec 102 4E
of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, recommendations, and Recommended Order
herein shall, as provided in Sec 102 48 of the Rules and Regulations be
adopted by the Board and become its findings conclusions and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a judgment of a United States Court of
Appeals the words in the notice reading "Posted by Order of the National
Labor Relations Board" shall be changed to read ' Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board '
11 In the event that this Recommended Order is adopted by the Board, this
provision shall be modified to read "NotifN said Regional Director in
writing, within 10 days from the date of this order what steps Respondent
has taken to comply therewith '
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and has ordered us to
post this notice, and we intend to carry out the order of the
board and abide by the following
WE WILL NOT fire you because you attend union
meetings or favor, orjoin, or are active for a union.
WE WILL NOT coercively question you as to whether
you favor a union or are participating in union
activity.
WE WILL NOT threaten you with loss of benefits or
with other reprisals if you support the Union or the
Union comes into the plant.
STONE, INCORPORATED 695
WE WILL NOT announce or grant you new benefits in
order to persuade you to drop your support of the
Union
WE WILL NOT, in any other manner, discriminate
against you to discourage your membership in a labor
union or interfere with your right to join, assist, or be
represented by, a labor union, or interfere with any of
your other rights of self-organization and mutual aid
guaranteed by Section 7 of the National Labor
Relations Act
Since the Board found that we fired William Dunn
on October 10, 1969, because of his union activity,
WE WILL OFFER him his old job back and give him
backpay If he is in the Armed Forces of the United
States, we will notify him of his right to reinstatement
upon application after discharge from the Armed
Forces
Each of you is free to become or remain or refrain
from becoming or remaining a member of North
Carolina Laborers ' District Council , affiliated with
Laborers ' International Union of North America,
AFL-CIO, or any other labor union
SOUTHEASTERN CAST STONE,
INCORPORATED
(Employer)
Dated By
(Representative)
(Title)
This is an official notice and must not be defaced by
anyone
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 1624
Wachovia Building, 301 North Main Street, Winston-
Salem, North Carolina 27101, Telephone 919-723-2300