Southern Coach & Body Co., Inc.

National Labor Relations Board - Board Decisions

Feb 23, 1962

135 N.L.R.B. 1240 (N.L.R.B. 1962)

1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southern Coach & Body Co., Inc. and International Association
of Machinists, AFL-CIO. Cases Nos. 15-CA-1830 and 15-CA-
1920. February 23, 1962
DECISION AND ORDER
On December 8, 1961, Trial Examiner Fannie M. Boyls issued her
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. The Trial Examiner also found that the
Respondent had not engaged in certain other unfair labor practices
alleged in the complaint, and recommended that such allegations be
dismissed. Thereafter, the Respondent and the General Counsel filed
exceptions to the Intermediate Report and briefs in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the briefs, and the entire record in
these cases, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations 1 with the following exceptions and
additions :
1. The Trial Examiner found, and we agree, that the Respondent
violated Section 8(a) (1) of the Act by requesting employee New to
attend the union meeting of May 4, 1961, in order to report back to
the Respondent what action the Union took regarding a strike vote,
urging New to do so when he expressed unwillingness, and offering
him the use of a car to attend the meeting. The Respondent contends
that this was noncoercive '3nterrogation of the kind found by the
Board in Blue Flash Express Inc., 109 NLRB 591, not to be violative
of the Act. This was not mere interrogation of New, however, but
an attempt to persuade him to attend a union meeting in order to in-
form the Respondent about internal union matters. We agree with
the Trial Examiner that such conduct constituted interference with
the right of the employees to engage in, or to refrain from engaging
1 In the absence of exceptions thereto, the Trial Examiner ' s recommendation that the
complaint be dismissed insofar as it alleged that the layoff of employee John D Robinson
was violative of Section 8(a)(3) Is adopted pro forma
135 NLRB No. 120.
SOUTHERN COACH & BODY CO., INC. . 1241
in, concerted activity for their mutual aid and protection, in violation
of Section 8(a)(1)of the Act? .
2. The Trial Examiner found that the Respondent did not violate
Section 8(a) (1) of the Act by its interrogation. of employee Waters.
We do not agree for the following reasons. -Employee Waters testi-
fied that in a coversation with Bowers, a vice president of the Re-
spondent, on about April 4,1961:
[Bowers] asked me did We have a strike vote the evening before
I told him that we did. He said, "I understand there is
one against it and the rest for it." I said, "That is right." He
asked me how many were out there and I told him I did not know
because I did not count them.
* * *
He asked me if they meant business and I told him Yes I think
so....
Bowers denied that such a conversation occurred, but the Trial Ex-
aminer credited Waters. We accept these credibility findings. We
do not agree with the Trial Examiner, however, that this was merely
a friendly discussion between Bowers and Waters, and not unlawful
interrogation as alleged in the -complaint. The Trial Examiner, in
finding no violation in this conduct, relied on Bowers' testimony that
Waters on one occasion came to Bowers and made some remarks about
becoming less active in the Union. We are of the opinion, and find,
that this would not warrant the Respondent's attempt, by interrogat-
ing Waters, to put him in the position of acting as an informer re-
garding union activity .3 Accordingly, under all the circumstances we
conclude that, like the similar 'request made to New, the Respondent's
request that Waters inform it about union matters was a violation of
Section 8 (a) (1) of the Act.4
ORDER'
Upon the entire record in these cases and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Southern Coach
& Body Co., Inc., Evergreen, Alabama, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a). Urging or requesting, its employees to attend union meetings
for the purpose of informing the Respondent of strike or other action
taken by the International Association of Machinists, AFL-CIO.
2 See Super Operating Corporation , et al., 133 NLRB 240; Citizen's Hotel Company,
d/b/a Texas Hotel, 131 NLRB 834
3 See Julius Corn and Sheldon Corn, d/b/a Julius Corn and Co , 129 NLRB 1264, 1272.
* In view of this finding of a violation of Section 8(a) (1) in addition to that found
by the Trial Examiner , we find no merit in the Respondent' s contention that the violation
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Interrogating its employees concerning their union activities
in a manner constituting interference, restraint, or coercion in vio-
lation of Section 8 (a) (1) of the Act.
(c) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their right to self-
organization, to form, join, or assist a labor organization, including
the aforesaid Union, to bargain collectively through representatives
of their own choosing, and to engage in other concerted ,activities for
the purpose of collective bargaining or other mutual aid or protection
as guaranteed in Section 7 of the Act, or to refrain from any and all
such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its plants in Evergreen, Alabama, copies of the notice
attached hereto marked "Appendix." 5 Copies of said notice, to be
furnished by the Regional Director for the Fifteenth Region, shall,
after being duly signed by the Respondent, be posted by the Respond-
ent immediately upon receipt thereof and be maintained by it for 60
consecutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Fifteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint herein be, and it hereby is,
dismissed insofar as it alleges that the Respondent has violated Sec-
tion 8 (a) (3) of the Act, or that it has violated Section 8 (a) (1) except
as herein found.
found by the Trial Examiner was isolated and that the Board should, therefore , not issue
an order.
5 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
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, we hereby notify our employees that :
WE WILL NOT urge or request any of our employees to -attend
union meetings for the purpose of informing us of strike or other
action taken by the International Association of Machinists,
AFL-CIO.
SOUTHERN COACH & BODY CO ., INC. 1243
WE WILL NOT interrogate our employees concerning their union
activities in a manner ' constituting interference; restraint, or co-
ercion in violation of Section 8(a) (1) of the Act.
WE WILL NOT .in any like or related manner interefere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization , to form, join , or assist a labor organization, in-
cluding the aforesaid Union, to bargain collectively through repre-
sentatives of their own choosing , and to engage in other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection as guaranteed in Section 7 of the Act, or to re-
frain from any and all such activities.
SOUTHERN COACH & BODY Co ., INC.,
Employer.
Dated-------------- -- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be' altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional
Office, 2026 St. Charles Ave., New Orleans 13, Louisiana , Tel. No.
529-2411, if they have any questions concerning this notice or com-
pliance with its-provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Fannie M. Boyls,
the duly designated Trial Examiner, in Evergreen, Alabama, on September 14 and 15,
1961, upon consolidated complaints issued by the General Counsel and amended at
the hearing and upon answers of Southern Coach & Body Co., Inc., Respondent
herein. The issues litigated were whether Respondent had engaged in unfair labor
practices within the meaning of Section &(a)(1) and (3) of the National Labor
Relations Act, as amended, herein called the Act. All parties were afforded an
opportunity to file briefs but only counsel for the General Counsel availed himself
of this opportunity. I have duly considered his brief.
Upon the entire record and my observation of the witnesses, I make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent is an Alabama corporation engaged in the manufacture and wholesale
distribution of truck bodies at its two plants in Evergreen, Alabama. During the
12-month period preceding the issuance of the complaint, a representative period,
Respondent manufactured, sold, and shipped from its Evergreen plants finished prod-
ucts valued in excess of $100,000 to points outside the State of Alabama. Respond-
ent admits, and I find, that it is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists , AFL-CIO , herein called the Union, is a
labor organization within the meaning of Section 2(5) of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and issues
Respondent operates two plants about 2 miles apart, known respectively as the Bus
and Elrod plants, in Evergreen, Alabama. On August 12, 1960, the Board conducted
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an election among the employees in a unit composed of'all the production and main-
tenance employees, including leadmen, at the two plants, as a result of which the
Union was selected as, the employees' bargaining representative. Due to circum-
stances not disclosed by the record, however, the Board did not, certify the Union as
such representative until May 26, 1961. In the meantime, on May 9, 1961, there
occurred a strike at these plants, which was still in progress at the time of the hearing.
The issues presented by the complaint and the evidence are whether, in late July
and early August 1960, before the election, Respondent, through its president, F.
Clayton Albert, and in April 1961, through its vice presidents, C. W. Bowers and
Jack Easter, and its Elrod plant manager, Elmer Padgett, engaged in surveillance of
the Union's meeting place; whether Respondent, in April 1961, through Vice Presi-
dent Bowers, unlawfully interrogated an employee about what went on at a union
meeting and the number of employees attending; whether, also in April 1961, Re-
spondent, through its personnel manager , Tony Smith, and its leadman and agent,
John L. Salter, acted unlawfully in requesting an employee to attend a union meeting
and report to management on the results of an expected strike vote; and whether
Respondent, in April and May 1961, discriminatorily laid off an employee, John D.
Robinson, because of his union membership and activities.
B. The alleged acts of surveillance
To understand the contentions of the parties regarding the alleged acts of surveil-
lance, it is necessary to have a mental picture of the location of the union hall and
its surroundings. The building in which union meetings are held is located in a tri-
angle formed by the intersection of U.S. Highways 31 and 84 at a location known as
Fairview, about 3 miles south of Evergreeen and Respondent's Bus plant. It fronts
on.Eighway 31. The union hall is in the rear of the building and has windows facing
Highway 84. About 60 or 70 yards beyond, the entrance to the building, going
south do Highway 31, is a dirt road leading to some tourist cabins. Beyond that and
about a quarter of a mile from the building is a paved connecting road between
Highways 31 and 84. At the intersection of this connecting road and Highway 84
is a country store. Across Highway 84 from the union hall and facing Highway 31
is Salter's Supermarket. Both highways are heavily traveled.
1. President Albert's presence near the union hall in July 1960
It is undisputed that in the latter part of July 1960, Respondent's president, F.
Clayton Albert, sat for a few minutes in his parked automobile in the driveway of
Salter's Supermarket, across Highway 84 from the union hall, with his car facing the
union hall. This was between 4 and 5 p in on a day when a union meeting was
scheduled for 7 p.m., and a few early arrivals, including W. D. Cristy, a union repre-
sentative, and employees Diamond, Sheffield, and Barlow, were standing in front of
the union hall and observed Albert. Sheffield walked over and gave Albert some
union literature and a few minutes later Christy and Diamond followed and talked to
Albert. Christy accused Albert of "snooping" on the union meeting. Albert retorted
that he did not know the Union was having a meeting but that a man had a right to
go and look where he pleased. A few minutes later, Albert started the motor to his
car and left.
According to Albert, on the occasion in question, he had gone to Salter's Super-
market to pick up some purchases and, upon starting to drive away, noticed that the
heat indicator on his car was "all the way over." He thereupon stopped in the drive-
way for the sole purpose of permitting the engine to cool off, then drove to a filling
station and had water added to the car's radiator. Soon thereafter he took his car to
a garage and had a new thermostat, water hose, and gasket installed. A bill to cover
this work was introduced in evidence. I credit Albert's explanation as to his presence
near the union hall and find nothing unlawful in his conduct.
James W. Barlow, an employee in layoff status, testified that on another occasion,
a few days before the election in August 1960, he saw Albert again parked near the
union hall; he approached Albert and told him that if he knew how unwelcome he
was out there, he would go back to town; and Albert replied, "Well, it is none of your
business where T-park and where I go and furthermore, you are no part of this no
more." Albert denied that he ever had any such conversation with Barlow or that he
had ever engaged in surveillance of the union hall. I credit Albert's testimony not
only because he impressed me as an honest and forthright witness but because incon-
sistencies between Barlow's testimony and sworn statements given by him to a Board
agent persuade me that Barlow was not a reliable witness
SOUTHERN COACH & BODY CO., INC. 1245
2. Alleged surveillance by Vice President Easter on April 13, 1961
A regular union meeting was scheduled for 7 p.m. on April 13, 1961. Six wit-
nesses 1 testified that at some time between 6 and 7:30 that evening, Vice President
Jack Easter and an unidentified lady came slowly by the union hall and parked near it.
Although there are some discrepancies in their testimony and some saw more than
others, I am convinced from their composite testimony that a man driving Easter's
car or one resembling his, accompanied by a woman, did in fact drive slowly past the
union hall on Highway 31, turn right onto the dirt road south of the union hall, and
park there until a flashlight was turned on the car, then back out, circle around to
Highway 84 over the connecting road and park again between Highway 84 and the
back of the building, about 25 or 30 feet from the building, leaving only when a light
was again flashed upon the car.
All of the witnesses identified the driver of the car as Jack Easter and I do not
doubt the sincerity of their belief. Baggett testified that it was only dusky dark
when the car went slowly by the building in front of which Baggett was standing,
that a light outside the building helped illuminate the highway, and that he recog-
nized Easter although the lady intervened between him and Easter. Union Repre-
sentative Christy testified that as the car passed, he heard someone say, "There is
Jack Easter going by" and that after observing the car turn in and park on the dirt
road, he got his flashlight from his own car and shone it on the car to make sure
it was Easter. Waters testified that he recognized Easter when the latter drove by
the building on Highway 31 and also when a light was flashed in his face while
parked behind the union hall. Brown, a rather confused witness, who was not cer-
tain of the date or whether a lady was in the car, testified that he was with Waters
on the occasion in question and that he did see Easter in the car. Holcombe and
Wells each testified that they were together when Holcombe shone his flashlight on
Easter's car as it was parked back of the union hall and that they recognized Easter.
Easter, on the other hand, testified that although he frequently traveled out High-
ways 31 and 84, he never did so for surveillance purposes and that he had never
driven into or parked on the dirt road near the union hall or between Highway 84
and the union hall and that he had never had a light flashed on him in that vicinity.
In view of Easter's positive denial, the question posed in my mind is whether the
six witnesses who purported to identify him could possibly have been mistaken in
the identification. Most of them were familiar with the light-colored Packard car
which Easter owned and customarily drove. I am satisfied that the car involved in
the April 13 incident was either Easter's car or one similar to it; but this does not
resolve the question. The driver of the car, as he passed the entrance to the build-
ing housing the union hall and parked on the dirt road, was on the opposite side
of the car from the witnesses who purported to identify him and a woman passenger
was between him and them. It was "dusky dark" and difficult to identify the driver
without the aid of a light. Although Waters testified that the car was about 100 feet
away when a light was flashed on it while parked on the Highway 84 side of the
building, the record does not indicate from what distance the light was flashed while
the car was parked on the dirt road.
I am not persuaded, under all the circumstances, that any of the witnesses could
have positively identified the driver. In my view, the fact that someone called out
"there is Jack Easter going by" as the car passed along Highway 31, may have
caused the other spectators to assume that the driver was Easter and may have in-
fluenced them in their belief that they had independently identified the driver as
Easter. Moreover, it seems doubtful to me that Respondent's representatives, at the
time in question, had any good reason for engaging in surveillance of the Union's
meeting place. The identity of union adherents was no secret. Employees wore
union buttons at the plant and the photographs and names of the union officers and
other union news were published in the local newspaper. An election in which a
majority had voted for the Union had already been held during the preceding
August. Employees freely talked about union activities and Respondent was aware
of the dates upon which strike votes were taken or to be taken. Thus,, Respondent
did not need to engage in surveillance of the meeting to ascertain which of its
employees were active in the Union. And the General Counsel has not suggested
that the purpose of the car occupants was to. eavesdrop on what took place at the
meeting. Most certainly they could not have done so from their vantage point on
the dirt road where they parked until driven away by the light flashed upon them.
Under all the circumstances, I am not convinced, and do not find, that the driver
of the car was Easter or any other representative of Respondent.
'Lee Otis Baggett, W. D. Christy, I. C Waters, Winton Brown, Charles L. Holcombe,
and George Wells.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Alleged surveillance by Easter, Bowers, and Padgett on-April 18
A special union meeting for the purpose of taking a second strike vote was
scheduled for 7 p.m. on April 18. About 6 p.m. employees standing in front of the
union ,hail observed two cars parked on Highway 31, about 900 feet from the hall
and, upon investigating , found Vice Presidents Jack Easter and W. C. Bowers and
'Plant Superintendent Elmer Padgett sitting in one of the cars.
Easter, Bowers, and Padgett explained their presence there as follows: Padgett,
president of the Men's Club of the Methodist Church, had been attempting to in-
duce Easter to join the Men's Club and, in particular, to persuade him to attend a
meeting of the club which was to be held between 6:30 and 8 p.m. on April 18.
Being unable to reach Easter before the latter left the plant, to remind him of the
meeting, Padgett drove out Highway 31 to the Grill where, he was told, Easter had
gone after completing his day's work. Upon reaching the Grill, he was informed
that Easter and Bowers had left the Grill'together and had driven south on High-
way 31. Padget then left in pursuit of them, met them returning toward Evergreen,
and flagged them down at a spot about 900 feet north of the union hall. He turned
around, parked his car behind the one driven by Easter, and sat in Easter's car as
he persuaded the latter to join him at the church at 6:30. It was while Padgett was
sitting in Easter's car that Union Representative Christy and some employees drove
by and saw them. They sat in the car only a few minutes. Padgett and Easter
thereafter attended the Men's Club meeting, arriving separately at the church before
6:30. Easter and Bowers, after having coffee at the Grill-as they often did after
work-had driven to Salter's Supermarket for a carton of cigarettes and were re-
turning from that store when intercepted by Padgett.
I credit the explanation of Padgett, Easter, and Bowers and accordingly find that
they were not parked in the vicinity of the Union's meeting place for purposes of
surveillance.
There is also testimony by employees John D. Robinson and Lewis H. White
that later that evening, between 7 and 7:45, Bowers drove slowly by the union hall.
Because of the intersection of the two highways, all cars should normally be driving
slowly at that point-as they are warned by a traffic sign to do-and I would not
be inclined to attach any special significance to the fact that Bowers or any other
management representative drove by the union hall slowly, even if I were con-
vinced that Bowers did so at the time in question. All management representatives
accused of engaging in surveillance had frequent occasions to travel along High-
ways 31 and 84, in connection with trading at Salter's Supermarket or the country
store, attending a country club, visiting friends, or for other legitimate reasons.
In any event, Bowers denied that he went back out Highway 31 during the evening
of April 18 after Easter dropped him off at the Bus plant before 6:30. It was
sufficiently dark by 7 or 7:45 that evening that I doubt that Robinson or White
could be positive of Bowers' indentity. I credit Bowers' denial that he drove by
on this occasion.
C. Respondent's interrogation of employee Waters and its solicitation of
employee New to attend and report on union meeting
Employee I. C. Waters testified, and I find, that on April 4, 4961 , following •a
union meeting on April 3 at which employees had voted -to authorize a strike;
Vice President Bowers asked him whether the Union had a strike vote the night
before. When Waters replied that it did, Bowers remarked , "I understand there is
one against it and the rest for it." Waters answered , "That is right ," whereupon
Bowers asked Waters how many people attended the meeting. Waters replied that
he did not know because he did not count them. Bowers also asked if the em-
ployees "meant business".and Waters replied that he thought they did.
Bowers denied that any such conversation or questioning ever occurred. Waters,
however, by his demeanor on the witness stand and the general consistency of his
testimony in other respects , particularly impressed me as an honest and sincere
witness and I credit his testimony. .
It is undisputed that Respondent, through its personnel manager, Tony Smith, and
its leadman , John L. Salter, sought to induce employee Samuel New to attend a union
meeting on the night of May 4 and report back to it on whether the Union intended to
call a strike. '
Personnel Manager Smith testified that he had heard rumors that there might be'a
strike and that violence might result. With this in mind , he called leadman Salter
into his office, asked him whether he knew anyone who was going to the union meet-
ing-scheduled for that night, and informed Salter that he would like to know,if the
men were going to strike, explaining, "I have a colored guard on the gate andA
SOUTHERN COACH & BODY CO., INC. 1247
would like to rearrange ^ and get my guards . notified if they are going to strike." Salter
stated that he did not know , of anyone who , was, planning to attend the meeting but
would find out and let Smith , know. , , -,
Salter thereupon - approached employee Samuel New , with, whom he, normally
drove to work and , with whom-he was on friendly terms. He,asked New whether
he was going to attend the union meeting that-night . , New at first stated that he
thought he would but was not sure . Salter then explained that he and Personnel
Manager Smith wanted New to go and report back on whether the men, were going
to strike , so that Smith could decide whether to rearrange the guard situation. New
then -indicated that- he- might -not -go, giving the ^ excuse that he did not have any
transportation ' to the meeitng. • iSalter thereupon. offered to loan New his car for
that purpose . - At that point , New, while! not - committing himself, did not indicate
that he would refuse to go. -
Salter reported .-to Smith that he believed New was going ' to the meeting. Smith
then sought out New to ascertain definitely whether the ' latter was -going.: He told
New that he ' wanted New to' go because he "wanted ' to' know if there was going to
be a strike . New told Smith That he , did 'not know whether he would go.
That evening Salter drove by New 's home and tried to persuade him to go to the
meeting. New refused ,- explaining, "I- am just , not going to pimp for the com-
pany or the union . I am just neutral in the thing." 2 '
I find that Respondent ,,- through, the action "of Personnel Manager Smith and
leadman Salter ` in requesting and persistently - urging employee New to attend the
May 4 union meeting and report back to 'it on union'action - in regard'to the strike
issue, engaged in conduct of a ' coercive nature, -in violation of Section 8(a)(1) of
the Act. Employees have '-a statutorily protected right to , engage in and refrain
from engaging in union activities without interference by, their employer. Respond-
ent interfered with that freedom not only by - persistently urging New to go to the
meeting, when he was reluctant to do so, but by urging him to act as: an informer-
an assignment so odious to New that he characterized it as, . and equated it with,
pimping . There is no question in my mind 'but that Respondent 's interest in learn-
ing whether and when the strike would take place did not justify its solicitation of
one of the union members to attend a meeting for the purpose of becoming an
informer . A union 's threat of strike action has traditionally been one of its weapons
for achieving concessions from employers ; and inside information by the employer
as to whether the union really intends to strike or is making a strike threat for
strategy purposes can obviously put the employer in an advantageous position in the
bargaining process , just as inside information as to what the employer will offer as
its maximum concession to avoid a strike would obviously put the union in an ad-
vantageous position . When an employer seeks to induce an employee to act as
an informer in such matter and thus betray the strategy of his bargaining repre-
sentative, he necessarily interferes' with the right of'einployees to engage in con-
certed union action for their mutual aid and protection ., It is no defense to this em-
ployer interference that he may have desired the information for the purpose , stated
to the employee , of deciding whether to rearrange his plant guards , for the informa-
tion would necessarily also reveal to him an important aspect of the Union's bargain-
ing strategy. '
Much evidence was adduced for the purpose of showing that leadmen Salter was
a supervisor within the meaning of the Act and that Respondent , for'that reason, was
responsible for his conduct in seeking to induce New to attend the meeting . I find it
unnecessary to decide - this issue , for under the circumstances outlined above , Salter
was clearly acting as Respondent 's agent and Respondent , for that reason , was re-
sponsible for his conduct as well as for that of -Personnel -Manager Smith.
I turn now to the question whether iVice- Persident Bowers' remarks to employee
Waters on April 4 about the strike vote and his interrogation of Waters as to' the
number of employees attending. the union meeting on the night before and whether
the employee's meant business constituted -coercive and unlawful conduct . Although
this conduct can be: interpreted as an attempt by Bowers , to make an informer out of
Waters, I doubt that it was so intended or that WateIs .so interpreted it. Waters,
according to the undenied and credited testimony of Bowers , had on one - occasion
come to Bowers and told him that he, Waters ; was so concerned about "something"-
not divulging what-that "was going to happen" that he had resigned as secretary of
2 The findings in this subsection are based upon the mutually corroborative testimony of
Smith, Salter , and New. There is no substantial dispute in their testimony ., Although
Salter testified that he did not recall New making the last statement quoted above, he did
not deny that the statement was made. I credit New 's testimony that he made the
statement. - - • '
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union and • intended to take a less active part " in union affairs. In. view of the
voluntary statements of Waters to Bowers in regard - to union matters, I am not
persuaded that Bowers ' statements and interrogation on April 4 were other than
merely- a friendly and noncoercive attempt --by-Bowers to discuss the impending strike
threat which gave concern to both, men . In -these circumstances , I do not view
Bowers' conduct as a violation of the statute.-
D. The alleged discriminatory , layoffs of employee Robinson
John D . Robinson was employed by Respondent on February 12, 1960 , and worked
at.the -Bus plant as a prime painter . In April 19,61, one , other Bus plant employee,
William Powell, who had about a month, less seniority than Robinson , was also
doing this type of work.
According to the credited testimony of W. L. Thames , Bus plant superintendent,
and Dempsey Coburn, paintshop foreman over both the Bus and Elrod plants, work
for finish painters at the Elrod plant fell off substantially in April 1961 , and it be-
came necessary to lay , off two finish painters or transfer them. Finish painters are
more- skilled than prime painters and Respondent feared that if it laid off two finish
painters ,,it might not be able to get them back later when it knew , because of a con-
tract it then had, it would be needing them badly . About the same time work for
prime painters at the Bus plant was also diminishing . In these circumstances , accord-
ing to Thames and Coburn ,, it was decided to, lay off temporarily the prime painters,
Robinson and Powell , at the Bus plant, to transfer two finish painters , Lee and Dia-
mond ; to that plant , and to let Lee and Diamond do finish painting as well as the
available priming work there . These changes were effected on April 14.
In selecting employees for layoff , Respondent considers both seniority and ability
to perform particular jobs. Lee and Diamond had seniority over both Robinson and
Powell and their ability to perform both prime and finish painting has not been
questioned.
Both Robinson and Powell were recalled on May 1-Robinson to his regular work
at the Bus plant and Powell to temporary work at the Elrod plant consisting of
cleaning, sanding , and priming. On Thursday, May 4 , due to a lack of priming
work, Robinson was_ again laid off and told to report back to work on Tuesday,
May 9 . At that time , according to Thames , it was contemplated that Powell, too,
would again be laid off after 1 more day of work at Elrod and it was thought that
the bookkeeping involved would not warrant the layoff of Powell and transfer of
Robinson for only 1 day of work.
The strike occurred on May 9 and for that reason Robinson did not report back to
work on that date . Powell , who did not join the strike, was then given priming
work at the Bus plant.
The General Counsel 's-contention that Robinson 's layoffs were due to his known
position as secretary-treasurer of the Union is based principally upon the testimony
of Jesse L . Ryals, who had been made a paintshop leadman ( a nonsupervisory posi-
tion ) in January 1961 . Ryals was a friend of Robinson and was also a member
of the Union . Ryals testified that on several different occasions prior to April 14,
Paintshop Foreman Dempsey Coburn told him that Respondent was going to lay
off Robinson and let Powell get seniority over him "on account of [Robinson's]
union activities ." Ryals could not recall any specific date or relate any further de-
tails regarding these alleged . threats of Coburn . Ryals at first testified that both
Thames and Coburn told him that the reason for Robinson's layoff was "union
activities," but when asked by the General Counsel to tell about how the conversation
with Thames came about , Ryals responded : "Well, he told me to lay him off myself
and I told Mr . Thames that he was higher than I was, for him to do it ." He further
testified that when Robinson was to be laid off for the second time , Thames again
asked ' Ryals to inform Robinson of the layoff , and that this time Ryals did so.
According to Ryals, he told Robinson merely that he was being laid off until May 9.
He testified to no specific occasion on which Thames mentioned the Union in con-
nection with Robinson 's layoffs.3
8 Robinson testified , inconsistently with the account given by his friend Ryals, that
Ryals, when informing him of his layoff on May 4 , told him that he, Ryals, did not notify
Robinson of his layoff on the first occasion because he did not think it was his duty to do
so but that "this time, being a friend, he would tell me about it." According to Robinson,
Ryals then told him: "That the company wanted to push me out, and the company was
going to lay me off at that time and bring me back on the 9th and work me for a few
days and lay me off again and terminate me . . . because I belonged to the Union and
was secretary and treasurer." Robinson gave three statements to a Board agent but in
DIST. 65, RETAIL, WHOLESALE & DEPT. STORE UNION 1249
Both Thames and Coburn , while conceding that they knew the identity of all
union officers , including Robinson , denied that Robinson 's position with the Union
had anything to do with his selection for layoff or that the Union was ever men-
tioned in connection with any discussion relating to his layoff . They testified, also,
that temporary layoffs, such as Robinson 's, do not affect an employee's seniority
and that Powell could not possibly , therefore , have acquired greater seniority than
Robinson even if Powell had not also been laid off. Ryals' testimony, insofar as
it attributes to Coburn any mention of the Union or any expression of an intent
to permit Powell to acquire seniority over Robinson , sounded contrived and is
unworthy of belief. I credit the testimony of Thames and Coburn that Robinson's
layoffs were motivated solely by economic considerations and find that they were
not in violation of Section 8(a)(3) or ( 1) of the Act.
IV. THE REMEDY
Respondent 's only conduct which I have found constituted an unfair labor prac-
tice consists of its request and persistent urging of employee New to attend a union
meeting and report back to it on union action with respect to a possible strike.
While I do not regard this conduct , because of its isolated nature , as a serious
violation of the statute, I nevertheless believe that, under all the circumstances of
this case, it will serve a salutary purpose and effectuate the policies of the Act to
issue the normal type of remedial order for this unfair labor practice.
Upon the basis of the foregoing findings of fact and upon the entire record, I
hereby make the following:
CONCLUSIONS OF LAW
1. Respondent , by requesting and persistently urging an employee to attend a
union meeting and report back to Respondent the Union 's decision with respect to
strike action , has engaged in an unfair labor practice within the meaning of Section
8 (a) (1) of the Act.
2. The aforesaid unfair labor practice affects commerce within the meaning of
Section 2 (6) and (7) of the Act.
3. The General Counsel has not established by a preponderance of the evidence
that Respondent engaged in surveillance of union meetings or coercively interrogated
any employee within the meaning of Section 8 (a) (1) of the Act.
4. Respondent , by laying off John D. Robinson on April 14 and May 4, 1961,
did not engage in an unfair labor practice within the meaning of Section 8(a)(3)
or (1) of the Act.
[Recommendations omitted from publication.]
none did he say that Ryals had attributed his layoff to union activities Instead,
Robinson told the Board agent that Ryals "didn 't know the reason" and "no reason for
my layoff was ever given me." Robinson was so thoroughly discredited on cross-
examination , that I place no reliance upon his testimony
District 65, Retail , Wholesale and Department Store Union,
AFL-CIO and Rachman Bag Co., Inc. Case No. 2-CC-658.
February 23, 1962
DECISION AND ORDER
On December 14, 1961, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief.
135 NLRB No. 127.
634449-62-vol. 135-80