Southern Household Products Co., Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 369 (N.L.R.B. 1969)

SOUTHERN HOUSEHOLD PRODUCTS
Southern Household Products Company, Inc. and
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO. Cases 15-CA-3369,
15-CA-3393, and 15-CA-3393-2
December 16, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On May 27, 1969, Trial Examiner Bernard J. Seff
issued his Decision in the above-entitled proceeding,
finding that Respondent, Southern Household
Products Company, Inc., had engaged in certain
unfair labor practices as alleged in the complaint,
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner further found that the Respondent
had not engaged in certain other unfair labor
practices and recommended that those allegations be
dismissed. Thereafter, both Respondent and General
Counsel filed exceptions to the Trial Examiner's
Decision, with supporting briefs, and Respondent
filed a motion to dismiss.'
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 they
are free from prejudicial error. 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 to the extent consistent with the
decision herein.
We find in agreement with the Trial Examiner
that the Respondent violated Section 8(a)(1) of the
Act by interrogating its employees, promising them
benefits , and threatening them with reprisals in
retaliation for their union activities, sympathies and
interests. We similarly adopt the Trial Examiner's
findings and conclusions that the Respondent
violated Section 8(a)(3) and (1) of the Act by its
discriminatory discharges of employees Lewis
Strickland, Robert B. Kennedy, Clifton Cox, M.
Yarber, George Yarber, Raymond Harris, John W.
Harper, Luther J. Mercer, Earlie Trotter, Nehemiah
Trotter, and James V. Jones. However, for the
reasons set forth below, we find merit in the General
Counsel's exceptions to the Trial Examiner's failure
to find that the Respondent also violated the Act by
'The Respondent ' s motion to dismiss the complaint , and the underlying
charges herein on grounds of offers of reinstatement to the discharged
employees and other posthearing events, is lacking in merit and is hereby
denied.
369
cancellation of its contribution to a group
hospitalization policy.
With respect to the hospitalization insurance, the
record reflects that at some undisclosed time on the
day of the election, October 25, 1968, the
Respondent posted a notice in its plant notifying the
employees that it was necessary for the Respondent
to discontinue payment of all employees'
hospitalization policies for an indefinite period of
time. The Trial Examiner found that the
Respondent's plea of economic necessity as a reason
for canceling the insurance policy did not square
with its promises of additional wage increases to the
employees or its assertion that its new plant was
getting in shape and the Respondent was at last
getting on its feet. The Trial Examiner also found
nothing in the record to explain why the Respondent
chose to post the announcement on the very day of
the Board-conducted election. However, because the
General Counsel was unable to show that the notice
of cancellation was posted prior to the
commencement of the election, the Trial Examiner
concluded that the posting of the notice did not
constitute a threat to deprive the employees of a
fringe benefit sufficient to intimidate them in voting
for a collective-bargaining representative. We
disagree with this conclusion. Whether the notice
was posted prior to or during the course of the
election as a device to intimidate the employees to
vote against the Union, or posted after the
conclusion of the election as a reprisal against the
employees for having selected the Union as their
bargaining representative, the Respondent's conduct
is in either case an act of interference, restraint, and
coercion. As the Trial Examiner found, the
Respondent's assertion of economic necessity is
inconsistent with its other promises of benefits to
the employees which he found to have been made
for the purpose of dissuading them from supporting
the Union. Moreover, the Respondent has asserted
no reason , cogent or otherwise, to explain why the
alleged economic necessity, which it asserts existed
since it opened the Shubuta plant on or about
February 1, 1968, did not impel it to post the notice
of cancellation until the day of the Board-conducted
election. Under these circumstances, and in view of
the Respondent's numerous and flagrant other
violations of the Act, we find that the cancellation
of the hospitalization insurance policy violated
Section 8(a)(1) of the Act, and we shall order the
necessary remedy.
THE REMEDY
To remedy the Respondent's unlawful cancellation
of its contribution to the hospitalization policy we
shall require it to restore the benefit, and we shall
further order the Respondent to make whole its
employees for any losses suffered by them as a
result of the unlawful cancellation, including
reimbursement of the employees for any losses
180 NLRB No. 77
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suffered by reason of the Respondent's unlawful
cancellation, together with interest thereon at the
rate of 6 percent per annum. However, as the
Respondent has averred in its posthearing motion,
which we have herein denied , that it has bargained
and reached a collective - bargaining agreement with
the Union, we shall require that the Respondent
make whole its employees for their net losses from
the date of the cancellation of the insurance benefit
on October 25, 1968, to the date of the restoration
of the benefit, or to the effective date of the
collective-bargaining agreement pursuant to which
such benefit, if any, is covered, whichever is the
earlier.
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, as
modified herein, and hereby orders that Respondent,
Southern Household Products Company, Inc.,
Shubuta , Mississippi , its officers , agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, as so
modified:
1. Substitute the following paragraph for
paragraph 1(e) of the Trial Examiner's
Recommended Order, and renumber paragraph 1(e)
as paragraph 1(f):
"(e) Withdrawing its contribution to the existing
hospitalization insurance benefit enjoyed by its
employees because of their activities, sympathies
and interests on behalf of the above-named labor
organization."
2. Insert at the beginning of paragraph 2(a) of the
Trial Examiner's recommended remedy the words,
"To the extent full reinstatement has not been
offered".
3. Substitute the following paragraph for
paragraph 2(d) of the Trial Examiner's
Recommended Order, and renumber paragraphs
2(d), (e), and (f) as paragraphs 2(e), (f), and (g),
respectively:
"(d) Restore to its employees the benefit
withdrawn from them by reason of the Respondent's
cancellation of its contribution to the hospitalization
insurance policy on October 25, 1968, in the event
that such benefit is not covered in the terms of any
collective-bargaining agreement with the Union
subsequently arrived at; and make whole its
employees for all net losses suffered by them from
the date of the Respondent ' s cancellation of the
benefit to the date of such restoration or the
effective date of the collective -bargaining agreement
covering such benefit , whichever is the earlier,
together with interest thereon at the rate of 6
percent per annum.
4. Insert the following paragraph after the fifth
WE WILL NOT paragraph of the notice:
WE WILL NOT cancel our contribution to the
hospitalization insurance policy covering you
because of your activities, sympathies and
interests on behalf of that Union; and WE WILL
restore this benefit and make you whole for any
net losses they have sustained because of our
cancellation of this benefit.
5. Insert in the first WE WILL paragraph of the
notice, after the words WE WILL, a comma and the
following words, "to the extent we have not already
done so."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BERNARD J . SEFF, Trial Examiner . This case was tried
before me in Meridian , Mississippi , on November 12, 13,
14, 15, and 26.' The issues litigated were based on a
complaint dated September 5, an amended complaint
dated October 11 which was further amended at the
hearing alleging violations of Section 8(a)(1) and (3).
Southern Household Products Company, Inc., herein
variously called Respondent or Company, filed an answer
which denies that Respondent violated the Act. The
complaint was based on a charge in Case 15-CA-3369
filed on August 6, by United Brotherhood of Carpenters
and Joiners of America , AFL-CIO (herein called the
Union ), an amended charge in Case 15-CA-3393 was filed
by the Union on September 12 and the charge in Case
15-CA-3393- 2 was filed by the Union on September 20.
The complaints were consolidated by the Regional
Director for the trial . All parties appeared at the hearing
and were given full opportunity to participate , to adduce
relevant evidence , to examine and cross-examine
witnesses , to argue orally , and to file briefs which were
carefully considered.
Issues
1. Whether Respondent violated Section 8(a)(1) of the
Act by a speech allegedly delivered by T. Daniel,
Respondent's president, on or about August 13 in the
course of which threats were allegedly made to close the
plant if the Carpenters' Union came in; preference for a
steel union was expressed; employees were told to vote
"No" in an NLRB election scheduled to take place on
October 25 if they wanted a factory in Shubuta; Tom D.
announced there would not be a union in the plant ; raises
had been given and additional raises were promised and
statements were allegedly made which were coercive and
bridled with animus and hostility directed against the
Union.
2. Whether Respondent violated Section 8(a)(1) of the
Act by interrogating employees concerning their activities
on behalf of the Union thus interfering with their right to
engage in such activities.
3. Whether Respondent violated Section 8(a)(3) and (1)
of the Act by discharging the following employees in order
to discourage membership in the Union:
'All dates are in 1968 unless otherwise specified
SOUTHERN HOUSEHOLD PRODUCTS 371
Case 15-CA-3369
Lewis Strickland July 26, 1968
R. B. Kennedy July 26, 1968
Clifton Cox July 26, 1968
M. D. Yarber July 31, 1968
George Yarber July 31, 1968
Raymond Harris July 31, 1968
John W. Harper July 31, 1968
Cases I5-CA-3393 and 15-CA-3393-2
George W. Allen, Jr. September 6, 1968
Luther J. Mercer September 9, 1968
Earlie Trotter September 12, 1968
Nehemiah Trotter September 14, 1968
James V. Jones September 16, 1968
Upon the entire record and from my observation of the
demeanor of the witnesses while they were testifying under
oath, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent is a Delaware corporation with offices
and a place of business in Shubuta , Mississippi , where it is
engaged in the manufacture and sale of metal cabinets and
related products. Since the commencement of business on
or about February 1, 1968, the Respondent received at its
Shubuta, Mississippi, plant, directly from points located
outside the State of Mississippi , goods and materials
valued in excess of $50,000. During the same period,
which is a representative period, the Respondent sold and
shipped from its Shubuta, Mississippi, plant products
valued in excess of $50,000 directly to points located
outside the State of Mississippi.
The complaint alleges, the answer admits and I find
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges , the answer admits and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Violations of Section 8(a)(1) of the
Act
Facts and Chronology of Events
According to the undenied and credited testimony
which appears in the record , the Union began its
organizing campaign sometime after July 1. Employee
Robert Kennedy testified without contradiction that some
of the men expected a raise around July 1 and when they
did not get one at this time talk about a union first
developed in the back of the plant where spot welding and
bending operations are performed.
The active union campaign commenced on July 25. On
this date , employees Lewis Strickland , Kennedy, and
Clifton Cox signed union authorization cards and began
actively talking the Union up among the employees either
before work or during break periods in the plant and
outside on the Company' s parking lot . On July 26,
employees M. Yarber and George Yarber, John Harper,
and Raymond Harris all signed union authorization cards.
On July 27 James Jones, who was elected president of the
Union by a show of hands on August 1, signed a union
authorization card. Employee Earlie and Nehemiah
Trotter signed union authorization cards on August 29
and August 9, respectively. Luther Mercer signed a union
authorization card on September 4.
The record includes an exhibit dated July 29 which
shows that G. Seale, Union International Representative,
sent a certified letter to the Respondent which was
received on July 31 and which notified the Company that
an organizational campaign was under way. Employees R.
Harris, M. Yarber and J. Harper were named as Union
Committeemen.
On August 7 a mimeographed notice was posted in the
men's room having to do with the Union's efforts to
organize the plant. Respondent claims that this notice
was the first knowledge it had that the Union was trying
to organize its employees. It should be pointed out that
this information is not correct as testified to by the
Company's General Manager, Blackledge, because the
record shows that on July 29, Seale wrote a letter to the
Company notifying it of its organizational efforts and thus
the Company had official written notice not later than
July 31. On August 8, 1968, a certified letter was sent to
the Respondent by Seale notifying the Company that the
Union represented a majority of its employees in an
alleged appropriate unit and requesting recognition and
requesting recognition and a bargaining meeting. On
August 13, the Union filed a charge with the NLRB
concerning an employee named Kendricks. This charge
was withdrawn when Kendricks refused to give a
statement to the NLRB. On September 8 the Union filed
a petition for an election with the NLRB. On September
10 Mr. Tom Daniel wrote a letter to all his employees
stating that the Company did not want a Union at
Southern Household and a copy of this letter appears in
the record. On September 10 Tom Daniel, who will
hereafter be referred to for purposes of identification as
Tom D., read a speech to all his employees explaining the
Company's opposition to becoming unionized and while
this letter has a strong flavor of opposition to the Union,
it does not appear to be violative of the Act. It is not
included in the charge as an allegation of independent
8(a)(1) activitiy. On October 3 the Wayne County News
wrote an editorial captioned "They Reap and Sow Not."
This editorial is a strongly phrased attack on labor unions
and a reprint of it was sent to the Respondent and its
employees (the second is not clear on this point) but there
is no evidence in the record to indicate that the
Respondent had anything to do with the writing of this
letter nor was it associated with this communication in
any way that came out on the record. An NLRB election
took place on October 25, Case 15-RC-3969 the results of
which were as follows. There were 55 votes for the Union,
50 against the Union and 10 challenged ballots; 9 of the
challenges were cast by alleged 8(a)(3)'s. A notice was
posted on the Company bulletin board on the day of the
election , October 25, a copy of which appears in the
record, notifying the employees that the Company had
cancelled the group insurance plan previously paid for in
full by the Respondent. There is further information on
this notice stating that the individual employees could
continue the policy if they paid the premiums directly and
it was pointed out to the employees that the rates on a
group policy insurance were considerably less expensive
than if the employees individually paid for the coverage
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provided by the policy.
The Respondent's plant employs about 160 employees.
Vice President R. Daniel (hereinafter identified as Bob D.
for purposes of identification) testified that the plant is
1100 feet long by 200 feet wide General Manager
Blackledge testified that the plant is 900 feet long by 200
feet wide. It was the custom of Tom D. to ride through
the plant once or twice a day on a golf cart. This
conveyance was used because of the extreme size of the
plant . The office of top management is located at about
the middle of the plant.
1. Respondent's supervisory hierarchy
I take judicial notice of the following facts, set forth in
the Board ' s Decision and Direction of Election dated
September 26; based on the sworn testimony in the
record, Respondent's supervisory hierarchy, all of whom it
was testified had authority to hire and fire, is as follows.
T. M. Daniel: President
Robert W. Daniel : Vice-President
Margaret F. Daniel: Secretary-Treasurer
Fred Blackledge : General Manager
Jack Jenkins: Plant Superintendent
In addition, the record discloses, that the individuals
whose names are set forth below, in the divisions and
departments indicated, have authority to hire and fire
employees and should be excluded as supervisors: The
foreman in the fabricating shop ; Foreman Tom Smith and
James Dickinson in the packing department ; Foreman
Arnold Frazier in the paint department; lead shipping
clerk, Ed Zeitvogel, in the shipping department and Pat
Duel It should be noted that the testimony in the "R"
case is at variance with that given in the instant case. In
the latter, Respondent testified that only Tom Daniel, Bob
Daniel and Blackledge have authority to hire and fire
employees. The other supervisors only have the authority
to recommend hiring and firing and their
recommendations are given effective weight.
2. Cancellation of hospitalization insurance
The record is silent as to the exact hour when
Respondent ' s notice to employees of cancellation of the
group hospitalization program was posted. The complaint
alleges that the posting in this notice on the very day the
NLRB election took place is an independent violation of
Section 8 (a)(1). While the timing in relation to the day of
the election is suspicious the record is silent as to the
exact time when Respondent 's notice to its employees was
posted.
Respondent explained its decision to cancel the group
policy because the Company claimed it could no longer
afford to pay the approximately $1,200 per month it cost
to cover the premiums . In further explaining the
cancellation Respondent contended that it could no longer
put out this large amount monthly because it was losing
money as the result of the poor work being turned out by
the employees , and their excessive absence and lateness
upset production schedules . These facts coupled with the
large number of badly manufactured cabinets which were
being returned from dissatisfied customers was also due to
excessive spoilage and scrap caused by the bad work being
turned out by incompetent employees.
These reasons do not square with the comment met by
Tom D . in his speech of August 13 , in which he promised
additional wage increases which he expected to be able to
give the employees because his new plant was rounding
into shape, and he was at last getting on his feet. With
continued improvement expected after 11 of the
"incompetent employees were fired," by October 25,
Respondent should have been better able to pay $1,200
per month for this fringe benefit than it was on August
13. It is also a fairly remarkable coincidence that
Respondent chose the very day upon which the NLRB
conducted an election to post the announcement. The
congeries of events is at very least highly suspicious. The
election took place from 8:30 a.m. to 10:30 a.m. and
unless the above referred to notice was posted prior to the
commencement of the election it would not seem that the
posting constituted a threat to deprive the employees of a
fringe benefit sufficient to intimidate them in their voting.
Under the circumstances disclosed by the record it is
recommended that this allegation in the complaint be
dismissed because the General Counsel failed to sustain
his burden of proving by substantial evidence on the
record as a whole that the posting involved was
intimidating.
3. Onerous work
Employee Ben West acted as an observer for the Union
on the day of the election. West normally operates the
bending machine. After the voting was over and while he
was working at his machine, Superintendent Jenkins shut
the machine off and took West outside the plant where he
was ordered to unload a big trailer of metal. He cut his
finger doing this work. He testified that his normal work
was operating the bending machine and that he had never
unloaded trucks at any previous time. However, on
cross-examination, it was brought out that West who
earned $1 . 60 (plant minimum ) never got a raise and, in
answer to a question "Do they move you all around the
plant?" West testified "Yes sir." The complaint alleges
that West was singled out for onerous work because he
acted as the Union's observer at the election. In view of
West ' s own testimony and other similar evidence in the
record to the effect that employees were required to do
whatever work they were assigned, it cannot be said that
there is a preponderance of evidence in the record to
support this allegation of the complaint. It is therefore
recommended that it be dismissed.
4. Interrogation of employees
Employee Luther Mercer on an occasion (date not
specified in the record) had a conversation with his
admitted supervisor, James Dickinson at his work place.
Mercer told Dickinson that he [Mercer] felt if the Union
came in it would help the employees. Just after Mercer
came to work on September 9, Bob Daniel came up to
him and asked how he felt about the Union. Mercer said
he never belonged to a union and "did not know nothing
about it." Bob D. said "Well if you are for it say so and
if you you're not say so."
These comments appear innocuous standing alone but
they must be weighed in the context of the total events
which transpired that day. Mercer's demeanor as a
witness was convincing and I credit his testimony. Mercer
signed a union authorization card on September 4. He
was discharged at the end of his shift on September 9,
which fell on a Monday at about 3:30 p.m. No reason was
given for his termination . The timing of his discharge and
the other circumstances surrounding it will be dealt with
at greater length infra. Suffice it to say at this point that
interrogation becomes unlawful when it is part of the
SOUTHERN HOUSEHOLD PRODUCTS
means by which the employer 's hostility carries with it the
purpose to retaliate against union sympathizers and by
threat of job or other reprisals , coerce them.' The
interrogation in this instance , coupled with Mercer's
discharge on the same day as the interrogation took place,
constituted illegal interrogation and I so find.
The complaint alleges two additional instances of
alleged illegal interrogation concerning employees Earlier
Trotter and Nehemiah Trotter.
On the day before he was fired , Earlie T . testified that
Foreman Arnold Frazier asked him on September 11, in
the paint room , if he thought his crew would vote for the
Union . Earlie T. said " I did not know , I didn't care
nothing about it." On the next day , September 12, Frazier
again asked him how his crew was going to vote and was
again told he did not know because he , had not asked any
of them . Earlie was discharged on September 12, under
circumstances to be described in greater detail infra.
While I find Earlie T . to be a confused witness in some
aspects of his testimony , he was direct and convincing in
his recital of the two consecutive instances which took
place on September I1 and 12 . 1 credit this part of his
testimony . In the course of these queries Foreman Frazier
twice sought to elicit from him information as to whether
the men in his paint crew would vote for the Union in the
upcoming NLRB election. Earlie T . was fired on
September 12, which fell on a Thursday, under
circumstances showing Respondent suspected that he was
active in the Union . I have found his discharge to be
violative of Section 8 (a)(3). The discharge , taken together
with these interrogations and the fact that he was
discharged on a Thursday during the regular work week is
conduct violative of Section 8(a)(l) and (3) of the Act.
The facts and circumstances surrounding Earlie T.'s
discharge will be discussed in greater detail infra under the
section of this decision concerning discharges.
Nehemiah Trotter testified that on August 28, while he
was at work , a former employee, Bill Tresh , stopped at
the shipping department for a friendly albeit very brief
visit . Immediately after Tresh departed Tom D ., Bob D.
and Fred Blackledge came up on the golf cart and told
him to hang on to the golf cart . Trotter was driven to the
opposite side of the building where Tom D. asked him
what Tresh wanted . When Nehemiah told him that Tresh
dust paid a friendly visit Tom D. asked if he said anything
about a union . Tom D . then inquired if Nehemiah
attended the Union meeting over at Waynesboro the other
night and was told that he did not go to a meeting. Tom
D. then said he did not want any part of the Union. If he
wanted a union he could go to New Orleans and buy a
union . It was called BUMS and cost $ 10 a month. Tom
D. also said he "would go to New Orleans and buy a
union if I wanted to jeopardize every employee here."
Nehemiah , who is in a reserve unit in the Army,
impressed me with his candor , directness and intelligence.
I credit his testimony. The interrogation which he
described carries a threat and expressed Respondent
President 's animus against the Union . Unless Respondent
at least suspected that Nehemiah was a union adherent I
can find no logical reason to explain the reason for the
interrogation carried out by the President of the Company
on the other side of the plant away from Trotter 's normal
work station . I find this interrogation to be violative of
Section 8 (a)(l) of the Act.
'N.L R B. v. Neuhoff Bros., Packers, Inc., 375 F.2d 372 , 373-374
(C.A.5).
373
Plant Superintendent Jenkins, sometime during the first
part of August , stopped by employee James Jones while
he was working at his machine . A brief conversation
ensued in the course of which Jenkins , in a very polite
tone of voice, asked Jones if he knew anything about a
union . Jones answered , "What's that?" Jones impressed
me as a responsible man who spoke in a measured
manner and I credit his testimony . The incident
concerning the conversation between Jones and Jenkins
superficially appears to be innocuous . Even though Jones
was not discharged until September 12, thus making this
seemingly insignificant interrogation remote in point of
time , it takes on a different coloration when viewed
against the totality of the facts and circumstances relative
to his discharge . This is discussed in detail infra under the
heading , "Discharge of Jones." Jones was the President of
the Union . He testified that he talked to and signed up
about 25-30 employees in the plant on break time and
during lunch time. Under the circumstances I therefore
find that the interrogation , involving as it did a direct
question (did he know anything about a union ) addressed
to Jones by the plant superintendent , to be violative of
Section 8(a)(1) and I so find.
5. Alleged speech of August 13, 1968
Tom D ., the President of the Company , testified he
never gave a talk to his assembled employees in which any
mention of any kind whatsoever was made concerning
unions except for the speech of September 10, which was
read to the employees and which was prepared for
Respondent by a prominent New Orleans labor law firm.
Both in his direct testimony and during cross-examination,
he stoutly maintained that while he gave quite a number
of extemporaneous talks to his employees concerning the
quality and quantity of work being performed , the amount
of spoilage and scrap metal resulting from poor work, the
lateness of certain employees and the frequent absences of
other employees , he made no remarks about unions except
for the speech which he read on September 10. His
testimony on this point was echoed by Blackledge, Bob
D., Jenkins , Ed Zeitvogel , Dickinson and Tom Smith.
Tom D . the owner of the business , was forthright,
aggressive , direct , strongly opinionated and created the
impression of being positive to the point of leaving no
further room for discussion . He obviously believed what
he said to be gospel truth . In the early part of his
testimony he was still certain in his pronouncements that
iterated and reiterated the fact that he never , at any time,
spoke about the Union to any of his employees either
singly or en masse , until he apparently convinced himself
of the utter correctness of his testimony . He must have
been laboring under such a weight of conviction that even
when it was pointed out on cross-examination that he had
testified to having read a talk exclusively about unions, he
readily conceded this fact but hastened to add that that
talk was prepared for him by his attorney as if to disavow
any responsibility for it because that speech was prepared
by some persons other than himself.
While the record shows there is some variance in the
testimony of the General Counsel's witnesses regarding
the date when Tom D. allegedly delivered a speech to all
the employees in the vicinity of the north end of the
shipping department , piecing together the evidence on this
point, it seems clear that the talk was given on or about
August 13 . Employee witness A. Rogers, credibly stated
that it was given 1 week before August 20. This date was
fixed in his mind because on a Tuesday August 20, he
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed an affidavit for the NLRB and he recalled that the
speech in question was given on a Tuesday, 1 week before
the interview with the NLRB Examiner. In any case the
exact date has no special insignificance since the fact of
the delivery of the talk was firmly attested to by five of
the General Counsel's witnesses: J. Jones, A. Rogers,
Luther Mercer, P. Busby, and R. Hodge.
What follows infra is a reconstruction of a composite of
the testimony of what was said in this speech. It is to be
noted that the threads in the tapestry of testimony,
repeating as they do certain phrases, form a refrain of
similar language , and they are inherently corroborative. It
would not appear to be reasonable to conclude that five
unsophisticated workmen would so fabricate a recital as to
individually repeat similar or identical language in as
consistent a manner as appears in the record.
The witnesses testified with marked consistency that the
speech was extemporaneously given in the north end of
the shipping department by Tom D. while he was seated
in his golf cart with almost all of Respondent's supervisors
present at the meeting together with all the employees.
The following, inter alia , and with only slight variations, is
the composite of Tom D.'s remarks:
Before Respondent came to Shubuta he had been told
that he would find the colored employees more
cooperative than the white; there was no Carpenters'
Union coming in; that we were trying to get this Union
in; that we were crazy and stupid if we thought we were
going to get a Carpenter's Union in the plant; there
wasn ' t no [sic] union coming in of no kind; he [Tom D.]
would shut the plant down if we continued to try and
get one in ; if we kept continuing that he [Tom D.]
would let the Carpenters sign our paychecks; he had
raised our wages and we had to give him time to get on
his feet; he dust didn't have a chance; he just didn't have
the money to do it yet; when he got the chance he
would raise up; he had raised some and he would
continue; he said we were stupid and crazy; we were
crazy punks if we thought we would get a Union into
this plant ; we could sign all the cards we wanted to and
if we continued to sign them, he would let the Union
sign out paychecks; he said he was a rich man he had
made a million and he had lost a million ; personally I
am a rich man ; he said he would shut the plant down if
the Union would come in; it [Carpenter's Union] is no
good; I will not have it; when you [the employees] go to
the polls to vote "you'd better vote no"; he owned the
building and everything in it; before he would let the
Carpenter's Union come in and take over he would
close the building down; if we [the employees] wanted a
factory in Shubuta, when we went to the polls we had
better vote no; he had nothing against unions, had
worked with them all his life but no Carpenters or
Teamsters Union could come in; he would not put up
with it; he had invested over a million dollars in the
plant - now it was beginning to return he was gonna
raise pay and keep on raising it; he said the only way
you could have a union would be through a NLRB
election; at the end of his talk he said "If you did have
an election you'd better `no' or you won't have no job; I
am a rich man , personally myself and I don ' t have to
stay here and deal with the union."
Tom D . testified that while he did make some
extemporaneous speeches to the assembled employees he
never mentioned the word union nor did he talk about
unions except for the speech he read on or about
September 10, from an address prepared for him by
certain lawyers in New Orleans. A typed copy of that
speech appears in the record. He flatly denied making any
of the comments as are set forth in the indented section
supra . When he was cross-examined on the subject of the
speech of August 13, the General Counsel put many
questions to Tom D. In the main the General Counsel
repeated in paraphrased language many of the
above-described comments. Tom D. testified that he first
heard of the Union campaign about October 7 or 8. He
admitted that from time to time he made certain speeches
about quality control, spoilage, the necessity for
employees to come to work on time and not lose time by
staying out of the plant. These speeches were made over a
period of some months starting about May. The statement
Tom D. made about having first heard about the Union
campaign about October 7 or 8 is obviously erroneous
because the Union had written two letters to the
Respondent , copies of which are included in the record.
One was written in July and one in August and both a
charge and a representation petition had been filed before
these dates. When reminded of the above communications
Tom D. corrected himself and said he meant August 7.
He said he really only became aware of the Union for the
first time when a notice was posted in the men's room on
or about August 7, and was called to his attention. The
General Counsel put a long series of questions to him
concerning his knowledge of the Union's effort to organize
the plant to most of which he replied, not with a simple,
"No" but with a vigorous "absolutely not." I counted 19
"absolutely nots" within the compass of approximately 7
pages of the transcript. This is of a piece with the
trenchant replies and asseverations which characterized
Tom D.'s demeanor on the witness stand. Respondent's
supervisors Blackledge, Bob D., Jenkins, Ed Zeitvogel,
Tom Smith, and J. Dickinson all parrotted the testimony
of their boss with respect to his vigorous denial of ever
having given an extemporaneous speech around August 13
concerning unions. These denials did not have a ring of
authenticity about them and I do not credit the witnesses
who gave this testimony.
The testimony of the General Counsel' s witnesses,
whose fairly consistent recollection of the substance of the
talk of August 13, have some areas where neither the
dates nor the substance of other speeches, including the
one written by Respondent's attorneys, were recalled by
them. It seems reasonable that having heard numerous
talks - exhorting them to do a better job - because of
similarity in the talks as to tone and content, such
speeches would blur into a fog of sameness and might not
be remembered. It is also understandable that the speech
of August 13 bristling as it does with animosity and
hostility against the Carpenter's Union, and accompanied
by threats of loss of jobs, closing the plant, wage increases
if the employees voted against the Union and other direct
attacks on the Union is the kind of talk that would make
a vivid impression on the employees and would likely be
recalled by them. It is certainly not unusual that average
workmen who hear this kind of a diatribe, including a
threat to them of the loss of their jobs if they vote for the
Carpenter's Union, would long remember it.
For these reasons I credit the testimony of the General
Counsel's witnesses and find that Tom D. did in fact
deliver an extemporaneous talk on or about August 13,
which contained threats of reprisals and promises of
benefit the totality of which was clearly violative of
Section 8(a)(1) and demonstrated in unmistakable
language Respondent's extreme hostility to the Union.
SOUTHERN HOUSEHOLD PRODUCTS 375
B. The Alleged 8(aX3)'s
Preliminary Statement
The complaint lists 12 men as having allegedly been
discriminated against in violation of Section 8 (a)(3): L.
Strickland , R. Kennedy , and C. Cox were all discharged
on July 26. M. Yarber, G. Yarber , R. Harris, and J.
Harper were discharged on July 31 . George Allen was
allegedly discriminated against on September 6; L. Mercer
was discharged on September 9; E. Trotter on September
12; N. Trotter on September 14; and J . Jones on
September 16.
Respondent explained its practice with respect to hiring
and firing as follows:
Only the top three bosses , Blackledge , Tom D., and
Bob D . (who shall be referred to as the "Big Three") can
hire and fire employees . All hires are made by Blackledge.
If someone is to be fired the supervisor must go to any
member of the " Big Three " to secure authorization. The
actual act of discharge in every case except that of N.
Trotter is performed by the foreman of the department
and not by the direct word of the members of the "Big
Three." The lower range of supervision does have
authority to recommend hiring and firing and such
recommendations are given effective weight . Inconsistent
with this testimony Respondent testified under oath in the
representation case (15-RC-3969) that all supervisors have
the right to hire and fire and the entire supervisory
hierarchy, consisting of the "Big Three ," Margaret Daniel
(wife of owner Tom D.), Plant Superintendent Jack
Jenkins, the foreman in the fabricating shop and foremen
Tom Smith, James Dickinson , Arnold Frazier, and Ed
Zeitvogel have the authority to hire and fire and
consequently were excluded from the bargaining unit as
supervisors.
Bob D . testified that hiring and firing can be done by
any one member of the "Big Three " or any all three
acting in concert when they were available . There is some
significance in the fact that, according to the
discriminatees , the discharge of about I l of the employees
took place while all 3 members of the " Big Three" were
in the plant and physically within eye view of the
discharges . Respondent did not adduce any testimony to
show that all three members of the "Big Three" were
always present at the time every employee was discharged.
The record shows that these men had many duties in the
plant besides standing around watching certain employees
being discharged . This unusual performance was in effect
only while suspected union adherents were discharged.
At numerous times during the hearing Respondent's
attorney argued that ever since February , when the plant
commenced operations , until the time of the hearing this
new plant had a tremendous turnover of employees.
Testimony to the same effect was also given by some of
the Respondent 's witnesses . About 285 employees were let
go, many by voluntary quits , and approximately 50 were
discharged during this period . Respondent offered to
introduce an exhibit giving the names, departments and
dates when these events took place . Over Respondent's
objection I rejected this exhibit . I hereby reverse this
ruling and accept the document into evidence because it
provides amplification of what was both testified to and
argued by Respondent ' s attorney on the record. The
substance of the exhibit has been carefully considered. It
does not however alter the conclusion reached by me in
this case.
Respondent made no proffer of evidence to explain why
on 2 days when multiple discharges were made, July 26
(three discharges) and on July 31 (four discharges), all 7
of these discharges were alleged in the complaint as
involving only discriminatorily discharged employees. It
should be noted that these discharges coincide in point of
time exactly with the period when the Union campaign
was at its height. If the timing of the discharges was due
to mere happenstance the coincidence is extraordinary and
unbelievable. The reasonable inference to be drawn from
these events is that since only union adherents were
singled out for discharge on July 26 and 31, the discharges
were motivated as reprisals directed against the employees
for their activities on behalf of the Union or Respondent
penalized these men because they were suspected of being
adherents to the Union.
Thus on July 26, Respondent terminated Lewis
Strickland, R. B. Kennedy, and Clifton Cox. On July 31,
M. Yarber, George Yarber, Raymond Harris, and John
Harper were discharged. All seven of these men were
either actively engaged in union activities or Respondent
suspected they were union supporters. In any case, as will
be more fully developed infra, these men were the major
active or passive employees identified with the Union and
by being discharged the Union forces in the plant were
decimated.
1. The discharge of Lewis Strickland
Strickland began to work for the Company on May I
and was discharged on July 26. He was a tack welder. His
immediate supervisor was Oscar Zeitvogel. Zeitvogel is no
longer with the Company and was not produced as a
witness. Strickland was hired at $1.60 per hour and on or
about July 1, was raised to $1.70. The record contains
information to the effect that only deserving employees
were given merit increases. Strickland said when he first
began the job there was considerable talk about
organizing a union among the tack welders, cutters and
benders all of whom worked in the back of the plant. The
union talk took place during lunch time, break time and
outside the plant on the parking lot. Included in these
conversations, among others, were the two Yarbers and
Kennedy. Strickland and Kennedy went around and polled
each man asking individually what he wanted to do. The
employees decided they wanted to be represented by the
Carpenter's Union and Strickland got in touch with a Mr.
Fields, Union representative. Fields communicated with
Strickland on July 24, he met Strickland in Strickland's
house and gave Strickland 80 authorization cards. On July
25, Strickland started giving out the cards. He gave some
out on the parking lot, talked to as many employees as
would listen to him and continued making a distribution
of the cards during lunch time, break time and on the
parking lot . On July 26, Strickland went to the plant at
6:30 a.m. He distributed cards outside the plant while
standing approximately 70 or 80 feet from the entrance to
the sidewalk which leads to the parking lot. He also went
inside the plant where he stood inside the bathroom and
continued to give out cards. On July 26, he gave out 65 or
70 cards. His distribution took place openly and all
activity ceased before 7 a.m. Strickland said that, so far
as he knew , he did not notice any foreman watching him
in the course of this activity. At 9 a .m. at a break time in
the plant he asked two men to sign cards.
When he got back to his machine a few minutes after
break time he saw Tom D., Blackledge, and Jack Jenkins
as all three got out of the golf cart and approached
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robert Kennedy. Jenkins had two checks in his hands and
he gave them to Kennedy. Then Blackledge, Tom D., and
Jenkins came to Strickland and gave him two checks.
Blackledge and Tom D . were standing facing him about
25 feet from where he was working. Jenkins said they no
longer needed his services. At this point Tom D ,
Blackledge, and Jenkins followed in the golf cart and
Strickland stood aside to let them pass. Tom D. said
"Now, go on and get out of here." Strickland found that
he had been paid up to 9 a.m. on Friday, July 26.
Strickland was never told the reason for his discharge
and he testified he was never spoken to by company
representatives about staying on the job or about the
quality or quantity of his work. He also said Zeitvogel did
not participate in his actual discharge. Strickland said the
management people never questioned him about a union.
Strickland also testified between 7 and 9 a.m. he stood at
his welding machine and did not leave it. The record
shows that Strickland signed his union card on July 25.
2. Conclusions as to the discharge of Strickland
In its preparation for the instant hearing Respondent
prepared a memorandum which contains the names of all
the employees enumerated in the complaint and alongside
each name there is a brief explanation of the basis for the
discharge. Alongside of Strickland's name appear the
words "would not stay on job." Respondent denied that at
the time of Strickland's discharge any of the "Big Three"
were seated in the golf cart in a position where they could
be observed by Strickland. Strickland was fired, according
to the Respondent, because he would not stay on the job,
he wandered around and he was warned repeatedly.
Strickland testified that he was never warned by anyone
and that he never left his job except during breaks and for
lunch.
It is significant to note the timing of this discharge: it
was made about 9:15 a.m. on a regular work day when
the shift ended its operation at 3:30 p.m. I credit
Strickland's testimony that the "Big Three" were seated
in a position to observe the discharge of Kennedy and his
discharge. It seems very unusual indeed for an employee
to be discharged at 9:15 in the morning without some
precipitating event occurring to trigger off the discharge.
This information is to be juxtaposed over against the fact
that Strickland overtly made a distribution of union
authorization cards on the day he was discharged and
made no effort to hide his distribution both outside and
inside the plant . These facts give rise to a reasonable
inference that the discharge took place because of
Strickland ' s union activities and I so find.
3. Discharge of Robert B. Kennedy
Kennedy had worked for the Maclnnis Construction
Company which company built the Respondent's plant.
Kennedy worked on the plant construction job until about
Christmas 1967. He then worked at Tom D.'s residence
doing carpentry jobs and, about the end of February, he
went to work at the Respondent ' s plant where he operated
a punching machine and a bending machine. His
immediate foreman was Oscar Zeitvogel . When he ran the
bending machine his work station was about 15-20 feet
away from Strickland; while operating the punching
machine he was about 60-70 feet from Strickland. He
started at $ 1.60 per hour and was given a merit increase
in June to $1.70.
In the middle of June, Strickland spoke to Kennedy
about unions. Strickland told Kennedy that deserving
employees would receive another increase around July 1.
No such raise was given and Kennedy testified that the
failure of this wage increment to come through was the
reason why union activity began in the plant shortly after
July 1
Kennedy talked to about 10 or 15 employees. Kennedy,
Strickland and Cox signed union authorization cards on
July 25. The Carpenters' union began its organizing
activity in earnest on or about July 25. Kennedy talked to
Strickland on Respondent's parking lot; he took a number
of union cards, he talked to Jones and M. Yarber and
some other employees during breaktime before he started
work in the morning and on the parking lot. Kennedy also
took a union card to Cox at his home (Cox is a neighbor)
and Cox signed his card on July 25. Some employees
talked to Kennedy in the plant asking him what he
thought about the Union and, so far as he knew, Kennedy
was not aware of being observed by company supervisors.
He said he did not pass out any cards in the plant and
only did his talking during lunch, breaktime and before
work.
On the very next day, July 26, shortly after breaktime
at about 9:20 a.m., Kennedy was punching holes in
cabinet doors. He was approached from the rear by
Jenkins who was with Blackledge and Tom D. Jenkins
said , "Kennedy, here's your two checks. You are paid in
full. We just don't need your services any longer." Tom
D. got off his golf cart, came over to within 3 feet of
Kennedy and said "We just don't need your services any
longer," and in an unusually loud voice said, "Now get
the hell out of here." Tom D. then asked "Where is the
other boy" at which point Jenkins raised his hand in the
direction of Strickland. The discharge of Strickland took
place moments later as has been described supra.
Kennedy testified that Respondent's supervisor, Oscar
Zeitvogel, never criticized him before about his work nor
was he cautioned to stay on his job or to quit agitating
other employees. Respondent's pretrial notations show,
next to Kennedy's name, that he would not stay on his
fob, agitated other employees and written in ink are the
following words, "spoiled steel." The man who could be
expected to have direct knowledge of Kennedy's
performance on the job, Zeitvogel, no longer works for
Respondent at Shubuta and was not produced as a
witness.
Respondent's denied knowledge of Kennedy's union
activity, claimed that Kennedy was warned to stay on his
job, stop agitating other employees, and that he caused
excessive steel scrap.
Respondent did not present convincing evidence in
support of its complaints against Kennedy. Kennedy was a
good witness and impressed me by his self assurance and
directness in answering questions . I credit his testimony
4. Conclusions as to the discharge of Kennedy
The evidence is clear that Kennedy and Strickland were
the mainstays of the Union's organizing campaign. Both
of these men overtly talked about the Union, carried
union cards on their persons and under these
circumstances it is unreasonable to suppose that the
Respondent did not have knowledge of their activities. It
strains credulity to believe that the first two employees
discharged on July 26, within moments of each other,
should have been the two men most active in the union
campaign and that these events were sheer happenstance.
SOUTHERN HOUSEHOLD PRODUCTS 377
Even though both employees stated that they were not
aware of having been observed by company supervisors
when they engaged in conversations on break time with
fellow employees the very precision with which the
Company spotted the chief union organizers and
immediately discharged them creates something more than
a suspicion that the discharges were motivated by the
Respondent's knowledge of the Union activity of these
individuals. It is significant that one day after circulating
union cards for signatures they were both discharged
within moments of each other at 9:20 a.m. in the early
part of their shift and before they had chance to finish the
day's work. Such precipitate action, accomplished with
three supervisors watching within eye view, coupled with
the fact that Respondent handed both these employees
their last paychecks already made out in advance,
provides an unmistakable inference that they were
discharged for engaging in protected activity. I therefore
find that Kennedy, like his fellow workman, Strickland,
was discharged in violation of Section 8(a)(3) and (1) of
the Act.
5. The discharge of Clifton Cox
Cox was employed when the plant was opened
approximately at the end of February. His job was to
wipe off cabinets and his foreman was Arnold Frazier. He
was a neighbor of Kennedy and signed his union card on
July 25, which card was given to him at Kennedy's home.
He was discharged at the end of his shift on Friday, July
26 at 3:30 p.m. The Respondent's notation next to Cox's
name states "could not adapt to this type of work and
incompetent." Cox was approached by Frazier on July 26,
told his services were no longer needed , given two checks
and told he had been paid in full. He was never warned
about his " incompetence" although he testified he was
told to try to do better.
If Cox was incompetent and could not adapt to the
type of work he was doing it is impossible to understand
why his inadequacies were tolerated by Respondent for the
5 months he was on the job . His foreman, Frazier,
testified that Cox spoiled about one $60 cabinet almost
weekly thus causing Respondent a loss of approximately
$1,500 for the 5 months he was employed. Suddenly
Respondent (on the very day that the two chief union
adherents, Strickland and Kennedy are fired), decides to
discharge Cox because "he is not adapted to this kind of
work and is incompetent." Also note that Cox is known
to be a neighbor of Kennedy. The circumstances of Cox's
discharge are identical with those of Strickland and
Kennedy. He is only told his services are no longer
necessary and he is paid off in the plant with two checks
which were prepared in advance . I infer from these events
that Respondent ' s explanation for the discharge , given at
the hearing , was a pretext to cover up the true reason
which was that he was fired because the Company
suspected he was an adherent of the Union. I find that
Cox was discharged in violation of Section 8(a)(3) and (1)
of the Act.
6. The discharges of M. Yarber, George Yarber, R.
Harris, and John Harper
M. Yarber, his brother G. Yarber, R. Harris and J.
Harper were all discharged on Wednesday, July 31, in the
middle of the work week and at about 3 p.m. when the
normal shift ends at 3:30 p.m. They were all paid off as of
3 p.m. with checks handed to them at the time they were
discharged. These checks were obviously prepared in
advance. No reason was given to the men but they were
all told their services were no longer required. The record
does not show that any other employees were discharged
on that day. Nor was any evidence adduced at the hearing
to indicate a special circumstance that might explain the
urgency of the sudden discharges before the normal end of
the shift. It is significant and should be especially noted
that the record does contain a copy of a certified letter
dated July 29, written on union stationery, signed by the
Union 's International Representative , G. Seale, notifying
the Company that Harris, M. Yarber and Harper had
been selected as committeemen to contact the
Respondent's employees for the purpose of organizing
them to join the Union. The record also contains a postal
receipt showing that the letter was delivered to
Respondent on July 31 stamped am. Approximately 3
hours after the receipt of this letter all three men named
as members of the Union's organizing committee were
discharged. It should be noted that George Yarber is the
brother of M. Yarber and worked by his side. The
Company had clear notice that three of the four men were
working as union representatives and the fourth is the
brother of one of the named active union members. In the
light of these facts Respondent's insistence that it had no
knowledge of union membership or activity of these
employees is patently false. The reasons for the discharges
are equally incredible. According to the pretrial paper
(which is included in the record) prepared by the
Respondent for the hearing states the following reasons
for discharge: M. Yarber: unable to adapt to this type of
work followed by the word " spoilage" in ink ; G. Yarber:
unable to adapt to this type of work; Harris: continuous
absenteeism; Harper: not mentally or physically capable.
M. Yarber was first employed by the Company in
February 1968. He was originally hired to do general
work and at the time he was discharged was doing spot
welding. He was discharged on Judy 31. Since M. Yarber
was employed by the Company ever since its operation
commenced in Shubuta in February 1968 and he was
discharged on July 31, it took the Company 5 months to
discover that he was "unable to adapt to this type of
work." In fact, M. Yarber testified credibly that he
trained Lewis Strickland and Johnny Brewer and
altogether four or five employees to do the work that they
were hired to perform. At the time he was discharged M.
Yarber was training his brother George. He was hired at
$1.60 an hour and raised to $1.70 in June at which time
his then foreman, O. Zeitvogel, gave him a 10-cent
increase and said "There are going to be some of the guys
get it that deserve it." M. Yarber signed his union card on
July 26 which card he received from Strickland in the
evening . Shortly before his discharge, at approximately
2:30 p.m., M. Yarber saw Tom D. Blackledge, Jack
Jenkins and Oscar Zeitvogel drive by his work station in
the golf cart. Before M. Yarber left the plant he saw
Oscar Z. talking to his brother while both were standing 5
or 6 feet away. M. Yarber testified he was never warned
of doing any bad work or causing spoilage and in fact he
stated that his foreman recommended his work all the
time . For example, Oscar Z. would come around Friday
evenings, ask him to work on Saturday, and in this
connection he would say "I need a few of you good guys
and I want to come out on Saturday." M. Yarber also
testified that no representative of the Respondent ever told
him that he could not adapt to the work and no one
complained of the work that he did. One additional reason
was given by Bob D. to the effect that M. Yarber was
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insubordinate. At one point M. Yarber had asked Bob D.
to get him a sink cabinet for his personal use. Bob D. said
he would but he never did get this sink cabinet. Madison
Yarber was told again that he would get a sink cabinet at
a later time but this time he told Bob D., "forget about it
I won't get one ." When asked if he said forget about it in
a loud or angry voice Yarber said, "No." Apparently this
Innocuous conversation is the basis for Bob D.'s stating
that M. Yarber was insubordinate.
G. Yarber was hired on July 8 at $1.60 an hour to
work as a tack welder or spot welder. He was fired on
July 31. His duties included the welding of hinges on the
ends. On the day he was moved from assembly work to
hinging he was told that his brother M. Yarber would
instruct him. G. Yarber signed a union card on July 26,
which he received from his brother Madison and then
returned it to him.
On July 31 at about 3:03 p.m. while he was standing at
his welding machine his foreman Oscar Z. hit him on the
shoulder and said "Your time go in as of 3 p.m." G.
Yarber got his hat and coffee pot and shook hands with
James V. Jones and said, "It's nice to have been working
with you." Yarber testified that he was never sarcastic or
aggressive in his manner and never received complaints
about inability to adapt to his job nor was he ever told
that he was an agitator or a sorry worker or that he had
been insubordinate. He also was never told why he was
discharged. In the course of his cross-examination he was
asked whether he had ever been criticized for talking too
much or being off the job. To these questions Yarber
answered, "No." Yarber was discharged on July 31, a
Wednesday, before the end of his shift.
In view of the fact that he worked alongside of his
brother , who was a known union adherent , it is reasonable
to assume that the Company took G. Yarber to be equally
involved with the Union as his brother, M. Yarber. This
inference is logical in view of the fact that the reasons
advanced by Respondent at the hearing to explain G.
Yarber's sudden discharge before the end of his shift and
in the middle of a work week do not hold water and seem
to have been advanced as part of a shifting series of
explanations none of which are convincing. Yarber's
testimony was given in a straightforward manner with
some vigor . His demeanor on the witness stand impressed
me with the fact that he was telling the truth. Once again
it is to be noted that Oscar Zeitvogel, who was G.
Yarber's direct foreman had the best opportunity to
observe his performance as an employee , is no longer
working for the Company but no reason was given why he
had not been requested to appear as a witness to testify
for Respondent. His failure to be called suggests that if he
had appeared his testimony would not have supported
Respondent's explanations.
Raymond Harris was hired by the Company in April
1968, at $1.60 an hour and was raised to $1.70 sometime
around the middle of June . He was discharged on July 31,
at 3 p.m. At this time Jenkins and Blackledge came to
Harris while he was working and handed him his check
with the comment made by Jenkins "Your time is paid up
as of 3 o'clock, we don't need you anymore." Harris saw
Tom D. sitting in his golf cart . Harris testified that he
talked to a number of employees at breaktime and
lunchtime both before he signed his union card and after.
He signed his union card on July 26. He testified that he
was late once as far as he could remember and was absent
4 1/2 days during the course of his employment. He said
that he had never been criticized for too much talk, for
killing time or for being absent an excessive number of
times . He also said he had never had a conversation with
Bob D. about missing work on Mondays.
Respondent's pretrial notes contain the statement with
respect to Harris that his discharge was due to the fact
that he was continuously absent. If this was indeed an
accurate statement of the reason for his discharge it would
have been simple for the Company to produce the best
evidence concerning absenteeism by bringing in Harris'
timecards. Since this was not done it would appear that
charging Harris with excessive absenteeism as a basis for
discharge would not have been supported by the
Company's records.
Harper was hired on May 16 and fired on Wednesday.
July 31 at 3 o'clock. He worked as a spot welder and
started his employment earning $1 .60 an hour which was
raised to $1.70 within 30 days after he secured his job.
Harper testified that the raise which he received from his
foreman Oscar Z. was accompanied by a statement from
Oscar who said "You are a good worker, I got you a
dime." Harper signed his union card on July 26. Harper
said he passed out approximately five union cards at
breaktime in the afternoon or in the parking lot. At the
time of his discharge Oscar Z. gave him his check and
said , "Your time stops at 3 p.m., I can't use you
anymore." At the time of his discharge Harper saw Tom
D., Bob D., Jack Jenkins, and Fred Blackledge who were
positioned about 20 feet away from his work station and
were in a position to observe what occurred at the time of
his discharge. After he was given his check he took off his
work gloves and apron and started to leave the plant.
Tom D. told him that he didn't have anything else to talk
about and to get off the premises. Harper said he was
never criticized for either the quality or quantity of work
that he did and in fact had never been criticized by
Respondent. It is difficult to understand how he could be
raised 10 cents an hour within 30 days after the
commencement of his employment if he was in fact "not
mentally or physically capable" of performing his duties.
This last is the notation which appears on the Company's
pretrial memorandum . I find that M. Yarber, G. Yarber,
Harris and Harper were discharged as part of the
Respondent's clearly discernible pattern of discrimination
directed against these employees because of their activities
on behalf of the union which action by Respondent is in
violation of Section 8(a)(3) and (1) of the Act.
7. George W. Allen, Jr.
The facts and circumstances concerning the General
Counsel' s allegation of the discriminatory discharge of
Allen are unusual. The General Counsel contends that the
name Yarber was anathema to Respondent because of the
Yarbers known adherence to the union. Allen is a nephew
of the Yarbers. From this premise it is alleged that Allen
was discharged as a probable union adherent because of
his kinship to the Yarbers.
Roland Hodge was a summer worker employed by
Respondent. He came into the plant on September 6
accompanied by Allen and both men went to the place
where Hodge normally works. Hodge explained that he
was a summer worker who would finish his work that day
and would thereafter return to college. Allen is a friend of
Hodge and Hodge brought him to the plant with the idea
in mind of having Allen take his place as an employee.
Claude Brown was an employee who assisted Hodge from
time to time. Allen had known Claude Brown all his life.
Hodge introduced Allen to foreman Tommy Smith and
told Smith that he had brought Allen to take his place.
SOUTHERN HOUSEHOLD PRODUCTS
Hodge and Smith talked for a while and then Hodge told
Allen that Smith was going to use him . Smith then went
to Allen and asked him if he had previously done work of
that nature and Allen said he had not. Smith allegedly
told Allen to secure an apron and start work and that
Hodge would show him what to do. Allen asked Smith
where he was to,get an apron. About this time Brown
removed his apron, and Smith told Allen to use it. Brown
handed Allen his apron; Allen put it on and Hodge told
him to put some plastic door stops and other items in the
apron. During this time Brown had walked to Allen's left
and behind him. Brown walked back by Allen (after
Hodge had shown him how to perform his job) and said
to him "Hello, there, that Yarber boy." Allen saw Brown
walk over to Smith. He saw Smith turn around to look at
him. Hodge had a few words with foreman Smith and
then he came over and said "Well, I don't guess you get
the job" because he [Smith) said he would not be able to
use you or something to that effect. At this point Allen
pulled off the apron and left the plant. Allen testified that
he worked approximately 4 minutes. At the time the
NLRB election took place in the Company's plant, Allen
appeared and tried to cast a ballot but was told that there
was no record that he had ever been employed by the
Respondent and he could not vote. Allen described himself
as an 8(a)(3). When asked on cross-examination where he
learned about 8(a)(3)'s Allen said that the Union
Representative, Seale, told him he was an 8(a)(3) and that
he ought to cast a ballot.
Respondent contends that Allen was never employed by
it, never made application for employment, never
submitted his social security number or received a W-4
withholding tax form and was entirely unknown to the
Company. It should further be noted that Allen never
claimed compensation for the 4 minutes he says he
worked for the Company.
The General Counsel cites as authority for his espousal
of Allen's claim two cases, Product Engineering and Mfg.
Corp. 133 NLRB 1375, and Gaylord Discount Stores of
Delaware, Inc. 137 NLRB 557, 566. In Product
Engineering Respondent contended that there was no
probative evidence that it knew of any union activity by
Rollie Keln or Wood. The two Keln brothers and Wood
were constant companions, riding to and from work
together, and consorting with each other, by Respondent's
own admission during working hours. On May 2, all three
attended a union meeting together , signed union cards and
the next day passed out cards during lunch hour and after
working hours. These activities were carried on by all
three at the same time and place.
The Board found:
If Respondent was, as we find, aware of Melvin's
activity on behalf of the Union, it is proper to infer that
it was also aware of the Union activity of his brother
and of Wood, which occurred at the same time and
place, or at the very least, that the Respondent
suspected that, in view of their close association during
working and otherwise, Rollie and Wood shared
Melvin's prounion sentiments. Accordingly we find
adequate evidence in the record that the Respondent
believed that all three were union adherents.
Hodge testified that while Allen was getting his apron,
Brown asked Smith if he was going to hire Allen. Hodge
was not certain but he believed that Smith nodded that he
was. Hodge further ' testified he heard Smith ask Brown
"Do you know him?" and Brown 's reply "That' s an old
Yarber boy." A few minutes later Smith called Hodge
379
over and told him he would not be able to use Allen but
that he had been thinking about getting a taller man for
the job when Hodge left. There is evidence in the record
that Hodge is 5' 8" in height and Allen 5' 11". Hodge
went over and told Allen he wasn't going to get the job.
This occurred after Hodge and Allen had worked only a
few minutes.
The General Counsel contends that the testimony is
clear that Allen was acceptable and accepted for
employment as an Allen, but he was not as a "old Yarber
boy."
The testimony in the record is not at all clear that
Allen was ever hired by Smith. Most of the conversations
respecting instructions to Allen were given to him by
Hodge who admittedly was an employee but not a
supervisor. The facts of the Product Engineering
Company are not apposite to the case at bar. There is no
evidence to show that Allen had a close, ongoing daily
relationship with his uncles, the brothers tYarber. There is
certainly no evidence to indicate that Allen participated
with the brothers Yarber in any union activity of any kind
whatsoever. It seems clear that for the General Counsel to
attempt to spin a thread of circumstantial evidence
pointing to the fact that Allen was a probable union
adherent because of his kinship to the Yarber men is
going pretty far afield in an attempt to make a case.
There is even serious doubt that Allen even considered
himself as an employee. He never made application for a
job in the regular way through the front office at the time
he allegedly began to work for Respondent. Furthermore
he never claimed any pay for the few minutes of work
that he did perform. The General Counsel did not slipport
his burden of proof that Allen had ever been an employee
of the Respondent or that he had been discriminatorily
refused employment. Further no probative evidence was
adduced to show that Allen was identified with the Union
in any way known to Respondent. I therefore recommend
that this allegation in the complaint be dismissed.
8. The discharges of Earlie Trotter and Nehemiah
Trotter
The discharges of the Trotters will be handled together
because, as will be seen infra, the situation involving them
has some circumstances in common.
Earlie Trotter and his third cousin Nehemiah rode to
work together in the same car pool. Neither one was
conspicuously engaged in union activity. The sole direct
evidence showing interest in the Union stems from the
fact that they both joined the Union and signed union
authorization cards which are included in the record.
Earlie was hired by Respondent February 27, 1968, at
or about the time the Company commenced its operations
in Shubuta. He was discharged on September 12. He
worked in the paint department painting, training
painters, and caring for the paint pumps. His immediate
supervisor was Arnold Frazier. He testified without
contradiction that over the course of his employment he
trained 25 to 30 painters and was the senior employee in
his department. At the time he initially applied for work,
February 27, he made application together with his cousin
Nehemiah, J. Cooley, and Otha Jones and it was the
regular practice of these four employees to swap driving.
He signed a union authorization card on August 29 and
claims he attended four union meetings before his
discharge. Earlie was elected a Warden of the Union
before he was fired.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about September 11, Frazier asked Earlie while
they were in the paint room how Earlie thought the
painting crew would vote in the NLRB election. Earlie
testified that he told Frazier "I did not know, I didn't
care anything about it." Subsequently, on or about
September 12, Frazier again asked Earlie if he thought
the painting crew would vote for the Union. Earlie replied,
"I do not know because I haven't asked anybody." This
conversational exchange took place about 11:30 a.m.
before the paint crew knocked off for dinner. On
September 11 Earlie testified that he told Frazier he was
sick with yellow jaundice and he also allegedly was told by
Frazier that he [Frazier] too, was not feeling well and
may also have had yellow jaundice. Frazier denied he
talked to Earlie about both of them feeling ill.
The next morning, September 12, when he was
discharged, Earlie sent word by J. Cooley or Sam Barney
(both riders with the Trotters in the car pool) that he
would not be at work until 10:30 a.m. because he had to
visit the doctor. Frazier admitted that he had received
word about Earlie's visit to the doctor and that he would
be late in reporting for work.
Trotter testified that he went to the doctor's office and
returned to work at 10:30 a.m. as he had promised. He
did not see the doctor because the doctor was at the
hospital and was not expected back in his office until 11
a.m. Earlie did not wait because he did not want to report
to work later than he had promised. Later that day,
September 12, at about 2:30 p.m. Frazier told Earlie that
Blackledge wanted to see him in the office. When Earlie
and Frazier reached the office they found Bob Daniel and
Blackledge waiting for them. Blackledge said he had
called Dr. Eure in Bay Springs who said Trotter had not
been in to see him. Blackledge offered to call the doctor
again . Trotter said never mind calling . Trotter then
testified: "They said, well we're gonna have to let you go,
because you done [sic] lose so much time and everything."
And they handed me my check. Trotter thanked them for
letting him work there, left to change his clothes and was
told by Frazier to "get all your belongings and get out the
door and wait for your ride out there."
On cross-examination when Blackledge offered to call
the doctor a second time Trotter said never mind and
Respondent alleged that Trotter also said "some days I
lies and some days it is not for me to lie and this is one of
the days for me to lie." Trotter denied he made this
statement. Later in the interview Blackledge allegedly
reminded Trotter that he [Trotter] had stated Doctor Eure
was the family doctor who had treated Earlie, his wife and
daughter. Further, that when Blackledge called the doctor
he denied he even knew the Trotter family. When Trotter
was told this by Blackledge he testified he replied, "Never
heard of me." That's when I told him I said, "Well,
everybody can lie." It may be significant that Respondent
did not call Doctor Eure to testify as a witness and
consequently it is difficult to resolve this credibility issue.
The best way to establish whether Trotter did or did not
in fact go to the doctor's office as he claimed would be to
produce the doctor, interrogate him and subject his
testimony to cross examination. This was not done.
Trotter's testimony was somewhat confused but it should
be noted that he is untutored and he tried to reconstruct
the events which transpired in as clear a manner as he
could. For the most part his testimony was fairly
consistent and appears to be accurate. I credit Trotter.
Respondent ' s pretrial notation lists alongside of Earlie's
name the reason for his discharge as being due to
"excessive absenteeism, would not stay on the job." It
should be noted that the best evidence to support
Respondent's contention covering excessive absenteeism
would be the Company's official attendance record and/or
timecards. No such documentary evidence was offered at
the hearing. Instead, Respondent contented itself with the
testimony of Frazier, Blackledge and Bob Daniel. Frazier
testified that Earlie "missed a good deal of time."
Additional evidence was adduced by the Respondent to
the effect that Earlie had wandered around the plant, and
allowed the pressure in the paint pumps to vary, and
allegedly spilled too much paint. Trotter had earlier
testified that he was never warned about wandering about
the plant or doing poor work. The falsity of the reason for
his discharge advanced by the Respondent can be seen
from the following quotations from the record: Frazier
testified on cross examination:
Q. And you fired him for running through the plant
talking to other employees?
A. No.
Q. What did you fire him for?
A. I fired him for misinformation.
Q. Was there any other reason that you fired him?
A. No.
Q. No other reason whatsoever?
A. But there could have been.
Thus, Frazier testified, with some significant
inconsistency, that Trotter was not discharged for
excessive absenteeism or for leaving his work area.
Explicitly Frazier testified as follows:
Q. Excessive absenteeism, was that a reason Mr.
Trotter was discharged?
A. No.
Q. It was not. He was discharged for lying to you
why he was absent. Is that correct?
A. That's right.
The record contains considerable additional confusion
and contradiction through the lips of Bob Daniel and
Blackledge concerning the reason for Trotter' s discharge.
Suffice it to say that I do not credit Frazier, Bob Daniel
or Blackledge as to the reason for Trotter's discharge
because of the shifting reasons and explanations advanced
by them. If Trotter was not discharged for "lying" or
excessive absenteeism, or wandering around the plant
away from his work station there must have been some
reason . Note the precipitate discharge at 3:30 p.m. on a
Thursday, September 12, before the end of either his
normal work week or shift. It should also be noted that
Frazier was Trotter's immediate foreman. It seems out of
the ordinary for Blackledge to call Bob Daniel and
Frazier into a conclave where two of the "big three" plus
Frazier might all bear witness to the facts and
circumstances regarding the discharge of Earlie Trotter.
Such a marshalling of forces seems out of proportion to
the importance of the discharge. In addition, the timing of
the discharge bears close scrutiny. Frazier queried Trotter
about how his paint shop boys would vote in the NLRB
election on September 11. The very next day, September
12, Frazier again questioned Trotter on this point. After
two fruitless efforts to elicit information from Trotter on
the subject of the Union he was suddenly discharged.
At the very least Trotter was discharged under
suspicious circumstances. If, as Respondent claimed,
Respondent had no knowledge that Trotter was ever
engaged in union activities how can it be explained that he
was singled out for questioning twice in 2 days in an effort
to discover his appraisal as to how he thought the boys in
the paint shop were going to vote in the forthcoming
NLRB election. The summary discharge of Trotter, the
SOUTHERN HOUSEHOLD PRODUCTS
senior man in the paint department , the shifting and
conflicting reasons for his firing when viewed in the
context of Tom Daniel 's sharp distaste for the Carpenters
Union as expressed in his speech of August 13 all give rise
to a strong inference that the Company ' s motive in
discharging him was in truth predicated on Respondent's
suspicion that Trotter was involved in the union situation.
This reasonable inference is fortified when it is viewed
against the Respondent ' s pattern of behavior in its
discharge of ten other employees also under unusual
circumstances . I find that Respondent 's alleged reason for
discharging Earlie Trotter was a transparent pretext to
camouflage the real reason , which was that Trotter was
suspected to be an adherent of the Union . I therefore find
that Trotter was discharged in violation of Section 8(a)(3)
and (1) of the Act.
Nehemiah Trotter began to work for the Company on
February 27, 1968. He applied for his job when the plant
began to operate , at the same time with Earlie Trotter, J.
C. Cooley, and Otha Jones . N. Trotter was fired on
September 13, a Saturday . N. Trotter was employed in
the shipping department stacking the trucks , loading and
unloading trucks , and rail cars . He also had some
occasion to operate the tow motor . N. Trotter signed a
union card on August 9. Respondent ' s pre- trial notation
contains the following statement alongside the name of
Nehemiah Trotter: " Handled merchandise ' rough' after
being warned ." This was given as the reason for his
discharge . N. Trotter is in the U.S. Reserve Forces and
had only recently returned from a 2- week tour of duty. He
makes a good appearance , was a good witness , spoke with
calm assurance , has a good vocabulary and he created a
good impression through the excellence of his demeanor.
The Trotter cousins rode to work together . As has been
explained supra , Earlie Trotter was discharged because of
his known or suspected union activities only a few days
before Nehemiah Trotter was discharged . The only union
activity N. Trotter engaged in was the signing of the
union card which is dated August 9. Approximately 2
weeks before he was discharged , on or about August 28,
Nehemiah Trotter was visited at the plant by a former
employee , Bill Tresh . Tresh made a visit to the plant on
August 28 and spent about 2 or 3 minutes talking to N.
Trotter immediately after Tresh left the plant , Blackledge,
on the golf cart , approached Trotter and ordered him to
get on the cart whereupon he was taken to see Tom and
Bob Daniel at the other side of the plant . Tom Daniel told
Trotter to "get off and come around where I can see
you." Trotter did as he was told. Daniel asked Trotter
what Tresh wanted , and Trotter said "nothing unusual.
He just stopped by for a visit." Daniel then asked Trotter
if Tresh said anything about a union , and Trotter replied
"No." Daniel then asked Trotter if he [Trotter] had gone
to a "union meeting over at Waynesboro the other night,"
and Trotter replied that he had not. Daniel then told
Trotter he did not want any part of the Union, that he
would go to New Orleans and "buy" one if he wanted to
"jeopardize" every employee at the plant . It was called
the Bums and cost $10 a month.
N. Trotter did not admit to Daniel that he was a
participant in the union campaign , but he did not say that
he was not . It would appear that Daniel and Blackledge
considered Nehemiah Trotter at least a suspected union
supporter . It should be noted that neither Daniel nor
Blackledge testified about the conversation with Trotter
and for this reason • Trotter' s testimony remains
uncontradicted . From the above it would appear that
Respondent suspected Nehemiah Trotter of union activity
381
or knowledge concerning the Union.
With respect to the testimony of Ed Zeitvogel to the
effect that N. Trotter handled merchandise "rough" and
the so-called warnings that were given to him, Zeitvogel
testified that he had given Trotter warnings from time to
time; it might have been a month, it might have been 1
week but he had warned Trotter from time to time. When
asked to describe the form that the warnings took
Zeitvogel testified that he would tell Trotter "to try his
best to handle the cabinets easy. Easy as he could where
there wouldn't be no damage." Zeitvogel's testimony is
hardly worth serious credence because he said he might
have warned him from time to time and when he
described the "warning" that he gave Trotter, his
explanation seemed to be more an exhortation to Trotter
to do better work than a warning that some consequences
would follow if he did not improve.
Blackledge also testified that N. Trotter had handled
merchandise roughly and had been warned about this by
him [Blackledge].
Trotter testified that he was discharged on a Saturday
morning between 9:30 and 10 a.m. He said that he worked
most Saturdays and his usual working time was from
about 6 a.m. to 11, 12, or 1 p.m. The facts concerning the
incident that caused his discharge were not seriously
disputed. Trotter was asked to help unload a trailer which
was filled with containers which were closed by steel
bands. Trotter thought that the best way to unload
containers would be to use the tow motor. The tow motor
did not seem to be available at the time when Trotter and
the others working with him were instructed to unload the
trailer. Blackledge told the men that he wanted the
containers to be unloaded by cutting the steel tapes and
then each container was to be unloaded by having its
contents emptied out. Upon hearing these instructions
Trotter said that he made a remark to himself that "it
would take all day to unload like that." According to
Trotter, this remark was made in a low voice and was not
directed to anyone nor was it disrespectful or sarcastic.
Blackledge was standing about 10 feet away when Trotter
made this comment. Blackledge said that Trotter's
utterance was in a "sarcastic tone in front of other
employees." After hearing this remark Blackledge left
Trotter and went toward the office. A few moments later
Tom Daniel and Blackledge returned on the golf cart to
Trotter's work area and stood there a few minutes and
looked at Trotter while discussing something between
themselves. They then left. In approximately 5 minutes,
Blackledge returned alone and called Ed Zeitvogel to the
side. Trotter heard them mention his name. Very shortly
thereafter, Zeitvogel called Trotter and told Trotter he
was discharged because he had shown disrespect in talking
to Blackledge that morning. Trotter testified that the total
elapsed time between his utterance of the statement which
seemed to outrage Blackledge and the notification of his
discharge received from Zeitvogel was about 30 minutes.
Blackledge as the General Manager of the plant and as
one of the "big three" certainly had authority to discharge
Trotter on the spot. In this instance he travelled
approximately 400 feet to discuss the situation with
Daniel. There must have been some doubt in the minds of
Daniel and Blackledge because it seemed somewhat
unusual that Daniel came back with Blackledge in the golf
cart to visit the scene where the incident allegedly took
place. There might also have been some doubt in
Blackledge 's mind as to whether or not he had a good
basis for discharge - because otherwise it is difficult to
understand why he found it necessary to discuss the
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matter with the Company ' s President , Tom Daniel , before
he gave Zeitvogel instructions to discharge Trotter.
Thus the cases of Nehemiah Trotter and Earlie Trotter
had some resemblance to each other . In neither case were
the men particularly active in the union . They both signed
union cards . The significant fact that has to be kept in
mind is that it does not matter whether or not Nehimiah
Trotter was in fact actually very active in the union. It
seems to be a reasonable inference to conclude from the
facts set forth supra , that Blackledge and Daniel suspected
that Nehemiah Trotter and his cousin Earlie were
identified with the Union . If this were not so how can it
be explained that Tom Daniel made his remarks to
Nehemiah Trotter first questioning him as to what Bill
Tresh had said to him and whether he mentioned a union
and. then venturing the disparaging remarks that were
made about buying a union in New Orleans that is called
"Bums" and cost $ 10 a month . If Respondent had no
knowledge of Nehemiah Trotter ' s interest in labor unions
as it stoutly maintained in its defense , it would certainly
seem clear that Respondent suspected Nehemiah Trotter
of being involved in union activity . The reason that a
company gives for a discharge is not within the purview of
the National Labor Relations Act unless it is
transparently false and gives rise to a reasonable inference
that the true reason was related to the actual or suspected
union and/or concerted activity of the employee in
question . The explanation which appears on Respondent's
pre-trial notation that Trotter handled merchandise rough
seems specious . The proximate reason for Nehemiah
Trotter ' s discharge was because of the irritation that
Blackledge felt when this employee questioned
Blackledge ' s judgement . This would seem to point to the
fact that Blackledge acted in anger and pique at the
effrontery of a colored employee making a remark of the
nature that Trotter admittedly made . However , nowhere
in the record does there appear any evidence that Trotter
was guilty of insubordination because of his refusal to
obey orders . In viewing these incidents in their totality,
nowhere is there credible evidence that Nehemiah Trotter
handled merchandise roughly; nor was he guilty of
insubordination . The record shows no contradiction of N.
Trotter 's testimony that he was interrogated concerning
union matters by the Company ' s President, Tom Daniel. I
find that Nehemiah Trotter was discharged in violation of
Section 8(a)(3) and ( 1) of the Act.
9. The discharge of Luther J. Mercer
Mercer was hired the end of February 1968, and
therefore was among the senior employees in the plant.
He was fired on September 9 at 3 :30 p.m . after 7 months
of employment . He was employed as an installer of sink
bowls and cabinet tops . His foreman was James
Dickinson. He signed his union authorization card on
September 4.
Mercer had a number of conversations with his
Foreman , Dickinson, some of which were initiated by
Mercer and some by his foreman . On one occasion
Mercer told Dickinson that he felt if the union came in it
would help the employees . Mercer was discharged on
September 9 allegedly for excessive spoilage of plastic
tops . Blackledge testified that he observed Mercer from
time to time and had suggested that Mercer be more
careful . Blackledge said he had such conversations more
than once but could not recall specific dates or times when
such talks allegedly took place. No such interchange was
had by Blackledge on the day Mercer was discharged and
Blackledge testified that he had not threatened Mercer
with discharge because of damaged sinks . On the day
Mercer was discharged he was called into Blackledge's
office and was told Respondent would no longer be able
to use his services . No reason was offered to explain why
Mercer was discharged on the day and time the event
took place. He was later told by Blackledge that he was
fired because he was spoiling the plastic tops . Foreman
Dickinson , who was Mercer ' s immediate supervisor,
admitted in the course of his testimony that he
[Dickinson ] did not know where the tops were being
damaged or if Mercer was in fact responsible for the
damage.
Sometime either before or after 2 : 30 p.m . (after the
afternoon break) on September 9, Bob Daniel came to
Mercer while he was at his work station and asked him
how he felt about the Union . Mercer replied that he had
never belonged to a union and knew nothing about them.
Bob Daniel then said "Well if you are for it say so and if
you are not for it say so." Mercer again replied he did not
know anything about it and had never belonged to a
union. During the course of this conversation Mercer said
he did not leave his work place except to get material and
Bob Daniel remarked "Yes, you do stay at your table and
you do good work ." Bob Daniel did not controvert any of
the statements made by Mercer regarding the
conversations between Mercer and himself. Mercer was
not criticized for his work , and to the contrary, Dickinson,
Tom Daniel and Bob Daniel all praised him and
Dickinson told Mercer that it would be hard to replace a
man who could turn them out like Mercer did . Mercer
received a wage increase about the end of June and the
record shows that only deserving employees received wage
increases . At the time of his discharge Mercer asked
Blackledge why he was being fired to which Blackledge
replied "It's just one of those things."
Evaluating the fact that Mercer had never been
criticized for his work ; had received a wage increase; had
in the affirmative been praised by both Bob Daniel and
Dickinson for the job he was doing; had been one of the
oldest employees in point of service in the plant, his
discharge on September 9 is incomprehensible . It is also
to be noted that he was discharged on September 9 which
is a Monday and the first day of a new work week. There
is no evidence in the record to indicate a precipitating
event or occurrence that might shed light on either the
fact of his discharge or explain the time when it took
place. No satisfactory explanation was given by
Respondent . Only a suspicion of adherence to the Union
can explain why both Dickinson and Bob Daniel should
have engaged Mercer in conversation about unions and it
is to be further noted that Vice President Bob Daniel
made two attempts by direct interrogation to ascertain if
Mercer was for the union . The alleged reason for his
discharge had to do with damaged plastic tops. It should
be especially noted that Dickinson testified that
Respondent did not know if the damage to the plastic tops
had been caused by Mercer. Without a plausible
explanation the only logical inference that can be drawn is
that Mercer was discharged because the Company either
knew or suspected that he favored the Union.
Here again, Respondent ' s pattern of spotting union
oriented men among its employees and suddenly
discharging them to discourage activities protected by the
Act manifests itself. Respondent ' s explanations are
contrived , and unconvincing . In the face of the absence of
any reasonable basis for its action I find that Respondent
discharged Mercer in violation of Section 8(a)(3) of the
Act.
SOUTHERN HOUSEHOLD PRODUCTS 383
10. The discharge of James V. Jones
Jones was hired on March 22 as a spot welder and was
discharged on September 16. His starting wage was $1.60
per hour and he received a merit increase to $1.70 about
the end of June or the beginning of July. Jones signed a
union card on July 27 and he testified that he secured the
signatures of 25 or 30 employees on union authorization
cards prior to his discharge. He talked the Union up in
the plant during break and lunch periods. He attended
seven or eight Union meetings before he was fired and
was elected president of the Union by a show of hands on
August 1.
Jones was working at his regular job when George
Yarber was discharged. He credibly testified that
immediately after George Yarber was discharged and in
the presence of Blackledge, Pat Duel, Jenkins and Oscar
Zeitvogel, as Yarber passed Jones' work place Yarber said
"Brother Jones, I will see you." Jones asked Yarber
where he was going to which Yarber replied that he was
going home because he had been discharged. Jones shook
hands with Yarber and Yarber said to him, "I'll see you,
Brother Jones with AFL-CIO." The above-named
supervisors were between 6 or 8 feet away from the place
where the quoted conversation took place and,
significantly, none of them denied that they had heard this
colloquy. Just after the two Yarber men were discharged
Oscar Z. came up to discuss a job he wanted Jones to do.
The foreman was standing near by looking straight at
him. Jones asked Oscar Z. "What' s going on around
here-all these people leaving , getting fired . Is this some
kind of contagious disease?" Oscar Z. replied, "Well, I
don't know. If it is you must be immune."
About the first of August, Jenkins asked Jones to make
fifty style 630 drawers. At the end of this conversation
Jenkins asked "You know anything about a union?" Jones
replied, "No, what' s that?"
Before Jones was discharged he gave an affidavit to the
NLRB in connection with the investigation then in
progress concerning Case 15-CA-3369. The complaint in
this case was issued on September 5 and it alleges, inter
alia, in paragraph 8 that Jack Jenkins interrogated an
employee [Jones] about the Union. Jenkins did not deny
his conversation with Jones and Jones ' testimony therefore
stands uncontradicted. From the above it appears that
Jenkins knew he had interrogated Jones and this fact was
brought home to Respondent when it received the
complaint dated September 5. Respondent was apparently
aware of Jones' pro-union sentiment because of the
conversation which took place within the hearing of a
number of Respondent ' s supervisors when Yarber said
"I'll see you, Brother Jones , with the AFL-CIO." Jones'
role as President of the Union and his extensive in-plant
activities on its behalf could hardly have gone unnoticed
by the Company. It is reasonable to infer that Respondent
knew it was discharging a union leader when Jones was let
go.
At the close of work on September 16, Jones went to
the time clock to punch out but could not locate his time
card . He went into the office to inquire about his time
card. Mrs. Daniel said nothing to Jones but rang the
announcer bell to which Tom Daniel and Jenkins and
Blackledge responded . Jones heard Tom Daniel ask "Are
these the two cards?" Blackledge replied , "Yes, sir, these
are the two I pulled ." Tom Daniel handed Blackledge
some checks and told him , "here, pay them and get them
out." Blackledge handed the checks to Jenkins and told
him, "We have started to cut back and a lay off." Jenkins
then went to Jones, handed him the checks and repeated
the exact language quoted above. Note especially that
Jones was let go on September 16, which fell on Monday
of a new work week, and that his checks, including his
anticipated earnings of September 16, were dated
September 15. Jones testified that he was let go without
warning whatsoever, told he was being laid off because the
Respondent said it was "cutting back" at a time when
there was plenty of spot welding to be done. The record
contains a copy of a letter dated October 2, signed by
Robert Daniel, which reiterated that Jones had been laid
off due to lack of work and includes the following
statement,
After careful investigation since you were laid off, we
find defective parts very excessive during your
employment as a spot welder. As a result, we have no
other alternative but to terminate your services
indefinite (sic). The purpose of this letter is to advise
you with regards to the situation, in order that you may
have the opportunity of securing employment elsewhere.
It is especially significant to point out that in the
Respondent's proffered exhibit, which was rejected at the
time of the hearing and later accepted, on page 9 appears
the following information- "James V. Jones Fab 9/15/68
Terminated." (Emphasis supplied.) Thus it can be seen
that the Respondent discharged Jones and that their
mention of a layoff at the time Jones was sent home on
September 15 was false. Their letter to him on October 2,
again changes their position and represents a false reason.
The true reason was that he was discharged and not laid
off. That Jones was discharged on September 15 and not
laid off is further buttressed by Jones' testimony that at
the time he was let go, ostensibly because there was no
work available, there was plenty of work to be done. This
fact was not controverted by the Respondent.
Jones testified that there was only one other employee
named Donald Thomas on the same job he was doing.
Jones said he had 4 or 5 months greater seniority than
Thomas.
Jones further testified that when he made fifty small
drawers Oscar Z., his supervisor, said, "I'm well
satisfied." The record shows that at one point Jenkins
asked Jones to make fifty, small scale 630 drawers. Jones
made 47 or 48 in about 20 minutes. Jenkins said, "My
God you sure can make these things fast." Jenkins
continues , "I'm very well satisfied. That's a good job
there. If I didn't have no more trouble out of any of the
other employees than I do out of you I wouldn't have no
problems," and then he left and walked off. Later, about
the middle of August, Jenkins said, after Jones had been
off one day, "Boy am I glad to see you. I need some
802's. I don't have anybody in the plant that can make
these things. Someone made a few yesterday and messed
them all to hell up."
The facts of record belie the shifting and obviously
fabricated and inconsistent explanations made by
Respondent as to the reason for Jones' discharge. The
truth of the matter, which is amply supported by the
substantial evidence considered on the record as a whole,
is that while Jones undoubtedly made some mistakes
which he readily admitted, overall his performance on the
job demonstrated that he was a skilled, fast and efficient
employee. I find that the Company's motive in
discharging Jones was to penalize him for his activities on
behalf of the Union. I therefore find that Jones was
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged in violation of Section 8(a)(3) and (1) of the
Act.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section
8(a)(1) and (3) of the Act, it will be recommended that the
Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the purposes of
the Act.
It will be recommended that the Respondent offer
Lewis Strickland, Robert B. Kennedy, Clifton Cox, M.
Yarber, George Yarber, Raymond Harris, John W.
Harper, Luther J. Mercer, Earlie Trotter, Nehemiah
Trotter, and James V. Jones immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other
rights and privileges, and make them whole for any loss of
earnings they may have suffered by reason of the
discrimination against them to the date of offer of
reinstatement, less interim earnings, and in a manner
consistent with Board policy set out in F. W. Woolworth
Company, 90 NLRB 289, to which shall be added interest
at the rate of 6 percent per annum as prescribed by the
Board in Isis Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. The Respondent is an employer 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. The Respondent has engaged in and is engaging in
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, which unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law , and upon the entire record in this
matter , it is recommended that the Respondent , Southern
Household Products Company, Inc., Shubuta , Mississippi,
its officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating its employees about their Union
activities.
(b) Threatening its employees with loss of jobs or
closing of the plant if they become members of or assist
the United Brotherhood of Carpenters and Joiners of
America, AFL-CIO.
(c) Promising its employees benefits if they refrain from
becoming a member of or assisting that labor
organization.
(d) Discriminating against its employees by discharging
them in order to discourage membership in that labor
organization
(e) In any manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer to Lewis Strickland, Robert B. Kennedy,
Clifton Cox, M. Yarber, George Yarber, Raymond
Harris, John W. Harper, Luther J. Mercer, Earlie
Trotter, Nehemiah Trotter, and James V. Jones
reinstatement to their former or substantially equivalent
positions without prejudice to their seniority and other
rights and privileges.
(b) Make whole the above-named employees for any
loss of pay they may have suffered by reason of the
discrimination against them by payment to each of them
of the sum of money equal to the amount he normally
would have earned as wages from the date of the
discharge to the date of the offer of reinstatement, in the
manner set forth in the section of this Decision entitled
"The Remedy."
(c) Notify the above-named employees if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act as amended, after discharge
from the Armed Forces.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records relevant and necessary to a determination of
compliance with paragraphs 2(a) and (b), above.
(e) Post at its Shubuta, Mississippi, plant copies of the
attached notice marked "Appendix."3 Copies of said
notice on forms provided by the Regional Director for the
Fifteenth Region shall, after being duly signed by an
authorized representative of Respondent, be posted
immediately upon receipt thereof and maintained by it for
60 consecutive days thereafter in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 15, in
writing , within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.'
IT IS FURTHER RECOMMENDED that the complaint be
dismissed as to any alleged violations of the Act not found
herein.
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" and in the first paragraph of
the notice the words "a Trial Examiner or, shall be deleted . In the further
event that the Board 's Order is enforced by a decree of the United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
4In the event that this Recommended Order is adopted by the Board this
provision shall be modified to read : "Notify the Regional Director for
Region 15, in writing , within 10 days from the date of this Order what
steps Respondent has taken to comply herewith "
SOUTHERN HOUSEHOLD PRODUCTS 385
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act , as amended , we hereby notify our
employees that:
After a trial at which all sides had the chance to give
evidence, a Trial Examiner of the National Labor
Relations Board has found that we violated the National
Labor Relations Act and has ordered us to post this
notice.
The Act gives all employees these rights:
To engage in self organization;
To form , join, or help unions;
To bargain collectively through a representative of
their own choosing;
To act together for collective bargaining or other
mutual aid or protection; and
To refrain from any and all of these things.
WE WILL NOT do anything that interferes with these
rights. More specifically,
WE WILL NOT ask you whether you are a member of
or are helping the United Brotherhood of Carpenters
and Joiners of America , AFL-CIO.
WE WILL NOT threaten you with loss of your job or
any benefits you now enjoy if you become a member or
help that Union.
WE WILL NOT promise to reward you in any way if
you refrain from becoming a member of or helping that
Union.
WE WILL NOT discharge any employees or discourage
membership in that Union.
WE WILL immediately offer to reinstate Lewis
Strickland, Robert B. Kennedy, Clifton Cox, M. D.
Yarber, George Yarber, Raymond Harris, John W.
Harper, Luther J. Mercer, Earlie Trotter, Nehemiah
Trotter, and James V. Jones to their former or
substantially equivalent positions without any change in
seniority or any other privileges they enjoyed before we
discharged them and we will pay to them any money
they lost as a result of the discrimination against them
with interest at 6 percent.
WE WILL notify the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
SOUTHERN HOUSEHOLD
PRODUCTS COMPANY,
INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, T6024 Federal
Building (Loyola), 701 Loyola Avenue, New Orleans,
Louisiana 70113, Telephone 504-527-6361.