Southern Illinois Sand Co., Inc.

National Labor Relations Board - Board Decisions

Jul 19, 1962

137 N.L.R.B. 1490 (N.L.R.B. 1962)

1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This machine had been down for a day about a month earlier and had been repaired,
by an electrician who had been called from town. Means reported to Palmer and
Casady that Murray had stated to Means sometime after the event that Murray had
found out during the morning of the breakdown of that machine what was wrong
with it, and that Murray did not make the repair then in order to get Palmer excited..
As already noted, Scott's letter was received the following day, September 28. On
that day, too, Boyd arrived at the plant for negotiations with the Union. Boyd was
told of the Murray situation and shown Scott's letter. Boyd also interviewed Means,
and Means repeated to Boyd what he had told Palmer and Casady. Murray was
not asked whether these reports were true, the belief being that Murray would
merely make a denial. As Murray was president of the Union, the entire matter was,
taken up with top management and the discharge was thereafter executed as above
related.
B. The conclusions
It is unnecessary here to resolve issues raised by Murray's testimony denying hav-
ing engaged in the acts involved or that he had told others that he had engaged in,
those acts. The Company did have difficulty with the Towmotor and the general
taper, and had no reason to doubt the veracity of both Scott and Means. All that is
required here is a decision as to whether the Company chose to believe the derogatory
reports about Murray which had come to it because of antiunion motivation. In
view of the paucity of evidence of union animus. and the absence of reasons for the
Company to doubt the reports that had been volunteered about Murray, no illegal
interpretation may be placed upon the Company's conduct in discharging Ray
Murray on September 29, 1961. Accordingly, it will be recommended that the alle-
gation of discrimination be dismissed. Further, as the conduct relied upon to support
the allegation of interference, restraint, and coercion was neutralized during the
course of the events by the Company, when through Boyd and Casady there was
a clear declaration of a policy of noninterference, -it will be recommended that this
allegation be dismissed as well.
Upon the basis of the forgoing findings of fact and conclusions, and upon the
entire record in the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAw
1. The Respondent is engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. The Respondent had not engaged in unfair labor practices within the meaning
of Section 8(a)( I) and (3) of the Act as alleged.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the complaint be dismissed in
its entirety.
Southern Illinois Sand Co., Inc. and Local 520, International
Union of Operating Engineers , AFL-CIO. Case No. 14-CA-
2576. July 19, 1962
DECISION AND ORDER
On March 16, 1962, Trial Examiner Sidney Sherman issued his In-
tertnediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the Intermediate Report at-
tached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
137 NLRB No. 146.
SOUTHERN ILLINOIS SAND CO., INC. 1491
complaint. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report with a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following modifications.
1. We agree with the Trial Examiner that on July 25, 1961, the
Respondent unlawfully refused to recognize and bargain with the
Union, the majority representative of its employees. The Union's re-
quest of July 25 to meet with the Respondent and to negotiate a con-
tract elicited from the Respondent a statement to the effect that "under
no circumstances" would it consider a contract with the Union. Fol-
lowing this outright refusal to negotiate, the Respondent embarked
upon a program to dissipate the Union's majority, which included the
discriminatory discharge on July 25 of Paul Colvis, a key figure
in union activity, and unlawful interrogation of employees coupled
with threats to sell the business. Thus, it is apparent that the Re-
spondent's actions were motivated not, as it contends, by a good-faith
doubt as to the Union's majority status, but rather, by a rejection of the
collective-bargaining principle and a desire to gain time within which
to undermine that majority. The Respondent, as the record shows,
did confer with union representatives on August 25 and 28. How-
ever, on both occasions it abruptly broke off negotiations on the
ground that their continuation would be futile until certain pending
Board proceedings were concluded.' We agree with the Trial Ex-
aminer that, by so conditioning its willingness to negotiate, the Re-
spondent did not fulfill its bargaining obligations under the Act?
However, we need not find, as did the Trial Examiner, that Respond-
ent's actions on August 25 and 28 constitute under the circumstances
independent violations of Section 8(a) (5), for it is clear that its
conduct on those dates was merely a continuation of its efforts begun
on July 25 to avoid dealing in good faith with the Union.3 Accord-
ingly, we find that Respondent, through its conduct set forth above,
1 The initial unfair labor practices charges in this case were filed on July 27, 1961, and
a representation petition was filed by the Union on August 2, but dismissed by the
Regional Director on August 30.
2 See Kelco Corporation, 79 NLRB 759, 764; Ainsworth Manufacturing Company, Spring-
field Division of Preca8co Corporation , 131 NLRB 273, 277, 290.
8In view of our consideration of the problem , it is unnecessary for us to determine, as
did the Trial Examiner , whether or not on August 25 and 28 the Union maintained its
majority status clearly established on July 25 prior to the commission of any unfair
labor practices by the Respondent See Franks Bros Company v. N.L.R.B., 321 U.S. 702.
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unlawfully refused to recognize and bargain with the Union on and
after July 25, 1961, and, thereby, violated Section 8(a) (5) and (1) of
the Act 4
2. The Trial Examiner in making determinations as to the unit
placement of certain individuals concluded that Roy Guethle and Allan
Brown were, respectively, a supervisor and casual employee and thus
did not properly belong in the unit. We disagree. It should be
noted, however, that our finding that these individuals should be in-
cluded does not affect the majority status of the Union at any times
here material.
As for Guethle, he is the pilot of a towboat and like the other pilots,
whom the Trial Examiner found not to be supervisors, he makes daily
runs . However, because of his greater experience, he is paid somewhat
more than the other pilots. Guethle is assisted usually by a single
deckhand, and both he and the deckhand receive instructions each day
from Spencer Brown, the Respondent's president. Guethle has no
authority to hire, discharge, or discipline or to make effective recom-
mendations in any of these respects. While the record shows that
Guethle does, to some extent, exercise control over the deckhand, the
type of direction involved is not that of the supervisor but that exer-
cised by the more experienced employee over one who is less skilled.
Though agreeing with the foregoing, the Trial Examiner, nevertheless,
found that Guethle was a supervisor, resting his conclusion solely on
the ground that, in two instances, he had "effectively" recommended
against the assignment of a particular deckhand to his boat. We
cannot, however, find that a skilled employee's turning down a specific
helper on but two occasions confers, or is an indicia of, supervisory
authority. Accordingly, we find that Guethle is not a supervisor and
is in the unit the Union seeks to represent.'
Allan Brown, a nephew of W. C. Brown, the Respondent's secretary-
treasurer, is a mechanic and does some maintenance work. Brown
enjoys no special status by reason of his relationship to management
and is therefore not excludable on that ground.' He works on week-
ends, and occasionally during the week, when a major breakdown on
motors or equipment occurs. The record discloses that during the
past year, Brown worked approximately 40 out of 52 weekends, aver-
aging 6 to 8 hours on each such occasion. Under these circumstances,
we cannot agree with the Trial Examiner that Brown is a casual
employee but find, instead, that Brown is a regular, part-time em-
ployee, also included in the unit found appropriate?
'Joy Silk Mills, Inc., 85 NLRB 1263, 1264.
6 Piet Brothers , 109 NLRB 894, 897.
6 Adam D. Goettl and Gust Goettl, d/b/a International Metal Products Company, 107
NLRB 65.
7 Winn-Dixie Stores , Inc. and its subsidiary Winn-Dixie Greenville, Inc., 124 NLRB
908, 912. Member Brown would exclude Allan Brown because of Allan Brown's family
relationship to Respondent's secretary - treasurer . See Giordano Lumber Co., Inc, 133
NLRB 205, footnote 7.
SOUTHERN ILLINOIS SAND CO., INC.
ORDER
1493•
The Board adopts the Recommended Order of the Trial Examiner'
with the modifications of provisions 2(e) and (f) in accord with foot-
notes 55 and 56 of said Recommended Order.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This case was heard before Trial Examiner Sidney Sherman on December 12
through 15, 1961, at St . Louis, Missouri . The issues litigated were whether Southern
Illinois Sand Co., Inc., hereinafter called the Respondent , violated Section 8(a)( I),
(3), and (5) of the Act by the conduct described below.' After the hearing, the
Respondent and General Counsel filed briefs?
Upon the entire record 3 and my observation of the witnesses , I adopt the
following:
' The original charge herein was served upon the Respondent on July 28, 1961.
2 At the hearing , Respondent moved for a 6-week continuance because of the alleged
incapacity of w. C. Brown, an officer of Respondent, who was charged in the complaint
with unlawful conduct. The hearing had already been postponed twice because of Brown's
illness. I denied the motion , but on December 15 adjourned the bearing to February 2,
to afford Respondent an opportunity to take Brown 's deposition , and allowed Respondent
2 weeks' additional time within which to file a motion for leave to adduce additional
testimony, if it still deemed the deposition procedure inadequate to protect its interests.
On January 31, Respondent 's counsel advised me by letter that, because of Mr . Brown's
continued illness, his deposition could not be taken . No motion for leave to adduce further
testimony has been filed . On February 8, I issued an order closing the hearing.
In view of w. C Brown's failure to attend the hearing, the General Counsel agreed not
to present any evidence relating to any unlawful conduct by him, and none has been pre-
sented It is accordingly hereby recommended that the allegation in the amended com-
plaint of violations of the Act by W. C Brown be dismissed
Respondent contends in its brief that denial of its request for continuance violated due
process However, at the hearing Respondent 's counsel stated that if his motion was
granted and Brown was still unavailable to testify after 6 weeks , counsel would proceed
without him . Since by counsel ' s own admission , Brown was not even able, after 6 weeks,
to furnish a deposition , it is obvious that, had Respondent 's motion for a 6-week con-
tinuance been granted , Brown would not have been able to attend the hearing, and
Respondent would have been obligated to proceed without him . Accordingly , it is not
apparent in what respect Respondent was placed in a worse position by the denial of its
motion than would have been the case had its motion been granted . For this reason,
among others , I find no denial of due process here.
In any event , I believe that the opportunity afforded Respondent to take Brown's
deposition within a 6 -week period , coupled with the leave given to request reopening of
the hearing if the deposition procedure proved inadequate , sufficiently safeguarded Re-
spondent ' s procedural rights
3 The transcript of the testimony taken herein is hereby ordered corrected in the
following respects.
On page 47 , change lines 9 to 11 to read as follows : "In many respects , and you will
find many Board decisions that if any job changes are made unilaterally there has been
a refusal to bargain."
On page 47 , change line 13 to read: "union was the majority representative on July".
On page 151 , line 14, change "coal mills" to "Cole's Mill".
On page 170, line 27, same change.
On page 184 , change line 2 to read : "the fact that the employer has condoned past vio-
lations proves".
On page 273 , line 10, change "derogatory return" to " interlocutory appeal".
On page 291 , line 9, change "great extent" to "30 percent".
On page 297 , line 7 , change "overrule" to "sustain".
On page 346 , line 19, insert period after "farm".
On .page 433 , line 3, change "If you could see" to "Do you concede".
On page 449 , lines 11 and 13, change "Cole" to "coal".
On page 451 , line 25, same change.
On page 458 , lines 19 and 20, same change.
On'page 481, line 15, same change.
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, an Illinois corporation, is engaged, in the vicinity of Chester, Illinois,
in the dredging, sale, and distribution of sand, the cleaning and repair of barges,
and the furnishing of towing services for barge lines. Respondent annually ships
out-of-State sand and sand products in an amount not specified in the record, and
annually performs services aggregating more than $50,000 in value for various barge-
lines operating on the Mississippi River, each of which annually receives more than
$50,000 for transporting goods and materials in interstate commerce
I find that the Respondent is engaged in commerce and in operations affecting com-
merce, within the meaning of Section 2(6) and (7) of the Act, and that it will
effectuate the policies of the Act to assert jurisdiction herein .4
II. LABOR ORGANIZATION INVOLVED
Local 520, International Union of Operating Engineers , AFL-CIO, hereinafter
called the Union , is a labor organization within the meaning of Section 2 ( 5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
The Respondent has been engaged for more than 10 years in the operation of a sand
plant and the servicing of barges plying the Mississippi River, belonging to various
bargelines. These operations are based at three locations, all in the vicinity of
Chester, Illinois-namely, the sand plant, Cole's Mill (about a mile north of the sand
plant), and the "coal dock" of the Missouri and Pacific Railroad 5 (about 3 miles
south of the sand plant). The sand operation involves the dredging of sand from
the river, transporting it in Respondent's barges to the sand plant, where the sand is
unloaded by a crane, weighed, stored, and loaded into railroad cars or trucks for
shipment to customers. The marine operations involve towing, pumping, and clean-
ing barges, and are based principally 6 at Cole's Mill and the coal dock. Respond-
ent's own barges, used in the sand operation, are repaired, pumped, and cleaned at
the sand plant. In July 1961,7 Respondent had about 20 employees at its various
locations.
The sole stockholders and officers of the Respondent are A. Shelby Lawder,8 W. C.
Brown, and his son, Spencer Brown. The last named supervises to varying degrees
the day-to-day operations at all three locations, but spends the bulk of his time at the
sand plant.
About July 17, Colvis, an employee, discussed with other employees the matter of
affiliating with a union, and the next day about half the employees, including Colvis,
met by prearrangement to consider the matter further, and, pursuant to a suggestion
made at this meeting, Colvis on July 20 contacted Stuhr, a representative of the Union.
Stuhr advised Colvis to have the employees execute cards authorizing the Union to
represent them, and to arrange a meeting between Stuhr and the employees. Such 'a
meeting was held on July 24. Colvis brought six signed cards, including his own, to
this meeting. Altogether, 11 cards were signed on or before July 24. Another card
was signed a few days later.9
In the morning of July 25 Stuhr called Spencer Brown,I° and requested a bargain-
ing meeting. While not categorically refusing to meet, Brown's reply indicated that
any contract between the Respondent and the Union was out of the question. Stuhr
did not pursue the matter further at that time. Later that day, Brown notified Colvis
of his discharge, allegedly because of an incident that had occurred on July 20.
Between July 25 and August 7, Brown interrogated various employees about the
Union and mentioned to one of them the possibility of liquidation of the Respondent's
business.
In the meantime, on July 27 the original charge in the instant case was filed,
alleging, inter alia, an unlawful refusal on July 25 to recognize the Union. On
11 H P 0 Service, Inc., 122 NLRB 394.
'Hereafter called the "coal dock." This dock is also referred to in the record as the
"Ford dock."
O The "stacking" of steel cargo covers on these barges is performed at the sand plant
7 The events hereinafter related occurred in 1961, unless otherwise specified.
8 Also referred to in the record as Shelby Lawder, and Albert S. Lowder.
8 By Brant, who had been a member of the Union since 1956.
10 Hereafter all references to "Brown" denote Spencer Brown , unless otherwise stated.
SOUTHERN ILLINOIS SAND CO., INC. 1495
August 2, the Union filed a petition for a Board election among the Respondent's
employees."
On August 8, a number of Respondent's employees struck and picketed the sand
plant.ia On August 25, union representatives met with Respondent's officers and
discussed Respondent's wage rates, but no agreement was reached on that or any
other issue. On August 28, Dressel, a union representative, called Brown and
suggested further negotiations , but Brown stated only that "he had been advised
that it all depended upon this hearing." There were no further meetings.
B. The violations of Section 8(a) (1)
The amended complaint alleges that on various dates between July 25 and August
10, Respondent unlawfully interrogated its employees, threatened them with re-
prisals if they selected the Union as their representative, and unilaterally changed
existing terms of employment.13
Mansker, a striking employee, testified without contradiction, and I find, that on
August 1 Brown asked him if he had "signed a card," and what his grievances were.
Brown added that "if worse came to worse-we'll have to sell, we'll lose our busi-
ness-" referring to Respondent's marine business. Brown indicated further in this
connection that the Jeanne B-a towboat used in Respondent's marine operations-
would be sold, and the sand plant would be operated solely by Respondent's officers
and their relatives.
Crites testified that during the first week in August Brown asked him (1) if he
had heard about any union activity, and (2) if he knew who was behind it. When
Crites professed ignorance on the latter point, Brown stated that it might be Colvis.
As to (1), there is no denial by Brown. As to (2), Brown denied, albeit somewhat
equivocally, that he had asked any employee, except James Grah, about the identity
of the instigator of the union activity. Crites had signed a union card but was still
in Respondent's employ at the time of the hearing, and showed no reluctance to
give testimony adverse to the General Counsel in connection with another issue in the
case-the legality of Colvis' discharge. Accordingly, I am persuaded that he had
no desire to aid the General Counsel by giving false testimony. Brown, on the
other hand, was an interested witness, whose testimony was marred by equivocation
and self-contradiction. 14 Moreover, in his pretrial affidavit, Brown, contrary to
the tenor of his testimony, admitted that he had asked "one or two others in
addition to James Grab, who had instigated the Union movement." Accordingly, I
credit Crites' testimony that Brown asked him not only whether he had heard of any
union activity but also whether he knew who had instigated it.
Brant testified that a few days after the union meeting of July 24 Brown asked
him if he "knew anything about the Union" and who he thought was "starting it."
Here, again Brant's testimony is not contradicted by Brown, apart from Brown's
qualified general disclaimer noted above that he had inquired about the identity
of the instigator of the union activity. Brant had been a member of the Union since
1956, but, like Crites, was still in Respondent's employ at the time of the hearing.
For somewhat the same reasons as are set forth above in the case of Crites, I do not
credit Brown's disclaimer as against Brant's contrary testimony, and find that Brown
interrogated Brant as testified to by him. .
Howard Grah testified that on July 28 Brown asked him and his brother, James
Grah, whether they had "signed a card." This testimony was corroborated by
James Grah. Brown not only did not deny this interrogation, but also admitted
that he had on August 2 asked James Grah whether the union activity had been
started by one of Respondent's employees or by a nonemployee.15
n Case No. 14-RC-4108. This petition was dismissed by the Regional Director on
August O. Board policy precluded the processing of such petition during the pendency
ofithe instant charge
"The strike was still in effect at the time of the instant hearing
'$ The amended complaint attributed the foregoing unlawful acts to Spencer Brown and
W C Brown However, at the hearing, the General Counsel agreed, in view of the
incapacity of W C. Brown, to present no evidence relating to his alleged violations of
the Act and none was presented.
14 See, particularly, the discussion below of Brown's self-contradiction regarding the
reasons for the timing of Colvis' discharge.
is Brown at first testified that (1) he could not recall asking any employee after
July 25 who started the union activities, and (2 ) he did not think it was possible that
he had made such an inquiry. However, when confronted with a pretrial affidavit in
which he admitted the August 2 Incident set forth in the text, above, Brown reaffirmed
the truth of the affidavit . Brown asserted at the bearing that his only purpose in making
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee McConnell testified without contradiction, and I find , that early in
August, Brown interrogated him about his union activity.1°
Finally, Brock, a pilot of one of Respondent's towboats, gave certain testimony
which has bearing not only on the alleged violations of Section 8(a) (1) but also
on the alleged discriminatory discharge of Colvis (see infra). On July 24 Brock
attended the Union's meeting at Colvis' request. According to Brock about noon
on July 25, Brown asked him if he attended the meeting and who was there.
Brown's version was that he told Brock on this occasion that he understood that
Brock "knew something about some union activities," whereupon Brock informed
him of the union meeting. I credit Brock for reasons discussed hereinafter. More-
over, even if one accepts Brown's version, it is clear that he made a statement to
Brock which was calculated to elicit from him information regarding union activity
at the plant, and was therefore tantamount to interrogation.
In conclusion I find that the Respondent violated Section 8(a)(1) of the Act in
the following respects:
1. Brown's warning of the liquidation of Respondent's marine operations, de-
livered to Mansker, within a week after the Union's initial demand for recognition.
Such warning, in view of the surrounding circumstances, was calculated to convey the
impression that the Respondent would take such action rather than deal with the
Union.17
2. Brown's interrogation of Mansker, Crites, the Grahs, McConnell, Brant,18
and Brock about their union activity or their knowledge of any union activity,
and Brown's interrogation of James Grab, Crites, and Brant about the identity of
the instigator of the union activity among Respondent's employees.
C. The discharge of Colvis
The General Counsel alleges that Colvis' discharge on July 25 was for union
activity. The Respondent contends he was discharged for cause. Colvis was hired
by the Respondent in April 1960, and was assigned .to cleaning and pumping barges.
On June 18 Brown found Colvis reclining on the deck of a barge, apparently asleep,
but made no comment at the time. A week or two later, Crites, a welder, reported to
Brown that on June 2 Colvis, who had been assigned to help Crites repair a barge,
went to sleep on the barge and slept for several hours.19 On July 7 Brown warned
Colvis against sleeping on the job. On the morning of July 20, Colvis was assigned
to pump a barge. While the pump was operating, Colvis lay down on the deck
of the barge and fell asleep. About 10:30 that morning, Brown found him in this
condition, and, after waking him, warned him that he would be discharged if he was
caught sleeping again. As Brown was leaving, Colvis asked, "You want me to work
for you or not?" Brown retorted that that was not the proper attitude for Colvis
to take, but merely repeated the threat to discharge Colvis if he was found asleep
on the job again. According to Colvis' undenied testimony, which I credit, Brown
again repeated this threat to Colvis about noon that day.
Later in the same day, Colvis, as stated earlier, contacted Union Representative
Stuhr and made arrangements for the meeting of July 24, to which meeting Colvis
brought five signed cards which he had obtained from other employees, in addition
to his own. Also, as already related,.Brock attended this meeting at Colvis' request.
In the morning of July 25, Stuhr advised Brown that the Union represented a
majority of Respondent's employees'and requested a bargaining meeting. Shortly
thereafter, about noon of the same day, there occurred the conversation between
Brock and Brown which has already been referred to. In response to an inquiry by
the inquiry was to determine whether the instigator was a union representative How-
ever, even if this were so, and even if, contrary to the fact, it had been made clear to
James Grab that this was Brown's only purpose, that would not validate the interrogation.
16 Certain discrepancies between his testimony and a pretrial affidavit militate against
giving any credit to McConnell's testimony where it is contradicted. However, as noted
above, there was no contradiction of the foregoing testimony.
17 There was evidence that a similar warning was delivered to Roy Guethle on July 28.
However, as I find, infra, that Guethle was a supervisor, such evidence does not warrant
a violation finding. Moreover, I find insufficient basis in the record for the General;
Counsel's contention that the Respondent violated the Act by unilateral changes in
working conditions.
>e For reasons set forth later in this report, I reject Respondent's contention that Brant
was a supervisor.
19 The foregoing finding is based on Crites' testimony. Brown testified , contrary to
Crites, that he had reported to Brown that Colvis had also slept on the job on other
occasions . I do not credit this testimony.
SOUTHERN ILLINOIS SAND CO., INC. 1497
Brown, Brock admitted that he had attended the union meeting of July 24. According
to Brock, he also informed Brown that Colvis had requested Brock to attend the
meeting. However, Brown categorically denied that there had been any reference to
Colvis in this conversation. Brock's credibility on this point was impugned by his
apparent inability to decide at the hearing whether he had volunteered to Brown the
information about Colvis or whether, as indicated in Brock's pretrail affidavit, the
information was supplied in response to an inquiry by Brown as to who had asked
Brock to attend the meeting. Brock vacillated between both versions, but after
intensive examination finally repudiated his pretrial affidavit and reiterated that he
had volunteered the information about Colvis.
Brock was a diffident, elderly man, who had worked as a pilot on one of Re-
spondent's towboats since 1956, and was still on Respondent's payroll at the time of
the hearing.20 Although he had attended the July 24 meeting, he had not signed
a union card?'
It should be noted, in the interest of clarity, that it is not important at this
point to determine which of Brock's two versions of the circumstances under which
he mentioned Colvis' name to Brown is true. The crucial question here is whether
Brock advised Brown, either voluntarily or in response to Brown's inquiry, that Colvis
had solicited Brock to attend the union meeting. Brock's testimony that he did so
advise Brown of such solicitation is the only direct evidence that Brown had any
knowledge of Colvis' union activity prior to his discharge 22 Brock's vacillation as
to the circumstances of his disclosure regarding Colvis is significant here only insofar
as it reflects on the credibility of his testimony that such disclosure was made. I
have taken such vacillation into account, as well as certain other matters bearing on
his credibility generally.23 On the other hand, for reasons already stated, I have
found Brown's testimony not credible where in conflict with that of other witnesses.
Granting all Brock's shortcomings as a witness, it is difficult to believe that he would
manufacture out of the whole cloth the statement that Colvis' name was referred to
in his conversation with Brown. Brock would have to harbor some malice toward
his employer and have the imagination and intelligence to perceive that he might
satisfy his malice by fabricating a conversation with Brown relating to Colvis.
After having observed Brock on the witness stand, I am unwilling to believe (nor
is there any evidence to indicate) that he was motivated by any such malice, or that
he had any of the other qualifications mentioned above for inventing the disputed
conversation.
Accordingly, 1 find that about noontime on July 25, Brock told Brown, whether
voluntarily or in response to Brown's inquiry, that Colvis had asked Brock to attend
the union meeting.
Late that afternoon, Brown placed a note in Colvis' automobile asking him to see
Brown that evening. When Colvis reported to him about 7 o'clock that evening,
Brown told Colvis that he was being discharged because of the sleeping incidents of
July 20 and June 18.
The issue is thus posed whether Colvis was in fact discharged because of these
incidents or, as the General Counsel contends, because of his union activity.
Brown admitted that when he found Colvis asleep on July 20 he warned him of
discharge if he repeated the offense, and there is no evidence or contention that there
was any repetition of such offense after July 20. Brown failed to explain why he was
willing to give Colvis another chance on July 20 but was apparently no longer
willing to do so 5 days later. Brown moreover gave two conflicting versions of the
events during this 5-day interval, one when he was called to testify by the General
Counsel, and the other when he was called by the Respondent. On the latter oc-
20 As to the employment relation between Brock and the Respondent, see the dis-
cussion in section III, D, 1, b, below.
a In attacking Brock's credibility, Respondent introduced at the bearing a sheet of paper
which Brock had had in his possession while on the witness stand, and which contained
notes prepared by the General Counsel The notes appear to be a summary of crucial
portions of Brock's pretrial affidavit, which he indicated he had difficulty in reading be-
cause of his limited reading comprehension. Brock testified that these notes were pre-
pared at his request, and that he referred to them before testifying. However, Brock
did not refer to these notes while on the stand, and his testimony did not entirely con-
form thereto.
22 Brown denied that he had any such knowledge at that time. (There is no dispute
that he became aware of Colvis' prominent role in the union campaign after his discharge.)
23 See footnote 21, above. Also under cross-examination Brock professed uncertainty
that his conversation with Brown occurred on July 25, as he had previously testified.
(There is no dispute , however, that the conversation, in fact, occurred on that date.)
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
casion Brown testified that it was necessary for him to consult with the other officers
before any decision on the discharge of Colvis could be reached, that on July 20 he
related to one of the other officers (Lawder) the sleeping incident together with
certain aggravating attendant circumstances,24 that Lawder indicated his disapproval
of Colvis' conduct, that Brown's first opportunity to broach the matter to the other
officer (W. C. Brown) was early in the morning of July 25, that Brown then recom-
mended to his father that Colvis be discharged, that the decision was then made to dis-
charge Colvis, that Brown then considered whom he would hire to replace Colvis,
and recalled that, a few months before, Dravis had applied for a job, and that about
4 o'clock that afternoon Brown learned that Dravis was available, whereupon Brown
left the note mentioned above on Colvis' automobile.
Thus, according to the foregoing testimony, the 5-day delay in discharging Colvis
was due solely to Brown's need to consult with the other officers and the problem
of finding a replacement did not result in any substantial further delay, as a replace-
ment was found, and Colvis was discharged, on the same day as that on which
Brown completed his consultations. However, when Brown was called to testify
by the General Counsel, he stated that "one reason" for the delay in discharging
Colvis was the need for finding a suitable replacement, that he ascertained that
Dravis was available the day before Colvis' discharge, and that it was not until
then that he was able to broach to his father (on July 25) the question of dis-
charging Colvis.
Thus, Brown at one point attributes the 5-day delay in the discharge of Colvis
to the need for consulting with the other officers, one of whom was not available
for consultation until July 25, and at another point attributes such delay principally
to the problem of finding a replacement. Moreover, in one version, Brown states
that he did not think of contacting Dravis until after the consultation with the elder
Brown on July 25. In the other version, Brown states that he had already' ascer-
tained Dravis' availability on July 24 25
As against the foregoing inconsistent explanations by Brown of the 5-day delay in
discharging Colvis, the General Counsel offers as the reason for such delay the fact
that it was not until July 25 that Brown learned from Brock of Colvis' active involve-
ment in the current organizing campaign of the Union, and that this fact prompted
Brown to discharge Colvis. The General Counsel's explanation would not only
account for the 5-day delay, but would also account for Brown's otherwise unex-
plained decision to revoke Colvis' "probation" and not wait for a repetition of the
"sleeping" incident 26
Upon consideration of all the foregoing circumstances, including the timing of
Colvis' discharge in relation to Brock's disclosure to Brown of Colvis' union activity,
and Brown's union animus as manifested by his undenied interrogation of employees
about their union activities and the undenied threat to Mansker of liquidation rather
than deal with the Union, I find unconvincing the Respondent's explanation for the
discharge of Colvis, and conclude that the Respondent discharged Colvis because' of
his union activity, thereby violating Section 8(a)(3) and (1) of the Act.27
2S These consisted of the following: Although Colvis was given two pumps to operate
on July 20, only one was actually in use when Brown arrived on the scene, the other
being in need of repair When Brown taxed iColvis with neglecting to notify Respondent
of the need for such repair, Colvis gave an inadequate explanation for this oversight.
25A. Shelby Lawder testified that he suggested Dravis' name to Brown as a replace-
ment for Colvis a day or two after July 20 This tends to support the second version
given by Brown, as related above, but conflicts with the first.
26 There is a suggestion in Brown's testimony that he discharged Colvis not only be-
cause of.'his sleeping on the job but also because of his failure to arrange on July 20 for
repair of the defective pump See footnote 24, above. However, Brown was aware of
such failure when he warned Colvis at the barge on July 20 of discharge if he slept on
the job again, and, as found earlier in this report, that warning was repeated several
hours later on the same day.
There is no evidence or contention that Brown's fellow officers dissuaded him from
giving Colvis another chance
n Needless to say, this finding does not imply any condonation of Colvis' shortcomings
as an employee However, the only question for consideration under the Act is whether
despite his shortcomings he would have been retained on July 25 had he not engaged in
union activity. The record is convincing that he would have been so retained, so long as
his work was satisfactory. However much one may admire the Respondent's past for-
bearance toward Colvis, the fact remains that the Act makes no exception in favor of
overindulgent employees, nor is disciplinary action taken for union activity rendered law
ful by the fact that it was well merited on other grounds
SOUTHERN ILLINOIS SAND CO.,'INC. 1499
D. The refusal to bargain
1. The appropriate unit
The General Counsel contends that all Respondent's 28 employees, excluding office
clericals, guards, watchmen, professional employees, and supervisors as defined in
the Act, constitute a unit appropriate for collective bargaining within the meaning
of Section 9(b) of the Act. I so find.
The Respondent contends that certain individuals should be excluded from the
unit as supervisors, that others would be excluded as agricultural employees, and
still others on the ground of diversity of interest. The General Counsel would ex-
clude certain employees as casual laborers
a. The agricultural laborer issue
The Respondent contends that Verseman, Andrews, Bernard Kerkhover, and
Gary Kerkhover, should be excluded from the unit because they are agricultural
laborers. Section 2(3) of the Act excludes from the coverage of the Act "any indi-
vidual employed as an agricultural laborer." The General Counsel contends, how-
ever, that the four foregoing individuals should be included in the unit, because,
although employed to some extent by the Respondent in agricultural work, a sub-
stantial portion, if not the major portion, of their time was spent in nonagricultural
work. The General Counsel's position reflects the current view of the Board that,
where employees regularly perform both agricultural and nonagricultural work,
they are covered by the Act "with regard to that portion of their work which is
non-agricultural." 29
Accordingly, as there is no dispute that the foregoing four employees during
1961 regularly spent a substantial part of their time in nonagricultural work,30 I
reject the Respondent's contention that their performance of agricultural labor
prevents their inclusion in the unit.31
b. The supervisory issue
In its brief, the Respondent contends that all of its pilots-Brant, Roy Guethle,
Brock, and McConnell-are supervisors.
Brant: During the period here relevant Brant was the pilot of the Sisco-a tow-
boat used to tow barges in connection with Respondent's sand dredging operation.
He was paid $2 an hour, which was the same rate as that of the deckhands on the
towboat. He testified that he directed the work of one deckhand but that such
direction consisted only in passing along to the deckhand information received from
Brown as to what type of sand was to be loaded on the barges under tow. Brant
denied that he had the power to hire or discharge or to recommend such action.
While testifying that Brant occasionally made recommendations as to the hiring of
deckhands, some of which had been adopted by Respondent, Brown admitted that
Respondent usually did so only after an independent investigation. Under all these
circumstances, I find that Brant was not a supervisor under the Act and belongs in
the unit.
=$ There was evidence that during the latter part of July some of the marine employees
began receiving checks signed by "Southern Illinois Transfer Company." Brown testified
that this designation was at this time used by Respondent only for bookkeeping purposes
in connection with its marine operations, and that, while the Transfer Company eventu-
ally became a separate corporation (albeit with the same officers and stockholders as the
Respondent), this did not happen until October 3, 1961. Accordingly, it is clear that
until then the Transfer Company was not an employing entity.
-" Columbiana Seed Company, 119 NLRB 560, 563; Olaa Sugar Company, Limited, 118
NLRB 1442; H A. Rider & Sons, 117 NLRB 517; Waldo Rohnert Co, 136 NLRB 89.
10 The agricultural labor in this case consisted in working on farms owned by W. C.
Brown and Shelby Lawder The four men involved were assigned to this work by the
younger Brown and were paid therefor by Respondent. When not so assigned, they
worked on Respondent's barges or at the sand plant The burden of the extensive testi-
mony on this issue is that during the winter of 1960-61 the major part of their work
was on the farm, but that the converse was true in the spring and summer of 1961
Biown, himself, conceded that from April 1 to July 26, 1961, when all four were dropped
from the payroll, they worked on the barges about 70 percent of their time
Si However, with respect to Gary Kerkhover, another factor discussed below prevents
his inclusion in the unit.
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roy Guethle: During the period here relevant, he was the pilot of the Jeanne B-
a towboat which rendered towing services to river barges. He was paid $2.75 an
hour, as compared with Brant's rate of $2 an hour. Brown indicated, however, that
this differential in pay was attributable to the "experience" required to handle the
large river barges. Guethle testified without contradiction, and I find, that he
relayed to the deckhands orders that he had received from the Respondent, and that
he did not otherwise direct their work. Guethle stated that when an extra deckhand
was needed he would attempt to recruit one from a list of standby deckhands given
him by the Respondent, taking the first available one. If none of the men on the
list was available, he would recommend someone to Brown. Two such recom-
mendations were approved by Brown. However, Brown's testimony was to the effect
that the Respondent usually makes an independent appraisal of the qualifications of
any person it hires. Guethle testified further that on two occasions he had objected
to working with a deckhand offered him by Brown, because he did not consider the
deckhand sufficiently qualified, and that Brown had on those occasions authorized him
to call in one of the standby deckhands.
I find that neither the extent of Guethle's direction of the deckhands nor his calling
in of deckhands on the basis of their avaliability from a list supplied him by the
Respondent constituted Guethle a supervisor. Neither of these functions involved
the exercise of independent judgment within the meaning of Section 2(11) of the
Act.32 Nor does it appear from the foregoing that Guethle's recommendations with
respect to the hiring of deckhands were given any weight by the Respondent, in
view of Respondent's admitted practice of making an independent appraisal of job
applicants. There remains the fact that Brown deferred on two occasions to
Guethle's objections to the assignment of a deckhand to Guethle's boat. These
objections were based on Guethle's judgment of the qualifications of the deckhand
in question. This circumstance warrants the finding that Guethle had the power
effectively to recommend against a particular assignment, and that such action
involved the exercise of independent judgment. While Section 2(11), literally read,
speaks inter alia, only of the power to recommend assignments, and not of the
power to recommend against assignments, I believe that the latter power falls within
the intendment of Section 2(11). Accordingly, I find that Roy Guethle was a
supervisor and exclude him from the unit.
Brock and McConnell: The record shows that during the period here relevant
Brock and McConnell worked as pilots on a towboat (the Meramec) owned by the
Respondent but chartered 33 by it to the Missouri Pacific Railroad Company. There
is no evidence that they had any supervisory powers, and I find that they were not
supervisors. Accordingly, they will be included in the unit.
M. H. Brown: In his brief, the General Counsel contended that M. H. Brown
should be excluded as a supervisor. The record shows that he is principally em-
ployed as a truckdriver and mechanic. Unlike the other nonsupervisory employees,
he is paid a salary and he occasionally directs the work of other employees. How-
ever, there is insufficient evidence that such direction is of such a nature, or suffi-
ciently frequent, to warrant finding him a supervisor. Accordingly, he will be
included.
c. The Grahs
Howard Grah and James Grab were hired by the Respondent in 1960 and 1956,
respectively. Both worked at the coal dock making up tow, with occasionally as-
signments at the sand plant. Until August 22, 1961, they were supervised at the
sand plant by Brown and, at the coal dock, by a representative of the railroad, as well
82 The "independent judgment" test in Section 2 (11) applies to all the functions enumer-
ated therein, including the hire of employees Clearly, one who offers employment to one
of several predesignated individuals solely on the basis of availability is not required to
use independent judgment in connection with the hire of such individual.
ss Under the terms of the charter, the Respondent was required to furnish the pilots
and pay their wages, but the railroad company directed the work of the pilots and re-
served the right to discharge them Inasmuch as the Respondent determined the wages
of the pilots, I find that it had sufficient control over their terms of employment to
warrant treating them as employees of Respondent for purposes of the Act. Otherwise,
there would be no employer with whom they could bargain collectively concerning the
most important element in the employment relationship-their rate of pay.
(It may be noted in this connection that at the hearing Respondent disclaimed any
contention that McConnell was not employed by it, nor does it make any such contention
in its brief as to either McConnell or Brock )
SOUTHERN ILLINOIS SAND CO., INC. 1501
as by Brown, and they were paid by the Respondent on an hourly basis. Respondent
concedes, and I find, that until August 22, 1961, they were employees of Respond-
ent. The Respondent contends, however, that on August 22 they became employees
of another employer, identified in the record only as Midwest Towing Company.
The record shows that on that date they began to work exclusively for Midwest
Towing pursuant to a salary arrangement negotiated by them with it. While they
continued to be paid by checks of the Respondent,34 the Respondent was reimbursed
by Midwest Towing for the amount of such checks. I find that on and after
August 22 the Grahs were no longer employees of Respondent but of Midwest
Towing, which alone directed their work and determined their compensation, and
that they are not entitled to be included in the unit after that date. The Respondent,
however, appears to contend in its brief that, even prior to that date, they were not
properly in the unit because they worked "in an entirely separate type of work and
at a different location." This contention and a related contention applicable to.
Howard Grah, alone, are discussed in more detail below.
d. Casual employees
The General Counsel contends, and I find, that Fred Guethle was a casual em-
ployee, and as such did not have sufficient interest in the conditions of employment of
Respondent's employees to warrant his inclusion in the unit 35
Allan Brown, -a nephew of W. C. Brown, worked on weekends, and occasionally
during the week. Brown stated that during the year preceding the hearing Allan
Brown worked not more than 40 weekends, and about 6 to 8 hours on each occasion.
The record does not show the extent of his work other than on weekends. As there
is no definite evidence that Allan Brown worked more than 240 hours during the pre-
ceding year for the Respondent, I find, that he did not have sufficient interest in the
Respondent's conditions of employment to warrant his inclusion in the unit36
Shelby D. Lawder is the son of A. Shelby Lawder and works only during the
summer months, while on vacation from school. Gary Kerkhover also is a student
who works only during the summer months. They are both excluded.37
e. The "homogeneity" issue
In its brief, Respondent contends, in effect, that all its "deckhands on towboats"
should be excluded because they are not "in a homogeneous group" with the other
employees, namely, the crane operators, welders, mechanics, and laborers. How-
ever, the only employee classified as a "deckhand" 38 is Howard Grab. Accordingly,
this contention raises essentially the same issue as has been alluded to earlier in this
report, namely, that Howard Grah ( as well as his brother, James) should be ex-
cluded, even with respect to the period prior to August 22, because the nature and
location of their work was different from that of the other employees.
It is true that prior to August 22 (when they became employees of Midwest Tow-
ing), the Grabs worked principally at the coal dock, under the supervision of an
agent of the Missouri-Pacific Railroad. However, their work-making up tow-does
not appear to have been sufficiently different from that of other employees included
in the unit to require their exclusion. Nor does the fact that most of their work
was done at the coal dock warrant their exclusion. Other employees,39 whom the Re-
spondent would include in the unit, spent most of their time at or near the coal
dock. While it is true that the Grahs were supervised by an agent of the railroad
while working at the coal dock, they were also supervised to some extent by Brown
at that location and were under his sole supervision on those occasions that they
worked at the sand plant.
34 The checks were actually signed by "Southern Illinois Transfer Company," whose re-
lation to Respondent is discussed above. See footnote 28, supra.
as He worked only 8 or 10 times a year, and no more than 3 hours on each occasion.
See P. G. Gray, 128 NLRB 1026, 1029; G. C. Murphy Company, 128 NLRB 908.
11 Callahan-Cleveland, Inc, 120 NLRB 1355, 1357.
s+ Brown-Forman Distillers Corporation, 118 NLRB 454; Westinghouse Air Brake
Company, Union Switch & Signal Division, 119 NLRB 1391, 1396. In view of the fore-
going finding, there is no need to consider whether Shelby D. Lawder should also be ex-
cluded as the son of a part-owner of Respondent.
The Respondent would apparently not exclude other employees classified as "dpck-
hand and laborer."
39 Gerberding, a "dockhand and laborer" on the Jeanne B., and Colvis ( and his
replacement).
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under all the circumstances, I find that the Grabs had sufficient community interest
with the other employees to warrant incliiding them in the unit.
2. Majority status of the Union
The record shows that on July 25, when the Union made its initial bargaining
request, the Respondent had on its payroll 23 individuals.40 Of these, I have ex-
cluded from the unit Allan Brown , Shelby D. Lawder, Gary Kerkhover, Roy Guethle,
and Fred Guethle. In addition, there is no dispute that of these 23, Spencer Brown,
W. C. Brown, and A. Shelby Lawder 41 are to be excluded because they are either
supervisors or managerial employees, or both, as well as part-owners, of the Re-
spondent, and that Jane Bayley is to be excluded, as she is an office employee.
There remain, therefore, in the unit found to be appropriate 14 individuals who were
in Respondent's employ on July 25.42
Of these 14, the record shows that 9 had before July 25 signed cards authorizing
the Union to represent them 43 I find, therefore, that on July 25 the Union repre-
sented a majority of Respondent's employees in the appropriate unit.
3. The refusal ,to bargain
As already related, early in the morning of July 25, Union Representative Stuhr
called Brown. According to Stuhr, he introduced himself to Brown asa representative
of the Union, stated that he represented a majority of Respondent's employees, and
requested a meeting to negotiate a contract. Brown's reply, according to Stuhr, was
that if he "wished to come to Chester and chase [Brown] down," Brown would meet
with him, but that "under no circumstances would he consider a contract." When
Stuhr pressed him for a definite appointment, Brown merely repeated his previous
answer.
Brown's version conforms substantially to that of Stuhr, except that Brown denied
using the "chase-me-down" phrase, testifying that Stuhr repeatedly pressed him for
a definite appointment and that Brown replied on each occasion that he was "at the
sand company at all times." However, elsewhere in the record Brown testified that
be made daily trips to the Respondent's other locations.
I find from the foregoing that, while professing willingness to meet with Stuhr,
Brown repeatedly evaded Stuhr's request for a definite appointment. Moreover,
in view of other aspects of Brown's testimony already noted reflecting on his credi-
bility generally, I do not credit Brown's denial that he used the "chase-me-down"
phrase attributed to him by Stuhr.
Brown testified on direct examination that he was certain that he questioned Stuhr's
assertion in the foregoing telephone conversation that he represented a majority
of the employees. While Brown's testimony on this point under cross-examination
was less positive, the fact remains that Stuhr's testimony is silent as to whether
any such question was raised by Brown, so that there is no direct contradiction of
Brown in this respect. Under these circumstances, I credit Brown's testimony that
he questioned the Union's majority status.
However, in view of Stuhr's testimony, which I credit, that Brown asserted that
he would not consider entering into a contract with the Union under any circum-
stances, I find that Brown's opposition to a union contract was prompted, not by
any doubt of the Union's majority status, but rather by a rejection of the principle
of collective bargaining.44 This is confirmed by the fact that later in the same day
40 See General Counsel's Exhibit No 7. This was an eligibility list furnished by the
Respondent to the Board in connection with the abortive representation proceeding. See
footnote 11, supra.. Actually, there are 24 names on this list, but one is that of Dravis,
who did not report for work until July 26.
41 Referred to in General Counsel's Exhibit No. 7 as Albert S. Lawder
42 These 14 include Colvis, who was not discharged until the evening of July 25, after
the Union's bargaining request, Bernard Kerkhover and Versenian, who were laid off on
July 26, and Andrews, who quit on that date
42 As already noted, a 10th card was signed (by Brant) a few days after the July 24
meeting. Accordingly, I have not counted his card at this point, even though it is argu-
able that it should be counted, in any event, as Brant was a member of the Union on
July 25 and for some years prior thereto.
44 While Brown's version was that he stated merely that he "wasn't interested in sign-,
lug a contract," he did not relate this statement to his questioning of the Union's
majority or otherwise indicate that he in fact had any doubt of such majority or that
his refusal to enter into a contract was prompted by such 'doubt. Accordingly, I find no
material conflict between Brown and Stuhr on this point However, even assuming 'a
conflict, I would resolve it in favor of Stuhr for reasons already noted.
SOUTHERN ILLINOIS SAND CO., INC. 1503
Brown as found above, discharged Colvis for union activity, and a day or so there-
after embarked on a campaign of unlawful interrogation and threats 45
Accordingly, I find that on July 25, the Respondent, in effect, refused to meet with
the Union 46 or to enter into contract negotiations, and that such refusal was not
motivated by any bona fide doubt of the Union's majority status. I find further
that by such refusal the Respondent violated Section 8(a)(5) and (1) of the Act.
The General Counsel contends that Respondent further unlawfully refused to
bargain on August 25. On that date, Brown and his father met with Stuhr and
Prigmore, another union representative. There was some discussion of wage rates
and the Respondent requested that the Union furnish it with a list of rates paid by
Respondent's competitors.47 According to Brown, the Union promised to furnish
such rates but never did. According to Prigmore, Brown stated early in the dis-
cussion that he could not negotiate a contract "until after this question with the
Labor Board was settled." 48 Prigmore did not deny that Respondent had requested
that the Union furnish area rates, but he explained that the Union failed to comply
with this request because it deemed any such action to be futile in view of Brown's
position that any contract would have to await the outcome of the pending Board
proceeding. Brown at first testified, under cross-examination, that he did not believe
that he had refused on August 25 to discuss a contract pending the outcome of a
Board proceeding, but conceded that someone else at the meeting may have said
that. However, when recalled to the stand by Respondent's counsel, Brown stated
that (1) he did not think that such statement was made while he was present at
the meeting, and (2) he was sure that no such statement had been made. However,
there was no contradiction at the hearing of Union Representative Dressel's testimony
that on August 28 Brown replied to Dressel's request for a meeting by citing the
pendency of a Board proceeding. Apart from any other considerations, Brown's
foregoing vacillating testimony on the point here in issue, considered together with
Dressel's uncontradicted testimony,49 lead me to credit Prigmore's version of the
August 25 meeting. Accordingly, I find that on August 25 the Respondent, while
requesting that the Union furnish it with area wage rates, took the position that any
further contract discussions would be futile until one or both of the proceedings then
pending before the Board was concluded. Insofar as such position had reference to
the instant proceeding, it is well settled that a respondent may not refuse to bargain
because of the pendency of an unfair labor practice proceeding.5° Insofar as such
position was related to the pendency of the representation case cited above, it is also
well settled that the fact that a union has filed a representation petition does not
excuse an employer's refusal to bargain with it, absent a good-faith doubt of the
Union's majority status.51 It has already been found that the Respondent had no
such doubt on July 25. There is nothing in the record to warrant a finding that it
had any such doubt on August 25.52
46Joy Silk Mill8, Inc, 85 NLRB 1263, enfd as mod 185 F. 2d 732, cert denied
341 U S. 914
,a Brown's invitation to Stuhr (whose office was 60 miles from Respondent's plant) to
come to the sand plant on the chance of finding Brown there, coupled with Brown's
persistent refusal to give Stuhr a definite time and place for a meeting, did not in my
opinion satisfy Respondent's statutory duty "t6 meet at reasonable times." Moreover,
Brown, in effect, served notice on Stuhr that his trip would be futile, in any event, as
Brown was averse to negotiating any contract
44 The foregoing findings are based on a synthesis of the testimony of Brown and
Prigmore, which is in substantial agreement up to this point.
48 At that time both the instant case and the representation case were pending before
the Board.
49 While Dressel's testimony relates to a statement by Brown 3 days after the August 25
meeting, it is probative evidence of his state of mind at the time of the meeting
60 E.g , Shawnee Milling Company, d/b/a Paula Valley Milling Company, 82 NLRB
1266, 1271.
si E g , Laabs, Inc, 128 NLRB 374, Cactus Petroleum, Inc, 134 NLRB 1254
54 On August 25 the two Grabs, as already found had ceased to be employees of Re-
spondent, Colvis had been discharged, Bernard Keikhover and Verseman had been laid
off, and Andrews had quit If none of these six may be counted for the Union as of
August 25, the Union would on that date have only four adherents out of a total comple-
ment of eight (even if Colvis' replacement, Dravis. be omitted from the count) and hence
no majority. However, as Colvis has been found to have been unlawfully discharged,
he was still an employee for purposes of determining the Union's majority Respondent
conceded at the hearing that Bernard Kerkhover and Vei seman were offered reemploy-
ment on September 14 It is accordingly found that they were still regarded as em-
ployees on August 25, although in layoff status Counting these 3,'tlie Union had 7 ad-
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, I find that Respondent again unlawfully refused to bargain with the
Union (1) on August 25, when it conditioned any meaningful negotiations on the
outcome of the pending Board proceedings, and (2) on August 28, when Brown
rejected Dressel's request for further meetings because of the pendency of such
proceedings.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent violated Section 8(a)(1), (3), and (5)
of the Act, it will be recommended that the Respondent cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent refused to bargain with the Union, which
represented a majority of the employees in an appropriate unit. Accordingly, I shall
recommend that the Respondent be ordered to bargain upon request with the Union
as the exclusive representative of the employees in the appropriate unit.
It had also been found that the Respondent discharged Colvis on July 25 for his
union activity. Accordingly, the Respondent should be required to offer him im-
mediate and full reinstatement to his former or substantially equivalent position,
without prejudice to his semority or other rights and privileges. The Respondent
should also be directed to reimburse Colvis for any loss of pay he may have suffered
by reason of the Respondent's discrimination against him, by paying to him a sum of
money equal to the amount he would normally have earned as wages from July 25
to the date of Respondent's offer of reinstatement, less his net earnings during
that period. Backpay shall be computed on ,the basis of calendar quarters, in ac-
cordance with the method prescribed in F. W. Woolworth Company.53
In view of the nature of the violations found herein, particularly the discrimina-
tion against Colvis, a potential threat of future violations exists which warrants a
broad cease-and-desist provision.
In his brief, the General Counsel requests that the Recommended Order herein
be addressed to the Southern Illinois Transfer Co., as well as the Respondent, on
the theory that both companies constitute a single employer.54 However, the Transfer
Company was not named in the complaint.
Whether the Transfer Company would be subject to the terms of any order that
may issue herein as a successor to, or alter ego of, the Respondent, is a question
which may more appropriately be determined in the compliance stage of this proceed-
ing. Accordingly, the Transfer Company will not be referred to by name in the
Recommended Order.
The General Counsel requests also that the strikers be ordered reinstated upon
application. However, the question of the right of the strikers to reinstatement,
either as unfair labor practice strikers or as unreplaced economic strikers, was not
litigated at the hearing. Accordingly, I make no recommendation on that score.
CONCLUSIONS OF LAW
1. All Respondent's employees, excluding office clericals, professional employees,
watchmen, guards, and supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9(b) of the
Act.
2. At all times material the Union has been and still is the exclusive representative
of all the employees in the aforesaid unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
3. By refusing to bargain collectively with the aforesaid labor organization as
the exclusive representative of its employees in an appropriate unit, the Respondent
herents out of 11 and would have a majority , even if Colvis' replacement , Dravis, be
added to the list of nonunion employees.
In any event , under the rule of the Franks Bros . case ( 321 U.S. 702), any change in
the Union 's majority status after the initial unlawful refusal to bargain on July 25 would
not affect the Respondent's duty to continue to recognize the Union thereafter.
ca 90 NLRB 289.
64 See footnote 28, above.
SOUTHERN ILLINOIS SAND CO., INC. 1505.
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a) (5) and (1) of the Act.
4. By interrogation and threat of liquidation, the Respondent has interfered with,
restrained, and coerced its employees in the exercise of rights guaranteed in Section
7 of the Act, and has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
5. By discharging Paul Colvis for union activity, the Respondent has violated Sec-
tion 8(a) (3) and (1) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case, and from the foregoing findings of fact
and conclusions of law, it is recommended that Respondent, Southern Illinois Sand
Co., Inc., Chester, Illinois, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain concerning rates of pay, wages, hours of employment, or
other conditions of employment with Local 520, International Union of Operating
Engineers, AFL-CIO, as the exclusive representative of all its employees, but ex-
cluding office clericals, professional employees, watchmen, guards, and supervisors
as defined in the Act.
(b) Discouraging membership in Local 520, International Union of Operating
Engineers, AFL-CIO, or in any other labor organization, by discriminating against
employees in regard to their hire or tenure of employment or any term or condition,
of employment.
(c) Threatening employees that it will liquidate its operations rather than deal with
their bargaining representative.
(d) Coercively interrogating employees concerning their union activities or those
of other employees and concerning the identity of the instigator of such activities.
(e) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join, or assist the above-
named Union, or any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other concerted activities for
.the purpose of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such right is affected by the
provisos in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which is deemed necessary to effectuate the
policies of the Act:
(a) Upon request, bargain collectively with Local 520, International Union of
Operating Engineers, AFL-CIO, as the exclusive representative of all employees of
the Respondent, excluding office clericals, professional employees, watchmen, guards,
and supervisors as defined in the Act, with respect to rates of pay, wages, hours of
employment, or other conditions of employment, and, if an understanding is reached,
embody such understanding in a signed written agreement.
(b) Offer to Paul Colvis immediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his seniority or other rights and
privileges.
(c) Make whole the said employee, in the manner set forth in the section of the
Intermediate Report entitled "The Remedy," for any loss of pay he may have suffered
by reason of the Respondent's discrimination against him.
(d) Preserve and, upon request, make available to the Board or its agents, for
examination or copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts of backpay due unde the terms of this Order.
(e) Post at its plant in Chester, Illinois, copies of the notice attached hereto
marked "Appendix." 55 Copies of said notice, to be furnished by the Regional Direc-
tor for the Fourteenth Region, shall, after being duly signed by the Respondent's
representative, be posted by the Respondent immediately upon receipt thereof, and
be maintained by it for a period of at least 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are customarily
sa In the event that this Recommended Order be adopted by the Board , the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice . In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order " shall be substituted for the words
"Pursuant to a Decision and Order."
649856-63-vol. 137-96
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posted . Reasonable steps shall be taken by the Respondent to insure that such
notices are not altered, defaced, or covered by any other material.
(f) Notify, the Regional Director ffor,the'Fourteenth Region, in writing, within 20
days from the date of receipt of this Intermediate Report, what steps the Respond-
ent has taken to comply herewith.56
se In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL bargain, upon request, with Local 520, International Union of Oper-
ating Engineers, AFL-CIO, as the exclusive representative of 'all employees in
the bargaining unit described below in respect to rates of pay, wages, hours of
employment, or other conditions of employment, and if and understanding is
reached, embody it in a signed agreement. The bargaining unit is:
All our employees, excluding office clericals, professional employees,
watchmen, guards, and supervisors as defined in the Act.
WE WILL NOT threaten that we will liquidate our operations rather than deal
with a union, or coercively interrogate our employees about their union activities
or those of other employees.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join, or
assist Local 520, International Union of Operating Engineers, AFL-CIO, or any
other labor organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such right may be affected by the
provisos in Section 8(a)(3) of the Act.
WE WILL offer Paul Colvis immediate and full reinstatement to his former or
substantially equivalent position, and make him whole for any loss of pay suf-
fered by reason of the discrimination against him.
All of our employees are free to become, remain, or refrain from becoming or
remaining members of Local 520, International Union of Operating Engineers, AFL-
=CIO, or any other labor organization.
SOUTHERN ILLINOIS SAND CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered,, defaced, or covered by any, other material.
Employees may communicate directly with the Board's Regional Office, 4459
Federal Building, 1520 Market Street, St. Louis, Missouri, Telephone Number, Main
1-100, Extension 2142, if they have any question concerning this notice or com-
pliance with its provisions.
'The Trane Company ( Clarksville Manufacturing Division) and
International Association of Machinists , AFL-CIO, Petitioner.
Case No. 26-RC-1605. July 19, 1962
DECISION AND DIRECTION OF SECOND ELECTION
Pursuant to a stipulation for certification upon consent election, an
election by secret ballot was conducted on April 21, 1961, under the
137 NLRB No. 165.