Standard Industries, Inc.,

National Labor Relations Board - Board Decisions

Sep 22, 1961

133 N.L.R.B. 320 (N.L.R.B. 1961)

320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
Having found that Respondent has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and take certain affirmative
action which I find will effectuate the policies of the Act.
The record does not indicate that Respondent's dispute with Refrigeration ex-
tended to all persons with whom Refrigeration did business . It appears merely
that Respondent was attempting to induce Refrigeration to employ its members-or
at least to pay union wages-for refrigeration installation work at Piggly Wiggly
stores in the San Antonio area where Refrigeration did business. The picketing of
the Piggly Wiggly store at the Northwest Shopping Center did, however, cause work
stoppages among employees of two other employers on that project and, in order
to prevent Respondent from causing similar interruptions of work in the future,
it will be necessary to require it to cease and desist from inducing or encouraging
persons employed by Piggly Wiggly or by any other persons in the San Antonio area
operating at a common situs with Piggly Wiggly, to engage in such a work stoppage,
where an object is to force or require Piggly Wiggly to cease doing business with
Refrigeration.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Piggly Wiggly is a person engaged in commerce or in an industry affecting
commerce within the meaning of Section 8(b)(4) of the Act.
2. By threatening Piggly Wiggly that its failure to use Respondent 's members
for refrigeration installation work might result in violence , Respondent threatened,
coerced, and restrained Piggly Wiggly within the meaning of Section 8(b) (4) (ii) (B)
of the Act.
3. By picketing the Northwest Shopping Center on April 26, 1960, Respondent
has induced and encouraged individuals employed by Dillard and Johnson and other
persons to engage in a strike or a refusal in the course of their employment to
perform any services , and has restrained and coerced Piggly Wiggly, in each case
with an object of forcing or requiring Piggly Wiggly to cease doing business with
Refrigeration , and has thereby violated Section 8(b) (4) (i) and (ii ) (B) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not, by its distribution of handbills at Piggly Wiggly stores
on and after April 26, 1960, threatened, coerced, or restrained Piggly Wiggly within
the meaning of Section 8(b) (4) (ii) (B) of the Act.
[Recommendations omitted from publication.]
Standard Industries , Inc., Aggregate Division and International
Union of Operating Engineers , Local 627, AFL-CIO. Case
No. 16-CA-1336. September 20, 1961
DECISION AND ORDER
On August 22, 1960, Morton D. Friedman issued his Intermediate
Report in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the Intermediate Report attached
hereto. Thereafter, the Respondent filed exceptions to the Intermedi-
ate Report and a brief in support thereof. In addition, Respondent
filed a "Motion to Supplement Record."
133 NLRB No. 40.
STANDARD INDUSTRIES, INC., AGGREGATE DIVISION 321
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 [Members Leedom, Fanning, 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 Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations, with the modifications noted herein.
The Trial Examiner found that Respondent locked out certain em-
ployees in violation of Section 8 (a) (3) of the Act. He also found that
offers of reinstatement were made by Respondent to all the lockout
victims except Carl Haddock, Billy G. Hargrove, William L. Moffit,
and Delbert Watkins. Consequently, he awarded backpay to those
who were offered reinstatement until the date the lockout ended as
to them 1 and directed the reinstatement of Haddock, Hargrove,
Moffit, and Watkins, and awarded them backpay to the date of their
reinstatement.
As noted, Respondent had filed a "Motion to Supplement Record."
It asserts therein that Watkins and Haddock were never locked out
and, further, that it was agreed at the hearing to delete Watkins' name
from the complaint. Respondent also claims in its motion that it is
prepared to show that Hargrove was included among the employees
offered reinstatement following the lockout found by the Trial
Examiner.
The present record supports Respondent's contention regarding
Watkins. In view of Respondent's assertions with respect to Haddock
and Hargrove, the Board issued a notice to show cause why those as-
sertions should not be accepted as true. In response thereto, the Gen-
eral Counsel has conceded the validity of Respondent's position as to
Haddock but, together with the Charging Party, disputes Respondent
as to Hargrove.
In the circumstances, we adopt the Trial Examiner's finding of an
unlawful lockout except as it pertains to Watkins and Haddock. And
we shall remand this case for the limited purpose of receiving evidence
bearing on Respondent's contention in its motion that it has offered
reinstatement to Hargrove?
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
1 Absent exceptions thereto , we adopt the Trial Examiner 's finding that Respondent's
offers of reinstatement were sufficient to terminate the lockout and convert the strike then
in progress into an economic strike beginning on March 1, 1960.
2In the meantime , we shall enter no remedial order in Hargrove 's case.
624067-62-vol. 133-22
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that the Respondent, Standard Indus-
tries, Inc., Aggregate Division, Tulsa, Oklahoma, its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Union of Operating
Engineers, Local 627, AFL-CIO, or in any other labor organization
of its employees by locking out or in any other manner discriminating
against any of its employees in regard to hire or tenure of employment
or any term or condition of employment.
(b) Threatening employees with reprisals if they engage in activity
on behalf of the aforesaid Union, or any other labor organization, or
if they fail to give up their membership in the said Union, or any other
labor organization, or threatening to permanently close down their
plants if a union organizational attempt should succeed; and/or inter-
rogating employees concerning their union views, membership, and
activities in a manner constituting interference, restraint, and coercion
in violation of Section 8 (a) (1) of the Act.
(c) 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 aforesaid labor organization, or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to William L. Moffit immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him whole for
any loss of earnings he may have suffered by reason of the discrimina-
tion against him in the manner set forth in the section of the Inter-
mediate Report entitled "The Remedy."
(b) Make whole all the individuals listed in Appendix A, attached
hereto, for any loss of pay they may have suffered as a result of the
discrimination against them in the manner set forth in the section of
the Intermediate Report entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, timecards,
social security payment records, personnel records and reports, and
all other records and reports necessary to determine the amounts of
STANDARD INDUSTRIES, INC., AGGREGATE DIVISION 323
backpay due and the rights of employment under the terms of this
Order.
(d) Post at its plant and premises in and around Tulsa, Oklahoma,
copies of the notice attached hereto marked "Appendix A." 3 Copies
of said notice, to be furnished by the Regional Director for the Six-
teenth Region, shall, after being duly signed by the Respondent, be
posted by the Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices 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.
(e) Notify the Regional Director for the Sixteenth Region, in writ-
ing, within 10 days from the date of this Decision and Order, what
steps the Respondent has taken to comply therewith.
IT IS FURTHER ORDERED :
(a) That the record in this proceeding be, and it hereby is, re-
opened, and that a further hearing be held before Trial Examiner
Morton D. Friedman for the purpose of receiving evidence relevant
to the Respondent's claim that it offered reinstatment to Billy C. Har-
grove following the discrimination against him found herein.
(b) That this proceeding be, and it hereby is, remanded to the
Regional Director for the Sixteenth Region for the purpose of ar-
ranging such further hearing, and that the said Regional Director be,
and he hereby is, authorized to issue notice thereof.
(c) That upon the conclusion of the hearing, unless the parties
waive their rights thereto, the Trial Examiner shall prepare and serve
upon the parties a Supplemental Intermediate Report containing
findings of fact upon the evidence received pursuant to the provisions
of this Order, conclusions of law, and recommendations, and that, fol-
lowing the service of such Supplemental Intermediate Report upon
the parties, the provisions of Section 102.46 of the Board's Rules and
Regulations shall be applicable.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges violations of the Act not found herein.
2In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in International Union
of Operating Engineers, Local 627, AFL-CIO, or any other labor
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization of our employees, by locking out, discharging, or
otherwise discriminating against any employee in regard to his
hire, tenure of employment, or any term or condition of
employment.
WE WILL NOT threaten employees with reprisals if they engage
in activity on behalf of the aforesaid Union, or any other labor
organization, or if they fail to give up their membership in the
said Union, or any other labor organization.
WE WILL NOT threaten to close our plants if a union organi-
zational attempt succeeds.
WE WILL NOT interrogate employees concerning their union
views, membership, or activities, in -a manner constituting inter-
ference, restraint, or coercion within the meaning of Section
8(a) (1) of the Act.
WE WILL NOT In any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-
organization, to form labor organizations, to join the aforesaid
labor organization, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any
and all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized in Sec-
tion 8 (a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL offer William L. Moffit immediate and full reinstate-
ment to his former or substantially similar position, without
prejudice to his seniority and other rights and privileges, and
make him whole-for any loss of pay suffered as a result of the
discrimination against him.
WE WILL make whole each of the individuals listed below for
any loss of wages he may have suffered by reason of our dis-
crimination against him :
Ash, Dan H. Fountain, Murle
Autry, Lester Froese, Leonard J.
Beck, Robert W. Grimm, Earl
Buttress, Odie Hargrove, Billy G.
Bryant, Doris Jones, Earl L.
Chambers, Marvin Jones, Andrew H.
Coggins, James M. Knabe, Geo. F.
Creek, Charles A. Kyles, Arvil
Ellis, Robert E. Lessel, R. Gene
Ford, Eual J. Medlock, Marvin L.
Foreman, Carl E. Milchuck, Frank
STANDARD INDUSTRIES, INC., AGGREGATE DIVISION
Mitchell, L. R.
Mooring , Luther
New, Talmadge W.
Palone, Wm. M.
Pointer, Walter
Reynolds, James L.
Singleton, J. Calvin
Stanley, Roy F.
Summerfield, Levi
Terral, Johnny
Thompson, Ronald R.
Vance, Orval C.
325
All our employees are free to become or to refrain from becoming
members of the above-named Union, or any other labor organization
of their own choosing, except to the extent that this right may be
affected by an agreement in conformity with Section 8(a) (3) of the
Act, 'as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
STANDARD INDUSTRIES, INC.,
AGGREGATE DIVISION,
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , brought under Section 10(b) of the National Labor Relations
Act, as amended ( 61 Stat . 136), was heard in Tulsa , Oklahoma, on June 1 , 2, and 3,
1960, before the duly designated , Trial Examiner . The complaint alleges various
acts of unlawful conduct by Standard Industries , Inc., Aggregate Division , herein
called the Respondent or the Company , in violation of Section 8(a)(1) and (3)
of the Act, all of which the Respondent denies in its answer . All parties were
afforded full opportunity to examine and cross -examine witnesses , to introduce evi-
dence, to present oral argument , and thereafter to file briefs. The parties waived
oral argument . Briefs were filed by the Respondent and the General Counsel.
Upon the entire record , and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Standard Industries , Inc., a Delaware corporation , maintains its principal office
and place of business in Tulsa , Oklahoma. The Aggregate Division , the only part
of Respondent 's business involved herein , consists of three plants located in and
around Tulsa , Oklahoma . The said division is engaged in the business of manufac-
turing and retailing products of crushed limestone , sand, asphalt, concrete and ready
mixed concrete , and various related products ; also highway construction work, air-
field construction , city street paving, and other governmental construction work.
In the course and conduct of the Aggregate Division 's operations at the plants
located in and around Tulsa, Oklahoma, during the 12 -month period immediately
preceding the issuance of the complaint herein (a representative period ), the Re-
spondent received goods of a value in excess of $100,000 directly from points outside
the State of Oklahoma.
I find that the Respondent is engaged in commerce within the meaning of the Act
and that it will effectuate the policies of the Act to assert jurisdiction in this
proceeding.
H. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers , Local 627, AFL-CIO, herein called
the Union, is a labor organization within the meaning of the Act.
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Preliminary statement and issues
The Union began organizing the employees of the Aggregate Division sometime
during the week of February 7, 1960.1 At least as early as Friday, February 12,
the Respondent was aware of union activity , for on that day Ryan , superintendent
of the Phillips Quarry, a part of the Aggregate Division, informed E. B. Moubry,
division manager of the Aggregate Division, that someone had been at Phillips Quarry
distributing cards. On the evening of that same day, the Union held an organizing
meeting which was attended by an undetermined number of the Respondent's
employees.
On the following Monday, February 15, snow began falling early in the morning
and, with only a few exceptions , when the employees of East Quarry section of the
Aggregate Division reported for work they were told that there would be no work
that day. The same information was given out thereafter each working day until
February 24. On that day, most of the employees of the entire Aggregate Division
who were then working walked out and joined with those who were not working
to form a picket line. The purpose of this strike, according to the Union, was to
protest the Respondent's action in "locking out" the employees who were not given
work during the aforesaid period.
Also according to the Union, it was during the period of February 15 to 24, while
the East Quarry was virtually closed down , that the alleged unlawful interrogation
and. threats occurred . With the exception of some interrogation , most of the allegedly
violative statements made by Respondent 's supervisors were in the nature of reasons
why the Company continued the shutdown at the East Quarry. Thus, according
to the General Counsel 's witnesses , Division Manager Moubry, Superintendent
Courtney , and Foreman Garner each , at various times, made statements to the effect
that there would be no more work until the men forgot about the Union.
On the other hand, the Respondent , denying antiunion animus and all of the
alleged interrogations and threats and admitting the closedown of the East Quarry,
offered evidence to show that its action was dictated by the coincidence of weather
so bad that quarrying operations could not be carried on and the economic fact that
the products of the quarry for a period preceding the closedown were produced at
a rate far in excess of market requirements and that , as a result , stockpiles had grown
so large that it became necessary to halt production until the stockpiles were reduced
to normal.
Moreover, the Respondent contends that the strike was caused by the Union's
impatience with the Respondent 's failure to deal with it as quickly as the Union
desired and that therefore the strike was for recognitional purposes and not to pro-
test the alleged lockout.
In addition to the foregoing , the Respondent denied that Foremen Jimmy V.
Garner and Leo York , who were alleged as aforesaid to have made a number of
coercive statements , were supervisors and that , therefore, any statements made by
either of them were not binding upon the Company.
Thus, the issues presented are as follows:
(1) Were Foremen Garner and York, at the times relevant to the complaint,
supervisors within the meaning of the Act?
(2) Did Foreman Garner , Foreman York , Superintendent Courtney , and Division
Manager Moubry interrogate , threaten , and coerce Respondent 's employees in viola-
tion of their Section 7 rights?
(3) Did the Respondent lock out the employees of the East Quarry to discourage
union activity and, more precisely , membership in the Union or did it close down
the quarry for purely economic reasons?
(4) Was the strike which occurred on February 24, the result of and caused by
the Respondent's alleged unfair labor practices?
B. The supervisory issue
Production at the Aggregate Division , under Division Manager Moubry , is divided
into three main operating sections : the Phillips Quarry, the Sand Plant , and the East
Quarry, supervised by Lee B. Courtney, superintendent, by far the largest of these
three sections . As heretofore noted , the East Quarry is the location where most of
the crucial events involved in this case occurred and where most of the employees,
alleged to have been locked out, were employed.
1 Unless otherwise indicated , all events related herein occurred in 1960
STANDARD INDUSTRIES, INC., AGGREGATE DIVISION 327
The East Quarry occupies approximately 60 or 70 acres and the various operations
performed at the quarry are spread out in all directions over this large area. The
pit is the area that is being quarried and it occupies approximately 30 to 40 acres.
The individual below Superintendent Courtney, in immediate charge of the pit, is
Foreman Leo York.
As described by Division Manager Moubry, Superintendent Courtney, and Fore-
man York, in the pit the rock is taken out the ground and then hauled to the
primary crusher where it is broken down into somewhat smaller, uniform size. In
addition to ordinary hand labor, the operation involves the use of dynamite and other
blasting material, power shovels, and other earth and material-moving machinery and
equipment, rock-crushing equipment, and power belts which lift the material from
the primary crusher to the top of the plant. According to Superintendent Courtney
at the times material herein, York had charge of the pit, the stripping, the "eukes"
(power shovels), and the drilling and shooting (blasting) and directed 16 men who
performed the foregoing work.
At the "top," which is above the pit and at ground level, the rock is further crushed
into various sizes, according to its ultimate use as aggregate, and then is either shipped
to customers or stored until sold. The operations performed at the top include the
crushing of stone to various specified sizes by use of rock-crushing machinery, storing
the aggregate in stockpiles, and the loading and weighing of trucks and railroad
cars. Foreman Jimmy Garner is the individual in charge of the "top" directly under
the overall supervision of Superintendent Courtney. Approximately 10 employees
assist Garner in operating the "top."
According to both York and Garner, each receive daily instructions from Super-
intendent Courtney as to what work is to be performed at their respective operations.
However, the manner of that performance , i.e., what particular work each of the
employees do at any given time, is for these two individuals to decide. Thus both
Division Manager Moubry and Superintendent Courtney testified that Garner and
York could assign maintenance men to various pieces of equipment and transfer
them to others without consulting Courtney. Also, either could temporarily shift
a man from the operation of one piece of equipment to another depending on the
flow of work. Additionally, York could send a man temporarily from the pit to the
top if Garner needed him and if York decided that man could be spared. Garner
possesses like authority.
Although the record does not show that either Garner or York have the authority
to independently hire or discharge employees, employees have been hired who prior
to their being hired did not see any other management representative but these two
individuals . Thus York admitted that when Hall was interviewed no one else spoke
to him but York. This was also true in the hiring of Carl Foreman who saw only
York, and Charlie Creek who saw only Garner. Accordingly, I cannot credit other
testimony of York, Garner, Courtney, or Moubry to the effect that York and Garner
could not effectively recommend personnel action such as hiring, discharge, or
discipline.
Additionally, Moubry admitted that York and Garner are classified and have the
title of "foreman." Superintendent Courtney admitted that when he is absent York
and Garner operate independently without any immediate direction . Moreover,
that they are regarded as foremen and supervisors by the employees with whom
they work was brought out by the testimony of almost all of the employees,2 whom
I credit in this respect because their testimony is substantiated by the admissions of
the Respondent's witnesses.
Although Moubry, Courtney, York, and Garner individually denied that York
and Garner are regarded by management as supervisors , the testimony of the
Respondent 's own witnesses contradicts these denials . Thus, Garner, York, Ben
Ryan, superintendent of the Phillips Quarry, and M. W. Lewis, foreman of the Sand
Plant, admitted that both Garner and York attended supervisors' meetings during
1959. Moreover, Moubry admitted that Garner and York attended the supervisors'
meeting held on Febuary 19, 1960 , at which the supervisors were instructed not to
interfere with the employees' organizational rights and were also told to cut out all
horseplay among the men.
Finally it was admitted by Moubry, Courtney, York, and Garner that York and
Garner, as in the case of Respondent 's admitted supervisors , receive weekly salaries
and annual vacations . Their salaries and vacations are equal to the salaries and
vacations of the admitted supervisors . In contrast , nonsupervisory employees are
paid on an hourly scale and do not receive vacations . Although Moubry testified
'Carl Foreman, Guy Mitchell, Eual J Ford, Arvil Kyles, Charles Creek, Robert Ellis.
and L. R Mitchell.
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Garner is paid on a salary basis and receives a vacation because he is highly
skilled and performs a difficult coordinating job, the coordinating , by itself, requires
the direction of the men working with Garner . No explanation was offered as to
why York receives a salary and vacation if he is not a supervisor.
Moubry, Courtney , Garner, and York all testified that the direction by Garner and
York of the men with whom they work is merely routine and that it does not require
the exercise of independent judgment. In support of this testimony the Respondent
points to admissions by certain employees 3 that the work performed by these wit-
nesses was routine in nature , for example , the operation of a power shovel. How-
ever, as noted above, the East Quarry covers some 70 to 80 acres , and the various
operations are widespread throughout that area. Between Superintendent Courtney
and the men who work throughout this large area there is no one to direct the work
except York and Garner . Under these circumstances , as well as for reasons hereto-
fore cited , I conclude that York and Garner necessarily exercise independent judg-
ment and, therefore , responsibly direct the men with whom they work.
,On the foregoing-the fact that both York and Garner are admittedly charged
with the successful operation of their sections in widely separated areas in the East
Quarry where it was physically impossible for their immediate superior . Superin-
tendent Courtney , to be in attendance; that they inevitably are called upon to exercise
individual and independent judgment in directing the men in the performance of
their assigned tasks; that each can at least temporarily transfer employees from one
job or one piece of equipment to another ; that the men regard them as their imme-
diate supervisors ; that they frequently attend supervisors ' meetings ; and the final fact
that, unlike nonsupervisory employees , they receive weekly salaries and vacations
equal to admitted supervisors-and upon the entire record , I find York and Garner
to be supervisors within the meaning of the Act.
C. The evidence as to the alleged violations of Section 8(a) (1)
Although most of the employees of the East Quarry were told on Monday,
February 15, that there was no work that day, and some of them were told it was
because of the snow , Carl Foreman and Arvil Kyles were assigned to work at their
usual jobs . At 10 o'clock in the morning, at the scale house , Superintendent
Courtney approached Foreman and Kyles and engaged them in a conversation.
Foreman testified that Courtney began the conversation by asking Kyles and himself
if either had attended the union meeting on the previous Friday night . The answer
of both was in the affirmative . According to Foreman, Courtney asked how many
employees attended the meeting and what percentage of the employees attended.
Foreman and Kyles refused to tell him . Courtney then asked if they had signed
union cards and they both answered "Yes," after which Courtney said that that was
all he wanted to know . Kyles' testimony corroborated the testimony of Foreman
with the exception , however, that Kyles could not recall whether Courtney asked as
to how many attended the union meeting and what the percentage was. Courtney,
on cross-examination , admitted that he had asked Kyles at that time whether he had
attended the union meeting and denied that anything else was said at that
conversation.
I credit that portion of Foreman's testimony which is corroborated by the testi-
mony of Kyles. Courtney 's admission that the conversation took place and that he
did ask Kyles if the latter had attended the union meeting lends credence to this
portion of Foreman's testimony. For reasons hereinafter stated , I do not credit
Courtney's denial that he asked nothing more.
Ford also worked on February 15 . He testified that at noon Superintendent
Courtney asked him to get into Courtney 's pickup truck and, while driving toward
the quarry , Courtney asked Ford what he had heard about the union business.
Upon Ford 's reply that he had not heard much , Courtney asked him whether he had
attended the union meeting on the previous Friday. When Ford answered that he
had, Courtney further asked whether Ford had signed a union card . Ford , having
answered in the negative , Courtney then asked why he had not signed a card at
which time Ford said that it was because he did not believe in the Union . Courtney
also asked Ford how many of the East Quarry employees attended the union meeting
and when Ford answered that he did not know , the conversation came to an end.
Ford impressed me as being a forthright witness and, in view of what has been
related heretofore , I credit his version of this conversation over the complete denial
of Courtney to the effect that any such conversatioh ever occurred .4
$ Ford , Reynolds , Kyles, Creek , and Ellis.
I here note for later reference that both Foreman and Kyles were given only 6 hours
of work on February 15 and did not work for the balance of the closedown period. Ford,
STANDARD INDUSTRIES, INC., AGGREGATE DIVISION 329
Guy Mitchell testified that on February 15, at the central shop of the East Quarry,
Foreman Garner approached him and started a conversation with a statement to
the effect that the men had messed things up this time and that until they forgot
about the Union the Company was not going to let them work anymore. He also
testified that during that conversation Garner said that the Company could not
afford the Union. Garner testified that he could not recall the foregoing conversa-
tion but neither did he specifically deny it. Accordingly, inasmuch as Mitchell
appeared to be a forthright individual I credit his version of the conversation over
Garner's denial for the reason that, as hereinafter set forth, I find Garner to be an
unreliable witness.
According to the testimony of L. R. Mitchell and Marvin Medlock, on February
15, at the pit shop,5 Medlock, Cal Singleton, Talmadge New, Superintendent Court-
ney, and Mitchell were engaged in a conversation with Foreman Jim Garner.
Garner asked Mitchell if the latter had signed a union card. Mitchell stated that he
had whereupon Garner remarked to the effect that the employees had really messed
things up with the union mess and he further stated that the Respondent was going
to lock the plant, stack up the equipment, and the men would not work for 90 days
or longer. Garner then asked what the men expected to gain out of it and when
he was told they expected to obtain some sick leave and other benefits including
vacations he stated that he received vacations and that it was not so much to brag
about. Then, according to Mitchell, Garner offered to make a wager of $100 with
Mitchell that the plant would not open for 90 days.
At the same session, Superintendent Courtney accused Cal Singleton 5 of being
the ringleader. When Singleton denied that he was the ringleader Courtney accused
Talmadge New of being the union ringleader and this New denied. Medlock
corroborated Mitchell's testimony. Garner admitted to having a conversation at
approximately this time with the men involved but denied that he had made the
statements attributed to him and, although he remembered that he jokingly offered
a bet, could not remember what the bet was about. Courtney's testimony makes
no mention of this incident. I 'credit the version of Mitchell corroborated by
Medlock with regard to this particular incident and partially corroborated by
Garner's admission that he made some sort of bet with Mitchell. Moreover, there
is nothing in Courtney's testimony which would indicate a denial of this occurrence.
Furthermore, for reasons hereinafter set forth, I do not credit Garner's denial of
the incident.?
Carl Foreman and Arvil Kyles testified that on Tuesday, February 16, at the
railroad track near the scale house, Foreman Garner told them that there would
be no work that day; that the union meeting held on the previous Friday night
had messed things up; and that he did not know when there would be any work.
For the same reasons hereinbefore and' hereinafter set forth, I credit Foreman and
Kyles.
On February 16, at the shop in the pit, Robert Ellis had a conversation with
Superintendent Lee Courtney at which were present L. R. Mitchell, Marvin Medlock,
Lester Autry, Cal Singleton, Carl Foreman, and several other employees. Accord-
ing to witness Ellis, Courtney started the conversation by saying that there was not
any work that day and Ellis then asked him if there was any use coming out the next
day. Courtney answered to the effect that there was not going to be any work
until the Union was forgotten. This version of the conversation was repeated by
Mitchell, Medlock, Foreman, and Autry in their testimony. Courtney denied
making the statement. For the reasons hereinafter set forth, I do not credit Courtney
and f credit the version of this episode as related by Ellis and corroborated by the
who, unlike Kyles and Foreman, denied his union sympathies, worked almost the entire
period.
5 The repair and maintenance shop located in the pit
9 Cal Singleton, a prospective witness to this proceeding, died before the hearing. At the
hearing, the General Counsel sought to amend the complaint to include an alleged viola-
tion of Section 8(a)(1) In that Respondent allegedly unlawfully obtained a copy of an
affidavit given by Cal Singleton to a Board field examiner prior to Singleton's death The
evidence offered with regard to this alleged incident was so meager and ineffective that the
matter was not again mentioned by the General Counsel at the close of the hearing. For
the benefit of the record , General Counsel's motion to amend as to this matter is denied.
7Paragraph 5(c) of the complaint alleges that it was Lee Courtney who told the em-
ployees that they would not work for about 90 days. At the close of the proceeding,
however, General Counsel moved that the pleadings be amended to conform to the proof
and, accordingly, paragraph 5(c) is hereby amended to the extent that the name of
Foreman Jimmy V. Garner be substituted for the name of Lee Courtney.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other witnesses. As further reason for crediting these witnesses in addition to my
observation of their general demeanor on the witness stand, I cannot believe that
all of these individuals could have willingly lent themselves to a story made up
of the whole cloth in such a manner as to affirmatively state their version of the
episode as strongly as they did on the witness stand. Courtney's denial on the other
hand must be considered in the context of his other testimony, much of which I
find unreliable as hereinafter explicated.
Robert Ellis testified to a further incident which occurred on February 16 at
the shop in the pit. Present were L. R. Mitchell, Lester Autry, Billy Hargrove,
several other employees, and Foreman Leo York. According to Ellis, the men,
in the presence of York, were discussing the Union and the meeting which had
taken place on the previous Friday. York and L. R. Mitchell engaged in a con-
versation during which York stated that he knew nothing about the Union and
Mitchell suggested that he could ask any of those present and they would be glad
to tell him. York then said to the group, "I'll tell you one thing, there's not going
to be any ice cream and cake. Every son-of-a-bitch in the Union I'll fire and them
that I can't, I'll work to death."
All of the foregoing conversation was corroborated by L. R. Mitchell, Lester
Autry, and Billy Hargrove, and was denied in his testimony by Leo York. Again I
am constrained to credit the testimony of Ellis, Mitchel, Autry, and Hargrove as
to what occurred because of its complete corroboration. I do not credit York's
denial.
L. R. Mitchell also testified that on February 17 or 18 he overheard a conversation
at the pit between Superintendent Courtney and Ellis in which Courtney said there
would not be any work until the men forgot about the "damned Union." However,
I find that Mitchell's recollection as to this incident is confused in that none of the
other employees alleged to have been present , namely, Ellis and several others, testi-
fied to this second incident in which Courtney allegedly stated that the plant would
not open until the employees forgot about the Union. From the record I can
ascertain only one such incident which has been heretofore related. I find that
Mitchell evidently confused this incident with the earlier similar one corroborated
by several of the other witnesses.
Foreman and Kyles also testified to an incident which allegedly occurred on
Wednesday, February 17. According to Foreman's testimony, which was cor-
roborated in part by Kyles' testimony, Garner stated that there would not be any
work that day and that it looked as though the good working conditions around
the quarry were at an end until the Union was forgotten . Garner denied this
statement and his denial was supported by Charlie Lee, another employee who was
present at the conversation.
Lee was a nonstriker who did not lose any worktime but he was no more an
interested witness than Foreman or Kyles. I find no reason to discredit his cor-
roboration of Garner's denial of this incident. On the other hand, Kyles corroborated
Foreman only with respect to that portion of Garner's alleged statement wherein
Garner said that he did not know when there would be any work. Accordingly,
I do not credit Foreman as to the alleged threat by Garner of the cessation of
good working conditions to the extent that his version is not corroborated.
- On February 24, according to Eual Ford, at the shop in the pit, in the
presence of L. R. Mitchell, Marvin Medlock, and Carl Ellis, and several of the
other employees, Ford asked Division Manager Moubry if they were going to work
that day to which Moubry replied that they were not going to work any more until
the men forgot about the Union. Ellis, Mitchell, and Medlock corroborated this
testimony. Moubry, in his testimony flatly denied the statement claiming that the
incident had not occurred. Again, and for the reasons heretofore and hereinafter
stated, I credit the corroborated testimony of Ford and do not credit Moubry's bare
denial.
Other similar incidents were credibly testified to which were not alleged in the
complaint. Although I make no ultimate findings that these incidents constitute
independent violations of the Act, I set them forth as follows because they are
relevant to the lockout issue.
Thus, Odie Scott Buttress, an employee of the Phillips Quarry, testified that on
February 22 he asked Division Manager Moubry for a raise and Moubry answered'
him to the effect that there was one thing he could be sure of; that was that if
Buttress did not forget about the Union he would be out in the cold like the men
at the East Quarry.
Also, Ford further testified that sometime during the week of February 15 through
19 he had additional conversations with Superintendent Lee Courtney in which
Courtney stated to him that he did not want him fooling around or talking union
STANDARD INDUSTRIES, INC., AGGREGATE DIVISION 331
with any of the other union fellows. Ford also testified that during the working
day of February 19, Courtney asked Ford what he was in such a rush about and
Ford told him that he was going to a union meeting whereupon Courtney stated
to him that he thought that Ford did not believe in union meetings . Ford replied
to the effect that he did not think it would hurt to go and see what was going on.
Whereupon Courtney encouraged him to go to the meeting and to find out what-
ever he could and then to report back and tell Courtney about it. Ford stated
that on the very next working day Courtney approached him and asked him what
he had found out about the union meeting.
Also, Lester Autry testified that approximately 1 month before the date of the
strike which commenced on February 24, York, in the presence of Robert Ellis
and Autry, stated that the Respondent could not afford a union and that the Company
would starve the men out before it would go union . This testimony was corroborated
by Robert Ellis.
In addition to the denials by the Respondent that the above-mentioned incidents
occurred as alleged, the Respondent introduced a letter sent to all of the employees
dated February 16, 1960, to the effect that the employees were free to join or not to
join the Union; that they had a right to sign or to refuse to sign authorization cards;
and they had a right to loin or not to join in any discussions with regard to the Union
provided that the same did not take place on company time. The letter also
stated that no employee would be discriminated for or against because of his union
activity or membership. It began and ended with statements to the effect that
although the employees were free to join or not join the Union, the Company would
prefer not to have the Union in the plant and felt that the employees would be better
off without the Union.
Additionally, according to Moubry's testimony, as corroborated by York, Garner,
M. W. Lewis, and Courtney, on February 19, Moubry held a meeting of his super-
visory staff during which he read to them Respondent's letter to the employees dated
February 16, and instructed them not to discuss union activity with the employees.
This meeting was followed up on February 27, 1960, with a letter from the company
president to the supervisory staff instructing the supervisors as to what they legally
could and could not do with regard to the union organization and the union activity
in the plant and also instructing the supervisors that outsiders would not be per-
mitted the use of company premises for purposes of solicitation or other organiza-
tional activity.
D. Conclusions as to the alleged interference , restraint, and coercion
I will first comment as to the credibility of Foremen Garner and York, Division
Manager Moubry, and Superintendent Courtney. York was a very unpersuasive wit-
ness on the stand. He shifted his testimony, contradicted himself, and was, at best,
ill at ease, giving the impression that he was somewhat ashamed of what he had to
says Garner was virtually in the same position. Although Courtney and Moubry
were more affirmative in the presentation of their testimony, I nevertheless cannot
credit them to any greater extent than I can credit Garner and York. All four of
these witnesses testified, on direct examination with regard to the supervisory issue,
that Garner and York were not supervisors and did not possess any of the indicia of
supervisory authority. Nevertheless, by their own admissions on both direct and
cross-examination they contradicted themselves to the extent that they demonstrated
that their original denials were not true. For the foregoing reasons, I cannot accept
their testimony as credible with regard to the foregoing incidents except as indicated.
Accordingly, I conclude that the incidents occurred substantially as hereinabove
set forth e
There remains for disposition the question of whether the letter to the employees
dated February 16, the meeting of the supervisors on February 19, and the written
instructions to the supervisors dated February 27, in any way absolve the Respondent
from legal responsibility for the acts of its supervisors. Certainly the letter of the
16th and the meeting of the 19th did not deter the supervisors from interrogating and
questioning the employees. In fact, Moubry, who conducted the meeting of the 19th
in which it is claimed he instructed the supervisors not to interfere with the union
activity, himself disobeyed the purported instructions when on February 24 he
8In so finding, I have considered that York had difficulty hearing
8I also note that, with the exception of only a couple of the incidents, the testimony of
the employee witnesses with respect thereto is corroborated by at least three other wit-
nesses . While I am aware that numbers alone do not establish the truth of testimony,
I am equally aware that the more people who testify to an event , the more difficult it
becomes to support an untruth as to that event.
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threatened some of the employees with a permanent closedown unless they forgot
about the Union.
Moreover, besides its ineffectiveness as a deterrent to the supervisors, the letter of
February 16, although sent to all employees, cannot possibly constitute a disavowal
of any of the acts of the supervisors which occurred at a later date, and cannot be
considered a disavowal in any event because it did not specifically disavow the
otherwise unlawful acts which preceded it.10
With regard to the written list of instructions of February 27 to the supervisors, it
was not published; it did not contain any terms of disavowal and was issued after
the strike and all other events with which we are concerned herein."
Accordingly, I find, that as related in section C, above, the Respondent, through
its supervisors, Division Manager Moubry, Superintendent Courtney, and Foremen
Garner and York, interrogated its employees with regard to their union activities and
threatened them with permanent loss of their jobs if the Union was successful in
organizing and unless they discontinued their union activities, which acts con-
stituted interference, restraint, and coercion in violation of Section 8(a)(1) of the
Act.
E. The evidence with regard to the lockout issue
As hereinabove set forth, Moubry, division manager of the Aggregate Division,
learned of the Union's organizing activities on or before February 12. Also, the
Respondent knew of the union meeting held on February 12, as shown by the
credited testimony upon which is based the finding that on Monday, February 15,
Superintendent Courtney interrogated two of the employees with regard to what
occurred at that meeting. It is also established that a heavy snow was falling and
had fallen during the early morning hours of February 15. On that morning, despite
the heavy snow, most of the employees were able to report for work at the East
Quarry at the usual starting time of 7:30 a.m. A few of the men were actually
assigned work, but most were told that there would be no work because of the
inclement weather. On Tuesday, February 16, almost none of the men were given
work. On that day and on each successive working day up to and including Febru-
ary 24, the day when the strike commenced, the men were told that there would be
no work.
The General Counsel concedes that on February 15 many of the employees of the
East Quarry were told that there would be no work because of the weather. How-
ever, he contends that also on the 15th the interrogations and threats, heretofore
treated with, began and continued up to and including February 24, the day of the
strike.
The Respondent, contending that the closedown was caused by a combination of
factors, mainly weather and excessive stockpiles, offered evidence to support this
contention. Thus both Superintendent Courtney and Division Manager Moubry
testified that part of the reason for the closedown was the bad weather. Respondent
produced the Tulsa area official United States weather report for the month of
February 1960, which shows that during that month a total of 10.1 inches of snow
fell in the Tulsa area, the heaviest snowfall during February since the year 1929.
This weather report also shows that it was snowing on Monday, February 15, and
that by 6 a.m. of the morning of February 16, 3 inches of snow had accumulated
on the ground; and that on the 15th a total of 3.7 inches of snow fell. However,
other parts of this report also show that the heaviest accumulation of snow and
the heaviest fall in the month of February 1960, occurred after the 24th, when daily
storms through the 28th caused 4.2 inches to fall with an accumulation of 4 inches,
so that the main portion of the record total of 10.1 inches of snowfall during
February 1960 came at a time subsequent to the alleged lockout. Also, this same
weather report shows that on February 17, the day after the snow stopped, the
temperature went up as high as 37; on the 18th to 40; on the 19th to 52; and during
the following workweek on the 22d the temperature was 54 and on the 23d, 41.
The report also shows that although there was 3 inches of snow on the ground on
the 16th, on the 17th, at 6 a.m., there was no snow on the ground at and around the
Tulsa Airport. Nor was there any accumulation of snow on the 18th, 19th, 20th,
22d, or 23d.
However, United States Weather Bureau reports, introduced by the General Coun-
sel, for December 1957, January, February, and December 1958, January, February,
and December 1959, and January 1960, show that there were also heavy accumula-
tions of snow during these periods. While it is unnecessary here to discuss at length
the figures contained in these weather reports, it is significant to note that during
10 See Drennon Food Products Co., 122 NLRB 1353, 1356.
21 Ibid.
STANDARD INDUSTRIES, INC., AGGREGATE DIVISION 333
January 1960 there was an accumulation of 2 inches of snow on the ground on the
17th;,and that in January 1959 there had been accumulations on 2 successive days of
4 inches, which exceeded the accumulation during the critical period in this case.
Also, various employees 12 testified that though they had been working at the
Respondent's quarry for a number of years, they could not recall any time, including
January 1959, when the plant had been shut down because of the weather for any
period longer than a day or two. Additionally on cross-examination neither Super-
intendent Courtney nor Division Manager Moubry could recall that there had been
a period of closedown because of the weather at any other time for as long as 4 con-
secutive days.
Respondent's payroll records reveal that some of the employees of the East Quarry
worked during the closedown period. At least some of these employees were union
adherents who walked out when the strike was called on February 24. These records
also show that there was no closedown at the Asphalt Plant, the Sand Plant, the
Phillips Quarry, or other parts of the Aggregate Division, except for the first 3 days
of the alleged lockout period. In each of these cases Division Manager Moubry
explained that the weather was not as great a factor in production as it was at the
East Quarry. With regard to the reasons the Phillips Quarry worked for the greater
part of the time during which the East Quarry was closed down, Moubry testified
that the material there produced consisted of stone that contractors could use even
in bad weather unlike the East Quarry aggregate which could not be used in con-
struction work during bad weather.
With regard to the defense that the Respondent had accumulated large stock-
piles of aggregate material for which there was no ready market, Respondent's Di-
vision Manager Moubry testified that approximately 6 weeks prior to the events
herein J. D. Metcalfe, vice president of the Respondent, had severely criticized him
for permitting the accumulation of excessive stockpiles of products of the East
Quarry. Moubry also testified that an expansion program instituted some months
earlier had raised production at the East Quarry from approximately 500 tons an hour
to well over 900 tons an hour and that this had contributed greatly to the excessive
accumulation of aggregate. Moubry further testified that again on February 7, 1960,
approximately a -week before the alleged lockout commenced, Metcalfe became
hostile toward Moubry and repeated the necessity for curtailing costs and reducing
stockpiles. Vice President Metcalfe's testimony corroborated the testimony of Mou-
bry to the foregoing effect and he further testified that he had been in Tulsa for ap-
proximately 41/2 years; that February 1960 was by far the worst month, weather-
wise, that they ever had; that, therefore, contractor activity during that period was
at a very low ebb. In support of the testimony of Moubry and Metcalfe the
Respondent's production records were produced. These records reveal that sales
for the period from February 15 through 24 were very slow and that during that
period the sales had reduced the stockpiles by only 16,624 tons. Moubry further
testified that if production of 900 tons an hour had continued, the Company would
have produced far in excess of the amount necessary for the small sales during the
closedown period. Moubry also testified that in his opinion all the material sold in
January 1960 could have been produced in 10 to 14 days.
The General Counsel on the other hand introduced evidence to show that just
prior to the closedown period Lendel Hall and Ronnie Thompson were hired by
the Respondent as East Quarry production employees.13 He also introduced the
evidence with regard to the interrogations, threats, and coercion, which has thereto-
fore been discussed and disposed of in sections C and D, above.
F. Conclusions as to the alleged lockout
Although, according to the official weather reports, there was snow on the ground
on February 15 and 16, and although the East Quarry probably would not have been
worked in any event on those days, I do not believe that weather was a factor in the
closedown beyond February 17. In so concluding, I rely on the testimony to the
effect that prior weather closedowns, even when the weather reports show that the
snow was heavier than during the critical periods herein, had never lasted for more
than a day or two and on the admissions by Division Manager Moubry and Super-
intendent Courtney that they could not recall a period when the East Quarry had
closed down for weather for as long as 4 days. I also rely upon the fact that the
Phillips Quarry was worked after February 17. In this connection, I find Moubry's
12 Carl Foreman, Eual Ford, Lester Autry, and L. R. Mitchell.
111 find it unnecessary , as hereinafter discussed , to determine whether Hall was actually
fully hired
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
explanation as to why the weather did not have as great an effect on operations at the
Phillips Quarry as at the East Quarry, to be entirely inadequate in that it dealt with
the consumption of Phillips Quarry products but did not explain how Phillips Quarry
stone could be quarried and worked while East Quarry stone could not. I there-
fore conclude that after February 17, the continuation of the closedown at the East
Quarry was due to factors other than the weather.
The Respondent 's contention that excessive stockpiles of products of the East
Quarry constituted a major cause of the closedown requires considerable analysis.
On the face of the Respondent 's production records, as buttressed by the testimony
of Division Manager Moubry and Vice President Metcalfe , there is presented a not
unusual situation of a falling market at a time when production is at an all-time high.
Such conditions normally bring about a cutback of production . But further
consideration of all of the evidence results in a different picture . Thus, I can-
not help but be impressed by the fact that just prior to the closedown,
the Respondent hired Ronald Thompson and, at least considered hiring Lendel Hall,
as additional production workers at the East Quarry . If, indeed , the Respondent
intended to close down because of overproduction , the hiring of additional production
employees just before the closedown was effectuated presents an unexplained
inconsistency.
Nor can I accept as valid the explanation by Moubry that he decided to close
down the East Quarry to cut back on production only when there was bad
weather, when, according to his own testimony, Vice President Metcalfe warned
him about overproduction as long as 6 weeks prior to the beginning of the close-
down and the effects of the newly instituted production methods which increased
East Quarry production from 500 to 900 tons per hour were admittedly felt much
earlier . In this connection , Moubry testified that in his opinion all of January sales
could have been produced in about 14 days. Yet, knowing all this, and in the face
of instructions from Metcalfe , Moubry waited 6 weeks to shut down until the very
next workday after the day he learned of the Union 's organizing activity . In addi-
tion, although Metcalfe testified that during February 1960, the construction industry,
the Respondent 's main customer, was virtually at a standstill because of the severe
winter weather , the Respondent offered no testimony to show whether in prior years
it had shut down during the winter months when weather must have had an equally
devastating effect upon the Respondent 's market.
Furthermore, commencing with February 25 through March 1 , 1960 , the Respond-
ent sent letters to virtually all of the employees, both those who walked off the job on
the 24th and those who were not given work during the closedown period , requesting
each to return to work by a given date or be replaced . 14 Certainly there is an un-
explained inconsistency presented if the Respondent 's stockpiles were as excessive
as its vice president and division manager testified , and its sales during the closedown
period as poor as its records show . This would have resulted in a condition at the
end of the closedown period very little improved over that which prevailed before
the closedown . Yet the Respondent claims it had to shut down on February 15 to
curtail production and approximately 2 weeks later, with no appreciable reduction
of the stockpiles, it asked virtually all the employees to return to full production.
Additionally , although there is no evidence in the record that the Respondent knew
all of the men who were active in the Union, I believe it significant that Arvil Kyles
and Carl Foreman who worked part of the day on Monday, February 15, and were
laid off soon after they admitted to Superintendent Courtney that they had signed
union cards, were not called back to work during the closedown period although
others who were not known to the Respondent to be active in the Union did work
during the period . For example , Eual Ford, although a union adherent , worked
almost all of the days during the closedown period. But, the record shows the
Respondent 's assumption was that Ford was not a union adherent and was not active
in the Union. In fact, Courtney expressed surprise on February 19 that Ford was
going to the union meeting. This indicated that the Respondent was under the im-
pression that Ford was not in favor of the Union and would not join it.
Also of significance, is the complete absence in the record of any testimony that
any supervisor told any employee during the shutdown that overproduction and
the necessity to reduce the stockpile were the reasons therefor . Yet the record
presents ample testimony that the employees were told that the closedown was
caused by bad weather and, as heretofore found , that the employees would not
work until they forgot about the Union.
24 According to the record Carl Haddock, Billy G. Hargrove, William L Moffit, and
Delbert Watkins were not sent letters.
STANDARD INDUSTRIES, INC., AGGREGATE DIVISION 335
Finally, and most important , in my opinion , those threats by Division Manager
Moubry , Superintendent Courtney , and Foreman Garner that there would be no
work until the employees forgot about the Union , reveal the underlying motivation
for the closedown . In the context of the threats the snow is revealed as a fortuitous
circumstance which offered to the Respondent a pretext for closing down. As for
the alleged excessive stockpile , the threats serve to explain why the Respondent
failed to take any action with regard thereto until the Respondent learned of the
Union's organizational activity. Thereupon, the Respondent, took immediate action.
Accordingly, I find that Respondent, in order to dissipate the union membership
and to discourage union activity among its employees promulgated and continued
to effect a lockout of its employees and that by this conduct the Respondent violated
Section 8 (a) (3) and (1) of the Act.
I further find, however , that even had the Respondent not instituted a lockout
on February 15, 1960, it would have closed down because of the inclement weather
on February 15, 16, and 17.
G. The nature l of the strike
Robert E. Ellis credibly testified that on Friday, February 19, a meeting of
the employees was called by the Union which many employees attended . The men
voted for a committee consisting of L. R . Mitchell , Thomas Medlen , Ellis, and
another employee. The committee was charged with the responsibility of going
to the Company and demanding that the lockout be ended and the Union granted
recognition.
On February 22, the committee, with O. W. Clarke, the Union's business agent,
called upon Division Manager Moubry at his office at the East Quarry and presented
him with the demands . Moubry refused , among other things stating that he was
not authorized to deal with the Union; that they would have to speak to someone
higher in authority. He also denied that there was a lockout , maintaining that
the weather was the cause of the closedown.
Vice President Metcalfe testified, without contradiction, that on February 24,
when he returned from a business trip, he was given a message that O . W. Clarke
had called. He immediately telephoned Clarke who demanded recognition. Then
Metcalfe informed Clarke that he would have to arrange a meeting with the union
representatives, the Company's management people, and company counsel. How-
ever, before any meeting could be arranged , in fact, on that very day , the strike
was called and a picket line formed.
It is clearly inferable from the credited testimony of Ellis and from the events
preceding the strike and, I find , that the strike was caused , at least in part, by the
lockout and was called for the purpose of causing the Respondent to give the
locked-out employees their former jobs. I further find that the strike had the
additional purpose of forcing recognition of the Union upon the Respondent.
However, as heretofore noted, commencing on February 25, the day after the
strike started , the Respondent sent notices to a separate group of the striking and
locked-out employees each day, notifying them that the Respondent was continuing
production and requesting each employee to return to work by several days there-
after or be replaced . The last group of employees were sent notices on March 1.
Only four employees, Carl Haddock, Billy G. Hargrove, William L. Moffit, and
Delbert Watkins , were not sent notices. The record does not show why these four
were overlooked but neither is there anything which would tend to show that these
employees were singled out for special treatment . 15 I conclude that the failure
to send them notices to return to work was due to oversight on the part of the
Respondent . In any event , I conclude that by sending the notices and offering
the employees reinstatement to their former positions the Respondent intended to
and did effectively end the lockout generally when , on March 1 , it sent notices to
the last group of employees to return to work . However , as the Respondent failed
to come forward with any explanation as to why the four employees named above
were not sent notices , I find that the effect of the lockout did not end as to them.
I further find that after March 1, the continuing strike was for the purpose of
recognition only. I also find that with the end of the lockout , the unfair labor
practice aspect of the strike came to an end and that from March 1, 1960, the
strike was converted to an economic strike and the participants , who refused to accept
the Respondent 's offer, became economic strikers whom the Respondent could law-
fully replace without obligation to reinstate.
ss The record does not show that these four individuals were particularly active in the
Union's organizational activities.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 and have led to labor disputes burdening and
obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent discriminated against its employees by locking
them out from February 18, 1960, I will recommend that it be ordered to offer
immediate and full reinstatement to their former positions to Carl Haddock, Billy G.
Hargrove, William L. Moffit, and Delbert Watkins,is without prejudice to any privi-
leges or prerogatives previously enjoyed, and to make them whole for any loss of
earnings they may have suffered because of the discrimination against them, by
payment of a sum of money equal to the amount they normally would have earned
as wages from February 18, 1960,17 to the date of reinstatement, less their net
earnings during said period, with backpay computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Company, 90 NLRB 289.
With regard to all other employees who were locked out but who did not accept
the Respondent's offer of reinstatement, 18 I will recommend that the Respondent be
ordered to make them whole for loss of any earnings they may have suffered
because of the discrimination, by payment of a sum of money equal to the amount
they normally would have earned as wages from February 18, 1960, to and including
March 1, 1960, the date the notices offering reinstatement were sent to the last
group of employees and which I have found to be the date the lockout ended,
less their net earnings during that period.19 I will also recommend that the Respond-
ent make available to the Board, upon request, payroll and other records to facilitate
the determination of the amounts due under this recommended remedy.
As the lockout of employees because of their union activities goes to the very
heart of the Act, the commission of similar and other unfair labor practices
reasonably may be anticipated. I shall therefore recommend that the Respondent
be ordered to cease and desist from in any manner infringing upon the rights guar-
anteed to its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. By locking out its employees the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
their rights guaranteed to them under Section 7 of the Act, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a)( 1) of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
19 The four employees to whom notices offering reinstatement were not sent and as to
whom, I have found, the effect of the lockout did not end
17 As I have found that there would have been no work because of the weather on
February 15, 16, and 17, I do not recommend backpay for that period
18 At the hearing the parties stipulated to the employees to whom each notice offering
reinstatement was sent.
19 At the hearing, the Respondent stipulated to a list of employees who lost work during
the closedown period and also agreed to the dates listed thereon which the men did not
work.