Terry Industries, Inc.

National Labor Relations Board - Board Decisions

Aug 16, 1955

113 N.L.R.B. 707 (N.L.R.B. 1955)

TERRY INDUSTRIES, INCORPORATED 707
our hourly rated jobs in determining the point range for such jobs of employees
in said appropriate unit.
The bargaining unit is:
All employees at our Chicago, Illinois, plant , excluding all full-time manual
welders, cutters , and apprentices in department A-3, salesmen , office em-
ployees, guards , executives , and all supervisors as defined in the Act.
TAYLOR FORGE AND PIPE WORKS,
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.
Terry Industries , Incorporated and American Federation of
Labor. Case No. 39-CA-451. August 16, 1955
DECISION AND ORDER
On April 12, 1955, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent 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 copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain unfair labor practices
alleged in the complaint and recommended that those allegations of
the complaint be dismissed. Thereafter, the Respondent filed excep-
tions to the Intermediate Report and a supporting brief and argument.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the brief and argument, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Terry Industries, Incorpo-
1 We note a minor inconsistency in the Intermediate Report, which does not, however,
affect the correctness of its conclusions and our concurrence therein . At one place, the
Trial Examiner stated that Hem, 1 of the 7 dischargees involved herein, was working on
the third shift and that the other 6 dischargees had recently been transferred to the first
shift , at another place , obviously referring to about the same time , he stated that IIetzer
was the only 1 of the 7 working on the third shift. The record supports the latter find-
ing, and the Intermediate Report is corrected accordingly.
113 NLRB No. 82.
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rated, San Antonio, Texas, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in American Federation of Labor,
or any other labor organization of its employees, by discriminating in
regard to the hire and tenure of their employment or any term or
condition of employment.
(b) Conditioning employment upon the signing of a petition re-
pudiating union activity.
(c) Threatening to cut wages, to require a 4-year apprenticeship,
and to move the plant if a union should come into the plant.
(d) In any other manner, interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist American Federation of
Labor 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 and all such activities, except
to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment,
as authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Omer S. Bradshaw, Charles Edward Hem, Harold
Harlan Hetzer, George Eugene Laidley, James C. Lewallen, R. W.
Ormand, and Stanley L. Wright, immediate and full reinstatement to
their former or substantially equivalent positions without prejudice
to their seniority or other rights and privileges, and make them whole
in the manner set forth in the section of the report entitled "The
Remedy" for any loss of earnings they may have suffered by reason
of the Respondent's discrimination against them.
(b) Upon request make available to the Board or its agents for
examination and copying all payroll records, social-security payment
records, timecards, personnel records and reports, and all other records
necessary to determine the amount of back pay due.
(c) Post at its plant at San Antonio, Texas, copies of the notice
attached hereto and marked "Appendix."' Copies of said notice, to
be furnished by the Regional Director for the Sixteenth Region, shall,
after being duly signed by the Respondent's authorized representa-
tive, be posted by the Respondent immediately upon receipt thereof
and maintained by it for sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken to insure that
2 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
TERRY INDUSTRIES, INCORPORATED 709
said notices are not altered, defaced, or covered by any other material.
(d) Notify the said Regional Director in writing, within ten (10)
days from the date of this Order, what steps the Respondent has taken
to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it
alleges that the Respondent engaged in unlawful interrogation and in
surveillance of union meeting places and activities.
CHAIRMAN FARMER took no part in the consideration of the above,
Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in the American Federa-
tion of Labor, or any other labor organization of our employees,
by discriminating in any manner with regard to their hire and
tenure of employment, or any term or condition of employment.
WE WILL NOT condition employment upon the signing of a peti-
tion repudiating union activity.
WE WILL NOT threaten to cut wages, to require a 4-year appren-
ticeship, and to move our plant if a union should come into the
plant.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist American Fed-
eration of Labor, or any other labor organization, to bargain col-
lectively 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, and to refrain from
any or all of 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 by Sec-
tion 8 (a) (3) of the Act.
WE WILL offer to the employees named below immediate and full
reinstatement to their former or substantially equivalent posi-
tions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination.
Omer S. Bradshaw Charles Edward Hem
Harold Harlan Hetzer George Eugene Laidley
James C. Lewallen R. W. Ormand
Stanley L. Wright
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain or to refrain from
becoming or remaining members of the above-named Union or any
other labor organization. We will not discriminate in regard to hire
or tenure of employment or any term or condition of employment
against any employee because of membership in or activity on behalf
of any such labor organization.
TERRY INDUSTRIES , INCORPORATED,
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
Upon charges duly filed by the American Federation of Labor, herein called the
Union , the General Counsel of the National Labor Relations Board , herein called the
General Counsel and the Board, respectively, by the Regional Director for the
Sixteenth Region ( Fort Worth , Texas ), issued its complaint , dated December 1, 1954,
against Terry Industries , Incorporated , herein called the Respondent . With respect
to the unfair labor practices , the complaint , as amended , alleges that the Respondent
had engaged in unfair labor practices within the meaning of Section 8 (a) (1) and
(3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended,
61 Stat. 136, herein called the Act, by discharging seven named employees on or
about September 26, 1954, and refusing to reinstate them , upon their application
on or about October 4, 1954, because of-their union or concerted activities, and by
certain specified coercive and threatening statements . Copies of the charge, com-
plaint , and notice of hearing were duly served upon the Respondent and the Union.
In its answer , duly filed thereafter , the Respondent admits the allegations concerning
its business operation and the status of the Union as a labor organization , denies
the commission of any unfair labor practices , and alleges that the employees were
discharged and refused reinstatement for cause.
Pursuant to notice , a hearing was held on February 1 to 3, 1955, inclusive, at San
Antonio, Texas. All parties were represented at the hearing , and afforded full op-
portunity to be heard, to examine and cross -examine witnesses , to introduce relevant
evidence , to present oral argument at the close of the hearing, and thereafter to file
briefs as well as proposed findings of fact and conclusions of law. Subsequent to the
hearing, the Respondent and the General Counsel filed briefs which I have fully
considered.
Upon the entire record in the case , and from my observation of the demeanor of
the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges, the answer admits, I and I find that the Respondent , a Texas
corporation with its principal office and place of business at San Antonio, Texas, owns
and operates a plant at San Antonio, Texas, where it is engaged in the chrome plating
of aircraft engine parts; that , during the 12-month period preceding the date of the
complaint, the Respondent performed services pursuant to United States Govern-
ment contracts for the United States Air Force , for which services the amount re-
ceived by the Respondent under these contracts exceeded $350,000; and that all
services performed pursuant to these Government contracts are vital, and directly
related, to the national defense of the United States.
Upon the foregoing admitted facts, I find that the Respondent is engaged in com-
merce within the meaning of the Act and that it will effectuate the policies of the
Act for the Board to assert jurisdiction in this proceeding.'
1 Maytag Aircraft Corp ., 110 NLRB 594.
TERRY INDUSTRIES, INCORPORATED 711
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find, that American Federation
of Labor is a labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Discrimination in hire and tenure of employment
1. Chronology of events
The event upon which the General Counsel relies in support of his complaint,
occurred during the period from September 24 to October 4, 1954.
a. Friday, September 24-commencement of self-organization
Due to dissatisfaction concerning working conditions, particularly the failure to
receive time and a half for overtime, employees at the Respondent's plating shop
had been discussing the need for organizing a union for several months prior to Sep-
tember 24. Finally, on the morning of September 23, George Eugene Laidley and
R. W. Ormand, two of the employees against whom the complaint alleges that the
Respondent discriminated, took the initiative in that direction. Laidley and Ormand
discussed the situation that morning and decided that, during the lunch hour, Laidley
should contact A. F. Cadena, the general organizer for the American Federation of
Labor in that area. Laidley called Cadena and a meeting of the employees was
arranged to be held the next day at 5 p. m. at Andy's cafe, which was located about
4 blocks from the plant. Meanwhile Laidley talked to all the men about attending
this meeting for the purpose of organizing a union.
About 25 employees, including the 7 against whom the complaint alleges that the
Respondent discriminated,2 attended the meeting at Andy's cafe at 5 p. in. on Friday,
September 24. Those in attendance from the first shift, which ended at 4:30 p. m.,
went to the meeting directly from work. Cadena addressed the group and explained
the purposes of a union. Some of the men stated that they had not been receiving
time and a half for overtime and wanted to know if they could get time and a halt
if they were to form an organization. Cadena told them that they should have re-
ceived time and a half whether or not they were organized. The result of the meet-
ing was that all 25 employees in attendance signed A. F. of L. authorization cards.
Laidley arranged to have another employee meeting at Andy's cafe at 8 o'clock
that evening. About eight employees who attended this meeting also signed A. F.
of L. cards.
b. 12.45 a. in. Saturday, September 25-General Manager Boyett calls
President Terry long distance
Roy Terry, president of the Respondent, admitted that he was in Kilgore, Texas,
on Friday and Saturday, September 24 and 25, and that he returned to the plant
Sunday, arriving there in the morning. The record contains a list, furnished by the
Southwestern Bell Telephone Company, of all long-distance telephone calls made
from the Respondent's plant from September 22-26, 1954, inclusive, indicating the
date and time of each call, the party called, the duration of the call, and the charges.
This list shows that 2 calls were made from the Respondent's plant to Mr. Terry at
Kilgore, Texas, on Saturday, September 25; 1 was at 12:45 a. in. for 26 minutes at a
charge of $9.10 and the other was at 12:15 p. m. for 12 minutes at a charge of $5.75.
C. B. Boyett, the Respondent's general manager in direct charge of the plating
shop where the seven dischargees were employed, emphatically and repeatedly de-
nied, both on direct and cross-examination; that he called Mr. Terry at Kilgore at
12:45 a. in. Saturday, September 25. He further testified that he never called Mr.
Terry at Kilgore and that he would have remembered these calls if he had made
them. Testifying immediately after Boyett, Terry stated that he did not remember
whether he talked to Boyett by telephone at 12:45 a. m. Saturday, September 25.
However, after some probing on cross-examination, he finally admitted that Boyett
did call him at that time and stated that he did not know why Boyett testified to the
contrary. He further testified that he did not recall what they talked about in that
conversation but that "it's possible" that "one of the things" discussed related to a
secret project which they had succeeded in perfecting about that time. He denied
that Boyett informed him "about labor activities." -
a George Eugene Laidley, R. W. Ormand, Omer S. Bradshaw, Charles Edward Hem,
Harold Harlan Hetzer, James C Lewallen, and Stanley L. Wright
379288-56-vol. 113-46
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that Boyett made the two long -distance calls in question and talked to
Terry at 12 : 45 a. in . and 12 : 15 p. in . Saturday , September 25. I further find, for the
reason hereinafter detailed , that Boyett informed Terry about the employee organ-
izational activities at the plant.
c. Saturday , September 25-availability of overtime for the seven dischargees 3
The plating shop operated 7 days a week with three shifts of 8 hours each. At
that time, Hem was working on the third shift and the other six dischargees had
recently been transferred to the first shift. When Laidley, Wright, and Bradshaw
reported at the plant on Saturday morning ready to go to work on their shift at 7:30,
they each found their timecard missing from the rack. They thereupon spoke to
Boyett who told them that since they had already worked 40 hours that week they
should take 2 days off because no overtime was available. Hetzer, who at that time
was the only, I of the 7 working on the third shift, punched in at 11:30 p. m. Fri-
day and was at work when he was called into Boyett's office after midnight. Boyett
told Hetzer that he already had 40 hours, that Boyett could not give him any more
overtime for that week, and that he would appreciate it if Hetzer would punch in
and go home. In response to Hetzer's question as to when Boyett wanted him to
come back, Boyett told him to come back at midnight Sunday.
Ormand, Lewallen, and Hem worked their regular first shift on Saturday, as they
had not yet completed 40 hours for that week. During the day Hem asked Boyett
it he wanted him to work the next day, Sunday, which was normally Hem's day off.
Boyett replied that if Hem wanted to, Boyett would appreciate it and could use him.
d. Sunday-Monday, September 26-27-employment of the seven dischargees
is terminated
Boyett admitted that on Sunday, September 26, he went to the homes of George
Eugene Laidley, Stanley L. Wright, and Harold Harlan Hetzer and discharged them,
giving each of them his check; that he discharged R. W. Ormand, James C. Lewal-
len, and Charles Edward Hem while they were at work that same Sunday; that he
discharged Omer S. Bradshaw when he reported for work Monday morning; and
that the checks foi all seven had been prepared Sunday morning prior to effecting
the discharges. The only dispute arises over what Boyett told these men at the
time he discharged them.
With respect to Laidley: As previously found, Boyett had told Laidley to take off
Saturday and Sunday so that he would not be working overtime. Laidley testified
that he was standing on the front porch of his home on Sunday afternoon when
Boyett came up to him, handed him his check, told him he was cutting down on pro-
duction and would not need his services anymore, and walked off.
Boyett testified that he told Laidley he was discharging him for destroying equip-
ment, for,slowing down on production, for his increased reject rate over the last 30
to 35 days, and for his failure to follow instructions and adhere to set procedures.
Laidley specifically denied the foregoing testimony of Boyett.
With respect to Wright: As previously found, Boyett had told Wright to take off
Saturday and Sunday so that he would not be working overtime. Wright testified
that Boyett came to his house Sunday afternoon, handed him his check, and told
him they were cutting down on production and did not need his services any more.
When Wright inquired if that was the real reason, Boyett replied that it was and
asked Wright if he wanted it in writing. Wright stated that he did not believe it
would be necessary. Wright further testified that they were standing at the front
door, that his mother was in the same room, and that his father was lying on a bed
in an adjoining room near the window. He further testified that Boyett had arrived
in a company truck.
Eugene C. Wright, the father of Stanley Wright, corroborated Stanley Wright's
testimony concerning the conversation with Boyett. Eugene Wright testified that he
was lying on a bed near an open window within 15 feet of where Boyett and Stanley
Wright were standing by the front door of the house under a little awning, that the
door from his room into the hallway was open, that he overheard the conversa-
tion, and that as Boyett walked off to get into his truck he could see Boyett's face
and he knew Boyett "pretty well" because he had worked at the shop.
Boyett testified that he told Wright he was discharging him for not being coopera-
tive , failing to follow instructions , his unsatisfactory method of handling the men
on his shift , his unsatisfactory amount of work , and his slowdown of production
over his whole shift.
3 The findings in this section are based on the undenied and credible testimony of the
employees involved.
TERRY INDUSTRIES, INCORPORATED 713
With respect to Hetzer: As previously found, Boyett had told Hetzer, who was
working on the third shift, to punch out shortly after midnight Friday so as not to put
in any overtime and to report back at about midnight Sunday. Hetzer testified that
he was working on his car in front of his home Sunday afternoon when Boyett came
along and told him that he had brought Hetzer's check to save him a trip down
to the plant that night and that Hetzer would not have to punch in. Hetzer asked
what the trouble was. Boyett replied that he had a reduction in force because he
was not awarded a certain contract, that he had to let some of the men go, and
that it had nothing to do with Hetzer's work which was satisfactory. Hetzer further
testified that his wife and a neighbor, Yarborough, were there at the time and that
he introduced Yarborough.
Milton J. Yarborough testified that he lived across the street from Hetzer, that
on Sunday afternoon, September 26, Hetzer was working on his car in front of his
house, and that Yarborough was standing there watching him when Boyett drove
up. Yarborough corroborated Hetzer's version of his conversation with Boyett and
testified that he was introduced to Boyett.
Boyett testified that he told Hetzer that he was discharging him because of his
nervousness and excitability which made it too dangerous "to continue working him
around hazardous equipment for the simple reason that he might become excited,
hurt himself." Boyett denied that anyone else was present when he spoke to
Hetzer.
With respect to Hem: As previously found, Boyett had told Hem on Saturday
that he could use him and would appreciate it if he would come in on Sunday.
Hem was then working on the first shift from 7:30 a. in. to 4:30 p. m. Hem
testified that about 3:30 or 4 p. in. on Sunday Boyett called him into the office,
stated that he failed to get certain contracts on which he had planned, that he
was going to cut down production and reorganize the shop, and that he would no
longer need Hem's services. In response to Hem's inquiry as to whether his work
was satisfactory, Boyett replied that there was no complaint about his work and
handed him his check.
Boyett testified that he told Hem he was discharging him "due to him slowing
down the production, reject rates continually rising and increasing, that I couldn't
have people working for me under those conditions, and that I didn't have need
for his services any longer."
As Hem went through the shop to go home, he met Terry and asked why he had
been laid off as he thought his work was satisfactory. Terry replied that Hem's work
was satisfactory, that he had left Boyett in charge and had to go along with him,
and that he had heard from Boyett that "there was some agitation in the shop"
and "he wanted to cut that down." Terry did not deny having made the above
statements attributed to him by Hem. Under the circumstances, I credit the above
undenied testimony of Hem.
With respect to Lewallen: Lewallen, who was also working on the first shift, testi-
fied that about 3 p. in. Sunday he was explaining to a new man how to read his
time for putting the plating on the cylinder when Boyett came over and called him
into the office. Boyett gave him his time and told him his services were no longer
needed, that he had been late to work several times, and had showed a disinterest
in his work.
Boyett testified that he told Lewallen he was discharging him because "he had con-
tinuously showed an attitude of horseplay," "he wouldn't stay at his assigned work
station," "wouldn't report for work regularly," and "wasn't dependable."
With respect to Ormand: Ormand, an inspector, testified that on Sunday after-
noon while he was at work inspecting cylinders, Boyett called him into the office,
gave him his check, and told him "we know that you're dissatisfied with your
wages, and we're not prepared to give you a raise so we don't need your services
any longer." When Ormand remonstrated that he was not being given any notice,
Boyett replied that when men quit they do not give him any notice. Ormand re-
minded Boyett about his statement, at the time Ormand was hired, that the job was
open for a plating foreman. Boyett replied that "it's still open" and told him that
he was not being let out because of his work which was satisfactory.
Ormand admitted that about a month prior to that time he had asked Boyett for
a raise and was told to see Terry, that he spoke to Terry, and that Terry told him
that Boyett takes care of that and to remind Boyett to talk to Terry about it and
they would see what could be done.
Boyett testified that at the time of Ormand's discharge he told Ormand that he
had information that Ormand was purchasing equipment and making "definite plans
to install" a competitive shop, that Ormand "emphatically stated that it was so," that
Boyett then told him that it was not "fair for me to continue working an employee
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
up to the time that he was able to open up a competitive plating shop" and that there-
fore Boyett no longer had any need for his services.
Ormand specifically denied the foregoing testimony of Boyett.
With respect to Bradshaw: As previously found, Boyett had told Bradshaw to take
off Saturday and Sunday so that he would not be working overtime. On Sunday,
September 26, Bradshaw moved to another residence. When Bradshaw reported for
work Monday morning, September 27, his time card was still missing from the
rack. He sought out Boyett who called him into the supply room and handed
him his check. By that time Bradshaw had already learned what had happened
to the other six dischargees. As Bradshaw started to leave he asked Boyett
why he was being fired. Boyett replied that the reason was that "there had been
somebody around here demanding to come into the plant to see you and we don't
like that."
Boyett testified that he told Bradshaw he was being discharged because "his
efficiency had not increased since he had been employed up to a certain point."
Boyett did not impress me as a reliable and trustworthy witness. He testified in
a manner which leads me to conclude that he was reluctant to disclose facts which
might be regarded as unfavorable to the Respondent's defense. In several important
respects , his testimony was at times inconsistent and at other times at variance with
that of other witnesses for the Respondent. For example, while Terry admitted
that Boyett called him long distance at Kilgore, Texas, at 12:45 a. in. Saturday,
September 25, as previously found, Boyett repeatedly and emphatically denied that
he had ever called Terry at Kilgore and testified that he would have remembered it
if he had. In another instance, discussed in detail infra, he testified that in most
cases it was possible to ascertain the specific individual responsible for a reject, where-
as Respondent's witness Owen, an inspector, testified that the faulty work could not be
pinpointed to a single individual. Again, although testifying that among the reasons
given to some of the men for their discharge was that they were "slowing down on
production" and had an "unsatisfactory amount of work," he subsequently testified,
when recalled by the Respondent a few days later, that no man was discharged for
"not doing enough work." With respect to his knowledge of union activity at the
plant, he testified that he first learned about it at the meeting of the seven dischargees
with Terry on October 4, as hereinafter discussed in detail, and then agreed with the
leading questions propounded by Respondent's counsel to the effect that on October
4 he was already aware of the union activity as a result of an earlier call from AFL
Representative Cadena concerning representation of the employees. Boyett's lack of
candor is further indicated, in my mind , by his evasiveness and failure to understand
the General Counsel's questions with respect to the .050 of an inch oversize on the
R-975 cylinders. Only after testimony to this effect by the General Counsel's wit-
nesses on rebuttal appeared to be damaging to the Respondent's defense, did Boyett
admit on surrebuttal that there was such an oversize on the R-975 cylinders.
On the other hand, I was favorably impressed by the seven dischargees who testi-
fied in a convincing and sincere manner, without significant contradictions or incon-
sistencies . The testimony of Wright and Hetzer was corroborated by another credible
witness in each instance .4 Under all the circumstances, and based upon a careful
and searching observation of the witnesses while testifying, I do not credit Boyett's
testimony and find that, in substance , Boyett made the statements attributed to him
by the seven dischargees.
e. Monday, September 27-Cadena calls Terry
Union Representative Cadena testified that on Monday morning, September 27,
he called Terry on the telephone and the following conversation ensued. Cadena
first introduced himself as the representative of the American Federation of Labor
and then stated that if Terry was not too busy he would like to have an appointment
with him. Terry replied that he was too busy that morning, that he knew what
Cadena wanted, and that Cadena should see his attorney, Mr. Gardner, at the
Alamo National Bank Building. Cadena accordingly had a conference with At-
torney Gardner that afternoon at which time he discussed the discharges of the
seven men.
Terry admitted that he received a telephone call from Cadena but could not re-
member the date or what Cadena said. He testified that he "presumed" that Cadena
stated who he was and remembered that he "said something about a labor election
4I do not regard Yarborough's failure to identify Boyett in the hearing room as impair-
ing the trustworthiness of his testimony. As Yarborough had never seen Boyett on any
other occasion, either before or after the Sunday of September 26, his failure to recog-
nize him some 4 months later does not appear to me to be significant.
TERRY INDUSTRIES, INCORPORATED 715
and something that led me into referring him to Mr. Gardner and l don't remember
all the conversation."
Cadena denied that he said anything to Terry about any election.
I find that either version of the conversation indicates Terry's awareness at that
time of the existence of union organization at the plant.
f. Saturday, October 2-Laidley and Wright talk to Boyett and Terry
Laidley testified that he had the following conversation with Boyett on Saturday,
October 2, when he came back to the plant to turn in some locker keys. Laidley
asked Boyett what had happened. Boyett replied that nothing had happened and
that he was just cutting down on production. During the course of the conversation
Boyett stated that " the union is no good down here," "up north unions are pretty
strong and everything but down here the unions aren 't worth a hoot," and that "we
don't need the third man," and that "if the union went in he could cut our wages back
to 75 cents an hour" and "make us serve a four year apprenticeship."
Stanley Wright testified that he had returned to the plant Saturday, October 2,
to give Boyett his locker keys and that he was walking behind Laidley and Boyett
while they were talking. He testified that he "was not paying too much attention
to their conversation but it was pertaining to why we was fired." He remembered
Mr. Boyett saying, "we didn't need a third man in there" and that "we had been able
to get along without him before."
At that point Boyett called Terry over to talk to them. During the course of the
conversation Terry stated, according to the testimony of Laidley and Wright, that
he did not need "that third man," that he did not want a man in there to whom the
employees would tell their troubles and who would then in turn come to Terry, and
that any employee could always come and talk to him personally. Terry then out-
lined some plans for the introduction of a trust fund or profit-sharing plan for the
benefit of the employees.
As they started to leave, Laidley asked Terry how they could get back to work.
Terry replied that he was extending an "open invitation" to the men to come down and
talk to him.
Boyett testified that he remembered the time when Laidley came back to return
some property and that Stanley Wright was with him. He stated that the only con-
versation he had with Laidley at that time pertained to the return of his tools and
locker key. He specifically denied stating that the Union was no good or threatened
to cut wages back to 75 cents an hour and requiring a 4-year apprenticeship if the
Union came into the plant.
Terry admitted having a conversation at the plant with Laidley and Wright a few
days before October 4. He testified that Wright asked him why they were fired and
that he told them it was for inefficiency and slowing down production; that when
Wright stated they would like to go back to work, he told them they would have to
talk to Boyett as he does the hiring and firing; and that when Wright stated the 7
dischargees would like to see him, he replied that he would be happy to see them
individually, I at a time, but not as a group.
As previously found, I do not regard Boyett to be a credible witness. Terry was
a verbose and at times unresponsive witness and testified in a manner which con-
vinced me that he was not disclosing all the true facts. Moreover, Terry did not deny
the testimony that in a conversation in his office with Wright on October 4, discussed
below, there was a discussion of the "third man being in the shop" and that Terry
then stated that the Respondent had progressed "from a hole in the wall" to one of
the largest companies in the Southwest without the Union and he did not see why
they needed the Union now. Furthermore, at the meeting with the 7 dischargees
in Terry's office on October 4, also discussed in detail below, Boyett testified that
Terry was surprised to hear of any union activity at the plant, whereas Terry ad-
mitted that several days after the discharges the Government inspector told him about
"union activity out here or organizing a union," and that Cadena had also called
him about holding a "labor election." Under all the circumstances, I do not credit
the testimony of Boyett and Terry and find that, in substance, Boyett and Terry made
the statements attributed to them by Laidley and Wright.
g. Monday, October 4-meeting with Cadena
In view of Terry's "open invitation" to talk to the men, Laidley contacted the other
six dischargees on Sunday to see what the men wanted to do. They decided that they
would first confer with Cadena, the A. F. of L. representative. They met with Cadena
on Monday morning, told him about Terry' s willingness to talk to them, and asked
Cadena if they should meet with Terry about returning to work. Cadena told them
that they should "by all means go up and meet with Mr. Terry."
716 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
h. Monday, October 4-meeting with Terry
The seven dischargees left Cadena and went down to the plant to see Terry on Mon-
day morning, October 4. Terry told them that he was busy for a while and asked
them to go next door for some coffee and then to come back . As the employees.
left, Terry stopped Stanley- Wright, began talking to him and told him to sit down.
Terry told him, according to Wright's testimony, "about how we came from a hole=
in the wall on West Avenue to one of the largest plating companies in the Southwest
within a month's time, and we didn't have the union over there, so he didn't. see why
we needed it now." Wright further testified that:
We were discussing the third man being in the shop , and he asked me what I
wanted with the Union, and 1 made the statement that all I wanted was security.
He said he could fire us then for sabotage. He asked me why I didn't come talk
to him or Boyett about this, and I told him I wasn 't a stool pigeon... .
Terry admitted that when the men left for coffee, Stanley Wright remained behind
and they "talked a little while." He did not testify as to what they talked about and
did not deny Wright's testimony concerning their conversation. Under these circum-
stances, I credit the undenied testimony of Wright and find that Terry made the
statements attributed to him by Wright.
While Wright was still in Terry's office, the other six dischargees returned and
entered the office. Boyett was also present at that time. All seven dischargees testi-
fied that , in substance , the following statements were made during the course of the
conversation , although not necessarily in the same sequence:
Terry told them that he would talk to them one at a time but Laidley replied that
"we come as group as we would like to talk as a group." Laidley asked Terry if he
thought any one man was responsible for the "agitation and activity" that was going
on. Terry replied that he did not know anything about the union trouble until Boyett
had called him on the telephone the Friday night or Saturday morning before the
discharges and that he had spent $ 100 on telephone calls since this "union deal"
had come up. Laidley asked Boyett the same question and Boyett replied that there
had to be someone who "got this thing rolling." Lewallen asked Terry what they
would have to do to get back to work. Terry told them that he would have his
attorney draw up a petition "killing" or "cancelling" all union activities, that the mea
could sign it and circulate it through the shop for the other card signers to sign, and
that they could then immediately go back to work. As Terry reached for the tele-
phone, Lewallen told him to "wait just a minute, let's talk it over a little." Hem
stated that all this could have been avoided if Terry had talked to them before they
got laid off. Terry retorted, "Why should I come to you on my hands and knees.
This is my shop. I built it. I own it." Terry accused the men of "stabbing me in
the back" by organizing a union while he was out of town. Hem answered that they
"didn't stab him in the back" but that they just-wanted better working conditions.
Terry said he "didn't need a third man in there," that he built that shop up from a
"hole in the wall" to one of the biggest plating plants in the Southwest without the
"third man in there," and that he "didn't need him now." Terry also stated that if
the "third man" came in he would put in enough equipment to finish his contracts in
3 months and then move to another county. Either Terry or Boyett added that if the
Union came in, he could cut their wages back to 75 cents an hour and make them
serve a 4-year apprenticeship. Terry outlined a plan, which he had in mind, about
setting aside a certain sum of money in a trust fund which would be available for
the employees and their families to draw upon in case of emergencies . Lewallen
told him that they were family men and would like to grow with the Company and
that they needed a little more money once in a while. At one point during the meet-
ing, Hetzer asked why the had been laid off and Boyett replied that an innocent by-
stander can get "burnt" in a deal of this kind . The matter of signing the petition
"cancelling" the union activities as a condition of returning to work, was brought up.
about four times. At one of the times, when this was mentioned, the mail arrived.
Boyett left the room and returned with a letter which he threw on Terry's desk and
said , "It's too late for that now, here is your G- D- notice."
The meeting ended when Laidley-suggested that the men would discuss the matter
over a cup of coffee and let Terry know of their decision. - The seven men went next
door for coffee and decided against signing any paper "killing" the union activities.
Laidley, who was selected as their spokesman , reported their decision to Terry.
Laidley testified that "Terry didn't say much. Mr. Boyett said that it didn't make any
difference. Even though he had to put us back to work he could fire us within 24
hours for sabotage."
TERRY INDUSTRIES, INCORPORATED 717
Boyett testified as follows with respect to this meeting: Laidley, as spokesman,
wanted to know why they were fired. Terry replied that Boyett had given them
the reason at the time of the discharge . The men brought up the subject as to
whether their union activity had anything to do with it. Terry said, "Union? What
union are you talking about?" Terry asked Boyett if he knew anything about a union
and Boyett replied that he did not . Boyett testified that the "whole business " of sign-
ing a petition and going back - to work was suggested by Laidley and rejected by
Terry. According to Boyett, the statement was made that Terry and Boyett could
be forced to put the men back to work; whereupon Terry became angry, stated that
was impossible , and picked up his phone to call his lawyer to prove it when one of
the boys stopped him.
Boyett denied making any statement about cutting wages back to 75 cents an
hour and forcing them to go through a 4-year apprenticeship if the Union came in.
He admitted that Terry outlined some plan for a trust fund for the benefit of the
employees. He also admitted that during the course of the meeting the mail arrived
and he got a "piece of mail" which he turned over to Terry, stating "here's something
from the union organization through the mail." He admitted that "it 's possible" it
could have been the petition filed by Mr. Cadena. The parties stipulated that on
September 28, 1954, Cadena filed with the Board's Subregional Office a petition for
a representation election.
Terry testified as follows with respect to this meeting: The men said they wanted
to go back to work and he told them that would be up to Boyett. They wanted Terry
to sign a "guarantee they would be put back to work on the same job at the same pay
and assurance they wouldn't be fired again." That made him a little "hot" and he told
them he had not invited them there to bargain with him or dictate to him. Some-
thing was also said about them getting up a petition by the people to call off the
election . He did not remember all of the conversation.
Terry denied telling them that if they would sign a petition calling off the union
activities he would put them back to work. He also denied telling them that he
had received a telephone call from Boyett about the union activities or that he
would finish his contracts in 3 months and move to another county if the Union
came in. He stated that he "probably " did discuss an employee retirement plan.
The men denied that the matter of signing the petition as a condition of returning
to work was suggested by anyone in their group.
As previously found , the dischargees regarded the Union of sufficient importance
to them to warrant their seeking the advice of Cadena about whether they should
even talk to Terry by themselves. I cannot believe that immediately after voluntarily
meeting with Cadena, they would make a complete about -face and offer to abandon
the Union in their meeting with Terry. Moreover, Terry did not deny the
testimony of Wright concerning their conversation in Terry's office before the re-
maining six dischargees walked in , where Terry made similar statements about not
needing "the third man" and that he could fire them for sabotage. And as for
Boyett's testimony concerning Terry's surprised expressions at the mention of union
activity in the shop, the record shows, as previously found, that Terry had already
been apprised of union, organization at the plant by the Government inspector and
the telephone call by Cadena as the representative of the American Federation of
Labor. Under all the circumstances, and for the reasons previously stated in this
report, I do not credit the testimony of Boyett and Terry and accept the version
of the seven dischargees as to the statements made by Terry and Boyett and as
to what transpired in the meeting in Terry's office on October 4.
2. The Respondent 's defenses
Boyett and Terry testified as follows: Beginning in August 1954 and continuing
through September , there was an abnormal increase in the number of rejects of
prop shafts and crankshafts, which resulted in a reduction in the total number of
completed end items available for shipment. They were both concerned about it and
discussed the problem daily for a period of 30 to 60 days before the discharges.
Boyett diagnosed the problem as an operator error and discussed the personnel
with Terry. Boyett testified that Mr. Terry "ordered me to get rid of the people
giving me the trouble that I was having ' that was causing the rejects and was slow-
ing my production ." He had made up his mind about 3 or 4 weeks before Septem-
ber 26 that the dischargees were the individuals who had to be eliminated in the
interests of production and efficiency. He further testified that Terry had asked
him, on a number of occasions , when he was going to get rid of the people giving
him the trouble . On Sunday morning, September 26, Terry had returned to the
plant from Kilgore , Texas. They discussed production and the amount of com-
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pleted items available for shipment . Terry told Boyett to get rid of the people
holding down his production. When Terry stated that the girl was not available
to make out the checks, Terry replied that he would make out the checks, although
he did not know the proper tax deductions. Boyett gave Terry the names of the
seven dischargees , and, after discussing each case, Terry made out the checks and told
Boyett immediately to fire those who were there at work and to take the checks to
the homes of the others if he knew where they were located.
The Respondent also adduced the following testimony in support of its defense
that the dischargees were responsible for the abnormal increase in faulty shafts
with the consequent decrease in the number of completed end items: Owens, who
inspected the crankshafts and prop shafts produced on all three shifts, testified that
during the period from approximately August 15 to September 15 the rejects had
increased from a normal of about 20 per month to about 60 or 70, that these
rejects had been stored and were still awaiting to be overhauled at the time of the
hearing, and that since the discharge of the men in question the rejection rate had
decreased and production of completed end items had increased. Boyett also
read into the record production figures showing a decrease in the number of end
items for the months of August and September and an increase in the succeeding
months with a lower average number of employees.
In its brief the Respondent contends that the dischargees engaged in a deliberate
slowdown in production. Not only does the record fail to support this contention,
but Boyett testified that he "fired no man there for the amount of work he pro-
duced," and that "not doing enough work was not a reason" for the discharges.
While Boyett testified that he attributed the faulty work, resulting in the abnormal
amount of rejects, to the dischargees, Respondent's witness Owens, who inspected the
work of all three shifts, testified that it was not possible to "pin" the faulty work on
a rejected shaft "on any one employee." 5 Nor do the monthly production figures,
read into the record by Boyett, support the Respondent's position that the dis-
chargees were responsible for the increased rejects. The plant operated 7 days
a week on three shifts. Until 3 days before the discharges, six of the dischargees
were working on the third shift and Ormand, an inspector with an admittedly
satisfactory production record, on the first shift. As the production figures represent
the totals for all three shifts and are not broken down according to shifts, they
cannot be regarded as proof of a decline on the third shift. Moreover, although these
figures show that the total production of shafts for August declined about 40 percent
from July, they also show for the same month about a 40 percent increase in
the production of cylinders and about a 25-percent increase in the total number of
end items over July, an admittedly normal month. Also, the production figures
for September give no indication of how much of the decline occurred during the last
week of the month when the dischargees were no longer working and when their
replacements were being trained and admittedly were not producing at peak. Finally,
the figures of the total amount produced before and after the discharges do not
reflect an accurate basis for comparison and a complete picture of the situation
because the figures give no breakdown for the third shift nor show the total number
of man hours worked each month on the third shift.
On the other hand , the Respondent kept no records on the production or reject rate
of the individual employee. Boyett admitted that other employees also had rejects.
Owens, whom I regard as a neutral witness in this proceeding , testified that he believed
all three shifts were responsible for the abnormal increase in rejects and that he had
talked to Boyett about the work of all the employees in the plant , "not necessarily
pointing out one certain employee ." Boyett at all times had complete control of
the shop with the authority to hire and fire. He testified that he had selected these
men for discharge about 3 or 4 weeks before September 26. Yet, in August the pro-
duction of cylinders had increased about 40 percent and the total number of end
items had increased about 25 percent over July, which was a normal production
month . Moreover, at the stated time of his decision, Boyett could not have been
aware of the total number of rejects for the period from August 15 to September 15,
5 When this testimony was called to Boyett's attention , he sought to explain it away
by claiming that Owens testified that the reason he could not tell which employee was
responsible for the rejects , stockpiled for the period from August 15 to September 15,
was because the flow charts or worksheets were no longer on those shafts . However,
Owens did not so testify . On the contrary, his explanation was that the shafts are gen-
erally put into the tank by 1 shift and taken out by the next shift , with as many as 3 or
4 individuals handling a single shaft and initialling the worksheet, so that he could not
tell which individual was responsible.
TERRY INDUSTRIES, INCORPORATED 719
to which Owens testified. Despite Terry's prior instructions and urgings that Boyett
get rid of the people giving him the trouble and despite the fact that Boyett, accord-
ing to his testimony, had previously discussed with Terry the cases of Wright and Hem
and had ample opportunity to discuss the cases of the other men, the discharges were
delayed until September 26 and were effected in a precipitate and summary manner,
without prior warning or notice. Such evidence points strongly in the direction of an
intervening event as the precipitating and motivating factor in the discharges.
Boyett further testified that, except in the case of Ormand, he had several reasons
for discharging each of the men involved. As previously found, none of these
reasons were mentioned to the men at the time of their discharge. I will now turn
to the reasons advanced at the hearing for the discharge of each of the seven men.
George Eugene Laidley: Laidley worked on the honing machine. Boyett testified'
that he discharged him because he was an unsatisfactory worker, his reject rate had
increased, and for breaking a tool on his machine, a mandrel, "within a week" of his
discharge. He testified that he had talked to Laidley several times in an "instructive
manner" about his unsatisfactory work but admitted that "it wasn't in the sense of a
reprimand." As for breaking the mandrel, Boyett admitted he did not see Laidley
break it but was informed about it on the next shift when the maintenance man re-
ported it to him. When asked why he did not fire Laidley at the time the mandrel
was broken, he replied that at that time he did not know how badly the tool was
damaged and how much it would cost to replace it but that when he received a re-
port on it he talked to Laidley the next day. When asked if at that time he told
Laidley he was going to fire him for breaking the mandrel, he replied that, "I told
him I couldn't have people working for me destroying fifteen hundred dollars worth
of equipment." Yet when Boyett first testified, before the General Counsel's case
had unfolded, he stated that he did not talk to Laidley about destroying equipment
until "the time I fired him."
Laidley was hired on July 25, 1954, at $1.50 an hour rather than at the starting
rate of $1.05 an hour, because of his prior experience in this type of work. He worked
7 days a week , never less than 56 hours a week , and many times 12 hours a day.
The week following September 9, he worked 110 hours. He credibly testified that the
only time Boyett talked to him about the operations of the honing machine was when
Laidley wanted to know something and would ask Boyett about it. He further testi-
fied that Boyett never criticized his work and denied that he broke the mandrel. If
Laidley were so incompetent a worker as Boyett would have one believe, it hardly
seems likely that he would have been permitted to work so many hours overtime.
Stanley L. Wright: Boyett testified that Wright was discharged for allegedly engag-
ing in a slowdown, for permitting the men on his shift to engage in horseplay and
slowdown production, and because of the increase in the reject rates. Boyett admit-
ted that at first Wright was "one of the best workers you would want." Several
months before the discharges, Wright was promoted to the position of leadman 6 on
the third shift where all the other discharges, except Ormand, worked. Boyett testi-
fied that on several night visits to the plant he saw the men standing around engaging
in horseplay. He also testified that on two occasions, about September 1 and 3, he
visited the plant about 2 a. m. during a coffee break and found no one in charge and
on the second occasion there was one man there asleep. He testified that he talked to
Wright about these matters and about the slowdown in production but admitted that
he did not threaten to discharge Wright at that time and that the man who was asleep is
"probably still working there."
Wright was first employed on April 15, 1953, at $1.05 an hour and at the time of
his discharge was receiving $1.50 per hour. He had worked as a plater, inspector,
grinding machine operator, and also trained new men. He was 1 of the 3 oldest
employees at the plant. He credibly denied that he was ever reprimanded about his
work or that Boyett ever told him he was uncooperative or slowing down in produc-
tion, although he admitted having discussions with Boyett about the difficulties in
keeping men at their work station. During the 6 months preceding his discharge,
he averaged 48 hours a week and worked as much as 56 hours 1 week. He testified
that the only way the shop could have been unattended during a coffee break was
for the person, whom he had left in charge, to have departed after they left. Owens,
a witness for the Respondent, testified that he had worked with Wright and never
saw anything wrong with his work. Boyett admitted that he kept no production
records for individual employees and that no one was discharged for not doing
G The parties stipulated that this was not a supervisory position within the meaning
of the Act.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enough work ,7 but rather for the quality of the work . About 3 days before the dis-
charges, when Wright and some of the other men were changed to the first shifts,
Boyett made no mention to Wright about being dissatisfied with the operations of
the third shift or his handling of the men. Neither at that time nor on the Satur-
day when Wright was told to take off 2 days because no overtime was available,
did Boyett give Wright any intimation that his discharge was imminent.
Harold Harlan Hetzer: Boyett testified that he fired Hetzer because he was "nerv-
ous" and "goosey" and was afraid he might hurt himself or destroy equipment, which
would result in retarding production . Boyett admitted that Hetzer had never hurt
himself and had never destroyed any equipment.
Hetzer was employed on July 13, 1954, at $1 .25 per hour , rather than at the
starting rate of $1 .05 per hour, because of previous mechanical experience. He
worked on the third shift on the degreasing tank , dewaxing , packing, and unpacking
cylinders , and baking crankshafts . The last 3 nights before his discharge, he was
being trained to operate a honing machine. Just previous to his discharge, he had
worked 17 or 18 straight days without a day off.
Hetzer admitted that he was "goosey ." It was not disputed that he was never
criticized or reprimanded for his work , which admittedly was just as essential to the
Respondent 's operations as the grinding and plating of shafts and cylinders. Under
these circumstances , and since Hetzer did not do any plating or grinding work, Het-
zer's "goosiness" could not have contributed to the increase in the number of faulty
crank and prop shafts , which caused Boyett to be concerned about production. And
if in fact Hetzer 's "goosiness" was such a serious factor as to have led Boyett to de-
cide upon his discharge 3 or 4 weeks earlier , as Boyett at one point testified,8 it is
difficult to understand why Hetzer was thereafter permitted to work overtime and
why Boyett waited until Sunday , September 26, to discharge Hetzer without giving
him any prior inkling of his impending discharge.
Charles Edward Hem: Boyett testified that Hem was dissatisfied when he was
transferred back from cylinders to the crankshaft tanks about 6 weeks before his
discharge , that he talked to Hem on several different occasions "in an instructive
manner" to see if he could "help him improve on his quality of his work and the
amount of production of his work ," and that he discharged him when his work did
not improve . Boyett admitted that he had never reprimanded Hem about his work
and that Hem did not refuse to work on the crankshaft tanks at the time of his trans-
fer but had merely expressed a preference for working on cylinders in view of his
long seniority at the plant.
Hem was employed on July 13, 1953 , at $1.05 per hour and was increased to
$1.40 per hour by the time of his discharge . He was 1 of the 3 oldest employees
at the plant . For about a month and a half he worked 7 days a week and for the
remainder of the time before his discharge , 6 days a week. He credibly denied that
Boyett ever told him he was slowing down on production or that his rate of rejects
were increasing.
As previously noted , Boyett testified elsewhere that the amount of an employee's
production was not a reason for any of the discharges and that he kept no records
of the production or number of rejects of individual employees . The fact that on the
day before his discharge Boyett told Hem, according to the latter 's undisputed testi-
mony, that he would appreciate it if Hem would work on Sunday , his normal day
off, indicates that Boyett at that time did not regard Hem's work as unsatisfactory
as Boyett would have it appear from his testimony . Moreover , according to Hem's
undisputed testimony , Terry told him, as he was leaving the plant on the day of his
discharge , that his work was satisfactory but that Terry had heard from Boyett that
"there was some agitation in the shop" and "he wanted to cut that down." It also
seems significant that Boyett and Terry at one point sought to give the impression
that they were also dissatisfied with Hem because of his inability to get along with
his brother-in-law, which allegedly brought about the latter 's resignation from the
Respondent 's employ, but Terry finally admitted that "that was not a reason for the
discharge."
7I do not regard as having a significant bearing on Wright's discharge, the testimony
of employee Lipscomb that Wright told him during a casual conversation that he could
turn out a much greater number of cylinders but was turning out the average amount
per employee on each shift Lipscomb admitted that he took the figures "with a grain
of salt" and did not mention it to Boyett until the day before Lipscomb's testimony in
this proceeding
8 At one point , Boyett testified that he had decided 3 or 4 weeks before the discharges
that these were the individuals who had to be eliminated.
TERRY INDUSTRIES, INCORPORATED 721
James C. Lewallen: Boyett testified that he discharged Lewallen for not report-
ing to work on time, for engaging in horseplay, and for not staying in his assigned
work area.
Lewallen was employed on July 29, 1954, at $1.25 per hour because of his previ-
ous experience. The record shows that it was not uncommon for employees at the
plant to engage in horseplay. He admitted being late on occasion and testified,
=without contradiction, that the last time he was late was a week before his discharge.
He testified that he had three different working areas around his tank and that, on
occasion when he had nothing to do at a specified time, he "passed the time of day"
for a "couple of minutes" with whoever was running the grinding machine nearby.
He credibly testified that he was never given a discharge warning.
Omer S. Bradshaw: Boyett testified that he discharged Bradshaw because he was
not an efficient chrome plate operator and was unable to keep his tank stations
-filled.
Bradshaw was employed as a cylinder plater on August 30, 1954, at $1.05 per
hour. He credibly testified that there were times when his tank was shut down be- -
^cause he was short of the new type anodes required by the changeover to another
type of cylinders. He also testified, without contradiction, that he had never been
reprimanded for his work. On Saturday, September 25, when Bradshaw was told
to take off 2 days because no overtime was available, Boyett gave no inkling that
Bradshaw was to be discharged for unsatisfactory work.
R. W. Ormand: Boyett testified that a week before the discharges he obtained in-
formation from personnel at Kelly Field that Ormand was buying equipment with
the definite intention of putting in a competitive business, and that he discharged
Ormand, after the latter admitted having such an intention , because the Respondent
did not wish to employ anyone who would make use of the knowledge acquired for
the purpose of opening a competitive business.
Ormand was employed on October 15, 1953, as a quality control inspector of
cylinders at $1.50 per hour, because of his prior experience, and at the time of his
discharge was receiving $1.75 per hour. Boyett was aware that Ormand had about
8 years' experience in this industry and knew how to plate cylinders and crankshafts.
Ormand testified that he knew of no other plating secrets or procedures that he could
have learned from the Respondent. On the contrary, after the Respondent had un-
successfully attempted to plate liners for about 2 or 3 months, Ormand showed Boyett
how to plate them. Boyett admitted that Ormand "knew cylinders very well" and
that his production was "very good." He worked 7 days a week, averaged 56 hours a
week, and many weeks worked as many as 80 hours.
Ormand admitted that about 2 months before his discharge he had inquired at
Kelly Field about the possibility of buying some old rectifiers but denied that he
intended setting up a plating shop of his own. While the preponderance of the evi-
dence leads me to conclude that Ormand was probably exploring the possibilities of
some day opening a plating shop, I am not convinced that that was the motivating
cause for his discharge. Thus, as previously found, at the time of the discharge,
Boyett did not give that as a reason but told Ormand it was because he was dissatis-
fied with his wages. It is also significant that at the time when Ormand's final check
was made out, Boyett admittedly did not know whether the information he received
from Kelly Field was true. Furthermore, if Boyett had received information from
Kelly Field, he would have learned that Ormand did not in fact purchase any equip-
ment . Moreover, both Boyett and Terry knew that buying some rectifiers was a long
way from opening a plating shop which required a good deal of expensive equipment,
a building, contracts, and most of all, money. On the other hand, the Respondent
operated one of the largest plating plants in the Southwest and was able to outbid all
competitors for contracts. At that time Terry and Boyett claimed to be concerned
about the increase in rejects and the consequent decline in the production of end
items. Boyett admittedly iegarded Ormand as a highly skilled and competent em-
ployee whose work was above reproach both in quality and quantity. Under all these
circumstances, I cannot believe that the mere inquiry of Ormand, an employee earn-
ing $1 .75 an hour, about the possibility of buying some old rectifiers with the inten-
tion that he might some day open a plating shop of his own, caused Boyett and Terry
such concern that it constituted the motivating cause for the discharge of a highly
valued employee.
3. Concluding findings
Obviously, an employer does not violate the Act by discharging an employee for
any cause, or no cause, unrelated to protected union or concerted activities. It is
clear that the Respondent could have lawfully discharged the seven employees for
the reasons advanced at the hearing by Boyett and Terry. However, it is equally
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
well settled that even though a valid cause for the discharges may have existed, they
are not protected if antiunion discrimination motivated the Respondent in effecting
the discharges. Magnolia Petroleum Co. v. N. L. R. B, 200 F. 2d 148 (C. A. 5);
N. L. R. B. v. Kibler-Camp Phosphate Enterprise, 216 F. 2d 113 (C. A. 5). What
then was the real motivating cause for the discharges in this case?
On Thursday, September 24, Laidley and Ormand were the two employees who
took the initiative in making plans which led to the arrangement of the union organi-
zational meetings the following day. On Friday, Laidley contacted all the employees,
urging them to attend the meeting scheduled for 5 p. in. that day. All seven dis-
chargees were among those who attended the meeting and signed union authoriza-
tion cards. In view of Terry's statements at the October 4 meeting,9 the timing and
manner in which the discharges were effected, and all the surrounding circumstances,
I am convinced that Boyett learned of the employee organizational activities and in-
formed Terry about them in a long-distance telephone call to Kilgore, Texas, at
12:45 a. in. Saturday, September 25. Boyett and Terry were vigorously opposed to
having a union in the plant. No action was taken until Terry returned to the plant
on Sunday morning, at which time Boyett and Terry decided upon the immediate
discharge of these seven employees. Terry acted with such haste that he himself
made out the final checks without making the necessary tax deductions.
All"seven were then discharged in a precipitate and summary manner, in the middle
of a pay period, without any prior notice or warning of discharge, and for assigned
reasons which differed from those advanced at the hearing. Three were discharged at
their homes; 1, when he reported for work; and 3, before the completion of their work
shift that same day. Some were assured that their work was satisfactory. Those who
were not at work that day had previously been led to believe that they were to report
back to their regular work shift in the usual manner. Although their alleged failings
and derelictions had existed for some time, none had been given any prior inkling that
discharge was imminent and practically all were permitted to work an extensive
amount of overtime. Two of the men (Wright and Hem) were among the three
oldest employees in point of service at the plant. Another (Ormand) was an admit-
tedly highly skilled and valuable employee. The Respondent's contention that, ex-
cept for Ormand, these were the men who were responsible for the increased number
of rejected shafts, a reason advanced for their discharge, is not borne out by the
Respondent's production figures or the testimony of its own witnesses, Owens, a
quality control inspector. And, as previously found for the reasons already detailed,
Ormand's inquiry about 2 months before his discharge about the possibility of pur-
chasing some old rectifiers with the thought in mind that he might some day open
his own plating shop, was not the motivating cause for his discharge.
On the other hand, in explaining the discharges to Hem at the plant on Sunday,
September 26, Terry stated that Hem's work was satisfactory but that he had heard
from Boyett that there was "some agitation in the shop" and he "wanted to cut that
down." Again, on October 2, when Laidley and Wright returned their locker keys,
Boyett explained that he was just cutting down on production. At the same time he
took the occasion to point out that unions "aren't worth a hoot" down here, that they
did not need "a third man" in there and had got along without him before, and to
warn that he could cut wages back to 75 cents an hour and require a 4-year appren-
ticeship if the Union came into the plant. Terry, who was called over at the time,
also emphasized that he did not need "that third man" to relay the employees' troubles
to Terry. And, at the October 4 meeting with the seven dischargees in Terry's office,
Terry told the men that the only way they could get back to work was to sign a
petition repudiating their union activity and to circulate the petition through the
plant for the signatures of the other card signers. He accused them of "stabbing"
him in the back by organizing a union when he was out of town. He pointed out
that he had built the shop up from a "hole in the wall" to one of the largest plating
plants in the Southwest without the "third man," and made it clear that he did not
need the "third man" now. The dischargees were again warned that the Respondent
could cut wages back to 75 cents an hour and require the service of a 4-year appren-
ticeship if the Union came into the plant. Terry also threatened to put in enough
equipment to complete his contracts in 3 months and then move to another county if
the Union came in . When Laidley, as chosen spokesman for the group, rejected
the conditions under which Terry was willing to reinstate the men , Boyett told him
that it made no difference and that even if he had to put them back to work, he
could fire them within 24 hours for sabotage.
e At that time Terry told the men that he did not know anything about this union
trouble until Boyett had called him on the telephone Friday night or Saturday morning.
Terry had also told Hem on Sunday, September 26, that he had heard from Boyett that
there was "some agitation in the shop."
TERRY INDUSTRIES, INCORPORATED 723
There is no merit in the Respondent 's contention that any alleged discrimination
is disproved by its failure to discharge all the employees who signed cards at the
union organization meetings and by its promotion of some . A discriminatory motive,
otherwise established, is not disproved by an employer's showing that he did not
weed out every adherent of the Union.'° Significantly revealing in this respect is the
testimony of the Respondent's own witness, Farrell West, who was promoted to shift
foreman, a nonsupervisory position. West testified that he no longer attended union
meetings after the discharge of these seven men. When questioned on cross-examina-
tion as to whether he was still interested in the Union, he replied, "I wouldn't care
to lose my job."
Laidley and Ormand were the employees "who got this thing rolling," to borrow
a phrase used by Boyett at the October 4 meeting. The record shows that Laidley
and the other five dischargees had worked together on the third shift, "stuck together"
during coffee breaks and were closely associated in a sort of clique. I am con-
vinced from the foregoing and from the accusations and statements made by Boyett
and Terry at the October 4 meeting, that these seven men were regarded by manage-
ment as the core of the union organization and responsible for its appearance at the
plant . Boyett and Terry were so vehemently opposed to having a union that they
threatened to take economic reprisals if the "third man" came into the plant. Under
all the circumstances, and upon the basis of the entire record, I am convinced, and
find, that the Respondent seized upon whatever failings these seven employees may
have had as a protection against their discharge, the real and dominant motive of,
the moving cause for, which was antiunion discrimination. By discharging and
refusing to reinstate these employees unless they signed a petition repudiating their
union activity, the Respondent has discriminated in regard to their hire and tenure
of employment, thereby discouraging membership in the Union, in violation of
Section 8 (a) (3) and (1) of the Act.
B. Interference, restraint, and coercion
I find that by conditioning the reemployment of the seven dischargees upon their
signing a petition repudiating their union activity, by threatening to reduce wages
and require the employees to serve a 4-year apprenticeship if the Union came into
the plant, and by threatening to accelerate the completion of its contracts and then
move to another county if the Union came into the plant, the Respondent has inter-
fered with, restrained, and coerced its employees in the exercise of rights guaranteed
in Section 7 of the Act and has thereby violated Section 8 (a) (1) of the Act.
The complaint further alleges that the Respondent also violated Section 8 (a) (1)
of the Act by engaging in unlawful interrogation and in surveillance of union meeting
places and activities. As the record contains no evidence in support of these allega-
tions, I will recommend that they be dismissed.
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 set forth 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
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 ac-
tion to effectuate the policies of the Act.
Having found that the Respondent discriminated in regard to the hire and tenure
of employment of Omer S. Bradshaw, Charles Edward Hem, Harold Harlan Hetzer,
George Eugene Laidley, James C. Lewallen, R. W. Ormand, and Stanley L. Wright,
I will recommend that the Respondent offer them immediate and full reinstatement
to their former or substantially equivalent positions," without prejudice to, their
seniority or other rights and privileges, and make them whole for any loss of earnings
they may have suffered by reason of the Respondent's discrimination against them, by
payment to each of them of a sum of money equal to that which each normally
ON. L. R. B v. W. C. Nabors Company, 196 F. 2d 272, 275-276 (C. A. 5), cert. denied
344 U. S. 865.
ss The Chase National Bank of the city of New York , San Juan, Puerto Rico, Branch,
65 NLRB 827.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would have earned as wages from the date of his discharge to the date of the Re-
.spondent 's offer of reinstatement , less net earnings 12 during said periods . Said loss;
of pay shall be computed on a quarterly basis in the manner established by the Board
in F. W. Woolworth Company, 90 NLRB 289, 291-294. It will also be recommended
that the Respondent make available to the Board , upon request , payroll , and other
records to facilitate the determination of the amounts due these employees under
this recommended remedy.
The unfair labor practices committed by the Respondent are of a character which
strike at the roots of employee rights safeguarded by the Act. As these unfair labor
practices are persuasively related to other unfair labor practices proscribed by the
Act, a danger of their commission in the future is to be anticipated from the Re-
spondent's conduct in the past . The preventive purposes of the Act will be thwarted
unless the remedial order is coextensive with the threat . In order therefore to make
effective the interdependent guarantees of Section 7 of the Act and to prevent a re-
currence of unfair labor practices , I will recommend that the Respondent cease and
desist from infringing in any manner upon the rights guaranteed employees by Sec-
tion 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. American Federation of Labor is a labor organization within the meaning of
Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Omer S.
Bradshaw, Charles Edward Hem, Harold Harlan Hetzer , George Eugene Laidley,
James C. Lewallen, R. W. Ormand, and Stanley L. Wright, thereby discouraging mem-
bership in American Federation of Labor, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By conditioning reemployment upon the signing of a petition repudiating their
union activity, by threatening to reduce wages and require the service of a 4-year
apprenticeship if the Union came into the plant , by threatening to move the plant
after accelerating the completion of its contract if the Union came into the plant,
and by discriminating in regard to the hire and tenure of employment of the above-
named employees , the Respondent has interfered with, restrained , and coerced its
employees in the exercise of rights guaranteed in Section 7 of the Act and thereby
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8 (a) (1) 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.
[Recommendations omitted from publication.]
" Crossett Lumber Company, 8 NLRB 440 ,497-498.
Ludlow Typograph Company and International Union of Elec-
trical , Radio and Machine Workers, CIO , and Its Local 1024,
IUE-CIO . Case No. 13-CA-1869. August 16, 1955
DECISION AND ORDER
On February 17, 1955, Trial Examiner Albert P . Wheatley issued
his Intermediate Report in the above -entitled proceeding , finding
that the Respondent had engaged in and was engaging in certain un-
fair labor practices and recommending that it cease and desist there=
from and take certain affirmative action , as set forth in the copy
of the Intermediate Report attached hereto . Thereafter the Respond-
113 NLRB No. 77.