Texas Electric Cooperatives, Inc.

National Labor Relations Board - Board Decisions

Aug 9, 1966

160 N.L.R.B. 440 (N.L.R.B. 1966)

440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Texas Electric Cooperatives , Inc., Treating Division and William
Wayne Hennigan
Texas Electric Cooperatives , Inc., Treating Division and Melvin
Faulk
Texas Electric Cooperatives , Inc., Treating Division and United
Brotherhood of Carpenters and Joiners of America , AFL-CIO
Texas Electric Cooperatives , Inc., Treating Division and United
Brotherhood of Carpenters and Joiners of America, AFL-CIO.
Cases 23-CA-2108, 2137, 2194, and 23-ISM-159. August 9,1966
DECISION AND ORDER
On May 12, 1966, Trial Examiner Arthur M. Goldberg issued his
Decision in the above-entitled, proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist therefrom ^ and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found that the
Respondent had not engaged in certain other unfair labor practices
and recommended that such allegations of the complaint be dis-
missed. Thereafter, the Respondent filed exceptions to the Decision
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
these cases to a three-member panel [Members Fanning, Brown, and
Zagoria].
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 Trial
Examiner's Decision, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.2
[The Board adopted the Trial Examiner's Recommended Order-
and dismissed the petition in Case 23-RM-159 and vacated all
proceedings held in connection therewith.]
"Respondent contends that various credibility findings of the Trial Examiner are
erroneous We have reviewed the entire record and , under the standards set forth in Stand-
ard Dry Wall Products , Inc., 91 NLRB 544, enfd. 188 F 2d 362 (C.A. 3), we find no reason
to reject these findings
2In referring to the Union 's letter demanding recognition , the Trial Examiner trans-
posed the dates of writing and receipt. We hereby correct this obviously inadvertent error.
160 NLRB No. 33.
TEXAS ELECTRIC COOPERATIVES 441
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Pursuant to an order of the Director for the Board's Region 23 consolidating
for hearing complaints previously issued by him in Cases 23-CA-2108,
23-CA-2137, and 23-CA-2194 alleging that Texas Electric Cooperatives, Inc.,
Treating Division (herein called the Respondent or Company), had violated Sec-
tion 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended
(herein called the Act) and issues raised by certain objections to election filed by
United Brotherhood of Carpenters and Joiners of America, AFL-CIO (herein
called the Union), hearing was held before Trial Examiner Arthur M. Goldberg
in Jasper, Texas, on February 2 through 4, and on February 10 and 11, 1966.
The complaint issued in Case 23-N-2108 on September 3, 1965,1 was based
on a charge filed on July 21 by William Wayne Hennigan, an individual. The
complaint alleged various unlawful acts of interrogation, creation of the impres-
sion of surveillance, and threats of loss of economic benefit, all between July 9
and 12, and the discharge of Hennigan on July 13, because he joined and assisted
the Union. Respondent denied all unlawful acts of interference and coercion,
admitted the discharge of Hennigan, but denied it was occasioned by illegal con-
siderations.
The complaint issued in Case 23-CA-2137 on September 30, was based on a
charge filed on August 19 by Melvin Faulk, an individual. The complaint alleged
various unlawful acts of interrogation and surveillance, all between July 1 and
August 25, and the demotion of Faulk on July 29, with a resulting loss in pay,
because he joined and assisted the Union. Respondent denied that it had engaged
in the unlawful acts of surveillance and interrogation alleged, admitted the demo-
tion of Faulk, but denied it was occasioned by illegal considerations.
The complaint -issued in Case 23-CA-2194 on December 14, was based on an
amended charge filed by the Union on October 20. The complaint alleges various
unlawful acts of interrogation , threats of loss of economic benefit, and other acts
of interference, all ,between July 12 and October 6. At the opening of the hearing
General Counsel amended the complaint to allege as additional violations of
8(a)(1) threats in September and October and, a grant of benefit on an unknown
date in December or January 1966. Additionally the complaint alleged that since
on or about July 15 the Union has represented a majority of Respondent's employ-
ees in a unit appropriate for collective bargaining and Respondent has unlawfully
refused recognition to the Union. Respondent, amending its answer at the hear-
ing, denied all the unlawful acts alleged, denied that the Union represented a
majority of its employees or that it had unlawfully failed to extend recognition.
On December 17, the Regional Director issued his Supplemental Decision and
Order Consolidating Cases. Noting the issuance of the complaints herein alleging
conduct also raised as objections to election, the Regional Director consolidated all
cases for hearing and referred for hearing an additional objection based on Respond-
ent having retained the local district attorney as its attorney in the representation
case. Finally, it was ordered that Case 23-RM-159 be transferred to the Board.
All parties were represented at or participated in the 'hearing, and were granted
-full opportunity to offer evidence and to examine and cross-examine witnesses. Oral
argument was waived and briefs were filed by General Counsel and Respondent.
Upon the entire record in the case and from my observation of the witnesses and
their demeanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent , an operating division of a corporation organized and existing under
the laws of the State of Texas, is engaged in the treating of wood poles with creosote
preservative, with its principal office and place of business at Jasper, Texas.
During the past calendar year, Respondent purchased materials valued in excess
of $50,000 outside the State of Texas, which materials were shipped directly to its
Jasper, Texas, facility, and during the same period of time Respondent received in
excess of $1 million in gross receipts for sales and products.
1 Unless otherwise noted, all dates hereafter are in 1965.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent concedes, and I find, in view of the above facts, that Respondent is
now, and has been at all times material, an employer engaged in commerce within
the meaning of Section 2(6) of the Act and meets the Board's standards for
asserting jurisdiction.
H. THE LABOR ORGANIZATION INVOLVED
United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
As raised by the pleadings and developed at the hearing, the principal issues in
this proceeding relating to the unfair labor practices are:
1. Whether Respondent on numerous occasions (over 20 in number), both before
and after the Union's demand for recognition, engaged in acts of unlawful sur-
veillance and interrogation of its employees, offered employees benefit or threatened
them with reprisal to induce their abandonment of union activities, and otherwise
unlawfully interdicted employee-protected activity.
2. Whether Respondent discharged William Wayne Hennigan because of his
activities on behalf of the Union or, as urged by Respondent, because of his drink-
ing on or immediately before reporting to the job and because of his lateness and
absenteeism.
- 3. Whether Respondent demoted Melvin Faulk from his job as dinky engine
driver and reduced his wages because of his union adherence, or, as urged by
Respondent, because of his unreliability on that job assignment.
4. Whether the Union at the time of its demand for recognition and Respondent's
refusal thereof, represented a majority of Respondent's employees in a unit appro-
priate for collective bargaining.
5. Whether Respondent's refusal to recognize the Union was occasioned by a
good-faith doubt of the Union's majority status and the appropriateness of the unit
in which recognition was demanded, or, as alleged by General Counsel, was unlaw-
fully made to buy time to undermine the Union's majority.
B. Respondent's operations; the organizing campaign begins;
Respondent's initial reaction
1. Respondent 's operations
The Respondent Treating Division is one of several operating divisions of the
Texas Electric Cooperatives, Inc., a statewide organization owned by 77 rural elec-
tric cooperatives in Texas. Aside from the Treating Division, the corporation has
Publication and Transformer Repair Divisions, both located in Austin, Texas, which
is also the site of the General Office Division. Only the Treating Division in Jas-
per is involved in this proceeding.
The Jasper facility has been in operation since mid-1964, though construction of
the plant involving the employment of a number of the employees in this case com-
menced in mid-1963. Prior to location in Jasper, the Treating Division was in Luf-
kin, Texas. When moved to Jasper some 12 to 15 employees, including the Divi-
sion's top management moved with it from Lufkin.
Briefly stated, Respondent's manufacturing operation is mainly concerned with
creosoting poles for use by the electric cooperatives, although a small percentage of
Respondent's sales are on the open market. The poles are brought from the forest
to the plant in an untreated state. The first step in the treating process is the
smoothing of the poles to a symmetrical surface, free of bark and knots. The poles
are then graded according to size and length and the holes necessary to affix cross-
arms and other hardware are drilled, a process known as framing. The poles are
then separated by size and lifted by crane onto trams which are pulled by a 25-
ton diesel electric locomotive, known as the "dinky," into the treating retort or cyl-
inders. In the treating cylinders the poles are first steam conditioned and a vacuum
is applied to them to remove the moisture from the green untreated wood. After
this the hot creosote is put into the cylinder and under hydraulic pressure forced
into the wood. The area where the treating cylinders are located is known as the
treating room. The treating process goes on around the clock on three-shift basis.
TEXAS ELECTRIC COOPERATIVES 443
After being treated with creosote, the poles on their trams are pulled from the
cylinders into the treated-pole or black-pole yard and there either put into inven-
tory or shipped out by rail or truck.
2. The organizing campaign begins
The Union's effort to organize Respondent's employees had its beginnings on
June 1, when William Wayne Hennigan (referred to as Wayne Hennigan by all
parties throughout the proceeding) was brought by his brother-in-law to meet A. C.
Shirley, the Union's representative then in Jasper on another Board matter unre-
lated to the present proceedings.2 Sometime prior to June 1 Herman Dean, another
of Respondent's employees, had come to Hennigan, told him that some of the
employees were mad and asked Hennigan's help in getting a union . Thereafter
some 8 to 10 of the employees signed a form of petition to let Hennigan know they
wanted him to help them.
At this June 1 meeting held in Shirley's motel room, Shirley, after going over
Respondent's operations with Hennigan and learning from him the size and nature
of the work force, went on to explain organizing procedure to Hennigan. Shirley
filled out a union authorization card for Hennigan to sign and gave him 50 blank
authorization cards to use in signing up the employees. Shirley also warned Henni-
gan that his job might be imperiled should he be caught organizing and urged Hen-
nigan to keep an accurate record of any interrogation or threats by supervisors.
The next day, June 2, Hennigan began soliciting other employees to sign authori-
zation cards. Within a week of his first contact with Shirley, Hennigan had turned
over to the Union's organizer about seven executed union cards. Thereafter, by the
end of June, Hennigan and George Marshall, a crane operator employed by
Respondent, had secured union authorization cards' from more than half of the
employees then employed'3 However, Hennigan' and Marshall asked that Shirley
put off requesting recognition from Respondent until after the vacation week which
began after work on Friday, July 2. Up to this time it does not appear that
Respondent was aware of the Union's campaign among its employees.
3. Respondent learns of the Union's campaign and responds with
interrogation and threats
Melvin Faulk and Ray Beatty while working during the vacation week of July 5
through 9, were themselves creosote coated in the course of cleaning out the treat-
ing cylinders? From the treating room they were sent by Eugene Baker, treating
supervisor, to the "Lab" to shower off the creosote. In addition to shower rooms,
the Lab houses restrooms and Baker's office. In the Lab, Beatty and Faulk parted
company, Beatty going to the shower room used by the colored employees and
Faulk going to that reserved for the white, the two rooms being separated by a tin
wall.
Faulk testified that while he was in the shower room Baker came in to use the
toilet and while there said to him, "Melvin, you sure shouldn't have signed that
union card." Further, Baker referred to having material about the Union in his
wallet.
As to this incident involving Baker and this incident only, Respondent attempted
refutation by means of an asserted witness to the events, Baker not having called
to testify during the proceedings. Beatty testified that Baker did not come into the
shower room and that the only conversation between Baker and Faulk, which Beatty
overheard, was one which took place outside the shower room, after Beatty had
finished his shower and had dressed. That conversation was about Mazola Oil
which Baker gave to the two employees to treat burns caused by the creosote.
2 Hennigan was unable to drive himself to this meeting with Shirley as his driver', permit
was suspended after a conviction of drunken driving. (See section III, B, 4, entitled "The
discharge of Wayne Hennigan," snfra.) Accordingly his brother-in-law, who was involved
in the Board proceeding with Shirley drove Iennigan to meet Shirley.
8A full analysis of the authorization cards relied on by General Counsel to establish the
Union's majority and my rulings thereon appears in section III, C. 3, infra
4 Faulk placed the date of the incident on July 12 while Beatty recalled it as having
occurred during the vacation week From the nature of Respondent's operations it appears
more likely that the treating cylinders would have been taken out of service to be cleaned
during the vacation week. Accordingly, I find that the "shower room" incident occurred
at that time.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I do not find that the testimony of Beatty, who in the main I found to be an
incredible witness, refutes that of Faulk, whom I credit. Indeed, it is questionable
whether Beatty in fact contradicts Faulk's account. From the time they entered the
segregated shower rooms Beatty and Faulk were separated by a tin wall, which
while not thick, with a shower running is an effective barrier to sound coming
through. Beatty thus was in no position to know or to give reliable testimony as to
what occurred in the white shower room between Faulk and Baker. I find, there-
fore, that Faulk's account of Baker's talk to him at that time stands uncontradicted
on the record. I find that Baker's statement was both in the nature of a threat and
of interrogation, for with the implied threat contained, the statement reasonably
sought a denial by Faulk that he had signed a card. Thus, Faulk's silence in the
face of Baker's warning could reasonably be interpreted as an admission. Addition-
ally, Baker's statement announcing company knowledge of Faulk's authorization
to the Union created the impression of surveillance. I further find from this inci-
dent that by sometime during the vacation week of July 4, Respondent had become
aware of the Union 's organizing campaign .5
Herman Dean, long-time employee of Respondent was first hired while the Jas-
per facility was in construction and then was transferred over to work in the black-
pole yard, i.e., working on the poles after their removal from the treating cylinders.
Eugene Baker was Dean's supervisor on this latter job. Dean had been the one who
asked Hennigan to contact a union and, on June 2, Dean had signed a union
authorization card given him by Hennigan.
Shortly after Dean drove away from his home on Saturday, July 10, he met
Baker while stopped at an intersection. In reply to Dean's question Baker said he
had been on his way to Dean's home but could talk to him where they were
stopped. Baker said he had heard of union cards on the job and asked if Dean
knew anything about the activity. Dean denied any knowledge, offering to check
for Baker. To Baker's inquiry as to whether Dean had signed a card, Dean replied
that he didn't know whether he had or had not. To this Baker commented that
Dean should know if he had; and Dean suggested that Baker check on it and see
if Dean had. The two then went their respective ways.
Monday, July 12, Respondent resumed operations as the vacation ended. That
morning Baker asked if Dean had decided whether or not he had signed a card.
After Dean told Baker that was for him to find out, Baker named employee Jim
Christian as one who had not signed. Baker then asked "who was the root and
branch" of the Union's campaign. Upon Dean denying knowledge, Baker named
Wayne Hennigan and George Marshall as being responsible . Dean again pleaded
ignorance and the conversation ended.
That same morning Baker taunted Hennigan that his "little deal didn't go
through" during the vacation week, explaining that employee Johnnie Walker had
,told Harper everything about the Union, that Harper had demanded the union
cards from Union Representative Shirley, and that Hennigan was in trouble. After
Hennigan denied that he, with Marshall and employee "Smoothy" Hammond, had
ramroded the union drive, Baker asked who had and asked if Hennigan had
signed a card himself. Hennigan refused to answer Baker 's questions.
Baker turned his attention back again to Melvin Faulk that day. Baker this time
asked if Faulk had signed a union card. Faulk acknowledged that he had and Baker
expressed his disapproval.
On July 13, Baker again brought up to Faulk his having signed for the Union
and commented that he should not have done so. To this Faulk said what is done
is done and Baker commented, "Well, you might have messed yourself up."
Baker was not alone in his interrogation on July 13. Plant Superintendent Paul
Noel asked employee Watson Thomas if he had signed a union card. Thomas who
had signed a card on June 3 at the request of George Marshall, denied to Noel
that he had as yet signed. Noel then told Thomas that it didn't make any difference
G In so concluding I do not rely on testimony by J 'S Harper, Respondent's division
manager, who testified that he learned of the Union's activities from an employee on July 8.
On cross-examination Harper was asked for the identity of the employee who had informed
him of the Union's presence Though directed by me to answer the question, on instructions
of Respondent's counsel Harper did not supply the answer I believe the question to have
been a proper one on cross -examination and that Respondent 's counsel exceeded himself
in ordering the witness not to answer. Accordingly, I grant General Counsel's motion made
at the hearing to the extent that I s^'rike Harper's testimony on this point. 5 Wigmore,
Evidence § 1391 (3d ed. 1940).
TEXAS ELECTRIC COOPERATIVES 445
to him what the employees wanted to do about the Union, but Noel could not see
how Respondent could pay the employees any more than they were getting. After
Thomas opined that he would not get along on what he was making, Noel offered
Thomas for signature a card Noel said he had on his desk, but Thomas said he
believed he would wait awhile. -
As noted, Baker did not testify. While Noel testified on two occasions, he did not
deny the incident related by Thomas. Thus, the incidents above, credibly testified
to by Faulk, Hennigan, Dean, and Thomas stand uncontroverted on the record.
Accordingly I find that Baker and Noel, as related above, unlawfully interrogated
employees as to their own and other employees' union sympathies and created the
impression of surveillance 6 and by these acts Respondent violated Section 8(a)( I)
of the Act.
4. The discharge of Wayne Hennigan
At the end of his regular shift-on Tuesday, July 13, Wayne Hennigan was dis-
charged because, as Baker said at the time, he had received a report of Hennigan's
drinking on the job.
Hennigan was hired by Respondent on September 20, 1963, as a laborer employed
in the plant's construction. Early in 1964 Hennigan was put in the treating room
with Baker as his supervisor where he stayed until discharged. When fired Henni-
gan was earning $1.60 per hour, the standard rate for treaters and was working
rotating shifts with the two other treaters.
In December 1964, Hennigan was suspended by Baker for 2 days as discipline
for drinking on the job. However, Hennigan denied, and Baker was not called to
contradict his testimony, that he was placed on probation at that time. That same
month he was charged by public authorities with being drunk and disturbing the
peace; in May he pleaded guilty to a drunken driving charge for which his permit
to drive was suspended; and, on July 3, he pleaded guilty to being drunk as a
pedestrian.
As stated (supra, section III, B, 2) it was to Hennigan that a group of employ-
ees turned when they sought unionization, and it was Hennigan who first contracted
Union Representative Shirley. About the middle of June, Hennigan solicited a union
authorization card from Johnnie Walker, a part-time watchman, part-time laborer.
Thereafter, Shirley told Hennigan that watchmen were not eligible to sign union
cards. Hennigan so advised the watchmen and destroyed Walker's card. The day
before his discharge, Hennigan was teased by Baker about his "little deal" not going
through at which time Baker stated that Walker had told Division Manager Harper
everything about who signed union cards. That same day in the course of his inter-
rogation of Herman Dean, Baker named Hennigan and Marshall as those respon-
sible for the Union's campaign.
Tuesday morning, July 13, Hennigan reported for work at 6:30 a.m., relieving
J. C. Christian, who, Hennigan testified, warned him to be expecting his discharge.
During the day Hennigan supplied Marshall with blank authorization cards. That
afternoon at 2:30 p.m., Hennigan was in turn relieved by Marvin Whinery, who
relayed Baker's instructions that Hennigan report to Baker's office. There Baker
told Hennigan he had a report of Hennigan's drinking on the job and that he had
a witness to this offense but refused to produce the witness at Hennigan's request.
Hennigan denied the reason given was the true cause of his discharge and left.
Sometime during the day Baker had told Melvin Faulk of his intention to dis-
charge Hennigan for drinking. At that time Baker claimed that Hennigan was the
one throwing beer cans over the fence behind Respondent's property. The previous
day Faulk had overheard Baker level the same accusation against Hennigan in a
conversation with Christian.
Plant Superintendent Paul Noel testified that sometime on July 13 Baker had
come to him with a report that Hennigan had been recently drinking on the job
and asked for permission to fire him. Noel claims to have replied, "In my opinion,
6 George Marshall, the crane operator, testified to an incident of interrogation by Baker,
in which Baker asked Marshall what he thought the employees would accomplish by getting
a union and then went on to tell Marshall that the employees would lose the working con-
ditions they presently had, including sick leave, vacations, and holidays. Although this
incident, like the others involving Baker was not disputed',by Respondent, in view of
Marshall's total inability to fix the time of its occurrence and considering its cumulative
nature, I do not relay on this instance of interference and coercio,i to support the remedy
hereinafter recommended.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Hennigan has been given enough probation, enough warnings about his drink-
ing on the job. I feel like he has had enough opportunity to straighten up if he is
going to. I think we should dismiss him. I will have his check ready when he gets
off this evening and you can so notify him."
Noel claimed to have warned Hennigan in December 1964 when he was sus-
pended for 2 days for drinking on the job, that if Noel ever learned of a repeat of
the incident, Hennigan would be fired. Noel explained that treating engineers, such
as Hennigan, were in charge of a 500-horsepower steam generator and two pres-
sure cylinders with pressure up to 200 pounds per square inch and thus had to be
mentally alert at all times.
Hennigan's replacement as a treater was Wesley P. Pace, Sr., who was transferred
on July 14 from his duties as a watchman. A grand jury indictment of Pace on a
felony count of driving a motor vehicle while intoxicated following a prior misde-
meanor conviction for the same offense was introduced by General Counsel.
Noel further testified that on several occasions Hennigan had not reported for
work and had failed to call in or make any arrangements for his shift to be cov-
ered and at other times Hennigan had been from 1 to 3 hours late for work with-
out prior notification. This record of absences and lateness affected his attitude
toward discharging Hennigan, Noel testified.
On July 13, Harper was away from the plant on a trip to Corpus Christi. Harper
testified that before leaving he had instructed Noel to be alert to anything that
might happen concerning the Union in Harper's absence. However, Noel testified
that at the time of Hennigan's discharge "there had been very little discussion, if
any, on union activity whatsoever within the plant, and I wasn't aware of anyone's
activity in the union."
After he authorized Hennigan's discharge Noel examined the area behind the
fence to the rear of the treating room where there was a collection of empty beer
cans and beer bottles. Since Hennigan's discharge, Noel claims also to have talked
to other employees who knew of Hennigan's drinking on or prior to reporting to
the job.
Noel further testified that Hennigan was capable of being a good hand but that
when he was late or absent, "[w]e felt that was due to his overindulgence in activ-
ities outside the plant that rendered him incapacitated to work, which we felt was
drinking, but we had no definite proof of that." Noel was equally vague as to Ben-
nigan's record of absences and lateness, not recalling the dates or number of times
such derelictions occurred and admitted that lots of men were known to be late.
However, Noel was certain that Respondent had an eyewitness to Hennigan having
emptied the alcohol containers Noel had seen.
Respondent called employee Ray Beatty, who testified to having taken Hennigan
on July 2, the last workday before the vacation, from the plant to a supermarket
in Jasper , where Hennigan cashed his paycheck and bought some cigarettes, then
to a bootlegger (Jasper County is dry) where Hennigan purchased one or two half-
pint bottles of whiskey and thence back to the plant after Beatty and Hennigan had
each taken a drink from Hennigan 's purchase. Beatty had finished his work for the
day while Hennigan was just about to start his shift. Beatty, a Negro employee who
had started work just a few days before, testified that after he and Hennigan left
Collier's Cafe, a Negro cafe, barber shop, and bootlegger, Hennigan put the bottle
into the top of his boot "to keep Mr. Baker from seeing it." Beatty stated that he
told Baker of Hennigan's drinking , but could not recall whether he so informed
Baker after the vacation week of July 4 or after the election on October 8.
Hennigan agreed that Beatty had transported him that day to buy cigarettes after
Hennigan had asked Baker to pick up cigarettes for him and Baker in turn sug-
gested that Beatty drive Hennigan to town instead. Hennigan denied ever having
been to Collier's Cafe and testified that he wears stovepipe cowboy boots which are
too tight fitting to allow concealment of a half-pint bottle? Further Hennigan told
a In its brief Respondent notes that "Hennigan took great pains to testify that the pint
would not fit in his boot but be noticeably failed to wear those boots to the hearing in
order to demonstrate the impossibility of so secreting the bottle." Beatty testified to the
half-pint purchase the last morning of the hearing, February 11. That same morning Hen-
nigan took the stand to rebut Beatty, at which time Iennigan wore the same work shoes
be had worn throughout the hearing. The only conclusion I draw is that neither General
Counsel, the Union's representative, nor Hennigan anticipated that Beatty would testify
to an effort to hide a bottle in Hennigan's boot, a lack of prevision perhaps occasioned by
a more trustworthy knowledge of the past.
TEXAS ELECTRIC COOPERATIVES 447
of having worked cheek-to -jowl with Baker that afternoon with nothing said about
his drinking.
As to his absence from work Hennigan explained that his grandfather who died
during the vacation week , "got down about the middle of May" and thereafter Hen-
nigan had been forced to miss work on occasion to care for him but at such times
either called the treater on duty or Baker.
Hennigan initially suffered a 12-week disqualification from unemployment insur-
ance benefits . However, after hearing on September 1, the Appeal Tribunal of the
Texas Employment Commission reversed that initial determination and awarded
him compensation from the date of his discharge . At this hearing, at which
Respondent was represented by counsel and Division Manager Harper testified,
Respondent presented the evidence of Hennigan 's supervisor by affidavit . The con-
tents of that affidavit were summarized in the decision of the Appeal Tribunal which
is part of the record herein . Respondent contended there that Hennigan failed to
report for work on September 28, 1964 , without notification ; was suspended on
December 7 and 8, 1964, for reporting to work while intoxicated; reported to work
4 hours late on May 20 without prior notification ; was absent without reason on
June 10 and 11; reported to work 21/z hours late on June 14, and was reported by
the plant watchman as drinking beer while on duty; reported for work on June 17
drunk and was not permitted to pull his regular shift ; and was again reported by
the watchman as drinking on the job on July 13, at which time he was discharged.
At that same hearing Hennigan admitted that' when he reported back to work
after his suspension in December 1964 , he was warned not to come to work when
drinking.
Analysis and Findings
Based on the entire record, my observations of the demeanor of the witnesses as
they testified, and my analysis of the evidence, I find that Wayne Hennigan was
discharged because of his activities on behalf of the Union.
Hennigan 's activities on behalf of the Union and Respondent 's awareness of his
involvement are clear from his own credited testimony and that of his fellow
employees concerning Baker's interrogation and threats. Equally clear is Respond-
ent's determination to avoid the organization of its operations as seen from its ini-
tial reaction spelled out above and by its continuing campaign to defeat the Union
detailed in the sections which follow. Cut off "the root and branch" and the poi-
soned tree will perish . I find that General Counsel proved a strong prima facie case
that Hennigan was discharged for discriminatory reasons.
Thus the burden shifted to Respondent to come forward with evidence that Ben-
nigan's discharge was for reason, any reason, other than his union activity. Consist-
ent with its stated reason to Hennigan when he was terminated and the evidence
presented to the Appeal Tribunal in Hennigan 's unemployment insurance case,
Respondent contends the firing was brought about by receipt of a report that Hen-
nigan was drinking on the job. And , though not the stated reason for the discharge,
Noel brought in Hennigan's record of absences and lateness as influencing him to
approve the termination . I note however Respondent 's shifting explanation of the
trigger for the discharge. After indicating to Christian on July 12 and to Faulk
during the day on July 13 that Hennigan would be fired for drinking and being the
one who threw empty beer containers over the fence , Baker told Hennigan in the
exit interview on the latter day that there was a witness to Hennigan 's drinking on
the lob but refused to produce that witness. The Appeal Tribunal was told by affi-
davit of a report from a watchman of Hennigan's drinking on the job on July 13.
In the instant proceeding Respondent relied on Noel 's broad brush testimony of
Hennigan's drinking, of many warnings to him to stop, of unspecified absences and
tardiness , and Noel 's po'irt hoc investigation which revealed empty beer containers,
unconnected to Hennigan on the record, and of conversations with unidentified
employees who told Noel of Hennigan 's tippling in the treating room. However
neither a watchman nor any other witness to Hennigan drinking on the job was
produced.
Beatty's story of his trip to the bootlegger with Hennigan on July 2 I find to be
a contrived afterthought. Even assuming arguendo that the incident did in fact
occur it does not appear from the record that Respondent was made aware of it
until well after Hennigan 's discharge . Indeed, reviewing the case Respondent pre-
sented to the Appeal Tribunal on September 1, I conclude that as of that date
Respondent was not even contending that Hennigan drank before reporting for
work on July 2 or brought whiskey with him to the job that day . Moreover, Beatty
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed a union authorization card for Hennigan on July 13, the very day of the
discharge, hardly an act for one who had recently or would shortly provide basis
for the solicitor's discharge.
As noted above ( section III, B, 3 ) I did not find Beatty to be a credible witness.
In the main Beatty's tale of his jaunt with Hennigan was brought out by leading
questions . Moreover, when initially asked if Baker had ever mentioned the Union
to him, Beatty replied, "No sir, I never heard him mention the word ` union.' If he
mentioned it, I was nowhere around." However, during the course of examination
Beatty came around to admitting there were four separate occasions on which Baker
did more than mention the word union, including having directly asked Beatty if
he had signed a union card . Hennigan on the other hand I found to be a credible
witness whose testimony held up under vigorous examination .8 I therefore find Beat-
ty's story of their trip to the bootlegger to be a fictitious addition to the otherwise
admitted ride to town for cigarettes.
As to Noel I note he testified that Hennigan was warned in December 1964 that
drinking on the job would bring on his discharge. Yet, Respondent contended to
the Unemployment Insurance Appeal Tribunal that on June 14 Hennigan was
reported for drinking on the job and on June 17 reported for work too drunk to
perform his duties. Hennigan was not discharged on those occasions. His discharge
came about only after Respondent learned he was the "root and branch" of the
Union. Kem Distributing Company, 158 NLRB 158.
Noel stated his decision to discharge Hennigan was influenced by the latter's
absenteeism and lateness. The only evidence in the record as to when Hennigan was
late or absent is in Respondent's presentation to the Appeal Tribunal. Those dates
are all before the times in June when it was claimed he was reported for drinking
but not discharged-before Respondent learned of the union campaign.
Noel's post hoc investigation disclosed only empty beer containers and Baker to
Christian and Faulk had accused Hennigan of throwing the beer containers over
the fence. Yet Beatty, the only witness to directly connect Hennigan to any job-
associated drinking after December 1964, testified to the purchase of one or two
half-pints of whiskey.
Finally, I note that though Noel testified that the responsible nature of a treat-
er's job required an employee who was at all times alert and thus Hennigan 's drink-
ing made him unfit for the task, Pace, Hennigan's replacement was an open and
notorious drinker, having been once convicted and again indicted for drunken driv-
ing, a record which I conclude Respondent knew or should have known of in a
town the size of Jasper (4,889). See T.I.L. Sportswear Corporation, 131 NLRB 176,
186.
All things considered, including Noel's incredible statement that to July 13 there
had been little or no discussion in the plant of union activity, in the face of Harper's
testimony that before leaving Jasper at 6 a.m. that morning he had charged Noel
with the responsibility of being alert to developments concerning the Union, I
discredit Noel.
I find that if Hennigan had in the past imbibed on the job Respondent tolerated
the habit, but would not tolerate his activities on behalf of the Union. Kem Distrib-
uting Company, supra. The record as a whole indicates that Respondent's reason
for terminating Hennigan's employment was a pretext. Accordingly, I find that
Respondent discharged Hennigan on July 13 because of his union activity, Kem
Distributing Company, supra; Great Leopard Market Corporation, Inc., d/b/a King
Jack's Foodarama, 150 NLRB 1384.9
C. The Union demands recognition
1. The making of the demand
Union Representative Shirley made his first demand for recognition on Thursday,
July 15. As noted supra (section III, B, 2) at the request of Hennigan and Marshall,
81 do not find the variation between Hennigan ' s stating at the instant hearing that he
had not been placed on probation after the December 1964 suspension and his admission
at the unemployment appeals bearing to a warning not to come to work after drinking of
so substantial a nature as to discredit his testimony.
9 The fact that Respondent did not discharge Marshall who was also named by Baker
as being responsible for the Union's campaign "does not exculpate [ it] from the charge
of discrimination as to those discharged ." N L.R.B. v. W. C. Nabors, d/b/a W C Nabors
Company, 196 F.2d 272, 276 ( C.A. 5) ; Nachman Corp. v. N.L.R.B., 337 F.2d 421, 424
(C.A. 7).
TEXAS ELECTRIC COOPERATIVES 449'
Shirley had deferred making his demand for recognition until after the vacation,
although a majority of the employees had signed authorization cards before July 4.
At about 2 p.m. on July 15, Shirley telephoned Respondent's plant and asked
for the plant manager. As Division Manager Harper was out of town, Shirley was
connected with Paul Noel , plant operations superintendent . ( Before leaving Jasper
on July 13, Harper had instructed Noel to be alert for any developments concern-
ing the Union.) Shirley informed Noel that he had a majority of the employees
signed to written authorizations for the Union and requested recognition. Upon
Noel's representations that Harper and not he had authority to act on such a
request, Shirley said he would put his demand in writing and the conversation
ended.
The same afternoon Shirley sent such a request by certified mail to Respondent,
attention of J. S. Harper, requesting recognition in a unit of
all production and maintenance employees engaged in receiving , treating,
shipping creosoted wood products and in maintaining the plant and equipment.
Excluding supervisors, office clerical workers, watchmen, truck drivers, pro-
fessional employees and any other employees specifically excluded by the
... Act.
In this letter Shirley offered "to prove majority through an impartial third party
at any time" and requested a meeting to negotiate a contract.
Harper learned of Shirley's telephone call to Noel on Friday, July 16. That same
morning, at about 10 a.m., Harper picked up Shirley's letter at the post office and
immediately advised Respondent's General Manager Cobb in Austin, of the Union's
demand. Cobb instructed Harper not to attempt any reply and set up a meeting in
Jasper for that evening with Harper and the supervisors which Cobb and Respond-
ent's counsel would travel from Austin to attend.
Early in the afternoon of July 16, Shirley reached Harper by telephone and
restated his request for recognition. Now it was Harper who denied authority to
respond, saying the answer would have to come from Cobb, who Harper claimed,
was out of town. Shirley offered to contact Cobb, but Harper said it would do no
good, telling Shirley there was "something to do with the Board of Directors and
the legal staff... ." Shirley then said he would send another letter, which was
mailed the following day, July 17. In addition to renewing his request for recogni-
tion, Shirley protested Hennigan 's discharge and protested also an alleged change in
working conditions effectuated subsequent to the Union's demand for recognition.
Shirley again spoke to Harper by telephone on the morning of Monday, July 19.
Harper complained of getting too many letters but told Shirley that Cobb and
Respondent's legal staff were working on his request for recognition. Thereafter,
Shirley sent into the Board's Regional Office a petition for a representation election
which he withdrew, however, before it was docketed upon being advised that the
Company had filed its own petition.
Later that week Shirley received Harper's letter of July 21, drafted by Respond-
ent's Attorney Addington, in which Respondent refused recognition, asserting "a
good faith doubt that [the] union represents an uncoerced majority of the employ-
ees in a unit appropriate for collective bargaining ." Respondent advised Shirley that
it had requested a Board conducted election , denied any consideration of union
activities in connection with Hennigan 's discharge but refused to discuss that or any
other matter concerning its employees ' terms and conditions of employment.
2. The unit
As I advised the parties during the course of the hearing, the Regional Director's
findings in Case 23-RM-159 as to unit and unit placement , as to which the Board
has denied review, are binding on me in the instant proceeding .'° In the Decision
and Direction of Election issued September 8, following a hearing on August 5,
the unit was defined as
All production and maintenance employees , including truck maintenance
leaderman , and the maintenance leaderman , . ' . excluding office clerical
employees , professional employees , truckdrivers , the shipping and inventory
clerk , the pole buyer , the crane checker, guards, and supervisors as defined in
the Act.
10 United Dairies, Inc., 144 NLRB 153, 154, footnote 4.
257-551-67-vol. 160-3 0
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Despite the binding effect of this unit determination, Respondent raised two issues
relating to unit which require my ruling. The Regional Director found Jesse James
Hensarling, the crane checker, to be a supervisor and excluded him from the unit.
The Board, by telegram of October 6, denied Respondent' s request for review of
the Decision and Direction of Election in all respects other than the unit placement
of Hensarling,ll which issue it held could best be resolved through the challenge
procedure and amended the decision to permit Hensarling to vote a challenged
ballot.12 As Hensarling's ballot could not affect the results of the election, the
challenge was not passed on. Thus, his unit status remains in limbo. Secondly,
Respondent argues that its watchmen are not guards and should be included in
the unit.
a. Hensarling's unit status
The Regional Director, relying primarily on Division Manager Harper's testimony
at the representation hearing, found that Hensarling responsibly directs the work
of other employees.
As summarized in the Decision and Direction of Election, Harper testified that
Hensarling's primary duty was to determine the accuracy of the sizes and classes of
poles handled in the treating yard, receiving written shipping instructions which he
took to the yard and there pointed out the particular poles to be loaded on trucks
and cars, kept a record and verified the count; that employees had been told that
Hensarling was a foreman and to take orders from him; and, that Hensarling was
to check the crane operator's work with regard to quality and quantity of work,
performance, and attitude. Harper stated, "It must necessarily be said that [Hen-
sarling] does direct some of the operations.
The crane crew, of which Hensarling was a member, consisted of the crane
checker, crane operator, and four laborers and was under the supervision of Ship-
ping and Inventory Clerk Joe Anthony, an admitted supervisor. Respondent con-
tended that Hensarling was a nonsupervisory plant clerical employee.
George A. Marshall, the crane operator, testified without contradiction, that
when loading black poles he received his instructions as to which poles to load
from either Anthony or Hensarling, whichever one was present and that Hensar-
ling had sent him home before the end of his regular schedule. Marshall further
stated that ". . . when [Hensarling] gets finished, he tells us that that will be
all for the day, or that's all the work he has."
Respondent introduced as its exhibit the time records of the crane crew for the
week of July 12 through 16. The daily time reports were signed by "Foreman J. J.
Hensarling." Plant Superintendent Noel explained that although Hensarling signed
the time sheets as "foreman," he was merely the leaderman or checker for the
crew who only passed on instructions from Anthony and kept the record of hours
worked, there being no timeclock. Noel himself approved the time sheets for pay-
ment to the employees. Noel further explained that Hensarling comes in an hour
early each day to clean the office, empty the waste baskets, and perform similar
functions.
At various points in the record testimony was offered about meetings held of
Respondent's supervisors at which the Union and its organizing campaign were
the subject. Nowhere does it appear that Hensarling was present at those super-
visor meetings.
On balance, I do not find that the evidence adduced in this proceeding supports
the Regional Director's decision. But for his statement that "[ Hensarling] does
direct some of the operations," Harper's description of Hensarling's duties is that
of a plant clerical. Marshall's testimony that he received directions from Hensarling
as to work he was to perform and when he was to go home is not inconsistent
with Hensarling being no more than a leadman relaying orders from Anthony.
Similarly, Hensarling signing the time records as "foreman" does not make him
such. Keeping a record of hours is too ministerial a task to indicate supervisory
"With respect to the matters on which the Board has denied review, the dental con-
stitutes affirmance of the Regional Director's actions. Carolina Natural Gas Corporation,
157 NLRB 674
12 Neither Respondent's request for review nor the Board's telegram of October 6 ruling
thereon were offered in evidence. The facts as to the appeal and the Board's action were
stated on the record by General Counsel without objection from Respondent.
TEXAS ELECTRIC COOPERATIVES 451
status, the title is part of the printing on the form and he line on which he
signed is the only logical spot to do so. Finally, in evaluating Hensarling 's role in
Respondent 's table of organization I find significant his exclusion from the super-
visor's meetings at which,umon strength was assessed and explanation given of the
role supervisors were to play in opposition to the Union. Accordingly, I find that
General Counsel has failed to prove that Hensarling has or exercises any of the
specific criteria of supervisory status set for the in Section 2(11) of the Act and
shall include him in the bargaining unit. Schwob Manufacturing Company, 129
NLRB 815.
b. The watchmen
Although their status was not litigated in the representation proceeding and their
names did not appear on the voter-eligibility list which Respondent prepared for the
October 8 election, Respondent contends herein that Barclay, Walker, and Williams
are watchmen to be included in the unit rather than guards who were properly
excluded.
The employees in question patrol the premises to report on or prevent fires if
possible. After normal quitting time for all employees, other than the treaters who
work around the clock, a fire is left burning in the incinerator to dispose of the
shavings and other wood waste generated by the plant's operations . Hennigan testi-
fied that on one occasion, watchman Williams put out a fire burning around the
edges of the incinerator.
A watchman is on duty all night from 5 p.m. for a 14-hour shift, and from
noon on Saturday until Monday morning. While on duty the watchmen make
hourly rounds during which they register their passing at key stations on their route.
Respondent's insurance requires that there be a watchman on duty at night. Other
than the treaters there are no employees in the plant during most of the time that
the watchmen are on duty.
In past years two watchmen carried firearms but the incumbents do not. Melvin
Faulk, who worked as a watchman during vacation, was given a key to the time-
clock and told to make regular rounds but was not given a weapon. He was in-
structed to watch for fires and to call the town fire department if one broke out.
Additionally he was told to keep trespassers off Respondent's property and if they
refused to leave at his request he was to call the sheriff. Hennigan recalled seeing a
watchman no longer employed by Respondent stop people from coming on com-
pany property one night about 12 midnight or I a.m.
In the affidavit submitted by Respondent to the Appeal Tribunal in opposition to
Hennigan's application for unemployment insurance, it was the night watchman
who was claimed to have reported Hennigan for drinking on the job.
Two of the watchmen, Barclay and Williams, spend their entire workweek on
their watching duties, while Walker spends about 30 hours per week on that task
and fills out the rest of his week working in the yard. Eugene Baker fills out the
watchmen's time reports, but they work under the supervision of Paul Noel, the
plant superintendent.
The record establishes that the watchmen are authorized to take personal action
to enforce company rules and have in fact exercised the authority. They are author-
ized to call the sheriff or fire department if the situation arises; they are respon-
sible for apprehending persons who are on company property without permission
and the uncontradicted evidence on the record is that on one occasion a watchman
barred persons from coming on the premises after hours . As the watchmen are
responsible for enforcing Respondent's rules for the protection of its property, I
find that they are guards within the meaning of the Act and shall exclude them
from the unit. West Virginia Pulp and Paper Company (Hinde & Dauch Division,
Detroit Plant), 140 NLRB 1160, 1162-64.
3. The cards
Pursuant to subpena , Respondent furnished a list of employees as of July 15
showing job classification for each. On this list of 43 names were the five truck-
drivers excluded from the unit in the Regional Director's Decision and the three
watchman whom I have found to be guards. Subtracting these from the list, 35
names remain . However, Wayne Hennigan, who I have found was discriminatorily
discharged , must be added , resulting in a total of 36 employees in the unit on the
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day the Union first demanded recognition. I find 28 of the authorization cards 13'
introduced by General Counsel to be valid designations of the Union as bargaining
representative executed prior to July 15, the date of the Union's first demand.14
Thus, at all times material the Union represented a clear majority of the employees
in the unit.
Of the 28 valid designations, 9 were acknowledged by the signers. These were
Elisha Adams, Jr., Nathanial Ashworth, Herman Dean, Melvin Faulk, Willie Limb-
rick, George A. Marshall, Jessie Lee Shaw, Watson T. Thomas, and Wayne Hen-
nigan. In addition to the 28, Edgar Hadnot, who signed his card on July 19, identi-
fied his authorization. Each of these employees gave testimony manifesting clear
intent to designate the Union.
Wayne Hennigan credibly testified to having witnessed the signatures of Ray
Beatty, Hubert Fowler, Eddie Gilbert, James Stanley, and O. K. Wysinger. In
addition, Hennigan identified the cards of J. E. Christian and Marvin Whinery as
having been returned to him by the signers after execution.
George Marshall credibly testified to having been present and witnessed the
signing of union authorization cards by Wade Diggles, Ella Horn, Jr., Andrew
Johnson, John L. Lummus, Maurice Reid, William Runnels, Jr., James Spikes, and
Jessie L. Williams. As to the signatures of Runnels and Williams, Marshall was
able to refresh his recollection of having been present at their signing by examin-
ing his own countersignature on the back of the cards. In addition, Marshall
identified the cards of C. L. Kenebrew and Marvin Simmons as having been
returned to him by the signers. By his own admission Marshall was almost totally
unable to recall dates. Marshall candidly stated that he could not positively iden-
tify certain cards and I rejected the offer of those designations based on his
imprecise recollection. However, I note that Adams and Ashworth in the course of
identifying their cards, corroborated Marshall's testimony that he had received the
cards back from them.
Two cards were offered for U. Z. Kenebrew. The first, signed but otherwise
blank, the second complete and dated July 19. Marshall testified to having wit-
nessed Kenebrew sign the otherwise blank card at the same time as Andrew John-
son and Earnest Kenebrew signed their own cards dated July 13. The second card'
was authenticated by union representative Shirley, who testified that Kenebrew
acknowledged his signature on the blank card and then signed the second card after
Shirley filled in the body. I find that U. Z. Kenebrew's first card was a valid'
designation of the Union as of July 13.15
I rejected the card of Van Dubose when Marshall could not recall how the
signed card came to him, stated that he had not seen Dubose sign the card and
was only sure that he had given Dubose a blank card. The card was subsequently
reoffered after Elisha Adams testified that Dubose signed in Adams' presence at
the same time Adams signed his own card. At that time I again rejected Dubose's
card. On reviewing Adams' testimony, noting Adams' credible account of witness-
ing Dubose signing in the context of the active organizing among the employees, I
now accept Dubose's card as a valid designation of the Union.
Respondent raised certain general objections to all of the cards. First, Respond-
ent argued that no showing had been made of a lack of coercion in solicitation of
the cards and sought to place the burden of showing an absence of coercion on the
General Counsel because of his greater ability to gather evidence. Contrary to
"The cards are beaded "AUTHORIZATION CARD" and contain the following lan-
guage above the spaces calling for information from the employee and his signature :
I hereby authorize the UNITED BROTHERHOOD OF CARPENTERS AND JOIN-
ERS OF AMERICA to act as my collective bargaining agent in dealing with my em-
ployer in regard to wages, hours and other conditions of employment, and in
proceedings before the NLRB and other governmental agencies. All previous authoriza-
tions made by me are revoked.
Nowhere on the card or in the record does it appear that the employees were induced to
sign these cards to support a union -filed petition for election. I find the cards are an un-
ambiguous designation of the Union to act as bargaining agent See N.L.R.B. v. Peterson
Brothers, Inc., 342 F.2d 331 (C.A. 5).
14 The cards of S. E. Simmons and Charles J. Hammonds are not included as these em-
ployees do not appear on the employment list as of July 15, having apparently terminated
their employment prior to that date.
15 Conrei, Inc, d/b/a Great Scot Supee Market, 156 NLRB 592.
TEXAS ELECTRIC COOPERATIVES 453
Respondent, the better rule would be and is that the burden of going forward with
the evidence falls on Respondent and requires it to show the fact of coercion
rather than to charge General Counsel with the duty of proving the negative. 1
Jones, Evidence § 208 (5th ed. 1958); Sheffer Corporation, 158 NLRB 148, foot-
note 2. In any event; other than the suggestion of coercion in questions asked by
Respondent's counsel and their arguments in support of the relevancy of the line
of questioning, the record is devoid of any evidence supporting even an arguable
question of undue influence in the solicitation of the cards. See N.L.R.B. v. Great
Atlantic and Pacific Tea Company, Inc., 346 F.2d 936 (C.A. 5). Moreover, at the
close of the General Counsel's case on February 4, 1966, immediately before the
hearing went into recess for 5 days, Respondent was permitted to take the duplicate
exhibit photocopies of the cards. The following Thursday, Respondent returned the
duplicate cards without a further word being said by it in challenge to the authen-
ticity of the cards or on the issue of coercion. See Irving Taitel, Ruth Taitel and
Jerome Taitel, d/b/a I. Taitel and, Son, a partnership, 119 NLRB 910, 912. Fi-
nally, Beatty, the one employee witness called thereafter by Respondent, conceded
the authenticity of his card solicited by Hennigan. Accordingly, I find the evidence
insufficient to establish that any threats or coercion were used to induce employees
to sign authorization cards. Purity Food Stores, Inc., 150 NLRB 152.
Second, Respondent challenges certain of the cards because the signers were
uncertain of the identity of the union they had authorized to represent them. How-
ever, in the absence of evidence to indicate the presence of any competing union
attempting to secure their allegiance, no basis exists for a finding that the employees
had designated the Union in error. Cf. International Brotherhood of Electrical
Workers, Local Number 59 (Anderson Company Electrical Service), 135 NLRB
504, 505.
Finally, Respondent objected to the receipt of certain of the cards arguing it
appeared that the purported signers "are or may be illiterate and unable to read and
understand the card. ... The testimony of the employees who were or appeared
to be illiterate made clear their full awareness that by their cards they designated
the Union to represent them and indeed , several in this group had sought out the
solicitors to secure the cards. Accordingly, I find no merit to this objection to
receipt of the cards. General Steel Products, Inc., 157 NLRB 636.
4. Conclusions and findings
Although Respondent stated in its petition for election that July 15 and 17 were
the days on which the Union demanded recognition it now contends that the proper
dates should be July 16 and 19 , the days on which the demand was communicated
to an authorized official of the Company . In view of Shirley 's failure in his con-
versation with Noel on July 15 to spell out the unit in which recognition was sought,
I do not find this otherwise sufficient demand 16 to be one which raises a duty to
bargain . However , Shirley's letter of July 16 , received by Division Manager Harper
at 10 a.m. in the morning of July 15 was a sufficient demand . I am at a loss to
understand Respondent's urging that Harper did not have authority to reply to the
Union 's demand when it was Harper who signed Respondent 's letter of July 20
refusing to grant recognition .17 In any event, shortly after receipt of Shirley's letter
on July 16, Harper communicated its contents to General Manager Cobb , conceded
by Respondent to have sufficient power to act thereon.
The only yardstick in the record against which the valid authorization cards can
be measured to determine the Union's majority status is the list of employees as of
July 15. I have found that on that day there were 36 employees in the unit found
appropriate. I also have found that prior to that date 28 of those employees had
signed valid , unambiguous authorization cards designating the Union as their
collective-bargaining agent. I find, therefore, that at all times on and after July 15,
the Union was designated as the collective-bargaining representative by a majority of
Respondent's employees in an appropriate unit.
D. The events following the Union's demand
As noted, after Harper picked up Shirley's letter at the post office on July 16, he
called General Manager Cobb in Austin. Cobb instructed Harper not to attempt a
11 hf Benevento Sand & Gravel Co., 131 NLRB 358, 367.
17 Skyline Homes, Inc. v. N.L.R.B., 323 F.2d 642, 648 (CA. 5), cert. denied , 376 U.S. 909.
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reply and schedule a meeting for that evening in Jasper, to be attended by Harper,
his supervisors, Cobb, and Company Counsel Hunter, who would travel from Austin
to attend. When Shirley spoke to Harper that afternoon, Harper disavowed authority
to answer the Union's demand and told Shirley the answer would have to come
from Cobb. Harper not only untruthfully told Shirley that Cobb was unavailable,
he also failed to advise Shirley that his demand would be considered at a meeting
of company officials that evening.
1. Surveillance on the highway
That afternoon Joe Anthony, an admitted supervisor, spotted Shirley waiting out-
side the plant to contact employees as they left work for the day. Anthony drove
back into the plant and as the employees drove out, Anthony and Martin Lacy,
Eugene Baker, and Paul Noel fell into the line of traffic and followed Shirley, slow-
ing down when he slowed down, turning when he turned, and stopping when he
stopped. As a result Shirley did not speak to any employees that afternoon. In
Shirley's words, "I didn't have much luck there." Employee Jessie Lee Shaw cor-
roborated the foregoing account but placed the date as 1 week later. Anthony
admitted the incident, saying, "I wouldn't say we went much out of our way to get
behind him, but we were behind him." I find that by this conduct Anthony and the
other named supervisors engaged in unlawful surveillance of the Union's repre-
sentative and the employees and interfered with protected activity.
2. Respondent prepares to refuse recognition and petitions for an election
Friday evening, Cobb and Attorney Hunter held their meeting with Harper and
the supervisors. Harper testified that the supervisors were asked to tell what they
knew of the Union's campaign and of employee discontent. An attempt was made
to determine which of the employees might be interested in the Union by going
over the payroll, name by name. The discussion revealed that some supervisors had
engaged in surveillance of Shirley and one had interrogated employees. "We were
advised from that point on to not exercise any surveillance or enter into any dis-
cussion with any of the employees," Harper testified. At the meeting, Harper alluded
to the high percentage of Negroes, mostly uneducated, among Respondent's work-
force and recalled that when he had been a member of the Union in 1948, it was
not known to seek Negro members.
Saturday morning, July 17, Respondent retained Floyd Addington, a local
attorney and district attorney for Jasper County. At a meeting with Cobb, Hunter,
and Harper, Addington was brought up to date on previous discussions. Addington
testified that he noted Shirley's exclusion of truckdrivers in his demand and com-
'mented that Shirley had included them in his demand to the Visador Co 18 He
added that Shirley had claimed to represent a majority of Visador's employees but
had failed of proof. The composition of Respondent's work force was discussed
and Addington was told that over half were Negro and a large majority of all
employees were illiterate or close to being illiterate. Hunter brought up the Union's
reputation of being a white man's union. Addington did not know this in his
representation of Visador, Addington had come in contact with Negroes who had
indicated affiliation with the Union and he knew that one of the discriminatees in
the Visador case was a Negro. Further, Addington knew Shirley and knew that
Shirley had obtained authorization cards from Negroes. After Hunter gave his
opinion about the Union and Negroes, Addington "told him I didn't know, that I
wasn't aware of it." Addington testified he was more concerned with the illiteracy
of the employees than the race issue.
Addington was told there had been some interrogation and some surveillance and
that instructions had been given to stop.
Based on his experience with Shirley and the Union, Addington stated, he recom-
mended that Respondent petition for an election. This suggestion shocked Attorney
Hunter. No decision was reached that day but on Monday, July 19, Hunter agreed
with Addington's approach. Tuesday, July 20, Harper and Addington met in Hous-
ton and filed Respondent's petition with the Board's Regional Office. The next day,
Harper sent the letter which had been prepared by Addington, refusing to grant
recognition to the Union.
On Friday, July 23, Addington met with Harper and the supervisors, for the pur-
pose, he testified, of bringing them up to date on the union problem and to issue
18 The Visador Co., 157 NLRB 1552.
TEXAS ELECTRIC COOPERATIVES 455
instructions on what they were and were not to do. He told them not to discuss the
Union with employees and if one brought up the subject the supervisor was to say
he was not permitted to talk about it. As well, he told Noel not to get involved in
an antiunion petition circulated by maintenance man Parks.19
Addington did not instruct the Company to disavow to the employees the inter-
rogation and surveillance which had occurred and did not know of it having been
done.
3. Additional acts of interrogation and surveillance
Assuming that on July 16 the supervisors were told to cease their interrogation
and surveillance, their actions belie an understanding of the urgency of their
instructions.
Jessie Lee Shaw was late to work on Monday, July 19, because of a flat tire.
After Supervisor Lacy suggested that Shaw should have called union representative
Shirley for a ride to work, Lacy asked if Shaw had gone to the union meeting the
previous day. Shaw, who had attended, denied that he had gone.20
The following day, July 20, Melvin Faulk was working with Supervisor Eugene
Baker and employee Beatty boring poles. Baker pointed to George Marshall's crane
crew and said they would be sent home early. He then pointed to Faulk and said
he had a good mind to send Faulk home as well because he was a union man.
Beatty, called as a witness by Respondent, recalled Baker saying "there was a union
bunch yonder," as they worked boring poles, thus lending substantial support to
Faulk's account. As noted, Baker did not testify.21
Shirley held a union meeting at the American Legion Hall on Wednesday after-
noon, July 21. The meeting started at 4 p.m. and ran until after 7 p.m. to accom-
modate employees working overtime. About 15 employees attended and some stayed
the entire time. The Legion Hall is located on a dead-end road beyond which are
several ball fields and tennis courts. Across the road and beyond a parking lot is the
town youth center. The parking lot is used as the turn-around point for those going
to the youth center or leaving the Legion Hall. The ball fields were not in use that
afternoon but Shirley had seen some youngsters go into the youth center. As the
meeting was in progress several employees in the Hall saw Anthony and Lacy
drive by slowly in the latter's car. Shirley, Hennigan, and James Stanley went out
to the front steps of the Legion Hall and as the car made its turn around and passed
the youth center, Hennigan waved and Lacy threw up his hand in recognition.
Lacy's car then made its way down the road. Shirley, Hennigan, Jessie Lee Shaw,
Anthony, and Lacy all testified as to the incident. Other than Lacy stating that he
stopped his car in front of the youth center there is no serious conflict as to the
facts of occurrence. The dispute goes to the purpose.
Anthony testified that at about 4:30 p.m. he and Lacy drove to the youth center
to pick up Lacy's teenage son. As they drove up to the Legion Hall Shirley, Henni-
gan, and Stanley were standing in front. They drove around to the youth center
and could see that the boy was not there because the front of the building is all
glass. When they returned to the plant they informed Harper and Noel that there
had evidently been a union meeting. Harper told Lacy and Anthony not to go back
to the area and if their children used the youth center to make other arrangements
for their transportation. Lacy in substance corroborated Anthony's testimony but
added that he returned to the youth center despite Harper's injunction.22
ib Parks was found by the Regional Director to be in the unit, rejecting the Union's con-
tention he was a supervisor General Counsel was permitted to introduce evidence of Parks'
activities in circulating his petition subject to a motion to strike for failure to connect
Respondent to those activities. My review of the record disclosed no evidence connecting
Respondent to Parks' activities. Accordingly I now sustain the motion to strike all such
testimony.
20 Though Lacy testified he did not deny this incident
a Faulk testified to an incident involving cigarettes and Supervisor Baker. Though it is
referred to in General Counsel's Memorandum to the Trial Examiner the matter was not
developed on the record Accordingly, I have attached no weight to the incident.
re I find that Lacy and Anthony drove by the American Legion Hall to spy on the union
meeting. Aero Corporation, 149 NLRB 1283, 1305. Their testimony lacked candor and
neither impressed me as a credible witness. Moreover I note that as on July 16 when they
pursued Shirley on the highway, Lacy and Anthony drove past the Legion Hall during
their regular working hours . Under all the circumstances, including my observation of the
demeanor of the witnesses, I do not credit Lacy's and Anthony's tale of passing the
union meeting on their way to pick up Lacy's son.
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Melvin Faulk planned a party for Saturday night, July 24, to which he invited
Eugene Baker, his long-time supervisor. Saturday afternoon Baker came to Faulk's
home and asked if Faulk had obtained the refreshments for the evening. Baker then
asked Faulk if he had changed his mind about the Union and urged Mrs. Faulk
to talk sense to her husband. She replied that her husband had a mind of his own.
Faulk testified that Baker then said to her he had a good mind to get out of his
car and "kick your butt." Baker warned that if the plant went union the paid holi-
days, Christmas bonuses, and "stuff like that" would be cut out. The Company
would shut down before they went union, Baker warned.23
I find that by these acts of interrogation, threats of economic reprisal, solicitation
of withdrawal of union support and surveillance Respondent violated Section
8(a)(1) of the Act.
4. The demotion of Melvin Faulk
a. The facts
Melvin Faulk was hired by Respondent in 1964 as a maintenance man at $1.25
per hour. Sometime in April he was assigned to operate the dinky (diesel locomo-
tive) at which time Baker said the job paid more than maintenance work. The
previous dinky driver had been paid $1.35 per hour.
During the vacation Baker interrogated Faulk in the shower-room incident.24
Monday morning, July 12, Baker first asked if Faulk had signed a union card and
when Faulk admitted that he had, told him he should not have done so. The same
afternoon Baker told Faulk again he should not have signed a union authorization
to which Faulk replied, "Well, Mr. Baker, what's done is just done done. I can't
undo it."
On July 20, Baker pointed to Faulk and said he had a good mind to send him
home early because he was a union man.
Faulk's hourly wage was raised to $1.35 per hour effective the second half of
July, after Faulk had been the dinky driver for about 3 months. Baker spoke to
Faulk at the time saying, "That union, you ought to forget about that union, I'm
giving you this raise " Faulk replied he had signed a union card and was not back-
ing out now. Faulk's pay for the second half of July was $1.35 per hour.
Baker informed Faulk on Friday, July 23, that the dinky operation would be
transferred the following Monday, July 26, from Baker's supervision to that of
Martin Lacy, the pole yard supervisor.
The next day Baker called at Faulk's home, once again asked him to withdraw
from the Union, and threatened economic reprisal if the Union were successful.
Monday, Faulk came under Lacy's supervision. Because of a headache Faulk
did not return to the plant after going home for lunch on Wednesday, July 28. He
asked his son to telephone the plant from a neighbor's phone and inform Lacy that
he would not return that afternoon. Thereafter, his son told Faulk he had spoken
as directed to Lacy who said it was all right.
On reporting for work Thursday morning, July 29, Faulk discovered another man
operating the dinky. Lacy assigned Faulk to collecting sawdust, pole ends, and other
rubbish which he took by wheelbarrow to the furnace for burning.
The paycheck Faulk received on August 16 was calculated at $1.25 per hour.
He went to Lacy 2 or 3 days later to say he was thinking of quitting. Lacy urged
him not to and after a night's reflection Faulk decided to stick it out.25 Faulk filed
his charge on August 19, in Case 21-CA-2137, alleging his demotion was an unfair
labor practice.
Lacy testified that the dinky driver had to be dependable, being called out on
occasion at night to pull loads from the treating cylinders. Faulk began to be late,
some days he didn't show up at all and would call in and give all kinds of excuses.
Finally, Lacy told Faulk someone more dependable would be put on the job the
next time he was late or absent. Accordingly, the next time Faulk wasn't there,
Lacy transferred him to "driving the wheelbarrow."
23 This account is based on the uncontradicted testimony of Faulk. While Baker was
invited to a party to be held Saturday night, his afternoon visit was not initiated by Faulk.
I find that Baker utilized the pretext of checking on party arrangements to try once
again to secure Faulk's withdrawal from the Union and to threaten economic reprisals in
the event of a union victory.
24 See section III, B 3, supra.
25 To this point the narrative is based on Faulk's uncontradicted testimony, which I
credit.
TEXAS ELECTRIC COOPERATIVES 457
Plant Superintendent Noel testified in support of Lacy. Noel stated that on more
than one occasion-he couldn't be sure exactly how many-Lacy had called to his
attention the fact that Faulk was absent or late and noted as well Faulk's inability
to work on some days. It seemed that Faulk was in a cloud, did not function
properly or understand instructions. However, Noel said, Faulk was capable of being
a good hand when he applied himself. Finally, Lacy informed Noel one day that
Faulk had not come into work that morning despite a warning he would be removed
from the dinky the next time he was absent or late without a reasonable excuse.
Accordingly, Noel approved Lacy's assignment of a new driver to the dinky. Noel
denied there had been any discussion of Faulk's union activity. He acknowledged
that Faulk had operated the dinky for a longer period under Baker than Lacy and
had received a 10-cent raise while working under Baker.
b. Analysis and findings
Faulk's demotion followed Baker's unremitting and unsuccessful campaign to
bring about a switch in his allegiance. Baker repeatedly questioned and warned
Faulk about his union adherence. When finally giving a long-promised and long-
delayed wage increase, Baker coupled the grant with a renewed suggestion that
Faulk abandon the Union. He asked Mrs. Faulk to talk sense to her husband and
when she refused, threatened economic reprisal should the Union succeed. Despite
all this effort, Faulk insisted that "what's done is just done done." Thereafter, Faulk
was transferred to Lacy's supervision and was shortly demoted to a menial job.
Thus, I find that General Counsel has proved a prima facie case of demotion for
discriminatory reasons.
The explanation offered by Lacy and Noel is just incredible. Effective Monday,
July 26, Faulk came under Lacy's supervision. He worked for Lacy 3 days and was
demoted on Thursday, the fourth day. Yet, it is Lacy's testimony that Faulk "got
where in the morning sometimes he was late getting out, and it got to where some
days he wouldn't even show up at all, he would call in and give all kinds of
excuses." And Noel would have us believe that on more than one occasion Lacy
had complained to him of Faulk's absences, lateness, and on some days his inability
to properly perform his job. All in 3 days. I note that Respondent offered no evi-
dence of Faulk.being absent or late on either July 26 or 27 and thus there appears
to be no basis for Lacy having issued the warning to Faulk it is claimed preceded
the demotion. Moreover, no evidence was offered that Baker had found Faulk want-
ing in his job performance and in fact had given Faulk a wage increase shortly
before the transfer of the dinky operation to Lacy's supervision. Cf. David W.
Onan, et al., d/b/a D. W. Onan & Sons v. N.L.R.B., 139 F.2d 728, 730 (C.A. 8).
As with Noel's account of Hennigan's shortcomings, Faulk's asserted derelictions
are bigger than life, vague, and painted with a broad brush. As noted, I found that
Lacy's testimony lacked candor. On my observation of their demeanor while testify-
ing and the inherent falsity of their testimony, I discredit Lacy and Noel. Accord-
ingly, I find that Respondent demoted Faulk on July 29 because of his union adher-
ence and thereby violated Section 8(a)(3) and (1) of the Act.
c. Faulk voluntarily leaves Respondent
In September Faulk decided to give up his job with Respondent. He so notified
the Company and asked that his final paycheck be ready for him to pick up the
following Saturday.
At the hearing herein General Counsel amended the complaint in Case 23-CA-
2194 to allege that on September 25, Division Manager Harper violated Section
8(a)(1) by threatening to withhold Faulk's check and to blackball him from future
employment because of his union activities.
When Faulk came to Harper's office on September 25, to pick up his final check,
Harper first asked that he sign claim forms covering his own and his son's recent
hospitalizations. Faulk testified that Harper then produced another form and asked,
"Melvin, don't you want to sign this other paper for the lawsuit." Faulk refused
and Harper went on, "Well, Melvin, I could make it light for you on your next job
if you were to sign it." Faulk still refused and asserts that Harper threatened to hold
the paycheck and fire Faulk for not signing. Shortly thereafter, Faulk left with his
check and without having signed the document.
Harper identified the form which stated only that Faulk had resigned of his own
free will. The prepared form, which Respondent started using after the Union's
organizing campaign began, had space for the supervisor's signature . In Faulk's
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case a line had been drawn in ink for his signature . Harper denied threatening to
withhold the check if Faulk refused to sign. He did tell Faulk that a signed state-
ment saying he had voluntarily quit would help Respondent in making a recom-
mendation if ever called upon by another employer.
Had Faulk signed the form he would have been acknowledging no more than the
truth I draw no inference adverse to Respondent from its inauguration of the form
after appearance of the Union and the added feature in Faulk's case that he was
asked to sign. In view of the two unfair labor practices already filed against
Respondent , the form and the request that Faulk sign appear to be no more than
a commonsense , protective measure against a misinterpretation of Faulk's termina-
tion. Considering the innocuous nature of the document and his having received his
check with no further to-do, I do not credit Faulk 's recollection of the exit inter-
view. Accordingly , I shall recommend dismissal of this allegation of the complaint.
5. Preelection interrogation , threats, and promises
Hearing was held on Respondent 's petition for election on August 5. The
Decision and Direction of Election issued on September 8 and the election was con-
ducted on October 8.
Watson Thomas testified to a conversation in August with Plant Superintendent
Noel while they were working together . Noel first asked how Thomas and Mr.
Shirley were . When Thomas said they were fine, Noel asked if very many employees
had been to the union meeting, and Thomas told him not many had attended. Noel
expressed wonder, to which Thomas replied he didn 't know why but "they might
have been scared." A short while later Noel added , "Pop, you ain't going to let
that old man mess you up, are you?" Thomas opined he was "getting too old now
to get messed up." Noel recalled working with Thomas in the yard during August.
However Noel was sure there had been no discussion concerning the Union or its
effect on Thomas . I found Thomas to be a credible witness whereas , as noted, Noel
did not impress me as a reliable witness. I find that the conversation took place as
testified to by Thomas.
Herman Dean testified that several weeks before the election Noel asked him how
the employees were coming with their union. Dean denied knowledge and then
Noel jokingly said the Union would be hard on him because he would have to stay
in his office and not get any sunshine or exercise in the yard . Noel added that the
employees could vote any way they pleased . This account is based on Dean's uncon-
tradicted testimony , which I credit. Though Noel testified , he did not contravene
Dean. Despite Noel having concluded his conversation with Dean in a jocular man-
ner, I find this did not exculpate his otherwise unlawful interrogation.
Approximately 1 week before the election , Addington met with the supervisors
and instructed Lacy and Noel to speak to each of the employees urging them to
vote in the election. He testified they were told not to ask the employees how they
were planning to vote.
Lacy approached Herman Dean and asked how the "boys" were doing with the
Union. Dean denied knowledge . Lacy then said, "I got one or two of these hard
heads, I just don't understand them . I just don't understand his ways." Lacy asked
Dean to talk to these employees whom he identified as Edgar Hadnot and "Bou-
quet." Dean said he would try . Several days later when Lacy asked if Dean had
been able to handle the "boys," Dean put him off by saying he had not had time.
Lacy denied that he interrogated any employee as to how he was going to vote.
Edgar Hadnot testified that he came to Lacy several days before the election to
fill in an insurance claim form . Lacy asked what did Hadnot "think about it." Had-
not replied that he did not know, he just wanted more money and "if it pass it
will be all right and if it didn 't, all right." Lacy then told Hadnot he was up for a
pusher's job and if the Union was defeated , he would probably get the job. Respond-
ent challenged Hadnot's credibility on the basis of his admitting to convictions on
three counts of burglary and by offering into evidence certified copies of four con-
victions . Lacy explained the offer to Hadnot on the grounds he "was the only man
that I had had since I had been in Jasper that I could tell what I wanted done early
in the morning and not have to follow him through the rest of the day "
Lacy admitted telling Hadnot that after "this was all settled and over" Respondent
might do something, such as make him a leaderman, but that nothing could be
done now because it might be considered a bribe. Hadnot thereafter served as the
Union's observer at the October 8 election . I find that any damage to Hadnot's
credibility flowing from his felony convictions is more than offset by Lacy 's lavish
TEXAS ELECTRIC COOPERATIVES 459
praise of his dependability. In any event, from my observation of his demeanor
while testifying, I would credit Hadnot over Lacy when the latter's credibility is
measured against the same yardstick. I find that Hadnot could reasonably have
concluded that Lacy was referring to the Union when he asked what Hadnot thought
about "it." Stewart & Stevenson Services, Inc., 133 NLRB 1152. I find further that
Lacy's offer of a probable leaderman job in the event of the Union's defeat was an
unlawful promise of benefit.
Lacy's offer of a probable leaderman's job to "hard-head" Hadnot, lends sub-
stantial support to Dean's claim that Lacy asked him to talk to Hadnot and "Bou-
quet." I find that in the circumstances Dean reasonably understood Lacy as asking
him to speak to the employees in opposition to the Union, Steward & Stevenson
Services, Inc., supra. I find further that Lacy's recruiting of Dean to speak to the
"hard heads" was, in the circumstances, more than a mere request, in effect direct-
ing or instructing him to participate in Respondent's antiunion campaign. S. & H.
Grossinger's Inc., 156 NLRB 233.
Jessie Lee Shaw credibly testified that the day before the election Lacy first
reminded him that the election would be held the next day and then asked, "Well,
which one you going to vote for?" Shaw avoided the question by stating he would
vote for the best one.
I find that by these acts of interrogation, threats, offer of benefit conditioned on
defeat of the Union, and recruitment of an employee to participate in its antiunion
campaign, Respondent violated Section 8(a)(1) of the Act.
6. Harper's preelection speech
On October 7, the day before the election, Division Manager Harper addressed
the assembled employees. This speech was the subject of an Objection to Election
filed by the Union, which, with others,26 was consolidated for hearing with the com-
plaint proceedings. The speech itself was alleged to violate Section 8(a)(1) in an
amendment made at the hearing to the complaint in Case 23-CA-2194.27
Employees Dean, Hadnot, Thomas, and Shaw all testified concerning the speech.
Their testimony was more in the nature of their impressions, rather than a report
on what Harper said. However, a transcript, taken from a tape recording made
while the speech was delivered, was introduced. The speech runs 18 pages and will
not be reproduced herein.
The thrust of Harper's speech was that the total compensation package received
by the employees was greater than that enjoyed by others working for employers
under contract to the Union. Harper referred to statistics compiled by the Southern
Pressure Treaters Association and to conditions of employment spelled out in a
contract the Union had negotiated with a plant in the same industry some 60 miles
from Respondent. In summarizing and comparing the dollar value of the fringe
benefits enjoyed by Respondent's employees as against those of the unionized
employer, Harper referred to the lesser amount received by the latter's employees
as money they had "lost."
After his lengthy analysis of the fringe benefits, just before concluding, Harper
digressed saying.
A few more little things we would like to bring to your attention. You
remember back last Wednesday, on the 29th, when there wasn't any poles for
the machine? What day was it this week that we didn't run any poles? On
Monday. What happened? We found work for everybody at the pole yard.
They didn't have to go home that day.
Now, we are wondering if a contract could be made, it would permit you to
work at other jobs. Now, we know definitely that if a contract is agreed upon
that has job classification and job descriptions in it, where you are assigned to
one particular job, that that couldn't have happened. Now, if you recall, this
happened several times other than just last week and this week, too.
Now here is some things that the union can do for you. It can charge you
a membership fee. It can and will charge you monthly dues. It can promise
26 See infra section IV, Report on Objections.
27 The amendment, read into the record by General Counsel, alleges :
On or about October 7, 1965, Respondent's manager Jess Harper, at a meeting of
virtually all of Respondent's employees threatened employees with the loss of work and
wages in the event that a majority of them voted in favor of the union.
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you almost anything. It can create unrest and ill will. It can-cause you to lose
communication, and if the contract should include job classification it could
cause many of you to lose some hours that you are now making when you
run out of one particular job, maybe couldn't put you on cutting grass or
something of that kind.
I do not find that Harper's characterization of the unfavorable earnings of the
unionized workers as money "lost" was a threat that Respondent's employees
would lose wages in the event of a union victory. However, I find that the quoted
paragraphs, in the context of Respondent's antiunion campaign,28 unmistakably
informed the employees that in the event the Union won the election the working
conditions would be different and worse for them. It implied that the employees
would be sent home when poles were not available for treating rather than be given
other work as at present. By threatening that if the Union won the election
employees would be laid off if poles were not available for treating, Respondent
interfered with, restrained, and coerced the employees inviolation of Section 8(a)
(1). Harvey Aluminum (Incorporated), 156 NLRB 1353.
E. Conclusions conceiving Respondent's refusal to iecognize
and bargain with the Union
I have heretofore found that on July 16 the Union unequivocally demanded rec-
ognition in a unit appropriate for the purposes of collective bargaining. I have
further found that on that day the Union represented a clear majority of the
employees in the unit who had signed unambiguous authorizations to it to act as
their bargaining agent. Thereafter, Respondent petitioned for a representation elec-
tion. However, Respondent as well engaged in surveillance of the Union's organizer
and the protected activities of its employees; coercively interrogated employees
about their own and the union activities of other employees; made promises of
benefit if the Union was defeated; demoted Melvin Faulk because of his stubborn
refusal to abandon the Union; solicited an employee to participate in Respondent's
antiunion campaign; and, in a speech to the assembled employees threatened less
favorable employment conditions should the union triumph. Under all the circum-
stances, I conclude that Respondent's unlawful course of conduct belies its asserted
good-faith doubt of the Union's majority status in an appropriate unit. I find that
Respondent refused recognition and thereby violated Section 8(a)(5) and (1) of
the Act, because of its "desire to gain time and to take action to dissipate the
Union's majority." N.L.R.B. v. Joy Silk Mills, Inc., 185 F.2d 732, 741 (C.A.D.C.),
cert. denied, 341 U.S. 914; Skyline Homes, Inc. v. N.L.R.B., 323 F.2d 642, 649
(C.A. 5), cert. denied, 376 U.S. 909.
In these circumstances, the appropriate remedy to cure the mischief caused by
Respondent's actions previously stated, is an order requiring Respondent to bargain
with the Union. Bernel Foam Products Co., Inc., 146 NLRB 1277; Engineers &
Fabricators, Inc., 156 NLRB 919 (TXD).29
I find no merit in Respondent's contentions that its good faith is evidenced by
the instructions issued to the supervisors to refrain from further acts of interroga-
tion or surveillance; by its belief that Shirley's exclusion of the drivers from the
unit sought from Respondent while such employees were included in the demand
to the Visador Company, made the unit requested inappropriate, and, by its belief
that the Union is a "white man's union" and therefore could not have secured the
allegiance of a majority of the employees.
Assuming the supervisors were in fact instructed to cease their surveillance, inter-
rogation, and conduct otherwise interfering with the employees' protected activities,
there is no showing the instructions were communicated to the employees. "[S]uch
instructions are of no avail to relieve an employer from imputed liability for state-
ments made by supervisors unless the instructions are also communicated to the
employees." N.L.R.B. v. Ace Comb Co., 342 F.2d 841, 844 (C.A. 8). "It is what
^ "The nature of the materials is, of course, relevant as an attribute of the defendant's
conduct, but the materials are thua placed in context from which they draw color and
character. A wholly different result might be reached in a different setting " Roth V. United
States, 354 U.S. 476, 495.
29 See also • Colson Corp v 1 L R B , 347 F 2d 12'8 (C A. 8), cert. denied , 382 U S. 904 ;
Irving Air Chute Co. v N.L.R.B, 350 F.2d 176 (CA 2) , International Union of Electrical,
Radio and Machine Workers v N.L.R B (S N.C. Mfg Co ), 352 F 2d 361 (CAD C ), cert
denied, 382 U.S. 902, N.L R.B. v. Frank C. Varney Co., Inc 359 F.2d 774 (C A. 3).
TEXAS ELECTRIC COOPERATIVES 461
[the supervisor] said or did, not what he was told to say, do, or not say or do, that
counts." Hendrix Manufacturing Company, Inc., v. N.L.R.B., 321 F.2d 100, 104
(C.A. 5). Moreover, I note Addington's testimony that he did not instruct the
Company to disavow to the employees the unlawful acts that had already occurred
nor did he know of such a disavowal being issued.
As to Respondent's reliance on its asserted belief that the Union did not seek
Negro members, Addington, its attorney, testified that of his personal knowledge
the Union had secured authorizations from Negro employees of the Visador Com-
pany, also located in Jasper.30
I believe the evidence establishes beyond peradventure of a doubt that Respond-
ent's rejection of the Union's demand was motivated by a desire to gain time to
undermine its position and not by a good-faith doubt as to the appropriateness of
the unit sought. It is unnecessary therefore to do more than note that an employer
who rejects the bargaining unit claimed as appropriate by the union does so at his
peril. Tom Thumb Stores, Inc., 123 NLRB 833, 834-835.31 .
F. Post election conduct
Of the approximately 28 eligible voters in the October 8 election, 20 cast ballots
against and 6 voted for the Union. The Union filed timely objections to the con-
duct of the election. The Regional Director's Supplemental Decision and Order
Consolidating Cases, in which he referred certain objections for hearing before a
Trial Examiner, issued on December 17. -
While the Objections to Election were thus pending, in January 1966, Respond-
ent changed from a bimonthly payroll period to a weekly basis. No increase or
decrease in wages was involved in the change. At the hearing before me General
Counsel amended the complaint in Case 23-CA-2194 to allege that this change in
benefit constituted a violation of Section 8(a)(1) 32
Under Board law the violation is clear. The grant of benefit while objections to
an election are pending violates Section 8(a)(1). Ambox, Incorporated, 146 NLRB
1520, 1521, enfd. as modified, 357 F.2d 138 (C.A. 5). The change in pay periods
is a grant of benefit. American Sanitary Products Co., d/b/a American School Sup-
ply Company, 157 NLRB 437. Accordingly, I find that by making this change in
payroll periods when it did, Respondent violated Section 8(a)(1) of the Act.33
IV. REPORT ON OBJECTIONS
As previously noted, the Regional Director, having found that certain objections
filed by the Union to the October 8 election raised substantially the same issues as
were raised by the allegations of the complaints herein, consolidated the representa-
tion and complaint proceedings for the purposes of hearing, ruling, and decision
and ordered that Case 23-RM-159 be transferred to the Board. I have found that
Respondent, after filing its petition for election and prior to the October 8 election,
interfered with, restrained, and coerced its employees in the exercise of their rights
to self-organization , in violation of Section 8(a)(1) (and in one instance Section
8 (a) (3) ), by among other things; Lacy's and Anthony's surveillance of the Union's
meeting on July 21; Baker's attempt on July 24 to secure Faulk's withdrawal from
the Union and his threats of economic reprisal made at the same time; the dis-
criminatory demotion of Melvin Faulk on July 29; Noel's interrogation of and
threat to Watson Thomas; Noel's interrogation of Herman Dean; Lacy's interroga-
tion of Dean and his recruiting Dean to participate in the Company's antiunion
ao See United Marine Services , Case 21-CA-6435, TXD-(SF)-9-6G, 61 LRRM 1496.
11 See P B 4 S. Chemical Company, Inc., 148 NLRB 152, 153, footnote 1
32 The amendment , read into the record by General Counsel alleges :
During the month of December 1965 or January 1966, the exact date being unknown
to the Regional Director, Respondent interfered with, restrained, and coerced its em-
ployees by its action of changing the method of wage payments from twice per month
to once per week, thus changing a term and condition of employment and conferring
a benefit when the matters raised In Representation Case No. 23-RM-159 had yet to
be adjudicated and disposed of.
13 Had General Counsel, consistent with the refusal- to-bargain allegations of the com-
plaint, alleged that the unilateral change in payroll periods violated Section 8(a)(5) as
well as Section 8(a) (1), I would have so found. Orange County Machine Works, 147
NLRB 1004, 1006.
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
campaign; Lacy's offer to Hadnot of a better job conditioned on defeat of the
Union; Lacy's interrogation of Shaw; and, Harper's preelection speech.
I further find that Respondent, by the aforesaid conduct, prevented its employees
from freely exercising their choice in' the October 8 election.34 Accordingly, I rec-
ommend that the election be set aside. In view of my further finding that since
July 16, 1965, the Company, in violation of Section 8(a)(5), has failed and refused'
to bargain with the Union, I further recommend that the petition in Case 23-RM-
159 be dismissed on the ground that no question exists concerning representation.
International Hod Carriers' Building and Common Laborers' Union of Aineiica,
Local 840 (Blinne Constiuction Co.), 135 NLRB 1153, 1166 footnote 24.
V. 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 interstate operations of Respondent, described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes obstructing commerce-
and the free flow of commerce.
VI. THE REMEDY
Having found that Respondent engaged in unfair labor practices in violation of
Section 8(a)(1), (3), and (5), I shall recommend that it cease and desist there-
from and take certain affirmative action designed to effectuate the purposes of the
Act.
I have found that Respondent's discharge of William Wayne Hennigan and"
demotion of Melvin Faulk violated Section 8(a)(3) and (1) of the Act. My Rec-
ommended Order shall provide for Hennigan's reinstatement to his former or a
substantially equivalent position and that he be made whole for any loss of earn-
ings (including lost fringe benefits and health insurance claims) suffered as a result
of the unlawful discharge, his backpay to be computed in the manner set forth in-
F. W. Woolworth Company, 90 NLRB 289, with interest thereto in the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716. In the case of Faulk, con-
sidering his subsequent voluntary quit, Respondent shall make him whole for the-
loss of earnings to the time he. quit, resulting from his unlawful demotion, with-
interest added thereto in the manner set forth in Isis Plumbing & Heating Co.,
supra.
To remedy the company's violation of Section 8(a) (5) of the Act my Recom-
mended Order shall require it to bargain upon request with the Union and to incor-
porate any agreement reached in writing to be signed by the parties. In view of
my conclusions herein, I shall recommend dismissal of the pending representation,
proceeding, Case 23-RM-159.
Respondent's unfair labor practices indicate an attitude of opposition to the pur-
poses of the Act generally. Accordingly, a broad cease-and-desist order is necessary-
and appropriate to effectuate the policies of the Act.
As the employees are on a low level of literacy'and education, I shall also rec-
ommend that in addition to posting the notice, Respondent shall read the notice to
the employees who shall be assembled 'together for that purpose. In view of the
widespread violations and the involvement and identification of all of Respondent's
supervisors therein, the Regional Director or his representative shall be present
when the notice is so read.
Upon the foregoing findings of fact and upon the entire record in this case, I
make the following:
CONCLUSIONS OF LAW
1. Texas Electric Cooperatives, Inc., Treating Division, Respondent herein, is an
employer engaged in commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3* In view of the above findings it is unnecessary for me to decide whether the Union's
objection XV (going to Respondent's employment of Floyd Addington, then district attor-
ney for Jasper County as its counsel for the representation proceeding ), furnishes adds-
tional ground for, or in itself justifies , setting aside the October 8 election.
TEXAS ELECTRIC COOPERATIVES 463
3. By engaging in certain described conduct referred to hereinabove, in section
III hereof, Respondent interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed to them by Section 7 of the Act, and thereby engaged
in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
4. By engaging in the conduct described in section III, B, 4 and section III, D, 4
above, Respondent discriminated against employees in regard to their hire and ten-
ure of employment, and terms and conditions thereof, in order to discourage mem-
bership in the Union, and thereby engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(3) and (1) of the Act.
5. All production and maintenance employees, including the truck maintenance
leaderman, the maintenance' leaderman, and the crane checker, at the Company's
Jasper, Texas, plant, excluding office clerical employees, professional employees,
truckdrivers, the shipping and inventory clerk, the pole buyer, guards, and super-
visors as defined in the Act, constitute a unit appropriate for the purpose of col-
lective bargaining within the meaning of Section 9(b) of the Act.
6. On and at all times since July 15, 1965, the Union has been the exclusive bar-
gaining representative of the employees in the aforesaid collective-bargaining unit.
7. By refusing on and after July 16, 1965, to recognize and bargain collectively
with the Union, as the exclusive bargaining representative of the employees in an
appropriate bargaining unit, Respondent engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(5) and (1) of the Act.
8. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
9. The Respondent has not committed other unfair labor practices as alleged in
the complaints.
RECOMMENDED ORDER
The Respondent, Texas Electric Cooperatives , Inc., Treating Division , its officers,
agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Coercively questioning its employees concerning their union membership,
activities , and desires ; engaging in surveillance of the protected activities of its
employees or creating the impression of surveillance ; recruiting employees to par-
ticipate in its antiunion campaign ; promising benefit to employees conditioned upon
rejection of the Union ; threatening loss of benefit or the imposition of economic
reprisal in the event of union success ; or in any other manner interfering with,
restraining , or coercing employees in the exercise of rights guaranteed by the Act.
(b) Refusing to recognize and bargain collectively 'with United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, as the exclusive bargaining repre-
sentative of the employees in the appropriate unit set forth in the conclusions of
law above.
(c) Discouraging membership in United Brotherhood of Carpenters and Joiners
of America , AFL-CIO; or any other labor organization , by discharging, demoting,
or in any other manner discriminating against employees in 'regard to their hire or
tenure of employment or any term or condition of employment.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Upon request , recognize and bargain collectively with United Brotherhood of
Carpenters and Joiners of America, AFL-CIO,' as the exclusive representative of
the employees in the appropriate unit set forth in the conclusions of law above.
(b) Offer to William Wayne Hennigan immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority and
other rights and privileges , and make him and Melvin Faulk whole for any loss of
wages which they may have suffered as a result of its discrimination against them,
in the manner provided in the section hereof entitled "The Remedy."
(c) Notify William Wayne Hennigan if presently serving in the Armed Forces of
the United States of his right to full reinstatement upon applicaion in accordance
with the Selective Service Act and the Universal Military Training and Service Act,
as amended , after his discharge from the Armed Forces.
(d) Preserve and , upon request, make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports , and all other records necessary to analyze the
amounts of backpay due.
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Post at its Jasper, Texas, plant, copies of the attached notice marked
"Appendix A"35 Copies of said notice, to be furnished by the Regional Director
for Region 23, after being duly signed by an authorized representative of the
Respondent, shall be posted by Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other material. The said notice shall also be read by
Respondent to the assembled employees at which time the Regional Director or his
representative shall be present.
(f) Notify the Regional Director for Region 23, in writing, within 20 days from
the receipt of this Decision, what steps it has taken to comply herewith.36
IT IS FURTHER ORDERED that the complaints be dismissed insofar as they allege
unfair labor practices not specifically found herein.
as In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order is enforced
by a decree of a United States Court of Alipeals, the words "a Decree of the United 'States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order"
10 In the event that this Recommended Order Is adopted by the Board, this provision
shall be modified to read • "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith"
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT ask our employees about their union membership, activities,
or desire in order to force them to give up the Union.
WE WILL NOT ask any employee to do missionary work among other
employees in an effort to talk them out of supporting the Union.
WE WILL NOT spy on union meetings or on the activities of any union repre-
sentative or act so that employees think we are spying on them.
WE WILL NOT promise any employee that if the Union is beaten he will get
a better job.
WE WILL NOT threaten our employees that if the Union wins there will be
less work.
WE WILL NOT discourage our employees from joining or supporting the
United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any
other union, by firing or demoting any of our employees.
WE WILL NOT in any other manner interfere with the rights of our employ-
ees under the law, or force them to give up any of their rights under the law.
WE WILL offer his job back to Wayne Hennigan and give him backpay from
the day he was fired.
WE WILL notify Wayne Hennigan if presently serving in the Armed Forces
of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the Armed Forces.
WE WILL give Melvin Faulk the pay he would have received if he had not
been demoted from his job as dinky driver.
WE WILL bargain with the Union, whenever the Union asks us to, to work
out a written union contract.
All of our employees are free to become, remain, or refrain from becoming or
remaining members of United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, or any other labor union.
TEXAS ELECTRIC COOPERATIVES, INC., TREATING DIVISION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
SAMUELS & COMPANY, INC . 465
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 6617
Federal Office Building, 515 Rusk Avenue, Houston , Texas 77002, Telephone Cap-
itol 8-4722.
Samuels & Company, Inc. and United Packinghouse , Food and
Allied Workers , AFL-CIO. Case 16-CA-2482. August 10, 1966
DECISION AND ORDER
On April 26, 1966, Trial Examiner Thomas A. Ricci issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examin-
er's Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three- member
panel [Members Fanning, Brown, and Jenkins].
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 Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner, as modified herein.
[The Board adopted the Trial Examiner's Recommended Order
with the following 2 modifications :
[1. Reletter paragraphs 2(b) through 2(d) as paragraphs 2(c)
through 2(e) and insert the following new paragraph 2(b) :
[" (b) Notify any of the above-named employees presently serving
in the Armed Forces of the United States of their right to full rein-
statement upon application, in accordance with the Selective Service
Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces."]
i We correct the Trial Examiner's inadvertent reference to employee Standberry instead
of employee Newton in the seventh line from the bottom of page 470 , by substituting
"Newton" for "Standberry" therein.
2 The address and telephone number for Region 16 , appearing at the bottom of the notice
attached to the Trial Examiner 's Decision , is amended to read 819 Taylor Street, Fort
Worth, Texas , Telephone 335-4211, Extension 2145.
160 NLRB No. 38.
257-551-67-vol. 160-31