The Cambria Clay Products Co.

National Labor Relations Board - Board Decisions

Jul 22, 1953

106 N.L.R.B. 267 (N.L.R.B. 1953)

THE CAMBRIA CLAY PRODUCTS COMPANY 267
THE CAMBRIA CLAY PRODUCTS COMPANY and LOCAL
UNION 879, UNITED BRICK AND CLAY WORKERS OF
AMERICA, AFL. Case No. 9-CA-474. July 22, 1953
DECISION AND ORDER
On March 30, 1953, Trial Examiner John H. Eadie issued
his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in
certain unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative action, as
set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief. The General
Counsel filed a brief in support of the Intermediate Report.
The Board 1 has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed.' The Board
has considered the Intermediate Report, the exceptions and
briefs, and the entire record in the case,' and hereby adopts
the findings, conclusions, and recommendations of the Trial
Examiner, with the following modifications, additions, and
exceptions.
1. The Trial Examiner found, and we agree, that the Re-
spondent violated Section $ (a) (1) of the Act by Superintendent
DeHart's solicitation of employee Donley's withdrawal from
the Union and his threat of reprisal if Donley did not withdraw; 4
by DeHart's and Foreman Grubbs' threat to laid-off employee
Henderson Keels that Keels could not be returned to work if he
did not procure withdrawal slips from other employees;5 by
DeHart's interrogation of employee Robert Toner as to his
union membership before agreeing to permit him to move into
a company house, and DeHart's promise to redecorate the
house if Toner would try to get employees to go through the
picket line; and by DeHart's offer to reinstate employee
Richard Jackson if the latter would withdraw charges filed
with the Board.6
iPursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board
has delegated its powers in connection with this case to a three-member panel [Members
Houston, Styles, and Peterson].
2 The Respondent excepts to the Trial Examiner's denial of its motions either to dismiss
the complaint or to conduct separate hearings on each charge The motion to dismiss is
based on Joanna Cotton Mills Co v. N. L R. B , 176 F. 2d 749 (C. A. 4), which is on its
facts clearly distinguishable and inapposite here. With respect to the motion for separate
hearings, the Trial Examiner followed normal procedure and, as the General Counsel in any
event has the burden of establishing each allegation of the complaint, the Respondent has not
been in any way prejudiced. We therefore affirm the rulings of the Trial Examiner.
s The Respondent's request for oral argument is hereby denied because the record, excep-
tions, and briefs adequately present the issues and the positions of the parties.
4The Trial Examiner inadvertently stated that this occurred in March 1951; the correct
date is March 1952.
5 In this connection, we do not adopt the Trial Examiner's findings that Ed Davis, the school-
bus driver, was acting as the Respondent's agent when he made similar remarks to Keels.
6 The Trial Examiner inadvertently found that the latter two incidents constituted inter-
ference only. We find that they restrained and coerced employees as well See Syracuse Color
Press, Inc., 103 NLRB 377
106 NLRB No 52.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner stated that a number of employees testi-
fied credibly' and without contradiction about other acts viola-
tive of Section 8 (a) (1), but as he considered this testimony
cumulative he did not set it forth or make specific findings with
respect thereto . We rely, in addition to the incidents referred
to above, upon the following conduct, all of which occurred in
March 1952:
(a) Foreman Flowers interrogated employee Leslie Rister as
to whether he would withdraw from the Union and told him that
DeHart wanted him to withdraw.
(b) Foreman Dodds asked employee Forest Harris to with-
draw from the Union, promising him a company house if he did
so.
(c) Foreman Grubbs indicated to employee ElmonCraddolph
that he would do better if he did not belong to the Union; inter-
rogated employees Delbert Harris , Clarence Harris, and
Kenneth Craddolph as to whether they intended to withdraw from
the Union; threatened employee Lloyd Horner with the loss of a
lucrative piece-rate job if he did not withdraw from the Union;
and told employee Richard Scott that his vacation and seniority
rights would be guaranteed if he withdrew from the Union.
(d) Superintendent DeHart offered to reinstate employees
Richard Jackson and Adrian Watson, Jr., if they withdrew from
the Union ; interrogated employees Curtis McFann and Tom
Hammond as to whether they would withdraw from the Union;
interrogated employee Ernest Bailey as to whether he would
withdraw from the Union, and stated that the Respondent thought
the Union ' s proposed contract too hard to work under and would
like some of the employees to withdraw from the Union so it
would not have to sign the contract.
We find that by all the foregoing conduct the Respondent
interfered with, restrained , and coerced its employees, in
violation of Section 8 (a) (1) of the Act.
2. The Respondent excepts to the Trial Examiner's findings
that on and after January 28, 1952, it refused to bargain with
the Union in good faith , in violation of Section 8 (a) (5) of the
Act. In reaching this conclusion , the Trial Examiner relied
upon the Respondent ' s delays in meeting with the Union, which
had been the contractual bargaining representative of its em-
ployees for approximately 9 years, its campaign to induce em-
ployee s to withdraw their union member ship during the pendency
of the Union ' s request for bargaining , its refusal to process
grievances in accordance with the terms of the contract while
the contract was still in effect, and its failure to reply8to the
several union requests for meetings after July 28, 1952. Upon
this basis, the Trial Examiner stated that he found it unneces-
say to set forth in detail what happened at the negotiating
7 None of the supervisors involved in the conduct here found violative of Section 8 (a) (1) of
the Act was called to testify by theRespondent. See N. L. R B. v. The Ohio Calcium Company.
133 F. 2d 721 (C. A. 6)
8 The Trial Examiner also stated that in view of the Respondent' s campaign against the
Union, its questioning of the Union's majority in Attorney Fitch's letter of March 20 showed
its bad faith in bargaining. We find only that , under the circumstances, the questioning itself
was not in good faith
THE CAMBRIA CLAY PRODUCTS COMPANY 269
sessions , although he also stated that the Respondent, at those
meetings, was only "going through the motions of collective
bargaining. "
Without effectively controverting any of the facts relied upon
by the Trial Examiner,9 the Respondent urges that the nego-
tiations foundered upon the Union's demand for a union-shop
clause, culminating in the Union's withdrawal on July 1, 1952,
of all the tentative agreements that had been reached. Contrary
to the Respondent' s contention , however, during the negotia-
tions the Union offered to accept a modified union-shop clause
in lieu of a union shop, or to abide by the results of the current
industry wide bargaining negotiations . Neither proposal was
acceptable to the Respondent. Of course it was under no obli-
gation to accept them but these offers, which the Union reit-
erated throughout the meetings, demonstate that the Union was
not, as the Respondent claims, adamantly insisting upon a
union shop.
Nor do we agree with the Respondent's claim that at the
July 1 meeting Messer, the Union's principal negotiator, with-
drew the Union' s consent to all matters on which agreement
had been reached. The record establishes that at this meeting
Messer again offered a settlement proposal he had made at
the previous meeting, one term of which was the signing of a
contract embodying those provisions on which agreement had
been reached. At this point, Davis and Collis, 2 of the Re-
spondent's 3 negotiators, replied that nothing had been agreed
to up to then. It was then that Messer made his remarks about
withdrawal. We do not agree with the Respondent's interpreta-
tion of Messer's remark but believe, and find that Messer was
withdrawing only the settlement proposal, not his prior agree-
ment to certain contract provisions. In any event, any doubt
about the matter should have been resolved for the Respondent
by the Union's letter of July 18, seeking a meeting to settle
those contract issues which remained unresolved.
In sum, the entire record establishes that the Respondent
delayed meeting with the Union to negotiate a new contract,
engaged in a determined attempt to undermine the Union's
representative status by a campaign of interrogation, solici-
tation, threats of reprisal, promises of benefit, discriminatory
discharges, refusal to process grievances, and after a short
series of meetings that, taking the view most favorable to the
Respondent, were inconclusive, refused to meet further with
the Union or even to respond to its repeated requests for such
meetings over a period of 2 months. We therefore agree with
the Trial Examiner's findings that the Respondent was not,
on or after January 28, 1952, bargaining in good faith.'
3. The Respondent contends that the strike, which began
on April 7, 1952, was an economic strike caused by the failure
9 The Respondent contends that on January 28, when the Union first requested a meeting
with the Respondent, the Union did not really want to bargain but desired only to fulfill the
60-day notice requirement of Section 8 (d). It is clear that while such compliance was a factor
in the Union's action, it did also desire to begin contract negotiations.
ioSee N. L. R. B. v. Reed & Prince Mfg. Co., 205 F 2d 131 (C. A. 1), enforcing 96 NLRB
850.
27 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Union to obtain a contract. The Trial Examiner found
that the strike was caused and prolonged by all the Respondent's
unfair labor practices. We are in substantial agreement with
the Trial Examiner. The Respondent bases its contention upon
the facts that at a union meeting on March 29 a committee was
authorized to call a strike if a contract could not be obtained;
that union representatives appeared at the plant on April 7 and
stated that the strike had been called because the Union did
not have a contract; and that the pickets carried signs saying
''No contract-No work." As we have found above, however,
the Respondent had refused to bargain in good faith, on and
after January 28, 1952. Therefore, under these circumstances,
the absence of a contract was itself due to the Respondent's
unfair labor practices.
But, in addition, we are not convinced that the strike was in
fact caused only by the Union's failure to obtain a contract. We
have found that before the strike the Respondent unlawfully
interrogated employees and urged them to withdraw from the
Union, promising benefits if they did and threatening reprisals
if they did not. We also find, in agreement with the Trial Ex-
aminer, that the Respondent had shortly before the strike dis-
charged employees Friend, Miller, Hall, Galliamore, and Owen
Craddolph in violation of Section 8 (a) (3) of the Act. That the
employees were aware of these unfair labor practices is clear
from the text of the Union's April 6 resolution, which describes
the discharge of Galliamore and Craddolph, whichhad accurred
that day, as another link in the Respondent's efforts to break
the Union. Under these circumstances, we find that the strike
was caused and prolonged by the Respondent's unfair labor
practices."
The Remedy
Having found the strike to be one caused and prolonged by
the Respondent's unfair labor practices, the Trial Examiner
recommended that the Respondent be required to reinstate all
those strikers who had unconditionally applied for reinstate-
ment on August 5 and had not yet been reinstated. The Re-
spondent excepts to this requirement as to certain individuals
on the ground that they have committed acts of violence.
In considering the incidents upon which the Respondent
relies, the Trial Examiner appears to have held the Respondent
to the standard of proving by reliable and substantial evidence
that the strikers in question were guilty of violence or other
misconduct. This is not the rule of proof we established in the
Rubin Bros. case,'2 where we held that an employer's honest
belief as to employee misconduct is an adequate defense to a
charge of discrimination in refusing to reinstate such em-
ployee unless it is affirmatively established that the employee
11 James Thompson & Co., Inc., 100 NLRB 456.
itRubin Bros. Footwear , Inc., 99NLRB610 , set aside April 13, 1953 , 203 F. 2d 486 (C A. 5).
With due respect for the contrary views of the court of appeals , we nevertheless adhere to
our opinion in that case until such time as the Supreme Court may determine the issue
THE CAMBRIA CLAY PRODUCTS COMPANY 271
did not in fact engage in such misconduct. It is thus incumbent
upon the General Counsel, once such an honest belief is estab-
lished, to go forward with evidence to prove that the alleged
misconduct did not in fact occur, evidence which the employer
may then rebut. The General Counsel at all times has the burden
of proving discrimination . In the instant case, in any event,
the misconduct issue was thoroughly litigated.
The Trial Examiner found it unnecessary to consider some
of the incidents relied upon by the Respondent on the grounds
that they occurred away from the plant or they involved dis-
criminatory dischargees rather than strikers . We do not agree
that these are significant distinctions in this case . We have
therefore considered the evidence pertaining to all the violence
incidents.
(a) A car in which Virgil Keels and Curt Watson, Earl Watson,
and Emerson Watson were riding home from work during the
strike" was followed by a car containing strikers Carl Taylor,
Harry Yoak, Reuben Wood, and two unidentified persons. Keels
testified that his car was stopped by the other car pulling in
front and flagging it down, that the men in the Taylor car came
out and said they wanted to fight because Keels and the Watsons
were scabbing , that no one in the Keels car got out, and that
Harry Yoak came up to the Keels car and broke a window.
Taylor's account of the incident is that as he was driving
home, the Keels car, driven by Earl Watson, ran his car off
the road, that he turned around to follow the other car, that
when Watson stopped at a traffic light Taylor and the other
occupants of his car got out , that Taylor asked Watson why
he had run him off the road, and that when Watson said it was
because he could not hold his car Taylor's group got back in
their car and left.
As the Trial Examiner did not discuss this incident, there
are no credibility findings with respect to it. However, we
believe that Taylor's account of the incident appears to be
improbable. We doubt that these 5 strikers turned their car
to follow 4 individuals they considered scabs only to get an
answer to an innocuou 's question . In these circumstances, we
find that the Respondent had a basis for a good-faith belief that
the misconduct it alleges had occurred, and that the General
Counsel has not proved that it did not in fact occur. Accord-
ingly, we find that the named individuals have forfeited their
right to reinstatement.
(b) Shortly after the events described above, the Keels group
was stopped at a roadblock - - consisting of the cars of Fred
Davis and Matthew Wood. There were about 35-40 men there.
Keels was asked to get out of the car and did so. He testified
that he sat down on a bank and Larry Robinson, one of the
strikers present, came over and hit him , stating no reason,
and then also hit Earl Watson. The General Counsel did not
produce Wood, Robinson, or Davis as a witness. The Trial
Examiner did not discuss this incident, but as Keels' testi-
mony in this regard was virtually uncontradicted, we find
13 These individuals were engaged in cleanup work at one of the Respondent's buildings.
27 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sufficient basis in the record for the Respondent's good-faith
belief that Robinson , Davis, and Wood had misconducted them-
selves. As the General Counsel did not prove the contrary,
we shall not order the reinstatement of these individuals.14
(c) The Respondent alleges that 12 named strikers were in
the woods near its plant on July 25 , 1952, at a time when some
200 to 300 shots were fired at the plant from the woods. The
Respondent claimed that it was informed of the identities of
these 12 strikers by 3 employees whom ithad sent to the woods
that morning . Of the 12 identified , 9 testified that they had not
been in the woods at all that day. The Trial Examiner credited
their denials and discredited entirely the testimony of the
Respondent ' s witnesses in this regard . We accept these
credibility resolutions . Accordingly , we find that the 12 in-
dividuals alleged to have engaged in this violence did not in
fact do so and, therefore , that they are entitled to reinstate-
ment.
(d) On July 25, 1952, a car driven by employee Nelson Howell
was fired upon near a picket tent . The car was slightly damaged,
and Howell was shot in the arm. Although there is much testi-
mony in the record concerning this incident , there is nothing
to establish who was responsible for the shooting . It is ap-
parently the Respondent's contention that the shots must have
been fired by the 12 individuals considered in paragraph (c)
above. However , we have found that those individuals were
not in the woods at the time alleged and we therefore reject
the contention as to them in this connection.
The Respondent contends that because Severt and Diandre,
the two pickets on duty, did not show surprise when the Howell
shooting occurred , they must have been implicated inthe shoot-
ing. We do not believe that the failure to show surprise would
necessarily indicate that the pickets were implicated ina shoot-
ing plot. In any event , the testimony of the Respondent's own
witnesses does not establish such failure , as they are in sub-
stantial conflict as to whether or not the pickets were visible
when the shots were fired . Moreover , as we have found above
that the 12 strikers were not in the woods , the entire basis for
the alleged plot fails . We therefore find no basis for a good-
faith belief by the Respondent that the pickets were involved
in this episode and, consequently , that there is no basis to deny
them reinstatement.
(e) On August 1, 1952, 6 individuals were found in contempt
of an injunction issued by the Court of Common Pleas of
Lawrence County against violent picketing and picketing by more
than 2 pickets at each entrance . The record does not establish
that these 6 individuals were guilty of anything more than
picketing with more than 2 pickets at each entrance . We have
held that a State court conviction or afinding that a State court
injunction has been violated is not dispositive of an employee's
rights under the Act, and that it is for the Board to determine
whether or not the conduct in question bars reinstatement. As
14 The fact that the Respondent did reinstate Davis does not establish condonation . Cf Long-
view Furniture Company, 100 NLRB 301.
THE CAMBRIA CLAY PRODUCTS COMPANY 273
it appears that the 6 individuals had done no more than engage
in picketing, we find that such conduct did not warrant the
Respondent's refusal to reinstate them.'
(f) The Respondent further alleges that certain other inci-
dents occurred which should be attributed to the Union, although
there is no identification of the individuals responsible therefor.
These incidents include an explosion in the Respondent's gas-
line, shooting around the house of striker Willie Watson, and
the circulation of a scurrilous letter. There is no substantial
evidence in the record to connect the Union with any of the
violent conduct,16 and the assertedly scurrilous matter is Jack
London's definition of a scab, the circulation of which under
similar circumstances we have found permissible."
Accordingly, we find, in agreement with the Trial Examiner,
that the employees in question, with the exceptions noted above,
should be reinstated, and we shall so order."
ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the Respondent, The
Cambria Clay Products Company, Blackfork, Ohio, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Local Union 879, United
Brick and Clay Workers of America, AFL, or any other labor
organization of its employees, by discriminating in . egard to
their hire or tenure of employment or any term or condition of
employment.
(b) Refusing to bargain collectively with said Union as the
exclusive representative of all its employees inthe appropriate
unit with respect to rates of pay, wages, hours of employment,
or other conditions of employment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist the Union named above,
or any other labor organization, to bargain collectively through
representatives of their own choosing and to engage in con-
certed activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all,
such activities except to the extent that such right may be af-
fected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Make whole James Miller, Clarence Friend, Woodrow
Hall, Owen Craddolph, and Edison Galliamore, and each of
15 Nashville Corporation , 94 NLRB 1567
16See N L R. B. v. Deena Artware, Inc ., 198 F. 2d 645 (C. A. 6), cert. den. 345 U S 906
17 H. N. Thayer Co., 99 NLRB 422.
18 We find the Respondent ' s contention that economic curtailment accounts for the refusal
to reinstate some of the strikers without merit.
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees listed in Appendices A and B, in the manner
set forth in the section of the Intermediate Report entitled
"The Remedy."
(b) Upon request , make available to the National Labor
Relations Board or its agents, for examination and copying,
all payroll records, social - security payment records, time-
cards, personnel records, and all other records necessary to
analyze the amounts of back pay due under the terms of this
Order.
(c) Upon request bargain collectively with Local Union 879,
United Brick and Clay Workers of America , AFL, as the ex-
clusive representative of all the employees in the appropriate
unit, and embody any understanding reached in a signed agree-
ment.
(d) Post at its plant, Blackfork , Ohio, the notice attached
hereto marked "Appendix C."19 Copies of such notice, to be
furnished by the Regional Director for the Ninth Region , shall,
after being duly signed by the Respondent ' s authorized repre-
sentative , be posted by the Respondent immediately upon
receipt thereof , in conspicuous places, including all places
where notices to employees are customarily posted . Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered , defaced, or covered by any other
material.
(e) Notify the Regional Director for the Ninth Region, in
writing, within ten ( 10) days from the date of this Order what
steps the Respondent has taken to comply herewith.
19 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and order " the words "Pur-
suant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX A
John Hutchinson
James Bailey
Donald Hammond
James Bishop
James Gillespie
David H. Lewis
William Miller
Elmon Craddolph
Adrian Watson, Jr.
John Morgan Hammond
Richard Jackson
Henderson Keels
reinstated April 1, 1952
March 21, 1952
March 10, 1952
March 21, 1952
March 21, 1952
APPENDIX B
Arthur, Ben
Bailey, Ernest
Blevins, Estil
Bloomfield, Raymond
Bloomfield, Ward
Carrington , Hubert
Cofer, Paul
Coker, Walter
Cox, Charles
Craddolph , Harold
THE CAMBRIA CLAY PRODUCTS COMPANY
Craddolph, Kenneth
Craddolph, Lem
Craddolph, Oscar
Crump, James
Damron, E. J.
Davis, Willie
Diandre, Antonio
Donley, Charles
Donley, Clifford
Donley, Everett
Eubanks, Eldon
Evans, William
Fairchilds, Frank
Fife, Estil
Fox, Theodore
Fox, Everett
Fultz, Homer
Gurthrine, Harry
Hammond, Morgan
Hammond, Thomas
Harper, Aaron
Harris, Clarence
Harris, Forest
Harris, William
Horner, Lloyd
Howard, Chas.
Howell, William
Jackson, Richard
Johnson, Eugene
Johnson, Hayden
Keels, Dewey
Keels, Earl
Keels, Henderson
Keels, Roger
Long, Bobbie
Long, Herman
Manning, Wm. C.
Miller, Amos
Miller, Charles
Miller, Charles, Jr.
Murnahan, Charles
McFann, Curtis
McNeal, Lewis
Neal, Harvey
Patton, Harvey
Parsons, Carl E.
Payne, Adam
Payne, Marion
Perkins, Herbert
Phillips, Harold
Poetker, Wm.
Quick, Clyde
Rawlins, Charles
Rister, Leslie
Rollins, Clarence
Rutt, Arnold
Sargent, Ted
Scott, Glen
Scott, Richard
Severt, Paul
Shelton, George
Smith, Charles
Synder, Robert
Straight, Oscar
Straight, Garnet
Taylor, Derwood
Taylor, George
Terry, Robert
Toner, Robert
Walker, Gerald
Watson, Adrain, Jr.
Whitt, Basil
Woodruff, Clee
Yates, George
APPENDIX C
NOTICE TO ALL EMPLOYEES
275
Pursuant to a Decision and Order of the National Labor Re-
lations Board, and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
WE WILL NOT discourage membership in Local Union
879, United Brick and Clay Workers of America, AFL, or
any other labor organization of our employees, by dis-
criminating in regard to their hire or tenure of employ-
ment or any term or condition of employment.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of their right
322615 0 -54 - 19
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to self-organization , to form labor organizations , to join
or assist Local Union 879, United Brick and Clay Workers
of America, AFL, or any other labor organization, to
bargain collectively through representatives of their own
choosing , and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid
or protection , or to refrain from any or all such activities,
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization
as a condition of employment , as authorized in Section
8 (a) (3) of the Act.
WE WILL bargain collectively upon request with said
union, as the exclusive representative of all employees
in the bargaining unit described herein with respect to
rates of pay, hours of employment, or other conditions
of employment , and if an understanding is reached, em-
body such understanding in a signed agreement . The bar-
gaining unit is:
All production and maintenance employees at the Re-
spondent's Blackfork, Ohio, operation, excluding office
and clerical employees, guards, professional employees,
and supervisors as defined in the Act.
WE WILL make whole the employees named below for
any loss of pay suffered as a result of the discrimination
against them.
Arthur, Ben
Bailey, Ernest
Bailey, James
Bishop, James
Blevins, Estil
Bloomfield, Raymond
Bloomfield, Ward
Carrington, Hubert
Cofer, Paul
Coker, Walter
Cox, Charles
Craddolph, Elmon
Diandre, Antonio
Donley, Charles
Donley, Clifford
Donley, Everett
Eubanks, Eldon
Evans, William
Fairchilds, Frank
Fife, Estil
Fox, Theodore
Fox, Everett
Friend, Clarence
Fultz, Homer
Craddolph, Harold
Craddolph, Kenneth
Craddolph, Lem
Craddolph, Oscar
Craddolph, Owen
Crump, James
Damron, E. J.
Davis, Willie
Harper, Aaron
Harris, Clarence
Harris, Forest
Harris, William
Horner, Lloyd
Howard, Chas.
Howell, William
Hutchinson, John
Jackson, Richard
Johnson, Eugene
Johnson, Hayden
Keels, Dewey
Keels, Earl
Keels, Henderson
Keels, Roger
Lewis, David H.
Long, Bobbie
Long, Herman
Manning, Wm. C.
Miller, Amos
THE CAMBRIA CLAY PRODUCTS COMPANY
Miller, Charles
Miller, Charles, Jr.
Miller, James
Miller, William
Murnahan, Charles
McFann, Curtis
McNeal, Lewis
Neal, Harvey
Patton, Harvey
Parsons, Carl E.
Payne, Adam
Payne, Marion
Galliamore, Edison
Gillespie, James
Gurthrine, Harry
Hall, Woodrow
Hammond, Donald
Hammond, John Morgan
Hammond, Morgan
Hammond, Thomas
Perkins, Herbert
Phillips, Harold
Poetker, Wm.
Quick, Clyde
Rawlins, Charles
Rister, Leslie
Rollins, Clarence
Rutt, Arnold
Sargent, Ted
Scott, Glen
Scott, Richard
Severt, Paul
Shelton, George
Smith, Charles
Synder, Robert
Straight, Oscar
Straight, Garnet
Taylor, Derwood
Taylor, George
Terry, Robert
Toner, Robert
Walker, Gerald
Watson, Adrian, Jr.
Whitt, Basil
Woodruff, Clee
Yates, George
277
All out employees are free to become or remain members
of the above-named union or any other labor organization. We
will not discriminate in regard tohire or tenure of employment
or any term or condition of employment against any employee
because of membership in or activity on behalf of any such
labor organization.
THE CAMBRIA CLAY PRODUCTS COMPANY,
Employer.
Dated ............... By.....................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any
other material.
Intermediate Report
STATEMENT OF THE CASE
Upon an amended charge duly filed by Local Union 879, United Brick and Clay Workers of
America, AFL, herein called the Union, the General Counsel of the National Labor Relations
Board, respectively called herein the General Counsel and the Board, by the Regional Director
for the Ninth Region (Cincinnati, Ohio), issued a complaint dated July 15, 1952, and amended
complaints dated July 28, 1952, and September 8, 1952, against The Cambria Clay Products
Company, herein called the Respondent, allegmg that the Respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1),
(3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, herein
called the Act.
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the unfair labor practices, the complaint, as amended, alleges that on or
about January 28, 1952, and at all times thereafter, the Respondent refused to bargain collec-
tively with the Union as the exclusive representative of its employees in an appropriate unit;
that from on or about May 16, 1952, the Respondent engaged in certain acts which constituted
interference, restraint, and coercion; that on November 7, 1951, the Respondent discharged
the employees listed in Appendix A, and thereafter failed and refused to reinstate them,
except those who have a reinstatement date listed opposite their names in said Appendix A,
because of their membership in and activities on behalf of the Union, and for the purpose of
discouraging adherence to the Union; that the Respondent discharged James Miller on March
23, 1952, Clarence Friend and Woodrow Hall on March 21, 1952, and Owen Craddolph and
Edison Galliamore on April 6, 1952, and thereafter failed and refused to reinstate them for
the same reasons; that on or about April 7, 1952, the Respondent's employees ceased work
concertedly and went on strike; that said strike was caused and prolonged by the Respondent's
unfair labor practices; that the employees listed in Appendix B, attached hereto, ceased to
strike on or about August 4, 1952, and on or about August 5, 1952, and continuously thereafter
requested and demanded reinstatement; and that on or about August 5, 1952, and at all times
thereafter, the Respondent failed and refused to reinstate the said employees because of their
membership in and activities on behalf of the Union.
The Respondent's answer admits the jurisdictional allegations of the complaint but denies
the commission of any unfair labor practices.
Pursuant to notice, a hearingwas held at Ports mouth, Ohio, starting on October 6 and ending
on October 28, 1952, before the undersigned Trial Examiner. All motions upon which ruling
was reserved at the hearing are hereby denied. The General Counsel, the Respondent, and the
Union have filed briefs with the Trial Examiner, which have received due consideration.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is an Ohio corporation which is engaged in the operation of clay pits and
mines, a gravel pit, and brick and silica plants in and around Blackfork, Ohio.
During all times material herein , the Respondent, in the course and conduct of its business
operations, purchased and caused to be shipped from points outside the State of Ohio to its
Blackfork plants goods and materials of substantial value. The Respondent sells annually out-
side the State of Ohio, goods having a value in excess of $200,000.
The Respondent admits that it is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union 879, United Brick and Clay Workers of America , AFL, is a labor organization
which admits to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background; sequence of events
The Respondent has 2 plants at Blackfork, Ohio, which are located about 11 miles apart.
The plants are referred to in the record as the "silica plant" and the "clay plant." During
normal operation, the silica plant employs approximately 210 persons and the clay plant ap-
proximately 36.
The record indicates that Blackfork is a company town. The Respondent owns all the land
around Blackfork, an area consisting of about 6,000 acres. Many of the Respondent's em-
ployees live in Blackfork, in houses owned by the Respondent. The Respondent also owns and
operates a general store in the town.
The Union has represented the Respondent's employees for the past 9 or 10 years. During
this time, the Respondent and the Union had contractural relations with each other. The last
contract expired on March 31, 1952.
For a number of years, it had been the Union's practice to hold regular monthly meetings
in the Blackfork schoolhouse at 4 p. m. on the first Tuesday of each month. Employees on the
3 to 11 p. m. shift at the silica plant often left work in order to attend these meetings, which
usually lasted about an hour. The Respondent was aware of the custom and docked employees
for the time that they were absent from work.
THE CAMBRIA CLAY PRODUCTS COMPANY 279
About August 1951, Hubert S. DeHart, iwho for some years had been one of Respondent's
foremen, replaced Earl Mickey as superintendent of the silica plant.
A union meeting was held on November 7, 1951. Twelve employees who were on the night
shift at the silica plant attended the meeting. Whey they returned to the plant, they were dis-
charged for being absent from work, allegedly without permission.
On January 28, 1952, the Union notified the Respondent that it desired to commence nego-
tiations on a new contract to replace the one due to expire on March 31. The Respondent did
not reply. After several attempts on the Union's part to begin contract negotiations, the Re-
spondent's counsel, Chester Fitch, sent the Union a letter, dated March 26, 1952, in which he
stated that numerous employees had withdrawn from the Union and that the Respondent had
"reason to question whether or not the Union now represents a majority of the employees."
During March 1952, as will hereinafter be related and found, the Respondent solicited em-
ployees to withdraw from membership in the Union. Supervisors Ralph Flowers and Alfred
Grubbs and Superintendent De Hart were particularly active in this respect.
The Respondent discharged employees Woodrow Hall and Clarence Friend on or about
March 21, 1952, allegedly for leaving work shortly before their shift was due to end. Employee
James Miller was discharged for the same reason on or about March 23.
On March 23, Owen Craddolph and Edison Galliamore, employees at the clay plant and local
officers of the Union, went to the silica plant in order to investigate the discharge of Clarence
Friend. They also went to the silica plant on April 4 for the purpose of investigating the dis-
charge of another employee. They were discharged on April 6, 1952, allegedly for "tres-
passing" and "causing & inciting trouble" among employees at the silica plant. That same
night a meeting of the Union was held at Craddolph's home. Those present voted to strike the
plants the fallowing morning.
The strike started on April 7, 1952, and both plants were picketed. On June 18, 1952, a
consent temporary restraining order was entered under the jurisdiction of the Court of
Common Pleas, Lawrence County, Ohio, wherein pickets were limited to 2 at each plant.
Shortly after this order was entered, the Respondent reopened its plants. On August 1, 1952,
and following several incidents of violence which will be related hereinafter in more detail,
all picketing was enjoined by the State court. On August 4, 1952, the Union made an uncondi-
tioned offer on behalf of all the strikers to return to work. the following morning the strikers
reported for work. Approximately 55 strikers were reinstated by the Respondent on August
5 and 6. Numerous strikers had not been recalled to work as of the date of the hearing herein.
Between April 24 and July 7, 1952, about eight bargaining conferences were held. The parties
were unable to agree upon a contract. Thereafter, between July 18 and September 17, 1952,
the Union sent the Respondent five letters requesting bargaining conferences. The Respondent
did not reply to any of the letters.
B. The discharges on November 7, 1951
As related above, regular meetings of the Union were held on the first Tuesday of each
month. The meetings were held in the Blackfork schoolhouse. They started at 4 p. m. and
usually lasted for about an hour. For a number of years it had been the established practice
for employees on the 3 to 11 p. m. shift to attend the meetings. This was permitted by the
Respondent before November 7, 1951; and employees were docked for the time that they were
absent from work.2
Since November 6, 1951, was election day, the regular meeting of the Union was held on
Wednesday, November 7. Two set gangs on the 3 to 11 p. m. shift at the silica plant attended
the meeting. The employees involved were John Hutchinson, James Bailey, Donald Hammond,
James Bishop. James Gillespie, David H. Lewis, William Miller, Elmon Craddolph, Adrian
Watson, Jr., John Morgan Hammond, Richard Jackson, and Henderson Keels.
The set gangs worked outside of the silica plant under the direction of Kenneth Cofer, a
"checker." On November 7, Keels announced in Cofer's presence that the employees intended
to go to the union meeting. Cofer did not make any comment. The employees named above
were absent from work for about an hour, leaving the plant at about 4 p. m. When they re-
turned to the plant, they were told by Cofer that there was no more work for them that night.
The employees then returned to the union meeting and reported the matter to International
i De Hart was present throughout the hearing but did not appear as a witness
2Some of the employees involved were pieceworkers, and the loss in time did not affect
them except in computing overtime for hours worked in excess of 40 per week. A "set
gang" consists of 4 pieceworkers and 2 hourly workers, who are laborers and are referred
to in the record as "gin hands."
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Representative Johnson of the Union. As the result of a telephone conversation between John-
son and Superintendent De Hart, the employees again returned to the plant. Cofer then told
them that they were "fired for going to that union meeting."
That same night some of the employees met with De Hart, E. E. Davis, vice president of
the Respondent, and Supervisors Grubbs and Dodds. Employee Oscar Straight, a member of
the Union's grievance committee for the silica plant, also was present. Straight told De Hart
that the employees always had attended the union meetings and that it was not right to dis-
charge them for attending that night. De Hart told Keels that he had notified him that em-
ployees were not permitted to leave work in order to attend union meetings. When Keels
denied this, De Hart replied, "No, I guess I didn't notify you." De Hart then stated that
he had notified Lewis, which Lewis denied. Straight also denied that he had been noti-
fied. 3
All of the employees named above were discharged on November 7, 1951. John Morgan
Hammond was reinstated on March 10, 1952. Watson, Jackson, and Keels were reinstated on
March 21, and Elmon Craddolph on April 1, 1952.
The Respondent contends, in substance, that the 12 employees involved were discharged
on November 7, 1951, because they were absent from work without permission. In this con-
nection, Vice-President Davis testified that about 31 employees on the 3 to 11 p. m. shift at
the silica plant attended the union meeting held in September 1951; that as a result the plant
was closed down; and that at sometime before November 7, 1951, he instructed De Hart "to
contact the committeemen and ask them in the future to stay on the job during working hours.
If anyone wanted to leave, for them tobe sure and get permission from their superintendent or
their foreman."
In support of its contention, the Respondent called as witnesses employees Straight,
Sherman Sparks, 4 James Rawlins and his brother, Virgil Rawlins. Both Straight and Sparks
testified that they had conversation with De Hart on the subject.5 With respect to this con-
versation, Sparks testified, "He [De Hart] said he couldn't have them leaving their jobs and
going to the meetings that way; for us to bring it up in the meeting and have a talk about it,
which was done." He further testified that the matter was discussed at a union meeting at
which Leo De Long, 6 an international representative of the Union, was present; and that "He
[De Long] seemed to think that the guys had been attending meetings all the time, and they
shouldn't pay any attention to it, or didn't have to pay any attention to it, or something like
that." Straight testified to the effect that he did not remember if the subject was brought up
or discussed at a union meeting.
On cross-examination Sparks was questioned and testified as follows:
Q. Now this conversation that you and Mr. Straight had with Mr. DeHart, you say took
place at the silica plant and it was about a month or two months before those November
discharges, is that right
A. Yes, sir.
Q. Now you went up to talk to Mr. De Hart because Mr. Straight wanted you to, is that
right?
A. That is right.
Q. And at that time Mr. De Hart, after a discussion with you and Mr. Straight, said it
was all right for the men to go to that meeting, is that right?
A. That night, yes.
Q. And didn't he tellyou to go to the meeting, do your business, and hurry back to work?
A. Yes, sir.
Q. And you didn't understand that anybody was going to be fired if they ever went to
any meeting in the future, did you?
A. Well, yes. He said that night he could fire them if he wanted to.
3 Henderson Keels testified credibly that Straight made the above remarks at the meeting.
Straight, a witness called by the Respondent, was not questioned in this connection Davis
testified, "Mr. Straight came in and he said, 'Mr. Davis, if the Union has told these boys
wrong, I think you should put them back to work.'"
4Sparks became a foreman during March 1952 He was a member of the Union's grievance
committee for the silica plant during the fall of 1951.
5Straight testified that the conversation took place about 3 weeks or a month before Novem-
ber 7 Sparks testified that "it was a month, maybe two months before then."
6 De Long died before the hearing herein
THE CAMBRIA CLAY PRODUCTS COMPANY 281
Q. Did he say he would fire them?
A. Well, I don't know that he said he would.
Q. Did he say he would fire them without warning?
A: He said he could fire them for attending meetings.
a a a a
Q. But he didn't say he would fire them, is that right?
A. Well, I didn't understand it that way.
a a a
Q. (By Mr. Marcus ) Mr. Sparks , at the time you spoke to Mr. De Hart and Mr. Straight
was there -- to correct that, you and Mr. Straight spoke to Mr. De Hart , did Mr. De Hart
say anything about you not going to future meetings?
A. Yes.
Q. He did say something about that?
A. He told us to bring it up in the meeting.
a
Q. (By Mr. Marcus) Mr. Sparks, did Mr. DeHart say anything about not going to future
meetings ?
A. The way I understand it, that was what we was talking about.
Q. Now did you testify at an Unemployment Compensation hearing that was held in
Jackson, Ohio on March 18, 19529
A. Yes, sir.
Q. And you were under oath at that time?
A. Yes, sir.
Q. Now at that time do you remember if you were asked the following questions and did
you give the following answers with respect to this conversation with Mr. DeHart:
"QUESTION: Did he say anything about future meetings?
"ANSWER: No.
"QUESTION: What finally did Mr. DeHart say9
"ANSWER: He told the boys if they went to the meeting to hurry back."
a
TRIAL EXAMINER EADIE: What counsel is asking you, Mr. Sparks, he is asking you
if, at that hearing, do you remember being asked those questions and do you remember
giving those answers? That is the question.
A. Yes, I remember being asked those questions.
Q. (By Mr. Marcus) Sir?
A. I remember being asked those questions.
Q. And do you remember giving those answers?
A. Yes.
James Rawlins and Virgil Rawlins testified that the question of attendance of employees on
the 3 to 11 p. in. shift was brought up at the union meeting held in September 1951. In this
connection James Rawlins was questioned and testified as follows:
Q. Do you attend any Union meetings, Mr. Rawlins?
A. I attended Union meetings up until September. I was off sick from September to
December.
Q. (By Mr. Fitch) What meeting are you talking about, the meeting of September?
A. The Union meeting in September.
Q. Who presided at that meeting?
A. Mr. DeLong.
Q. And was he the international representative?
A. Yes, sir.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Now did you hear some conversation take place between Mr . DeLong and Mr.
Straight in reference to the workmen on the afternoon shift attending Union meetings'?
Now just tell us what you heard , what Mr. Straight said and what Mr. DeLong replied.
A. Mr Straight asked him if the men had the right to, you know, all leave work and
attend the meetings . You know, they had been just shutting the plant down . And he told
them--
TRIAL EXAMINER EADIE: Who told him?
A. (Continuing) Mr. DeLong told Oscar Straight that they did not have the right to shut
the job down and all attend that way, they would just have to send committeemen.
Virgil Rawlins testified:
Q. Now you say that you did attend Union meetings back in 1951, that would be Septem-
ber, October and November?
A. Yes, sir.
Q. And it was Sherman Sparks and Oscar Straight who brought up the subject?
A. Yes, if I am not mistaken that is who it was . I am sure it was Oscar Straight and
if I am not mistaken , it was Sherman Sparks.
s
Q. (By Mr. Marcus) Is it your testimony here that Sherman Sparks stood up and said
something at that meeting about attending Union meetings on Company time?
A. Yes, he did.
Q. And Oscar Straight also?
A. Oscar Straight.
Q. Now which meeting was this, September or October?
A. It was September.
Q. It was the September meeting?
A. That is right.
Keels, Bishop, Watson, John Morgan Hammond, and Hutchinson, and employees Herbert
Scott and Owen Craddolph, witnesses for the General Counsel, testified to the effect that
neither Straight nor De Long reported or discussed at any meeting of the Union the question
of employees attending meetings during working hours, and that they never had been informed
or heard of such a rule. In this connection, Cofer, a witness called by the Respondent, was
questioned and testified as follows:
Q. Mr. Cofer, what was the practice with respect to the set gangs on the evening shift
about going to those regular Union meetings? Did they go and take off from work and go
to the Union meetings in past times before November 7th?
A. In the past they had been going whenever they wanted to go.
Q. Now before November 7th, did Mr. DeHart or Mr. Davis, or anybody above you at
the Company, tell you to tell the men that they couldn't go to those meetings?
A. No, sir, they never notified me.
Q. Did you ever receive any notification from the Company about that?
A. No, sir.
The Trial Examiner does not credit the testimony of Respondent's witnesses to the effect
that the alleged rule was brought up or discussed at the September meeting, or at any sub-
sequent meeting , of the Union. The discrepancies and contradictions in their testimony are
apparent. James and Virgil Rawlins, who did not impress the undersigned as credible wit-
nesses, testified that the subject was discussed at the September meeting. James testified
that he did not attend the meetings after September due to illness. However. Davis testified
to the effect that he did not instruct De Hart to speak to the committeemen until after the
September meeting. Straight in his testimony was unable to recall if the matter had been
brought up at a union meeting, although both Sparks and James Rawlins testified that Straight
discussed it with De Long. Even here there is a contradiction. Sparks testified to the effect
that De Long told the employees to disregard the rule; and James Rawlins testified that
De Long told Straight that the employees "did not have the right to shut the job down and all
attend that way, they would just have to send committeemen."
It is undisputed that the Respondent did not post any notice of the alleged rule on its bulle-
tin boards. Nor did it otherwise give direct notice to the employees involved. As related
THE CAMBRIA CLAY PRODUCTS COMPANY 283
above, Cofer did not know of the rule. The Respondent had the burden of proving its defense,
the promulgation of the rule with notice to the employees, by reliable and substantial evidence.
As to notice, the Respondent apparently relies on the alleged conversation between De Hart,
Sparks, and Straight about a month before November 7, 1951. The Trial Examiner does not
believe that the Respondent has met the burden of proof in this connection. Neither Sparks
nor Straight impressed me as reliable witnesses. As related above, De Hart was not called
as a witness. Further, the testimony does not show that De Hart claimed that he had spoken
to Sparks and Straight concerning the rulewhenhe and other representatives of the Respondent
met with the employees on the night of November 7.
However , assuming that a conversation between De Hart, Sparks , and Straight did take
place, nevertheless in my opinion , the evidence is insufficient to constitute a defense. Sparks
was the only witness who testified as to the substance of the alleged conversation. It does
not appear from his testimony that De Hart announced any set rule prohibiting attendance at
union meetings of employees on the afternoon shift.
The General Counsel and the Union contend that Cofer is a supervisory employee within
the meaning of the Act. The Respondent contends otherwise. There was considerable testi-
mony on this question. I do not believe that it is necessary to resolve this issue in view of
the fact that it is undisputed that Cofer had authority to grant time off to employees in the
set gangs .t This was sufficient to bind the Respondent insofar as its alleged rule was con-
cerned. As related above, on November 7 Keels announced in Cofer's presence that the em-
ployees were going to the union meeting . Cofer remained silent. Under the circumstances
his silence amounted to consent.
There is evidence in the case which discloses the Respondent's discriminatory motive in
the discharges. Michael Frabie testified credibly that he was employed by the Respondent as
"night superintendent" of the silica plant from about January 7, 1952, until about September
20, 1952; that at sometime after he was employed and before April 7, 1952, he had several
conversations with De Hart concerning the employees who had been discharged on November
7; and that "He[De Hart] thought that those fellows were mostly troublemakers and that was
his chance to get rid of them. He said he told them not to go to those meetings, and they went
anyhow ... that as long as they were union men they didn't want them ... they fired those
fellows on account of the union activities. ..."9
In its answer and in its brief the Respondent claims, in substance, that the Union failed to
exhaust its remedies under the 1951 contract9 and alleges that such failure constitutes a de-
fense to the discharges. This defense is rejected.io
Accordingly, from the record as a whole, it is found that the Respondent on November 7,
1951, discharged the 12 employees named above in violation of Section 8 (a) (3) of the Act. I
believe and find that the General Counsel made out a prima facie case and that the Respondent
did not sustain its defense by reliable and substantial evidence.
C. Interference, restraint, and coercion before the strike
On about March 1, 1951, employee Everett Donley had a conversation with De Hart. In this
connection Donley was questioned and testified credibly as follows: ti
Q. Now, where were you and where was Mr. De Hart at that time'?
A. I was in the kiln, and so he come to the kiln door and motioned for me to come out
and I went out, and he said tome, said . "Donley, are you going to stay in the union or are
you going to drop out of it? " I said, "I guess I will stay in."
7 The evidence shows that before November 7, 1951, Cofer docked employees for the time
they were off from work while attending union meetings ; and that he granted time off to
employees without consulting De Hart.
8On cross-examination, Frabie admitted that he had been convicted of a felony for which
he had "served time" in the State of Pennsylvania but testified that he had been "pardoned."
Despite this admission , Frabie impressed me as an honest and sincere witness. Further,
the above testimony stands uncontradicted in the record.
9 There is a dispute in the case as to whether or not the Union filed grievances on behalf
of the 12 discharged employees in accordance with its contract with the Respondent.
ioKansas Milling Company, 86 NLRB 925; Dorsey Trailers, Inc., 80 NLRB 478.
ii The General Counsel submitted in evidence about 80 notifications of withdrawal from
the Union which were signed by employees. The forms were prepared by the Respondent. All
bear dates during March 1952 and show that the majority were witnessed either by De Hart
or by Supervisors Alfred Grubbs, Preston Dodds, andRaiph Flowers. Dodds was a supervisor
at the clay plant. Grubbs, Dodds, and Flowers did not appear as witnesses at the hearing
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He said, "why don't you drop out and do me a favor, why don't you'? "
I told him I didn't believe I would.
He said, "I will make it so hot for you, you will wish you had."
It is found that De Hart's solicitation of Donley's withdrawal from the Union and his threat of
reprisal if Donley did not withdraw constitute interference, restraint, and coercion.
As related and found above, Henderson Keels was discriminatorily discharged on November
7, 1951. On about March 20 and 21, 1952, Keels had conversations with Ed Davis, 12 a school-
bus driver, Supervisor Grubbs, and Superintendent De Hart. Concerning these conversations,
Keels was questioned and testified credibly and without contradiction as follows:
Q. Is that Ed Davis, the school bus driver?
A. That is right. He approached me at Wendell Lewis' store. And he asked me how
strong a union man I was. And I just told him, I say, "I belong to the union." So he asked
me if I would withdraw if he could get my job back.
s
Q. And what did you tell Ed Davis?
A. I told him I didn't know about that.
Q. Now, that evening did you have any further conversation with Ed Davis?
A. Yes, sir.
Q. Was anyone else with him at that time?
A. Yes, sir.
Q. Who was that?
A. Alfred Grubbs.
Q. (By Mr. Marcus) Now, where did this conversation take place?
A. At my house where I live.
Q. About what time of night was that?
A. Well, it was around, I would say between 7 and 8 o'clock.
Q. And could you tell us what Ed Davis and Alfred Grubbs said to you and what you said
to them at that night?
A. Well, before, at the store, before I left Davis, he told me to get my brother-in-law,
Richard Scott, he said he had been talking to him and Donald Howell, to withdraw with
me, in order for me to go to work. Well, they came out to my house to see whether or not
that I got these two fellows to sign withdraw slips.
Q. And what did they tell you?
A. Well, they said they had to have them in by that time.
Q. You had to have the withdrawal slips in by that day?
A. By the next day.
Q. Did they tell you what would happen to you if you did get the slips in?
A. Well, I wouldn't get to go to work if I didn't have the slips.
e
Q. What did they say would happen if anything if you did have the slips?
A. Well, I could go to work.
Q. You mean they told you if you got the slips in you could go back to work?
A. Yes, sir.
a * s
Q. (By Mr . Marcus ) Now, did anything further happen with regard to your going back
to work on the next day?
A. Yes, sir, I went to work the next evening.
12 It does not appear that Ed Davis is related to E E. Davis, Respondent's vice president.
THE CAMBRIA CLAY PRODUCTS COMPANY 285
a
Q. Preliminary question.
Did you go see De Hart that evening?
A. Yes, sir.
Q. And about what time in the evening did you see him?
A. Well, it was after 3, 1 would say, when I got up here.
Q. And where did you see him?
A. At the office.
Q. At the silica plant?
A. Yes, sir.
Q. What did you say to Mr. De Hart and what did he say to you at that time?
A. Well, I just walked in and I asked him if he wanted to see me.
Q. Yes.
A. And he asked if me and Ed Davis didn't have a deal on the bus, or something like that.
Q, (By Mr. Marcus) Now, Henderson, what else did Mr. De Hart say to you at that
time?
A. He asked me if I talked to Richard Scott.
Q. And what did you say?
A. I told him I hadn't.
Q. You had not?
A. Yes, sir.
Q. And what else did Mr. De Hart say?
A. Well, he asked me if there was anybody I could get to withdraw with me in order for
me to go to work.
a
THE WITNESS: Well, he asked me if there was anybody I could get to withdraw from
the union along with me in order for me to go to work.
Q. (By Mr. Marcus) And what did you say to that?
A. I told him I couldn't think of anyone.
Q. Then did Mr. De Hart suggest anyone?
A. Yes, sir, he asked me what about Don Howell.
t
Q. Did he ask you about anyone else?
A. Well, he sent me across over in the plant to find Don and I went over there and I
didn't see him, and I come back and I told him that I didn't see Don over there anywhere.
Q. You say he sent you across the plant to look for Don?
A. Yes, sir, that is right.
Q. Then what did Mr. De Hart say?
A. He asked me what about my brother, Dewey Keels.
Q. Was your brother Dewey working at the plant at that time?
A. Yes, sir.
Q. And what did you do at that time?
A. Well, he told me to go over and talk to Dewey.
Q. And did you?
A. Yes, sir.
Q. Then what happened after that?
A. Well, Dewey agreed to withdraw with me out of the union. We both come back over
to the office and signed a withdraw slip.
Q. Did you sign those withdrawal slips in Mr. De Hart's presence?
A. Yes, sir.
It is found that Ed Davis was an agent of the Respondent in the solicitation of resignations
from the Union; and that the above conduct and statement of Davis, Grubbs, and De Hart
constitute interference , restraint , and coercion.
Keels' conversation with De Hart took place on March 21, 1952. He was reinstated to his
job that same afternoon.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees Tom Hammond, Elmon Craddoiph, Richard Jackson, Adrian Watson, Jr., John
Morgan Hammond, Delbert Harris, Clarence Harris, Lloyd Horner, Forest Harris, Curtis
McFann, Kenneth Craddoiph, Richard Scott, Ernest Bailey, and Leslie Rister testified credibly
and without contradiction to various acts of interference, restraint, and coercion, occurring
during March 1952, and involving De Hart, Grubbs, Dodds, Flowers, and checker John Howell.
The testimony of Tom Hammond and his son, John Morgan Hammond, definitely establishes
that Howell was acting as the Respondent's agent in soliciting resignations from the Union.
The testimony in this connection reveals that the employees were interrogated concerning
their union activities, solicited to withdraw from the Union, threatened with reprisals if they
did not withdraw from the Union and promised benefits if they did. The testimony is not set
forth herein in detail since it is cumulative.
D. The discharges of James Miller, Clarence Friend, and
Woodrow Hall
Friend started to work for the Respondent on or about May 22, 1951. Hall was employed
starting in February 1952. Both were gin hands in the same set gang at the silica plant. They
worked on the second shift under Cofer and Supervisor Frabie.
About 9 p. m. on March 21, 1952, De Hart went to the kiln in which Hall and Friend were
working and called Hall outside. De Hart asked Hall if he would resign from the Union by
signing a withdrawal slip. Hall refused. De Hart then called Friend out of the kiln and spoke
to him in Hall's presence. Concerning this conversation, Friend was questioned and testified
credibly as follows:13
Q. When you got out of the kiln, were you and Woodrow and De Hart standing there?
A. Yes.
Q. Did Mr. DeHart say anything to you?
A. Asked me to withdraw from the union.
Q. What did you say?
A. Told him no, I didn't reckon I would.
Q. Anything further?
A. He asked why and I told him I didn't see where it would do me any good.
Q. Mr. DeHart say anything else?
A. He asked if I wanted to be for the company and withdraw from the union or stay in
the union and against the company. I said be against the company.
Q. Did he say anything about the 18 or 19 men?
A. He said did I realize there had been 19 men fired lately. Did the union help them.
Q. What did you say?
A. I told him I didn't know about that.
Shortly after his conversations with Hall and Friend, De Hart told Frabie to discharge them
at the first opportunity. That night Hall and Friend and the other employees in their set gang
left the plant at about 10:50 p. m. after they had completed their allotted work.14 Nothing was
said to them at the time by Cofer.
In accordance with Cofer's orders, Friend reported for work on the 7 to 3 p. m. shift on
Sunday, March 23. Frabie told him to report to De Hart on Monday and sent him home. When
Friend and Hall reported for work on March 24, De Hart discharged them by telling them that
they had "quit."
Miller was employed by the Respondent on about November 26, 1947. He was a "tosser"
(pieceworker) in a set gang on the 11 to 7 a. m. shift at the silica plant. He was a member of
the Union.
On Sunday, March 23, 1952, Miller worked on extra shift as a gin hand on the 7 to 3 p. m,
shift. 15 When The gang's allotted work was completed, the pieceworkers left the plant before
isJohn Howell and Supervisor Grubbs also had solicited Friend's resignation from the
Union.
14 The evidence shows that it was the custom for the set gangs, including hourly workers,
to leave the plant after they had made their "quota" and before the end of the shift. Both
Cofer and Frabie testified to this effect.
15As related above, Friend was scheduled to work on this shift but was sent home by
Frabie
THE CAMBRIA CLAY PRODUCTS COMPANY 287
the end of the shift. Miller left shortly thereafter. 16 That same night Miller reported for work
on his regular shift at 11 p. m. He was discharged by being told that he had "quit ... didn't
work there no longer." Employee Richard Jackson was assigned to Miller's place in the
gang. 17
On Monday, March 24, Miller had several conversations with De Hart. Miller told him that
he "liked to work for the company" and that he did not want to leave Blackfork. De Hart asked
him if he could "stand to stay off a few days," and Miller replied, "Yes." De Hart told him
that the Union was "no good." Miller did not make any comment. The Respondent reinstated
Miller on March 31.
Concerning the reasons for discharging Friend, Hall, and Miller, and for the latter's rein-
statement, Frabie was questioned and testified credibly as follows:
Q. Will you tell us about that?
A. Jim Miller went home an hour early that day.
A. And--
A. He never notified me.
Q. So what action did you take?
A. The same as Hall and Friend, he was fired.
Q. Now, could you give us the reason for taking this action against Miller?
A. The same reason as the other two fellows.
Q. (By Mr. Marcus) Well, I will ask you again, what were your reasons for firing
Miller 9
A. That was my orders.
Q. Now, you had gotten orders to fire people for going home early.
A. Anybody that was a union man, yes.
TRIAL EXAMINER EADIE: What was that?
THE WITNESS: Anybody that was a union man, a strong union man must go.
Q. (By Mr. Marcus) Who gave you those orders?
A. Mr. De Hart and Mr. Davis.
Q. Was Mr. Miller a union man?
A. As far as I know, he told me to fire him.
Q. Now, when did Mr. De Hart and Mr. Davis give you those orders to fire the strong
union men?
A. Well, when it got close to the closing date on the acceptance of those slips.
Q. Did De Hart later have a conversation with you about Miller?
A. Yes.
Q. Tell us what was said?
A. He said Miller agreed to withdraw from the union and he would take him back in
about ten days.
It is found that the Respondent discharged Friend and Miller on March 23, 1952, and Hall
on March 24, 1952, in violation of Section 8 (a) (3) of the Act.
E. The discharges of Owen Craddolph and Edison Galliamore
Before their discharges, Galliamore and Craddolph were employed by the Respondent for
about 33 and 26 years, respectively. Both worked at the clay plant. Galliamore was vice
IsMiller testified that the shift ended at 3:30 p. m and that he left at "3 o'clock or later."
While there is some confusion in the record concerning the hours of the shifts, possibly due
to the custom of employees leaving the plant when their work was completed rather than at
a set time, it appears from the evidence as a whole that the hours of the above shift were
from 7 to 3 p in. Frabie testified that Miller "went home an hour early that day... He
never notified me."
it As related above, Jackson was discharged on November 7, 1951, and reinstated on March
21, 1952. Jackson testified without contradiction to the effect that De Hart solicited his
resignation from the Union, and that he was rehired by De Hart after he had agreed to sign
a withdrawal slip.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
president of the local union; and Craddolph was its financial secretary and treasurer. Both
were members of the Union's grievance committee.
On March 23, 1952, at about 8:30 a. m., Galliamore and Craddolph went to the silica plant
to investigate Friend's discharge. They were at the plant for about 20 minutes and spoke to
employees Harvey Patton and Elroy Friend, a brother of Clarence Friend.
On Monday evening, March 24, Craddolph and International Representative Johnson of the
Union went to the silica plant in order to discuss the discharges of Friend and Hall with
De Hart. De Hart said he did not have time to discuss the matter with them as he was about
to leave the plant.
The next night Craddolph met with De Hart and Dodds at the silica plant office. Craddolph
had with him a grievance paper which had been signed by Friend and Hall. Concerning the
conversation, Craddolph was questioned and testified credibly as follows:
Q. Did you ask Mr. De Hart to sign it?
A. I asked Mr. De Hart to sign the grievance for the local union's file.
Q. Did you give, offer to Mr. De Hart a copy of the grievance?
A. Yes, sir.
Q. Now what did Mr. De Hart or Mr. Dodds say?
A. I laid a copy down on the table for his signature, and he refused, he didn't, he didn't
refuse, but he talked to Mr. Dodds, I don't remember just what he said, and Mr. Dodds
shoved it back at me and said, "We are through with all that, we are not going to bother
with that sort of thing any more."
A. I said, "Well, since you won't sign my grievance I will leave one copy with you,"
and I just left the company's copy and I walked out.
Galliamore and Craddolph visited the silica plant again on about April 4 in order to investi-
gate the discharge of another employee. They were at the plant for about 15 minutes and were
seen by Frabie. About 10 minutes later, De Hart asked Frabie who had come to the plant.
When Frabie told him, De Hart said, "We will have to file trespassing charges against them,
they work at the clay plant, they don't work at the silica plant."
De Hart, Davis, Frabie, Dodds, and Edward Smith, a supervisor at the clay plant, had a
meeting the next day. Concerning this meeting, Frabie was questioned and testified credibly
as follows: 18
Q. What took place at that meeting, do you remember?
A. It was discussed what we were going to do with Frog (Galliamore) and Owen
(Craddolph).
Q. Frog and Owen?
A. Yes.
Q. And what did, what was decided to do with them?
A. The final decision was that the best way to do with them was to fire them and get
rid of them.
Q. Were there any reasons given for the firing of them?
A. What the reason was I couldn't tell you outside of the fact that they came up to the
silica plant.
a t a
Q. Now, at this meeting, where you say the decision was taken to discharge Frog and
Owen, was there any discussion about the hundred thousand brick dinners that the com-
pany was giving?
A. Yes.
18 Smith denied that he ever had attended any meetings at which Frabie was present. Davis
denied that he at any time called a meeting of foremen or superintendents in which Frabie
participated Otherwise he did not deny the remarks attributed to him and to De Hart by
Frabie Nor did he deny that he consulted De Hart and Dodds when he ordered Smith to
discharge Galliamore and Craddolph Under all the circumstances, I believe and find that
Frabie is the more reliable and credible witness in this connection.
THE CAMBRIA CLAY PRODUCTS COMPANY 289
Q. Could you tell us what that discussion was?
A. The company was under the impression that Frog and Owen was up there to try to
get the men to stay away from the dinner, but I didn't know what the discussion was.
Q. Did anyone say anything at that meeting about any position that these people held in
the union? i
A. Yes.
Q. Could you tell us who said it and what it was that was said?
A. Davis and Mr. De Hart said that that would be two men that they wouldn't have to
worry about if they fired them, because Frog was supposed to be a vice president, and
the other fellow was a committee man.
Craddolph and Galliamore were discharged on April 6. When Craddolph reported for work
that day, Supervisor Smith told him that he was discharged "for going to the silica plant on
Friday evening (April 4]." A separation nonce given to Craddolph at the time shows the fol-
lowing reason for his discharge:
Employee was discharged for trespassing on Silica Plant & causing & inciting trouble
w/other employees while they were on their jobs.
On about April 9 or 10, Supervisor Dodds met Galliamore and Craddolph and told them,
"Do you want to know the real reason why you were discharged... Well, you were discharged
because you ruined the dinner that the Company gave for the employees." 19
The undisputed evidence shows that for a number of years "no trespassing" signs were
posted on the silica plant property. However, the evidence conclusively shows that before
April 4, 1952, employees who were off duty or who worked at the clay plant often visited the
silica plant for business or social reasons; that such visits took place with the knowledge of
Respondent's supervisors and without objection on their part unless employees were dis-
orderly; and that no employee had been discharged for trespassing.
There is a dispute as to whether or not Craddolph mentioned Respondent's dinner when at
the silica plant on April 4. He testified that he did not. Respondent's witnesses testified other-
wise . I do not believe the issue is material since it does not appear that Galliamore and
Craddolph were creating a disturbance or "causing & inciting trouble." Frabie testified to
the effect that they were orderly.
Accordingly, it is found that the Respondent discharged Galliamore and Craddolph on April
6, 1952, because of their membership in and activities on behalf of the Union, and thereby
violated Section 8 (a) (3) and (1) of the Act. 20
F. The strike, interference, restraint, and coercion
On the night of April 6, 1952, a meeting of the Union was held at the home of Owen Crad-
dolph. The employees present voted to strike. On April 7, the Union set up picket lines at
both plants . The Respondent resumed limited operations at the plants shortly after June 18.
The strikers made an unconditional offer to returnto work on August 4 and reported for work
on August 5. As of thedateofthe hearing herein, many of the strikers had not been reinstated.
It is found that the strike was caused and prolonged by the Respondent's unfair labor
practices, heretofore and hereinafter found. Under the circumstances, the Respondent was
obligated to reinstate the strikers on August 5.
Robert Toner became an employee of the Respondent about May 1951. He joined the Union
and lived in a company house. During about March 1952, he moved out of the company house.
He resigned from the Union on about March 20. However, when the strike started, he did not
cross the picket line. About a week after the start of the strike, he went to De Hart's house
and had a conversation with him. Toner's wife, Grubbs, and employee Harold Malone were
present at the time. Concerning this conversation, Toner was questioned and testified credibly
as follows:
19 The evidence indicates that the dinner was held on Saturday, April 5, and that it was
given by the Respondent because the plant had produced 100,000 brick per day for a month.
Galliamore testified that before Dodds' statement he did not receive any notice from the
Respondent of his discharge. On about August 5 Foreman Smith gave him a separation
notice, dated April 7, 1952, which was almost identical to that given Craddolph on April 6.
As will be hereinafter related, the strike started on April 7 and ended on August 4.
20 The complaint, as amended, alleges that Galliamore was discharged on April 6, and the
Respondent's answer admits this allegation.
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Now, could you tell us what was said, what Mr. De Hart said, what anyone else said,
and what you said?
A. Well, I wanted a house down there, and I went to his house down there, and asked
him if it was for rent, and he asked me if I belonged to the union, and I said no, which I
didn't at the time, and he said he didn't see why I couldn't move into, go ahead and move
in, but he told me if I ever joined the union I would never work back up on that hill again,
I would be fired.
s
Q. Now, did Mr. De Hart say anything else about the house?
A. Yes, sir, he asked me ifIwould take a paper around and try to get some man to sign
it to go through the picket line, that he would fix that house up so it was nicer than any
house down there in that hollow.
It is found that De Hart's remarks constitute interference.
Employee Ricard Jackson was employed by Jack Watson, a contract trucker, from January
21, 1952, until his discharge on August 4.21 He was discharged by Watson because the Re-
spondent would not permit him to drive Watson's truck on its property.
On the night of August 4, he called Vice-President Davis on the telephone and inquired about
his discharge by Watson. Davis told him that "it was up to De Hart and Watson." Some few
days later, Jackson spoke to De Hart who told him that the Respondent would reinstate him
with his seniority if he "would go up and see him [Davis] and withdraw ... charges in
Cmcmnatti [unfair labor practice charge filed with the Board]." 22
It is found that the above statement of DeHart constitutes interference.
In its answer to the amended complaint, the Respondent alleges "the persons named in para-
graph 12-a, acting in concert, together with Local No. 879, United Brick and Clay Workers of
America, A.F.L. have threatened, intimidated, and committed actual violence against the
employees of the Respondent herein." In its brief, the,Respondent contends, in substance,
that the evidence connects certain of the strikers with the acts of violence and that it should
not be ordered to reinstate them for this reason.
As related above, on about June 18, 1952, the State court issued a temporary restraining
order, limiting pickets to two at each plant. Thereafter, the court found employees Lawrence
Robinson, Edison Galliamore, Owen Craddolph, and Reuben Wood guilty of contempt of its
order. There is no evidence in the instant case that any of these employees were disorderly
or committed any acts of violence while they were on the picket line, apparently in violation
of the court's order. Further, as related above, Craddolph and Galliamore were discrimina-
torily discharged on April 6 before the strike, and therefore were not strikers. Accordingly,
the Respondent's contention in this respect is rejected.
There is considerable testimony concerning altercations and fights between strikers and
nonstrikers or other strikers. There are disputes in the record concerning which person or
groups provoked the trouble. I find it unnecessary to resolve these issues, since none of the
incidents took place on the picket lines or near the plants.
It is undisputed that during the early morning hours of July 24 some unidentified person or
persons dynamited the gas pipeline leading to the Respondent's plant. The record indicates
that the blast did not occur near the plant proper or on Respondent's property. In support of
its contention in this connection, the Resondent called employee Willie Watson as a witness.
Watson, one of the strikers, had performed picket duty. He testified to the effect that Crad-
dolph, Galliamore, and Otto Holtzapfel , international representative of the Union, at times
visited the picket line; that Craddolph and Galliamore "just took care of the picket lines, .. .
like food and stuff like that"; and that at sometime-during the strike and before July 24 he
21As related and found above, Jackson was discriminatorily discharged by the Respondent
on November 7, 1951, and was reinstated on March 21, 1952. He went on strike with other
employees on April 7.
22 Employees John Hutchinson and James Bishop testified to similar conversations with
De Hart.
THE CAMBRIA CLAY PRODUCTS COMPANY 291
overheard Holtzapfel and the "pickets" discuss the gasline.23 Concerning this conversation,
Watson was questioned and testified as follows:
Q. 7b11 us what was that conversation, what did each of them says
A. I heard that there was only supposed to be so many pounds of gas go into the plant.
Q. Go ahead.
A. And they said it wasn't enough gas to burn a kiln.
Q. Who said that now?
A. Mr. Holtzapfel.
Q, All right, go ahead.
A. And he said if they let any more gas through, you boys know what to do. I can't tell
you what to do, but you boys know what to do.
Neither Craddolph nor Galliamore were strikers. As found above, they were discharged on
April 6, 1952. However, if the evidence showed that they committed or were responsible for
this act of violence, I would not recommend their reinstatement. Even if Watson's version of
the above conversation is credited, Idonotbelieve that the evidence is sufficient to make such
a finding. 25 Therefore, the Respondent's contention in this respect is rejected.
On July 24, employee Nelson Howell drove away in his car from the silica plant. He was
accompanied by employee Virgil Ray Keels. After they had passed the Union's picket line,
some unidentified person shot at the car from or near a house. Howell and Keels returned to
the plant. Upon inspection, it was discovered that the car had been struck by shotgun pellets.
Keels and Howell again left theplantmthe latter's car. They were followed by Vice-President
Davis, Harry Collis, Respondent's bookkeeper and auditor, and Hudson Jeffries, an attorney,
who were riding in a pickup truck. When Howell's car was near the Union's picket tent, 26 which
was to the car's left, some unidentified person shot a shotgun at the car. Howell, who was
driving, was wounded in his left arm. Employees Paul Severt and Tony Diandre were on picket
duty at the time. They were seated in front of the tent, between it and the road.
Davis, Collis, and Jeffries testified to the effect that the shot was fired from the near
vicinity of the picket tent. 27 Severt testified that Howell, while driving his car, shot a pistol
in the direction of the woods which were across the railroad tracks. Diandre testified that he
heard a shot which had "Come from the bushes" and that about 50 or 60 feet from the tent
Howell "shot three times." Leslie Rister testified thathe lived in a house about 50 yards from
the picket tent, on the opposite side of the road; and that he saw "Howell come down the
hollow shooting into the hill."
23His testimony is not clear but indicates that Craddolph and Galliamore were present
during the time in question He at first testified that he did not recall when the conversation
took place. Later he testified that it took place after June 18, and before that date He did
not identify any employees who were acting as pickets at the time.
24Holzapfel categorically denied making the above statement. He testified:
A. The only statement that I have ever made about the gas, I was talking with Mr
Galliamore and Mr. Craddolph at the silica plant picket line. They had the information,
from someone, it was supposed to have come from a man that had taken care of the gas
meters, that there was only 30 pound pressure of gas going into the silica plant.
The only statement that I ever made about the gas pressure was, to my knowledge, from
experience in the brick business, that 30 pounds will not burn brick
As to the actual date I couldn't say, but that was right after the Company started taking
employees back to work, and I think that was somewhere in the neighborhood of six weeks
prior to the gas explosion.
25 It is undisputed that on or about June 20, 1952, Walter Smith of the firm of Petker &
Smith sold employee Joba Wood "ten sticks of dynamite and four or five caps." Wood is
named in the Union's second amended charge but is not named in the amended complaint.
26 The tent had been erected by the Union for the convenience of the employees on picket
duty. It was located down the hill from the plant and across the railroad tracks. The tent
was near the road.
27 Howell was not called as a witness.
322615 0 - 54 - 20
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent apparently contends that Severt and Diandre, although it is not claimed that
they had guns or shot at Howell's car, should not be reinstated to their jobs because according
to the Respondent's witnesses, they did not show any reaction when the shooting took place.
Davis and Jeffries testified to the effect that Severt and Diandre did not move or act startled
when the shot was fired at Howell's car. Collis testified, "My view was free to see the Howell
car. I couldn't tell about the pickets, I don't know. They were sitting there when we drove
around in front of them.28 ... We could see the picket tent and the Howell car. I never saw
the pickets until we got around there." Jeffries testified that the pickup truck "couldn't have
been over 50 or 60 feet" to the rear of Howell's car when it was close to the tent.
From all of the evidence in this connection, I believe and find that the shot did not come
from the near vicinity of the picket tent. None of the Respondent's witnesses saw a flash or
smoke from a gun, although it appears that their vision was not obstructed by brush or trees
at the time. Further, if the gun had been fired as close to the tent as these witnesses esti-
mated, it is my opinion that the shot would have caused far more damage to Howell and his
car. The fact that Howell fired his pistol in the direction of the brush across the tracks after
he passed the tent also supports this finding. Accordingly, the Respondent's contention with
respect to Severt and Diandre is rejected.
Considerable evidence was adduced concerning 300 to 500 shots that were fired at about
2:30 p. m. on July 25, 1952. It appears that the shooting took place on a hill adjacent to the
plant. The shots allegedly were fired in the plant's direction. However, the evidence does not
show that any of the Respondent's property or that of its employees was damaged.
With respect to this incident, James Rawlins testified, in substance, that as a result of
De Hart's request that he go on the hill to see who was shooting at "trailers" he, Virgil
Rawlins, and Ernie Lawson went on the hill at about 7 a. m. and stayed there until about
4 p. m.; that they heard shooting at about 2:30 p. m.; that about 30 or 45 minutes before the
shooting, from a concealed position he saw employees Harry Yoak, Richard Jackson, Carl
7kylor, Elmer Taylor, Derwood Taylor, Paul Severt, Paul Bloomfield, Charles Murnahan,
Henderson Keels, Fitch Keels, Harvey Patton, and Don King; that the 12 employees were
armed either with rifles or shotguns; and that he reported the names of the 12 employees to
De Hart when he returned to the plant at about 4 p. m. Virgil Rawlins testified that he saw
the 12 employees "between two hours and five hours after I went in the woods."
James and Virgil Rawlins have been discredited heretofore in connection with the discharges
on November 7, 1951. Their testimony with respect to the shooting incident also is not
credited. 29 There are discrepancies and contradictions in the testimony of James Rawlins,
particularly concerning an alleged conversation with Harvey Patton at the courthouse at Iron-
ton. The evidence shows that on July 25 Richard Jackson had a medical examination at Jackson,
which is about 18 miles from Blackfork; that he started work for a company at Jackson that
day; and that he worked from 2 to 8 p. m. The evidence further shows that Charles Murnahan
worked for a company located at Ironton, about 28 miles from Blackfork, and that on July 25
he worked from 6:38 a. m. until 3:02 p. m.90
There is testimony in the case concerning other violence, but there is no evidence to connect
it with any of the strikers or the Union. Therefore, it is not set forth herein.
Accordingly, it is found that the Respondent failed to prove by reliable and substantial
evidence that any of the strikers were guilty of violence or other misconduct; and that the
Respondent by failing and refusing on August 5, 1952, to reinstate the employees named in
Appendix B violated Section 8 (a) (3) and (1) of the Act.
G. The refusal to bargain
There is no dispute in the case concerning the appropriate unit. However, the Respondent's
answer does not admit that the Union represented a majority of employees in the unit. Without
taking into consideration defections from the Union which were caused by the Respondent's
unfair labor practices, the undisputed evidence discloses conclusively and I find that the Union
at all times material herein represented a majority of the employees in the appropriate unit.
As related above, the 1951 contract between theRespondent and the Union was due to expire
on March 31, 1952. By letter dated January 28, 1952, the Union requested the Respondent to
set a date for a conference in order to negotiate a new collective-bargaining contract. The
88 Leaving the plant, the road crossed the railroad tracks and made a sharp turn to the left
so that it more or less paralleled the tracks.
29Ernie Lawson did not appear at the hearing as a witness.
So Other employees named by James Rawlins denied any connection with the shooting on
July 25 Their testimony is credited in this respect.
THE CAMBRIA CLAY PRODUCTS COMPANY 293
Respondent did not reply to this letter. On March 3, Allie Messer, vice president and business
agent of District 10 of the Union, held a grievance meeting with representatives of the Re-
spondent , including Vice-President Davis. At this meeting , Messer mentioned to Davis that
the Union had not received any communication from the Respondent relative to contract
negotiations . It was agreed between them that the Union would submit a contract proposal By
letter dated March 11 the Union again requested the Respondent to set a date for a bargaining
conference The Union' s proposed contract was enclosed with the letter . The Respondent did
not answer this letter . The Union sent the Respondent another letter , dated March 18, 1952,
in which it referred to its previous letters and again requested the Respondent to set a date
for a bargaining conference . On March 26 Chester P. Fitch, Respondent 's attorney, replied
to the Union's letter, as follows:
Your letter of March 18th, 1952 directed to the management of Cambria Clay Products
Company has been turned over to the writer for my attention.
When you forwarded a copy of the proposed contract , I understood that a tentative date
for a meeting had been arranged for Thursday, March 20th, at 4:00 P. M. The repre-
sentatives of management appeared at the usual meeting place . However, no one repre-
senting the International organization appeared.
There is a serious matter that has arisen in reference to the renewal of this contract.
The company has received a great number of notices from their employees stating that
they have withdrawn fromLocalNo. 879andcancellmg the assignment to make any further
deduction of dues . From reading the notice , we assume that a copy has been mailed to
Local No. 879 at Blackfork , Ohio. The Company has received so many of these notices
that we have reason to question whether or not the Union now represents a majority of
the employees.
We would like to have an expression from you, particularly if you have received the
same notice, as apparently it has been sent out in duplicate - one to the company and
one to the Local.
If you continue to represent a majority of the employees at Cambria, we will be glad
to meet with you to discuss negotiations . However, the writer will be busy in court the
rest of this week.
We also wish to call your attention to the fact that an unfair labor practice charge was
filed with the National Labor Relations Board and we feel that we should meet and discuss
this matter and have it disposed of.
If you have a representative that is going to be in this community in the next few days,
I would appreciate it if you will have him contact me.
After further correspondence a meeting between the parties finally was scheduled and held
on April 24 , 1952 Between that dateandJuly 7, 1952, about eight bargaining conferences were
held. The parties were unable to reach agreement either on a contract or on settlement of the
strike. In view of findings hereinafter made , I do not find it necessary to set forth in detail
the negotiations or the contentions of the parties concerning these meetings.
Between July 18 and September 17, 1952, the Union sent five letters to the Respondent
requesting bargaining conferences . The Respondent did not reply to any of these letters.
As related and found above , on March 25 , 1952, Owen Craddolph , as a representative of
the Union , attempted to process a grievance with De Hart and Dodds . Dodds refused to accept
the grievance by stating , "We are through with all that , we are not going to bother with that
sort of thing any more." It has also been found that during March 1952, certain of the Re-
spondent 's supervisors solicited employees to resign from the Union.
I find that on or about January 28 , 1952, and thereafter, the Respondent refused to bargain
collectively with the Union within the meaning of Section 8 (a) (5) of the Act. The Respondent
ignored the Union 's initial request to bargain until Messer brought up the subject again at his
meeting with Davis on March 3. Tiereafter , and particularly on March 20 , the Respondent
engaged in a concentrated campaign to coerce employees to withdraw from the Union. In this
connection , it is noteworthy that Fitch in his letter of March 24 referred to a meeting which
he understood had been arranged for March 20 at 4 p. m. In view of its campaign against the
Union, the Respondent 's questioning of the Union's majority , as disclosed by Fitch 's letter,
shows its bad faith in its bargaining relationship with the Union . The Respondent 's refusal
to process a grievance presented by Craddolph on March 25, in itself a violation of its contract
with the Union and an unfair labor practice , confirms this finding.
It is true that between April 24 and July 7, 1952, the Respondent met with the Union. How-
ever , while going through the motions of collective bargaining , the Respondent continued to
engage in unfair labor practices, as found above. This conduct further puts in question the
Respondent 's good faith in the matter.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally , the Respondent ignored the Union 's requests for bargaining conferences on and
after July 28, 1952. The fact that charges had been filed with the Board and that the hearing
herein was scheduled to start on October 6 did not relieve the Respondent of its obligation to
bargain with the Union. u
IV, THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in connection with
the operations of the Respondent set forth in section I, above, have a close, intimate, and sub-
stantial relation to trade , traffic , and commerce among the several States , and tend to lead
to labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices , the Trial Examiner
will recommend that it cease and desisttherefrom and take certain affirmative action designed
to effectuate the policies of the Act.
It has been found that the Respondent by its course of conduct on and after January 28,
1952, refused to bargain collectively with the Union as the exclusive representative of its em-
ployees in a unit hereinafter found to be appropriate for the purposes of collective bargaining.
Accordingly, it will be recommended that the Respondent bargain collectively, upon request,
with the Union as the exclusive representative of its employees in the aforesaid appropriate
unit, and that the Respondent embody any understanding reached in the course of such col-
lective bargaining , upon request, in a written agreement , signed by the parties affected thereby.
It has been found that the Respondent discharged the employees whose names are listed on
Appendix A on November 7, 1951, Clarence Friend and James Miller on March 23, 1952,
Woodrow Hall on March 24, 1952, and Owen Craddolph and Edison Galliamore on April 6,
1952. It further has been found that on August 5, 1952, the Respondent refused to reinstate the
employees whose names are listed in Appendix B. It will be recommended that the Respondent
offer them immediate and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and privileges . It further will be
recommended that the Respondent make whole said employees for any loss of pay they may
have suffered by reason of Respondent's discrimination by payment of a sum of money equal
to that which they would have earned as wages from the date of the discrimination to the date
of an offer of reinstatement, or to the date of reinstatement in cases where the evidence shows
that they have been reinstated or where an enforcement agreement or proceeding determines
such fact, less their net earnings during such period. Said loss of pay shall be computed on
the basis of each separate calendar quarter, or portion thereof, during the period from Re-
spondent's discriminatory action to the date of the offer of reinstatement. The quarterly
periods, herein called "quarters," shall begin with the first day of January, April, July, and
October. Loss of pay shall be determinedbydeducting from a sum equal to that which the em-
ployee would normally have earned for each such quarter or portion thereof, his net earnings,
if any , in other employment during that period. Earnings in one particular quarter shallhave
no effect upon the back-pay liability for any other quarter. In order to insure compliance with
the foregoing back-pay and reinstatement provisions, it is recommended that Respondent be
required , upon reasonable request, to make all pertinent records available to the Board and
its agents.
Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Local Union 879, United Brick and Clay Workers of America, AFL, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees at the Respondent 's Blackfork, Ohio, opera-
tion, excluding office and clerical employees , guards , professional employees , and super-
visors as defined in the Act, consiitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
3. By refusing to bargain collectively with the Union the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (5) and (1) of the Act.
4. By discriminating against the employees named in Appendices A and B, and against
James Miller, Clarence Friend, Woodrow Hall, Owen Craddolph, and Edison Galliamore, the
3iJ. B. Wood, et al., 95 NLRB 633.
TALLADEGA COTTON FACTORY, INC. 295
Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3) and
(1) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of Section
2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
TALLADEGA COTTON FACTORY, INC. and TEXTILE WORK-
ERS UNION OF AMERICA, CIO. Case No. 10-CA-806. July
22, 1953
DECISION AND ORDER
On February 28, 1952, Trial Examiner James A. Shaw
issued his Intermediate Report in the above entitled proceed-
ing, finding that the Respondent had engaged in and was en-
gaging in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the Re-
spondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal of the
complaint with respect to such allegations. Thereafter, the
Respondent and the General Counsel filed exceptions to.the
Intermediate Report and supporting briefs.
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 Intermediate Report, the exceptions and briefs,
and the entire record in the case and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner
with the exceptions, modifications, and additions noted below.
1. We agree with the Trial Examiner that the Respondent
discharged supervisory employees, Overseers Marion K.
Shiflett and Seybourn Pilkington, because of their failure ef-
fectively to support the Respondent's antiunion campaign by
interfering with, restraining, and coercing its nonsupervisory
employees in the exercise of their self-organizational rights,
and not because of any prounion activities on the part of these
supervisors, as contended by the Respondent. However, we are
unable to concur in the Trial Examiner's conclusion that the
discharges did not violate Section 8 (a) (1) of the Act because
Shiflett and Pilkington had actually followed, though reluctantly,
the Respondent's orders.
As fully discussed in the Intermediate Report, the Respond-
ent learned of the Union's efforts to organize its employees
shortly after the commencement of its campaign in early
July 1949, and took immediate steps to thwart that campaign.
Among other things, it called meetings of its supervisors,
which Overseers Shiflett and Pilkington and several non-
106 NLRB No. 61.