The J.C. Hamilton Co.

National Labor Relations Board - Board Decisions

May 5, 1953

104 N.L.R.B. 737 (N.L.R.B. 1953)

THE J. C. HAMILTON COMPANY 737
they served notice that they proposed to process the charges filed herein before the Board,
Respondent Company has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (4) and (1) of the Act.
4. By such discrimination and by interfering with, restraining , and coercing its employees
in exercising the rights guaranteed in Section 7 of the Act, the Respondent Company has en-
gaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
5. By Respondent Company ' s conduct in acceding to the untimely and premature demand of
Respondent Union for the discharge of Annabell Woolen on the basis of an illegal contract
executed between Respondent Company and Respondent Union, described hereinabove, all
contrary to the provisions of Section 8 (a) (3) of the Act, to the end that Respondent Union
could enforce its demands for excessive union dues and assessments against employees of
Respondent Company; and to encourage membership in Respondent Union, the Respondent
Company thereby engaged in unfair labor practices within the meaning of Section 8 (a) (1)
and (3) of the Act.
6. By the making of and enforcing of such demand, and causing Respondent Company to so
discriminate , Respondent Union has engaged in unfair labor practices within the meaning of
Section 8 (b) (2) of the Act.
7. By discriminating in regard to the hire and tenure of employment of Annabell Woolen,
thereby encouraging membership in the Respondent Union, and enabling the Union to require
the payment of excessive dues and illegal assessments , Respondent Company has engaged in
unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act.
8. By causing Respondent Company to discriminate against said Annabell Woolen, as afore-
said, Respondent Union has engaged in unfair labor practices within the meaning of Section
8 (b) (2) and 8 (b) (1) (A) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
J. C. HAMILTON, J. C. HAMILTON, JR., ED. L. HAMILTON,
AGNES HAMILTON, and SARA LEE MANN, CO-PARTNERS,
d/b/a THE J. C. HAMILTON COMPANY and INTERNA-
TIONAL ASSOCIATION OF MACHINISTS, AFL. Case No.
16-CA-528. May 5, 1953
DECISION AND ORDER
On February 4, 1953, Frederick B. Parkes II issued his
Intermediate Report in the above-entitled proceeding, finding
that the Respondents had engaged in and were engaging in
certain unfair labor practices and recommending that they
cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached
hereto. He also found that the Respondents had not engaged
in certain other unfair labor practices alleged in the com-
plaint and recommended dismissal of those allegations. There-
after , the Respondents filed exceptions to the Intermediate
Report and a supporting brief.
The Boards, has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
t Pursuant to Section 3 (b) of the National Labor Relations Act, the Board has delegated its
powers in connection with this proceeding to a three -member panel [Members Houston,
Murdock, and Styles].
104 NLRB No. 84.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions* and brief,
and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Ex-
aminer , with the exception noted below:
1. We disagree with the Trial Examiner 's finding that
Rogers quitting her job on August 13, 1952, amounted to a
discriminatory constructive discharge. The Respondents' antip-
athy to the Union, their unlawful refusal to bargain with the
Union, and their knowledge as to Rogers ' interest in the Union,
give reason to suspect Respondent Ed Hamilton's behavior
toward Rogers. The Board, however, after examining the record
carefully, concludes that her constructive discharge has not
been proved by a preponderance of the evidence.
The Trial Examiner points out in his Intermediate Report
that although "it is not found that Rogers was a completely
exemplary employee devoid of faults," with "the advent of
the Union, Respondent Edward Hamilton's attitude towards
Rogers became increasingly critical," implying that the
harassment and abusive language was part of a plan to make
her job onerous in order to get rid of her.
We are not satisfied that Respondent Edward Hamilton's
conduct toward Rogers was a result of his union bias and
his knowledge of Rogers' membership inthe Union, but conclude
that it was rather a continuation of his past conduct towards her.
Crediting, as the Trial Examiner has done, all of Rogers'
testimony with respect to Respondent Edward Hamilton's
berating her by calling her a "dumbbell," "poor soul," and
"hardhead," on one occasion in August 1952, and on another
occasion in August 1952 saying, " I sometimes can't control
myself, I just want to slap you off that stool," as well as her
testimony with respect to his implied threat that "they were
going to dispense with a lot of help and they didn't know if she ]
was going to be needed or not," on August 11, 1952, upon her
return from her honeymoon, and his order to her on August
13, 1952, not to talk about the Company or Union, "If you
didn't [stop] I don't know what I am going to do," we never-
theless cannot find that Rogers' decision to quit was motivated
by these statements. Such a finding would be inconsistent with
Rogers' admissions , on cross-examination , that Respondent
Edward Hamilton heckled everyone, and that the heckling with
respect to her began before the advent of the Union, although
it got worse thereafter. Moreover, despite her testimony that
she had not planned to quit until the heckling got too bad, she
admittedly told other employees, upon her return from her
honeymoon on August 11, that she was looking for an excuse
to quit because her husband no longer cared if she continued
to work. When she did quit on August 13, having been out ill on
August 12, she signed a statement giving as her reason for
leaving Respondents' employment, "I quit of my own free
will." In agreement with the Trial Examiner, we also construe
her testimony, with respect to reemployment, to mean that
she did not desire to be reemployed by the Respondents. In
addition, aside from her signing a union-authorization card,
THE J. C. HAMILTON COMPANY 739
there is no other evidence in the record of her activity on
behalf of the Union.
In view of the foregoing, and upon the entire record, we are
not convinced that Rogers' action in quitting her. job was the
result of the discriminatory conduct of Respondent Ed Hamilton
and, therefore, we find it did not amount to a constructive
discharge. Accordingly, we shall dismiss the complaint insofar
as it alleges that the Respondents discriminated against Rogers
in violation of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the Respondents, J. C.
Hamilton, J. C. Hamilton, Jr., Ed. L. Hamilton, Agnes
Hamilton, Sara Lee Mann, co-partners, d/b/a The J. C.
Hamilton Company, their agents, successors, and assigns shall:
1. Cease and desist from:
(a) Refusing to recognize or to bargain collectively with
International Association of Machinists, AFL, as the exclusive
representative of all their employees at their Oklahoma City
plant, excluding professional employees, office clerical em-
ployees, guards, watchmen, outside salesmen, and supervisors
as defined in the Act.
(b) Interrogating their employees as to their union member-
ship and activities; threatening to close their plant in the event
the Union succeeded in its organizational campaign; threaten-
ing to discharge employees; or in any other manner interfering
with, restraining, or coercing their employees in the exercise of
their right to self-organization, to form labor organizations, to
join or assist International Association of Machinists, 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, and to refrain from any or
all of such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof.
2. Take the following action which the undersigned finds
will effectuate the policies of the Act:
(a) Upon request, bargain collectively with International
Association of Machinists, AFL, as the exclusive bargaining
representative of all employees in the aforesaid appropriate
unit, with respect to rates of pay, wages, hours of employment,
and other conditions of employment, and if an understanding
is reached, embody such understanding in a signed agreement.
(b) Post at their plant in Oklahoma City, Oklahoma, copies
of the notice attached hereto and marked "Appendix A."2 Copies
z In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order ," the words
"Pursuant to a Decree of the United States Court of Appeals . Enforcing an Order."
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of such notice, to be furnished by the Regional Director for
the Sixteenth Region (Fort Worth, Texas), shall, after being
duly signed by the Respondents' duly authorized representa-
tive, be posted by the Respondents immediately upon receipt
thereof, and maintained by them for a period of sixty (60)
consecutive days thereafter in conspicuous places, including
all places where notices to employees customarily are posted.
Reasonable steps shall be taken by the Respondents to insure
that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for the Sixteenth Region, in
writing, within ten (10) days from the date of this Order what
steps the Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the amended complaint be
dismissed , insofar as it alleges that the Respondents caused
the resignations of Ray Cain on July 11, 1952, A. L. West on
or about September 3, 1952, and Carmelita Sadler Rogers on
August 13, 1952, thereby discriminating in violation of Section
8 (a) (3) of the Act.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
WE WILL NOT interrogate our employees in respect to
their affiliation and activities concerning International As-
sociation of Machinists, AFL, or any other labor organiza-
tion.
WE WILL NOT threaten our employees with reprisal by
way of discharge or a cessation of our Oklahoma City
operations because of their membership and activities in
the above-named union or any other labor organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
right to self-organization , to form labor organizations, to
join or assist the above-named union or any other labor
organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted
activities for the purposes 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 au-
thorized in Section 8 (a) (3) of the Act.
WE WILL bargain collectively upon request with Inter-
national Association of Machinists, AFL, as the exclusive
representative of all employees in the bargaining unit
described herein withrespecttorates of pay, wages, hours
THE J. C. HAMILTON COMPANY
741
of employment, or other conditions of employment, and if
an understanding is reached, embody such understanding
in a signed agreement . The bargaining unit is:
All our employees at our Oklahoma City plant, exclud-
ing professional employees, office clerical employees,
guards, watchmen, outside salesmen, and supervisors
as defined in the Act.
J. C. HAMILTON, J. C. HAMILTON, JR.,
ED. L. HAMILTON, AGNES HAMILTON,
AND SARA LEE MANN, CO-PARTNERS,
d/b/a THE J. C. HAMILTON COM-
PANY,
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 charges duly filed by International Association of Machinists , AFL, herein called the
Union, the General Counsel of the National Labor Relations Board, by the Acting Regional
Director for the Sixteenth Region (Fort Worth , Texas), issued a complaint dated October 3,
1952, against J. C. Hamilton , J. C. Hamilton , Jr., Ed. L. Hamilton , Agnes Hamilton , and Sara
Lee Mann, Co - partners , d/b/a The J . C. Hamilton Company, herein called the Respondents,
alleging that the Respondents had engaged in and were engaging in unfair labor practices
affecting commerce within the meaning of section 8 (a) (1). (3), and (5) of the National Labor
Relations Act, as amended , 61 Stat . 136, herein called the Act. Copies of the charges, com-
plaint, and notice of hearing were duly served upon the Respondents and the Union.
With respect to the unfair labor practices , the complaint alleged in substance that the
Respondents : (1) On enumerated dates discriminatorily discharged Gerald Drewery , Ray Cain,
Carmelita Sadler Rogers,' Roland Kear , and A. L. West, thereafter refused to reinstate
them, with the exception of Cain who was reemployed about August 9, 1952 , and about June 20,
1952, discriminatorily refused to hire William Keester, because they joined or assisted the
Union or engaged in other concerted activities for the purposes of collective bargaining or
other mutual aid or protection , (2) about June 21, 1952, and thereafter had refused to bargain
collectively with the Union as the exclusive bargaining representative of the Respondents'
employees in an appropriate bargaining unit, although a majority of the employees in the unit
had designated and selected the Union as their statutory representative and although the Union
had previously requested that the Respondents bargain collectively with it as the statutory
representative of their employees ; and (3) from June 20. 1952, to date, by certain specified
acts, have interrogated their employees concerning their union affiliations , and have threatened
and warned their employees to refrain from assisting, becoming members of, or remaining
members of , the Union . The complaint further alleged that by the foregoing conduct, the
Respondents have engaged in unfair labor practices within the meaning of Section 8 (a) (1), (3),
and (5 ) of the Act.
Thereafter , the Respondents duly filed an answer, admitting certain allegations of the
complaint but denying that they had engaged in the alleged unfair labor practices.
i Early in the hearing , the complaint was amended to set forth the correct name of Rogers
and to change other relatively minor inadvertent errors.
283230 0 - 54 - 48
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice , a hearing was held on November 5 and 7 , 1952, at Oklahoma City,
Oklahoma , before Frederic B. Parkes II, the undersigned Trial Examiner duly designated by
the Chief Trial Examiner The General Counsel and the Respondents were represented by
counsel and the Union by official representatives . Full opportunity to be heard , to examine
and cross -examine the witnesses , and to introduce evidence bearing on the issues was afforded
all parties.
Upon the motion of the General Counsel at the close of his case - in-chief, the complaint's
allegations in respect to Drewery , Kear, and Keester were dismissed . At the conclusion of the
hearing , the undersigned granted a motion by the General Counsel to conform the pleadings
to the proof as to dates , spelling , and minor variances and advised the parties that they might
argue before and file briefs or proposed findings of fact and conclusions of law, or both, with
the Trial Examiner . Counsel for the Respondents and the General Counsel participated in oral
argument.
Upon the entire record in the case and from his observation of the witnesses , the under-
signed makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The J. C. Hamilton Company is a partnership composed of the following copartners: J. C.
Hamilton, J. C. Hamilton , Jr., Ed . L. Hamilton , Agnes Hamilton , and Sara Lee Mann. The
Respondents are engaged primarily in the wholesale distribution of automotive parts and
accessories and have business locations at Oklahoma City and Tulsa, Oklahoma . In addition,
they own a controlling stock in similar businesses located at Amarillo, Texas , and at Norman
and McAlister , Oklahoma . The instant proceeding is concerned with their Oklahoma City
operations . For the year ending June 1952 , the Respondents ' total income from sales and other
sources was approximately $ 700,000 from their Oklahoma City plant and approximately
$ 625,000 from their Tulsa operations A small portion of 1 percent of those sales was made
outside the State of Oklahoma . The cost of goods purchased by the Respondents was approxi-
mately 75 percent of their total income, set forth above . All but approximately 3 percent
of the purchases was made outside the State of Oklahoma . It is found that the Respondents are
engaged in commerce within the meaning of the Act.
IL THE ORGANIZATION INVOLVED
International Association of Machinists, AFL, is a labor organization admitting employees
of the Respondents to membership.
IIL THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate unit
The complaint alleged and the Respondents ' answer denied that all employees of the Re-
spondents at their Oklahoma City plant , excluding professional employees , office clerical
employees , guards, watchmen , outside salesmen , and supervisory employees , constituted
a unit appropriate for the purpose of collective bargaining . As mentioned above, the Re-
spondents were engaged primarily in the wholesale distribution of automotive parts and
accessories , but in conjunction with its Oklahoma City plant, which occupied a building
approximately 100 by 140 feet, they also operated a mechanical repair shop , employing 4
mechanics under the supervision of Foreman A. B. Lipscomb . In its wholesale operations,
there were 6 employees who received inventory merchandise and sent merchandise out to
dealers or customers . Approximately 6 or 7 other employees were engaged in selling parts
to customers calling at the Respondents ' establishment or in the furnishing of parts for orders
to be shipped to customers Two or three of the latter employees worked outside the plant 1
or 2 days a week calling upon customers and selling merchandise.
Although A. L. West, one of the alleged discriminatees , testified that he was in charge of
some 5 or 6 employees in the parts department , the undersigned is not persuaded on the basis
of the entire record that West was a supervisor within the meaning of the Act . Two days a week,
West was a salesman outside the plant and of the 3 1 days he worked in the parts department,
he spent 90 percent of his time performing the same duties and work as the other employees of
the department and working along with them . He sold parts over the counter , restocked bins,
THE J. C. HAMILTON COMPANY 743
filled outgoing shipments , and ascertained that they were shipped He had no knowledge as
to the wages paid other employees in the department and it appears that , like the other em-
ployees, he was hourly paid . Although West testified that he "hired one man with the approval
of Ed Mann ," manager of the parts department , West ' s explanation of this incident is some-
what confused and leads the undersigned to conclude that on the occasion in question West
interviewed some applicants for a job on a delivery truck and recommended that one be hired,
but Parts Manager Edwin Mann declined to hire West's choice among the applicants. The
undersigned concludes that West did not occupy a supervisory position within the meaning
of the Act and should be included in the appropriate unit.
Paul King was purchasing agent for the Respondents . Edwin Mann , manager of the parts
department, testified that King had authority to hire or discharge employees but not "without
checking with Hamilton or" Mann. However, Mann further testified that King was paid by the
hour and was "in the same category" as West, insofar as supervisory duties were concerned.
Although the record does not clearly detail theduties of the purchasing agent, the undersigned
finds, for the purpose of discussion, that the position was not supervisory within the meaning
of the Act and should be included in the appropriate unit. It is found that all employees of the
Respondents at their Oklahoma City plant, excluding professional employees, office clerical
employees , guards, watchmen, outside salesmen , and supervisory employees, constitute a
unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of
the Act.2 As of June 21, 1952, there were 17 employees in the appropriate unit.
2. Organization of the Union, majority status of the Union
On June 18, 1952, several employees of the Respondents attended a meeting of the Union
and signed cards designating the Union as their statutory representative. Other employees
signed cards on June 19, 1952. In all, 10 of the 17 employees in the unit found to be appropri-
ate signed such cards on these dates. The undersigned finds that on June 19, 1952, and at all
times material thereafter , the Union was the majority representative of the employees in the
appropriate unit for the purposes of collective bargaining within the meaning of Section 9
(a) of the Act. 3
3. Sequence of events
On the morning of June 21,1952, the Respondents received from the Union a letter which the
Union had written and mailed the previous day and in which the Union stated that it repre-
sented a majority of the Respondents ' employees in a unit claimed to be appropriate for the
purposes of collective bargaining , asked that the Respondents recognize the Union as the
statutory representative for their employees in the unit , offered to prove its majority status
"through a check-off of our cards against your payroll ," and further requested that the Re-
spondents negotiate with the Union " a contract and wage scale satisfactory to both parties."
Around noon June 21, 1952, Leland Hewitt and James Witcher, special representatives of
the Union , called in person at the Respondents ' plant , and at their request conferred initially
with Respondent J. C. Hamilton, Sr They informed him that the Union represented a majority
of the Respondents ' employees and offered to prove the Union's majority status. He questioned
that the Union had jurisdiction over his employees , inasmuch as the Respondents operated
a parts house and not a machine shop . At this point , Edward Hamilton , one of the Respondents,
interrupted and took charge of the conference According to Witcher's credible testimony,
which was corroborated by that of Hewitt, the following occurred:
We told [Edward Hamilton] that we was with the Machinists Union and told him that we
had the majority of his people . . . signed up in our organization and that we wanted to
show him proof, and that we would like to show him these cards providing that he would
be willing to get his payroll list and sit down with us, and ... he says to me, "What are
you doing mixed up in a union like that; don't you know that they are all communist? " He
says, "All unions are infiltrated , are full of communists ," and I said , " Well, we have a
good clean union that is free from Communism," and I said, "We don't have Communism
in the union."
So then he went on, he says, "Well, we don't contend with the unions down in this part
of the country, we don't even have them. You are from up north someplace. People down
=Cf. H. G. Reslink, et aL, 87 NLRB 126; Harry Brown Motor Company, et al., 86 NLRB
652, and cases cited therein.
3 The Respondents ' contentions as to the majority status of the Union are hereinafter dis-
cussed in the text.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
here, we don ' t fool with them." Well, I said , " I was raised over west of El Reno on a
farm and I worked for the Rock Island Railroad in El Reno and belonged to Lodge 316
in El Reno and belonged to the same union when I was a kid there," and he said, "Unions
might be all right on a railroad , but they weren' t any good anyplace else ." And he went on
to tell us that if something happened that this place did go union or had a union there, that
he had the key in his pocket and would turn the lock and lock the door , and that he would
not have a union there, and we was just wasting our time up there even talking to him
about it.
And I said , "Well, are you refusing then to let us show you the proof ? I mean you don't
want to sit down and go over the list?"
And he said , " That is right. I don 't." So I says , " I guess we will have to leave," so we
shook hands and left.
Hewitt's testimony was corroborative of that of Witcher . Hewitt also testified that they
asked Edward Hamilton "who his attorney was, that we would contact this attorney," but that
Hamilton "made a remark that it would do no good, that they weren 't going to have a union in
there, and that they would close up at 1 : 00 o'clock that same day."
Hamilton ' s testimony in regard to the conference was consonant as to many details with
that of Hewitt and Witcher . However , Hamilton could not recall whether they asked for the
name of his attorney and testified , " I told them that I would like to see the cards . . . They
said that they didn 't want to show me the cards . They would like to sit down as a bargaining
representative of the employees , and they would first like to see the payroll , compare the
cards against the payroll . . . I told them that I couldn ' t show them the payroll, but I would
ascertain the validity of the cards if they would show me the cards . . They said they couldn't
show me the cards; they would have to see the payroll and check it against the payroll."
Upon the entire record, and his observation of the witnesses , the undersigned credits the
testimonial versions of Witcher and Hewitt , set forth above , as to their conference with the
Respondents on June 21 , 1952, and rejects the testimony of Edward Hamilton to the extent that
it was at variance with the credited testimony.
On June 21 , 1952, Edward Hamilton telephoned Tom Williams , the Respondents ' counsel,
and informed him of the receipt of the Union ' s letter and of the conference with the Union's
representatives . On June 23 , 1952, Williams attempted unsuccessfully 2 or 3 times to reach
the Union 's representatives by telephone . About June 24, 1952 , Representative Hewitt tele-
phoned the Respondents ' office in an effort to talk with Edward Hamilton but the latter was
out. The girl answering the Respondents ' telephone refused to divulge the name of the Re-
spondents ' attorney but took a message for Hamilton to return Hewitt 's call . Hamilton
relayed the message to his counsel, Williams, who was again unsuccessful in attempting to
reach the Union ' s representatives by telephone on the afternoon of June 24.
On June 25, 1952 , the Union filed with the Board a 9 (c) petition covering the Respondents'
employees in their Oklahoma City operations , and the Regional Office informed the Respond-
ents of the filing of such petition by a letter dated June 25 and received by the Respondents
on June 26 . Not long thereafter , according to the credible testimony of Williams , he tele-
phoned the Regional Office and had the following discussion with an employee of that office:
I told Mr. Russell that a few days before a letter had been received from the Inter-
national Association of Machinists, that two representatives of the International As-
sociation of Machinists, immediately thereafter appeared at the office of the company
and wished to look at the books of the company; that it was a mystery to the management
and to me what the International Association of Machinists were having to do with this
company inasmuch as they had no machinists employed . He explained to me that the
employees could select any union that they desired for their bargaining agent, whether
the name of the union had any apparent connection with the company 's employees or not,
and thereby cleared up the confusion in my mind what the Machinists Union was having
to do with the J. C. Hamilton Company.
I told him that so far as I knew none of the employees of the company desired this
union to represent them , and in the absence of any showing by the union that they had
authority from the employees to represent them, that we did not wish to consent to enter
into negotiations with them.
He explained to them that under those circumstances the company was entitled to an
election , and asked me in compliance with the letter which had requested a list of em-
ployees and the appropriate unit, to send him the names of employees and assured me
the names of those employees would be held confidential
He also explained to me about the cards , but the management and myself was at a loss
to understand what was meant by union representatives having some cards . We didn't
THE J. C. HAMILTON COMPANY 745
know what those cards were and he explained to me what the general nature of those
cards were.
By letter dated June 28, 1952 , Williams supplied to the Regional Office certain information
requested by it regarding the Respondents ' job classifications . Inter alia , Williams stated in
the letter the following:
in response to your letter of June 25, 1952, the J . C. Hamilton Co. does not consent to an -
election , and therefore sees no need to participate in a conference with representatives
of the International Association of Machinists.
On June 30 , 1952, the Union filed its original charge in the instant proceeding , alleging that
the Respondent had engaged in violations of Section 8 (a) (1) and (5) of the Act . On the same
date, the Union withdrew the 9 (c) petition covering the Respondents ' employees , which it had
previously filed on June 25, 1952 . On July 1, 1952 , the Regional Office mailed a copy of the
charge to the Respondents and on the same date sent them a letter informing them that the
Union had withdrawn its petition . In this regard, Williams testified that "when we received a
notice that the application for election had been withdrawn , ... I assumed that the charge of
unfair labor practices would automatically be withdrawn, since it was rested entirely upon
their refusal to bargain with the union" and that he informed the Regional Office of his as-
sumptions by letter dated July 12, 1952.
Meanwhile , however , the Union on July 9, 1952, had filed its first amended charge herein,
alleging that the Respondents not only had engaged in violations of Section 8 (a) (1) and (5) of
the Act, but also had violated Section 8 (a) (3) of the Act by discharging Drewery and refusing
to employ Keester . The record shows that a Dopy of the charge was mailed to the Respondents
on July 9, but was not received by them until July 17, 1952
On July 21 , 1952, the Union filed a second amended charge , alleging violations by the
Respondents of Section 8 (a) (1), (3 ), and (5), the new matter alleged being the discharge of
Cain.
On August 8, 1952, W. E. Youngblood , an attorney in the Regional Office, conferred with
Williams and Leland Hewitt, special representative of the Union, about the pending charges,
and the following occurred , according to the credible testimony of Williams: The latter
stated "that it was the company ' s belief that this union did not represent any of the employees
of the J. C. Hamilton Company." However , after Youngblood checked the authorization cards
signed by the Respondents ' employees against a payroll of the Respondents and informed
Williams and Hewitt that "the face of the cards indicated that there was a sufficient number
of employees to justify the calling of an election ," Williams stated that he would advise the
Respondents to consent to an election . However . Hewitt would not agree to an election inas-
much as the Union had filed charges alleging that the Respondents had engaged in unfair labor
practices . Discussion as to a ground for settlement of the pending charges ensued and
Williams stated that he would confer with the Respondents as to the possibility of settlement.
The following day counsel for the Respondents informed Youngblood of the Respondents'
decision as to the settlement of the charges to the effect " that the company was perfectly
willing to have an election , but the company was unwilling to bargain with this union without
having an election ." Youngblood stated that in view of the pending charges, an election would
not be a proper solution to the issues.
By letter dated August 9, 1952, the Respondents offered Cain reemployment . Cain returned
to the Respondents ' employ on August 11, 1952.
On September 9 and 12, 1952 , respectively , the Union filed its third and fourth amended
charges in the instant proceeding. These charges reiterated the same matters contained in the
earlier charges but, in addition, averred that the Respondents had engaged in further violations
of Section 8 (a) (3) of the Act by terminating the employment of Rogers, West , and Kear.
About October 1, 1952, employee Jack Miller drafted the following letter which was signed
by him and five other employees who had executed authorization cards in the Union in June
1952, and which was sent to the Board:
We, the undersigned employees of the J. C. Hamilton Company , 23 North West 10th
Street, Oklahoma City, Oklahoma, would like to submit a formal request for a union
election or better still , a request for withdrawal from the International Association of
Machinists , 617 South West 29th Street, Oklahoma City, Oklahoma. We would also like to
request that our cards be returned to us.
We are doing this of our own free will and without the knowledge of our employers.
Each partner in the J. C. Hamilton Company and the local union will receive a copy of this
letter.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We are requesting these things because of the fact that there has been nothing but con-
fusion since the local labor union came into our organization and also because of the fact
that the union has never consulted us on any matter whatsoever. This letter is signed by
every member of this organization that has ever signed union cards . .
On October 3, 1952, the Acting Regional Director issued the complaint in the instant pro-
ceeding. About October 21, 1952, the Respondent filed with the Regional Director a petition for
investigation and certification of representatives under Section 9 (c) in Case No. 16-RM-57
On October 23, 1952 , the Regional Director dismissed the petition for the reason that " it does
not appear that further proceedings are warranted inasmuch as there is no valid question of
representation in view of the pendency of Case No . 16-CA- 528 against the subject employer
involving Section 8 (a) (1) and (5), in which case this office has issued a Complaint."
4 Conclusions as to the refusal to bargain
Counsel for the Respondents urged in oral argument several defenses , which are sum-
marized as follows , to the complaint ' s allegations that the Respondents unlawfully refused to
bargain with the Union: (1) The "equities" of the case excuse the action taken by Edward
Hamilton when confronted with the Union's demands for recognition on June 21, 1952; that is,
considering the dispatch with which the Union followed up its letter of June 20 by calling upon
the Respondents not long after the latter had received the letter and considering the fact that
Edward Hamilton was "a person with no experience with unions, a person who had no knowledge
whatever that there was any representation question at issue, and who had certainly never
seen the gentlemen before ," the Respondents could not "have been expected to respond in
any other manner than the way that Mr. Hamilton did." (2) The Respondents were entitled to
require that the Union demonstrate its majority status through a Board-conducted election.
(3) In any event, the Respondents were no longer required to recognize the Union inasmuch as
the Union had lost its majority status, since at the time of the hearing only 2 of the 16 em-
ployees in the unit desired to be represented by the Union
Considering the record as a whole, the undersigned is not persuaded that the Respondents'
defenses are meritorious or that they effectively refute the contentions of the General Counsel.
In respect to the Respondents' arguments on the equities or peculiar circumstances sur-
rounding the Union's representatives' call upon Respondent Hamilton, the latter's lack of
knowledge of his duties imposed by the Act cannot excuse the action taken by him on June
21 4 In any event , Hamilton never retracted the statements made to the Union 's organizers
when he was subsequently advised by counsel of pertinent provisions and principles of the Act
applicable to the circumstances of the instant proceeding, instead, as found below, Hamilton
engaged in further violations of the Act designed to undermine the Union Furthermore, the
"equities" of the situation urged by the Respondents are more than offset by another equity
principle that "an employer c .snot discredit a duly designated bargaining agency of its em-
ployees by refusing to bargain with it and then be allowed to take advantage of a loss of mem-
bership due to his wrongful act "5
As to the Respondents' second defense, it is well established that an employer may decline
a union ' s request for recognition and insist upon a Board -conducted election to demonstrate
the union's majority status without thereby violating Section 8 (a) (5) of the Act, provided that
the employer ' s request for an election is based upon a good - faith doubt as to the union 's claim
to represent his employees and not " upon a rejection of the collective bargaining principle or
by a desire to gain time within which to undermine the Union."6
In the undersigned's opinion, Hamilton's statements to Special Representatives Hewitt and
Witcher on June 21, 1952, constituted a resolute'' rejection of the collective bargaining princi-
ple " Thus, in the conference following their request that the Respondents recognize the
Union as the statutory representative for their employees and submit a payroll for the pur-
pose of demonstrating the Union's majority status by a check of authorization cards against
the payroll, Hamilton refused to produce the payroll, accused the Union of being "full of
communists," stated, "We don't contend with the unions down in this part of the country; we
don't even have them . . . we don't fool with them," acknowledged that "Unions might be all
right on a railroad, but they weren't any good anyplace else," averred that "if something
happened that this place did go union or had a union there, that he had the key in his pocket
and would turn the lock and lock the door, and that he would not have a union there," refused
4Floyd Drummond d/b/a Drummond Implement Company, 102 NLRB 596.
5 Continental Oil Company v. N. L. R. B., 113 F. 2d 473, 481 (C. A. 10).
6Artcraft Hosiery Company, 78 NLRB 333, 334.
THE J. C. HAMILTON COMPANY 747
to give the union representatives the name of his attorney , warned them that they were wasting
their time "even talking to him about it," and ended the interview by refusing to let the repre-
sentatives show him proof that the Union represented a majority of the Respondents' em-
ployees.
Further indication that the Respondents ' refusal to accord the Union recognition was based
upon the rejection of the collective -bargaining principle and upon a desire to gain time in
which to undermine the Union ' s strength is shown by the Respondents ' subsequent con-
structive and discriminatory discharge of employee Rogers and the Respondents ' other acts of
interference , restraint , and coercion with the rights guaranteed the employees in Section 7 of
the Act, hereinafter detailed . For example , employees were questioned in regard to their
union affiliation and were threatened with loss of employment through the Respondents'
closing of the shop.
It is also to be noted that at no time in the conference on June 21, 1952, did Hamilton ex-
press any doubt of the Union's majority status but instead flatly declined to let the Union
demonstrate that it represented a majority of theemployees by a check of authorization cards
against the payroll . Doubt as to the Union ' s majority was first raised by the Respondents'
counsel in his telephone call to the Regional Office on or about June 26 or 27. Thereafter, the
Respondents refused to consent to an election and stated that , accordingly , they saw "no need
to participate in a conference with representatives " of the Union It is clear and it is found
that the Respondents ' contentions in respect to a determination of the Union ' s majority through
a Board election was an afterthought to bring the case within the ambit of the Board's Art-
craft Hosiery doctrine and was not the real basis for its refusal to recognize the Union on
June 21, 1952.7
In support of their argument that the Union's loss of majority by the time of the hearing,
brought about by the employees ' repudiation of the Union on October 1, 1952, and also by
ordinary change in the complement of employees , obviated any duty which required the Re-
spondents to bargain with the Union, the Respondents rely upon the Globe case 8 and cite the
following final conclusion of the court ' s opinion , reached after a determination by the court
that an employer was justified in having a doubt as to a union 's majority status upon the filing
of a decertification petition signed by all his employees after the employer had bargained in
good faith with the union without reaching agreement upon terms for a contract for a period of
slightly more than 11 months after the Board ' s certification of the union : " The conclusion is
inescapable that the Board overlooked the salient consideration that the National Labor Re-
lations Act was designed by the Congress to serve as a shield and not as a shackle to the
millions of our employed whose welfare is the proper subject of national concern."
Clearly , the facts of the Globe case are distinguishable from those of the instant proceeding,
which is more closely related to the circumstances of the Oughton9 and Swift10 cases. As
stated by the Court of Appeals for the Third Circuit in its opinion in the Globe case, "The
situation and questions involved in the Swift casewere not similar in any respect to the situa-
tion and issue here involved ," and hence that court ' s opinion in the Globe case in no wise im-
pugns its holdings in the Swift case . In the latter case, where , as here, a labor organization
lost its majority status subsequent to an employer ' s unlawful refusal to bargain with it, the
court quoted with approval the Board ' s policy enunciated in the Karp case, ii which is pertinent
to the issues herein involved and is as follows:
Employees join unions in order to secure collective bargaining Whether or not the em-
ployer bargains with a union chosen by his employees is normally decisive of its ability
to secure and retain its members . Consequently , the result of an unremedied refusal to
bargain with a union, standing alone , is to discredit the organization in the eyes of the
employees , to drive them to a second choice , or to persuade them to abandon collective
bargaining altogether . . . It may be assumed that some of those who abandoned the
Union were motivated in part by factors other than the discouraging effects of the unfair
labor practices which the respondent committed . But any attempt to disentangle other
YSee J . C. Lewis Motor Company, Inc., 80 NLRB 1134; Motorola, Inc., 94 NLRB 1163,
enfd . 199 F. 2d 82 (C. A. 9), cert. den. 344 U. S. 913.
ON. L. R. B. v. Globe Automatic Sprinkler Company of Pennsylvania , 199 F. 2d 64 (C. A. 3),
setting aside 95 NLRB 253.
9John J. Oughton et al. v. N. L. R. B., 118 F. 2d 486 at 494 et seq . (C. A. 3), cert. den.
315 U. S. 797.
10 N. L. R. B. v. Swift & Company, 162 F. 2d 575 (C. A. 3), cert. den. 332 U. S. 791.
11 Karp Metal Products Co., Inc., 51 NLRB 621. Marginal references in the quotation from
this decision set forth in the text have been omitted.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
factors from these discouraging effects is impossible so long as the unfair practices are
unremedied.... In a further effort to neutralize the coercive effect of its unfair labor
practices , the respondent stresses the fact that a large number of employees in the appro-
priate unit when the refusal to bargain occurred have since left its employ and that it has
hired many new employees. In themselves these facts do not warrant an inference that the
restraints engendered by the respondent 's illegal conduct are no longer operative. For,
unremedied unfair labor practices exercise a coercive effect not only upon the immediate
victims, but upon future employees as well. Thus, for example, in the present case, it is
probable that most of the defections from the Union's majority would not have occurred
if the respondent had lived up to its bargaining obligation under the Act. Had the Re-
spondent accorded the Union the recognition to which it was entitled, the Union would have
received a powerful impetus toward further organization, it would therefore be arbitrary
to assume that it could not in such case have sustained itself.
The above tenets, often reiterated by the Board and by now well established with court
approval, are dispositive of the Respondents' argument that the Union's loss of majority dis-
pelled the Respondents' duty to bargain with the Union.ii In sum, it is found that any loss in
the Union's majority subsequent to June 21, 1952, was attributable to the Respondents' un-
lawful and unremedied refusal to bargain with the Union on June 21, 1952, and to other con-
duct of the Respondents, hereinafter found to havebeen discriminatory and to have constituted
interference, restraint, and coercion with the rights guaranteed the employees by Section 7
of the Act. The undersigned concludes and finds that on June 20, 1952, and thereafter, the Re-
spondents unjustifiably refused to recognize and bargain with the Union as the exclusive repre-
sentative of their employees in the appropriate unit in violation of Section 8 (a) (5) and (1) of
the Act.
B. Interference, restraint, and coercion
Employee Ray Cain testified that about 10 minutes after Special Representatives Hewitt and
Witcher left the plant following their conference with Respondent Edward Hamilton on June 21,
1952. Hamilton asked Cain "if anyone from the union had been down there and tried to get"
Cain "to sign up in the union." When Cain replied in the negative, Hamilton stated that "he
thought this union did more to promote communism in the United States than anything else
and that if the place went union, that he would close it up at 1:00 o'clock." Hamilton testified
that after the union representatives visited his office on June 21, he did not discuss union
activities with any of the employees but he did not specifically deny that he made the inquiries
and statements attributed to him by Cain. Hamilton denied generally that he had ever stated
that he would close the plant rather than have it unionized. In view of the fact that other wit-
nesses attributed similar statements and inquiries to Hamilton, that he failed to deny Cain's
testimony specifically, and that Cain impressed the undersigned as a more reliable witness
than Hamilton, the undersigned credits Cain's testimony and rejects the denials of Hamilton.
Employee Jack Miller, a witness for the Respondents, testified on cross-examination that
at an unspecified date after June 18, 1952, Edward Hamilton asked Miller whether the latter
had signed a union card and Miller informed him that employee A. L. West had given Miller a
card and that the latter had signed it . Aside from the testimony and general denials of Hamilton
discussed above, Hamilton did not specifically deny the inquiry attributed to him by Miller.
In view of this circumstance as well as the undersigned ' s observation of the witnesses , Miller's
testimony is accepted and Hamilton ' s denials are deemed unworthy of credence.
E. B. Lipscomb , a supervisory employee who was foreman or manager of the Respondents'
service department, admitted that onJune21,1952, after he heard of theunion representatives,
visit to the plant, he asked employee Cain "if he had been approached by anyone or knew
anything about any unions around there and he said he never had." is Lipscomb further ad-
mitted that about the same time, he asked employees Clarence Bibb, J. B. Koch, and Harmon
Howard whether they "knew anything or heard anything about a union."
About June 28, 1952, employee West overheard, accordingto his testimony, Edward Hamilton
tell employee Paul King that neither Edward Hamilton nor his father, J. C. Hamilton, Sr.,
i2See Franks Bros. Company v. N. L. R. B., 321 U. S. 702; Great Southern Trucking Co. v.
N. L. R. B., 139 F. 2d 984 (C. A. 4); Continental Oil Company v. N. L. R. B., 113 F. 2d 473,
481 (C. A. 10); John J. Oughton et al. v. N. L. R. B., supra; N. L. R. B. v. Swift &Company,
supra , and cases cited therein.
13 This finding is based upon Lipscomb's testimony. Cain's testimony is not credited to the
extent that it was at variance with that of Lipscomb.
THE J. C. HAMILTON COMPANY 749
would "allow a union in there and that if they definitely came in there , they would rather turn
it into a warehouse rather than see a union organization step in " Edward Hamilton specifi-
cally denied that he made the statements to King as testified to by West . Although King was
called as a witness by the Respondents , he was not interrogated with respect to the incident
in question . As previously found, similar statements have been found to have been made by
Edward Hamilton. Moreover, if West were fabricating, it seems unlikely that he would have
done so in such a manner as to make his testimony susceptible to a denial by two persons but
would , instead , have had Hamilton direct the remarks to West Considering these factors, as
well as the undersigned ' s impression of the witnesses , the undersigned credits West ' s testi-
mony and rejects Edward Hamilton 's denials.
About July 5 Edward Hamilton asked employee West whether the latter "knew anything about
the union activity." West replied, "Very little "i4
There remains for discussion the resolution of the conflicting testimonial versions given
by West and Parts Manager Mann as to the Respondents ' refusal to hire William Keester on
June 21, 1952. It was West's testimony that he recommended Keester to Mann for a position
on the delivery truck, that Keester had a chauffeur's license, and that after Mann interviewed
Keester, Mann said to West , " [Keester ] seems like a pretty nice sort of fellow . I under-
stand that he is connected with one of the plumbers locals or some sort of a union here in town.
I asked him what was his attitude towards it. The boy said he thought they were a pretty fine
thing and that he presently belonged to one ." According to West, Mann further stated that he
told Keester " there was no use trying to get in here " and Keester was not employed by Mann.
On the other hand, Mann denied that Keester possessed a chauffeur's license and that Mann
had any conversation with him regarding union activities. According to Mann, he told West that
the Respondents could not employ Keester because the latter "was a red-hot," meaning that
he was ayounghigh school lad who drove fast cars. Keester was not called as a witness. As be-
tween Mann and West , Mann impressed the undersigned as the more reliable witness . For these
reasons, Mann ' s testimonial version of the Keester incident is credited , West's is deemed to be
unworthy of credence , and it is found that in Mann 's interview of Keester , Mann made no
statements violative of the Act.
Respondent Edward Hamilton 's threats to employees to close the plant in the event the
Union succeeded in its organizational campaign was a clear threat of reprisal and viola-
tive of Section 8(a)(1) of theAct . Furthermore, the interrogations of employees by Respondent
Edward Hamilton and Foreman Lipscomb as to the employees' union membership and activi-
ties , viewed in conjunction with Hamilton 's threats of reprisal and the Respondents' other
violations of the Act , constituted independent acts of interference with the employees' right
to self-organization , and the Respondents thereby violated Section 8 (a) (1) of the Act. is
C. The termination of employment of Ray Cain
Ray Cain entered the Respondents ' employ in 1947, working on "tune-up , carburetion and
gasoline engine repair" in the Respondents ' repair service shop . After 18 months , he left the
Respondents to assume a better position at a nearby airfield . However, in January 1952 he
reentered the Respondents ' employ in the same position he formerly occupied . On June 19,
1952 , he signed a union-authorization card . As found above , about 10 minutes after Special
Representatives Hewitt and Witcher left the plant on June 21 , 1952, Respondent Edward
Hamilton asked Cain whether "anyone from the union had been down there and tried to get"
Cain "to sign up in the union." When Cain replied in the negative , Hamilton stated that "he
thought this union did more to promote communism in the United States than anything else and
that if the place went union, that he would close it up at 1 00 o'clock ." As previously stated,
about the same time , Cain ' s immediate supervisor , Foreman Lipscomb , asked Cain "if he
had been approached by anyone or knew anything about any unions around there and he said
he never had." However , on cross-examination , Lipscomb admitted that an employee--Gerald
Drewery according to Lipscomb 's recollection- -told Lipscomb that Cain was interested in
the Union.
The testimonial version of Cain as to the details of his termination of employment with the
Respondents on July 11 , 1952, is sharply , if not diametrically , opposed to that of Foreman
Lipscomb In this regard, Cain testified as follows : About 8 : 30 a. m . on July 11, 1952.
Foreman Lipscomb told Cain that Respondent Edward Hamilton had told Lipscomb that Cain
was dissatisfied . Foreman Lipscomb further stated that "he understood that [ Cain] was being
replaced . [ Cain] was being replaced and go to work and quit the same day ." When Lipscomb
i4Since Hamilton failed specifically to deny West's testimony in this regard, the under-
signed rejects Hamilton's general denials for the reasons previously stated.
is S. D . Cohoon et al., 101 NLRB 966.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said that "he understood that [Cain] was unhappy ," the latter replied that " that was the first
[he] had heard of it ." Virgil Qualls, who had not previously worked for the Respondents but
who "had been in and talked to Mr . Lipscomb three days before, " assumed Cain ' s position in
the shop . None of the Respondents or their supervisors had criticized Cain ' s work or repri-
manded him for visiting with other employees during working hours at places other than his
work station . Although Cain worked on a commission basis , he had never complained that he
did not earn sufficient money He denied that he ever left his work station when he had work
to do or that he ever interrupted other employees when they were busy.
Before setting forth Lipscomb' s testimony regarding the termination of Cain's employment
and before resolving the conflicts between their versions of this event , it will be helpful to
consider the events occurring in connection with Cain ' s reemployment by the Respondents.
On August 9, 1952 , the Respondents sent the following letter to Cain.
It has come to our attention that you are contending that you were discharged from our
employment because of union association . As you know, you were never discharged, but
resigned . It is not our policy to favor or disfavor applicants or employees because of
union membership or non-membership or interest . Your job is now and always has been
available and waiting for you
If you desire to re-enter our employment , please contact the writer immediately and
we will be glad to put you back to work on the same terms and conditions as when you
left . If we do not hear from you we shall assume that you are not interested in returning
to employment here.
When Cain reported for work on August 11 , 1952, he was told by Respondent J. C. Hamilton,
Sr., according to Cain's uncontroverted testimony , that Hamilton "didn ' t know about [Cain's]
being fired and that if there was anything wrong, he wanted it straightened out." Hamilton
asked Cain " for any suggestions of anything that was wrong ." It was Cain ' s further undenied
testimony that before reporting for work , he encountered Respondent Edward Hamilton who
told Cain that the Respondents' "policy had been changed" and that Cain would have to stay
at his work station and not talk to other employees . According to Cam , he had previously
been free to talk with employees during working hours and " to move around the shop before
any time you deemed fit " Furthermore , after he resumed his employment with the Re-
spondents , there was a change in the manner of performing a portion of his work- -previously,
when his repair work necessitated the use of specialized tools not located at his work station,
he took the repair work to the location of the required tools, but after his return, he was
required to bring the necessary tools to his work station.
Turning now to a consideration of Foreman Lipscomb ' s testimony , the following five
paragraphs are a summary of his testimonial version of Cain ' s employment history and
leaving the Respondents ' employ on July 11, 1952.
Cain had originally entered the Respondents ' employ in 1947 as a trainee under the so-called
GI bill and received his training from Lipscomb . Cain worked for the Respondents for about
18 months and "was a reasonably good tune -up man In other words , he wasn't a hundred
percent by any means , and he wasn't the sorriest." When he initially left the Respondents, he
took a position at a nearby airfield , referred to by the witnesses as Tinker Field . Around
January 1952 Cain returned to the Respondents' plant and sought reemployment. Lipscomb
told him, "Ray, you know that these garage men in town are not in favor of Tinker Field
employees... Because you get in the habit of loafing, and it ' s kind of hard to break that; if
you want to work I will be glad to put you on because you know down here you are going to have
to work to make a living If you want to come back under those conditions, knowingly , fine and
dandy ." Cain resumed his employment with the Respondents , working on a commission basis
but being guaranteed a base rate of 75 cents an hour
According to Lipscomb, Cain worked "fairly satisfactorily and about as good as could be
expected" for approximately 4 months, when he began to turn out unsatisfactory repair work,
examples of which Lipscomb detailed in his testimony . However , about April 1952 Cain
informed Lipscomb that Cain had filed an application for reemployment at Tinker Field and
if it were accepted , he would leave the Respondents From Lipscomb's testimony it appears
that Cain had also applied at another service shop for employment about this time . In April
or May 1952 , after working for a day and a half on an engine but still being unable to fix it,
Cain complained to Lipscomb that the Respondents "were going to have to put him on a salary
instead" of a commission basis. Lipscomb replied, " If you don ' t turn them out any faster on
a salary than you are on a commission , we couldn't use you on a salary because you worked
a day and a half fixing it and we still can't charge the man anything ." According to Lipscomb,
when Cain " brought up this Clinton deal I knew for sure when he started talking of going from
THE J. C. HAMILTON COMPANY 751
commission to salary" that Cain was dissatisfied with his job, because "Mechanics don't
relish the salary idea ." 16 Cam' s dissatisfaction with his job was further demonstrated to
Lipscomb when the latter overheard in a nearby restaurant Cain ' s comments about the Re-
spondents , whose plant was located " in the middle of a bunch of car dealers ," characterizing
the Respondents as "a ratty bunch ." According to Lipscomb , " I stood there and' I heard it,
and I tapped him on the back, and I told him that I wouldn 't want anybody to know that I was
working among that type of people."
On July 10 , 1952 , Foreman Lipscomb , according to his testimony , told Cain that since the
latter ' s work was unsatisfactory because of specifically enumerated instances of complaints
by customers , since Cain was dissatisfied with his employment with the Respondents and had
applications for employment pending elsewhere , and since Lipscomb had "another man that
wants to come to work, and considering all things, knowing that you are liable to leave any
time , and these men are hard to find ," Lipscomb " was forced to put on someone that would ...
turn out more satisfactory work" and proposed to hire Virgil Qualls as a tuneup man. How-
ever , Lipscomb told Cain , " Now if you want to stay , why we will try to work you in. If you
want to quit ,, why that is yo it business , you can quit or you can work like the other ones, but
I am forced to do this ." According to Lipscomb , he informed Cain that the latter ' s services
would be utilized on "Clinton engines , and whatever he could do ." Cain admitted that he was
dissatisfied with his employment and stated " that he wasn ' t making the money that he ought
to make , that he could make more money elsewhere ," that there wasn ' t enough tuneup work
for two mechanics , and that he would quit as "he had other jobs he could get." Accordingly,
Lipscomb instructed the office manager to draw up Cain ' s paycheck.
However, the next morning , July 11, Cain appeared at the plant, punched his timecard, ands
went into the shop . Lipscomb saw him and said , " Ray, I asked Miss Hand to figure your time
up for you so you can get as much as possible in on this payday . I notice you punched in. It is
pretty hard to check you out one day and in the next . You make up your mind , either quit the
job or you are not going to quit it." Cam answered , "The other man isn't in yet and I thought
I would work until he got here " Lipscomb countered that the new employee would " be here
just as quick as he could get here ." Thereupon , Cain left the plant.
Lipscomb further testified that since Cain was guaranteed a minimum of 75 cents an hour
and rarely earned more than that amount, his recompense would not have been substantially
affected by the employment of Qualls, had Cain elected to remain in the Respondents ' employ.
It was Lipscomb ' s further testimony that he "had trouble with [Cain ' s] going behind the parts
counter, which was definitely against the rules, and also it always had been for a mechanic to
go back there, because he don't know where to find the parts; he don't know where to charge
it off on the sheet , or anything like that."
The foregoing is a summary of the testimony of Cain and Lipscomb as to Cain's employment
history and the termination of his employment with the Respondent in July 1952 . Cain was not
called as a rebuttal witness and, aside from the general denials previously mentioned, failed
to deny specifically much of the testimony of Lipscomb . Moreover, other portions of the
latter's testimony were not put in issue by Cain ' s general denials. As between these two
witnesses , Lipscomb impressed the undersigned as being the more reliable . He appeared to
be one of the Respondent 's more dispassionate witnesses and although he testified somewhat
bruskly, he seemed in the main to be forthright and candid, as indicated by his admissions
as to interrogating employees about the Union and as to his knowledge of Cain ' s purported
interest in the Union. On the other hand, contrasting Cain ' s testimony with that of Lipscomb,
the undersigned is convinced that Cain 's version did not embody all the events connected
with the termination of his employment but notes that Lipscomb ' s testimony may be construed
to be a more full and more credible elaboration of Cain's cryptic testimony that on July 11,
1952 , Lipscomb told Cain that the latter "was being replaced and go to work and quit the
same day ." These considerations impell the undersigned to accept Lipscomb's testimonial
version respecting Cain ' s employment history and the termination of his employment in July
1952 as being more nearly in accord with the probable course of events than Cain ' s testi-
mony, which is rejected to the extent that it was at variance with the credited testimony
of Lipscomb.
The issue posed by the foregoing findings of fact is not whether Cain was discriminatorily
discharged , as contended by the General Counsel , but whether Cain was constructively dis-
charged on July 11, 1952, in violation of the Act . The Respondents' antipathy to the Union,
their unlawful refusal to bargain with the Union , and their knowledge as to Cain 's interest in
i61n quoting this excerpt from Lipscomb 's testimony , an obvious typographical error in
the record has been corrected so as to substitute "relish " for "relict."
7 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union. gave one reason to suspect their motivation for the change in Cain's employment
on July 10. However, since Cain was reemployed on August 11, 1952,17 and since the under-
signed had accepted the testimonial version of Foreman Lipscomb as to the history and
termination of Cain's employment , the undersigned concludes that the complaint ' s allegations
that the Respondents discriminated in respect to Cain' s tenure of employment have not been
sustained by a preponderance of credible evidence.
D. The termination of employment of CarmelitaSadler Rogers
Rogers entered the Respondents ' employ on July 31, 1951 , as operator of the telephone
switchboard In addition to handling the switchboard, she operated a control which opened a
door at an entrance for trucks and also performed some miscellaneous clerical work , such as
operating the cash register , changing price sheets for merchandise , filing back orders, and,
for a time , checking invoices for incoming merchandise against purchase orders On June 19,
1952, she signed a union-authorization card The General Counsel contends that although
Rogers quit the Respondents ' employ on August 13, 1951 , she was forced to do so for the
reason that she was excessively criticized and berated by Respondent Edward Hamilton be-
cause of her union membership and Hamilton's antipathy to the Union, and that consequently
Rogers was constructively discharged by the Respondents in violation of the Act. The Re-
spondents assert that Rogers quit of her own volition and not because of unjustified criticism
by the Respondents. A summary of the testimony of the various witnesses in regard to the
termination of Rogers ' employment will be set forth
1 Witnesses for the General Counsel
Rogers testified that she had no particular trouble with Respondent Edward Hamilton until
after the advent of the Union in June and that thereafter he "picked on" her " all the time"
and his attitude towards Rogers became progressively worse--although "he's always been
loud"--until the situation " got unbearable and before [Rogers ] went on ... vacation, [she]
was all nervous and weak ." According to Rogers , after the employees evidenced interest
in self- organization , Respondent Hamilton " was upset" and "had outbursts of throwing his
hand up in the air and swearing ," and although "he always talked , . . there is nothing real
violent like he got just before [Rogers] got married " in August 1952 . During this period,
Hamilton railed at Rogers by calling her a "dumbbell," " poor soul," and "hardhead," and
by saying that she "just couldn 't get nothing through [her] thick skull ." It was Rogers' testi-
mony that when, on one occasion, Purchasing Agent King asked Edward Hamilton, "Why
don't you slap that girl when she does things like that, " Hamilton told Rogers , " I sometimes
can't control myself, I just want to slap you off that stool "
Rogers testified that when she returned from her vacation on August 11, 1952, she had the
following conversation with Respondent Edward Hamilton " early in the morning" in the
latter's office-
Well, Mr . Hamilton had my time card out of the time-card slot and he asked to see me
in the office and I went in, and he said that they were changing policies and that they were
going to dispense with a lot of help and they didn ' t know if I was going to be needed or
not; and he said that they were going to change the telephone system to a different one
than at the present time, then he gave me my time card back, but he didn't know what
was going to take place afterwards , and then he said there has been such an upset here
at the stdre "Of course, you know all about it." And he said that well, that kind of
dropped about my work and he said I was going to have to not carry on my conversation
with anyone He especially requested that I did not talk about the union or about the
company in any manner whatsoever And then he began to talk about this union and I said,
"Well, Ed, I never told you that I signed a card " And he said, "Don't worry, just say
that I know you signed one." And I didn't say any more and he said before he let that
'?The undersigned is not persuaded that there was any substantial change in the con-
ditions of Cain's employment upon his return to the Respondents in August. The fact that he
was instructed ( 1) to remain at his work station during working hours and not talk to other
employees , and (2) when his work necessitated the use of a specialized tool not available at
his work station , to bring the required tool to his work rather than take his work to the
tool do not seem to be unreasonable or, in themselves , indicative of an illegal motivation
on the part of the Respondents in bringing about the cessation of Cain's employment in July
1952.
THE J. C. HAMILTON COMPANY 753
place turn union, he would turn it into a warehouse, "And you know yourself," Ed said,
"That all this confusion and going on here has caused so much trouble between the
employees, that they are beginning to fuss and complam." And he said that there had been
several people complaining about the telephone system, telephone girl not getting the
parties right quick.
And, well , I don't know , just in general he just summed up that I should not talk to
anyone whatsoever about the company , union , business or anything . He said I was to go
out there, set on that telephone stool and stay there all the time that I was working, from
8.00 to 5:30
Rogers did not work on August 12 because of illness , but returned on August 13, 1952
According to her testimony, she had the following conversation with Edward Hamilton the
morning of August 13, 1952:
... I guess I had been working a couple of hours and he came up to the desk and he said
that someone in the plant had told him that I had been talking about the union and the
company again and that he had warned me, and warned me, that he didn ' t know what he
was going to do if I didn't stop . He said he had asked me not to say anything and that I
should have been courteous enough not to mention it anymore.
I told him , " Why, well, Ed , I have contacts up here at the telephone desk ; you have to
talk to people because they come up there and ask you questions and they will talk to you
about taking some money for this cash drawer . I will have to answer the fellow and tell
somebody about the conversation that they gave me the message for."
And he said , " Well," he says , " You just never mind , I don ' t want you talking anymore
about the company or this union ," and he says, "If you don't, I don ' t know what I am
going to do "
Following this interchange with Respondent Hamilton , Rogers quit the employ of the Re-
spondents because , as she testified , " I couldn ' t put up with it another minute I was just a
nervous wreck ." For the records of the Respondents ' office manager , Rogers admittedly
signed a statement giving as the reason for the termination of her employment , " I quit of my
own free will."
In addition to the above , Rogers also testified that officials of the Respondent had voiced
"corrections" of her work and that Parts Manager Mann had "tried to suggest that [Rogers]
do a little better somewhere" but had never reprimanded or "bawled " her out about her
work . She admitted , " I imagine I made mistakes ," which justified some criticism by the
Respondents and expressed a belief that Hamilton may have "picked on" her more than other
employees because she "couldn ' t get someone on the phone." On August 8, 1952 , Rogers was
married . Admittedly , she told employees when she returned from her vacation on August 11,
1952, that her husband did not care whether she continued to work for the Respondents and
that she was going to quit and asked them what reason she should give Respondent Edward
Hamilton . In this regard, she further testified as follows on cross -examination.
Q. [By Mr. Soule] You went to Bill Talley, didn't you, and told him that you were going
to quit?
A. I hadn't planned to quit, I was going to work.
Q. For sometime?
A. No, not for some time
Q. When did you start planning to quit?
A. When Ed Hamilton got on my nerves. He heckled me all the time and he just upset
me. Several times I had to leave the switchboard. I couldn't talk.
Q. How long had that been going on?
A. Well, it just started real bad after the union started in.
When asked whether she desired reinstatement by the Respondents , Rogers testified, "Well,
not if it has the same confusion as when I left , no, I don ' t want that job back ." Although the
answer is somewhat ambiguous in view of the multiple negatives and the punctuation (the
difference in meaning is to be noted , had the official reporter inserted a period instead of a
comma after the word "left "), the undersigned construes this answer , considered in con-
junction with the foregoing summary of her testimony and the entire record, to mean that
Rogers did not desire to be reemployed by the Respondents.
Rogers' testimony was corroborated to a certain extent by that of employees Cain and
West Thus , Cain testified that after Rogers returned from her vacation in August, Cain
7 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
overheard Respondent Edward Hamilton tell her that "she didn't know what she was doing"
and that "she was dumb." In this regard, West gave the following testimony- "After it was
found that the union was coming in, I noticed Ed Hamilton's attitude was very antagonistic
towards [Rogers]. He seemed to want, more or less, to blame all the mistakes caused on the
parts counter to her. I have heard him, on several different occasions, say that she was hard-
headed and a dumbbell. He didn't know what he could do with her."
2. Witnesses for the Respondents
The testimony of Respondent Edward Hamilton will first be considered According to
Hamilton, Rogers continually and frequently throughput her employment disconnected lines
carrying long distance telephone calls and that when this occurred he reproved her, some-
times by shouting to her from a window in his office or by coming to the switchboard, which
was located several feet from his office, being separated therefrom by a driveway and a
counter of the parts department She disconnected telephone calls continually, both on the
signal key switchboard in use at the time she entered the Respondents' employ and on the new
switchboard installed in July 1952 In addition, Rogers "continually" left the switchboard
unattended, although her duties did not require her to leave its vicinity, and was criticized
for this action by Hamilton, who instructed her "not to leave the switchboard without having
a relief operator to take that job over."
In respect to clerical errors made by Rogers, Respondent Edward Hamilton gave the
following testimony:
Well, we get a price sheet which would be several pages, which would contain the latest
prices; then the several discounts or net prices to the trade Then you t
i '
get a
separate sheet showing the cost price Now, we would combine those two sheets and
correct the cards On the cards we would have the cost price and the selling price, which
included the list price and the dealer and the garage prices, and we would staple -- I
would do that myself, staple those sheets together in order to do it at one operation.
Well, time after time she would change the cost price and fail to change the other prices,
thereby having to go back over and do the other prices. Then, numerous numbers would
be left off, she would forget to change them , or just a continued number of errors every
time she changed prices.
According to Hamilton, he called these mistakes to her attention but she continued to make
such errors throughout her employment, although the Respondents "noticed them more at
the end, we expected, after we had taught her how to do it, we expected her to be more care-
ful with her work."
Respondent Hamilton gave the following testimonial version of the conversation between
him and Rogers on August 11, 1952:
Well, she camel back from vacation, and I told her that there had been a lot of confusion
and that I fold her that I would appreciate it if she would stay at her position at the
switchboard and refrain from talking to the other employees in order that she could con-
centrate more on her work and discontinue the continual errors that she had been making,
and I thought that if she would do those two things, stay at the switchboard and think about
what she was doing, that she would stop making the errors, it would also allow the
other employees to do their work properly without disturbing them continually.... Well;
she said that there sure was a lot of confusion; that she was going to do the best she
could. She said she was sorry about it, that she was trying to do the best she could or
knew how.
Hamilton testified on cross-examination that by "confusion," he referred to Rogers'
"leaving the telephone position, disconnecting the telephone, leaving the telephone position,
and when I came up to ask her please to connect it, she wouldn't be there; she would be
talking to somebody when she should have been there. Confusion that she created by her not
doing her job." He denied generally that anything was said by himself or Rogers in regard to
the Union, that he ever used any abusive language in conversation with her, called her names
of any kind, or threatened her. As mentioned previously, he also denied generally ever having
said that he would close the plant rather than have a union in the shop Hamilton gave no
testimony in respect to the conversation with Rogers, which the latter asserted occurred on
August 13 and resulted in her decision to leave the Respondents' employ.
However, Foreman Lipscomb testified that he overheard a conversation between Rogers
and Edward Hamilton on August 13, 1952, near the end of the workday, although "I didn't
THE J. C. HAMILTON COMPANY 755
press my ears to be sure I didn ' t misunderstand a word , but roughly , I think , I heard the
majority of it." However, he further admitted that he heard only a portion of the conversation
and that "the rest of the conversation I could not hear " According to Lipscomb, Respondent
Edward Hamilton " was talking to her about the errors she was making " and "told her that
he just was going to have to keep her on that chair up there , that she couldn ' t be going up and
down and people honking to get in and the telephone ringing and that kind of stuff , and that she
had to be at the telephone up there at that place or post , or however you want to word it,
and that she had to be there " Lipscomb "heard no union talk" in the conversation
Lipscomb further testified that since he was in the service department , " the only errors
that I knew of her making was . . to cut me off on my service call." According to Lipscomb,
the difficulty in having telephone calls cut off by Rogers at the switchboard commenced with
the installation of the new switchboard in July and continued until the time Rogers left the
Respondents. Lipscomb described the former switchboard as one having 4 keys and 4 lines--
"that call came in on a line and you couldn't cut them off; you could do it, but there would be
a light up over the key, and you pulled it." It was Lipscomb's testimony that on 1 day he had
5 local telephone calls cut off by Rogers and that about 30 days before she quit, he was cut
off at the switchboard by Rogers 3 times in a single telephone conversation . He complained
to Rogers about such interruptions until he "got disheartened and quit "
According to Parts Manager Mann, Rogers became more inefficient in handling the switch-
board during the last 6 months of her employment with the Respondents and "in spite of
pleading to handle long -distance calls with exceptional care , ... it seems invariably that a
long-distance call would be cut off, a great number of them ." He recalled hearing Rogers
being criticized for cutting off telephone calls about 20 times during the entire period of her
employment . Mann never heard Edward Hamilton call Rogers a dumbbell , poor soul, or
hardhead , and never heard him tell her that he could not get anything through her thick skull
or that he wanted to slapher. Mann insisted that although Edward Hamilton "may talk loud....
he never uses vulgar language "
One of the clerical tasks performed by Rogers soon after she commenced to work for the
Respondent was to check invoices of incoming merchandise against purchase orders . Accord-
ing to Mann , the purchasing agent preceding King corrected mistakes made by Rogers in such
checking and did not inform Mann of the errors . However, after King became purchasing
agent in March 1952 , he reported that Rogers made numerous errors and continued to do so
even after many instructions Finally , about June 1952 , he asked that she be relieved of this
task since it was simpler for him to do the checking himself Mann estimated that in about
1 out of 5 purchase orders Rogers made a number of mistakes . King corroberated Mann's
testimony in this regard and explained that Rogers did not make errors on small purchase
orders of 2 or 3 items but tended to err on large orders of 50 or more items . Neither
Hamilton nor King was questioned with regard to their conversation with Rogers, in which,
according to the latter, King suggested that Hamilton slap Rogers.
3 Conclusions as to the credibility of witnesses
Upon the entire record and the undersigned ' s observation of the witnesses , the undersigned
is persuaded that the testimonial version of Rogers' employment history and termination of
employment given by the General Counsel's witnesses is more reliable and credible than that
given , by the Respondents ' witnesses The reasons for this conclusion are several . Rogers
appeared to be a forthright and sincere witness whose candidness was forcefully demonstrated
by her admissions on cross-examination which were to a certain extent detrimental to her
case. On the other hand, as previously mentioned, Edward Hamilton did not impress the
undersigned as a wholly reliable witness . Moreover , it is to be noted that Hamilton failed
to deny Rogers' testimony in respect to the conversation between them on August 13, 1952,
or to deny specifically much of Rogers' other testimony. Although Foreman Lipscomb testi-
fied that he overheard a portion of the conversation between Respondent Hamilton and Rogers
on August 13, the undersigned finds such testimony insufficient to rebut the credible testi-
monial version of Rogers as to this conversation inasmuch as Hamilton was not questioned
in regard to the conversation . Lipscomb admitted that he did not overhear all the conversa-
tion, and aside from the time of day when the conversation occurred, Lipscomb's testimony
is not fatally irreconcilable with that of Rogers Moreover, Hamilton ' s testimony as to
Rogers' continuous gross inefficiency throughout her entire period of employment by the
Respondents gives one reason to believe that such testimony was greatly exaggerated, for if
Rogers were such an inept employee , it would appear that she would have been discharged
before the advent of the Union in June . In view of these factors and upon the entire record,
the undersigned credits Rogers ' testimonial version of her employment history and termina-
tion of employment, corroborated to a certain extent by the testimony of Cain and West, and
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rejects the testimony of the Respondents' witnesses to the extent it was at variance with the
credited testimony.
4. Conclusions as to the forced resignation of Rogers
Upon the foregoing , the undersigned finds merit in the General Counsel's contentions that
by their castigations of Rogers. the Respondents forced her to resign and thereby construc-
tively discharged her in violation of the Act. In view of Rogers' admissions that she made
errors and of the testimony of Lipscomb and Mann, which was less exaggerated and some-
what more dispassionate than that of Edward Hamilton, it is not found that Rogers was a
completely exemplary employee devoid of faults but, as set forth above, it appears clear to
the undersigned that she was not so unapt an employee as the Respondents' witnesses insisted.
However, after the advent of the Union, Respondent Edward Hamilton's attitude towards
Rogers became increasingly critical. He berated her by calling her a "dumbbell," " poor
soul," and "hardhead," and by saying that she "just couldn't get nothing through [her] thick
skull." On one occasion, he told her, "I sometimes can't control myself, I just want to slap
you off that stool." On August 11, 1952, when Rogers returned from her vacation, Edward
Hamilton told her before she resumed work that the Respondents "were changing policies
and that they were going to dispense with a lot of help and they didn't know if [she] was going
to be needed or not; and ... they were going to change the telephone system to a different
one than at the present time." After mentioning that "there has been such an upset here at
the store," of which Rogers must be aware, Hamilton requested that she "not carry on any
conversation with anyone" and "not talk about the union or about the company in any manner
whatsoever," and informed Rogers that he knew that she had signed a union card. In addition,
Hamilton said that "before he let that place turn union, he would turn it into a warehouse."
On August 13, 1952, Edward Hamilton came to Rogers at work and told her that "someone
in the plant had told him that [she] had been talking about the union and the company again
and that he had warned [her], and warned [her], that he didn't know what he was going to do if
[she] didn't stop," and further stated that he had requested that she not "say anything" and
that she "should have been courteous enough not to mention it anymore." When Rogers
countered that she had to converse with people during her work, Hamilton said, "You just
never mind, I don't want you talking anymore about the company or this union" and "if you
don't, I don't know what I am going to do." Thereupon, Rogers quit the Respondents' employ
because, according to her testimony, "I couldn't put up with it another minute. I was just a
nervous wreck." Upon the foregoing and the entire record, the undersigned finds that Re-
spondent Hamilton's campaign of castigation and harassment of Rogers was motivated by his
opposition to the Union and his knowledge of her union activities, and that by having unlawfully
created such an untenable situation for Rogers, the Respondents forced her to resign her
employment and thereby constructively discharged her. It follows that by such discrimination
in respect to Rogers' tenure of employment, the Respondents have violated Section 8 (a) (3)
and (1) of the Act, for as the Board has held, "An employer cannot avoid his responsibilities
under the Act by creating a situation so unbearable to an employee, so detrimental to har-
monious and constructive working conditions, that the employee relinquishes his position
rather than continue in such a situation. to
It is further found that by Edward Hamilton's remarks to Rogers on August 11 and 13,
1952--particularly, his references to her union activities, implied threats to "dispense with
a lot of help," overt declaration that before he would "let that place turn union, he would
turn it into a warehouse, " and his exaction of complete silence concerning the Union at all
times by Rogers--the Respondents interfered with, restrained, and coerced their employees
in the exercise of the rights guaranteed in Section 7 of the Act.
E. The termination of employment of A. L. West
West entered the Respondents ' employ on January 28 , 1952, and worked 3J days in the parts
department and 2 days a week outside the plant calling upon customers and selling merchan-
dise . His duties have been fully detailed in section III, A, 1, "The appropriate unit." On
June 18, 1952, he signed a union-authorization card, and on the following day at the Re-
spondents ' plant he assisted five employees execute similar cards, serving as a witness to
their signatures . As mentioned above, in response toa query by Respondent Edward Hamilton,
employee Jack Miller told him that West had given Miller a union-authorization card which
Miller had signed . It is accordingly clear that the Respondents were aware of at least a
portion of West ' s union activities.
to Chicago Apparatus Company , 12 NLRB 1002 , 1020, enfd . 116 F. 2d 753 (C. A. 7).
THE J. C. HAMILTON COMPANY 757
West testified that in August 1952 his authority in the work of the parts department was
revoked and his job was changed "to cleaning bins and cleaning parts and more or less
janitorial work " West's testimony in this regard is not credited for it was refuted by the
credible testimony of Parts Manager Mann, who, in sum, explained that the work assignment
which West found odious was no more than an assignment to assist in taking the Respondents'
annual inventory, in which all employees, excepting mechanics but including supervisors and
the Respondents, assisted.
In late July 1952 West requested permission of Mann to take off the last 2 weeks in August
for a vacation but without pay inasmuch as West had not been in the Respondents' employ for
a sufficient length of time to entitle him to a vacation with pay. West explained that his wife,
who was employed elsewhere, was taking her vacation at that time and he wished to accompany
her. Mann stated that he had purposely planned to take his vacation the latter part of August
so that the employees of the department might have their vacations earlier in the summer and
the department would be fully staffed when Mann was absent West then suggested that he
be given permission to take off the last week in August, instead of the last two. According to
West, Mann replied, "I will check with Ed Hamilton. I think we can arrange it that if you
want to take the last week then." Mann and West had no further conversations about West's
vacation plans. West consequently "surmised," according to his testimony, that he "would
have the last week off in August" and without further inquiry into the matter did not report
to work the last week in August, although at that time Mann was on his vacation and the
.supervision of the department had been temporarily assumed by Purchasing Agent King.
When West returned to work on September 2, 1952, Mann asked him, during that morning,
whether he had understood that Mann had given him permission to take a vacation the last
week in August West told Mann, according to West's testimony, "Since you knew I wanted
the last week off and you never told me anything pro or con on it, I just surmised that it
would be all right." Mann replied that there was a misunderstanding as to the matter and that
West's absence had thrown "a burden on everybody in the place." Mann testified, "I told him
that I felt like he had let me down because when I left, why Paul King was, you might say,
outside of--Ed Hamilton was the one ih charge, and [Hamilton] had been stricken with
appendicitis and was operated on, which left Paul more or less in the parts department by
himself and still [West] went ahead and left on his vacation, and Paul was busy and Ed
Hamilton was out and myself was out." 19
It was West's undenied testimony that he had the following conversation with Mann in the
afternoon of September 2, 1952:
I had started to the rest room. Ed Mann followed me in there and I don't recall just
exactly how I started the conversation but he did tell me that the other employees in the
parts room there felt that they did not care to work with me any more. "No one out there
likes you They just don't want to work with you "
I said, "Ed, did one of the fellows tell you that? "• He said, "Well, it just wasn't one
but several told me that " So I said, "Ed, if that's the way the fellows feel, I don't want
to impose on anyone. If that is their feeling, it seems that I must have fallen down on my
work, my ability there. Why don't you just pay me off and let me go. I don't want to work
along with people like that."
He said, "No, Doc, that isn't our policy. We like to help a man get located." I said,
"Well, as far as being located, I never had much trouble finding a job.... I am going
to talk to the boys in the parts room, . . . if they don't want to work around or with me....
I'll get out.... I certainly don't want to if they don't want me around." 20
19 The findings in this and the preceding paragraph are based upon the mutually reconcil-
able testimony of West and Mann. Since September 1, 1952, was Labor Day, it is inferred
that West returned to work on September 2. However, it is possible that he resumed work on
September 1, and that the above conversations occurred on September 1.
20 West's testimony in the last paragraph above quoted was confused and the indicated dele-
tions have been made by the undersigned in an effort to clarify the testimony and set it
forth in a manner which, to the undersigned, appears to be the logical essence of the con-
versation West was relating. The paragraph in question is as follows:
He said, "No, Doc, that isn't our policy. We like to help a man get located." I said,
"Well, as far as being located, I never had much trouble finding a job. In fact, I was
working just a short distance from here when I first talked to Ed Hamilton and when I
asked if I could go to work. He said, "I am going to talk to the boys in the parts room,
and I said that if they don't want to work around or with me, I said, "I'll get out." I
said, "I certainly don't want to if they don't want me around."
283230 0 - 54 - 49
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereupon West immediately assembled the employees of the parts department and "asked
them if any of them had told Ed [Mann] or anyone if they had any objections to working with
me or around me" and "they all denied it."
Around 10:30 the next morning, September 3, 1952, West had the following conversation
with Parts Manager Mann, according to the former's uncontroverted testimony:
I told Ed Mann that I had talked with the other employees and I found that none of them
had told the things that he told me they had That I just didn't feel certain of myself, that
someone was definitely telling a falsehood, that I didn't like to be lied to or lied about,
that I would like to quit if he would get my money.
West testified that he did not desire reinstatement with the Respondents and that "I make
more money where I am employed now" than he did with the Respondents.
Office Manager Eleanor Hand testified credibly and without contradiction that the following
occurred when West came to her office to obtain his final pay:
Well, [West] came in and said that he was quitting, and I asked him when, and he said
that he would like to have his check pretty soon, that he had another job, and that he
would like to be released. I asked him what it was. "It is a better paying job and I would
rather not tell you where it is." So I asked him to put on the payroll his reason for
quitting, and he did, and I figured his check and took it out to him.
Q. What did he,put on the payroll?
A. Well, just like he told me, for a better job, better paying job.
The circumstances connected with West's resignation from the Respondent's employ- - i. e.,
the fact that West was active in the Union, that the Respondents were aware of some of his
activities, and that West's testimony regarding his conversation with Mann on the afternoon
of September 2 and the morning of September 3, 1952, was not denied by Mann or otherwise
explained by the Respondents, considered in the light of the Respondents' other violations of
the Act--give one reason to suspect that the Respondents may have desired to be rid of an
active union adherent and that they may have unlawfully sought to create a circumstance
which would force West to resign his employment. However, as the Board has stated, a
finding of violation of the Act cannot be based "on suspicion alone. There must be a pre-
ponderance of evidence to show that Respondent was motivated by anti-union considera-
tions."n This, in the opinion of the undersigned, the record herein fails to demonstrate.
In order to sustain the General Counsel's contentions that West was constructively dis-
charged by the Respondents in violation of the Act, one must infer from Mann's telling West
that the employees did not desire to work with him (1) that Mann was illegally motivated in
making such a false statement by the desire to give West reason to quit the Respondents'
employ, and (2) that Mann believed, and the trier of fact must infer, that when West discovered
the falsity of Mann's statement, the situation was so untenable for West that he was forced to
resign his employment. On the circumstances of the case, the undersigned is unable to agree
that these inferences, particularly the second, are justified, but is of the opinion that they
are offset by a more logical inference to be drawn from other facts and by the outcome of
the afternoon conversation between Mann and West. That is, if the Respondents were desirous
to be rid of West as an employee, it would appear that they might well have seized upon his
taking a vacation without final approval from his supervisors as an excuse to terminate his
employment with the Respondents. Moreover, the fact that Mann did not overtly suggest that
West quit the Respondents' employ in their conversation on September 2. and Mann's refusal
to accept West's immediate proffered resignation, indicate that Mann was not unlawfully
motivated in making the statement to West that the other employees did not desire to work
with him. In addition, West's statement to office Manager Hand that the reason he was
quitting the Respondents' employ was to take a better paying position gives rise to an inference
that this circumstance and not the conversation with Mann may have been the proximate
cause for West's resigning his employment. Upon these circumstances and the entire record,
the undersigned finds that a preponderance of credible evidence fails to sustain the complaint's
allegations that the Respondents discriminated in regard to the hire and tenure of West's
employment in violation of the Act.
21 Punch and Judy Togs, Inc. of California , 85 NLRB 499.
THE J. C. HAMILTON COMPANY 759
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above , occurring in connection
with the operations of the Respondents described in section I, above , have a close , intimate,
and substantial relation to trade, traffic, and commerce among the several States , and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
As it has been found that the Respondents have engaged in unfair labor practices, it will
be recommended that the Respondents cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondents refused to bargain collectively with the Union as the
exclusive representative of their employees in the appropriate unit, the undersigned will
recommend that the Respondents, upon request, bargain collectively with the Union as such
representative, and if any understanding is reached, embody such understanding in a signed
agreement.
It has bebn found that on August 13, 1952, the Respondents caused the discriminatory
discharge. of Carmelita Sadler Rogers because of their antipathy to the Union and because
of her union membership and activities. As, mentioned previously, Rogers did not desire
reinstatement by the Respondents . In order to effectuate the policies of the Act , the under-
signed finds it unnecessary to recommend that the Respondents offer Rogers reinstatement
to her former or substantially equivalent position, but will recommend that the Respondents
make Rogers whole, in conformity with the Woolworth formula,22 for any loss of pay she
may have suffered by reason of her discriminatory discharge by payment to her of a sum of
money equal to the amount she normally would have earned as wages from August 13, 1952,
to November 5, 1952, the date on which she testified that she did not desire reinstatement,
less her net earnings during said period . Lv It is recommended further that the Respondents
make available to the Board upon request payroll and other records , in order to facilitate
the checking of the amount of back pay due. ?A
It will be recormended that the Respondents cease and desist from interfering with,
restraining , or coercing their employees in violation of Section 8 (a) (1) of the Act by in-
terrogating their employees as to their union membership and activities, by threatening
to close their plant in the event the Union succeeded in its organizational campaign, and by
threatening to 'discharge employees. Because of the Respondents' unlawful conduct and its
underlying purpose and tendency, the undersigned finds that the unfair labor practices found
are persuasively related to other unfair labor practices proscribed and that danger of their
commission in the future is to be anticipated from the course of the Respondents' conduct
in the past.25 The preventive purposes of the Act will be thwarted unless the order is co-
extensive with the threat. In order , therefore, to make effective the interdependent guarantees
of Section 7, to prevent a recurrence of unfair labor practices, and thereby to minimize
industrial strife which burdens and obstructs commerce , and thus effectuate the policies of
the Act , the undersigned will recommend that the Respondents cease and desist from in any
manner infringing upon the rights guaranteed in Section 7 of the Act.
It will also be recommended that the complaint be dismissed insofar as it alleged that the
Respondents discriminated in regard to the hire and tenure of employment of Ray Cain and
A. L. West.
Upon the basis of the above findings of fact and upon the entire record in the case, the
undersigned makes the following:
CONCLUSIONS OF LAW
1. International Association of Machinists , AFL, is a labor organization within the mean-
ing of Section 2 ( 5) of the Act.
2. All employees of the Respondents at their Oklahoma City plant, excluding professional
employees , office clerical employees , guards, watchmen , outside salesmen, and supervisory
employees, constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
fF. W. Woolworth Company , 90 NLRB 289.
23Crossett Lumber Co., 8 NLRB 440; Republic Steel Corporation v. N. L. R. B., 311
U. S. 7.
UF, W . Woolworth Company , 90 NLRB 289.
25 N. L. R. B. v. Express Publishing Co., 312 U. S. 426.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. On 'June 19, 1952, international Association of Machinists. AFL, was, at all times since
has been and now is the representative of a majority of the Respondents ' employees in the
appropriate unit described above for the purposes of collective bargaining within the meaning
of Section 9 (a) of the Act.
4. By refusing on June 21, 1952, and at all times thereafter , to bargain collectively with
International Association of Machinists, AFL, as the exclusive representative of all their
employees in the appropriate unit , the Respondents have engaged in and are engaging in
unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of Carmelita Sadler
Rogers , thereby discouraging membership in international Association of Machinists, AFL,
the Respondents have engaged in and are engaging in unfair labor practices within the meaning
of Section 8 (a) (3) of the Act.
6. By the foregoing unfair labor practices and by interfering with, restraining , and coercing
their employees in the exercise of the rights guaranteed in Section 7 of the Act, the Re-
spondents have engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
8. The Respondents have not discriminated in regard to the hire and tenure of employment
of Ray Cain and A. L. West.
[Recommendations omitted from publication.]
MIKE AND JOE CALDARERA, PARTNERS, d/b/a FALSTAFF
DISTRIBUTING COMPANY and INTERNATIONAL BROTH-
ERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN & HELPERS OF AMERICA, LOCAL NO. 878, AFL.
Case No. 32-CA-239. May 5, 1953
DECISION AND ORDER
On February 12, 1953, Trial Examiner Ralph Winkler issued
his Intermediate Report in the above -entitled proceeding,
finding that the Respondents had engaged in and were engaging
in certain unfair labor practices in violation of Section 8 (a)
(1), (3), and (5) of the Act and recommending that they 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 Respondents had not
violated Section 8 (a) (3) and (1) of the Act by terminating the
employment of Delbert K. Young and recommended the dis-
missal of that portion of the complaint. Thereafter, the Re-
spondents filed exceptions to the Intermediate Report and a
supporting brief.
The Board' has reviewed the rulings of the Trial Examiner
who conducted the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed.2 The Board
has considered the Intermediate Report, the exceptions and
t Pursuant 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 [Chairman
Herzog and Members Houston and Peterson].
2Contrary to the Respondents ' contention, we agree with the Trial Examiner 's ruling that
the 6-month period of limitations established by Section 10 (b) of the Act is not here ap-
plicable, as the original charge was timely filed . Cathey Lumber Company, 86 NLRB 157,
enforced 185 F. 2d 1021 (C. A. 5); Beaver Machine & Tool Co., Inc ., 97 NLRB 33.
104 NLRB No. 90.