The Ruberoid Co.

National Labor Relations Board - Board Decisions

Jan 24, 1962

135 N.L.R.B. 518 (N.L.R.B. 1962)

518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR . PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above ; occurring in
connection with the operation of-Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States, and tend to lead to labor disputes . burdening and obstructing commerce
and the free flow of commerce. I
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in
violation of Section 8(a)(2) and ( 1) of the Act, it .will be recommended that the
Respondent cease and'desist therefrom and take certain affirmative action . designed
to effectuate the policies of the Act.
Thus, having found that the Respondent has, violated the provisions of Section
8(a)(2) and ( 1) of the Act by entering into the aforesaid agreement of February 3,
1961, with Local 9 , Amalgamated Lithographers of America , the Trial Examiner
will recommend that the Respondent cease recognizing Local 9 as the representative
of its employees employed in its lithographic preparatory department unless and
until such time as said Local 9 is certified as the representative of the employees of
the Respondent in an appropriate unit.
Upon the basis of the foregoing findings of fact , and on the entire record in this
proceeding , I make the following:
CONCLUSIONS OF LAW
1. Detroit Printing Pressmen and Assistants ' Union No. 2, International Printing
Pressmen and Assistants ' Union of North America, 'AFL-CIO, and Local 9, Amal-
gamated Lithographers of America , each is a labor organization within the meaning
of Section 2(5) of the Act.
2. By entering into a written collective-bargaining agreement with Local 9,
Amalgamated Lithographers of America , on February 3, 1961, covering the em-
ployees of the Respondent in its lithographic preparatory department at a time when
a real question of representation of such employees existed , the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(2) and ( 1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Funkhouser Mills, Division of The Ruberoid Company and United
Cement, Lime and Gypsum . Workers, Local Union 402. Case
No. 10-CA-4275. January 24; 1962
DECISION AND ORDER
On June 23, 1960, Trial Examiner John H. Dorsey issued an Inter-
mediate Report in the above-entitled case which affirmed his ruling
made during the hearing at the close of the General Counsel's case dis-
missing the complaint insofar as it alleged that the. Respondent had
violated Section 8(a) (3) and (1) of the Act by failing to recall, and
by discharging, James E. Norrell. In his Intermediate Report, the
Examiner found further that the Respondent had not engaged in and
was not engaging in any of the other unfair labor practices alleged
in the complaint, and recommended that the complaint be dismissed in
its entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
135 NLRB No. 56.
FUNKHOUSER MILLS, DIV. OF THE RUBEROID COMPANY 519
Report and a supporting brief. A brief in support of the Intermediate
Report was filed by the Respondent.
On October 25, 1960, the Board issued an Order. in which it found
that the General Counsel had established a prima facie case as to
the alleged discriminatory discharge of employee Norrell, and there-
fore the Board remanded the case to the Trial Examiner for further
proceedings and to prepare a Supplemental Intermediate Report. On
December 15, 1960, the hearing was reopened. The Respondent pre-
sented its defense to the alleged discriminatory discharge of Norrell,
and rebuttal thereof was presented by the General Counsel. On Jan-
uary 27,1961, the Trial Examiner issued a Supplemental Intermediate
Report attached hereto, finding in part that the Board "has no author-
ity to remand a case to a Trial Examiner with directions to rewrite,
and how to write his Intermediate Report." The Trial Examiner
again recommended dismissal of the complaint in its entirety. There-
after, the General Counsel filed further exceptions and a supporting
brief. A brief in support of the Supplemental Intermediate Report
was filed by the Respondent.
On July 19, 1961, the Board issued an order remanding the case
to the Trial Examiner 1 "with the explicit directive that he prepare
and issue an Intermediate Report in this case in compliance with the
requirements of Section 102.45 of the Board's Rules and Regula-
tions. . . ." On August 31, 1961, the Trial Examiner issued his Sec-
ond Supplemental Intermediate Report, again finding that the Re-
spondent had not engaged in and was not engaging in any of the
unfair labor practices alleged in the complaint and recommending that
the complaint be dismissed in its entirety, as set forth in the Second
Supplemental Intermediate Report attached hereto. Thereafter the
General Counsel filed exceptions to the Second Supplemental Inter-
mediate Report and a supporting brief, and the Respondent filed a
brief in support of the Second Supplemental Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made
at the hearings and, with the exception of his dismissal at the first
hearing of the allegation pertaining to Norrell, finds that no prejudi-
cial error was committed. The rulings are hereby affirmed. The
Board has considered the Intermediate Report, the Supplemental
Intermediate Report, the Second Supplemental Intermediate Report,
the exceptions and briefs, and the entire record in the case, and
hereby adopts the finding, conclusions, and recommendations of the
Trial Examiner set forth in the Second Supplemental Intermediate
Report, and those findings and conclusions set forth in the Intermedi-
ate Report, and those findings and conclusions set forth in the Inter-
Funkhouaer Mills, Division of the Ruberoid Company, 182 NLRB 245.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mediate Report and in the Supplemental Intermediate Report which
are not inconsistent with the Board's Orders of October 25, 1960,
and July 19, 1961.
[The Board dismissed the complaint.]
MEMBER BROWN took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed on September 22, 1959, subsequently twice amended, by United
Cement, Lime and Gypsum Workers, Local Union 402 herein called the Union,
against Funkhouser Mills, Division of the Ruberoid Company, herein called Respond-
ent, the General Counsel for the National Labor Relations Board, herein called the
General Counsel, caused a complaint to issue on November 20, 1959, alleging that
Respondent had engaged in unfair labor practices within the meaning of Section
8(a) (1) and (3) of the National Labor Relations Act, as amended (61 Stat. 136),
herein called the Act.i
In its answer Respondent denied the commission of any of the unfair labor
practices.
Pursuant to notice, a hearing was held before John H. Dorsey, the duly designated
Trial Examiner, at Cartersville, Georgia, on February 23, 24, and 25, 1960. The
General Counsel and Respondent were represented by counsel. Two officials of
the Union filed appearances. The parties were afforded full opportunity to be heard,
to introduce relevant evidence, to present oral argument, and to file briefs. The
parties waived oral argument. Respondent and the General Counsel filed briefs.
Upon consideration of the entire record and the briefs of the parties, and upon
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a plant of Funkhouser Mills, Division of The Ruberoid Company.
The Company is a New Jersey corporation with its principal office and place of
business in New York City, and maintains a division office in Hagerstown, Mary-
land, a plant at Fairmount, Georgia, as well as other places where it is engaged in
the manufacture of roofing granules which are shipped from orders received from
the Hagerstown office. The Fairmount plant is the only one involved in this
proceeding.
Respondent, during the past calendar year, a representative year, shipped prod-
ucts valued in excess of $50,000 from its Fairmount, Georgia, plant to points out-
side the State of Georgia.
I find that Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The theory of the General Counsel's case
The fulcrum about which the issues in this case pivot is a representation election
held on April 7, 1959, pursuant to a Board's Decision and Direction of Election
issued on January 23, 1959. (Case No. 10-RC-4276, not published in NLRB
volumes.) z
The Union began its organizing campaign among the employees of Respondent in
November 1958. The results of the election, in which 50 employees voted, were:
36 for the Union; 10 against ; and 4 challenged ballots. On April 15, 1959, the
Union was certified as collective-bargaining representative.
1 The National Labor Relations Board Is referred to herein as Board.
e All dates are In the year 1959 unless otherwise shown.
FUNKHOUSER MILLS, DIV. OF THE RUBEROID COMPANY 521
The theory of the General Counsel's case is that: (1) Before the election Re-
spondent made statements threatening reprisals if the employees selected the Union
as their collective-bargaining representative; and (2) after the election Respondent,
in various alleged ways hereinafter specified, effectuated the threats. Elucidation
of the theory is found in the General Counsel's brief wherein it is stated: "It is con-
ceded at the outset that some of the alleged changes in and of themselves, if con-
sidered separately, could be classified as routine employee complaints, hardly the
basis for findings of unfair labor practices. However, if the many parts of the in-
tricate puzzle must be fitted together and then, and only then, does the picture of
the vindictive employer bent upon destruction of employee organizational efforts
emerge. .....
It is to be noted that the complaint does not allege that Respondent engaged in
any unfair labor practice prior to the election.
B. Findings with reference to specific allegations of the complaint
Whether Respondent engaged in any unfair labor practice must and will be de-
termined from the record as a whole. However, each of the various allegations
in the complaint is, in substance, an isolated incident. Therefore, to assure full
consideration and clarity the following format is employed: each ultimate fact allega-
tion, which it is averred constitute violations of Section 8(a)(3) and/or 8(a)(1)
of the Act, will be set forth, either verbatim (in quotes) or paraphrased, as a sub-
caption under which the evidence pertaining thereto will be marshaled and findings
made:
1.
"On or about April 7, 1959, Respondent by its supervisor and agent, Plant
Superintendent F. C. McConnell, denied employees the use of church facilities
located on Respondent's property"
Respondent owns some 20 homes in the immediate area of its operations at Fair-
mount where it provides rent-free housing to many of its employees. Some years
ago Respondent converted one of the houses into a church.
For a period, one of Respondent's employees, Sam W. Brown, a hoist operator,
also a minister, conducted services in the church. He discontinued this endeavor
about 11 months before the election.
Brown was a member of the Union. He testified that, "It seemed to me like
Mr. McConnell (the plant superintendent) wanted me to join it [Union]."
During the evening of the day of the election, April 7, McConnell, while talking
to Brown about another matter, not here material, told Brown that since he had
discontinued conducting services "the people" had arranged to have an outside min-
ister conduct services the following weekend; also, he would like Brown and Harley
Crider not to interfere with the efforts of the people who were trying to get another
minister. Crider, another of Respondent's employees, was also a minister. There
is no evidence that Crider ever conducted services in the church.
The record contains no evidence that the use of the church was denied to Re-
spondent's employees.
I find this allegation fails for lack of proof. I recommend its dismissal.
II.
"On or about April 8, 1959, and thereafter, Respondent, by its supervisor and
agent, Mine Foreman Bob Elrod, instituted the following changes in working
conditions ..."
The above is followed by five specific allegations, (a) through (e), each of which
is set forth preceding its consideration:
"(a) Reduced the length of lunch periods for employees"
Respondent's employees before and after the election were paid for their lunch
time. The employees were free to eat their lunch at any place they chose. Some
brought their lunch; others went home. The length of the lunch period was not
fixed. The practice was that the employees would take about 30 minutes. When,
in the opinion of the management, the employees would extend the lunch period
beyond a reasonable time they were informed.
The General Counsel produced witnesses who testified that Respondent reduced
the length of the lunch period after the election. This the Respondent denied. In
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .
the light of all the evidence I find that the same practice concerning the lunch period
prevailed after the election as before.
I. recommend dismissal of the allegation.
"(b) Discontinued providing helpers or assistance to employees employed as drillers"
Evidence adduced by the General Counsel was to the effect that prior to the elec-
tion the drillers had helpers to help set up their drills. Further, that Bob Elrod,
foreman, told the drillers, before the election that if the Union was selected they
would set up their own drills.
The full testimony of the General Counsel's witnesses corroborates the evidence
presented by Respondent that neither before nor after the election was there a job
classification of "drillers helper"; and the same practice prevailed in both periods:
when drillers or employees in other job classifications were available, including the
foreman, they would help in setting up the drills.
I find that this allegation is not supported by the evidence. I recommend its
dismissal.
"(c) Discontinued allowing absence from the mine location for any reason other
than replacement of broken equipment"
The uncorroborated testimony of one witness is that before the election the em-
ployees working in the mine were free to come out of the mine for anything they
needed; and, Foreman Elrod told the mine employees, after the election, that they
were not to come out unless they broke something.
I credit the testimony of Foreman Elrod that there was no reason for an employee,
without permission as provided for in the Company's rule book (furnished to all
employees), to absent himself from the mine except for broken steel, water, lunch
hour, emergency, or to go to the office; and no man had ever been stopped for
leaving for any of these reasons.
I find this allegation is not proven by credible evidence. I recommend its dismissal.
"(d) Required employees to work overtime without pay"
The usual workday for those working in the mine is from 7 a.m. to 3 p.m.
It is some distance from the mine to the Company's office where the timeclock
is located. Employees who clocked out before 3:15 p.m. were not paid overtime;
those who clocked out after 3:15 p.m. and before 3:30 p.m., through no fault of their
own, were credited with a half hour of overtime.
On an unspecified date after the election, Raiford Sutton, a driller, testified that he
clocked out at 3:16 p.m. and was not credited with overtime.
The Respondent's defense is that when it was noted in the office that Sutton had
clocked out at 3:16 p.m. it followed its practice of bringing this fact to the foreman's
attention for his investigation and report as to whether there was reason for the late
clocking and whether overtime should be paid. The foreman reported that Sutton
and another employee (Mauldin) had left the mine in ample time to clock out by
3:15 p.m. and Mauldin had. For this reason, which was communicated to Sutton,
he was not credited with overtime.
The General Counsel did not introduce any testimony to rebut the Company's
defense. Therefore, it stands unchallenged and must be accepted as true.
I find that Sutton, in accordance with the established practice by Respondent, was
not entitled to credit for overtime. I recommend dismissal of the allegation.
The record contains no other evidence that supports the allegation that Respondent
required employees to work overtime without pay.
"(e) Assigned extra work to employees without additional pay"
To substantiate this allegation the General Counsel called W. Harold Cox as a
witness. The substance of his testimony is that he was shifted temporarily from job
to job, some of which paid a higher rate than his rate; and he did not receive the
higher rate except when he was a driller for a 2-month period.
Cox's admission that he did the same jobs before and after the election at a
standard rate disposed of this issue. I find that there were no changes in his work-
ing conditions after April 8, as alleged. -
'I recommend dismissal of the allegation.
FUNKHOUSER MILLS, DIV. OF THE RUBEROID COMPANY 523
III.
"On or about April 8, 1959, and thereafter, Respondent, by its supervisor and agent,
Plant Superintent F. C. McConnell, denied its employees further use of a soft
drink vending machine"
These facts are admitted or undenied: For many years there had been a Coke
machine in or near Respondent's stockroom building. It was used by the employees.
They discarded the empty bottles, some of which were broken, all about the premises.
One employee testified that at times he spent 3 days a week picking up the bottles.
The machine attracted the children who lived in the Company's houses; also, the
wives of the employees. Some of the children would pull a wagon around the
plant, including around the plant's machinery, collecting empty bottles. The safety
hazard thus created had long been a matter of concern to the management and had
many times been the subject of discussion at safety meetings. Many times the
management requested the employees to cooperate in eliminating the hazard; not-
withstanding, the practice continued. The machine was disconnected by Respondent
the day after the election.
The issue raised by the pleadings is whether Respondent disconnected the ma-
chine to chastise the employees for having selected the Union as their collective-
bargaining representative. -
The testimony of the General Counsel's witnesses is that Perry Wood, a foreman,
on the day after the election, told a group of four employees that he had been to the
office and that, "Mr. McConnell [plant manager] said he was going to close it [the
Coke machine] and said Bill Frost [the assistant plant manager] told him [McCon-
nell] he had better not close, that he was asking for trouble if he did close it and
Mr. McConnell said, `If you want a Coca Cola you had better get one. I am going
to close the Coke machine. I am still boss here. I told the boys if they went Union,
that they would suffer for it and I am going to see that they do.' " 3
Perry Wood admitted having the conversation, but his version differs. According
to him he told the four employees: "We would have no more Cokes . Mr. Mc-
Connell had told me to cut it [the machine] off-for safety reasons . .." He denied
that he made the statements quoting Mr. McConnell and Bill Frost as set forth in the
above paragraph. Further, he testified that McConnell and Frost had not made such
statements, and his testimony in this regard was corroborated by McConnell and
Frost.
Wood testified that at lunch time, on the day the Coke machine was cut off, this
occurrence and the probable reasons for it was a subject of conversation among the
employees who assumed it had been done because of the election. And he had said,
"Under the circumstances it looks like it might be done that way."
I find that McConnell and Frost did not make the statements attributed to them
by the General Counsel's witnesses; also, that Wood did not say that they had made
such statements.
I find no probative value in Wood's statement that "under the circumstances it looks
like" 4 the machine was cut off because of the result of the election. It, like the
employees' assumption, is not proof.
I find the allegation is not proven by credible evidence. I recommend its dismissal.
IV.
"On or about April 8, 1959, and thereafter, Respondent reduced the working hours
and days of work of" 10 named employees
Succinctly, the testimony in support of the allegation is that: (1) prior to the
election the employees were working 40 or more hours a week; (2) after the elec-
tion, the 10 named employees,5 union members, worked only 2, 3, or 4 days a week;
and (3) nonunion employees, after the election, were working more hours per week
than the union employees.
Respondent's general manager testified that in April 1959 the volume of its busi-
ness decreased approximately 50 percent and the recession continued until October,
3The complaint contains another allegation as to what Perry Wood said. It is un-
necessary to consider it separately.
A Emphasis supplied.
O J. D. Adcock, Sam W. Brown , Hilly Cagle, Harold Cox, Robert Jenkins, James
Nichelson, Joe MacDennis Nichelson , Junior Martin , Houston D. Mulkey, and J. H Mauldin.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and, as a result, it was necessary to adjust working hours as required by the lessened
demands for production and maintenance . This testimony stands unchallenged in
the record.
The best evidence as to whether the 10 named employees were discriminated
against is found in two exhibits . One is the name and classification of each employee
and the number of hours he worked each week from the week ending March 2
through August 23, 1959. The other is a list of Respondent 's employees who are
or were members of the Union. Analysis of these exhibits proves that the 10 named
employees were not discriminated against in the manner alleged . Indeed, it reveals
that union members were not discriminated against. It does show , in some weeks, a
nonconsistent difference in hours among employees , some in the same classification.
Such a result is to be expected and is unavoidable when a manpower -production
equation gear to a 40-hour week is unbalanced because of diminution of the produc-
tion factor.
I find that the 10 named employees were not discriminated against as alleged. I
recommend dismissal of the allegation.
V.
"On or about July 1, 1959 , and thereafter , Respondent . assigned employees
James N . Nichelson, Grady Crider , and others to more arduous and onerous tasks
than those to which they normally would have been assigned"
James N. Nichelson : He is 65 years old and has been an employee of Respondent
since 1944 . His classification is "laborer ." The day after the election his foreman,
Glenn Cagle, advised the assistant plant manager , William J. Frost , that he was one
man short in the crew needed to load a car with 80-pound bags and the only man
available was Nichelson . Frost told Cagle to use Nichelson . Nichelson testified
that after he handled a few bags he told the "boys" working with him that , "it was
hurting me." His fellow workers then did his job . He further testified that he had
handled 80-pound bags before the election and this was the only occasion he had
done so after the election ; also, since then he had been assigned light work. The
facts that Nichelson was a member of the Union and, the day after the election,
he was assigned , what appears to have been , a burdensome job for a man of his
age, do not prove a violation of the Act . Job assignments are a prerogative of
management unless exercised in a manner prohibited by the statute or contract. I
find no such prohibited conduct . I recommend dismassal of the allegation.
Grady Crider : He is 24 years old and has been employed by Respondent since
1956. His classification is "laborer ." Throughout his employment he has been
shifted to different jobs. His testimony and the record as a whole do not show
that after the election he was assigned to "more arduous and onerous tasks." I
find that the allegation as to Crider has not been proven .6 I recommend its dismissal.
Further, I find that the allegation that "others " were assigned "to more arduous
and onerous tasks" fails for lack of proof. I recommend its dismissal.
VI.
"On or about July 11 , 1959 , Respondent . . . evicted employee John A . Temples
from rent-free housing accommodations provided by Respondent"
There is no dispute that on May 11, General Manager McConnell gave Temples
written notice to vacate by July 11 a company house which he had occupied rent-free
for approximately 12 years. The General Counsel did not produce the notice or
make demand of Respondent for a copy.
The uncontradicted testimony is that the house was occupied by Temples, his
wife, two children , and one granddaughter . Many times, prior to the date of the
eviction notice, Respondent had asked Temples to keep his children away from
the plant. He did not.
Two of Temples' daughters , 19 and 15 years of age, would visit the night watch-
man in his shack. At the time of the hearing the 15 -year-old daughter , unmarried,
was pregnant.
On four different occasions the night watchman called the assistant plant manager,
between 11 p.m. and 7 a.m ., to come to the plant because Temples' married sons
were there , drunk , and the night watchman could not control them
Various other reasons were given for the eviction . The foregoing , however, are
persuasive that Respondent had just cause to evict. I find that the eviction was
not motivated for reasons in violation of the Act.
e The General Counsel's brief makes no reference to this allegation.
FUNKHOUSER MILLS, DIV. OF THE RUBEROID COMPANY 525
Since the house was occupied by another member of the Union after it was
vacated by Temples, I attach no significance to the facts that Temples was known
by Respondent to be a member of the Union and the eviction followed the election.
I recommend dismissal of the allegation.
VII.
"On or about September 30, 1959, Respondent, by its supervisor and agent, Mine
Foreman Bob Elrod, prohibited the solicitation of funds by its employees on behalf
of its disabled employee, Houston Mulkey"
Respondent's rule book, a copy of which is given to all employees, prohibits
soliciting of funds unless authorized by the management. Usually, the employees
did not comply with the rule.
Sometime after the election, a collection was started for the benefit of Houston
Mulkey, a member of the Union, who was sick. The collector, Harold Cox, was told
by Foreman Bob Elrod, Mulkey's brother-in-law, to "start it through the office."
Thereupon, one of the employees requested permission from Plant Manager Mc-
Connell to proceed with the solicitation. McConnell "immediately told him to go
ahead with it and gave the fellow $5 and it was taken around.".
Since the above incident the employees have continued to solicit for the benefit
of fellow employees.
I find no violation of the Act and recommend dismissal of the allegation.
VIII.
The layoff and discharge of James E. Norrell
The complaint alleges that James E. Norrell was laid off for 3 days, on or about
April 15, and thereafter Respondent failed and refused to recall him. Further, on
or about July 3, Respondent discharged Norrell. These actions, it is alleged, were
in violation of Section 8(a) (1) and (3) of the Act.
Norrell's own testimony is eloquently persuasive that he was not discriminated
against because of his union membership.
Upon motion made by Respondent at the end of the General Counsel' s case, I
dismissed the allegations-for failure of the General Counsel to make a prima facie
case . In dismissing I stated that, in the opinion of the Trial Examiner, Norrell
was the unfortunate victim of conflicting instructions from the assistant plant
manager and quarry foreman; that while it appeared that Norrell was harshly dealt
with, the Act vests no jurisdiction to provide a remedy in the absence of proof of
antiunion animus or other prohibited motivations in violation of the Act, a test
which the General Counsel's case did not satisfy.
I have reviewed the record and reaffirm the ruling.
IX.
Surveillance-Interrogation
The complaint alleges that, on April 8, Foreman Bob Elrod "warned its employees
that it [Respondent] knew certain employees attended Union meetings and that it
knew what transpired." Also, on April 12 and September 8, Elrod interrogated
Respondent's employees "concerning Union membership, activities and desires."
Fairmount, Georgia, is a small community.
Many of Respondent's employees lived in company houses.
The testimony of the General Counsel's witnesses shows that they made it a point
to inform Respondent's supervisory personnel of their union membership; a course
of conduct which indicates an absence of fear of being discriminated against.
Undoubtedly, the Union organizational campaign, the election, and its result was
a much discussed topic among the employees and in the community.?
Under such circumstances Respondent could not help but know, or have reason
to believe, which of its employees were members of the Union and of the Union's
activities. Respondent admits as much.
It is noteworthy that the acts of surveillance and interrogation, as alleged, took
place after the election; no such acts are alleged to have occurred before the
election.
7 Foreman Elrod testified on cross-examination , in answer to the only question asked,
that he at no time ever had any conversation with any employees about the Union. This
I do not find to be true . In those instances in 'which I have credited Elrod 's testimony,
this f have considered.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that the acts of surveillance and interrogation, as alleged, did not in fact
occur. I recommend dismissal of the allegations.
X.
"On or about April 8, 1959, Respondent, by its supervisor and agent, Mine Fore-
man Robert Elrod, threatened its employees with more difficult work assignments
because the employees had selected the Union as their collective bargaining
representative"
One of the General Counsel's witnesses testified, after the election, Foreman
Elrod told him, "I told them boys if they voted the Union in, they would set them
(drills) up by themselves and I mean that very thing." And, after the election
Elrod measured the drill holes and said, "You are going to have to beat what you
are doing because you haven't got the footage since the Union was voted in except
two days." This is the only evidence which appears to have been offered in support
of the allegation.
The statement concerning the setting up of drills has been considered, supra,
and found to be without merit.
With reference to measuring footage drilled, Respondent offered evidence, un-
contradicted, that this measuring procedure was employed to determine production
both before and after the election; both before and after the election the employees
were brought to task if their production dropped; and after the election Foreman
Elrod did have occasion to bring a drop in production to the attention of employees.
I find that Foreman Elrod did not threaten the employees as alleged. I recommend
dismissal of the allegation.
XI.
Foreman Elrod, on or about September 11, informed the employees "that Respondent
would delay signing a collective bargaining agreement and such agreement would
- be of no benefit to the employees"
Raiford Sutton, a member of the Union's negotiating committee, testified that he
and Jaybird Mauldin had a conversation with Elrod on September 11 concerning
matters being negotiated; Elrod's comments were to the effect that they, did not
"tarry so long this time" and "I told you boys that you would get as much without
a union as you could with it. You told me you would have a contract within 90
days"; and that he further said words to the effect that the Union would get just
whatever the Company wanted them to have.
J. H. Mauldin's recollection of the conversation was that it took place after he an++
Sutton returned to work following a planned 2-day negotiation session which terms.
nated on the first day; and they met Elrod who said, "Well, you boys didn't tarry so
long this time . . . I told you boys that.you would get as much without. a union as
you could with it. You told me that you would have a contract within 90 days .. .
we would get just whatever they [Respondent] wanted us to have."
Elrod denied telling any employee that the Company would delay signing a
collective-bargaining agreement. Elrod also denies that he told any employee that
if an agreement was reached, it would be of no benefit to the employees. The other
statements attributed to Elrod, if made, I find to be privileged by Section 8(c)
of the Act.
I credit Elrod's, testimony, find the, allegation unsupported, and recommend its
dismissal.
^XII.
Seniority-Preelection statements
In some instances the General Counsel sought to establish his case by: (1) seniority,
and (2) statements made by Respondent prior to the election.
(1) Seniority: The record contains no evidence that Respondent had or followed
any seniority, policy. Consequently, comparative seniority has no probative value.
(2) Statements by Respondent before the election: Notwithstanding that it is not
alleged that these statements were in violation of the Act, they were properly admitted
in evidence. They were considered. But, since the ultimate facts pleaded were not
proven, it is not necessary to make findings as to them.
Conclusion
Each of the ultimate fact allegations of the complaint have been found not proven.
Therefore, when jointly considered, they do not establish a course of unlawful conduct
by Respondent, which supports the General Counsel' s proffered theory of the case.
FUNKHOUSER MILLS, DIV. OF THE RUBEROID COMPANY 527
The Union's organizational campaign , successfully culminating in winning the
election and the employees ' union memberships are not in themselves sufficient to
justify findings of violations . Proven facts, not suspicion or assumptions , are indis-
pensable . The minimal required essential evidence , which may be circumstantial, is
analogous to that needed to prove application of the tort principle of proximate cause.
First, it must be proven that damages were in fact incurred . Then, there must be
credible material and relevant evidence establishing that the damages suffered (viola-
tion of the Act) flowed and resulted from the proximate cause (union membership,
activities , etc.). The test is not fulfilled in this case.
Upon the basis of the above findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Funkhouser Mills, Division of The Ruberoid Company , is engaged in com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
2. United Cement , Lime and Gypsum Workers, Local Union 402, is a labor
organization within the meaning of Section 2(5) of the Act.
3. Because Respondent did not interfere with , restrain, or coerce its employees in
the exercise of the employees ' rights guaranteed in Section 7 of the Act , and did not
discriminate against its employees in regard to hire or tenure of employment or any
term or condition of employment to discourage membership in the Union in the ways
and manners alleged in the complaint , it did not violate Section 8(a)(1) and (3)
of the Act.
[Recommendations omitted from publication.]
SUPPLEMENTAL INTERMEDIATE REPORT AND
RECOMMENDED ORDER
The Executive Secretary of the National Labor Relations Board , herein called
the Board , did; on October 2'5, 1960 , "By direction of the Board ," issue in this
proceeding an order remanding the case to the Trial Examiner , herein referred to as
the Order . The Order is attached thereto and made part hereof as Appendix A.
Pursuant to the Order the Trial Examiner issued a notice of hearing and an
order that the parties file, on the basis of the existing record , proposed findings
of fact (with record references), conclusions of law (citing statutes , case law, and
other authorities relied on), and a brief in support of their respective contentions.
The hearing was held in Atlanta , Georgia, on December 15 , 1960 . 1 At the
opening of the hearing:
(a) Each of the parties filed with the Trial Examiner and served , each on the
other, their proposed findings of fact; conclusions of law, and brief in support.
(b) Concerning the alleged Section 8(a)(1) and (3 ) discharge case (Norrell),
the Trial Examiner advised that the hearing would be confined to Respondent
putting in its case in defense-the General Counsel to rebuttal evidence.
(c) Concerning the paragraph of the Order directing the • Trial Examiner to
rewrite his Intermediate Report, the Trial Examiner advised the parties that it raised
an issue asto whether the Board had the authority to issue such an order; and, if
the Trial Examiner complied, would it be prejudicial error . The Trial Examiner
directed the parties to file briefs on this point of law to assist him in its resolution.
The General Counsel expressed an unwillingness to file such a, brief stating that
the Board had ruled and the Trial Examiner was.bound . The Trial Examiner re-
sponded that the Board's jurisdiction is a question that is always subject to attack
before the Trial Examiner , the Board, and the courts.
The parties filed briefs . The General Counsel 's brief was addressed only to the
Section ,8 (a) (1) and ( 3) case. With reference to the legal issue described , above,
it stated:
the General Counsel respectfully declines to file the requested brief
relating to the Board 's jurisdiction to remand the case . We believe that it is
wholly inappropriate for the General Counsel to file such a brief . The Trial
Examiner is bound by Board decisions and directions and, therefore, the
General Counsel ought not be placed in the anomalous position of attempting
to defend a Board direction to a Trial Examiner?
All dates herein are in the year 1960 , unless otherwise indicated
2 This is incongruous . In the exercise of the long-established relationship between the
trial lawyer and the court in an adversary proceeding, the fulfillment of the judicial
process places a responsibility on the trial ' lawyer , as an advocate, to file such briefs as
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon consideration of the entire record and the briefs of the parties; upon obser-
vation of the witnesses; interpretation and application of the Administrative Pro-
cedure Act, herein referred to as APA; the National Labor Relations Act, as
amended, herein referred to as the Act; the Board's Rules and Regulations, Series
8, herein referred to as Rules or Rule, and the Board's Statements of Procedures
(published pursuant to Section 3(a)(2) of the APA), herein referred to as Pro-
cedures; and a memorandum to Trial Examiners from the Chief Trial Examiner-
"Guidelines for Intermediate Reports"-dated February 25, 1959, the duly desig-
nated Trial Examiner makes the following findings and conclusions:
I. -
The Board Has No Authority To Remand a Case to a Trial Examiner With Directions
To Rewrite, and How To Write His Intermediate Report
The paragraph of the Order considered under the above caption reads:
As to the Intermediate Report generally, the Board finds, in agreement with
the General Counsel, that it does not adequately set forth "findings of fact,
conclusions, and the reasons or basis therefor, upon all material issues of fact,
law or discretion presented on the record" as required by the Board's rules,
Section 102.45 NLRB Rules and Regulations, Series 8. In his Intermediate
Report, the Trial Examiner has failed to set forth any evidence offered by the
General Counsel respecting the Respondent's (1) pre-election conduct, and also
has (2) failed to resolve conflicts in testimony respecting that conduct. Further
(3) the Trial Examiner in his Intermediate Report has made broad conclu-
sions of fact respecting the various allegations in the complaint, but has failed
to set forth the relevant evidence offered by the General Counsel and the Re-
spondent by way of testimony and exhibits, has failed to set forth an analysis
(including resolutions of credibility) of that evidence, and has failed to set
forth reasons for his ultimate factual findings. Because of these deficiencies in
the Intermediate Report, the Board shall, as part of its order remanding the
case, direct that the Trial Examiner prepare a Supplemental Intermediate
Report containing proper findings and conclusions.
A. Prologue
At this date it would be superfluous to detail the legislative history of APA and
the ills which it sought to remedy, They are hornbook to the barrister. Suffice to
say that the Congress vested Trial Examiners 3 with delegated powers with the intent
and purpose of divesting them from Board direction in the exercise of their judgment;
this, to assure that the Trial Examiner will preside and decide independently and
impartially in satisfaction of the constitutional guarantee of due process .4
the court may request as an aid to effectuate justice. In this case it is particularly re-
grettable in that the Order states that the Board issued it "in agreement with the
General Counsel"
Under the Board 's procedures the Trial Examiner is divested of jurisdiction of the
case upon issuance of his Intermediate Report . Rules and Regulations , Section 102 45,
Series 8. The Trial Examiner is not a party to the proceedings before the Board. He has
no knowledge as to the content of the exceptions , briefs, and oral arguments presented to
the Board by the parties. Rules and Regulations , Section 102 . 48, et Seq. It would seem
logical, and a matter of professional courtesy , that the General Counsel would make known
to the Trial Examiner the arguments that he made before the Board and upon which the
Board relied.
8 Referred to in APA as "examiners."
4 Unfortunately , the APA does not completely divorce Trial Examiners from all control
by the Board . They remain employees of the Board under its administrative control.
Trial Examiners do not have secretaries or law clerks. They are, it seems, considered
fellow employees by other employees of the Board including the Board 's staff and the
General Counsel's office. They are in the anomalous position of not being fully inde-
pendent or dependent.
There is much merit in the recommendations of the American Bar Association and the
Hoover Commission 's Reports that an administrative law court be established. Until
Trial Examiners are completely divested from any relationship with quasi -judicial agencies,
other than that as prevails between a trial and appellate court, the independence visualized
in the APA cannot be attained.
Predicated upon the experience of the Trial Examiner the dignity of courtroom pro-
cedures in adversary administrative cases is not possible unless the presiding officer is a
FUNKHOUSER MILLS, DIV. OF THE RUBEROID COMPANY 529
The National Labor Relations Act was enacted to protect interstate commerce.
Its enforcement has as its objective the protection of a public policy; not private
rights. The General Counsel represents neither the labor organization, employer, or
individual who initiates the case by filing a charge. He represents the public. Bene-
fits which may accrue to a private party are not a matter of right. They are, instead,
incidental to the effectuation of the public policy.
The foregoing is set forth to establish the perspective necessary to interpretation
and application of law pertinent to the issue as to whether the Board can direct a
Trial Examiner to rewrite an Intermediate Report as set forth in the Order.5
B. The law
Set forth herein below are pertinent provisions of statutes, and rules and regulations
and published procedures having the force and effect of law, the interpretation and
application of which resolve the issue:
1. The Administrative Procedure Act
SEC. 3. (a) RULES.-Every agency shall separately state and currently publish
in the Federal Register. . . (2) statements of the general course and method by
which its functions are channeled and determined, including -the nature and
requirements of all formal and informal procedures. . . . No person shall in
any manner be required to resort to . . . procedure not so published.
SEC. 5. (c) SEPARATION OF FuNcnoNs.-The same officers who preside at the
reception of evidence pursuant to section 7 shall make the recommended de-
cision.... no such officer shall consult any' person or party on any fact in
issue 6 . ; nor shall such officer be responsible to or subject to the supervision
or direction of any officer, employee, or agent engaged in the performance of
investigative or prosecuting functions. . . .
* * * * * * *
SEC. 7. In hearings which section 4 or 5 requires to be conducted pursuant to
this section-
(a) PRESIDING OFFICERS.- ... The functions of all presiding officers and
of officers participating in decisions in conformity with section 8 shall be con-
ducted in an impartial manner... .
(b) HEARING POWERS.-Officers presiding at hearings shall have authority,
subject to the published rules of the agency and within its powers, to . .
(5) regulate the course of the hearing . (8) make decisions or recommend
decisions in conformity with section 8, and (9) take any other action authorized
by agency rule consistent with this Act .7 [Emphasis supplied.]
* * * * * * *
SEC. 8. In cases in which a hearing is required to be conducted in conformity
with section 7-
(a) ACTION BY SuBoRDINATEs.-In cases in which the agency has not pre-
sided at the reception of the evidence, the officer who presided . . . shall
"judge" vested with the inherent powers to hold obstreperous attorneys and witnesses in
contempt. Further, "judges" of an administrative law court could sit on adversary cases
initiated by all the quasi-judicial agencies. Confinement to the cases of one agency tend
to instill too much emphasis on a single factor of the public policy-economic equation.
Broader experience generates greater perception.
The competent attorney, sitting as a "judge," is qualified to sit on any type of case.
The principles of the rules of evidence , interpretation , and application of law have been
established through centuries of jurisprudence They are uniformly applicable , whatever
the issue may be. Quasi-judicial agencies are by statute "experts" in interpreting the
facts; they are not necessarily "experts" in finding the facts
5 Nothing herein contained is to be construed as implying that the Intermediate Report
herein involved may not be criticized . It would be a rare instance In which an opinion
written by a judge or an attorney would not be criticized by others. Assuming, arguendo
that the Intermediate Report leaves much to be desired by the Board and its staff, is net
here material. The Issue Is a legal one: The Board being critical of the content of an
Intermediate Report does it have the authority to direct the Trial Examiner to rewrite
it in accord with a formula of its own choosing? Further, If the Trial Examiner com-
plied , would it be prejudicial error?
6 This, obviously, includes the Board.
7 Emphasis Is supplied unless otherwise indicated.
634449-62=vol . 135-35
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
initially decide the case.. . On appeal from or review of the initial decisions
of such officers the agency shall . . . have all the powers which it would have
in making the initial decision ... .
(b) SUBMITTALS AND DECISIONS.- ... All decisions (including . rec-
ommended . decisions) shall become a part of the record and include a
statement of (1) findings and conclusions, as well as the reasons or basis there-
for, upon all the material issues of fact, law, or discretion presented on the
record
SEC. 9. In the exercise of any power or authority-
(a) IN GENERAL.-No . . . order [shall] be issued except within jurisdiction
delegated to the agency and as authorized by law.
2. The Board's Rules and Regulations, Series 8
SEC. 102.35. Duties and powers of trial examiners.- . . . The trial examiner
shall have authority, with respect to cases assigned to him, between the time he is
designated, and transfer of the case to the Board, subject to the Rules and Regu-
lations of the Board and within its powers:
* * * * * *
(i) To make and file intermediate reports in conformity with section 8 of the
Administrative Procedure Act;
* * * * * * *
SEC. 102.45. Intermediate report and recommended order; contents; service;
transfer of the case to the Board; contents of record in case.-
(a) After hearing for the purpose of taking evidence upon a complaint, the
trial examiner shall prepare an intermediate report and recommended order,
but the initial decision shall be made by the Board. Such report shall contain
findings of fact, conclusions, and the reasons or basis therefor, upon all material
issues of fact, law, or discretion presented on the record, and the recommended
orders shall contain recommendations as to what disposition of the case should
be made, which may include, if it be found that the respondent has engaged in
or is engaging in the alleged unfair labor practices, a recommendation for such
affirmative action by the respondent as will effectuate the policies of the act.
The trial examiner shall file the original of the intermediate report and recom-
mended order with the Board and cause a copy thereof to be served upon each of
the parties. Upon the filing of the report and recommended order, the Board
shall enter an order transferring the case to the Board and shall serve copies of
the order, setting forth the date of such transfer, upon all the parties. Service
of the intermediate report and of the order transferring the case to the Board
shall be complete upon mailing.
3. Board's Statements of Procedure published pursuant to section 3(a)(2) of
the Administrative Procedure Act
SEC. 101.11. Intermediate report (recommended decision).-(a) At the con-
clusion of the hearing the trial examiner prepares an intermediate report (recom-
mended decision) stating findings of fact and conclusions, as well as the reasons
for his determinations on all material issues, and making recommendations as
to action which should be taken in the case. The trial examiner may recom-
mend dismissal or sustain the complaint, in whole or in part, and recommend
that the respondent cease and desist from the unlawful acts found and take
action to remedy their efforts.
.SEC. 101.12. Board decision and order.-(a) If any party files exceptions to
the intermediate report, the Board, with the assistance of the legal assistants to
each Board member who function in much the same manner as law clerks do
for judges, reviews the entire record, including the trial examiner's report and
recommendations, the exceptions thereto, the complete transcript of evidence,
and the exhibits, briefs, and arguments. The Board does not consult with mem-
bers of the trial examining staff or with any agent of the general counsel in its
deliberations. It then issues its decision and order in which it may adopt,
modify, or reject the findings and recommendations of the trial examiner.. . .
[Emphasis supplied.]
C. The Board's promulgated guidelines for Intermediate Reports
McKinsey and Company, made an analysis of the Board's operations and made its
report to the Board. Concerning the Trial Examiner's Division, the report recom-
mended, in part, that the Chief Trial Examiner provide "examiners with specific
FUNKHOUSER MILLS, DIV. OF THE RUBEROID COMPANY 531
guidelines for preparation of concise reports that will best meet the Board's needs and
requiring examiners to adhere to them."
The Board adopted the recommendation. The Chief Trial Examiner, as directed
by the Board, did, on February 25, 1959, issue a memorandum to all Trial Exam-
iners-"Guidelines for Intermediate Reports." The following quotes are from the
memorandum:
1. The program. Manifestly the highly personalized nature of the Intermedi-
ate Report makes it inadvisable to attempt to lay down invariable rules govern-
in its production. .
Directing a Trial Examiner what to find or decide is neither lawful nor
desirable.. . .
2. The report in general. The desired Intermediate Report is one which
disposes of all issues succinctly, correctly, and persuasively. To that end it
should be no longer than justice demands and no shorter than it requires. Con-
sistent with fair decision emphasis should be on brevity and conciseness. Facts
are never equal. There are master facts and subordinate facts. Give the
master facts the weight and influence they deserve. You can do this more
effectively by underplaying and curtailing the subordinate facts. The crucial
facts on which the issues really turn then stand out and are more easily recog-
nizable by the reader. While it is impossible to state how long or how short an
Intermediate Report should be, there is a tendency on the part of some Exam-
iners to over-write Reports. This is to be avoided.
An Intermediate Report should perform three basic functions: It should
(1) describe the nature of the problem, (2) find the facts and considerations
requisite to the disposition of the problem, and (3) decide the problem. Within
each of these functions there is much latitude for individual approach, and in
the final analysis decision as to what tack is preferable must be left to the Trial
Examiner himself.
4. The findings. . . . Wholesale quotation of the transcript as a substitute
for analysis and condensation must not be employed. .. .
D. Conclusions
1. The congressional mandate as to the content of an Intermediate Report
has been complied with
The congressional mandate as to the content of an Intermediate Report is that it
shall include "findings and conclusions, as well as the reasons or basis therefor, upon
all the material issues of fact, law, or discretion presented on the record." 8 This
is repeated in the Board's Rules and Regulations.9 Whether the Board has the
power to amend its Rules and Regulations to enlarge upon the mandate need not
here be decided.
This Trial Examiner, to assure that he had considered all the evidence and con-
tentions of the parties, did, after the remand, order each party to file findings of
fact, conclusions of law, with brief in support. After careful study of these docu-
ments the Trial Examiner concludes that he considered and weighed all the evidence
and contentions in making the findings and conclusions set forth in the Intermediate
Report Therefore I find that the Intermediate Report satisfies the test prescribed
in the congressional mandate.
Concerning resolution of conflicts in testimony compelling findings as to credi-
bility it is not necessary to set forth each and every conflict and make a finding
as to which is credited. From the findings made it must be conclusively presumed
that any evidence to the contrary is not credited. The Board recognizes and has
held that only the Trial Examiner who has observed the demeanor of the witnesses
is qualified to determine credibility.10 It cannot be determined from a transcript.
Appellate courts have consistently so held
8APA, section 8(b), supra
6 Section 101 11, supra,
101n Bryan Brothers Pachinq Company, 129 NLRB 285, footnote 1, the Board said
We adopt the Trial Examiner's resolutions of credibility in this case only insofar a,
his findings are based upon his observation of the witnesses and their demeanor at
the hearing However, we do not adopt his analysis of the credibility of the wit-
nesses to the extent such analysis appears to be based upon needless speculation aA
to the witnesses' conduct with respect to minor details.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Board's Statements of Procedure estop it from remanding to
rewrite an Intermediate Report
Even assuming, arguendo, that the Intermediate Report does not satisfy the stand-
ards prescribed in the congressional mandate, the Board is estopped by Section
101.12, supra, of its own Statements of Procedure from remanding the case to a
Trial Examiner to rewrite an Intermediate Report. That section, or any other sec-
tion of the Statements of Procedure, provides for no such procedure. The language
of Section 101.12 is unambiguous. Once the case is transferred to the Board, after
issuance of the Intermediate Report, the action of the Board is confined to adopting,
modifying, or rejecting the findings and recommendations of the Trial Examiner.
Since the Board makes the initial decision 11 it can unquestionably be critical of
the Intermediate Report, disregard it in toto, and "with the assistance of the legal
assistants to each Board member who functions in much the same manner as law
clerks do for judges" review the entire record and draft, de novo, findings of fact,
conclusions of law, and issue its Decision and Order. Should the Board decide
upon such a procedure it would, in conformity with established legal procedures,
have the power to remand the case to the Trial Examiner for resolution of questions
of credibility which it deems necessary to the exercise of its judgment.
3. Prejudicial error
Inasmuch as no person shall in any manner be required to resort to procedures
not published pursuant to Section 3(a) of the Administrative Procedure Act; and,
since the Board's published Statements of Procedure do not provide for a remand to
a Trial Examiner to rewrite an Intermediate Report in a manner directed by the
Board, I find that to comply with the provision of the Order set forth in this sec-
tion I, supra, would be prejudicial error.
U. RESPONDENT'S PREELECTION CONDUCT
The paragraph of the remand order considered in section I, above, contains the
following: . the Trial Examiner has failed to set forth any evidence offered
by the General Counsel respecting the Respondent's preelection conduct, and also
has failed to resolve conflicts in testimony respecting that conduct."
In the Intermediate Report the Trial Examiner found it unnecessary to consider
such background evidence in that he found that the ultimate facts, pleaded in the
complaint as unfair labor practices, were not proven.
The background evidence which the General Counsel adduced at the hearing
would, if credited, be a violation of Section 8(a)(1) of the Act. It was not
pleaded as such in the complaint. Most of it could have been since it did not occur
more than 6 months prior to the filing of the charge.12
The Respondent's preelection conduct, introduced as background evidence, con-
sisted of antiunion statements and threats of reprisals if the Union was selected by
the employees as their collective-bargaining representative. That statements of such
character were made by Respondent, I so find. But the statements cannot be con-
sidered in vacuo. In weighing them it must be borne in mind that most of Respond-
ent's employees lived in houses owned by Respondent (a company town) and that
the adjacent town of Cartersville, Georgia, had a population of approximately 1,000.
That in such an environment there would be a close relationship between Respond-
ent's supervisors and the employees, and the organizational campaign of the Union
would be an event which would be a subject of daily conversation, is unquestion-
able. The conversants spoke in a manner to which they were accustomed and not
as legal technicians.
The General Counsel's witnesses convinced this Trial Examiner that the state-
ments did not concern them as more than conversation. This is supported by the
fact that the Union won the election, 36 to 10 votes.
Under such circumstances this Trial Examiner finds that the statements would-
not be a violation of Section 8(a)(1) of the Act, if pleaded; but, instead were
privileged by Section 8(c) of the Act.
III. THE NORRELL CASE
The complaint alleges that Respondent, on or about April 15, 1959, laid off
James E. Norrell for 3 days and discharged him on July 3, 1959, all in violation of
. Section 8 (a) (3) and (1) of the Act.
u Section 102.45, Rules and Regulations, supra.
-12 Section 10(b) of the Act.
FUNKHOUSER MILLS, DIV. OF THE RUBEROID COMPANY 533 ,
At the conclusion of the Board's case, on motion made by Respondent, the Trial
Examiner dismissed the allegations as to Norrell, since in his opinion the General
Counsel had failed to make a prima facie case.
The remand order contains the following:
With respect to the 8(a)(3) allegation in the complaint concerning Norrell,
the General Counsel offered evidence to the effect that (1) several employees
were originally informed that Norrell's layoff in April was for only 2 or 3
days, (2) the Respondent always considered Norrell a capable and valuable
employee, (3) following Norrell's layoff, Union representatives continually
pressed the Respondent for Norrell's reinstatement, and the Respondent on
several occasions replied that Norrell would not be reinstated so long as the
Union persisted in seeking his recall, and (4) in July some 21/z months after
the layoff, the Respondent discharged Norrell, advancing no reason for this
action other than that which was supposed to have been the basis for just a
2 or 3 day suspension. In addition to the above the General Counsel offered
evidence to the effect that the Respondent was openly hostile to the Union.
The Board finds that the foregoing was sufficient to establish a prima facie
case of violation of Section 8(a)(3) and (1) of the Act. Accordingly, the
Board finds that the Trial Examiner erred in dismissing this allegation of the
complaint upon the record before him, and that ruling is hereby set aside.
The Board, however, is not prepared on the present record to determine, as the
General Counsel urges, whether the Respondent did in fact commit the violation
alleged, since, in view of the dismissal at the close of the General Counsel's
case, the Respondent has not had an opportunity to present its defense as to this
allegation. A remand of this case to the Trial Examiner for further proceedings
is thus necessary.
The Board, unquestionably, had the authority to overrule the Trial Examiner and
remand the case to give Respondent the opportunity to present its defense and the
General Counsel to introduce rebuttal evidence.13
Norrell and his corroborating witness, H. L. Jenkins, were evasive witnesses. Each
of them created the impression that they were evading testifying to the whole truth
as to the occurrence which led to Norrell's layoff. I do not credit their testimony.
The General Counsel in his brief to the Trial Examiner, subsequent to the hearing
on remand, has withdrawn from his contention that Norrell was laid off for 3 days,
on April 15, 1959, in violation of Section 8(a)(3) and (1) of the Act. The issue
remaining is that Norrell was discharged on July 3, 1959, because of the persistent
efforts of the Union to have him reinstated.
Norrell was employed in the summer of 1958 as a laborer. He joined the Union.
There is no evidence that he was active in its organization. If Respondent was intent
on discharging any employee because of antiunion animus, it is inconceivable that
they would select Norrell, whom they admitted was a good worker.
True, after his discharge, the Union which had just won the election, sought to
have Respondent reinstate him.
While the failure to discharge Norrell until July 3, some 21/2 months after his
layoff, and after the Union had aggressively sought to have Respondent reinstate
Is This case points up certain areas in which a Trial Examiner lacks control of the
proceedings before him and failure of some attorneys to adhere to procedures which are
pro forma in a court.
In his brief to the Trial Examiner , prior to the issuance of the Intermediate Report, the
General Counsel did not set forth an argument as to why he thought the Trial Examiner
erred in dismissing the Norrell case . This is contrary to the usual courtesy extended to a
judge by experienced trial counsel. While the case was pending before the Trial Examiner,
counsel , as an advocate, should extend every ethical aid to obtain consideration of his
contentions. Evidently, the General Counsel conformed to this standard when the case
was transferred to the Board.
Under the Board's Rules and Regulations the parties "may" submit briefs The Board
might consider amending its Rules and Regulations to make it mandatory that the parties
submit briefs, proposed findings of fact, and conclusions of law, when directed to do so
by the Trial Examiner. Further, that exceptions not noted and argued in these docu-
ments cannot be raised before the Board. Such a revision would have a two-fold beneficial
result, (1) The Trial Examiner would be fully informed as to the contentions of the
parties and their arguments in support: and (2) the issues in a case would be limited
when it came before the Board for consideration.
A further suggestion is that the Board, prescribe a-format for briefs to the Trial
Examiner which could be patterned after the rules of United States courts of appeals.
Many of the briefs now filed are of little assistance.
53' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him, creates a suspicion , this Trial Examiner is persuaded by Norrell's admitted fail-
lire to apply, at any time after his layoff, for reinstatement . It cannot be assumed
that had he reported for work after the 3 days or applied for reinstatement, that
,the Respondent would have refused to reinstate him. It is the opinion of this Trial
Examiner that the burden for reporting for work , after the layoff , was Norrell's.
At .the hearing, after remand , the General Counsel made an offer to prove that
Respondent , at some time after the initial hearing , told the Union that if Norrell
applied at the Respondent 's office he would be considered for reemployment; and
the Union took the position that Respondent should tell it and it in turn tell Norrell
that he was reinstated .14 The offer of proof was rejected because: ( 1) it was not
proper rebuttal ; and (2 ) no foundation had been laid for introducing newly dis-
covered evidence.
I find that Norrell was not discharged in violation of Section 8(a) (3) and (1) of
the Act as alleged in the complaint.
[Recommendations omitted from publication.]
11 While the Union had the right to bargain for Norrell 's reinstatement , it had no right
to insist that Respondent hire through the Union. The evidence indicates that both
Respondent and the Union were more interested in what they thought were principles
than In the employment of Norrell.
APPENDIX A
ORDER REMANDING CASE TO TRIAL EXAMINER
Hearing upon the complaint herein was held before Trial Examiner John H.
Dorsey on February 23, 24 and 25, 1960. On February 24, 1960, on motion of the
Respondent at the close of the General Counsel's case, the Trial Examiner dismissed
the complaint insofar as it alleged that the Respondent had violated Section 8(a)(3)
and (1) of the Act by failing to recall and by discharging James E. Norrell. On June
23, 1960, the Trial Examiner issued his Intermediate Report reaffirming his ruling of
dismissal and further finding that the Respondent had not engaged in the other unfair
labor practices alleged in the complaint, and recommending that the complaint be
dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the
Intermediate Report and a supporting brief. A brief in support of the Intermediate
Report was filed by the Respondent.
The General Counsel excepts, inter alia, to the Trial Examiner's dismissal of the
8(a) (3) allegation. The General Counsel also contends that the *Intermediate Report
does -not satisfy the Board's rules.
With respect to the 8 (a) (3) allegation in the complaint concerning Norrell, the
General Counsel offered evidence to the effect that (1) several employees were
originally informed that Norrell's layoff in April was for only 2 or 3 days, (2) the
Respondent always considered Norrell a capable and valuable employee, (3) follow-
ing Norrell's layoff, union representatives continually pressed the Respondent for
Norrell's reinstatement , and the Respondent on several occasions replied that Norrell
would not be reinstated so long as the Union persisted in seeking his recall, and (4)
in July, some 21/2 months after the layoff, the Respondent discharged Norrell, ad-
vancing no reason for this action other than that which was supposed to have been
the basis for just a 2- or 3-day suspension. In addition to the above, the General.
Counsel offered evidence to the effect that the Respondent was openly hostile to the
Union.
The Board finds that the foregoing was sufficient to establish a prima facie case of
violation of Section 8(a) (3) and (1) of the Act. Accordingly, the Board finds that
the Trial Examiner erred in dismissing this allegation of the complaint upon the
record before him, and that ruling is hereby set aside . The Board , however, is not
prepared on the present record to determine, as the General Counsel urges, whether
the Respondent did in fact commit the violation alleged, since, in view, of the dis-
missal at the close of the General Counsel's case, the Respondent has,not had an
opportunity to present its defense as to this allegation. A remand of this case to the
Trial Examiner for further proceedings is thus necessary.
As to the Intermediate Report generally, the Board finds, in agreement with the
General Counsel, that it does not adequately set forth "findings of fact, conclusions,
and the reasons or basis therefor, upon all material issues of fact, law or discretion
presented on the record" as required by the Board 's Rules, Section 102.45, NLRB
Rules and Regulations, Series 8. In his Intermediate Report, the Trial Examiner
has failed to set forth any evidence offered by the General Counsel respecting the
Respondent's preelection conduct , and also has failed to resolve conflicts in testimony
FUNKHOUSER MILLS, DIV. OF THE RUBEROID COMPANY 535
respecting that conduct. Further, the Trial Examiner in his Intermediate Report has
made broad conclusions of fact respecting the various allegations in the complaint,
but has failed to set forth the relevant evidence offered by the General Counsel and
the Respondent by way of testimony and exhibits, has failed to set forth an analysis
(including resolutions of credibility) of that evidence, and has failed to set forth
reasons for his ultimate factual findings. Because of these deficiencies in the Inter-
mediate Report, the Board shall, as part of its order remanding the case, direct that
the Trial Examiner prepare a Supplemental Intermediate Report containing proper
findings and conclusions.
IT IS HEREBY ORDERED that the above-entitled case be, and it hereby is, remanded to
the Trial Examiner for further proceedings consistent with this Order, including such
additional hearing as may be necessary and the preparation and issuance of a Supple-
mental Intermediate Report setting forth findings of fact, conclusions of law, and
recommendations in conformity with the Board's Rules and Regulations.
SECOND SUPPLEMENTAL INTERMEDIATE REPORT
Statement -
By order of the Board dated July 19, 1961, this case was remanded to the Trial
Examiner "for the preparation and issuance of a Second Supplemental Intermediate
Report setting forth findings of fact, conclusions of law and recommendations in
conformity with the Board's remand Order of October 25, 1960, and with the Board's
Rules and Regulations as explicated" therein.
The explication:
It was not enough for the Trial Examiner to make mere broad conclusions with
respect to the allegations of the complaint, as he did in his original Intermediate
Report, without setting forth the relevant evidence supporting these conclusions
and without an analysis of the evidence, including resolutions of credibility, to
show how he arrived at his conclusions. . . . His Report must show on its
face what he had considered, and how, in reaching his findings of fact and
conclusions of law.
As authority for its power to remand, in the posture of this case, the Board cites
Section 102.48 of its Rules and Regulations.
Supplement Pursuant to the Order of Remand
In those instances in which credibility findings are indispensable, the findings of
this Trial Examiner in this report are based upon his observations of the demeanor
of the witnesses.'
In the Intermediate Report the findings with reference. to the specific allegations
of the complaint are set forth in section B, subsections I through XII. The captions
of the. subsections are repeated herein, below, and such as appears, under each,
supplements that subsection of the Intermediate Report:
B. Findings with reference to specific allegations of the complaint
I
"On or about April 7, 1959, Respondent by its supervisor and agent, Plant Superin-
tendent F. C. McConnell, denied employees the use of church facilities located on
Respondent's property"
A reexamination of the record confirms that it contains no evidence that Respond-
ent "denied" any employee the use of church facilities.
H.
"On or about April 8, 1959, and thereafter, Respondent, by its supervisor and agent,
Mine Foreman Bob Elrod, instituted the following changes in working
conditions . . .
The above is followed by five specific allegations , (a) through (e), each of which
is set forth preceding its consideration:
1 See, Salim, Demeanor Evidence: Elusive and Intangible Imponderables , 47 A.B.A.J.
580 (June 1961).
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"(a) Reduced the length of lunch periods for employees"
Junior Martin , employed as a driller , testified that after the election he was told
that the employees would have only 15 to 20 minutes to eat dinner-the employees
were paid for 8 hours and "we are going to work them." The record fails to make
clear the identity of the representative of Respondent who is supposed to have made
the statement. Before the election, the employees took 30 minutes for dinner. Under
cross-examination Martin testified:
Q. You are paid during the lunch hour at the plant?
A. Yes, sir, we are paid.
Q. And some employees bring their lunch and eat it in their cars close to the
entrance of the mine and others get in their cars and drive home and come back?
A. Yes, sir.
Q. Before the election came in, he told a lot of people to get on back to work,
hasn 't he, as well as since the Union?
A. I hadn't heard.
Q. You have only heard it since?
A. Yes.
Q. You don't know whether he told them before the union was voted in to
get on back to work in a certain period of time?
A. No, sir.
J. W. Thurman , a driller , testified that before the election the lunch period was
30 or 40 minutes and was cut down to "about" 20 minutes after the election when
Foreman Bob Elrod said , "Boys go back to work just as quick as you eat ." Under
cross-examination he testified , "Bob Elrod . He didn 't exactly say 20 minutes. He
said, `As quickly as you can eat .' And I said it was around 20 minutes."
Raiford Sutton , a driller, testified that after the election the employees were get-
ting only 20 minutes for lunch but that prior to the election they were getting 30
minutes. No supervisor told him this . Under cross-examination Sutton testified:
When for any reason all the men were to come out of the mine , the lights would be
blinked three times. At the lunch period , the beginning of the period , the lights
would be blinked three times, the men would come out and eat their lunch, and they
would return to work without any signal. Also that there had been no time limit
by the clock put on the length of the lunch period either before or after the Union
came into existence.
McConnell , Respondent 's plant manager , testified that for some years prior to
the advent of the Union there had never been any fixed lunch period . The employees
ate their lunch on the premises or went home as they chose . When they finished their
lunch they returned to work . The employees are paid for the time they take for
lunch.
Foreman Elrod testified that he lived about a quarter of a mile from the mine
entrance . He went home to lunch. It took 20 to 25 minutes . The lunch periods
were not reduced after the election . Both before and after the election when it
appeared to him that the employees were taking too long for lunch he would call it
to their attention.
I credit the testimony of Plant Manager McConnell and Foreman Elrod.
"(b) Discontinued providing helpers or assistance to employees employed
as drillers"
Junior Martin , a driller , testified that before the election he would have a helper
and that when they would set up a "big shot" three men would be assigned . Further,
"the day after the election , on the morning , we went in there and me and Houston
Mulkey and Wayne-he helped us , take down ground and me and Houston went and
sat down and got the bones, picked them up and Bob Elrod said , `Lay down those
bones, Houston . I told them boys if they voted the Union in , they would set them
up by themselves and I meant that very thing.' " On cross-examination Martin
testified: ,
Q. . . When you drill , do you usually have five drillers at one - time working
or are there two that are usually working?
A. On a big shot , they usually put two of us on there but they put the third
man in there before the Union was voted in to take the ground up and get set up.
Q. To clean up?
A. Yes, and the two drillers would stay.
Q. The two drillers would stay?
A. Yes.
FUNKHOUSER MILLS, DIV. OF THE RUBEROID COMPANY 537
Q. When the drillers set up their drillers, you and one other driller would
be working and you had to set up your drill, didn't you?
A. Yes sir.
Q. Would you help the other drillers?
A. Yes, sir.
Q. And occasionally, if somebody else wasn't busy, he would come over
and help set up a drill; is that right?
A. Yes.
Q. Now that's the man that you call the helper; is that right?
A. Well, he helps set up; yes.
Q. He helps set up, but he is the man that did any job around there that
he was told to do like cleaning up and any other work and if he loose or
anybody wasn't busy and you needed somebody to help you to set up a drill,
he would come over or Mr. Elrod would send him over to help you?
A. Yes.
Q. Now, if just two of you were there, it required two of you to set up a
drill; didn't it? You would help the other man to set up and he would help
you; right?
A. Yes.
Q. Suppose you were the only drill there and you had to set up a drill,
then you had to have a helper; didn't you?
A. Yes, you can't set them up yourself.
Q. So that man who did the cleaning up and other odd jobs around would
be told to come over and help you set up the drill?
A. Yes, sir.
Q. That was true for the past five years?
A. Yes, sir. They put three men in there on the big shot.
Q. And you were drilling during the day, you didn't have a helper around;
did you?
A. No. Once I get set up; no sir.
Q. It would take you how 'long to set up?
A. I would say from 9:00 till sometime after dinner.
Q. Sometime?
A. It's just according to how many loose rock and muck you would have to
remove.
Q. Sometimes it would take you half a day and sometimes it would take
only half an hour if you had a good set up and you didn't have any trouble, you
could set it up rather quickly; couldn't you?
A. Yes, sir. If I'm not in no loose rock or nothing.
Q. When you needed somebody to help you, he was sent over by Mr. Elrod,
who was the mine superintendent, to help?
A. When we put up the big shot, he would send them over without asking.
J. W. Thurman, a driller, testified that Houston Mulkey was his regular helper
before the election and that Jaybird Mauldin also helped. (Note: Mulkey testified
that he was a driller after the election. Mauldin was a powder man.) After the
election the drillers did not have helpers. After the election Houston Mulkey and
Junior Martin , a driller , were helping him to set up his rig when Foreman Elrod
told Mulkey, "Leave them down. I told you boys if you voted this union in, they
would set the hammers up and I meant it by themselves."
Raiford Sutton, a driller, testified that before the election Foreman Elrod told
'him, "That if the Union come in , the only thing to do was to bring more work on
the employees . . . We would have to set out drills by ourselves ." Under cross-
examination Sutton admitted that since the election Foreman Elrod , the mucker,
and other employees have helped him set up his drills.
J. H. Mauldin testified that the day after the election he had a conversation with
Foreman Elrod who told him, "I said before the election that if you fellows want
union, they would set them [drills] up by themselves and I mean that. They are
going to do it."
All the witnesses called by the General Counsel concerning driller helpers made
it clear : ( 1) there was no such job classification ; ( 2) they could not usually set up the
drills alone ; and (3 ) when, after the election , help was needed in the setting up
of a drill it was provided.
Plant Manager McConnell testified that Respondent never had regular driller
helpers . He stated that the same procedures prevailed before and after -the election
and testified that, "Well, back in the past , these fellows , like the driller-blaster,
might have some extra time that he would help, maybe, the driller set up his drill.
Then, in most cases , there are at least two drillers in a room or in a location. They
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have helped each other set up their drills. Then, if there is additional drill close and
heading and possibly in the same room, one of these fellows on the, ground will
go up and help him and back in the past, our foreman or mine superintendent, Bob
Elrod, has given a little assistance to these fellows . He goes in in the mornings
and lines these fellows up at their working places. He goes up, maybe, in the room
with the fellows to see that the balk ground is taken out properly. He locates the
drilling places and he had given assistance for a small period of time to that
crew. Then he moves to the next room or working place, checks with these fellows.
If they have a need for a little assistance, he would give them a lift or see to it that
some person, mucker, driller-blaster, or maybe an extra man there would give
them help on setting up drills."
Foreman Elrod testified that the drillers do not have helpers although they are
given help when they are setting up pods and a mucker helps them clean up. The
drillers help each other in setting up their drills. Other employees, of different
classifications, are from time to time assigned to help a driller set up. He (Elrod)
often helps the drillers in setting up. The procedure was the same before and
after the election. He denied: (1) he ever told Junior Martin that if the men voted
for the Union they would have to set up their own drills or that 15 or 20 minutes
was long enough for a lunch period; (2) told Mulkey, before the election, if the
Union won the drillers would have to set up their own drills; or (3) he told anyone
after the election not to help the drillers because he had said, before the election,
if the Union won the drillers would have to do their own set ups. Further, he did
not, the day after the election, say to Mulkey when he attempted to give assistance
in, that they would have to do their own "setting up." He testified that he did tell
Mulkey "when he got the ground cleaned up, I told him to let the boys set up and
he could go on up and help in the other place, the 64 room, and be working "
It is inconceivable that Respondent would not give necessary help to the drillers
in setting up their drills since the production of the raw material for the operation
of the mill is dependent upon the material released by the drilling. I credit the
testimony of Manager McConnell and Foreman Elrod that the drillers were given
required help, in a like way, both before and after the election.
"(c) Discontinued allowing absence from the mine location for any reason other
than replacement of broken equipment"
J. W. Thurman, a driller, testified that before the election he was allowed to
come out of the mine for "anything that we needed." After the election Foreman
Elrod "told us not to come out except when we broke something." See the Inter-
mediate Report for Respondent's defense.
Thurman's testimony, uncorroborated, that he could not come out of the mine
for a drink of water is patently not creditable.
I credit the testimony of Foreman Elrod as set forth in the Intermediate Report.
"(d) Required employees to work overtime without pay"
Raiford Sutton, a driller, testified that on an unspecified date, after the election,
he checked out at 3:16 p.m. and was not paid for overtime.
The uncontroverted policy of Respondent was that-if an employee checked out
after 3:15 p.m. he was paid one-half hour overtime. However when the timecard
showed such a checkout and the foreman's report to the office did not show overtime
it was investigated to determine whether the overtime was merited.
Sutton was not paid overtime because Foreman Elrod informed the office that
Sutton had left the mine in ample time to check out before 3:15 p.m. The testimony
of Foreman Elrod concerning this incident stands uncontradicted in the record:
"I went in the mine and I told Mauldin `Sutton is having some bad luck. Go and
help him tear it down and be out of there at three o'clock.' I had to go up to the
top of the hill, and when I came back , by the mine entrance , I walked by there about
5 minutes after and I saw Mauldin coming out of there . He was rolling him a
cigarette after he came out there and put his light up. He came back and I put
Mauldin 's light up . He shot seven minutes after ." Sutton left the mine before
Mauldin to go to the timeclock. Mauldin, who apparently clocked out by 3:15 p.m.;
did not testify , although he was a witness , concerning this incident . Junior Martin
testified that he and Sutton were at the timeclock at the same time. Martin punched
the clock at 3:15. The clock changed to 3:16 and Sutton punched out.
Inasmuch as the General Counsel proffered no evidence that Sutton was delayed
by the performance of his duties I credit Elrod's testimony that Sutton left the
mine in ample time to clock out by 3:15 p.m.
FUNKHOUSER MILLS, DIV. OF THE RUBEROID COMPANY 539
"(e) Assigned extra work to employees without additional pay"
Some of the General Counsel's witnesses, including Junior Martin, J. W. Thurman,
and Raiford Sutton, testified that, after the election, when they had completed their
regular jobs they were assigned to other jobs until quitting time; and that prior to
the election they would not be given such assignment. Foreman Elrod testified that
the same practice was followed before and after the election. And, on one occasion
Martin and Thurman had finished their drilling jobs by 1 or 1:15 p.m. and he assigned
them to scaling. Inasmuch as the employees admitted they were paid to work until
3 p.m. I can attach no probative value to the allegation that they were assigned
other jobs during the period for which they were being paid. For this reason I
did not consider the testimony of Martin, Sutton, and Thurman, among others,
concerning such assignments as evidence in support of the allegation of being
assigned extra work. Had they been laid off, without pay, after the completion of
their regular job, in view of Respondent's past practices, their complaint then would
have had merit.
W. Harold Cox testified that he worked for Respondent about 10 years. At the
time of the hearing he was working in the yard driving a truck. His complaint was
that although he was assigned to various jobs he was only paid truckdrivers' wages
and he thought he should have been made a shovel operator when such a job became
available. The uncontradicted testimony of Foreman Elrod was that while Cox
could relieve on the shovel after it was set up, he could not set it up and was not a
qualified shovel operator. Concerning assignments to various jobs, Cox's own testi-
mony dispels any grounds for a finding of discrimination after the election:
Q. You did those jobs before the election and after the election, I believe?
A. Yes, sir. I have done them ever since I have been there.
Q. And you had one standard rate during that period; did you not?
A. That's right. All but the 2 months they wanted me to drill and I got the
driller's wages those 2 months.
III.
"On or about April 8, 1959, and thereafter, Respondent, by its supervisor and agent,
Plant Superintendent F. C. McConnell, denied its employees further use of a
soft drink vending machine"
The facts concerning this allegation are set forth in the Intermediate Report.
The General Counsel's argument is that notwithstanding the admission of his
witnesses that Coke bottles were thrown around the plant and grounds by the
employees, the fact that the Coke machine was closed the day after the election, is
persuasive evidence that it was done to chastise the employees for voting for the
Union. This is tenuous. While the closing of the machine the day after the election
creates a suspicion and did give rise to speculation as to the reasons for such action,
the reason advanced by Respondent-elimination of a safety hazard-is credited.
It is a matter of common knowledge that bottles thrown around machinery, pathways,
and driveways are potential safety hazards. Respondent's action in eliminating such
a hazard was in conformity with prudent industrial housekeeping.
IV.
"On or about April 8, 1959, and thereafter, Respondent reduced the working hours
and days of work of" 10 named employees
The uncontroverted testimony of Plant Manager McConnell concerning working
hours, which I credit, is: 2
Q. Now, state whether or not employees generally received less than 40
hours work during a number of different pay periods in 1959 when it started,
the reason for it, and whether it still exists?
A. In the first part of 1957, we reduced our hours from approximately ten
to eight hours per day. We continued that same thing up till the first part of
2 General Counsel, in his brief, contends that this testimony cannot be credited because
Respondent failed to support it by records of any sort, including records of ordele received
He cites Interstate Circuit, Inc v U S , 306 U S 208 That case is inapposite in that
its holding is with reference to oral testimony of persons without authority There can
be no question that Plant Manager McConnell was the resident executive head of the
plant here involved and was qualified to speak from his own knowledge- If the General'
Counsel had any doubts as to McConnell's testimony he had the power to subpena such
records as he chose, to cross-examine, and to introduce such records as were material.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1959. Now, during the period of time when we were working out, we had a
good deal of work to do of miscellaneous natures such as stripping, and major
repair work and minor repair work and so forth.
Then, after we reduced our hours to eight, we still had some work to do of
a miscellaneous nature, finishing our stripping work, doing'some other major
repair work and so on like that. Then, in the first part of 1959, our business
dropped off and we cut the hours on all of the fellows at the plant.
Q. What month was the first month in '59 that the business dropped off
occurred to any great extent?
A. That occurred the first part of April, 1959. We had a pretty heavy month
in March. Then, in April, it dropped more than the 50 percent, when actually
it should have increased due to the season of the year.
Q. Has it ever occurred since that time?
A. Well, it drifted along through the summer until fall. and it began to pick
up again and we had a good month in October.
Q. When employees were reduced under 40 hours, which had been the plant
work week, when you had work, how is that reduction made? Who is re-
sponsible for it? Who gave the instructions and how was it carried out?
A. Actually, it was common practice for Mr. Bill-Mr. W. J. Frost, my
assistant, and the other foremen to sort of get together in the week to check on
what we had to do and how long we could operate and who we needed and so
forth. For example, in the mine and quarry, if we caught up with our drilling
,by Wednesday or Thursday, then we let the quarry and mine crew off the
remainder of the week and whoever was connected with that particular depart-
ment, like hoist operator, steel sharpener, or blacksmith man, then our loading
was the same way. If we had a few cars to load, we got through with our load-
ing or various spots of our loading. We have about four products and different
places to load such as the 600 filler, Number 50 Filler, Treated Granules, and
Oil Granules. We have four places to load. Now, if one or two of these
places wouldn't be completed by the middle of the week or Thursday or some-
thing like, that part of that crew went in. If we still had work to do in other
places in the loading, we would probably keep just what we needed to finish
that part up and that applied to the plant.
Q. Were there certain weeks that possibly the shovel operator or part of the
loading crew would have 40 hours and the others would, as a whole, have 32?
A. There has been occasions when that might happen. It would depend
on what was to be done, where it was to be done, and so forth.
Q. Now-
A. But as a rule, when we load off our-if we laid off one drill man, we
would lay them all off, and everyone in connection with that particular work
on our hauling stock.
The General Counsel attempted to prove the allegation by oral testimony of em-
ployees. The Trial Examiner ruled that the best evidence would be Respondent's
records of hours worked by each employee in the unit represented by the Union
and a list of the union members. An exhibit was thereafter admitted into evidence,
by stipulation, showing the hours worked per week by each employee within the
unit. This exhibit covered the period from the week ending March 2, 1959, through
the week ending August 23, 1959. With consent of the Union a list of its members
was admitted into evidence.
To reach a conclusion as to whether the 10 employees named in the allegation
were discriminated against, the Trial Examiner made copies of the exhibits, referred
to above, and on the exhibit of hours worked circled the names of members of the
Union. He then compared the hours worked each week by Union with nonunion
employees. From this comparison it was proven that there was no discrimination
against union employees as a whole or against the 10 named employees in particu-
lar. For example, for the 2 workweeks immediately after the election there was
a total of 48 employees, 36 of whom were members of the Union. For the week
ending April 19, 1961, the basic workweek was 32 hours; 3 union members and
2 nonunion members worked additional hours. For the week ending April 26, 1959,
the basic workweek was 32 hours; 16 union members and 5 nonunion members
worked additional hours.
It is to be noted that the record does not reveal the reason for singling out the
10 employees named in the complaint. Other than being members of the Union
there is no evidence of union activity on their part-no evidence as to why Re-
spondent would be motivated to discriminate against these particular employees.
Indeed , in some weeks some of these employees worked more hours than the basic
FUNKHOUSER MILLS, DIV. OF THE RUBEROID COMPANY 541
workweek. For example, the basic workweek for the week ending April 26, 1959,
was 32 hours, S. W Brown worked 43, Hillie Cagle worked 40.
The oral testimony of all witnesses who testified that they were discriminated
against in the number of hours worked was found to be vague, uncertain, and specu-
lative. For example: (1) Junior Martin testified that before the election he worked
8, 9 or 10 hours a day-the exhibit of hours worked shows he worked 40 hours
per week for each of the 6 weeks preceding the election; (2) John H. Temples testi-
fied that Winnell Long was given more time than he was-the record shows that
Long was a member of the Union; and (3) W. H. Cox testified he should have been
given other jobs to increase his hours of work but there was no proof as to why
he should be so assigned.
For the foregoing reasons I found in the Intermediate Report that the 10 named
employees were not discriminated against as alleged.
V.
"On or about July 1, 1959 , and thereafter , Respondent . . . assigned employees
James N. Nichelson , Grady Crider, and others to more arduous and onerous
tasks than those to which they normally would have been assigned"
James N. Nichelson : The Intermediate Report sets forth all the material evidence.
It can only be supplemented by noting that the General Counsel introduced no
evidence to rebut the testimony of Foreman Glenn Cagle and Assistant Manager
Frost that Nichelson was the only employee available to assign to a required job
in loading a car with 80-pound bags.
Grady Crider: He is 24 years old, has worked for Respondent since May 30,
1956, and is a laborer. When he was first employed he was a filler loader for about
3 or 4 months. Then he worked in the loading house and ran the tester grinder
until February 11, 1959. Then he was a night watchman for a while . He was dis-
satisfied with the job of watchman and was returned to the filler house and then
to a job as laborer. Shortly after he was returned to the filler house he called Fore-
man Cagle out of a store in the village and told him he did not like what he was
doing as foreman .3 It was after this incident that Cagle , trying to satisfy Crider,
transferred Crider to a laborer's job , the job which he had at the time of the hear-
ing. He receives the same rate of pay as he did when working as a filler. He
admitted that his present job is easier than loading filler and he has no complaints.
Crider's demeanor on the -witness stand displayed him as a young man who was
not quite sure what he wanted to do . I find that Respondent transferred him from
job to job trying to find one which would satisfy him and that he was not assigned
"arduous and onerous tasks" because he was a member of the Union.
VI.
"On or about July 11, 1959, Respondent . . . evicted employee John A. Temples
from rent-free housing accommodations provided by Respondent"
Temples testified that on March 5, 1959, that Assistant Manager Frost told him,
Sam Brown, and Shorty Taylor, "Now, if you all vote this Union in, you all would
be at home. You wouldn't be up here when the Union is voted in." Also, "we can't
be friendly with you all no more on the job like we once was." Frost denied making
the statement. I credit Frost.
About a week before the election Plant Manager McConnell talked to Temples
pointing out the benefits the employees enjoyed and asked him to,give the Company
"a chance." McConnell admits the conversation. I find it was privileged (Section
8(c) of the Act). On this same occasion Temples told McConnell, "Now Mr.
McConnell, there is one thing about it, if it goes union, you or any man on this job
can't say `there goes a scab' because I will be with the Union." This is the evidence
upon which I found in the Intermediate Report that Respondent knew that Temples
was a member of the Union.
Plant Manager McConnell testified that employees living in company houses were
expected to keep them in repair-Temples had not done so and this was one of the
reasons for his eviction. W. H. Cox, a union member, who was assigned the house
after Temples' eviction confirmed-that the house required considerable repair which
he did. This plus the reasons set forth in the Intermediate Report I find constitute
just cause for Temples' eviction; and Respondent was not motivated by antiunion
3 Harley Crider, father of Grady Crider, apologized to Foreman Cagle for his son's
behavior in calling him out of the store to complain. He said his son was young and
wanted to • know "who his 'bossman is."
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
animus. Had Respondent evicted Temples because of his union membership for the
purpose of discouraging such membership it is unlikely that they would have assigned
the house to another member of the Union.
VII.
"On or about September 30, 1959, Respondent, by its supervisor and agent, Mine
Foreman Bob Elrod, prohibited the solicitation of funds by its employees on
behalf of its disabled employee, Houston Mulkey"
The record contains no evidence that the collection for the benefit of Houston
Mulkey was stopped, subject to approval by the office, because Mulkey was a member
of the Union. While the arguments advanced by the General Counsel are imagina-
tive, they are in legal parlance assumptions. The premise from which the General
Counsel appears to argue, namely, if it is shown that an employee is a member of a
union, the burden of proof shifts to the respondent to prove that it has not violated the
Act is drivel. To find a violation of the Act proof of violation of the Act, satisfying
the tenets of jurisprudence, is required; nothing less.
VIII.
The Layoff and Discharge of James E. Norrell
In its order, dated October 25, 1960, the Board overruled the Trial Examiner's
granting of Respondent's motion to dismiss the Norrell case at the conclusion of the
Board's case-in-chief. The reasons advanced by the Board for such action are its
own. They are binding upon the Trial Examiner. In compliance with the order of
October 25, the Trial Examiner reopened the hearing to permit Respondent to put
in its defense to what the Board had held to be a prima facie case that Norrell had
been discharged in violation of Section 8(3) and (1) of the Act. After this hearing,
as ordered by the Board, this Trial Examiner issued a Supplemental Intermediate
Report on January 27, 1961, in which he found, upon the merits that Norrell had
not been discharged in violation of the Act, as alleged.
I credit the testimony of General Manager McConnell, Assistant Manager Frost,
and Foreman Elrod: A week or two before the election Norrell was assigned to help
H. L. Jenkins, a welder and chairman of the Union's bargaining committee, to build
up the crusher in the mine. When Norrell reported at the mine the mine foreman,
Bob Elrod, told him to clean up the debris around the belt and on the rollers which
had accumulated to such an extent as to interfere with the operation of the crusher.
Jenkins and Norrell opposed this, each claiming that Norrell had been assigned to
help Jenkins and not to clean up. Notwithstanding the protestations of Jenkins and
Norrell, Foreman Elrod instructed Norrell to do the cleaning up. (Note: Jenkins
and Norrell each admitted that Elrod was boss of the mine and he was their boss
when they, worked in the mine.) When Elrod checked on whether Norrell had
cleaned up as directed he found that the work had not been done. Elrod reported
this to the office. Respondent took no action against Norrell because they felt he
might have been confused by the orders from the Assistant Manager Frost to help
Jenkins and the orders from Foreman Elrod to clean up.
About April 15, 1959, a week after the election, Norrell was again assigned by
Assistant Manager Frost to help Jenkins build up the crusher. Again, Elrod told
Norrell to clean the debris away from the crusher belt and welders. Again, Jenkins
and Norrell told Elrod that Norrell was sent over to help Jenkins and learn the weld-
ing operation. Again, notwithstanding the protestations, Elrod-admitted by Jenkins
and Norrell to be boss of the mine-told Norrell to clean up. The following morning
when Elrod checked he found that the cleanup work had not been done. Norrell was
called to the office. He stated that he had removed six wheelbarrows loaded with
debris from the crusher area. When asked why he had not done the job as directed
by Elrod his only response was "I am sorry." After this conference Norrell was sent
back to his job. Toward the end of the day he was again told to report to the office.
When he did he was laid off for 3 or 4 days. Thereafter Plant Manager McConnell
made many attempts to see Norrell and did see him on two or more occasions,
McConnell was seeking to find out why Norrell had not followed the orders of
Foreman Elrod. Norrell would only reply that he was sorry; this notwithstanding
that McConnell had told Norrell that he wanted him to have the opportunity to
learn how to weld.4
4 Claude Arnold, uncle of Norrell and on whose farm he worked after he left Respond-
ent's employ , said that on one occasion when McConnell came to the farm and Norrell
,was not there said, "He [ McConnell ] was very much inclined to Jimmy's [ Norrell] wel-
FUNKHOUSER MILLS, DIV. OF THE RUBEROID COMPANY 543
The first negotiation conference between the Union and Respondent was held on
June 12, 1959. Nothing was said about the Norrell case at that time. The next
conferences were held on June 17, 18, and 19, 1961. At the end of these confer-
ences, as testified to by Respondent's witnesses, the Union asked for the reinstate-
ment of Norrell because he was a "hardship case." The union representative,
Wheeler, testified that Respondent was asked to reinstate Norrell "because he hadn't
done any wrong, he couldn't serve two masters." Another union representative,
Northrip, denied that the request for reinstatement was based on Norrell being "a
hardship case," and asserted that the Norrell case was discussed at the first negotia-
tions meeting. Be that as it may, there is no evidence that the Union ever claimed in
a negotiation meeting, or at any other time prior to filing the charge in this case, that
Norrell was discharged because of his union activities. Indeed, there is no evidence
of any union activities on the part of Norrell other than he was a member.
Northrip, the union representative, testified that at a negotiation meeting on July 2
or 3, Respondent's attorney told the committee that Norrell's discharge "was purely
a disciplinary discharge for failure to carry out foreman's orders and we would not
bring him back." I credit this.
Norrell was very uncomfortable on the witness stand. He gave the impression
that he was not stating the facts as he knew them. His demeanor was such that this
Trial Examiner could not credit his testimony. H. L. "Mutt" Jenkins, the welder with
whom Norrell was working on the two occasions and who was chairman of the
Union's bargaining committee, was not only evasive but appeared to be deliberately
attempting to avoid being responsive and seeking to confuse. His testimony is not
credited.
I can find nothing in the record, including circumstantial evidence, from which
any inference can be drawn that Norrell was discharged in violation of the provisions
of the Act.
IX. -
Surveillance- Interrogation
Inasmuch as Plant Manager McConnell admitted that Respondent admitted: (1) a
number of the employees, without query,'told him they belonged to the Union; and
(2) he had a fairly good idea as to which employees were members of the Union,
this proves knowledge on the part of Respondent, and I so find.
X.
"On or about April 8, 1959, Respondent, by its supervisor and agent, Mine Foreman
Robert Elrod, threatened its employees with more difficult work assignments
because the employees had selected the Union as their collective bargaining
representative
Plant Manager McConnell testified that both before and after the election Foreman
Elrod would select the places to drill and would report the drillings and production
to the office. Elrod corroborated. I credit their testimony.
Foreman Elrod testified that when he told drillers Martin and Sutton that they
would have to increase their production they had drilled 79 and 81 feet, respectively,
as compared to their normal average of 120 feet each, and this had been going on
for about 14 days. Martin admitted that Elrod told him and Sutton to bring their
production up to their average; but, Elrod did not ask them to produce more than
they had averaged before the election.
XI.
Foreman Elrod, on or about September 11, informed the employees "that Respondent
would delay signing a collective bargaining agreement and such agreement would
be of no benefit to the employees"
In the opinion of this Trial Examiner, based upon a reexamination of the record,
there is nothing to add to the discussion of this allegation in the Intermediate Report.
XII.
Seniority-Preelection statements
(2) Statements by Respondent before the election: This is discussed in the Supple-
mental Intermediate Report, section II. It was not discussed in the Intermediate
fare and he would be glad if he would come back and take his training like he had started
and after he got through with his training , be could work on with them or go any place
else to work." Arnold was a witness for the General Counsel.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Report because the Trial Examiner found that all the ultimate facts alleged in the
complaint as violations of the Act were not proven . Had the ultimate facts, as
alleged in the complaint , been proven , the preelection statements , introduced as back-
ground evidence , would have been material in determining whether Respondent had
been motivated to take the actions complained of because of antiunion animus.
I find that Foreman Elrod and Assistant Manager Frost , prior to the election, did
make statements to the effect that if the Union won the employees would not be
laying around and there would be changes made . Also that Frost, Elrod, and Plant
Manager McConnell asked some of the employees if they had been approached by
union representatives.
I do not find that any of Respondent 's representatives ever told an employee that
he would not be able to leave the mine for a drink of water or that rent would have
to be paid by the occupants of company houses if the Union won the election.
I find that Plant Manager McConnell did talk to a number of the employees
before the election during which conversation he pointed out the benefits enjoyed
by the employees and asked the employees to give the Company a chance .5 In these
conversations McConnell made no threats of reprisal or force or promise of benefits.
I do not find that Foreman Elrod told any of the drillers , before the election, that
if the Union won they would have to set up their own drills.
In the above findings , I have considered the conflicts in the evidence and inherent
in,the findings is my resolution of what testimony I have credited.
[Recommendations omitted from publication.]
5 Funkhouser Mills had recently been purchased by the Ruberold Company.
Southern Stevedoring and Contracting Company and L. H. Sut-
ton and D. L. Sandlin
Southern Stevedoring and Contracting Company; Master Ste-
vedores Association of Texas and its Members and James I.
Fagg, Sr. and Houston Maritime Association , Inc. and its
Members; Galveston Maritime Association , Inc. and its Mem-
bers, Parties to the Contract
Southern Stevedoring and Contracting Company; Master Ste-
vedores Association of Texas and James I. Fagg, Jr.
Locals Nos. 307, 636, 991 and 1273 International Longshoremen's
Association , Independent and D . L. Sandlin and L . H. Sutton
South Atlantic and Gulf Coast District; Locals Nos. 307 , 636, 991
and 1273 International Longshoremen 's Association, Inde-
pendent and James I. Fagg, Sr . and James I. Fagg, Jr. and
Locals Nos. 325, 329, 341, 440, 704, 814, 851 , 872, 1029, 1175, 1180,
1214, 1224, 1225, 1306, 1367, 1368, 1391, 1610 , 1723, 1758 , 1770, and
1818, International Longshoremen 's Association , Independent;
International Longshoremen 's. Association , Independent, Par-
ties to the Contract . Cases Nos. 23-CA-848,23-CA-849, 23-CA-
860, 23-CA-862, -3-CB-266, 23-CB-267, 23-CB-270, and 23-CB-
271. January 25, 1962
DECISION AND ORDER
On February 26 and September 6, 1960, respectively, Trial Exam-
iner C. W. Whittemore issued. his Intermediate Report and Supple-
135 NLRB No. 38.