Waycross Machine Shop

National Labor Relations Board - Board Decisions

May 29, 1959

123 N.L.R.B. 1331 (N.L.R.B. 1959)

WAYCROSS MACHINE SHOP 1331
producer, processor , or manufacturer , or to force or require United States
Plywood Corporation , or any other employer or person, to cease doing business
with The Mengel Company or any other person.
LOCAL UNION No. 751, UNITED BROTHER-
HOOD OF CARPENTERS AND JOINERS OF
AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NORTH COAST COUNTIES DISTRICT COUNCIL
OF UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated------------- ------ By-------------------------------------
(Representative ) (Title)
CALIFORNIA STATE COUNCIL OF CARPENTERS.
Dated---- --------------- By-------------------------------------------
(Representative ) (Title)
Dated------------------- -------------------------------------------
(BRYAN H. OLDPIELD)
Dated------------------- -------------------------------------------
(B A. BROWN)
Dated----- -------------- -------------------------------------------
(JOSEPH F. CAMBIANO)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced, or covered by any other material.
E. L. Dell, Jr., trading as Waycross Machine Shop and Inter-
national Brotherhood of Boilermakers , Iron Ship Builders,
Blacksmiths, Forgers and Helpers , AFL-CIO. Cases Nos.
10-CA-2890, 10-CA-2995, and 10-CA-3050. May 29, 1959
DECISION AND ORDER
On August 18, 1958, Trial Examiner John C. Fischer issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also
found that the Respondent had not engaged in certain other unfair
labor practices and recommended that the complaint be dismissed
with respect to such allegations. Thereafter, the Respondent and the
General Counsel filed exceptions and the General Counsel filed a sup-
porting brief.
123 NLRB No. 163.
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
this proceeding, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner only to the extent that they
are consistent with this decision.
1. We agree with the Trial Examiner that by the following inci-
dents the Respondent interfered with, restrained, and coerced em-
ployees in violation of Section 8 (a) (1) of the Act : 1
(a) At the end of November or the first part of December 1956,
Leon Dell, when asked by employee O. C. Simmons who was dis-
charged on February 18 or 19, 1957, whether the respondent planned
a layoff, replied that Simmons was "a regular hand" and that he
(Dell) could not see why it -would not be wise to go ahead and pur-
chase another automobile because the Government contract the Re-
spondent was working on would last through March, "if this other
thing did not come in-you know what I mean."
(b) On February 3, 1957, the first day of a 1-week shutdown of the
Respondent's plant, Keefer Dell advised Irving Amerson, who was
discharged on February 25, 1957, and other employees to get employ-
ment elsewhere if they could. The next day Keefer Dell asked a
group of employees including Amerson and Willard O'Neal, who was
discharged on February 26, 1957, "Why didn't we drop this union
stuff . . . quit listening to the propaganda . . . and he would hate us
to get into any trouble."
(c) Early in March 1957, when employee Leroy James Henley was
being hired, he was asked by Lawton Dell, a supervisor, whether he
belonged to the Union.
(d) After employee Henley was hired, E. L. Dell asked, "Which
side of the fence [Henley] was on" and asserted that if Henley would
stick with E. L. Dell he would not regret it.
(e) During the first 2 weeks in April when employees Henley and
Lamar Lee were summoned to the office of E. L. Dell, they were told
he "would not sign [a union contract] under any circumstances
whatsoever."
1 The Trial Examiner also found that two other violations occurred in September or
October 1956 , when E. L . Dell and Leon Dell , Respondent ' s general manager , in state-
ments to employees Ernest P. Vaughn and James R. Burkett threatened to close down
the plant and replace employees if the Union "came in." As these statements may have
taken place prior to October 8, 1956, which marked the commencement of the 6-month
statutory limitation period permitted by Section 10(b) of the Act, we rely upon them
for background purposes only.
The Trial Examiner also dismissed three 8(a) (1) allegations concerning threats and
promises of benefit made to employees by It. L. Dell and Keefer Dell, plant production
manager. We find it unnecessary to pass upon these findings of the Trial Examiner as
the incidents would be cumulative.
WAYCROSS MACHINE SHOP 1333
(f) When employee Joseph Worthington was hired on May 1,
1957, E. L. Dell asked whether Worthington belonged to the Union
and what the latter -would do in the event of a strike. E. L. Dell
then stated he would close the doors of the plant before he signed a
union contract.
(g) Some time after the Union's strike, which extended from May
27, 1957, to September 25, 1957, employee Burkett inquired about
getting back to work and was told by E. L. Dell that he thought he
saw Burkett on the picket line and Burkett would have to wait before
he would put Burkett back to work.
2. The Trial Examiner found, and we agree, that Henry F. Gladden,
Willard O'Neal, and Leon Smith, three known union adherents, were
discriminatorily discharged on January 30, February 26, and March
14, 1957, respectively, during the period when the Respondent was
making a series of coercive statements which clearly demonstrated its
union animus. The Trial Examiner correctly concluded that the
reasons given by the Respondent for the terminations, namely, Gled-
den's slowness in his work and excessive absenteeism, the elimination
of O'Neal's job, and Smith's failure to report promptly his absence
due to illness, were all pretexts for punishing these employees for
their activities on behalf of the Union.
The Trial Examiner found that Irving Amerson, Ernest P. Vaughn,
and O. C. Simmons were lawfully discharged by the Respondent in
February 1957, despite the pattern of coercive conduct set forth above.
We disagree. The record shows that these three employees were lead-
ers in the Union's organizational campaign. Amerson was active in
distributing union cards to other employees. Following the election
of February 1, he advertised his union sympathies by wearing a union
button conspicuously. Vaughn was a member of the Union's nego-
tiating committee. Simmons, a member of the same negotiating
committee, was one of two employees who originally contacted the
Union and persuaded other employees to become members. All three
employees were summarily discharged following the Board-conducted
election of February 1 in which the employees voted for union repre-
sentation. As to Amerson and Vaughn, the Respondent contends
that they were discharged because their jobs as acetylene welders had
been abolished. Thereafter, such jobs were to be performed by me-
chanical seam welders, a less skilled occupation. Although the hourly
rate for the new jobs was substantially less than that for acetylene
welding, 'both Amerson and Vaughn informed Keefer Dell that they
would' like to' operate the new machines. Dell made no reply. In-
stead of considering two of its own employees, available and willing
to perform the new type of welding, the Respondent hired employees
from the outside to perform such work. Thereafter, when Amerson
inquired about employment with the Respondent, Keefer Dell inter-
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rogated Amerson concerning his continued adherence to the Union.
Upon learning that Amerson was still a union member , Dell replied,
"You go talk to them." As to Simmons, the Respondent takes the
position that his discharge on February 18 or 19 was due to his un-
satisfactory work as a vertical welder. It appears from the record
that on one or two occasions prior to November 1956, Simmons had
failed a vertical welding test conducted by the U.S. Navy. At that
time , however, the Respondent took no action against Simmons.
Rather, the record shows that Simmons was assured by the Respondent
that his job was safe as long as the Union did not come in. On
November 2, 1956, Simmons passed the Navy vertical welding test.
Simmons, a welder since 1942, had received schooling in his trade and
was apparently performing a satisfactory job for the Respondent.
The record also shows that Simmons secured a vertical welding job
with another company after his discharge by the Respondent. Never-
theless, following the election of February 1, the Respondent made
good its threat and discharged Simmons on February 18 or 19.
In view of the foregoing, we conclude, contrary to the Trial Exam-
iner, that Amerson, Vaughn, and Simmons were discharged in viola-
tion of Section 8 (a) (3) and (1) of the Act. We shall therefore order
them reinstated with back pay.2
3. The Trial Examiner found that the Respondent did not refuse
to bargain in good faith on May 20, 1957, as alleged in the complaint.
We disagree for the following reasons :
The Union won the election on February 1, 1957. After holding two
bargaining meetings in March and early April 1957, respectively, Re-
spondent Counsel E. Kontz Bennett promised that he would furnish
the Union with a contract that the Respondent would be willing to
sign. Soon after the second meeting Bennett received a latter, dated
April 2, 1956, from Union Representative Fred F. George stating that
if a reasonable agreement was not reached by May 3, 1957, the Union's
membership would be forced to take a strike vote. After waiting
several days for the Respondent's contract, George telephoned Ben-
nett who replied the Company considered the Union's letter a threat.
George explained to Bennett that the letter was written to comply
with the laws of Georgia which required unions to give employers 30
days' notice of intent to strike. Bennett then renewed his promise
to submit a contract but did not set a date for doing so.
Upon failing to receive any contract from the Respondent, George
called upon the Federal Mediation and Conciliation Service in a num-
ber of vain attempts to arrange a third bargaining session during the
remainder of April and most of May. The Union thereupon called
its strike for May 23.
2 However , In accordance with our usual policy, we shall exclude the period from the
date of the intermediate 'Report to the date of the Order herein in computing back pay.
Fry Products , Inc., 110 NLRB 1000.
WAYCROSS MACHINE SHOP 1335
On May 20, 1957, Clifford L. Stave, who was assigned by the Union
to replace George, called off the strike and went to see E. L. Dell.
Stave was referred to Bennett whom he saw on May 24, 1957. In the
course of his cross-examination of Stave as to this conference, Bennett
admitted he told Stave, "We could not bargain with the union because
of the threat that had been made in Mr. George's letter." (Emphasis
supplied.) Bennett repeated this admission twice at the hearing as
well as in the Respondent's answer to the complaint.
Immediately after the conference with Bennett, Stave went to the
office of E. L. Dell whom he was not permitted to see. Stave then
called a strike for May 27, 1957. During the course of the strike 3
Stave made further efforts to resume negotiations. On June 5, 1957,
Stave wrote E. L. Dell expressing a willingness to negotiate a con-
tract. No reply was received. In mid-July, Stave went to the office
of E. L. Dell but did not succeed in seeing him. In the latter part
of July, Bennett, according to Stave, stated E. L. Dell's position :
"No contract, period, and there is no union."
On September 20, 1957, more than a month after the Union filed an
8(a) (5) charge, Stave again wrote the Respondent requesting nego-
tiations but received no response.
During the course of the strike, Stave made two or three calls to
the Federal Mediation and Conciliation Service to no avail.
It is clear from the foregoing that after receiving the Union's
letter of April 2, 1957, the Respondent was determined not to bargain
with the Union. Thus, Respondent Counsel Bennett admitted the
Respondent's refusal to bargain because of this letter. As noted
above, E. L. Dell in early April and May 1957 gave expression to this
position when he told the employees that he would not sign a union
contract under any circumstances and that he would close the doors
of the plant before he signed. In addition, the Respondent's antago-
nism to bargaining with the Union was amply demonstrated by its
conduct in ignoring the Union's repeated efforts over a 6-month period
to resume negotiations after the meeting of early April 1957. More-
over, the threats to close down the plant if the Union came in, the
interrogation of employees, and the discriminatory discharges of six
active union adherents make all too plain the Respondent's strong
opposition to dealing with the Union in good-faith negotiations.
Finally, although we do not in any way condone the two strike in-
cidents involving employee misconduct, we find they were too few and
isolated to warrant the Respondent's refusal to carry out its obliga-
tion to bargain with the Union.
3In this 4-month period , employees Buddy Parker , William Carmichael , Buster Car-
michael , and Gene Gill participated in the beating of nonstriker Doyis Music . Employee
Jesse Davis threatened nonstriker Elzie D . Franks with a whipping if he continued to
work during the strike.
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find, contrary to the Trial Examiner, that follow-
ing the Respondent's receipt of the Union's letter of April 2, 1957,
the Respondent refused to bargain in violation of Section 8 (a) (5)
and (1) of the Act.
4. Union Representative Stave on September 26, 1957, wrote a letter
to E. L. Dell making an unconditional request for the reinstatement
of the strikers. Stave also wrote that the individual strikers would
make a personal appearance to reaffirm the request for unconditional
reinstatement. The record shows that, with 1 possible exception 4
none of the 58 strikers were reemployed.
The Trial Examiner held that, in the absence of an 8 (a) (5) viola-
tion, the strike was an economic strike and the Respondent accord-
ingly had no obligation to reinstate the strikers, all of whom were
permanently replaced. As we have found that the Respondent un-
lawfully refused to bargain and as the record shows that the em-
ployees struck in protest against this refusal, we find, contrary to the
Trial Examiner, that the strikers were unfair labor practice strikers
and as such, except for the five who engaged in misconduct during the
strike,' were entitled, upon unconditional application, to reinstate-
ment and back pay whether or not they were replaced.' Moreover,
the futility of personal application was demonstrated by the lack of
success of virtually all of the 35 strikers who applied for reinstate-
ment at the Respondent's plant. Accordingly, we find that the Re-
spondent was obligated to rehire the strikers when the Union made
unconditional application on their behalf on September 26, and that
the Respondent's refusal to do so violated Section 8 (a) (3) of the Act.
We shall therefore order the Respondent to offer the following strikers
immediate and full reinstatement to their former or substantially
equivalent positions and make them whole for any loss of pay suf-
fered as a result of the foregoing discrimination against them.'
Willie Lee Barber Willie Courson
Charles E. Beverly James A. Curl
Paul B. Booth Stafford R. Davis, Jr.
George Pierce Campbell Troy Davidson
Willie W. Campbell Billy Dawson
James A. Carter William G. Dixon
Ira E. Cox Arthur Dryden
William A. Cox Franklin Dubberly
Elmer Cox Benjamin F. Ellis
James R. Connor Reams I. Farley
Gerald F. Courson William Fussell
Alt is not clear from the record whether striker Kenneth Altman was reinstated. In
the event he was not reinstated , his name is added to the list of strikers set forth below.
5 See footnote 3.
9 White's Uva lde Mines, 117 NLRB 1128, 1130-1131.
7 See footnote 2.
WAYCROSS MACHINE SHOP
Tom Gable
James R. Grantham
Earl D. Grantham
Pirkle Hall
Leroy J. Henley
Norman Herrin
James C. Johnson
John E. Jordan
Cecil King
Walter C. Lankford
Lamar E. Lee
Primas Lemon
Mack Mercer
Cecil Pittman
Walter J. Ratliff
Allen Rigdon
Wilbur Rigdon
Arthur L. Scurry
Sylvester Scurry
Quinton Smart
Jimmie Steward
Raymond Strickland
Carl L. Sweat, Jr.
Wallace Sweat
Jarrell Tanner
John C. Tatum, Sr.
John C. Tatum, Jr.
Troy Thornton
Willie D. Trull
Joseph B. Worthington
1337
ORDER
Upon the entire record in this proceeding and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor Rela-
tions Board hereby orders that the Respondent, E. L. Dell, Jr., trad-
ing as Waycross Machine Shop , Waycross , Georgia, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Boilermakers , Iron Ship Builders , Blacksmiths , Forgers and Helpers,
AFL-CIO, or any other labor organization , by discriminatorily dis-
charging or threatening to discharge employees who are engaged in
union or concerted activities , by warning or advising employees that
the plant would be shut down before the Union would be recognized or
by discriminating against employees in any other manner in regard
to their hire or tenure of employment , or any term or condition of
their employment.
(b) Refusing to bargain collectively with International Brother-
hood of Boilermakers , Iron Ship Builders , Blacksmiths, Forgers and
Helpers, AFL-CIO, as the exclusive representative of employees in
the certified appropriate unit.
(c) In any other manner interfering with, restraining , or coercing
its employees in the exercise of the right to self -organization, to form
labor organizations , to join or assist International Brotherhood of
Boilermakers , Iron Ship Builders, Blacksmiths , Forgers and Helpers,
AFL-CIO, or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all such activities,
except-4o the extent that such right may be affected by an agreement
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act. -
2. Take the following affirmative action designed to effectuate the
policies of the Act :
(a) Offer the following employees immediate and full reinstate-
ment to their former or substantially equivalent positions and make
them whole for any loss of pay suffered as a result of the discrimina-
tion against them in the manner described above : 8
Irving Amerson Norman Herrin
Willie Lee Barber James C. Johnson
Charles E. Beverly John E. Jordan
Paul B. Booth Cecil King
George Pierce Campbell Walter C. Lankford
Willie W. Campbell Lamar E. Lee
James A. Carter Primas Lemon
Ira E. Cox Mack Mercer
William A. Cox Willard O'Neal
Elmer Cox Cecil Pittman
James R. Connor Walter J. Ratliff
Gerald F. Courson Allen Rigdon
Willie Courson Wilbur Rigdon
James A. Curl Arthur L. Scurry
Stafford R. Davis, Jr. Sylvester Scurry
Troy Davidson O. C. Simmons
Billy Dawson Quinton Smart
William G. Dixon Leon Smith
Arthur Dryden Jimmie Steward
Franklin Dubberly Raymond Strickland
Benjamin F. Ellis Carl J. Sweat, Jr.
Reams I. Farley Wallace Sweat
William Fussell Jarrell Tanner
Tom Gable John C. Tatum, Sr.
Henry F. Gladden John C. Tatum, Jr.
James R. Grantham Troy Thornton
Earl D. Grantham Willie D. Trull
Pirkle Hall Ernest P. Vaughn
Leroy J. Henley Joseph B. Worthington
(b) Upon request, bargain collectively with International Broth-
erhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers
and Helpers, AFL-CIO, as the exclusive representative of all the
employees in the certified unit with respect to rates of pay, wages,
hours of employment, and other conditions of employment, and, if an
. 8•F: W. Woolworth Company , 90 NLRB 289.
WAYCROSS MACHINE SHOP 1339
understanding is reached, embody such understanding in a signed
agreement.
(c) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all records necessary or useful to analyze the amounts of back
pay due under the terms of this Order.
(d) Post at its plant in Waycross, Georgia, copies of the notice
attached hereto marked "Appendix." I Copies of said notice, to be
furnished by the Regional Director for the Tenth Region, shall, after
being duly signed by the Respondent's official representative, be
posted immediately upon receipt thereof, and be maintained by the
Respondent for a period of at least 60 consecutive days thereafter,
in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for the Tenth Region in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply therewith.
MEMBER BEAN took no part in the consideration of the above Deci-
sion and Order.
° In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in any labor organization
of our employees by discharging any of our employees or in any
other manner discriminating in regard to their hire or tenure of
employment, or any term or condition of their employment..
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist any labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to
refrain from any or all such conduct, except to the extent that
such right may be affected by an agreement requiring membership
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in a labor organization as a condition of employment as author-
ized in Section 8(a) (3) of the said Act.
WE WILL bargain collectively upon request with the Interna-
tional Brotherhood of Boilermakers, Iron Ship Builders, Black-
smiths, Forgers and Helpers, AFL-CIO, as the exclusive repre-
sentative of all the employees in the certified unit and, if any
understanding is reached, embody such understanding in a signed
agreement. The bargaining unit is :
All production and maintenance employees, including
leadermen, but excluding office clerical employees, guards,
professional employees, foremen and other supervisors as
defined in the Act.
WE WILL offer the following employees immediate and full
reinstatement to their former or substantially equivalent posi-
tions without prejudice to any seniority or other rights and priv-
ileges previously enjoyed, and make them whole for any loss of
pay suffered as a result of the discrimination employed against
them :
Irving Amerson Earl D. Grantham
Willie Lee Barber Pirkle Hall
Charles E. Beverly Leroy J. Henley
Paul B. Booth Norman Herrin
George Pierce Campbell James C. Johnson
Willie W. Campbell John E. Jordan
James A. Carter Cecil King
Ira E. Cox Walker C. Lankford
William A. Cox Lamar E. Lee
Elmer Cox Primas Lemon
James R. Connor Mack Mercer
Gerald F. Courson Willard O'Neal
Willie Courson Cecil Pittman
James A. Curl Walter J. Ratliff
Stafford R. Davis, Jr. Allen Rigdon
Troy Davidson Wilbur Rigdon
Billy Dawson Arthur L. Scurry
William G. Dixon Sylvester Scurry
Arthur Dryden O. C. Simmons
Franklin Dubberly Quinton Smart
Benjamin F. Ellis Leon Smith
Reams I. Farley Jimmie Steward
William Fussell Raymond Strickland
Tom Gable Carl J. Sweat, Jr.
Henry F. Gladden Wallace Sweat
James R. Grantham Jarrell Tanner
WAYCROSS MACHINE SHOP 1341
John C. Tatum, Sr. Willie D. Trull
John C. Tatum, Jr. Ernest P. Vaughn
Troy Thornton Joseph B. Worthington
All our employees are free to become, remain, or refrain from be-
coming or remaining members of the above-named Union or any other
labor organization, except to the extent that this right may be affected
by an agreement in conformity with Section 8(a) (3) of the Act.
E. L. DELL, JR., TRADING AS WAYCROSS
MACHINE SHOP,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
These proceedings, brought under Section '10(b) of the National Labor Relations
Act as amended (61 Stat. 136), herein called the Act, and consolidated by order of
the Regional Director of the National Labor Relations Board, were heard in
Waycross, Georgia, pursuant to due notice, between February 10 and April 2, 1958.
Upon charges filed by the Union, the Regional Director for the Tenth Region, on
behalf of General Counsel, issued a consolidated complaint against Respondent
upon basis of charges filed by the Union, alleging that Respondent E. L. Dell, an
individual, trading as Waycross Machine Shop, had engaged in and was engaging
in unfair labor practices within the meaning of Section 8(a)-(1), (3), and (5) of
the Act. Answers to the complaint filed on behalf of the Respondent denied the
allegations of violations of the Act. The General Counsel and his representatives
at the hearing are referred to herein as General Counsel, and the National Labor
Relations Board as the Board. E. L. Dell, trading as Waycross Machine Shop, is
referred to as Respondent or Waycross plant. International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, is re-
ferred to as the Union. Respondent Waycross in its duly filed answers and motions
denied generally the commission of unfair labor practices as charged, and affirma-
tively pleaded that the Union precipitated an economic strike by refusing to bargain
in good faith with Respondent on rates of pay, wages, hours of employment, and
other conditions of employment.
At the hearing, before the duly designated Trial Examiner, General Counsel,
Respondent, and Union were represented by counsel. Full opportunity was afforded
all parties to examine and cross-examine witnesses, to present oral argument, at
the close of the hearing and thereafter to file briefs as well as proposed findings
of fact and conclusions of law. Oral arguments were had by counsel, and briefs
were submitted to the Trial Examiner. Other motions upon which rulings were
reserved are disposed of hereafter.
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is an individual, operating a machine shop and plant at Waycross,
Georgia, where he is engaged in the production of bombs and similar items of
defense pursuant to a written contract from a defense agency on one or more
orders of the armed services of the United States, which contracts are for amounts
aggregating annually more than $100,000. I find, therefore, that Respondent
Waycross Machine Shop is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers and Helpers, AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Allegations of complaint detailed by General Counsel
General Counsel Fenton's opening statement explicates the allegations and charges
of the Union. His statement was as follows:
The charging union began an organizing drive in Respondent's plant in
September, 1956. We expect to show that during that same month, during
the week the organizational campaign began, the Respondent made several
threats to shut down his plant before he would deal with or operate with the
Union; that shortly after the Union filed its petition to represent these em-
ployees, the Respondent made further threats to individual employees that their
job tenure would become unlikely or that there would be a good deal of in-
security if they choose to be represented by this Union; that the day before
the Board ordered the election here, which was held on February 1, 1957, the
Respondent discharged Mr. Henry Gladden who had been one of the key men
in the Union's campaign and had made the initial contact with the Boilermakers
Union. Mr. Simmons was also one of those employees who helped to check
the eligibility list before the election; that during the layoff of approximately a
week which occurred immediately after the election, Respondent told a num-
ber of the employees that if they did not stop listening to the Union's propa-
ganda they would get themselves in serious trouble; that on February 49th
Respondent laid off 'O. C. Simmons who, together with Mr. Gladden, had
made the initial contact with the Boilermakers representative and brought him
down to Waycross Machine Shop with Mr. Simmons, and he was also an
observer at the election; that on February 25, Amerson and Vaughn were laid
off; on February 26, William O'Neal was laid off, and on March 19th, Earnest
Pete Vaughn was laid off. During this period, we expect to prove that Re-
spondent continued to engage in a campaign of interrogation and of unlawful
hindrance; that, following the Union's certification on February 11th, the
Union was able to get only two bargaining sessions until the strike, which
occurred on May 27; that shortly before the strike Respondent flatly refused
to resume negotiations or to negotiate any contract with the Union; that the
strike which occurred on May 27 was, therefore, an unfair labor practice strike;
that when this strike was called off on September 26, that the Union made un-
conditional application for reinstatement of those strikers and that in addition,
most of the strikers made individual applications on the 27th of September or
shortly thereafter and that none of them have been rehired to this date.
These charges of the General Counsel were the subject matter of his case-in-chief,
and must be proven by a preponderance of the evidence adduced by him.
Respondent's Case (Orientation)
Respondent Counsel Kontz Bennett's opening statement to the Trial Examiner
covers the matter included in his answer and the several motions directed to the
pleadings before the case came on for hearing. None of the motions were in the
nature of dilatory tactics. Counsel Bennett argued:
We would like to make an explanation of our position. With reference to the
statement of the attorney for the General Counsel that there were threats to
close the plant down about the time the election took place, the evidence will
show, and it is contended by the Respondent, that he did shut his plant down
for a week; he had a charge filed against him by the Board. The charge was
examined and he was exonerated from the charge. It appears that he performs
contracts for the Navy in building practice bombs and that his contract expired
about the time of the election; that he had to do refinancing, re-set his machines,
and do other work which properly took a week's time and that this was usually
his practice whenever one contract expired and before another one began, so
that he was fully exonerated for the closing of his plant for a week after the
election occurred. In other words, it was for economic, business, contract
reasons, and the Board itself examined it and exonerated him.
Now, we contend further that after the election, and I think the evidence will
clearly show that the Respondent Employer began negotiations in good faith
WAYCROSS MACHINE SHOP 1343
with the Union which was elected to represent the employees ; that prior to the
beginning of negotiations that, on request , the Company furnished lists of em-
ployees, hiring-in dates , rates of pay, and other information requested by the
Union ; that the two bargaining sessions rather than being characterized as
limited to-which I think the attorney for the General Counsel has no right
to constitute or characterize them,-actually the two sessions were entered into
with good faith , normal bargaining procedure took place; we have the contract
that was proposed by the Union and the counter-proposals made by the Respond-
ent; and then we set out in our Answer that at the time the second session was
held, that a Mr. C. L. Stave, who was the organizer for the Union, wrote a
letter in which he threatened the Respondent and gave him an ultimatum that
he must sign a contract or else.
I would like to read that letter. It will become a very focal part of the issue
in this case. I want to apologize to Mr. Stave,-the letter was signed by Mr.
Fred F. George. There were two [union] organizers here. Mr. George was
one and Mr. Stave was the other one. Actually, this letter was signed by Mr.
George. This is directed to me as attorney for the Waycross Machine Shop:
[reading] "This is to notify you that we have been meeting since February
21, 1957, attempting to negotiate a working agreement with the Waycross
Machine Shop, and if a working agreement is not reached by May 3, 11957, the
membership will be forced to take strike action in accordance with our Interna-
tional Constitution and Bylaws."
It is the contention of the Respondent that on account of the threat contained
in that letter that he did at that point stop bargaining with the Union. A strike
occurred on May 27, which Respondent contends was an economic strike be-
cause of the failure to reach a contract agreement due to the coercive action of
the Union's representative.
It is the further contention of the Respondent that the places of the striking
employees were permanently filled and the plant continued to operate. For
that reason none of them have been reemployed.
With reference to subsequent demands to begin negotiations, we will be in
a position to show that violence occurred at the plant at places in which the
union organizers were present; took no steps to stop it, did not repudiate such
violence in the newspapers or otherwise , and we set out in our Answer specific
instances where employees were beaten with sticks and pipes as they left the
plant, by the striking employees at or near where the International Representa-
tive of the Union was present; and we say that on account of this violence on
the part of the striking employees, aided and abetted by the International Repre-
sentative, that the Union forfeited its right to any further bargaining with the
Respondent.
We will be in a position to show that as to some of these strikers who engaged
in violence, they have already entered pleas of guilty in our local courts to
violations of the Criminal Law and disturbing the peace, and that charges are
pending against others of the strikers.
So that, summarizing it generally, Mr. Trial Examiner, we say we are not
guilty of any of the charges made, that the strike was economic and we are
not under a duty to employ people who went out on strike unless their places
could be filled-unless they had places that were not already filled by other
employees.
Now, one sharp issue in the case which I think would be proper to call to the
attention of the Trial Examiner, is in the matter of the application for rein-
statement of the striking employees. The petition alleges some 71 people in its
paragraph IX whom the General Counsel charges went out on strike. There are
a number of people on that list who did not go out on strike. There are nu-
merous errors in that list. Then the General Counsel, to perpetuate the error,
says that all of the said people in paragraph IX applied unconditionally for
reinstatement when the strike was called off.
So there are not only errors about those who went on strike but also a great
majority of the people in paragraph IX did not ever apply for employment
again at the plant. At the time the strike was called off, conferences were held
according to the evidence which will be developed, between Mr. Stave who is
in court, and myself, who am attorney for the Company, in which it was agreed
that any person who desired reemployment would report to the plant and file
an application for reinstatement, and a few of them did do that. Most of them
did not but it is just thrown in that everybody that went on strike re-applied
because Mr. Stave says they did.
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We feel that there are numerous errors that will have to be corrected in
what is actually said. We feel that the issues will be drawn on whatever points
in the case are at issue.
The Issues
In addition to his opening statement above set forth, General Counsel, in his
brief to the Trial Examiner, sets out the issues as he sees them as follows:
In addition to the resolution of evidence respecting alleged violations of
Section 8(a)(1), this case presents only two issues:
(1) Whether Respondent discriminatorily discharged Henry Gladden, O. C.
Simmons, Ernest Vaughn, Irving Amerson, Leon Smith and Willard O'Neal.
(2) Whether Respondent bargained in good faith with the Charging Union.
The subsidiary question of Respondent's duty to reinstate the strikers, of course,
depends upon this.
Respondent Counsel Bennett in his brief, under statement of facts, reaffirmed his
contentions as set forth in his opening statement, and further charged that in addition
to other illegal conduct on the part of the Union, the Union also illegally carried on
an original effort to conduct a secondary boycott, attempting to block shipments
into Respondent's plant.
Background of the Dell Company
This case is a saga of a smalltown business organized in the South after World
War I and during the depression. Economic conditions were hard and might be
compared to those obtaining in the South during the Reconstruction period. About
25 years ago, the Respondent, E. L. "Shorty" Dell, and one John Gibson "decided
to go into the machine shop business and we agreed that each would put in a $125
to buy some used machinery . I would put in the labor . . . we started repair-
ing various break downs around Waycross as far as machinery was concerned. We
would work on anything from an alarm clock to a locomotive; and we did . then
after approximately 2 years, I bought Mr. John Gibson's partnership out and from
that time on I continued to do repair work, welding, and just continuously to grow
until the present day operation." E. L. "Shorty" Dell was the son of a blacksmith,
as were his four partner brothers. "Shorty" Dell took into the organization Owen
Keefer (0. K.) Dell and made him production manager over all the plant. "Shorty"
made his brother, Frederick Leon Dell, general manager. His sister, Amelia Dell
Mobley, was his bookkeeper. Lawton Dell, who did not testify, was the other Dell.
Truly, this was a family company. All were machinists and personally participated
in the operations. As the Company grew, it hired and trained local "turpentine work-
ers," farmers, and other employable townsmen to do specific jobs in welding and
allied crafts.
Advent of the Union
do 1946, the Waycross Machine Shop got its first defense contract by competitive
bidding under the Walsh Healey Act on an Air Force assignment. At the time of
the Boilermaker Union organizing campaign, Waycross was under contract to the
U.S. Navy to fabricate and weld hatch covers and 25-pound practice bombs and
apparently had had no experience with labor unions-local or national. On Satur-
day, September 8, 1956, Respondent's employees Henry Gladden and O. C. Simmons
drove to the Brunswick, Georgia, headquarters of the Union and indicated their
desire for unionization of Respondent's plant. The next day, Sunday, Fred F.
George, Jr., and William J. Bailey, district representatives of the Union, contacted
Gladden and Simmons in Waycross. Gladden and Simmons signed cards authoriz-
ing the Union to represent them, and were given additional authorization cards
with which to solicit other employees in the plant. They returned many signed
cards to the union officials. The following day, which was Monday, Mr. George
and Mr. Bailey met with Mr. Dell and two of his brothers and told him they were
going to pass out literature and that "we are going to run a clean campaign and an
open campaign." "He told us to stay off his property. . We told him we would
abide by that and to my knowledge [George] none of the men ever went inside
the gate."
Based upon a petition filed by the Union on October 5, 1956, the Board, on
January 3, 1957, in Case No. 10-RC-3669, directed an election to determine whether
"all production and maintenance employees including leader-men but excluding office
clerical employees, guards, professional employees, foremen and other supervisors
of Respondent's plant desired to be represented for purposes of collective bargaining
by the Union. The Regional Director for the Tenth Region, on February 10, certi-
fied the Union as the representative of the employees in the unit.
WAYCROSS MACHINE SHOP 1345
The Company Grants a Wage Increase
Three days after the Union filed its representation petition , Respondent granted
a 10-cent general wage increase to all of its employees . Respondent admitted that
this was the first such general wage increase since the minimum wage was increased
to $1 per hour . This brought the average wage up to $1.17. E. L. Dell testified:
I don't know whether I received a Petition that day or not [October 8], but I do
know we did the same as Scapper Dryers and Ruben Brothers , all in the same week
gave their workers a 10 cent an hour across the board raise ." He explained that
at this time the cost of production was going down and production rising, and it
enabled them to pass the benefits on to their employees "as we have always done."
The Election and Alleged Lockout
On February 1, 1957, an election was held under Board auspices and the Union
won by secret ballot-66 to 28. On the afternoon of the election, February 1, after
counting of the ballots, about 6:30, it was called to the attention of Dell, according
to the testimony, "that a sufficient amount of bombs had been produced to fulfill
the contract in full, plus the coverage of 11/2 percent overage." A shutdown of
the plant resulted at that time, and continued during the following week. Dell
stated that this shutdown was purely coincidental, with no intention of trying to
punish the Union or resist the Union or to punish the people who may have voted
for the Union. He explained that this was necessary in order to rearrange the
machinery to take care of the new contract, stating: "We even had to make new
jigs and new methods of producing this new experimental bomb casting."
Dell further explained that the contract was not set to expire on a given date,
but when a certain number of 25-pound practice bombs were completed; he knew
several days beforehand-perhaps a week beforehand-that they were approaching
the termination of that contract, but he did not inform any of the employees of
this. He testified that they (Dell brothers) discussed this possibility, but Counsel
Bennett told him "that a wire award for the new bomb contract might come in,
and if it did we wouldn't have to shut down, but if I posted such a notice on the
bulletin board that I might be told by the Labor Relations Board I was threatening
the employees."
It appeared that Respondent received authority for this new contract by way of
a telegram on February 3, but did not receive the official contract until about
February 15. Dell had to have financial aid before he could meet his payroll,
which ran approximately $10,000 a week. It was necessary to assign the contracts
to the First National Bank in order for the bank to advance any money on the
contract. "I am not financially able to be able to handle any work of any size
without outside financial help." Dell also stated that the date of the election was
originally set for January 15, 1957, in which case the dates of the election and the
shutdown would not have coincided.
The Respondent, however, was charged with a "lockout" by Union Representative
George. The charge was investigated and the Company was "exonerated from
that charge both in the Atlanta Regional Office, and the Washington, D.C. office."
Bargaining Begins-Chronology
On February 5, 1957, Union Representative Lloyd Russell wrote to Respondent
Dell requesting "a list of all employees' names, showing their classifications, and
wage rate as of February 1, 1957, and secondly, the date that each employee became
an employee of the Company." This letter also advised Respondent that there
would be a three-man negotiating committee for the shop, assisted by the Union's
staff officers. Respondent was admonished not to make any changes in wages,
classifications, or working conditions without considering the International Union.
On March 4, 1957, Respondent's counsel, E. Kontz Bennett, submitted requested
information to Russell on all concerned employees, stating: "Mr. Dell is working on
counterproposals to your contract. I personally am in Federal Court this week,
but would like to suggest firm dates March 11, 12th until noon, or 13th & 14th."
Representative George had submitted, in the middle of February, a prepared pro-
posed contract-"a more or less standard contract, that we used throughout our
industry, and I personally, took a copy of that to Mr. Bennett's office." Bennett
then asked for time to study the contract and go over it with Mr. Dell, or for
Mr. Dell to go over the contract.
508889-60-vol. 123--86
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The First Meeting
On March 18, 1957, the first negotiating meeting was held. A neutral place was
agreed upon-the Railroad Y. M. C. A. where most bargaining sessions in Waycross
are held-and the parties were able to discuss only about half of the provisions of
the "standard" contract which the Union had submitted in the middle of February.
The Company forthwith agreed to some of these sections , and they set aside items
not agreed to. Dell testified that a wage scale was discussed "and that is where
Mr. George informed me I would pay more money or wouldn 't be operating."
George testified that wages were one of the last things they got into on the contract.
George denied that he made such a threat to put the Company out of operation.
Thus was presented a fundamental conflict . On the basis of the demeanors of these
two witnesses under oath on the stand , the Trial Examiner credits Dell in this
conflict.'
It appeared patently absurd to say that the question of wages did not come up
at the first negotiating meeting, particularly when the company pay was averaging
only $1.17 per hour, and the union scale , in the appendix A of its standard contract
(which had been in the possession of, and under study by, the Company for more
than a month ), ran from $1 . 35 minimum for laborer up to $2.35 per hour for layout
man, maintenance mechanic , welder and burner, and welder and fitter . ( Waycross
had none of these classifications-even supervisors ( the Dell brothers ) did ma-
chinist work.)
The Company 's Proposed Contract
Prior to the second meeting , which after two postponements was held on April
3, the Company had furnished the Union with a "counter -proposed contract" which
covered matters agreed upon in the first bargaining meeting, but omitted, principally,
the wage scales , classifications , seniority rules, and group insurance . In this counter-
contract , Respondent recognized the Union as the bargaining agent of its employees.
Obviously , the Company intended to negotiate on these matters when they arose
in considering the remaining half of the proposed union contract.
The First Threat
Cogent testimony anent the wage discussion and George 's threat was adduced
by Counsel Bennett in his interrogation of Dell, as follows:
Q. Now, Mr. Dell, at this second bargaining session you had a conversation
with Mr. George , when he had stepped out of the room to answer a telephone
call or something ; what was that?
A. The thing that is most outstanding in my mind about what the bargaining
put together is the manner in which Mr . Fred George made the statement after
I told him that on any contract that we may get together on, which could
not involve any more money because I had contracts with the government,
that had been attained on a highly competitive basis, and that we had won
the contract by a matter of three mills , and I told him then that any contract
we negotiated would have to be no more money involved so far as labor was
concerned.
In turn Mr . Fred George said to us in there: "I hope you don 't think we are
fool enough to :be down here trying to negotiate a contract with you when we
can't get any more money for our boys ." I said: "That is what we are doing."
He said: "I am here to tell you right now we are putting you out of business
before we will let you get away with any such thing as that."
George, questioned by General Counsel Fenton as to whether he had made these
statements , testified:
I believe the Dell boys have , and if they haven't they are entitled to it, a copy
of our Constitution , and I am not attempting to put Dell out of business in
any way. We have to live up strictly to our Constitution and we operate that
way, and each and every member of the local out at that plant had to vote
i The Trial Examiner does not credit George's testimony in this phase ( contract de-
mands ) of the case . Nevertheless , it does not follow that simply because one does not
believe a particular thing to which a witness testified everything he says must then be
rejected . Judge Learned Hand stated the rule thus :
It is no reason for refusing to accept everything that a witness says , because you
do not believe all of it; nothing is more common in all kinds of judicial decisions
than to believe some and not all . [N.L.R.B. v. universal Camera Corp., 179 F. 2d
749 (C .A. 2).]
WAYCROSS MACHINE SHOP 1347
by two-thirds majority in order to ever call a strike in that plant, and as far
as wages were concerned, that was one of the last things we got into on the
contract, and Mr. Dell said he would bring us a copy of his-exactly what type
of records it was, I don't know-whether it was his income tax or what it was-
to prove to us he couldn't pay us any more money and we offered to accept that
and to look at his evidence that he could not pay any more money. We never
received that.
Dell, questioned in this connection, replied that he heard George makes no such
offer, stating: "No, Mr. George didn't indicate he would go along with us in any
way about any wage agreement at all." Rather, he credibly quoted George as tell-
ing them at the bargaining meeting that a union welder in Savannah could earn $3.65
per hour.
Questioned about whether there was any discussion on bidding any future con-
tracts on the basis of a higher wage scale and letting the current contracts go at the
present scale, George testified that "one of the boys on the negotiating committee
said: Well, the next time you bid a contract you had better bid it for more money
so that we can receive more money."
At the second meeting on April 3, the rest of the proposed standard contract was
considered, and the Company agreed to furnish the Union with a contract that they
would sign and the Union was going to examine the contract before negotiations
were continued. Thus, a third meeting was not scheduled.
The Trial Examiner credits Dell's version because it appeared obvious that
George was equivocating and evading the frank truth. Evidence of his subsequent
deceptive conduct verified this conclusion.
The "Cotton Picking Hands" Impasse
The right of the Dell brothers to work as machinists in their own plant con-
tributed directly to a contractual impasse. In this connection, Fred L. Dell testified
that there was no fighting at either meeting "but George got pretty angry when it was
brought out in one of his articles that none of us Dell boys could touch any more
wrenches, and we would have to keep our cotton picking hands off of them." (These
were fighting words to the Dells.)
George testified in this connection: "The statement was made as we were going
through our proposed contract, and we carry that as -a standard clause in our con-
tract. We cannot represent supervision; we represent the working people and we
intend to represent them to the best of our ability, and doing that, we should be en-
titled to do the work; supervision has the right to oversee, supervise, instruct and so
forth, and I said: `other than that, supervision is to keep their cotton-picking hands
off the work'; but I will say again there was no anger in the statement." (The Trial
Examiner credits George's version that there was no anger in his statement, but it
was testimonially apparent by the way Fred Dell spoke that the Dells felt outraged
at such a limitation placed on their "cotton-picking hands.") [Emphasis supplied.]
Fred L. Dell declared that all the five brothers have been working people, and still
work in the plant, that all the brothers are in the plant among the employees most
of the time. Whether there is a conflict in the above versions is not controlling.
The Trial Examiner finds that four of the Dell brothers-excepting possibly E. L.
"Shorty" Dell-capably worked at machinist benches, did welding and/or performed
any other operations necessary to accomplish their Government contracts. As they
held up their hands to take their testimonial oaths, or as they sat at the counsel table,
hallmarks of manual labor were evident for all to observe-reasonably the effects of
handling machinists' tools. To deprive the proprietors of a small, family machine
shop of their right to work would likely cause an impasse and, the Trial Examiner
finds, did constitute an insurmountable factor in an impasse reached between manage-
ment and the Union.
Union's Letter Threatening a Strike
At the meeting of April 3, another meeting was not definitely scheduled, because
the Company had promised to submit a contract acceptable to it, which contract
George said the Union was going to study. Several days later, George called Re-
spondent's counsel, Bennett, and inquired when the Union could expect the contract.
Bennett informed George that his letter of April 2 had been received and was con-
sidered a threat. This letter reads:
This is to notify you that we have been meeting since February 21, 1957,
attempting to negotiate a reasonable agreement with Waycross Machine Shop,
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and if a reasonable agreement is not reached by May 3, 1957, the membership
will be forced to take strike action in accordance with our International Con-
stitution and By-Laws.
The letter showed that copies had been sent to John C. Getreu, then Regional
Director for the Tenth Region of the National Labor Relations Board; to Ben Hucitt,
Commissioner of Labor for the State of Georgia, as well as Cecil S. Massey and
A. J. Eberhardy, vice presidents of the Charging Union.
This letter had a devastating, if not paralyzing, effect on the bargaining negotia-
tors. Regarding this letter, dated April 2 but postmarked April 3 (Respondent's
Exhibit No. 14), E. L. Dell testified that while they were trying to reach a contract
at this negotiating meeting, on April 3, "they did not have the benefit of that letter."
George said the letter was already in the mail before the meeting. Queried by
Counsel Bennett: "Why didn't you bring the letter down to the meeting if you had
written it, and present it to us there," George answered: "I figured you had the
letter when we had the meeting." (The Trial Examiner believes this to be an un-
truth.) (Representative Stave, however, said the lettter George wrote was not an
unusual technique, but "a policy we follow." "There is no intent or threat and
every place I have been they do not state it as a threat.") George continued: "I
told him at the time the letter wasn't written with any intentions of a strike. The
letter was written complying with laws of the state of Georgia giving them 30 days
and putting us in a position where we could, if necessary, carry on a legal strike.
He informed me they considered it a threat, even if we didn't consider it a
threat. . . . And that the company was taking the position of a little boy that was
threatened and that for us to do whatever I felt necessary, that they considered that
a threat."
Q. (By Counsel Bennett.) You wrote this letter as a threat that unless we
took action on a contract you would strike?
A. (George.) Absolutely not and I told you that over the phone.
Q. And didn't I tell you I didn't work very well under threats . . . ?
A. I don't remember your saying that.
George further testified: "We were unable to schedule a meeting with the company
and we hadn't made any progress with the company. We had won an election on
February 1st and at that time we had not been able to do anything with the company
at all." Further: "Due to the fact that we were unable to get a meeting scheduled
with the company and complying with the laws of the State of Georgia, it requires
us to give the company thirty days' notice of any intent to strike and stay in accord-
ance with our Constitution and By-Laws of the International Brotherhood."
George's quoted reasons for writing the letter are untruthful because negotiations
had been proceeding in an orderly fashion, considering all of the factors, emotions,
charges, countercharges, threats, discriminatory discharges, and all the other strife-
except violence-which had characterized this union organizing campaign from its
inception. (These matters will all be developed, including a bitter strike, herein-
after.) In spite of all these untoward circumstances, the Company was bargaining
in good faith, as is evidenced further by the fact that Counsel Bennett, even after
designating the letter a breach of good faith, was willing to furnish a copy of their
ideas of a contract. However, he could not set a date.
Federal Conciliation Commission Enters Picture
The next step, taken sometime in April by George, was to contact a Mr. Duncan
of the Federal Mediation and Conciliation Service for the purported reason to "call
upon that agency to help and assist us [the union] to carry on negotiations when
negotiations have broken down. . . . " George and Bennett each had separate
conferences with Commissioner Duncan in Waycross, to no avail; it was evident
that the Company and the Union had reached an impasse as a result of the Union's
contractual demands upon management.
The Trial Examiner finds that the Union, through George, had submitted a con-
tract to Respondent Dell "that was going to be it," and followed that ukase with a
letter threatening a strike within 30 days unless the Company complied. This letter
was written the day before a scheduled bargaining meeting, but not mailed in time
to reach Respondent and alert it of the Union's intention to strike. The reason
advanced by Representative George, that he wrote the letter in order to comply
with Georgia law, is found to be a specious one-obviously so when he did not
mention it at the second meeting-when management was trying to bargain in good
faith. The Union is not charged with bargaining in bad faith, but this deception is
tantamount to such. Certainly, its action constitutes "unusual circumstances" and
WAYCROSS MACHINE SHOP 1349
caused an impasse which eventually precipitated an economic strike against the
Respondent-expensive to all persons and parties concerned.
Alleged Refusal to Bargain After May 20
Clifford A. Stave, district representative, on orders of the International Union,
relieved George on May 20, 1957.2 Section 8 of the complaint charges: On or
about May 20, 1957, the Respondent refused, and at all times thereafter has con-
tinued to refuse, to bargain with the Union as the exclusive representative of all the
employees in the aforesaid unit. Admittedly, the Respondent Company was not
guilty of a refusal to bargain up to this time. Nevertheless, when Stave took over
on May 20, he found that a strike had been called by George for May 23. Obviously,
such a strike called would be an economic strike. Therefore, the question to be
decided, at this point, is whether the strike called 1 week later, May 27, was an
economic strike.
Upon his arrival in Waycross, on May 20, Stave called off this strike, aware that
there was no refusal to bargain up to this point. Stave's version was:
I found there had been a strike scheduled, May 23d, the following Thursday
and . . . we wanted to see what we could do to adjourn this strike. . . . So I
went out to the plant to see Mr. E. L. Dell. That was on Monday, immediately
upon arriving in here, shortly after. I met with him in the office and we
discussed the situation and I asked him if he would meet with us to resume
negotiations. He stated he knew nothing in regard to unions or labor and
that he was leaving it entirely up to his attorney, Mr. E. Kontz Bennett.. .
I tried to see Mr. Bennett but he was out. . . . The first time I contacted
him was, I believe, the 25th, the Friday of that week, and in Mr. Bennett's
office I spent about an hour. He was very courteous and we discussed the
problems at hand and I asked him about resuming negotiations.
He asked me why such a large organization as ours would bother with such
a small shop. He said a union would not fit into the shop, that the company
could not go along with the seniority provisions and they could not give an
increase. I advised him as far as I had known, so far they had had a few
meetings and seemed to be going along all right and why couldn't we get
together and resolve these differences.
He mentioned some increases and I said the company had made no offer of
increases and I said we were not interested in bankrupting the company, that
we were only interested in fair treatment and Mr. Bennett stated: "No, no con-
tract." He was very courteous about it. [Emphasis supplied.]
upon leaving Mr. Bennett stated to me: "I realize you can file an
unfair labor charge against us. Are you going to do it?" I said: "Mr.
Bennett, I don't know yet." That ended that meeting for that week and the
strike was then called on May 27th because there was no alternative for it.
Further regarding the meeting with Bennett on May 25, Stave said: "I advised him
the strike had been called off, that we did not want a strike; we wanted to resume
negotiations. . . . I have never yet had to call a strike and this was the first one."
(Stave has been working with the organization since about 1949, and has had
authority to call strikes since 1951 or 1952.)
The cogent testimony which demonstrates, to the Trial Examiner at least, that the
Respondent, by its attorney in law and fact, was still bargaining in good faith right
up to the time when the Union called its strike, is to be found in the colloquy on
cross-examination by Attorney Bennett of Stave. This portion of the record ap-
pears as follows:
Q. (By Mr. Bennett.) Now, Mr. Stave, going back to the conference which
was held in our office about May 20th, the date that you first came here, didn't
we discuss pretty fully the set-up that Mr. Dell was operating under, the fact
that he had Navy contracts to fulfil?
A. Yes, sir, we did discuss that.
Q. And wasn't it brought out in the conference that Mr. Dell only got those
contracts after he made competitive bids against other people for the contracts?
A. That is what you stated, yes, sir.
George denied that he was relieved because of the letter, but said his services were
required in Brunswick, Georgia. There is evidence in the record that George was in-
experienced; but Stave supported George and his conduct. Stave denied that Attorney
Bennett told him that he, Bennett, had talked with Cecil S. Massey, International vice
president, as to what was done "and Mr. Massey said he regretted that."
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. And was it not stated that the present contract that he had was based on
a certain labor scale as to part of his bid and he could not change that during
this contract?
A. At that time you stated that and I stated that is nothing new. That
happens in numerous plants throughout the country.
Q. We went into all that very frankly?
A. Yes.
Q. In a very friendly way?
A. Yes, I will state that.
Q. And we went into a business set-up and I stated fully why he could not
grant any wage increases at that time?
A. Yes; you did not state he could not grant any wage increases. You said
he could not afford to put out any more money.
Q. Let me refresh your recollection very carefully and see if you are not mis-
taken in saying I ever told you that there could be no contract between Mr.
Dell and the Union. What I told you was that we could not bargain with the
union because of the threat that had been made in Mr. George's letter; isn't
that what I told you?
A. No, sir, that is not what you told me. You told me definitely and I can
remember this because when I left you emphasized I could file an unfair labor
practice charge because you did not bargain. You said that contract would not
fit into that shop and Mr. Dell would not sign any contract with any union.
Q. Assuming I told you that you could file an unfair labor practice charge,
is it possible to file that because a contract isn't signed?
A. I beg your pardon. I wish you would read that.
Q. Failing to sign a contract is not grounds for an unfair labor practice
charge, is it?
Mr. FENTON: I object; Mr. Stave is not a lawyer.
Mr. BENNETT: He is a very experienced labor representative and he is dis-
cussing-this is on cross examination and I brought out what he said I said
about a charge.
TRIAL EXAMINER: If he knows he may answer.
The WITNESS: Repeat the question.
Q. (By Mr. Bennett. ) Mr. Stave, isn't it true that the Taft-Hartley law
does not require either party to make a concession or to sign a contract, but does
require both parties to bargain in good faith; isn't that right?
A. It requires the parties to bargain.
Q. But does it require them to make a concession or sign a contract? They
must bargain in good faith, isn't that right?
A. They must bargain in good faith.
Q. Yes.
A. As far as the other part would go, I am not right up on that so I can't
answer in regard to that.
Stave testified that after he left Mr. Bennett's office on Friday, he tried to see Dell
again, but was informed Mr. Dell was too busy to see him. (The Trial Examiner
was convinced that Stave went through this motion for the purpose of laying a
foundation for a charge. Dell had already told him that Bennett was his
spokesman.)
It would be not only illogical, but absurd to credit Stave's assertion that a lawyer
of Bennett's reputation, with his long and distinguished career involving labor-
management relations law, both in State and Federal matters, would dogmatically
state to a union representative: "No, no contract!" Bennett tried to keep bar-
gaining alive.
It is clear from a study of the entire record that Respondent had recognized the
Union, and was willing to sign a suitable contract with it, but could not bargain with
the Union which itself was not bargaining in good faith-evidenced by its demand
for its terms, backed up by its threat of a strike. This action by the Union created
an impasse.
The Strike
Stave left Counsel Bennett's office on Friday possibly undecided whether to file
charges of unfair labor practices with the Board, or to call a strike in order to bring
the Respondent to the Union's terms. As previously indicated, there were various
examples of implicit violations of Section 8(a)(1) involving interference, restraint,
and coercion, as well as several discriminatory discharges violative of Section
8(a)(3). Instead, Stave followed George's formula and called a strike, thereby
endorsing that course which had created an impasse.
WAYCROSS MACHINE SHOP 1351
On Monday, May 27, 1957, the strike began. This was an economic strike as dis-
tinguished from an unfair labor practice strike. About 60 employees joined in the
strike, and went out on the picket line. Respondent proceeded immediately to
replace them permanently with new employees. This permanent replacement of
economic strikers Respondent had the legal right to do. It had important Govern-
ment contracts to fulfill and had the right to try to survive when its striking em-
ployees exercised their rights to withhold their labor.
Charged Mental Atmosphere Preceding the Strike
At the outset of this report, the contentions of the Union and the Company
were laid before the reader by the recitation of the original opening statements of
counsel. It will be recalled that the General Counsel asserted that: As soon as
Respondent became aware of the Union's intention of organizing the plant, officials
of management threatened to shut down the shop before operating under a union;
supervisors threatened the job tenure of individual employees; the day before the
Board-conducted election, Respondent fired Henry Gladden who had made the
original contact with Boilermakers Union; the Respondent shut down the plant for
10 days immediately after the count of the votes showed the Union to have won
by a three to one majority and was charged with a lockout; thereafter for weeks
the Respondent interrogated employees as to their union affiliations and threatened
them with reprisals; five more prominent union adherents were discharged; and the
Company refused to bargain with the Union. Respondent's counsel affirmatively
denied the alleged unfair labor charges, and admitted that the plant was closed for
a week, but that Respondent was exonerated by the Board from the charge of
"lockout." The accepted explanation was that Respondent had finished one Navy
contract, and before beginning another Government contract had to close down in
order to retool and reset plant machinery, as well as to arrange for the refinancing
of the new operation. Also, the date of the Board election had originally been
scheduled for a 2 weeks prior date, therefore, the shutdown was coincidental. Re-
spondent counsel also argued in considerable detail the good-faith efforts of the
Company to negotiate with the Union on a contract, only to be met with threats.
of bankruptcy, ultimatums demanding compliance with terms and conditions impos-
sible of performance by Respondent, and failure of good-faith bargaining by the
Union. Thus it was under these mental conditions and emotionally charged atmos-
phere-right or wrong, true or false-that all parties concerned went into or became
involved in the strike.
The Burden of Proof and Proceeding
Just as the General Counsel was charged with carrying the "burden of proof" in
establishing his allegations of unfair labor practices, so fell on Respondent the
"burden of proceeding" in the strike phase of the case.
The reason for this latter role derives from Respondent's answer and is shown
implicit in portions of Respondent's brief, reading as follows:
Respondent further contended that the charging union had forfeited its right
to demand bargaining because of its alleged conduct, following the strike of
May 27, 1957, in setting up illegal picketing lines at the entrance to Respond-
ent's Waycross, Georgia, plant, and that the Union engaged in mass picketing,.
beating of non-striking employees with sticks and pipes and other dangerous
instruments and following non-striking employees from the plant of respond-
ent to their homes and threatening them with violence and harm and otherwise
engaging in a course of action of terrorism. The Respondent specified numerous
specific instances of the illegal conduct of the Union setting out names and
dates and places of such occurrences. The Respondent further charged that
in addition to other illegal conduct on the part of the Union, the Union also.
illegally carried on an original effort to conduct a secondary boycott, attempt-
ing to block shipments into Respondent's plant by rail, express and truck service..
The Picket Line Is Formed
The. strike took form on Monday morning at the plant with the congregating of
some 40 or 50 strikers at the plant. A picket line was formed under the supervision
of Union Representative Stave. Stave advised both County Sheriff Lee and Chief
of Police Ball of Waycross of the date and time of the strike and that the plant would
be picketed in an orderly manner by striking employees. Stave testified that there
was no obstruction of traffic, and no interference with people going in or out of the
plant, that he never saw any picket physically interfere with any nonstriking em-
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee, or heard foul or obscene language used. Eight picketers, who testified, sup-
ported Stave's testimony.
E. L. Dell had a different version, however. Dell testified "there was a lot of
profane Language used on that strike line out there . . . as the different trucks would
come in to make deliveries and pick up deliveries, the striking boys would get in
front of the trucks or stand in their way to where they couldn't get in and out, and
that is where I chose to put a policeman on our front door in order to have a
policeman on duty in case any trouble of any kind showed up, that he could clarify it
and keep our production line fed with these trucks and carriers coming in and out of
our plant." He later testified he arranged to hire policemen "immediately upon
the boys getting beat up when they left the plant when the strike went on." He testi-
fied he made arrangements for one man only to be there. He could not tell the
number of policemen who were there: "It would vary. If there was a big crew of
the union's strikers out there I notice that there would be quite a few policemen
out there and if there weren't many strikers out there I would notice there wouldn't
be many policemen out there."
Chief Ball stated that no violence on the picket line came to his attention. He
testified: "I think that the parties on both sides were displeased at the conduct of
the pickets and at the conduct of possibly some of those who were not on the picket
line who may have been working, and that was our main purpose in trying to have
peace and order out there and I told Mr. Stave and several of the other pickets
that it was not our purpose to settle a strike or be involved in it in any way, that our
job was to see that we had peace and quiet."
Chief Ball stated that almost from the beginning of the disturbance he had one
or more officers near the entrance all the time, from 7 o'clock in the morning until
6 o'clock in the afternoon, usually, with exception of Saturday. He testified: "As
I set out in this charter, it [the city charter] puts the responsibility on me to see we
do have peace and quiet if it is possible to have it and, as a rule, when we do have
a disturbance the people involved, in this case Mr. Dell, ask for protection and
I told Mr. Dell that I would be glad to furnish off-duty men and that it would be
necessary for him to pay them and that our rate of pay was $2 per hour, and that
I then posted a notice on the bulletin board in the lobby of the police station making
this work available to any off-duty policeman who was desirous of extra income,
that they certainly need beyond their pay." Policemen worked extra duty at the
plant for the 17 weeks of the strike.
First Incident of Violence
Even though there was no violence on the picket line itself, certainly violence,
originating from the strikers congregated near the line, occurred on the second day
of the strike, May 28. The victim was nonstriker Hoyt Summerlin. The facts in
this situation were: Eugene Leverett testified that on May 28, 1957, about noon, he,
Ted Jordan, Jack Layton, and James Courson were leaving the plant for lunch in
Hoyt Summerlin's car when a Mercury full of boys came by, and about 4 or 5 blocks
from the plant, these boys stopped and told them to pull over. "They stopped and
started yanking the door open and beating the side of the car. . Finally this boy
snatched the front door open and started beating on this Hoyt." Hoyt was driving
and "finally he got the car cranked and we pulled on off and we went to the Sheriff's
office and reported it." They did not swear out a warrant. Bennett stated that
warrants were sworn out by him in this case. James Courson testified that they
waited until about 12:30 before seeing the sheriff, talked to the sheriff, and got back
to the plant about 1:15 p.m. E. L. Dell testified that he observed the incident, and
cited it as one of his reasons for asking for police protection for himself and his
-employees. Fred L. Dell testified that Summerlin came back in the plant beaten
up: "He was very excited and probably very scared because he barely could speak."
Two of the assailants were identified as Bill and Buster Carmichael.
Second Incident of Violence
The second incident involved the brutal beating of a nonstriking employee, Doyis
Music, by four striking employees. Doyis Music testified that when he was leaving
the plant at 5 o'clock on May 29, two cars followed him. He did not know any
of the boys in the first car, but the boys in the second car were Buddy Parker, Gene
Gill, Bill Carmichael, and Buster Carmichael. Parker admitted he beat up Doyis
Music and was fined $100. The other three received a 4-month suspended sentence.
At the time of the beating these boys were not members of the Union, but joined
shortly thereafter. Stave testified that he engaged Lawyer J. Edwin Peavey to
represent-themfin the'city court of Waycross. Stave said he'paid :the-lawyer's"fee,-.
but that the boys paid the fine.
WAYCROSS MACHINE SHOP 1353
Car-Following Episodes
There were other incidents of strikers following nonstrikers from work and
threatening them with violence. Some were reported to the police or to the sheriff.
E. L. Dell testified: "On several occasions my employees called me at 5 o'clock
who said they had been chased by strikers who hollered at them and tried to stop
them on the road between our place and Waresboro, that they had threatened them
and called them dirty names because they were working while the strike was on."
He testified that during the early days of the strike he saw considerable chasing of
cars from the parking lot across the street from the plant: "When the boys would
be on their way home. . . . As I would be seated in my office which is right across
the street I heard a lot out there. As somebody would go out of our gate . . . some
of the striking employees would yell `Yonder he goes; there he goes; let us get him;'
and three or four would jump in the car and run after them." Stave testified that
he never saw strikers following workers in cars.
Elzie D. Franks, a nonstriking employee and a Baptist minister, testified that he
had been living in Waresboro, which is about 12 miles west of the plant on U.S. 82.
"One afternoon as I left the shop to go home from work there was a fellow told me
they were going to work me over because of my going through their picket lines and
I started home. Then I stopped up the road and waited because I didn't want to
go into the community; I waited about thirty minutes for them to come on and
they didn't come so I went ahead on to where I was staying at the present time and
went in a little country store there." Reverend Franks was sitting there drinking
milk when a car drove up and a boy got out of it and walked to the door and said:
"Preacher, we want to see you." He walked outside the building "and two other
cars were over there and they began to tell me what they were fixing to do. . . .
They were not using very nice language." A Mr. Dyson, father-in-law of one of the
boys, "walked to the dor and told his son-in-law he had better get in the car and
go home and two or three of the other fellows from the community then came up
and we called the sheriff and had the sheriff come out and escort me back into town,
and I stayed in the hotel." He spent two nights at the hotel and drove to Tifton
the third night "because of their threatening to do me bodily injury." He named
strikers Jesse Davis and the Chancey boy.
Dell also testified regarding two instances where his car was followed late at
night when he left his office "one time approximately at 2 o'clock in the morning
and the other about 1:30 one morning. One morning I was followed by a dark-
colored car; I can't tell you whose car it was or who was in it. . . . It took off
from being parked across the street from my office and followed me to my house."
He said he was bumped twice by the car following him.
Stave testified he had not heard about this, but admitted following Mr. Dell in
his truck out to the Waycross Air Base. His reason was to find out whether the
equipment loaded on the truck was to be stored or shipped. "We were interested
in seeing how much shipment they were getting out. In other words, to see how
effective the strike was." When Dell stopped and turned around, he stopped and
turned around.
Carl F. Sweat, Jr., testified that he and a striker, a boy from Blackshear, were
called in by the sheriff .for following a man; said the sheriff had a call he had beaten
somebody up in Waresboro; and denied Bennett told the sheriff to let him go: "I
don't recall your saying `Let him go' because there was no charge against me to
hold me."
Picketing-Ingress and Egress to the Plant
There was considerable testimony concerning ingress and egress through the
picket line. Cogent testimony illustrates the situation in this connection.
I. C. Joyner, local agent of Terminal Transport Co., and Archie Callaham,
local agent for Great Southern Trucking Co., testified they did not have any trouble
getting shipments in or out of the plant, although F. L. Dell testified one truck was
stopped for about 20 minutes and another for about 30 minutes. Joyner stated that
Stave came to his house during the time they were delivering to the plant, and Stave
explained that they asked the truckers to respect their picket lines. (Stave was.
present during the first 9 days of the strike, and was then relieved by George for a
period of about 2 weeks.) George testified that he asked Mr. Morris of the Rail-
way Express not to cross the picket line. He testified: "The only people I asked
at all to honor our picket line was the Railway Express Company, the Railroad and
the man who threatened to whip me when he slid up in front of Mr. Dell's shop."'
The latter refers to Robert H. Myles, who is in the contracting and contract hauling
business. It appears he took a bulldozer part to the plant to be repaired and left
it together with his trailer. Shortly after it was delivered to his premises on the
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jacksonville Highway " a gang of the union personnel came to the premises and
accosted one of my men ," according to Myles. At the time Myles was out of town,
but the employee, Noah Charles Davis, testified that they said they had reason to
believe the trailer was loaded with bombs, and quoted them as saying : "I am going
to have all your trailers and trucks blackballed up and down the road and put on
the unfair list." He identified one of the men as Stave and Myles identified Mr.
Stave as the man who had threatened to blackball them, but Mr . George testified
Myles threatened him and not Stave , and Lamar Lee testified that Myles invited
George, not Stave, to settle the difference in a fight.
There was testimony regarding an incident where the police were called when
George D. Justice , an employee of the Company , was attempting to unload a van-
load of bombs , and was able to get the trailer up to the boxcar only with great
difficulty because picket Lamar Lee had his car parked in the way.
Chief Ball testified ". . there is a siding back of the Waycross Machine Shop
and adjacent to Tapley-Walker Concrete where the Waycross Machine Shop un-
loaded materials and various other things and loaded some, I suppose , finished prod-
uct to be shipped out , and we had several calls out there and as a result of these
calls, we sent officers out there every day during the time that the railroad switch
engine would be working that area there. .
"On one occasion two pickets , and I don't recall their names, were standing on
either side of the railroad track about on the cross ties and the switch engine wouldn't
attempt to go through because I suppose of hitting the pickets and I asked them to
move off . . . and they did."
Ball testified as to an incident when Mr. Stave was standing on the edge of the
street in the center of the track and he escorted him off . Ball testified : "I don't
say I took him off bodily. I led him off and I think I made a statement that I
wasn 't going to lead him off any more , that if he did it any more I would make a
case against him and bring him to trial ." On cross-examination , Stave denied this
incident . His testimony was:
Q. (By Mr. Bennett. ) Mr. Stave, I believe you say that in response to one
of Mr. Fenton's questions that you never saw anybody interfere with a truck
or a train or anything like that coming into the plant, isn't that what you said?
A. Yes, sir; that is correct.
Q. I don't suppose it would be possible for you to see yourself interfere with
a train; you could make that statement and still interfere with one , yourself.
A. I would appreciate it if you would be more definite in what you mean.
Q. Isn 't it time that you got on the track and wouldn ' t get off and the police
bodily picked you up and lifted you off the track , so that the train could pass on?
A. No, that is definitely not true.
Q. Nothing like that happened?
A. No, sir ; no one has ever picked me up bodily and taken me off the track.
Q. Did the police say they would have to do that before you got off
the track?
A. No.
Q. Tell us about that incident where you were on the track and wouldn't get
off but finally did get off when that train came in and was trying to spot a car.
A. It is impossible for me to tell you about that incident because there was
no such incident.
Ball testified that the only person he had any argument with was Mr. Stave.
He testified , "Well, iI informed him I was not elected by the Commission and that
if he would take care of the picketing that II would take care of the policing and
I believe I made the statement that I hoped the town didn't shrink up so that there
wouldn't be room for both of us because I planned on staying here."
Stave's version was:
This incident here, it might be personalities ; Chief Ball at one time remarked
to me, he said : "I understand you are trying to get the people to vote against
me." He said: "5I have news for you . II am not elected ; I am appointed."
I said: "I understand that but I understand the City Council is elected and
they appoint you." He said: "Don't make this town too small for the both
of us."
Q. Is it true you were doing what you could to see that Chief Ball did not
become the next chief of police in this town?
A. The only thing I have done in regard to any of that was to tell the people
and tell my people that it was part of our civic duty to register and vote and
get people in there to represent them properly , and that it was in our . opinion
WAYCROSS MACHINE SHOP 1355
and that of every man, I think , on that line, that Chief of Police Ball was taking
an undue interest in the strike at the Waycross Machine Shop and trying to
exercise law and enforcement in there which was not called for.
The Only Arrest
The only arrest made on the picket line was that of Willie Cooper, a Negro, for
carrying a gun . This case was held in abeyance for several months and "nolle
prossed." Stave arranged bail for Willie Cooper and had anattorney represent him.
Strike Called Off
On September 26, 1957, Stave wrote a letter to Dell , which informed Dell that
at a meeting of Local No . 653, held on September 25, 1957, it was voted to call off
the strike , and that it would be officially called off as of 6 p.m. on Friday , Septem-
ber 27, 1957.
The letter reads:
The employees , shown on the attached list, hereby individually make an
unconditional request and apply for reinstatement to their former or substan-
tially equal positions . These men are immediately available for reinstatement
and are ready, willing and able to return to work.
In addition to this formal request the individuals named on the attached list
will make a personal appearance to apply for reinstatement and to reaffirm their
request for unconditional reinstatement.
Section 9 of the complaint lists 74 employees who allegedly went on strike, and
section 11 alleges that employees named in paragraph 9 unconditionally applied for
reinstatement.
Respondent counsel contends that "many names were `thrown in' who did not
go on strike and many more did not apply for reinstatement."
Stave testified: "As to the majority of those employees it was no guess.. . . There
might have been a few in there which were in doubt in the back of my mind and
rather than deprive a man of the rights guaranteed him I entered his name. There
may be some names on that that shouldn't be on it but it was my intention to try
to protect the people who had come out. . . . There were employees discharged
because of their joining the Union . I put down their names in the hopes we could
arrive at some solution as to them too."
During the proceeding General Counsel moved to strike 16 names from the com-
plaint. Presumably these 16 were not strikers as 2 of them, Wilfred Boatwright
and David C. Jernigan, testified they were not strikers. Those withdrawn were:
Wilfred Boatwright, William C. Bryson, Zack Buckholtz, Richard C. Griffin, Jesse
Hampton, David C. Jernigan, Oscar Lee, Norman Leggett, Claudie Rogers, William
P. Rowell, Wilbert Rowell, Jazy B. Shafers, Rudolph Smith, Bobby F. Spikes, William
J. Strickland, and Hulon Thrift.
Of the remaining 58, there were 35 who formally reapplied for reinstatement, and
exhibits were introduced to prove this. The Company arranged to take these appli-
cations. In fact, Stave testified that Bennett asked him: "How is this going to be
handled? We would like to know how the people can come in and arrange it so
that the people can set up a place in their outer office a place for the employees to
register?" Neither E. L. Dell nor Mrs. Mobley knew whether any of those who
:applied for reinstatement were rehired , but Kenneth Altman testified he got his
job back.
All told 34 of the strikers testified. Of the 23 who did not formally make appli-
cation for reinstatement, 11 testified , and only 2 of these claimed to have reapplied,
although some of them said they went back to the plant seeking jobs. George P.
Campbell and Stafford R. Davis were the two who claimed to have reapplied though
no exhibit was introduced to verify this . Of the 12 who did not testify and where
exhibits were not introduced to show they reapplied , the testimony does not sustain
the belief that they did make application for reinstatement , and George Campbell
specifically testified that his brother, Willie W. Campbell, did not reapply. With
the exception of Troy Davidson , the testimony shows all were strikers.
During the Strike
Stave testified that shortly after he arrived he called the Federal Mediation and
Conciliation Service and attempted to get their services , but to no avail , but did not
indicate whether this was before of after the strike began : On June 5, 1957, after
the strike began , Stave wrote a letter to Mr. Dell advising him "that we are still
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
willing and waiting to meet with you in regards to negotiating a Contract." There
was no reply. This letter was written during the first 9 days of the strike, and Stave
admitted passing Attorney Bennett several times on the elevator, while he was
en route to Attorney Peavey's office. Asked if this was good timing to ask for bar-
gaining negotiations while "you people are beating up men," Stave replied, "If they
can refuse to bargain when I go to see an attorney, then I don't know what has
happened." Stave testified the Company attempted to get an injunction against the
strike. The date of this injunction is unknown, but is presumably about this time.
In the middle of July, Stave went to see Mr. Dell and was told Dell was too
busy to see him. Upon leaving his office he went to see Dr. Blanton, the Com-
pany's doctor, but was told he had no interest in the Company.
In the latter part of July, he called upon Bennett asking "if there wasn't something
that could be done to resume negotiations," and asking him to contact Mr. Dell.
Stave testified Bennett replied by telephone either that day or the next and said,
"I am sorry . . . Mr. Dell says: "No contract, period, and there is no union." 3
On August 8, 1957, the Union filed an unfair labor charge against the Company.
On September 20, 1957, Stave wrote another letter to Dell requesting a meeting
and received no reply. Asked by Counsel Bennett if this letter was written in good
faith he replied, "Yes. . Sometimes people have a change of heart." Stave
denied he wrote this letter for the purpose of building evidence in this case, stating
he did not know whether the case would be filed because he did not know whether
the Regional Office would accept the charges. Stave admitted he had attempted to
get the Navy to cancel Mr. Dell's contract. "There had been reports that work
coming out of the shop was faulty, and I advised the Navy of the same. I am a
taxpayer, and that is part of my duty."
Although Stave knew Dell had turned this matter over to his attorney, he continued
to address two letters to E. L. Dell and saw him once.
Respondent's Final Contention
The Respondent charges that the Union refused to bargain in good faith with
Respondent and as a matter of law forfeited its right to bargain.
Respondent quoted the Labor Management Relations Act (29 U.S.C.A. section
158, pp. 258, 260) as follows (Section 8):
(b) It shall be an unfair labor practice for a labor organization or its
agents . . . (3) to refuse to bargain collectively with an employer. . . .
(d) For the purposes of this section, to bargain collectively is the perform-
ance of the mutual obligation of the employer and the representative of the
employees to meet at reasonable times and confer in good faith with respect to
wages, hours, and other terms and conditions of employment, or the negotiation
of an agreement, or any question arising thereunder, and the execution of a
written contract incorporating any agreement reached if requested by either
party, but such obligation does not compel either party to agree to a proposal
or require the making of a concession. [Emphasis supplied.]
Conclusion on Refusal to Bargain
The Trial Examiner has found that the Union foisted upon Respondent its own
contract and demanded compliance with its terms which were repugnant to
Respondent and impossible of performance if the Company was to remain solvent.
It has been found that the Respondent has at no time prior to the strike refused to
sit down and bargain with the Union in good faith in en effort to reach a satisfactory
contract. Except during the strike violence when emotions ran rampant, Respond-
ent's spokesman, Attorney Bennett, not only has been willing to sit down with union
representatives, but has assured the Union that he, as spokesman, would deliver
Respondent's conception of a satisfactory contract. During the time of strike
violence only, 13 days, Respondent delayed, but has not refused to sit down and
discuss terms. The justification for delay in this interim was, in Respondent's mind,
a time not propitious nor conducive to amity. Even during this time, Respondent
Spokesman Bennett advised the Union that he would submit a contract and bargain.
Respondent would not, however, agree to terms dictated by the Union. Further,
the Union had lost its majority in the unit with the permanent replacement of the
strikers. Because this strike was an economic one rather than an unfair labor
3 The Trial Examiner simply did not believe Stave's testimony in this instance. It was
incredible and unbelievable that an experienced labor-relations legal expert would confess
without' avoidance his client's case in main.
WAYCROSS MACHINE SHOP 1357
practice strike, Respondent had the right to, and did, permanently replace them.
(Cf. Henry Heide, Inc., 107 NLRB 1160.) The evidence shows that the Union
represented only one or two of the employees who replaced the strikers. Since
under the law these economic strikers could not vote in a Board-conducted election,
having been permanently replaced, it is believed that the facts set forth in the record
present such "unusual circumstances" as to justify the Respondent in failing to
bargain with the Union after the strike was abandoned, even through the certifica-
tion year had not yet elapsed.
Violations of Section 8(a)(1)
The complaint alleged that Respondent E. L. Dell personally on or about January
31, March 5, and April 1, 1957, and by his supervisors on about the dates set
opposite their names, interrogated employees at the Waycross plant concerning their
union membership, sympathy and desires and the union membership sympathy and
desires of other employees: Assistant Manager Owen K. Dell, January 30 and
February 1; Plant Superintendent Lawton Dell, March 1; Assistant Manager Lloyd
Dell, April 1. Further, Respondent E. L. Dell on December 18, and Plant Manager
Lawton Dell on January 28 and 29, threatened employees that their job tenures
would become uncertain in the event a majority designated the Union as their
collective-bargaining agent. General Counsel amended the complaint on April
28, 1958, alleging that E. L. Dell interrogated employee J. B. Worthington about
May 1 concerning his union membership and sympathies and threatened to shut
down his plant before he would sign a contract with the Union; and that about
October 15, E. L. Dell interrogated employee James Burkett concerning his union
membership and activities. Respondent denied the allegations.
The Situations
A day before the election, January 31, E. L. Dell questioned employee D. C.
Jernigan about the election, and asked him, "How do you think it is going to turn
out?" Jernigan quoted Dell as saying, "You don't know what they are going to do,
those union men have big talk but they don't understand what they are doing.. . .
Those union men can't make me pay you more than I pay now because I take these
jobs under contract and I am not going to lose money on it. . . . I have enough
work to last the rest of the year. . If it comes I can't guarantee anything."
He said the repair crew is what he had when he started and before he would lose
money that he would just use that. (Jernigan's testimony was suspect. Jernigan
was on parole, guilty of armed robbery; discharged May 14 before the strike.)
E. L. Dell testified that Jernigan asked him: "How do you reckon work is hold-
ing up?" Dell told him: "I thought it was holding up pretty well, that I had other
contracts that I had not signed yet in my drawer in my office for additional work
that would probably run us for a year or more," but that was about the extent of
the conversation with Jernigan.
Q. At that time did you ever threaten not to sign a contract or to continue
employment of people in Waycross to Mr. Jernigan , because the union had
tried to organize your plant?
A. Definitely not; I have never said that to any employee or anyone else.
Charles F. Davis testified he overheard this conversation in the restroom between
Mr. Dell and Jernigan: "He said in there that he had three contracts in there, on
his desk and they would last for a good while in there, and he said if everybody
would give him his pay, a week's pay, for a week-everybody in there, he would
be ahead where he wouldn't have to borrow money to pay the men off and he said
in there again about that election: `Let your conscience be your guide.' . He
said in there that if everybody would vote, No, that we would still have a job in
there and he wouldn't have to close down the plant." Davis was subpenaed to
testify. He went to work before Christmas 1956.
The above is not found to be violative of Section 8 (a) (I).
The instances alleged as occurring on March 1, March 5, and April 1 are:
Leroy James Henley quit work and was not there at the time of the election, but
went back to work the first week of March 1957. He testified Lawton Dell "asked
him if he belonged to the union the day he hired him." He said: "I was at the
water fountain one day and E. L. Dell came and asked me which side of the fence
I was on and I told him the same thing I told Mr. Lawton, that I hadn't thought
too much about it, and he said `If you will stick to me you won't regret it if some-
thing did come up.' " In early April, E. L. Dell called him and Lamar Lee into
the office and told them he had a letter from the Government that he couldn't work
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a man over 8 hours a day. Henley said: "If we turned in 350 casting, our 8 hours
were made . he wanted us to work on when we got our production, to 5 o'clock
and work straight time and not pay us overtime like he had been paying us.
Further he also stated about this union business coming up again, and he told us
that he had a union contract in his desk drawer and he wouldn't sign it under
any circumstances whatsoever, that the wages and conditions in it were outrageous."
Lamar Lee testified that "E. L. Dell called me and James Henley and Rex
Strickland in his office and told us he wanted more production. Our production
was 300 then and he told us he wanted us to keep on with production after that."
Asked if Mr. Dell said anything about the union on this occasion, he replied: "I
just know something about him saying he wasn't going to sign the contract."
The foregoing testimony is credited by the Trial Examiner and found to be
violative of Section 8 (a)( 1 ) of the Act.
The January 30 and February 1 incidents involving O. K. Dell's alleged interro-
gations are:
Wm. V. Carter, who is now working for Waycross, denied that any supervisor or
official had mentioned the union to him. General Counsel attempted to question
him regarding an affidavit he had given to the effect that on Wednesday before the
Friday on which the election was held Keefer Dell came to him and asked him:
"What do you think about the union coming in here?" His reply was: "Well, I
will tell you, I don't know too much about this union. I worked under union
conditions and sometimes union conditions are a good thing." Carter said he
couldn't read or write except his name, but "if anybody spelled a word I can write
it." In other words, he apparently wrote the statement, but he couldn't read it. He
recalled giving a statement to an agent of the Board, but denied telling him that
Keefer Dell had asked him what he thought about the union. He said he signed
it because he was told signing it was necessary to draw unemployment compensa-
tion-after election at the time the plant was closed. This is dated February 6,
1957, during time of layoff and is typewritten. His writing ended: "I have read
this 2 page statement and it is true and correct."
The above evidence is not found to be an 8(a)(1) violation.
Thomas C. Sauls quoted Keefer Dell as saying, on the "morning of the election,"
the following: "If you mess around the union you will get in trouble." His reply
was: "I said that was my business if I was a member of the union or was not a
member of the union." Keefer Dell denied this, and explained that Sauls asked to
be made an observer at the election but Keefer advised him that the place was
filled. No violation of 8(a)(1) is found. Thomas Sauls went to work during
January 1957, and was fired February 22, 1957, was unemployed for a while, and
now is working for a drive-in theatre. He was subpenaed to testify. He went on
strike and was in the picket line, but never sought reinstatement, as he had no rights
as a striker. He rolled bombs in from the yard into assembly lines. He said
there were no hard feelings between him and Dell-he hadn't told anyone about this
conversation with Dell. He had a union button but didn't wear it and didn't know
what he did that could have made Dell feel he would be messing with the Union.
Joseph Worthington testified that E. L. Dell asked him if he belonged to the
Union when he was hired, about May 1, 1957. He replied: "Yes," and Dell asked
him "what I would do in case of a strike and I said: `What the biggest majority would
do. If the biggest majority walked out I would walk out.' He said he had a
contract, and he pulled out a bunch of papers and said that was a union contract
and he would close the doors before he signed it." He admitted that Dell went
ahead and hired him. This testimony is accepted and found to be a threat within
the meaning of Section 8(a)(1) of the Act.
James R. Burkett testified to two instances of interrogation by Leon Dell. One
occurred before the Union came in, and the other occurred after the strike ended..
Burkett testified that during the latter part of September, Leon Dell "asked me what
I thought about the union and I said I never worked under the union before and
he asked me if it would go in, and if it did there would be nothing but skilled men
left. . He said I didn't have to hit the clock, that it was being repaired but if
the union came in I would have to."
Burkett reported that after the strike ended, he and Donald Smith went to see
Dell about getting back to work, a couple of weeks after he had applied for rein-
statement, and "he asked me if I thought there was anything wrong with the union.
He said he thought he saw me on the picket line. I said `Yes, but that didn't mean
I belonged to the union.' He said he would have to wait before he put me back."
Burkett was laid off in November 1956 because the contract ran out, he said, but
Respondent counsel questioned him asking if he was not laid off for venereal
disease. Both of these instances constitute violations of Section 8(a)(1) of the
Act.
WAYCROSS MACHINE SHOP 1359
In September or October, E. L. Dell had a conversation with Ernest P. Vaughn.
Dell sponsored a radio program for Mr. Vaughn. They were in the radio station
and "he told me my daddy, an old buddy who used to be a union man out on the
job, he was out working a locomotive one time and he had to remove a pipe off of
the locomotive, and he had to wait for a union man to come and move it, so he
said he was tied down where he couldn't carry on his work at that time, and he
had to wait for several hours, and he said he couldn't put up with such thing around
his shop. . .. I believe he [Dell] said there he didn't approve the union. . . He
said if there was a union in there he would have to close down the shop and
he said he could hire more men in the shop in the place of the fellows. . . The
fellows he would have to replace would be out of a job." Vaughn admitted Dell
didn't threaten him in connection with the union.
Dell's version was that "Pete" Vaughn asked him about the union: "Is it going to
hurt you very much?" Dell's reply was that he didn't know much about the union.
"The only thing I know about a union is what your dad told me when I was working
under him years and years ago." He then related the story to Pete. Dell replied
"no" when asked if he told Vaughn he would be fired if he voted for the union.
Dell said he knew Vaughn was a union man. "I was talking to him two years before
he came to work for me and he was telling me of his union activities." The Trial
Examiner accepts Vaughn's version and finds a violation of Section 8(a)(1).
About the last of November or the first of December 1956, O. C. Simmons, who
was considering trading cars, asked Leon Dell whether they planned on a layoff or
just what was the situation. "He said I knew the lay-out of the shop and that I was a
regular hand at the time and that he couldn't see why it wouldn't be wise to go ahead
because this present contract we were on would last through March, if this other
thing don't come in-you know what I mean." Simmons took it to mean the
union. Under the circumstances obtaining, this was a threat violative of Section
8(a)(1).
Further Alleged Violations
Section 18 of the complaint charges that on February 5 Keefer Dell urged em-
ployees of Respondent to quit listening to the "union propaganda," and threatened
that they would get in trouble unless they followed such urging. On the Tuesday
following the election, while the shop was shut down, a group of employees, includ-
ing Charles Davis, Irving Amerson, and Willard O'Neal, went out to the premises
seeking information on when operations would resume. Charles Davis testified:
"Mr. Keefer came outside and he said we had better get us a lawyer to advise us
about that stuff, the union, he said, or we will get ourselves in hot water." William
O'Neal testified that Keefer Dell "told us we had better get a lawyer to advise us
and quit messing around before somebody got into trouble."
Irving Amerson testified that they reported to work Monday morning and met
Keefer and E. L. Dell and "Mr. Keefer told us they were out of material and it
would be from a week or maybe six weeks before they would get any, and advised
anybody who could get employment to do so."
Q. Did you thereafter go back to the plant for work?
A. He told us to come in the following Friday and pick up our pay checks
and when he did a slip was on our pay checks to report back to work the next
Monday.
Q. During the lay-off did you make any further trips back to the plant to
see if they would be open during the week?
A. Yes; the day after we went back and asked him did he have any-We
met Mr. Keefer out in front and asked him did he have any material or know
when he would get it and he said: "No." He said why didn't we drop this
union stuff and quit listening to the propaganda and get a lawyer, and he would
hate to see us get into any trouble." Amerson said Ratliff, Vaughn, and Booth
were standing with him.
Willard O'Neal testified that they went out on Monday and quoted E. L. Dell as
telling them "he was short of material and that he would appreciate it, he appreciated
our work and that at the time being, he didn't have anything else to do, and if we
could get a job anywhere else to go ahead and do it because he didn't know how
long he would be closed down."
Owen Keefer Dell testified that the men said: "The union man told us we were
supposed to go to work this morning." His reply was: "If you men would go get
yourselves a lawyer to advise you what your rights are and quit listening to the
propaganda we would all be better off." Keefer explained that the union had
been putting out propaganda sheets. (Respondent's Exhibit No. 43-one put out
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January 3.) Keefer Dell denied that he threatened men with discharge. He also
said he did not threaten them that they would not be rehired, made no statement
that the plant would be permanently closed. Keefer explained that every man
returned to work the following Monday.
The Trial Examiner does not accept Keefer Dell's denials and explanation but
rather resolves the evidentiary conflicts in favor of these employees. Accordingly,
on the evidence , a violation of Section 8(a)(1) is found.
Alleged Solicitation to Undermine the Union
Section 19 of the complaint charges that the Respondent, on or about February
15, 1957, solicited an employee at the Waycross plant to attempt to undermine the
union, promising such employee a 25-cents-per-hour wage increase and permanent
employment for engaging in such activity.
Willard O'Neal, one of the members of the "negotiating committee," reported a
time when he was called to the office of E. L. Dell, and Dell asked him what he
thought about the union. "I told him I thought the union was a good thing, that I
had belonged to it out in the railroad shops." Dell offered him a 25-cents-per-hour
raise and assurance of his job if he would discourage union activities in the plant.
O'Neal said: "I couldn't do my fellow-employees like that." Dell said, "Well, there
is nothing I can do about that then."
Dell testified in this connection: "I have never heard a man under oath tell a
bigger lie in my life . . . that man has never been in my office."
The Trial Examiner resolved the credibility conflict in Dell's favor for three
simple reasons: (a) such an offer would be out of character with company wage
policy; (b) Dell could not have done it and gotten by with it in view of the temper
in his plant ; and (c ) on the basis of testimonial demeanor , Dell impressed one as
the more truthful witness. Thus, this is found to be no violation. (Note that
O'Neal was one of the 8(a)(3) and will be dealt with later.)
Alleged Discriminatory Discharges
Section 15 of the complaint alleges that Respondent discharged, and thereafter
failed and refused to reinstate, the below-listed employees because of their mem-
bership in and activities on behalf of the Union, and because they engaged in con-
certed activities with other employees for the purpose of collective bargaining or
other mutual aid or protection. These employees and the dates of their discharges
are as follows: Henry T. Gladden, January 30, 1957; O. C. Simmons, February 10,
1957; Irving Amerson, February 25, 1957; Ernest Vaughn, February 25, 1957;
Willard O'Neal, February 26, 1957; Leon Smith, March 14, 1957. Respondent
denied that these employees were discriminatorily discharged and plead affirma-
tively that the discharges occurred before the strike and that the record contains
detailed evidence that each and every discharge was for cause.
The mental atmosphere prevailing in the plant at the times of these discharges,
it will be recalled, was charged with emotion. Two employees, complaining
of low wages and having other grievances, speaking for and on behalf of fellow em-
ployees, traveled to Brunswick, Georgia, and importuned Boilermaker Union officials
to come to Waycross and establish a union in Respondent's plant. The union repre-
sentatives came, secured members, petitioned the Board for an election and won by
a three to one majority. The Union charged management with a "lock-out," charged
management with "dragging its feet in bargaining negotiations," and threatened
to strike.
Respondent objected to the Union's coming in, resented the employees who fo-
mented the union organization, interrogated, threatened, and coerced employees
during the campaign and after the election. The Respondent's officials were
aggrieved at the union official's unreasonable contractual demands and threats to
bankrupt or put the Company out of business. Thus, it was in this untoward
atmosphere that these discharges occurred.
Dischargee Gladden became a welder in 1937, and went to work during the latter
part of June 1956 as an heliarc welder. He was earning $1.35 at time of discharge.
Gladden began to advocate a plant union immediately after being hired, was one
of the two who contacted Organizer George, solicited memberships, checked eligi-
bility of voters for the election, and openly consorted with Boilermakers Representa-
tives George, Bailey, and Russell in front of the shop, and in the presence of Leon
Dell. Gladden was discharged on January 30 at 3:14 p.m. by Leon Dell on the
charges of absenteeism, having a 30-minute conversation with another employee
(Ratliff) on company time the day before he was fired, and being behind in his
work on the day he was fired, and being 3 minutes late in returning from the toilet
WAYCROSS MACHINE SHOP 1361
at the "3:00 o'clock break." The Trial Examiner considered all the testimony
behind the charge of absenteeism and found it satisfactorily explained by his own
and his wife's illness. The conversation with Ratliff took place 3 or 4 weeks prior to
that time, and even then Gladden was working. Further, he was never criticized
for his work by any supervisors. As to being 3 minutes late in returning from the
restroom, other employees were later and not rebuked. The severe treatment toward
him was disparate as compared to treatment of other employees, and was occasioned
by his known union activities. Immediately upon his discharge he went to work for
Savannah Machine & Foundry at $2.68 and is presently earning $2.77 per hour. It
is found that Gladden's discharge was discriminatory, occasioned by his union
activities and Respondent's union animus . This is a violation of Section 8(a)(3)
of the Act.
O. C. Simmons was the one who, with Gladden, contacted the Union and helped
to organize it. He was an observer at the election and was appointed on the "nego-
tiating committee" at the end of January, although he attended no sessions as he
went on another job. He was fired by F. L. Dell on grounds that his work was un-
satisfactory, namely, he could not do vertical welding and had failed Navy weld-
ing tests . General Counsel argues in his brief that Simmons had been welding since
1942, and had received schooling in his trade, that he had passed on November 2
the Navy vertical welding test, that he went to Savannah and secured a job requiring
a greater amount of vertical welding.
. Dell credibly testified that Simmons was accustomed to doing "flat welding," and
when all that type of welding was exhausted he was put on "vertical" welding. He
was unable to satisfactorily perform "overhead" welding so Dell said to him: "Go
over and practice the rest of the day on vertical welds" which he did. Navy Welding
Inspector Vana checked his welds and characterized them as not being "up to par."
Dell testified that he was behind in his contract and that when Simmons admitted
he could not do better, Dell discharged him. The Trial Examiner accepts this ex-
planation which is supported further by the fact that Inspector Vana testified that
Simmons had flunked Navy tests previously, and Simmons admitted that he had
failed on vertical welding. It will be recommended that this count in the com-
plaint be dismissed.
Irving Amerson was hired in June 1956, as a laborer, although he had been an
acetylene welder for 10 years, having been trained under the G.I. Bill. He was
making $1.35 per hour as a welder at time of discharge. He joined the Union, dis-
tributed union cards, sticking them in employees' gloves. He wore a union button
after the election . He was discharged, late in the afternoon when he finished a par-
ticular job, by Keefer Dell who told him he was being replaced by a mechanical
welder.
Dell testified: "Because we changed the procedure of welds from acetylene
to a mechanical seam welder and a seam welder did not require the skill of an acety-
lene welder." It appeared that Amerson's welding partner Vaughn had been let
go earlier in the afternoon when he had finished his portion of the work. The
reason assigned to both was that they were being replaced with a mechanical spot
welding machine, for which operators could be hired for $1 per hour. This con-
stitutes a valid reason for Amerson's discharge. It will be recommended that this
count in the complaint be dismissed.
Ernest "Pete" Vaughn (son of "Shorty" Dell's friend who taught Dell welding)
had been employed on three former occasions by the Company. Vaughn was doing
acetylene welding on "shrouds" with Amerson at $1.35 per hour when terminated.
Vaughn was a member of the negotiating committee and had been a union man for
some years. Later, he told Dell that he was willing to work for $1 per hour. How-
ever, Dell had hired, according to Ratliff, one Wally Sweat, as new man for the
machine. The same reasoning applies to Vaughn as did to Amerson. Respondent
replaced them with men at $1 • per hour. Accordingly, it will be recommended
that this count be dismissed.
Willard O'Neal was hired on July 3, 1956, at $1 per hour. He was an observer
at the election and was on the negotiating committee. He was terminated on Feb-
ruary 2:6. His job was threading lugs at $1.10 per hour. After the shutdown
following the election, O'Neal was assigned to drilling holes in bombs on a new
machine. He worked on this machine for 11/2 weeks when the Company brought
in a new man , Norman Leggett, whom O'Neal taught to operate the new machine.
O'Neal was then returned to his old job of threading lugs and worked for a week,
when he was discharged. The reason assigned by Lloyd Dell was that "under the
new contract the lugs came already threaded." The Trial Examiner, after review-
ing all of the evidence on this phase of the case, concluded that O'Neal was trans-
508889-O0--vol. 123=87
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ferred back to threading lugs, after training a replacement on the boring machine,
in preparation for his discharge, based on Respondent's union animus. This dis-
charge is obviously suspect on the record, and does not enjoy the presumption of the
business policy of the Amerson and Vaughn discharges. General Counsel's theory
and statement of facts is sound. Accordingly, it is found that O'Neal's discharge
was discriminatory and violative of Section 8(a)(3).
Leon Smith went to work for the Company in 1956. He worked on a "crimping"
or bending machine at $1.10 per hour. He joined the Union, attended meetings,
and wore his union button on the job. He worked March 14 (Wednesday) and
stayed home Thursday, the 15th. The closest telephone was several miles away as
was the home of their nearest neighbor, James Curl, who also worked for the Com-
pany. The Company had a rule that prospective absentees should report in before
8 a.m. Swift's wife was to contact Curl and tell him to report Smith's illness. Mrs.
Smith missed Curl who had already started for work but she reported her husband's
illness with "flu" to Curl's wife. She asked Curl to notify the Company, and pick
up Smith's check. Curl reported the illness Friday morning and picked up Smith's
check. When Smith reported for work on Tuesday, his card was not in the rack and
he quoted Lawton Dell as saying: "We have another man in your place, and it is
one of those things." Smith had been absent only once before, and he had never
been warned. In view of the fact that the reason was explained to the Company,
at the earliest possible time, as being Smith's illness, and since the Company did
not come forward with any explanation for such a harsh penalty, the Trial Examiner
came to the conclusion that it took this opportunity to eliminate a known union
adherent. This is found to be a discriminatory discharge violative of Section 8(a) (3).
Reinstatement of Strikers 8(a)(3)
Sections 12 and 13 of the complaint charged that Respondent refused and con-
tinues to refuse to reinstate the striking employees because of their membership in
and activities on behalf of the Union in violation of Section 8(a) (3). The Trial
Examiner has heretofore found and held that the strike was an economic strike
and that Respondent permanently replaced them and, further, has agreed to rehire
the strikers when jobs are open. Although there have been few replacements, this
is not a refusal to reinstate. Therefore, it is unnecessary to deal further with those
allegations.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent set forth in section I, above, have a close,'
intimate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead and have led to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
As it has been found that the Respondent has engaged in unfair labor practices,
it will be recommended that the Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It has been found that Respondent violated the Act by discriminating with respect
to the hire and tenure of employment of various employees named herein. It will
be recommended that Respondent make them whole for any loss of pay they may
have suffered by reason of Respondent's discrimination against them, by payment
to each of them of a sum of money equal to the amount each would normally have
earned as wages from the date the discrimination occurred against them, until such
time as they were reinstated or are offered reinstatement , less their net earnings during
that period .4 Should it be necessary, Respondent shall dismiss any replacement hired
after dates of discriminatory discharges The pay loss involved, if any, shall be
computed in the manner established by the Board in F. W. Woolworth Company,
90 NLRB 289. In addition, I will recommend, in accordance with the Woolworth
decision, that Respondent, upon request, make available to the Board and its agents
all records pertinent to an analysis of amounts due as back pay.
Since Respondent has restrained, coerced, and interfered with its employees in
the exercise of their rights under the Act, and has also committed acts of discrimina-
tion with regard to the hire and tenure of employment of its employees-the latter
a form of unfair labor practice which has been held to "go to the heart of the Act"-
4 Crossett Lumber Company, 8 NLRB 440.
6 Crowley's Milk Company, Inc. (Paterson Division), 102 NLRB 996.
AMERICAN STEEL BUILDING COMPANY, INC. 1363
I am convinced that there is a danger of a repetition by Respondent of unfair labor
practices directed against its employees. In order, therefore, to make effective the
interdependent guarantees of Section 7 of the Act, to prevent a recurrence of unfair
labor practices, and thereby minimize industrial strife which burdens and obstructs
commerce, and thus to effectuate the policies of the Act, I will recommend that
Respondent cease and desist from in any manner infringing upon the rights guar-
anteed employees in Section 7 of the Act.6
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, E. L. Dell, Jr., trading as Waycross Machine Shop, is engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
2. By discriminatorily discharging Henry F. Gladden, Leon Harvey Smith, and
Willard O'Neal, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a)( 1 ) of the
Act.
4. The aforesaid labor practices in paragraphs 2 and 3 are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not violated Section 8(a)(5) of the Act by refusing to
bargain as alleged in the complaint.
6. The allegations in the complaint charging Respondent with discriminatory
discharge of O. C. Simmons, Ernest Pete Vaughn, and Irving Amerson be dismissed.
[Recommendations omitted from publication.]
6May Department Stores v. N.L.R.B., 326 U.S. 376, affg., as mod . 146 F. 2d 66 (C.A. 8),
enfg. 53 NLRB 1366.
American Steel Building Company, Inc. and International
Brotherhood of Boilermakers, Iron Ship Builders, Black-
smiths, Forgers and Helpers , AFL-CIO, Local 469. Case No.
39-CA-888. May 29, 1959
DECISION AND ORDER
On March 16,1959, Trial Examiner David London issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and .
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent filed
exceptions to the Intermediate Report and a brief in support thereof.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the Inter-
I Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Members Rodgers, Bean,
and Fanning].
2 The Respondent has excepted, inter alia, to the Trial Examiner' s ruling refusing to
require the General Counsel to make available to the Respondent an oral statement made
to a field examiner by witness Jenkins and reduced to writing, but neither signed nor
seen by the witness. The Board's rules require the production of a written statement by
123 NLRB No. 166.