Welcome-American Fertilizer Co.

National Labor Relations Board - Board Decisions

Feb 16, 1968

169 N.L.R.B. 862 (N.L.R.B. 1968)

862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Welcome-American Fertilizer Co. and Welcome Fer-
tilizer Co. and Teamsters , Chauffeurs,
Warehousemen & Helpers of America , Local 490,
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America.
Case 20-CA-4194
February 16,1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On May 29, 1967, Trial Examiner Henry S.
Salim issued his Decision in the above-entitled
case, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision and a sup-
porting brief, and the General Counsel filed an an-
swering brief and cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, cross-
exceptions, and briefs, and the entire record in the
case, and hereby adopts the findings,' conclusions,
and recommendations2 of the Trial Examiner, as
modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respond-
ent, Welcome-American Fertilizer Co. and Wel-
' The Respondent contends, disputing the finding of the Trial Ex-
aminer, that Virgil Cordell was a supervisor , and argues that Cordell's
status must have infuenced , and should therefore invalidate, the
authorization cards signed by other employees at Cordell's home. It ap-
pears to us that Cordell was closely aligned with the other employees in
interest and that he possessed no real supervisory authority which could
tend to affect the others coercively. It is furthermore clear, as the Trial
Examiner also found, that Cordell's functions were markedly curtailed by
Respondent on August 4, prior to the first employee meeting, and it seems
likely that the other employees were made aware of this change before
they met. In all the circumstances , including the fact that Cordell was one
of the employees whose discharge was later protested by the striking em-
ployees, we conclude that Cordell' s mere presence at the signing of the
cards had no effect on their validity.
come Fertilizer Co., Dixon, California, its officers,
agents, successors, and assigns, shall take the fol-
lowing action:
1. Cease and desist from:
(a) Discouraging membership in Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
Local 490, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization of its em-
ployees, by discriminatorily discharging, or in any
other manner discriminating against any employee
in regard to his hire, tenure, or any term or condi-
tion of employment.
(b) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment, with the aforesaid Union, as
the exclusive representative of its employees in the
following appropriate unit:
All employees employed by the Respondent at
its Dixon, California, facility, excluding office
clerical employees, salesmen, guards, and su-
pervisors as defined in the Act.
(c) Making unilateral changes in the terms and
conditions of employment of its employees without
first consulting the Union.
(d) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise of their right to self-organization, to form labor
organizations, to join or assist the Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
Local 490, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, to bargain
collectively through representatives of their own
choosing, and to engage in concerted activities for
the purpose of mutual aid or protection as guaran-
teed in Section 7 of the Act, and to refrain from any
and all such activities, except to the extent that such
right may be affected by an agreement requiring
membership in a labor organization as a condition
of employment, as authorized in Section 8(a)(3) of
the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
2. Take the following affirmative action which
it is found will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative
Similarly , the Respondent contests the Trial Examiner's reliance upon
a statement made by Marsh Davidson as an indication of Respondent's in-
tent in discharging the four employees . We believe that Davidson's posi-
tion and demonstrated authority as office manager, coupled with his duties
as dispatcher, sufficiently allied him with Respondent's management so as
to make his statements a reliable reflection of Respondent 's true intent.
2 The Trial Examiner found that the August 6 strike was in protest of
the unlawful termination of four union adherents on the previous day. He
failed, however , to find specifically that the strike was an unfair labor
practice strike. The evidence clearly supports the Trial Examiner 's find-
ing. Accordingly , we conclude that the August 6 strike was an unfair labor
practice strike , and we shall modify the Trial Examiner 's Order to require
reinstatement of the striking employees upon their request.
169 NLRB No. 104
WELCOME-AMERICAN FERTILIZER CO. 863
of all the employees in the above-described ap-
propriate unit with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) Offer to Billy L. Cordell, Thomas Reneau,
Earl Elliot, and Virgil Cordell, immediate, full, and
unconditional reinstatement to their former or sub-
stantially equivalent positions, without prejudice to
their seniority or other rights, privileges, or working
conditions, and make them whole for any loss of
earnings they may have suffered by reason of the
discrimination, in the manner set forth in the section
of the Trial Examiner's Decision entitled "The
Remedy."
(c) Upon application, offer to all other em-
ployees who were on strike on August 6, 1966, im-
mediate reinstatement to their former or substani-
ally equivalent positions, without prejudice to their
seniority or other'rights and privileges, dismissing,
if necessary, any employees hired after August 6,
1966, the day the strike started, to replace the strik-
ing employees. The Respondent shall make whole
those strikers who are entitled to reinstatement for
any loss of pay they may suffer by reason of the
Respondent's refusal, if any, to reinstate them,
upon request, by payment to each of them of a sum
of money equal to that which he normally would
have earned as wages during the period beginning
5 days after the date on which he applies for rein-
statement and terminating on the date of the
Respondent's offer of reinstatement, such loss to be
computed in the manner set forth in F. W. Wool-
worth Company 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716.
(d) Notify the employees described above in
paragraphs 2(b) and 2(c), if presently serving in the
Armed Forces of the United States of their right to
full reinstatement upon application in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(e) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and, all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(f) Post at Respondent's plant premises in Dix-
on, California, copies of the attached notice marked
"Appendix." Copies of said notice, on forms pro-
vided by the Regional Director for Region 20, after
being duly signed by Respondent's representative,
shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by to
Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(g) Notify the Regional Director for Region 20,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
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 you that:
WE WILL NOT discourage membership in
Teamsters, Chauffeurs, Warehousemen & Hel-
pers of America, Local 490, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or
any other labor organization of our employees,
by discriminating in regard to their hire or
tenure of employment or any term or condition
of employment.
WE WILL NOT discharge or in any other
manner discriminate against you because of
your assistance to or support of any Union.
WE WILL NOT change our employees' work-
ing conditions without first consulting the
Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your right to self-organization, to form labor or-
ganizations, to join or assist Teamsters, Chauf-
feurs, Warehousemen & Helpers of America,
Local 490, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor or-
ganization of our employees, to bargain collec-
tively through representatives of your own
choosing, or to engage in other concerted ac-
tivities for the purpose of mutual aid, or to
refrain from any or all such activities, except to
the extent that such right may be affected by an
agreement requiring membership in a labor or-
ganization as a condition of employment.
WE WILL NOT refuse to bargain with Team-
sters, Chauffeurs, Warehousemen & Helpers
of America, Local 490, International Brother-
hood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive representative of our employees in
the bargaining unit described below:
All employees employed by us at our Dix-
on, California, facility, excluding office
clerical employees, salesmen, guards, and
supervisors as defined in the Act.
WE WILL, upon request, bargain with Team-
sters, Chauffeurs, Warehousemen & Helpers
of America, Local 490, International Brother-
hood of Teamsters, Chauffeurs,
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warehousemen and Helpers of America, as the
exclusive representative of all the employees
in the bargaining unit described above, with
respect to rates of pay, wages , and hours of em-
ployment, and other conditions of employment,
and, if an understanding is reached, WE WILL
embody such an understanding in a signed
agreement.
WE WILL offer Billy L. Cordell, Thomas
Reneau , Earl Elliot, and Virgil Cordell im-
mediate and full reinstatement to their former
jobs with us, and WE WILL pay them the wages
they lost by reason of their discharge.
WE WILL offer to our striking employees,
upon their application , reinstatement to their
former or substanially equivalent positions
without prejudice to their seniority or other
rights and privileges, dismissing , if necessary,
any employee hired after August 6, 1966, to
replace these employees , and WE WILL make
each employee whole for any loss of pay suf-
fered by him as a result of our failure to rein-
state him within 5 days after his application.
WE WILL notify Billy J. Cordell, Thomas
Reneau , Earl Elliot, and Virgil Cordell, and the
above-described unfair labor practice strikers,
if presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selec-
tive Service Act and the Universal Military
Training and Service Act, as amended, after
discharge from the Armed Forces.
WELCOME-AMERICAN
FERTILIZER CO. AND
WELCOME FERTILIZER
Co.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 450 Golden Gate Avenue, Box 36047, San
Francisco, California 94102, Telephone 556-3197.
TRIAL EXAMINER'S DECISION
HENRY S. SAHM, Trial Examiner: Upon a charge filed
on August 11, 1966, and amended on October 12 and
November 8, a complaint issued January 5, 1967 , against
Welcome-American Fertilizer Co. and Welcome Fertil-
izer Co. alleging that the Respondent Company had vio-
lated Section 8(a)(1), (3), and (5) of the Act . It is alleged
that the Respondent discharged four employees for union
activities and refused to bargain with Local 490 of the
Teamsters Union, the Charging Party. The Respondent
denies the commission of any unfair labor practices stat-
ing economic reasons curtailed business which resulted
in a lack of work and eventual layoffs of some of its em-
ployees. With respect to the 8(a)(5) allegation, Respond-
ent contends, inter alia, it is without merit because the
Union's request to bargain was vague and ambiguous and
it did not represent an uncoerced majority of the Respond-
ent's employees.
A hearing was held in Sacramento, California, on
March 14, 15, and 16, 1967, before me. Following the
hearing, excellent briefs were filed by the parties on May
1,1967.
Upon the entire record in this case, including the briefs,
and from observation of the demeanor of the witnesses
while testifying, the Trial Examiner makes the following:
FINDINGS OF FACT
I. THE HISTORY AND BUSINESS OF THE EMPLOYER
A. Interrelationship of Welcome-American and Best
Fertilizer Co.
Welcome Fertilizer Co. was incorporated in the State
of California on March 1, 1963, and on that date
exchanged 500 shares of $ 100.00 par common stock with
Donald C. and Barbara J. Welcome for all the assets and
liabilities of the business conducted by them under the
name Welcome Fertilizer Co. On February 11, 1966,
they exchanged their stock of Welcome Fertilizer Co.,
which was engaged in the wholesale sale and application
of fertilizers and insecticides, with the Best Fertilizer Co.,
a California corporation, engaged in the manufacture and
wholesale sale of fertilizers, weed killers, and insecti-
cides, receiving in return 3,200 shares of Occidental
Petroleum Corporation stock. Best is a wholly owned
subsidiary of Occidental. On February 11, 1966, Best
Fertilizer Co. purchased the American Fertilizer Co. On
August 30, 1966, Welcome Fertilizer Co. and American
Fertilizer Co. were merged as a new corporate entity
designated Welcome-American - Fertilizer Co., the
Respondent herein.
B. Contentions and Conclusions
The complaint alleges and Respondent denies that
Respondent and Best Fertilizer Company collectively
constitute a single-integrated business enterprise.
Respondent contends it is a completely independent sub-
sidiary of Best. The principal factors to be weighed in
deciding whether sufficient integration exists include the
extent of (1) interrelationship of operations; (2) central-
ized control of labor relations; (3) common management;
and (4) common ownership or financial control.'
It is found for the following reasons that the coordinate
activities of Best and Welcome-American are so intimate-
ly interrelated and so dependent upon each other that the
totality of their operations is a vertical integration and
constitutes a single enterprise for jurisdictional
purposes: 2
1. Best purchased the entire shares of stock of Amer-
ican and Welcome on the same date, namely, February
I Twenty-first Annual Report of the National Labor Relations Board
(1956) at pp. 14-15.
2 See N.L.R.B. v. U.S. Air Conditioning Corp., 302 F.2d 280, 281
(C.A. 1); N.L.R.B. v. National Garment Company, 166 F.2d 233 (C.A.
8), cert. denied 334 U.S. 845; Joseph E. Cote, d/b/a J. E. Cote and Brook
Farm Foods Inc., and Edouard Cote, 101 NLRB 1486.
WELCOME-AMERICAN FERTILIZER CO. 865
11, 1966, and both these companies were merged on Au-
gust 30, 1966. When Best purchased Welcome, the
owners of Welcome received in payment shares of the
Occidental Petroleum Corporation of which Best is a
wholly owned subsidiary.3
2. The board of directors of Welcome-American is
composed of five members, of whom four are employees
of Best. These four employees of Best who are Welcome-
American board of director members, and their positions
with Best are as follows: Doty, technical advisor for
dealers who buy Best products; Lindley, attorney for
Best, Duncan, credit manager, and Ross, comptroller.
Doty, along with Donald Welcome, Respondent's pre-
sident, selects the board.
3. Welcome-American purchased 65 percent of its
products and supplies in 1966 from Best but prior to its
acquisition by Best, it purchased a "majority" of its sup-
plies from Ortho Chemical Co.4
4. Best conducts an employee training program for
Welcome-American's employees on how to maintain and
operate equipment more efficiently and with less cost.
5. Welcome-American's employees participate in vari-
ous fringe benfit plans available to Best employees and
these plans were established and are offered by Oc-
cidental Petroleum Corporation through the Best Com-
pany (owned by Occidental) to the employees of Wel-
come-American.
6. Meetings of Welcome-American's board of
directors are held both at the offices of Best and Respond-
ent.
7. About April 1966, Respondent began using a new
letterhead which had on it the Best Company emblem.
The Best emblem was also painted on some of Respond-
ent's trucks.
8. Welcome-American Fertilizer Co., the Respondent
Company, submits monthly profit and loss financial state-
ments to Best.
9. It is significant that on the day the four employees
were "laid off," Doty, a Best official, who visits the plant
infrequently, was at Respondent's plant almost the entire
day. It is, not too unreasonable to assume that Doty par-
ticipated in the decision to terminate the four alleged dis-
criminate'es.
It is found that these factors demonstrate the close
working relationship and the intertwined operational in-
tegration of both Best and Welcome-American. It is ad-
mitted Welcome-American does not meet the Board's ju-
risdictional standards but that Best does.s Considered
collectively, therefore, and inasmuch as it has been found
Welcome,-American and Best constitute a single-in-
tegrated business enterprise which is a single employer
within the meaning of Section 2(2) of the Act , engaged in
commerce and operations affecting commerce within the
meaning of Section 2(6) and (7) of the Act, it is recom-
mended that the Board assert jurisdiction in this
proceeding. 6
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Uncontradicted Facts
Sometime during the last week of July 19667 one of
Respondent's employees contacted the Union, the
Charging Party, when the employees were notified their
hours of work were going to be cut back. Aaron Bradford,
one of the employees, spoke to the secretary-treasurer of
Teamsters Local 490, with respect to the possibility of or-
ganizing a union at Respondent 's plant. A meeting was
held on Sunday, August 1, attended by the Respondent's
service department employees, at which time a union offi-
cial spoke to them. Another meeting was held on August
3. Both meetings were held at the home of Virgil Cordell.
All eight service department employees signed union
authorization cards which authorized the Union to act as
their bargaining agent for the eventual purpose of having
the Union represent the said employees in collective-bar-
gaining negotiations with the Respondent.
On August 4, the Union delivered a letter to Marsh
Davidson , Respondent 's office manager, alleging it
represented a majority of the employees and requesting
a meeting on Tuesday, August 9, for the purpose of
discussing recognition and bargaining . The letter also
stated that the Union was "agreeable" to proving its
majority representation by "a showing of the proper
authorization cards." When Davidson took the letter, he
opened it and, as credibly testified to by J. C. Beatty, a
union official, Davidson said: ". . . we knew it was only
a matter of time until the wolves would be at the door."8
Respondent did not reply to the letter.
The following afternoon, August 5, about 4 o'clock,
four of the employees in the eight-man service depart-
ment unit were "laid off' (not in the order of their
seniority)9 because of alleged economic reasons, namely,
a seasonal decline in business.10
3 Best is a manufacturing company principally engaged in the manufac-
ture of fertilizers and insecticides, whereas Welcome and American were
and are service type companies engaged in selling and applying fertilizers
and insecticides to crops of farmers.
4 Welcome, Respondent's president, testified that "our purchase policy
is to buy from Best whenever their price is equal to or better than others
or their delivery service or terms are equal to or better." Significant is
Welcome's statement as to why Respondent purchases a major part of its
supplies from Best now instead of Orthn• "Well, you determine whose
side you are on."
5 Best annually sells and ships goods valued in excess of $50,000
directly to customers outside California and Best also annually purchases
and receives goods and materials valued in excess of $50 ,000 from outside
California
' Orkin Exterminating Company, Inc (of Kentucky), 115 NLRB 622.
Cf, Canton Carp's Inc., 125 NLRB 483, Modern Linen & Laundry Ser-
vice, Inc., 110 NLRB 1305, 114 NLRB 166, Safeway Transit Company,
111 NLRB 1359; Sakrete of Northern California, Inc v N L R B, 332
F.2d 902 (C.A 9), enfg. 140 NLRB 765
7 This is based on the testimony of Cyrus James Bradford, who is
presently employed by Respondent and was called as a witness by
Respondent
' Davidson's testimony is as follows. "I made some wisecrack-type re-
mark about the wolf trying to get his foot in the door or something like
that, and they left "
8 Respondent's contention is that the four men who were retained were
better employees.
10 It is uncontradicted that Welcome , Respondent 's president , told the
employees at the time they were "laid off" that economic considerations
compelled such action and he stressed their "layoffs" was no reflection on
the quality of their work. In fact, about 2-1/2 months before they were ter-
minated, Welcome told all the employees "what a good job they we're do-
ing " Virgil Cordell, who was employed by Respondent for 3 years, when
notified of his "layoff" said to Welcome "After three years, just like that"
and Welcome replied- "Just like that."
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The next day, August 6, a union official went to the
plant and spoke to the Respondent Company's president
regarding these layoffs." The latter referred him to the
Company's labor relations representative, who told Local
490's official that Respondent had no intention of recog-
nizing or negotiating with the Union and that the Union
had "better see [it was] legal because we will be watching
you all the time."
On the same day, the employees unanimously agreed
to strike and they established a picket line at Respond-
snt's plant manned by the four terminated employees as
well as the four other employees in the service depart-
ment crew, who did not report for work that day in order
to protest their coworkers severance from the payroll.
Respondent sent these four striking employees a letter on
August 6, notifying them that if they did not report for
work by August 9 they would be subject to "permanent
replacement." The four employees did not report for
work and were terminated on August 9.
On August 8, the Union, pursuant to Section 9(c) of
the Act, filed a representation petition with the Board
requesting an election12 and on the same day, it sent a
telegram to the Respondent Company stating: "Current
picketing and striking y Teamsters Local 490 is due to
your unfair labor practice of discharging four em-
ployees."
B. Contentions
The General Counsel contends that the four employees
who were "laid off" were terminated because of their
union activities in violation of Section 8(a)(3) of the Act.
The Respondent denies this charge, contending the
layoffs were a normal business decision, economically
motivated because of lack of work due to a seasonal
decline in business which had occurred annually in the
past. The General Counsel counters this affirmative
defense by arguing that this lack of work was artificially
contrived by Respondent subcontracting the work which
was formerly done by the laid-off employees in order to
rid itself of an irritating nucleus of employees interested
in the Union. It must be determined, therefore, whether
these reasons asserted by Respondent were the real
reasons or a pretext.
The General Counsel's 8(a)(5) refusal-to-bargain al-
legation is based on the theory that Respondent's refusal
to recognize and bargain with the Union was motivated
by bad faith as evidenced by its unilaterally subcontract-
ing the work originally performed by these four em-
ployees who, it is claimed, were illegally discharged in
order to undermine and dissipate the Union's majority
status.
With respect to the allegation in the complaint that the
Respondent, without consultation with the Union, sub-
contracted work formerly done by the employees to inde-
pendent contractors , Respondent states maintenance and
repair work had been performed historically by outside
repair companies and this subcontracting had been agreed
upon well prior to the advent of the Union, initiation of
union activities and the Union's request for recognition.
In addition, the Respondent defends this 8(a)(5) refusal
to bargain allegation by asserting the unit specified in the
complaint is inappropriate and the Union's method of
requesting recognition in this case is so "vague, peculiar"
and "ambiguous," "the Employer did not have a duty to
recognize or bargain with the Union merely based upon
the letter requesting recognition." 13
Moreover, contends Respondent, one of the alleged
discriminatees was a supervisor so that the 8(a)(3) charge
as to him should be dismissed. Furthermore, claims
Respondent, this employee's "supervisory status was
coercive [with respect to his coworkers] and in fact
tainted any claim of majority status that the Union could
make.... In determining whether or not the Union had
a majority ... if a supervisor solicits the employees to
join a Union, that majority is completely tainted and in-
valid." In this proceeding, argues Respondent, the Union
did not represent an uncoerced majority because the em-
ployees signed authorization cards in the home and
presence of the alleged supervisor.
C. Resolutions of Fact and Credibility
In determining credibility in this proceeding, the fol-
lowing has been considered inter alia: the demeanor and
conduct of witnesses , their candor or lack thereof; their
apparent fairness; bias or prejudice; their interest of lack
thereof; their ability to know, comprehend, and un-
derstand the matters about which they have testified;
whether they have been contradicted or otherwise im-
peached; the interrelationship of the testimony of wit-
nesses and the written evidence presented; and the con-
sistency and inherent probability and plausibility of the
testimony. Then too, human qualities, such as motive,
can only be shown circumstantially where the possessor
has not previously revealed them directly, but the circum-
stances may outweigh in credibility a direct statement
testified to at the hearing, so that uncontradicted
testimony need not necessarily be accepted as true.14
The testimony of Donald Welcome is a maze of con-
tradictions, inconsistencies, confusion, equivocations,
and inability to recall crucial events which it is reasonable
to assume he must have remembered. In some instances,
the matters testified to by Welcome were outright im-
probabilities. His first version of the critical events in this
proceeding was given when he was called to testify by the
General Counsel as a witness under Section 43(b) of the
Rules of Civil Procedure for the Federal District
Courts.15 A version different in some material respects
was testified to by Welcome when counsel for Respond-
ent called him as a witness in presenting its defense.
Moreover, this second version was, in considerable mea-
sure, given in reply to leading and suggestive questions
which were propounded to him when he was under direct
examination by his own attorney which also militates
against the weight to be given such witness' testimony.
Furthermore, as the vice in counsel asking witnesses
leading questions so that they suggest the desired answers
which the witness will often merely adopt, it may seem fu-
tile to object once such a question has been asked and the
" Welcome, Respondent 's president, testified the union official "told
[him] that he represented my employees and wished to discuss things and
I referred him to our [ labor relations] representative."
12 The Union withdrew the petition on February 14, 1967.
13 See G.C. Exh. 2.
141 Wigmore, Evidence, §25 (3d ed. 1940 ). Cf. N.L. R.B. v. Howell
Chevrolet Company, 204 F.2d 79, 86 (C.A. 9), affd. 346 U.S. 482, quot-
ing Judge L. Hand , in Dyer v. MacDougall, 201 F.2d 265, 269 (C.A. 2).
'S The pertinent provisions of this subsection state, in substance, that a
party may interrogate any unwilling or hostile witness by leading
questions where such adverse witness is an officer, director, or managing
agent of a public or private corporation.
WELCOME-AMERICAN FERTILIZER CO.
desired answer suggested . Little probative value has been
given to the testimony thus elicited , particularly , in view
of the cogent fact that counsel persisted in asking leading
and suggestive questions although requested by the Trial
Examiner to desist from continuing to do so.16
The testimony of Marsh Davidson , an official of
Respondent Company, did not favorably impress the trier
of these facts. His testimony on cross-examination was
given hesitantly , equivocally , and ambiguously, and in
some instances , in reply to leading questions which were
asked him when he was under direct examination by
counsel for the Respondent.
The employees appeared to be forthright , sincere, and
truthful witnesses and gave the impression of being scru-
pulously objective and honest in their testimony . This im-
pression became a conviction when their testimony was
found to be consistent with the attendant circumstances
in this case and not appreciably shaken by able counsel
for the Respondent who vigorously and thoroughly cross-
examined them.
The testimony of Beatty and Harris , the union officials
(which was uncontradicted), Morgan , Cyrus James Brad-
ford (presently employed by Respondent), Aaron Brad-
ford , Reneau , Elliot, and Cordell, which prove the allega-
tions in the complaint with respect to the 8(a)(3) and (5)
unfair labor practices are credited because they were can-
did and convincing witnesses.17
D. Discussion and Conclusions
1. The alleged discriminatory discharges
The issue here, then , is whether the four alleged dis-
criminatees were terminated by Respondent , as con-
tended by the General Counsel, in violation of Section
8(a)(3) of the Act, because of their union sympathies, or
for economic reasons as claimed by the Respondent. In
determining this question , the burden of proof was on the
General Counsel to establish and sustain the allegations
of his complaint by a preponderance of the credible and
probative evidence, and where a discriminatory
severance , as here is charged , then he must establish by
a preponderence of the evidence that such termination
was discriminatory . 18 The General Counsel , in order to
prove a prima facie case , must show that the alleged dis-
criminatees engaged in activities protected by Section 7
of the Act , that the Respondent knew they engaged in
such conduct prior to discharge , and that they were ter-
minated as a result of having engaged in such activities.
Moreover , the burden of proof rests not upon the
Respondent to convince the trier of the facts that the ter-
16 See Liberty Coach Company , Inc, 128 NLRB 160
17 Universal Camera Corporation v N L.R.B , 340 U . S 474 , 494-497;
Deepfreeze Appliance Division , Motor Products Corp v N L R.B , 211
F 2d458 , 462 (C.A 7).
11 Indiana Metal Products Corporation v N.L R B , 202 F 2d 613, 616
(C.A. 7); NLRB v. Deena Products Company, 195 F 2d 330,
(C A 7), cert denied 344 U S. 827
335
19 N.L R.B v Cleveland Trust Co., 214 F 2d 95 ,99 (C.A 6); N.L R B
v. Drennon Food Products Co , 272 F.2d 23,28 (C A 5)
zo See N.L R B v Hymie Schwartz, d/b/a Lion Brand Manufacturing
Company, 146 F.2d 773,774 (C A 5)
11 N L.R B. v. Jones & Laughlin Steel Corporation , 301 U S. 1,
45-60 , The Radio Officers' Union of the Commercial Telegraphers
Union , AFL (A H Bull Steamship Company ) v N L.R B-, 347 U S. 17,
43-44.
867
minations were not in violation of the Act but upon the
General Counsel to prove they were illegal.19
Against the fact pattern detailed above, Respondent's
contentions in its efforts to exonerate itself from a finding
of unfair labor practices are singularly unimpressive. Cer-
tain undisputed and demonstrable facts in this case,
which have been referred to heretofore , and additional in-
dicia detailed below, strengthen and fortify this conclu-
sion. As found above, Welcome, in particular , and David-
son, to a lesser extent , contradicted themselves and were
vague and equivocal . Their unconvincing testimony and
their disposition to fence with the General Counsel's
representatives , creates a suspicion that they were con-
cealing an unlawful motive, which in this case was an at-
tempt to forestall and abort the organizational activities
of the employees and it is so found.
Before considering the specific facts in this proceeding,
it might be well to discuss some applicable legal princi-
ples. Concerted activities are combined action by em-
ployees , whether or not unionized , to improve conditions
of employment . The basic policy of the Act is one of
clothing with affirmative protection those concerted ac-
tivities of employees which are encompassed in Section
7 of the Act . The right of employees lawfully to engage in
concerted activities for the purpose of mutual aid is pro-
tected and any proscribed or interdicted conduct by the
employer infringing on those rights is an unfair labor
practice.20
In determining whether a layoff, discharge , or termina-
tion is for union activities or for cause , the problem is to
ascertain the employer 's true, underlying motive .21 The
fact that a lawful cause for discharge is available is no
defense where the employee is actually discharged
because of his union activities.22
It is the "true purpose" or "real motive " in hiring
or firing that constitutes the test . Some conduct may
by its very nature contain the implications of the
required intent; the natural foreseeable con-
sequences of certain action may warrant the in-
ference. And see Republic Aviation Corp. v. Labor
Board, 324 U.S. 793. The existence of discrimina-
tion may at times be inferred by the Board, for "it is
permissible to draw on experience in factual
inquiries." 23
Since direct evidence of a purpose to violate the Act is
rarely obtainable , proof of motive usually entails the
weighing of conflicting inferences . The task of weighing
conflicting inferences is entrusted to the trier of the
facts."The possibility of drawing either of two incon-
sistent inferences from the evidence [does] not prevent
the [trier of the facts ] from drawing one of them.... "24
22 N L R B . v. Ace Comb Co and Ace Bowling Co, Division of
Amerace Corp., 342 F 2d 841 (C A. 8), enfg 141 NLRB 489
23 Local 357, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America [Los Angeles -Seattle Motor
Express] v . N.L.R B , 365 U.S 667, 675
24 N L R.B. v Nevada Consolidated Copper Corporation, 316 U S
105, 106 . See also N L R.B v L Ronney & Sons Furniture Manufactur-
ing Co, 206 F 2d 730, 737, where the Court of Appeals for the Ninth Cir-
cuit stated "It is well settled that an employer violates § 8 (a)(3) by
discharging an inefficient employee if the employer's reason for so
doing is not the employee's inefficiency but his union affiliation or activi-
ty " Cf N L R B v C & J Camp , Inc, d/bla Kibler-Camp Phosphate
Enterprise, 216 F 2d 113 , 115 (C.A 5), where the court held that ajustifi-
able cause for discharge cannot shield discnmination in employment
shown to have been unlawfully motivated
350-212 0-70-56
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Usually inferences may be drawn of one fact from the ex-
istence of another when in common experience there is a
"rational connection between the facts proved and the ul-
timate facts presumed."25
For the reasons hereinafter explained, it is believed the
record in this case makes plain that with respect to the
four employees found to have been discriminatorily laid
off, terminated, severed, or discharge, which terms are
used at times in this decision interchageably, there is con-
siderably more than a coincidental connection between
their union activities and their terminations.26 Indeed, it
is found that the "principal events [are] really no coin-
cidence at all, but rather part of a deliberate effort by the
[Respondent Company] to scotch the lawful measures of
the employees before they had progressed too far toward
fruition."27 Under these circumstances "a very convinc-
ing case of discharge for cause would have to be made to
make unreasonable a conclusion that [the] discharge [s]
[were] because of Union [activities]."28 As was stated
by the Court of Appeals for the Fifth Circuit in Shell Oil
Company v. N.L.R.B., 196 F.2d 637,639:
... whatever may be thought of the case made, if the
occurrences are viewed and apprehended piecemeal,
viewed and apprehended as a whole, the record fully
supports the ... findings: that an antiunion coup was
planned . to eradicate the union and unionism
from the plant...."
Union membership or activity does not insulate an em-
ployee against the hazards of unemployment due to lack
of work or any other reason related to the legitimate
management of the business. [Citations omitted.] On the
other hand, economic reasons may not be asserted to
shield an employer against the consquences of his dis-
crimination against an employee who would not have
been laid off but for his union activities or membership.
[Citations omitted.] The circumstances of each case
must be weighed to determine what motivations truly
dominated the employer in laying off or discharging the
employees.29
Section 8(a)(3) of the Act is not intended generally to
interfere with the freedom of an employer to hire and fire
as he pleases. He may discharge employees as he sees fit;
he may discharge them in the interest of efficiency or
from personal animosity or mere whim.30 But in making
these decisions he must not discharge them on grounds of
union affiliation or activity. "Moreover, it matters not
that for reasons apart from union activity an employee
deserves summary discharge, if as a fact the reason was
union activity."31 "A justifiable ground for dismissal is no
defense if it is a pretext and not the moving cause."32
In this case, there is the interference, coercion, and
restraint practiced by the Respondent in its discrimina-
tory treatment of the four employees for their union activ-
ities and which it is found and discussed in later sections
of this decision, was an integral part of the Respondent's
efforts to frustrate the employees' union organizational
campaign. Then too, there are the antiunion views ex-
21 Tot v. U.S., 319 U.S. 463,467 (C.A. 3).
10 N.L.R.B. v. Condenser Corporation of America, 128 F.2d 67, 75
(C. A. 3).
11 N.L.R.B. v. Jamestown Sterling Corp., 211 F.2d 725, 726 (C.A. 2).
28 Dannen Grain and Milling Co. v. N.L.R.B., 130 F.2d 321,328 (C.A.
8).
N.L.R.B. v. Jones Sausage Co. & James Abattoir Co., 257 F.2d 878,
881-882 (C. A. 4).
10 N.L.R.B. v. T. A. McGahey, Sr., dlbla Columbus Marble Works,
pressed by Davidson, when he told the union officials
who had come to the plant 'to request recognition: "We
knew it was only a matter of time until the wolves would
be at the door," which clearly shows union antipathy.
Such a statement by one of the Respondent's officials
shows an improper attitude in union relations. Clearly,
"antiunion bias and demonstrated unlawful hostility are
proper and highly significant factors for Board evaluation
in determining motive."33 The following evidence also
shows that the Respondent resorted to various devices to
impede the efforts of its employees to engage in the
freedoms guaranteed by Section 7 of the Act; namely: the
Company fictitiously subcontracted the work formerly
done by the dischargees, in order to create the fabrication
that economic considerations impelled their "layoffs" due
to lack of work which resulted in their unlawful termina-
tions; and secondly, Respondent's refusal to bargain, all
of which was intended to discourage union activities.
Although Respondent contends the "layoffs" were
motivated by economic considerations, it is significant to
note that the four "laid off" employees were never re-
called although eight new employees have been hired
since August 5, 1966, the date of the "layoffs."34 Equally
significant is the admission by Welcome, Respondent's
president, that when these four employees were ter-
minated that they had completed only one percent of the
scheduled repairs which had already been assigned to
them. The following is excerpted from the General Coun-
sel's examination of Welcome when he was called as a
43(b) witness with respect to the Company's subcontract-
ing the repair work formerly done by the alleged dis-
criminatees:
Q. Isn't it true that when these four employees
were terminated on August 5th that they had
completed only approximately one percent of the
repairs that they had been scheduled to do.
A. They had completed about one percent of the
repairs that were required, yes.
At the same point in his testimony, Welcome
acknowledged that after these employees were
discharged, a greatly increased amount of the repair
work was done by the Dixon "Y" Machine Company. He
testified that Dixon "did a lot of work" after the dischar-
gees' layoffs. This is probative of the fact that the subcon-
tracting of the repair work was motivated not by
economic considerations but for the purpose of ridding it-
self of a sufficient number of union adherents and thus
destroy the Union's majority in order to abort the
Union's advent.
Moreover, Welcome admitted the work subcontracted
had been performed in previous years by the discharged
employees; that it was subsequently subcontracted to
three firms and that the amount of work performed by the
two of the firms, which took over the repair and main-
tenance of Respondent's equipment increased ap-
preciably after the employees were terminated on August
5, 1966. One of these companies was Fruehauf Trailer
233 F.2d 406,413 (C.A. 5).
31 N.L.R.B. v. Electric City Dyeing Co., 178 F.2d 980, 983 (C.A. 3).
See N.L.R.B. v. Dixie Shirt Company, 176 F.2d 969, 973-974 (C.A. 4).
31 N.L.R.B. v. Solo Cup Company, 237 F.2d 521. 525 (C.A. 8).
33 N.L.R.B. v. Dan River Mills, Incorporated, Alabama Division, 274
F.2d 381, 384 (C.A. 5).
34 Those hired were: Rainey, Fisher, Jones, Stamps, Haddock, Hoggs,
Kale, and U nrue. See in. 61.
WELCOME-AMERICAN FERTILIZER CO.
Co. which rewired and repaired the brakes of Respond-
ent's equipment. In 1963, Fruehauf did $643.57 worth
of repair for Respondent. No further work was done by
Fruehauf until September 13, 1966, when beginning with
that date until February 1967, Fruehauf did work valued
at $2,357.00, nearly four times as much as it had done in
the preceding 3 years. Also significant, is General Coun-
sel's Exhibit 16 which shows the increase after August
1966 (when the Employees were fired) in the dollar
amount of repairs performed for Respondent by the
Dixon "Y" Machine Co. From April to August 10, 1966,
Dixon "Y" did about 14 jobs for Respondent, the total
value of which was $1,287.91. During the 3 months of
August, September, and October, Dixon "Y" did approx-
imately 50 repair jobs valued at $7,479.10 or six times as
much work during these 3 months after August 10 as be-
fore August 10. From August 10, 1966, to February
1967, Respondent paid Dixon "Y" $25,678.03.
Noteworthy is the fact that Dixon "Y" paid its em-
ployees $6.50 per hour and more, whereas Respondent
had paid its service crew $2.55 per hour. Interesting also
is the fact that the Dixon "Y" Machine Co. is located in
a building owned by the Best Fertilizer Co.35 Moreover,
after the employees were terminated on August 5, 1966,
much of Respondent's equipment was sandblasted and
painted by the Pires Company, work which previously
had been performed by the discharged service depart-
ment employees. This was the first time Respondent had
availed itself of Pires' services.
However, even to establish that a justifiable ground ex-
isted for making a layoff does not show that Respondent
in fact acted for that reason, for it is no defense if that was
a pretext and not the moving cause.36 The controlling and
ultimate fact is, what was the true reason back of the
layoffs?37 If Respondent's real purpose in acting when it
did was to discourage organizational activities, the fact
that economic considerations may have warranted a
layoff will not avail Respondent as a defense. Even if the
economic situation assigned by Respondent were one of
the reasons for the layoff, that would not gainsay that the
discouragement of union membership was also a substan-
tial and motivating reason, thus requiring, nonetheless, a
finding of unlawful discrimination. 38 Even if there were a
decline in business, and this, at most was a temporary
seasonal decline, which is contrary to the finding made
herein, it proves only that Respondent realized an
economic dividend from its antiunion activity. 39
In point of fact, Thomas Reneau, an employee, testified
that a month before the layoffs, Welcome announced the
hours which they had been working would be decreased
from 60-85 hours to 44 hours a week. However, he
testified, they were only cutback to 47 hours for 1 week
and the following week they were back to their "regular
hours." Furthermore, he testified, the last week he
worked before his layoff, he put in about 60 hours and
during the months of May, June, and July, he worked
about $5 hours a week when it began to decrease,
35 See sec. 1 and 11, supra
3s N.L R B V Solo Cup Company, 237 F 2d 521, 525 (C.A 8);
Sunshine Biscuits, Inc v. N L R B., 274 F.2d 738, 742 (C.A 7)
37 Victor Manufacturing and Gasket Company v. N.L R B., 174 F 2d
867, 868 (C A. 7); and see N.L.R.B v. C. & J. Camp, Inc., dlbla Kibler-
Camp Phosphate Enterprise, 216 F 2d 113, 115 (C.A 5), enfg 107
NLRB 1068
38 N.L R B. v. Whuin Machine Works, 204 F 2d883,885 (C A. 1), and
cases there cited, Town & Country Mfg Co. v N.L.R.B., 316 F.2d 846,
847 (C A 5)
869
although, he explained, the "busy season" continues up
through August. C. J. Bradford, who is presently em-
ployed by Respondent, testified, when called by Respond-
ent, that the busy season starts in February and "runs
clear through into September and sometimes less."
Earl Elliot, another of the four alleged discriminatees,
testified that: "During the season from March to the first
week in July all employees were working between 72 or
80 or 90 hours a week. Three weeks before we were
discharged we were cut to about 55 hours per week." He
also testified that the "busy season" was "April through
July ... and then it drops off some." Elliot also testified
he worked the following hours: the pay period ending
April 29, 1966-83-3/4 hours; May 13, 1966-85 hours;
May 20-84 hours; May 27-70-1/4 hours; June 3-69-
3/4 hours; June 16-58-1/2 hours; July 1-61-1/4 hours;
July 8-46 hours; July 22-65-1/4 hours; July 29-68-
1/2 hours; and the last week he worked, ending August 4,
50-1/4 hours. Elliot testified that during the above periods
of time, he worked 6 to 7 days a week until the last 3 or 4
weeks before his termination, when he worked 5-1/2 days
a week.
Virgil Cordell, another alleged discriminatee, worked
the following hours: week ending June 3, 1966-70-3/4
hours; June 10-65-3/4 hours; June 17-62-1/2 hours;
June 24-66-1/2 hours; July 1-62-1/2 hours; July
8-50-1/2 hours; July 15 -62-1/2 hours; July 22 - 66-1 /2
hours; July 29-67-3/4 hours; August 5-52-1/2 hours.
See also Respondent's Exhibit 12 detailing the hours
worked by Virgil Cordell from May 12 to October 28,
1965. Cordell also testified credibly that in the more than
3 years he was employed by Respondent "there never
was" seasonal layoffs during the months of August and
September40, and in 1965 that he "worked a total of 3,300
hours ... for the whole year." Moreover, Respondent's
defense of lack of work is further weakened by its hiring
of eight new employees between September and January
1967. Cordell also testified that in the past 3 years, from
September through January, the rainy season, when they
were unable to service the crops, the employees were
kept occupied repairing equipment which had fallen into
disrepair during the growing season.
With respect to when the "busy season" is over, and
keeping in mind the dischargees' terminations on August
5, it is significant to note that Charles Williams, Respond-
ent's witness and branch manager for the Fruehauf
Trailer Company, which maintained some of Respond-
ent's equipment, testified that it was agreed Respondent
would send its equipment to Fruehauf for repairs "after
the season was over" and that the first of Respondent's
equipment arrived at Fruehauf s shop on September 13,
1966.
Where Respondent's defense becomes feckless is in
failing to meet and to overcome the facets of the General
Counsel's case which was indicative of discriminatory
motivation, the more significant of which are noted above
and below. Other than Respondent's Exhibits 4, 5, and 6
31 N.L.R B v Biscayne Television Corporation , 337 F 2d 267,268
(C A 5).
41 Respondent 's statement , at p 15 of its brief, that Welcome testified
"without contradiction that the company always cut its work force at that
particular time of the year " (August) is without factual validity as Wel-
come 's testimony, as indicated at p 399 of the transcript, was not "sub-
stantial" and incompetent for purposes of making findings of fact
Moreover , Resp Exhs . 7, 8, and 1 1 are not probative of what Respond-
ent's counsel argues they represent , nor is the testimony referred to in
said brief at pp 475-476 of the transcript
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(which do not corroborate its contention that economic
reasons compelled the layoffs), Respondent introduced
into evidence none of its business records which were
probative to prove its affirmative oral defense of
economic motivation and to refute the General Counsel's
contention that the union activities of the four "laid off"
employees was the motivating cause for their termina-
tions. The statistics furnished by the Company fall far
short of establishing its contention that the "layoffs" had
their genesis in any loss of business . 41 Moreover,
Respondent's unexplained failure to support and substan-
tiate its economic justification for the layoffs by the
production of probative and material documentary
records within the power of the Respondent to produce,
renders the purported reasons dubious and also warrants
drawing an inference that if such words had been
produced , they could not have been favorable to the
Respondent . 42 This failure to produce such evidence
"not only strengthens the probative force" of its absence
"but of itself is clothed with a certain probative force."43
For instance , Respondent ' s Exhibit 2, which purports
to be an estimate for painting , dated April 5, 1966, by the
Pires Company , was not signed by Welcome, With
respect to the Dixon "Y" Company, Welcome testified
that discussions began in June 1966 regarding the subcon-
tracting of Respondent's repair work but no correspond-
ence or other written evidence was produced . In fact,
Taylor, owner of Dixon "Y", testified that before Au-
gust , "most" of the work he did for Respondent was
"overflow"; after that date, he testified as follows: "After
the season came in , we discussed this major overhaul of
equipment which was altogether different where we went
in and reconditioned the stuff." [Emphasis supplied.]
The underlined phrase is an unmistakable reference to the
repairs done prior to August . Although Welcome testified
his repair agreement with Dixon "Y" had been "con-
sidered" as early as April and May 1966, and the
"details" were discussed in June and July and that they
"arrived at an agreement at the end of July or the first of
August," it is highly significant that Respondent did not
enter into a signed contract with Dixon "Y" until Sep--
tember 20 . General Counsel's Exhibit 17.
Furthermore , it appears that the equipment repair in-
struction class, which was conducted by a Best Fertilizer
Company employee , was held on or about July 31, ac-
cording to the credited testimony of Thomas Reneau, an
employee. This conclusively shows that the four em-
ployees' discharges on August 5 were summary and
precipitate . It is unbelievable that the Respondent would
have expended considerable time and funds to train these
men and then discharge them 5 days later , when it is re-
41 See fn. 40
42 Interstate Circuit v U S., 306 U .S 208, 225, 226 , N.L.R.B. v. Sam
Wallick and Sam K . Schwalm, d/b/a Wallick and Schwalm Company, 198
F.2d 477 , 483 (C .A 3); Concord Supplies & Equipment Corp, 110
NLRB 1873, 1879.
43 Paudler v Paudler, 185 F 2d 901 , 903 (C A. 5), cert denied 341
U S 920
44 In Burk Brothers v. N.L.R B ., 117 F.2d 686, 687 (C A . 3), it was
held that an employee was discharged rather than laid off because he was
paid off immediately and not on the regular payday,
41 Davidson's version of this incident that . " I told him that I was sorry
to see him go and that I hoped he would do well at his new job ," is not
credited.
46 Magnolia Petroleum Co v N.L.R.B, 200 F . 2d 148 (CA, 5),
N.L R B v . Solo Cup Company , 237 F.2d 521, 525-526 (C A 8).
called that Welcome testified he had decided to lay off
these men a month before they were notified on August
5 of their terminations . Also significant in determining the
precipitate nature of their discharges , is the fact that for
purposes of receiving their salary , the workweek ends on
Thursday , yet the dischargees were terminated as of
Friday instead of Thursday, the end of the Respondent's
normal pay period. 44
Highly significant , if not conclusive of the alleged dis-
criminatees being fired for their union activities and not
because of ecomomic considerations , is Earl Elliot's
testimony of a conversation he had with Supervisor
Davidson on August 5, immediately after the employees
were notified by Welcome of their "layoffs." Davidson,
testified Elliot , came over to him and said : " Earl, I hate
to see you go. I think you are a good man, but I think you
had a lot to do with this , and I said , `Do with what?' He
said, `You know what I am talking about.' I said, `I am
afraid I don't."' This conversation was corroborated by
Virgil Cordell , another employee , who testified that he
overheard it. This, it is found , is an unmistakable
reference by Davidson to Elliot's interest in the Union.45
It is clear that an employer may discharge an employee
for any cause or no cause as long as it is not motivated by
activities protected by Section 7 or proscribed by Section
8(a)(3) of the Act 46 The fact that an employee is a union
adherent affords him no protection against a discharge for
cause. Moreover , the existence or assertion of a valid
reason for discharge does not necessarily indicate that
this reason constituted the real cause for discharge, nor
does the existence of a valid cause provide a defense un-
less it is the moving cause for the termination . 47 Nor does
failure of an employer in an unfair labor practice proceed-
ing to show proper cause for a termination relieve the
General Counsel from his burden of establishing that the
discharge was motivated by proscribed considerations.
On the other hand, the unconvincing character of
proffered and multiple reasons for a discharge is also a
significant factor in determining whether or not the
discharge was improperly motivated . 48 In fact , a finding
of discriminatory motivation for a discharge may find
substantial support in an employer's asserted reason for
the discharge when that reason is pretextual in nature. To
adopt a recent statement of this principle by the Court of
Appeals for the Ninth Circuit in Shattuck Denn Mining
Corporation v. N.L.R.B., 362 F.2d 466, 470, enfg. 151
NLRB 1328:
If [the Trial Examiner ] finds that the stated motive
for a discharge is false, he certainly can infer that
there is another motive. More than that, he can infer
that the motive is one that the employer desires to
47 N L R B v Texas Independent Oil Co , 232 F 2d 447,450 (C.A. 9),
NLRB.v C. &J Camp, 216F2d113,115(CA 5)
48 N L R .B. v L C. Ferguson and E F Von Seggern dlb/a Shovel
Supply Company, 257 F 2d 88 , 92-93 (C.A. 5), N L R B. v. WTVJ, Inc,
268 F.2d 346 , 348 (C A 5 ) See Fort Worth Steel and Machinery Com-
pany , 125 NLRB 371 , 372, where the Board held that a multiplicity of
reasons given for a discharge indicates they are pretextuous. In N L R B
v Schill Steel Products, Inc , 340 F.2d 568 , 573 (C A. 5), the court stated
that "multiplicity of its alleged reasons for [discharge ] renders [a] claim
of nondiscrimination the less convincing " In N L R B v R . C Can Com-
pany, 340 F 2d 433, 435 (C A . 5), the court said "when an employer
shifts position several times in explaining why an employee has been fired,
his own case is weakened , and the Board's conclusion that the true reason
was union activities is correspondingly strengthened."
WELCOME-AMERICAN FERTILIZER CO. 871
conceal-an unlawful motive-at least where, as in
this case, the surrounding facts tend to reinforce that
inference.
Although the layoff of an employee is lawful, it may
become discriminatory if other circumstances reasonably
indicate that protected activities weighed more heavily in
the decision to lay him off than did dissatisfaction with his
conduct or work.49 Another circumstance present here is
Respondent giving bonuses in 1966 to Virgil Cordell and
Reneau, whom it claims were selected for layoff because
they were less efficient than those retained. Motivation is,
indeed, an elusive factor. To find motivation, the finder of
the facts must sometimes travel a trackless labyrinth of
inextricable, intangible" imponderables that makes the
search as to where the truth lies extremely arduous.
Respondent's contention that these men were laid off
because of an annual seasonal decline in business,
although a valid cause for the layoffs, does not stand up
under scrutiny, and is not substantiated by the facts.5°
Moreover, the burden of proving an affirmative defense
is on the party asserting it. Respondent's evidence on this
point is unpersuasive. Furthermore, as stated above, it is
believed there is more than a temporal coincidence
between the employees' union interest, attending union
meetings, their signing union cards, and their "layoffs"
the day after the Union requested recognition. Finally,
the testimony of Welcome as to the layoffs being the
result of valid economic reasons was contradictory,
vague, ambiguous, and the exhibits introduced by
Respondent did not bear out this contention.51
Considering the circumstances under which the layoffs
occurred, as explicated above, and the unconvincing
testimony adduced by Respondent to justify its action, it
can validly be concluded that the Respondent had
proscribed motives in laying off and discharging these
four alleged discriminatees. And when the weaknesses in
Welcome's testimony and the ambiguities, incon-
sistences, and outright improbabilities inherent in the as-
signed reasons for the layoffs are weighed against the em-
ployees' union sympathies, the Company's union animus,
the timing of the layoffs, the small size of the plant, the
close contact of Welcome with the employees, the Com-
pany's attempts to thwart unionization by the discrimina-
tory discharges of union adherents, and the 8(a)(5) unfair
labor practices found infra, and finally, the inadequacy of
the explanations advanced for the layoffs, it is concluded
that these layoffs were discriminatorily motivated in
order to discourage the employees from forming the
Union, and also to keep the Union out of the plant. Nor
does the fact that Respondent failed to lay off all union
adherents indicate an absence of discriminatory intent as
to them.52 In fact, the courts have held that a dispropor-
tionate selection of union men for dismissal "may under
certain circumstances be very persuasive evidence of
discrimination."53
Assuming, arguendo, that there was economic justifi-
cation for Respondent's action and some decrease in its
business, the question is not whether Respondent had
"good cause" for the reduction in force, but whether such
cause was the real reason for the layoffs.54 It is believed
that lack of work due to a seasonal business decline was
not the real reason for the alleged discriminatees'
layoffs.55 Assuming further, that Respondent may have
been retrenching and undergoing economic difficulties
nevertheless, the timing of the layoffs and Respondent's
actions and statements at that time and later, reflect that
antiunion motives played a part in its action.56 It is found,
therefore, based on the facts discussed above, that the ad-
herence of these four discriminatees to the Union caused
or contributed to their being laid off or discharged by the
Respondent.
Furthermore, it is uncontroverted that subsequent to
the layoffs, vacancies were available which not only were
not offered to the alleged discriminatees but were filled by
new men. See footnote 34. It is found, therefore, that
under these circumstances the failure to contact the "laid
off" discriminatees was unlawfully motivated.57
Employee Bill Cordell, who is alleged in the complaint
to have been discriminatorily laid off, did not testify as he
is presently serving in the Armed Forces. However, it is
not necessary that this employee who was laid off make
personal appearance and give personal testimony. The
facts herein apply to a group so that the relief afforded to
those of the group who did testify may be afforded to
those of the same group who did not testify. The test to be
applied is whether there is substantial evidence in support
of the allegations of the complaint, irrespective of the ap-
pearance or nonappearance of the employees as wit-
nesses at the hearing. Here there is such evidence. 51,
That this concatenation of the four discriminatees at-
tending union meetings on August I and 3, and their
precipitate layoffs with no advance notice the day after
the Union's letter of recognition was received by Re-
spondent, was merely a temporal coincidence, stretches
credulity too far when the following cumulative factors
are considered: (1) Respondent's union animus and op-
position to the Union's presence at the plant, which
reflects prior knowledge of the dischargees' union activ-
4'' N.L R B v Whitin Machine Works, 204 F 2d 883,885 (C A 1)
50 See N.L.R.B. v Thomas W Dant, Robert E Dant, dibla Dant &
Russell, Ltd, 207 F 2d 165, 167 (C.A. 9); N L.R B. v. Abbott Worsted
Mills, Inc., 127 F 2d 438, 440 (C.A. 1), N.L R B v. J G Boswell Co,
136 F 2d 585, 595 (CA 9).
51 Resp Exhs. 1, 2, 3, 6, 7, 8, 11, and 12 which purport to show
economic reasons for the layoffs and a decline in business during the
periods of time relevant herein are not probative of these contentions.
58 W C Nabors Company, 89 NLRB 538, Duro Test Corp , 81 NLRB
976, Stewart-Warner Corporation, 55 NLRB 593.
53 N.L.R B v. W. C. Bachelder, Receiver for Hoosier Veneer Co., 120
F.2d 574, 578 (C A 7), cert denied 314 U.S. 647, N L R.B v. Shedd-
Brown Mfg. Co, 213 F 2d 163, 174 (C A 7), Atlantic Metal Products,
Inc, 161 NLRB 919, 924, fn. 6, where mathematical probabilities are
discussed
54 N.L.R B. v WTVJ, Inc , 268 F.2d 346,347 (C A. 5)
55 See N.L R.B. v Whiten Machine Works, 204 F 2d 883,885 (C A • 1),
N.L R B. v. Dixie Shirt Company, 176 F 2d 969, 974 (C A. 4), N L.R B
v. Swinerton and Walberg Company, 202 F.2d 511, 515, 516 (C A 9),
cert denied 346 U.S 814
11 Cf N L R.B. v Jamestown Sterling Corp , 211 F.2d 725, 726 (C A
2).
5' In The Lion Knitting Mills Company, 160 NLRB 801, the Board
found unlawful union animus in an employer's failure to recall employees
on layoff
58 Kuehne Manufacturing Company, 7 NLRB 304, 323, Campbell
Coal Company, 112 N LRB 941, 958; Diaper Jean ManufacturingCom-
paoy, 109 NLRB 1045, 1060, fn 51
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ities;59 (2) not only does the evidence fail to bear out
Respondent 's affirmative defense of economic justifica-
tion or a valid reason for the four "layoffs" but the as-
serted reasons were not the moving cause for the termina-
tions , as they neither stand up under scrutiny nor are they
substantiated by the facts; (3) the unconvincing character
of the proffered shifting and multiple reasons for these
terminations is a significant factor in concluding they
were improperly motivated because shifting reasons for
employees' terminations are indicative of a discriminato-
ry intent;60 (4) the hiring of eight employees shortly after
the "layoffs" of the four discriminatees belies Respond-
ent's claim of a decline in business; 61 (5) in determining
whether the four employees' terminations were dis-
criminatory, considerable weight has been given also to
the pretextuous subcontracting of work formerly done by
the unit employees in order to create an artificial lack of
work; 62 and (6) Respondent's refusal to bargain with the
Union which is discussed, infra.63
Under these circumstances, and because of the uncon-
vincing reasons proferred by Respondent, as well as its
union hositility, no other conclusion would be warranted
than that the layoffs were motivated by a desire to crush
and suppress the union movement because of these em-
ployees' adherence to and support of the Union, and it is
so found.64 Accordingly, it is found that the "layoffs" of
Billy Cordell, Virgil Cordell, Thomas Reneau, and Earl
Elliot, were not due to economic reasons but because of
their interest in the Union, all in violation of Section
8(a)(3) and (1) of the Act.65
2. The alleged refusal to bargain in violation of Section
8(a)(5)
As detailed in section III, A, of this Decision, the
union officials, on August 4, hand delivered a letter to
Respondent requesting recognition and the arranging of
a meeting to begin negotiations . The letter also stated that
the Union was "agreeable" to proving its majority
represntation by "a showing of the proper authorization
cards." The Respondent failed to reply to the Union's
letter which requested recognition and a date for bargain-
ing negotiations . "Failure of an employer to answer the
letter of [a] union requesting a date for bargaining
negotiations , by itself, constitutes a refusal to bargain."66
59 The Board and the courts have sustained an inference of company
knowledge when the union activity has taken place in a small plant.
N.L.R.B . v. Abbott Woorsted Mills; Inc ., 127 F.2d 438, 440 (C.A. 1);
N.L.R.B . v. Quest-Shon Mark Brassiere Co., Inc., 185 F.2d 285 (C.A. 2),
enfg . 80 NLRB 1149 , 1150; Angwell Curtain Company, Inc., v.
N.L.R.B ., 192 F.2d 899 (C.A. 7); Wiese Plow Welding Co., Inc., 123
NLRB 616, 617, 618; Tru-Line Metal Products Company, etc., 138
NLRB 964; Don Swart Trucking Co., Inc ., 154 NLRB 1345, fn. 2, where
18 employees were involved.
60 Dan! & Russell, 92 NLRB 307; N.L.R. B. v. Condenser Corporation
of America , 128 F.2d 67, 75 (C.A. 3). See Mooresville Mills, 99 NLRB
572, 600 ; The Sandy Hill Iron & Brass Works, 69 N LRB 355, 377, enfd.
165 F.2d 660 (C.A. 2). Lewis & Holmes Motor Freight Company, 63
NLRB 996 , 1008; N .L.R.B. v. Yale & Towne Manufacturing Company,
114 F.2d 376, 378 (C.A. 2).
61 Rainey was hired 11 - 18-66; Fisher on 10-11-66 and left on
12-16-66 ; Jones hired on 11- 11-66 and left 12-1-66; Ken Stamps hired
on 9-9-66 and is presently working for the Company ; Ken Unrue was
hired on 9-26-66 and is presently with the Company ; Robert Haddock
employed on 12-29-66 and left on 1-25-67; Robert Hoggs was hired on
12-9-66 and is presently with the Company and Bob Kale was hired on
12-9-66 and is presently with the Company.
62 See Shurtenda Steaks, Inc., 161 NLRB 957, where the Board held an
"There was no necessity for the union to offer proof of
the genuineness of its majority claim absent a challenge
by respondent."67 In fact, in this case the evidence
unmistakably demonstrates that the Company gave cre-
dence to the Union's claim that it represented the em-
ployees by immediately discharging four employees upon
receiving the Union's letter requesting recognition. This
course of conduct is an absolute refutation of any good-
faith doubt on the part of the Respondent.68
On August 6, the union representatives, Beatty and
Harris, went to the office of Welcome, president of
Respondent, who advised them to see Selby Lewis, an of-
ficial of the California Association of Employers which
represents Respondent. Beatty spoke to Lewis and
requested a meeting to "discuss the situation." Lewis
replied he was going to Respondent's plant and would
possibly see Beatty there. When Beatty inquired if this
meant Lewis would meet with him, Lewis replied: "No,
this does not mean I am agreeing to meet with you at all.
If you are there, possibly I will see you."
Later that day, while manning the picket line at the
plant, Lewis came up to Beatty and introduced himself.
Beatty asked Lewis "if there wasn't some manner that we
could resolve this by having all [the laid-off employees]
returned to work and perhaps resolve it on the basis of a
consent election if the Company desired." Lewis' reply,
according to Beatty, which is uncontroverted, was "that
they had no intentions of recognizing the Union in any
manner or negotiating with us in any way and further
stated that they believed that our action was illegal and
not proper. I informed him that as far as we were con-
cerned the action was legal and we intended to do
everything that we could legally to obtain our objective
and Mr. Lewis stated to me: `You better see that you are
legal because we will be watching you all the time."' At
no time after this did Respondent attempt to contact the
Union as requested in the letter.
On August 8, the Union filed a representation petition
with the Board requesting an election69 and on the same
day the Union sent a telegram to Respondent informing
it that the Union's picketing and striking was due to the
Company discharging the four employees.
The uncontradicted evidence shows that the Union had
been designated by all eight service department em-
ployees, in an appropriate bargaining unit, as their bar-
employer was obliged to bargain with the union before subcontracting
work, even if the subcontracting negotiations were begun prior to the
union's certification.
83 See sec. 2.
84 Cf. N.L.R.B. v. Preston Feed Corp., 309 F.2d 346 (C.A. 4), enfg.
134 NLRB 629. See also N.L.R.B. v. Goya Foods, Inc., 303 F.2d 442
(C.A. 2); N.L.R.B. v. U.S. Air Conditioning Corp., 302 F.2d 280 (C.A.
1); N.L.R.B. v. Winchester Electronics, Inc., 295 F.2d 288, 292 (C.A. 2).
65 The instant case is not unlike N.L.R.B. v. Ellis and Watts Products,
Inc., 297 F.2d 576, 577, where the Sixth Circuit rejected an employer's
contention "that the layoffs were made on account of economic reasons .
..." The court noted that "this would be justification for the layoffs if it
were the real reason," but observed that "The employer did not take such
action until after the union had requested a meeting with it" and "the.
union had authorization cards signed by about 95 percent of the em-
ployees and the employer was advised of this fact."
66 Sussex Hats, Inc., 85 NLRB 399, 407.
67 N.L.R.B. v. Trimfit of California, Inc., 211 F.2d 206,2 10 (C. A. 9).
66 N.L.R.B. v. Overnite Transportation Co., 308 F.2d 279, 283 (C.A.
4).
69 The filing of the petition for an election did not absolve the Company
from its duty to bargain. N.L.R.B. v. Elliott-Williams Co., 345 F.2d 460,
464 (C.A. 7).
WELCOME-AMERICAN FERTILIZER CO.
gaining agent when the Union requested recognition and
bargaining on August 4, 1966. Thereupon, by virtue of
the provisions of Section 9(a) of the Act, the Union
became the exclusive representative of all the employees
in the bargaining unit '70 and Section 8(a)(5) provides that
when an employer refuses to bargains with the representa-
tive chosen by his employees he is guilty of an unfair
labor practice. Such a showing has been made here.
It is well settled that an employer's duty to bargain is
not dependent upon an election and Board certification. 71
Thus, a union's representative status may be established
by designation cards, or applications for membership, or
employee petitions.72 The Act, it should be emphasized,
does not condition an employer's obligation to bargain
upon an antecedent certification by the Board, where, as
here, a union's majority designation is clearly established
by authorization cards, so that the employer acts at his
peril in refusing to recognize a duly selected bargaining
agent.73 By Respondent's failure to learn the facts as to
the Union's majority and by engaging in unlawful conduct
designed to undermine the Union's support, Respondent
elected to take "the chance of what [the facts] might
be."74 When the union officials hand delivered a letter to
Respondent requesting recognition, saw Welcome at his
office and also notified Lewis, Respondent's agent, it did
everything it could possibly have done under the circum-
stances. Moreover, when Lewis told the union officials,
that Respondent had no intention of recognizing or bar-
gaining with the Union, this summary rejection of the
request for recognition without regard to whether the
Union had in fact been designated by a majority of the
employees, coupled with the discriminatroy discharges
and'' unilateral subcontracting of work formerly performed
by these employees in a hastily conceived plan to defeat
unionization, it is found that the refusal of recognition
was to gain time to dissipate the Union's majority. 75 Nor
is it believed that the subcontracting and precipitate
discharge of these employees was merely a temporal
coincidence. Rather, it is believed and found to be a con-
trived plan to destroy the Union's majority status. In fact,
the record is clear that at the time of their discharges, the
service crew had ample work to keep them occupied for
some months to come.76 See sec. III, D. 1, paragraph 9,
above. Assuming sales of fertilizers and insecticides
decreased during the nongrowing season, not only was
this due to an inability to work outdoors because of the
winter weather but historically, the service crew repaired
10 Sec. 9(a)-Representatives designated or selected for the purposes
of collective bargaining by the majority of the employees in a unit ap-
propriate for such purposes, shall be the exclusive representatives of all
the employees in such unit for the purposes of collective bargaining in
respect to rates of pay, wages, hours of employment, or other conditions
of employment. .
71 Lebanon Steel Foundry v N L.R.B., 130 F.2d 404, 407-408
(C.A.D.C.), cert denied 317 U.S. 659.
72 See United Aline Workers ofAmenca v. Arkansas Oak Flooring Co ,
351 U.S. 62, 71--75, N.L R B. v Bradford Dyeing Association, 310 U.S
318, 338-340; N.L.R.B. v Louisville Refining Co., 102 F.2d 678, 680
(C.A. 6), cert. denied 308 U S. 568; N.L.R.B. v. Clinton E. Hobbs Com-
pany, 132 F.2d 249 (C.A 1), enfg 41 NLRB 537.
73 N.L.R.B. v. Piqua Munising Wood Products Co., 109 F 2d 552,556
(C.A. 6).
74 N.L.R.B. v. Remington Rand, Inc., 94 F.2d 862, 869 (C A 2), cert.
denied 304 U.S. 576.
7S Vinylex Corporation, 160 NLRB 1883
7s Welcome testified on cross-examination that he told the service crew
on July 30, 1966, they would continue to work in the shop as "there was
873
the equipment from September to February, the "rainy"
season, during which time the weather prevented them
from applying fertilizer and insecticides to farmers' crops.
See sec. III, D. 1, paragraph 15, above.
It is well settled that an employer's duty to bargain
arises immediately upon receipt of an unequivocal
request, such as the circumstances in this case reveal.
However, when Lewis, Respondent Company's labor
consultant, stressed his insistence that he would not grant
recognition,77 the Company betrayed its fundamental op-
position to the entire principle of collective bargaining by
resorting almost immediately to coercive activities and
refractory conduct when it illegally terminated four of its
employees and subcontracted work formerly performed
by these same employees. By interfering with the rights
of its employees and violating the Act immediately fol-
lowing the Union's request for recognition, Respondent
itself provided a reliable index for measuring whether it
had a good-faith doubt of the Union's claim that it
represented a majority of the employees. Moreover, the
Respondent offered no evidence casting any doubt upon
the authenticity of the cards the employees signed which,
in itself, and under the circumstances herein revealed,
shows bad faith.78 It is clear that based upon Respond-
'snt's words and deeds, it revealed a determination to
deprive its employees of their basic organizational rights
guaranteed by the Act. Even more fundamentally, how-
ever, the very circumstance that Respondent refused to
accept the Union's offer to prove its majority representa-
tion by "a showing of the proper authorization cards" of
its employees, confirms that Respondent entertained no
concern on this score.79
While an employer may, of course, refuse to recognize
a union when motivated by a good-faith doubt concerning
its majority status, it is settled, as stated in Joy Silk Mills,
Inc. v. N.L.R.B., 185 F. 2d 732, 741 (C.A.D.C.), cert.
denied 341 U.S. 914, enfd. 85 NLRB 1263, that when:
... such refusal is due to a desire to gain time and to
take action to dissipate the union's majority, the
refusal is no longer justifiable and constitutes a viola-
tion of the duty to bargain set forth in Section 8(a)(5)
of the Act. [Citing cases.] The Act provides for elec-
tion proceedings in order to provide a mechanism
whereby an employer acting in good faith may secure
a determination of whether or not the union does in
fact have a majority and is therefore the appropriate
agent with which to bargain. Another purpose is to
a substantial amount of work or repairs that had to be done."
77 An erroneous view of the law, even if held in good faith , is not a
defense to a charge of refusal to bargain Old King Cole, Inc v N.L R B.,
260 F.2d 530, 532 (C.A 6).
78 Cf John P. Serpa, Inc., 155 NLRB 99, where the Board said.
"Where the General Counsel seeks to establish a violation of Section
8(a)(5) on the basis of a card showing , he has the burden of proving not
only that a majority of employees in the appropriate unit signed cards
designating the union as bargaining representative but also that the em-
ployer in bad faith declined to recognize and bargain with the Union." See
also H & W Construction Company, 161 NLRB 852 , andJem Mfg. Inc,
156 NLRB 643 , 644-645 ; Aaron Bros ., 158 NLRB 1077; N.LR.B. v.
Security Plating Co., 356 F.2d 725,727 (C.A. 9).
71 Where an employer was shown union authorization cards signed by
a majority of employees and had no reason to doubt their authenticity, his
failure to recognize the union was unlawful , the U.S. Court of Appeals for
the Ninth Circuit held, even though the refusal came after the employer
asked for time to consult his attorney and then learned that the union's
majority had disappeared. Retail Clerks Union , Local 1179[John P
Serpa] v. N.L R.B., 376 F.2d 186.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insure that the employees may freely register their in-
dividual choices concerning representation. Cer-
tainly it is not one of the purposes of the election
provisions to supply an employer with a procedural
device by which he may secure the time necessary to
defeat efforts toward organization being made by a
union.80
Shortly after the Company was requested to recognize
and bargain with the Union, not only did the Company
not contact the Union as requested in the letter, but in-
stead it immediately embarked on an antiunion campaign
by unilaterally subcontracting the work formerly done by
the service department employees which eventuated in
the unlawful termination of four of the employees. This
unlawful conduct was intended to intimidate employees,
discourage union adherence, win employees allegiance
from the Union, and thus dissipate the Union's majority.
The pattern of conduct was all part of a scheme to un-
dermine the Union's representative status and to destroy
its standing by bypassing it in order to avoid its duty to
bargain and thus indicating to its employees that it was
not necessary to belong to a union to obtain satisfactory
employment terms. 81
Such conduct is inconsistent with Respondent's hold-
ing a good-faith doubt as to the Union's majority
representative status. Accordingly, it is found that
Respondent's refusal to meet with Union, was not made
in good faith but rather for the purpose of gaining time to
undermine and dissipate the Union's majority. The Board
and courts have agreed that in situations like this, where
an employer resorts to illegal activities, it can reasonably
be inferred that the employer's initial refusal to bargain
was as ill-intentioned as his other actions.82 Moreover, it
is equally clear that when an employer has no bona fide
reason for challenging the union's claim that it is the
majority representative of his employees, his duty to bar-
gain may arise in the absence of certification. 83
Accordingly, it is found that the Respondent refused to
bargain collectively on August 4, 1966, and since, with
the Union as the exclusive representative of its em-
ployees in an appropriate unit and thereby deprived its
employees not only of the rights guaranteed by Section 7
of the Act, but also violated Section 8(a)(5) of the Act.84
Respondent also contends that the Union's "vague and
peculiar method in requesting recognition" absolves
Respondent of any obligation to bargain. If, by this,
Respondent means the Union's request did not specify
the particular employees it wished to represent, this argu-
ment is without legal validity. The Union's oral and writ-
ten requests to Respondent were neither vague nor am-
biguous but clear, explicit and precise as evidenced by
Welcome's own testimony. 85 No particular form of words
is required to establish a request to bargain. It is sufficient
if the language or conduct employed, expressly or by im-
plication, conveys with reasonable clarity a request by a
bargaining representative to meet with the employer con-
cerning bargaining negotiations or conditions of employ-
ment within the bargaining unit.86 Moreover, when the
entire service department crew picketed Respondent's
plant, this action dispelled any doubt as to which of its
employees were represented by the Union.87 Finally, the
Board has wide discretion in determining an appropriate
bargaining unit, and its determination in this regard will
not be disturbed unless there has been a showing that
such determination was arbitrary.88 There has been no
such showing here.
Furthermore, Respondent's contention that the Union
lacked the majority status necessary to support an order
to bargain because Virgil Cordell, an alleged dis-
criminatee, is a supervisor within the meaning of Section
2(11) of the Act,89 and that he coercively induced em-
ployees to sign union cards, when they did so in his home
and presence, thereby invalidating the Union's majority
status, is without factual validity. To begin with, the
statutory powers listed in § 2(11) must be exercised in the
interest of the employer.90 Then too, Respondent never
challenged the Union's majority status until the time this
case was heard, which was over 7 months after the Union
requested recognition which might indicate it is not only
an afterthought, but that Respondent was unaccountably
tardy in articulating this ground for withholding recognit-
ion.91 Nor did it ask to examine the union authorization
cards signed by its employees. Moreover, the record is
clear that all eight employees in the appropriate unit had
validly designated the Union as their bargaining represent-
ative when the Union made its demand for recognition.
Furthermore, Cordell's denial that he never requested or
influenced, directly or indirectly, any of his coworkers to
join the Union or to sign such union authorization cards
stands uncontradicted on the record and is corroborated
by his fellow employees.92
Finally, it is found that the evidence is insufficient to
establish that Virgil Cordell was a supervisor. Cordell
was examined in the light of the language of § 2(11) and
denied he had the authority to do the acts specified in that
section. His denial is credited. He was merely a leadman
or foreman, being a "shop foreman" and "dispatcher"
over the other seven service department employees. He
assisted other employees but did not criticize them. He
was paid on an hourly basis like the other employees, per-
9° See also Clermont 's, Inc., 154 NLi{B 1397, 1400-01; Borden
Cabinet Corp., v. N.L.R.B., 375 F.2d 891 (C.A. 7), enfg. 159 NLRB
1373.
81 See May Department Stores dlbla Famous-Barr Company v.
N.L.R.B., 326 U.S. 376, 385; Hammond & Irving, Inc., 154 NLRB 1071,
1073.
82 Joy Silk Mills, Inc. v. N.L.R.B., 185 F.2d 732, 742 (C.A.D.C.);
N.L.R.B. v. Samuel J. Kobritz, dlb/a Star Beef Company, 193 F.2d 8, 14
(C.A. 1).
83 lob v. Los Angeles Brewing Co ., 183 F.2d 398, 405 (C.A. 9).
84 Corrie Corp. v. N.L.R.B., 375 F.2d 149 (C.A. 4).
11 See in. 11.
86 Joy Silk Mills, Inc . v. N.L.R.B., 185 F .2d 732,741 (C.A.D.C.), cert.
denied 341 U.S . 914. See Lincoln Manufacturing Co., 160 NLRB 1866,
holding that a union in requesting recognition need not state it represents
a majority of the employees.
87 World Carpets, 163 NLRB 597; Scobell Chemical Company v.
N.L.R.B., 267 F.2d 922 (C.A. 2); Seven Up Bottling Co., 92 NLRB
1622, 1623; West Coast Luggage Co., 105 NLRB 414, 419.
88 May Department Stores d/bla Famous-Barr Company v. N.L.R.B.,
326 U.S. 376, 380; N.L.R.B. v. Merner Lumber and Hardware Co., 345
F.2d 770 (C.A. 9).
89 "The term 'supervisor' means any individual having authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees, or responsibily
direct them, or to adjust their grievances, or effectively to recommend
such action, if in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature, but requires the use
of independent judgment."
9° Jas. Matthews & Co. v. N.L.R.B., 354 F.2d 432,435 (C.A. 8).
91 See Respondent's answer, G.C. Exh. 1(i), and Section 102.20 of the
Board's Rules and Regulations , Series 8, as amended.
92 See Beaumont Forging Company, 1 10 N LRB 220.
WELCOME-AMERICAN FERTILIZER CO.
formed the same duties as the other employees, and only
transmitted orders to them. He was paid more than the
other employees but this was based on his having the
greatest seniority and experience, as well as additional
ministerial duties. The skill required of him was the same
level as his fellow employees. His directions as to allocat-
ing jobs equally among the men, what work to perform
and when employees may go home, establish Cordell was
no more than a leadman following the instructions of his
supervisor, Welcome. As such, his duties included giving
new employees training 'and directions of aroutine nature
but nothing in the record indicates that he had any discre-
tion, or real disciplinary authority over the employees, or
authority effectively to recommend hiring, transfers,
layoffs, reward, settle grievances, promotions, or
discharges, or that he could exercise independent
judgment or responsibly direct employees in a manner or
to a degree sufficient to find him a supervisor within the
meaning of the Act. There is no evidence at all that Cor-
dell was regarded as a supervisor within the meaning of
Section 2(11) of the Act. Even assuming that employees
considered Cordell their boss, nevertheless, the question
whether he is an "employee" or a "supervisor" turns on
his duties, not on employee opinion.93
The evidence shows Cordell performed physical labor
along with the other service department employees. It
does not appear he possessed and exercised supervisory
status of a magnitude as to constitute him a statutory su-
pervisor. He had no initial responsibility to determine
anything of importance. All he did, apparently, was to
give directions to the other employees and possibly
change their assignments. It seems that Cordell's duties,
even if considered in the light most favorable to the Com-
pany, were no more than routine in nature and that any
followed recommendation of his were honored out of
respect for his judgment rather than because of delegated
authority.94 It appears each of the employees knew his
respective job and would normally perform it without
direction. Like the other employees, Cordell received
overtime pay, but his additional duties were due to him
being the oldest employee with the most experience. He
did not exercise any authority requiring independent
judgmmnt but rather he was a conduit for the relaying of
predetermined policy decisions. At most, he exercised
some authority, but not such authority as required inde-
pendent judgment. "It is a question of fact in every case
as to whether the individual is merely a superior workman
or leadman who exercises the control of a skilled worker
over less capable employees or is a supervisor who shares
the power of management."95 Cordell was not vested
with the powers of management. Nor does performance
of isolated, infrequent duties of a supervisory nature
transform a leadman, foreman, or straw boss into a super-
visor.96 It is found, accordingly, that Cordell was not a su-
pervisor within the meaning of Section 2(11) of the Act.
Moreover, and highly pertinent, the General Counsel
proved by a preponderance of the probative and credible
evidence that Respondent relieved Cordell of both his
93 Cf. DeKalb Telephone Cooperative, 156 NLRB 1381, 1383-84.
99 N L R B. v McCormick Concrete Co., 371 F 2d 149 (C A. 4),
Northern Virginia Steel Corp v. N.L.R.B , 300 F 2d 168, 171 (C.A 4)
as N.L R B v Southern Bleachery & Print Works inc., 257 F 2d 235,
239 (C A. 4). Accord N.L R.B. v Griggs Equipment Co., 307 F.2d 275,
279 (C A 5)
ss N.L.R B v W E. Stewart, dlb/a Stewart Oil Company, 207 F 2d 8,
10 (C.A. 5)
875
dispatcher and shop foreman duties on August 1, prior to
the time that the Union's organizational campaign com-
menced at Respondent's plant, so that he was a rank-and-
file employee as of the period of time relevant in deter-
mining the issues in this proceeding. The record is clear
that after August 1, Cordell had no indicia of supervisory
status.97
Finally, Respondent's contention that the unit of ser-
vice crew employees is inappropriate, is without merit.
All of these employees perform the same tasks; they
deliver and apply fertilizers, insecticides, and weed kil-
lers, in addition to repairing equipment. The only other
employees Respondent has are salesmen and clericals,
whose duties are alien to those of the service crew. The
wishes of employees and the similarity of working duties
and conditions are factors in determining the appropriate-
ness of the unit.98
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed them in Sec-
tion 7 of the Act, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
2. All employees employed by the Respondent at its
Dixon, California, facility, excluding office clerical em-
ployees, salesmen, guards, and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act.
3. At all times since August 4, 1966, the Union has
been the exclusive representative of all the employees in
the aforesaid unit for the purposes of collective bargain-
ing with respect to rates of pay, wages, hours of employ-
ment, and the terms and conditions thereof, to discourage
membership in the Union and thereby engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
4. By refusing on and after August 4, 1966, to bargain
collectively with the Union, Respondent has engaged in
and is engaging in an unfair labor practice within the
meaning of Section 8(a)(5) and (1) of the Act.
5. By laying off, discharging, and/or terminating the
employment of Billy L. Cordell, Thomas Reneau, Earl
Elliot, and Virgil Cordell, as set forth above, Respondent
discriminated against them in regard to their tenure of
employment, and the terms and conditions thereof, to
discourage membership in the Union and thereby engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
6. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices as set forth above, it will be recommended that
it cease and desist therefrom and take affirmative action,
97 The following employees so testified. Elliott, Morgan, and C. J Brad-
ford who is presently employed by Respondent
98 Pittsburgh Plate Glass Co. v. N L.R.B., 313 U S. 485, 491, where
the Court held the Board has "broad discretion to determine appropriate
units" and the Board's "informed discretion . is rarely to be distrubed."
See also Marshall Field & Co v. N.L R B., 135 F 2d 391, 394 (C A 7),
N L R B. v Hurley Co, 310 F 2d 158,161 (C.A. 8)
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
set forth below, found necessary and designed to effectu-
ate the policies of the Act.
Having found that Respondent violated Section 8(a)(1)
when it interfered with, coerced, restrained, and frus-
trated its employees in the exercise of rights guaranteed
by Section 7 of the Act, namely, that employees shall
have the right to organize and bargain collectively, which
the basic purpose of the Act was designed to achieve, it
shall be recommended that Respondent be required to
cease and desist from in any manner interfering with,
restraining , or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act.99
Having found that Respondent discriminatorily ter-
minated and discharged the above-named employees on
August 5, 1966, it will be recommended that it offer to
each of them immediate , full, and unconditional reinstate-
ment to his former or substantially equivalent position,
without prejudice to his seniority or other rights,
privileges, or working conditions, and make each of them
whole for any loss of earnings suffered by reason of the
discrimination against him, by paying to each a sum of
money equal to the amount he would have earned from
the date of the discrimination against him until such dis-
crimination has been fully eradicated, less his net
earnings during the period of such discrimination.
Backpay with interest at the rate of 6 percent per annum,
shall be computed in the manner set forth in F. W. Wool-
worth Company , 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
The remedial purposes of the Act are quite clear. It
is aimed , as the Act says (Section 1 ), at encouraging
the practice and procedures of collective bargaining
and at protecting the exercise by workers of full
freedom of association , of self-organization and of
negotiating the terms and conditions of their employ-
ment or other mutual aid or protection through their
freely chosen representative.'
Inasmuch as the discharge of employees for reasons of
union affiliation or concerted activity has been regarded
by the Board as one of the most effective methods of de-
feating the exercise by employees of their rights to self-
organization , the Trial Examiner is of the belief that there
is danger that the commission of unfair labor practices
generally is to be anticipated from Respondent 's unlawful
conduct in the past. It will be recommended , therefore,
that Respondent be required to cease and desist from in
any manner interfering with, restraining , or coercing its
employees in the exercise of rights guaranteed in Section
7 of the Act.2
[Recommended Order omitted from publication.]
Republic Steel Corporation v. N.L.R.B., 311 U.S. 7, 10.
z N.L.R.B . v. Entwistle Mfg. Co., 120 F.2d 532,536 (C.A. 4).
99 N.L.R. B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4); California
Lingerie Inc., 129 NLRB 912.