Reliance Clay Products Co.

RELIANCE CLAY PRODUCTS COMPANY 135 Region, shall, after being duly signed by Respondents' repre- sentative, be posted for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Tenth Region, in writing, within ten (10) days from the date of this Order, what steps Respondents have taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that Respondents have violated Section 8 (a) (1) of the Act by conduct other than that found to be violative herein be, and it hereby is, dismissed. RELIANCE CLAY PRODUCTS COMPANY and UNITED STONE & ALLIED PRODUCTS WORKERS OF AMERICA, CIO. Case No. 16-CA-442. May 29, 1953 DECISION AND ORDER On March 11, 1953, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Peterson]. The Board has reviewed the rulings made by the Trial Ex- aminer at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Pespondent' s excep- tions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifica- tions.2 1 The Employer's request for oral argument is hereby denied, as the record and the Employer's brief adequately present the issues and positions of the parties. 2As the Trial Examiner reported, Foreman Ernest Gilbert questioned employee Veatch about certain union meetings. Because no exceptions were filed to the Trial Examiner's conclusion that Gilbert did not thereby commit an unfair labor practice, we hereby adopt his conclusion. We do not, however, adopt his rationale with respect to this incident. In adopting, in the absence of exceptions, the Trial Examiner's finding that the General Counsel did not prove discriminatory motivation in McClenny's discharge, we are not to be taken as endorsing as relevant his observations that Foreman Clyde Gilbert's remarks to the Sittons were made to persons not employees and not communicated to employees. 105 NLRB No. 26. 291555 0 54 - 10 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As part of its defense to the complaint allegation that the discharge of Travis Morris constitutes a violation of Section 8 (a) (3) of the Act, the Respondent contends that he was a supervisor as defined in the Act. The record shows that Morris was in charge of the construction crew , which varied between 6 and 15 employees , depending on the size of the job. In turn, he was responsible directly to the plant superintendent, Lester H. Stacks , who was also in charge of all other supervisors. Morris, the oldest and most experienced employee on the con- struction crew, testified that he had been told to direct the work of the other employees in his crew and that he regularly did so. He was paid 971- cents an hour as was Roy Gilbert, an admitted supervisor. In support of his testimony that Morris had authority effectively to recommend hiring of other em- ployees in the construction crew and changes intheir employee status, Stacks described three occasions on which Morris exercised such power. The first, which Morris admitted, was the transfer of employee Veatch out of the construction crew at Morris' request. The other two instances, which Morris did not deny , were the hiring of Brewster , whom Morris brought to the plant, and the original placement of Veatch in the construction crew at Morris' behest. Against the foregoing evidence indicating Morris' super- visory status, is his insistence that he had no authority to hire or discharge employees or to make any effective recommenda- tions. It is not clear from the testimony of those who attended the "foremen's meeting" in June 1952, whether Morris was present or asked to attend . In any event , his unexplained ab- sence from this meeting could not offset the three cogent instances mentioned by Stacks when Morris exercised super- visory authority. Moreover, we do not believe that Morris' testimony , phrased in conclusory language , is sufficient to rebut the persuasiveness of the factual testimony which points at least to his authority responsibly to direct the work of the construction crew. Particularly significant on this point is the testimony of Alvey, a member of the construction crew, to the effect that ". . . if he [Morris], told me to do something wrong I knew he was the man who would be responsible." On the basis of the foregoing facts , and on the entire record, we find, contrary to the Trial Examiner, that Morris was a supervisor as defined by the Act , and we shall therefore dis- miss the complaint as to him, THE REMEDY We agree with the Trial Examiner ' s conclusion that the Re- spondent discharged James Sitton on or about September 21, 1951, because of his union activities , and thereby violated Section 8 (a) (3) of the Act . The record shows that on September 22, 1951, Sitton addressed a letter to the Company requesting reinstatement . Plant Superintendent Stacks, by letter dated February 14, 1952, acknowledged Sitton ' s application and ad- RELIANCE CLAY PRODUCTS COMPANY 137 vised him that the Company was hiring afew men as of Febru- ary 18 , and invited him to return to work in the machine room or on the dump truck . Stacks added that he would hold the job open until February 18, 1952 . Sitton ' s response to this offer was a written inquiry as to whether the Respondent was also offering back pay and the Christmas bonus whichSitton had not received because he had not been at work since September 21, 1951 . The Company did not respond and Sitton did not report to work. We do not agree with the Trial Examiner ' s conclusion that the Respondent ' s letter of February 14 was not a valid offer of reinstatement . It is clear from the record that as a truck- driver before his discharge , Sittonhad regularlybeen operating a dump truck. His refusal to return to work when invited was, as his reply unequivocally shows, based on the mistaken belief that he could lawfully refuse reinstatement unless the Re- spondent simultaneously abandoned its defense to the pending unfair labor charges by making him whole as to any interim wages he might have lost by reason of the discrimination against him . The Board has consistently held that a discrimina- torily discharged employee may not refuse an offer of re- employment on this ground . a Accordingly , as the Respondent made a bona fide offer of reinstatement to James Sitton by its letter of February 14, 1952, and as Sitton failed to accept the offer we shall limit our remedial order as to him to back pay only for the period from the date of his discharge to February 18, 1952. ORDER Upon the entire record in this case , and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent , Reliance Clay Products Company, Lindale, Texas, its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in United Stone & Allied Prod- ucts Workers of America , CIO, or in any other labor organi- zation of its employees , by discriminating in regard to their hire or tenure of employment , or any term or condition of employment because of their membership in, or activity on behalf of, any such labor organization. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self- organization , to form labor organizations , to join or assist United Stone & Allied Products Workers of America , CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities except to the extent that such right may be 3G. W. Emerson Lumber Company , 101 NLRB 1046; Differential Steel Car Co., 75 NLRB 714. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Roy Alvey immediate and full reinstatement to his former or substantially equivalent position , without preju- dice to his seniority or other rights and privileges. (b) Make whole Roy Alvey in the manner set forth in the section entitled "The Remedy" for any loss of pay he may have suffered by reason of the Respondent ' s discrimination against him. (c) Make whole James Sitton for any loss of pay he may have suffered by reason of the discrimination against him, in the manner set forth in the section of the Intermediate Report entitled "The Remedy," as modified herein. (d) Upon request make available to the Board or its agents, for examination and copying, all payroll records, social- security payment records , timecards , personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the right of reinstatement under the terms of this recommended order. (e) Post at its plant in Lindale , Texas, copies of the notice attached hereto and marked "Appendix A."4 Copies of said notice, to be furnished by the Regional Director for the Six- teenth Region , shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material. (f) Notify the Regional Director for the Sixteenth Region in writing within ten (10 ) days from the date of this Order what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of the com- plaint that the Respondent violated Section 8 ( a) (1) and (3) of the Act by discharging Travis Morris and C. E. McClenny be, and they hereby are, dismissed. ,'In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Re- lations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: RELIANCE CLAY PRODUCTS COMPANY 139 WE WILL NOT discourage membership in United Stone & Allied Products Workers of America, CIO, or in any other labor organization of our employees, by discrim- inating in regard to their hire or tenure of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form, join, or assist United Stone & Allied Products Workers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to en- gage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to re- frain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized in Section 8 (a) (3) of the National Labor Relations Act. WE WILL offer to Roy Alvey immediate and full re- instatement to his former or substantially equivalent position without prejudice to seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination against him. WE WILL make whole James Sitton for any loss of pay he may have suffered by reason of the discrimination against him. All our employees are free to become, or refrain from be- coming, members of the above-named union or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. We will not discriminate against any employee because of membership in or activity on behalf of any such labor organi- zation. RELIANCE CLAY PRODUCTS COMPANY, Employer. Dated ................ By.................................................... (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge filed with the Regional Director for the Sixteenth Region (Fort Worth, Texas) by United Stone & Allied Products Workers of America, CIO, herein called the Union, the 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel of the National Labor Relations Board.; by the Regional Director , issued his complaint, dated August 8, 1952 , against Reliance Clay Products Company, herein called the Company or the Respondent , alleging in substance that the Respondent had unlawfully dis- charged three of Its employees , interrogated its employees concerning their union affiliations, engaged in surveillance of union meetings, threatened and warned its employees to refrain from assisting or becoming or remaining members of the Union , and discharged one of its foremen because he refused to discourage union activity among Respondent 's employees. By reason of these acts the Respondent engaged in conduct in violation of Section 8 (a) (3) and (1) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charge and complaint and notice of hearing were duly served upon the parties. The Respondent filed an answer to the complaint denying the commission of the unfair labor practices Plleged. Pursuant to notice, a hearing was held in Tyler, Texas, on October 14 and 15, 1952, before the undersigned Trial Examiner. All parties were represented at the hearing and were af- forded full opportunity to be heard , to examine and cross-examine witnesses , and to intro- duce evidence bearing on the issues. At the conclusion of the hearing the parties waived oral argument and were advised of their right to file briefs in the case . Thereafter , counsel for the Respondent submitted a brief which has been fully considered. Upon the entire record in the case, and from his observation of the witnesses , the under- signed makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Company is a Texas corporation and maintains its office and principal place of busi- ness at Dallas , Texas, with plants at Lindale and Mineral Wells, Texas , and is engaged in the manufacture, sale, and distribution of brick and clay products . The present case involves only the Lindale plant. The parties stipulated that during the calendar year 1951, the gross sales of the Company amounted to about $1,226,000, of which approximately $65,000 repre- sented sales outside the State of Texas . During the same period the Company's purchases amounted to about $111 ,000, of which approximately $8,000 represented purchases from places outside the State of Texas . The Company admits that it is engaged in commerce as defined in the Act, and the undersigned so finds. H. THE LABOR ORGANIZATION INVOLVED United Stone & Allied Products Workers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Organizational activities among the employees Roy Alvey , who was employed in the maintenance crew, stated that in early June 1951, he assisted in the circulation of a petition among the employees, the purport thereof being to determine whether the workers desired union organization at the plant. Alvey discussed the petition with Travis H. Morris, his le-adman, and other employees, and said that about 60 of the 80-odd employees signed the petition. Alvey stated that the petition "disappeared" but he wrote to the Union in Dallas requesting the aid of a representative and accordingly it sent Bill Ford to Lindale for this purpose. In June or July the first meeting was held at the ball park, which was located about I mile outside of town, and some 45 employees attended, 43 of whom signed union membership application or authorization cards . Thereafter , the Union held 6 regular meetings , every other Tuesday evening , at the ball park and subsequently held the same at the local American Legion hall. At the third meeting Alvey was elected chairman of the group and the Union, by letter dated July 26, notified the Company of this action. Morris stated that he and Alvey discussed working conditions at the plant and decided a Union would be beneficial to the workers, so they circulated a petition to that effect among the employees . Morris said the petition was signed by 40 to 60 employees but he did not know what eventually happened to the same. In any event Alvey wrote to the Union requesting an i The General Counsel and his representative at thehearing are called the General Counsel, and the National Labor Relations Board is referred to as the Board. RELIANCE CLAY PRODUCTS COMPANY 141 organizer and Ford was then sent to Lindale. Ford presided at the first meeting, which was attended by between 40 and 50 employees , practically all of whom signed union cards. Morris attended nearly all of the meetings which were held by the Union. B. Acts of interference, restraint, and coercion Alvey testified that the ball park parallels the old highway between Tyler and Lindale and the place where the meetings were held was approximately 20 feet from the road. While the third meeting was in progress he observed Ernest Gilbert , foreman of the shipping depart- ment, drive slowly past the ball park and look towards the employees assembled there. At the next meeting he saw Clyde Gilbert, pit foreman, also dirve slowly past the park and on the occasion of the last outdoor meeting, he observed Roy Gilbert, foreman over the burners and setting, do the same thing. Similarly, Morris stated he saw Clyde and Ernest Gilbert, on separate occasions, drive past the meetings. James G. Sitton and G. D. Sitton, Jr., testified that at various meetings they saw each of the Gilberts drive past the ball park. James G. Sitton stated that following the first union meeting Clyde Gilbert, his uncle, dis- cussed the Union with his crew, including G. D. Sitton, Ferris Ramsey, and 1 or 2 other em- ployees while working at the company pit. Gilbert, according to Sitton, declared that the Company would not permit the Union to come into the plant, that the Company would fight organization, and if the Union became too active it would lay off the workers and replace them with nonunion men obtained from the cotton and pea patches. He further stated that if the employees insisted on unionization, the Company would discharge them; that they would be blacklisted for work and would lose their homes and automobiles. Sitton related that Gilbert talked to him in regard to the Union almost daily and one time in July, while riding in the Sittons' truck, he asked Sitton what he knew about the Union. Sitton replied he knew nothing other than what he had heard and Gilbert warned him he would lose his job if he did not get out of the Union. On another occasion Sitton and G. D. Sitton were building a fence when Gilbert informed them he was sticking with the Company and intended to fight the Union. He also told the Sittons if they "get on the right side of the fence I will take care of you. If you don't, why you will lose your jobs." G. D. Sitton, Jr., said that about 1 month after organization commenced Clyde Gilbert told hime he had talked to the rest of his crew concerning the Union and informed Sitton that the Union would get nowhere at the plant, that the Company would not stand for unionization even though it had to shut down and replace the employees with workers from the pea and cotton patches. Sitton was working on the fence with James Sitton, which he placed as sometime in September, when Clyde Gilbert brought up the subject of the Union with them. At that time Gilbert stated the Company "wasn't going to stand for a union to move in," that the union adherents were in a fight they could not win but if they would go on his side and quit the Union he "would go the limit" for them, otherwise he would fight them every day. G. E. McClenny stated he was employed by the Company since 1946 at various jobs and in 1948 or 1949 was promoted to foreman of the production department, which employed about 18 men. McClenny said that during his term as foreman the Company held no meetings of its supervisory staff, except on one occasion in June or July, at the time of 'the commencement of union activities. Present at this meeting were: Company President George Harmon, Secretary-Treasurer J. B. Edwards, Superintendent Lester H. Stacks, the three Gilberts, the company bookkeeper, McClenny, and Attorney Fritz Lyne. McClenny stated that Edwards talked about union activities at the plant and "wanted us to keep it down all we could, not to get rough about it, try to discourage it, you know, keep the union movement down." Sometime later Stacks asked McClenny how he felt about the Union and he replied he would go along with the men, if they desired a union it was their right and privilege and it made no difference to him which way they went. McClenny, at the invitation of some of the employees, attended 2 or 3 union meetings but he did not report or discuss the same with Stacks. McClenny continued to work for the Company until October 16, 1951, when Stacks advised him Edwards had re- quested his resignation. Stacks gave no reason or explanation for this action . McClenny thereupon resigned and was replaced by Delbert Mims , an employee in the production depart- ment. W. J. Veatch, presently employed as maintenance man, stated that on the day of the first scheduled union meeting, Ernest Gilbert remarked to him, "Well, they are going to have a union meeting tonight." Veatch said he did not know about it, although he later recalled having been told of the same. Veatch attended the meeting and the next day Gilbert Inquired, "How was the union meeting? " and he said it was all right, that he was for the Union. Veatch attended 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practically all of the meetings and at one time Gilbert asked Veatch if he had made any re- marks during these meetings concerning him. He admitted he had made a remark to the effect that Gilbert would not cause any trouble because he was on vacation. On another occasion, during July, Veatch met Stacks in town one evening and the latter asked "what was the matter with the boys out at the yard." Veatch told him the main thing wrong was the fact that he was not making a living and for that reason he was in favor of the Union . Sometime later Veatch and Stacks had substantially the same conversation at the plant . Again, at some undisclosed time, Veatch, believing that he was being pushed around, went to Stacks ' home and in answer to his inquiry if he was to be fired because of union activities , Stacks said , "Hell no.,, Loyd Bryant, a former employee, who worked under Ernest Gilbert. said he attended all the union meetings and immediately following the second or third meeting Gilbert approached him at the plant and stated, "If it was me he wouldn't have no part in the union or nothing," because the Union was always wanting something for nothing. He also declared "The Union wasn't any good," that the Company would shut down the plant before it would go Union and if Bryant remained in it he would lose his automobile , his home, and everything else. Clyde Gilbert, pit foreman, during the time in question denied that he ever called his crew together and informed them that the Company would fight the Union, discharge and blacklist its members, or that the Company would replace the union adherents with cotton and pea pickers. Gilbert stated that one afternoon while the six members of his crew were at the truck shed, Ramsey asked if he was going to attend the union meeting that evening and Gilbert, who was unaware of the meeting, said he would not do so. On another occasion, Gilbert said the men were gathered together having a "bull session" when Ramsey inquired if he would be required to join the Union in the event the plant was unionized. Gilbert replied that it was his understanding that the Company could not discharge an employee because of his membership in a union and under the laws of the State of Texas, an employee had the privilege of re- fusing to become a member of a union and that it would be unlawful to discharge him for that reason. He further elaborated that the employees did not have to join the Union unless they so wished and, while he was not opposed to unions , the men were all "kinfolks" and organiza- tion would simply result in broken friendships. On cross -examination Gilbert testified Ramsey first mentioned the Union to him when he advised Gilbert that the boys, referring to James Sitton, were seeking to sign him up and inquired if he had to join the Union. Gilbert informed him he did not have to sign a union card. He denied that he ever discussed the Union with James Sitton while riding in his truck but stated he did talk to him about organization when Gilbert and Sitton were using a pickup driven by himself. At that time Gilbert asked Sitton how the men were getting along with the Union and he said pretty good. Gilbert inquired as to what the men wanted and Sitton said better working conditions and more pay. Gilbert pointed out that working conditions were good, that the Company had given advances in pay, and for 2 or 3 years had granted Christmas bonuses. He stated that he did not know Sitton was a union member and denied he made any statement to the effect that the Company was opposed to the Union, or that Sitton would be discharged unless he renounced his membership therein. Gilbert could not recall having any conversation with James and G. D. Sitton while they were working on a fence and categorically denied making the assertions attributed to him by the Sittons. Gilbert testified he first heard of organizational activities through Red Bodiford, who asked what he thought of the movement. Gilbert told him he did not believe the employees needed a union at the plant. Sometime later, Morris made the same inquiry and he informed him he did not think the Union would work out. Gilbert admitted he drove past the ball park on one occasion where he saw a group of men assembled about'100 feet from the road, but he could not definitely identify them as company employees. Gilbert was not aware of any union meeting to be held that evening and at the time he was returning from Lindale to his home, after visiting a sick relative, and the old highway was the shortest distance between those points . Gilbert left the Company in June 1952 to accept employment elsewhere. Ernest Gilbert, foreman of the shipping department, said he drove past the ball park one evening where he saw a number of cars parked nearby and a group of men assembled between the grandstand and the road. Gilbert was on his way to visit a sick uncle, who lived about 200 yards below the park, and did not know a meeting had been scheduled for that evening. He drove past at about 25 miles per hour and could not identify anyone in the group. Gilbert denied that he ever had any conversation with Bryant in regard to the Union. Roy Gilbert, foreman over the burners and settings, said he and his wife drove past the ball park one evening and saw a group of men assembled on the field . Gilbert was on his way to visit a relative and did not know the Union was holding a meeting that evening. Edwards , who was in charge of all the Company's operations , testified that Superintendent Stacks advised him that the union campaign was in progress, that meetings were being held, RELIANCE CLAY PRODUCTS COMPANY 143 and organizers had been around the plant using loudspeakers urging the workers to attend the meetings. In addition to this direct information, Edwards knew the employees were attempting to organize "from the general tenure and work at the plant" and "because of the disruptions and the attitude of some of the employees" in respect to the manufacturing oper- ations. Accordingly, during June, Edwards called a meeting of all the foremen for the purpose of issuing instructions covering their actions and conduct toward the employees during the organizational campaign Edwards said he told the foremen "to be very careful of what they said to be sure that everything that they did was legal, that the men had the right to decide for themselves, and that's what would be done " Edwards then had Attorney Lyne give in- structions to the groin' He could not remember what Lyne said, other than he gave "a thorough briefing . on what was fair and what was unfair labor practices," outlined the representa- tion procedure of the Board, advised the foremen they were not to inquire concerning the membership or nonmembership of the employees in the Union and that they were not "to hamper them" in their organization Stacks said it was not customary to hold meetings with the foremen and the only one held, at least in 1951, was the above-mentioned meeting. Except for Edwards and Lyne, he could not recall who was present and he was not questioned concerning any instructions or state- ments issued or made at the meeting by either Edwards or Lyne Edwards' Speech to the Employees It is undisputed that on September 20, Edwards addressed all of the employees, numbering approximately 80 men, who were assembled for that purpose in the plant shop during the luncheon hour. Alvey stated that Edwards told the employees he had heard rumors of organization, which he opposed 100 percent, and that some of the men were turning against the Company. He also complained that they were producing some bad brick and unless they produced a better prod- uct and quit their efforts to organize he would shut down the plant. Morris said Edwards stated the quality of the products had been below par and that he ex- pected the employees to improve the same as he was facing competition and was involved in a lawsuit as a result of poor brick He further stated that some of the men were working against the Company and that he was discontinuing construction work. He also announced that there would probably be some layoffs and if things became bad enough the plant would probably shut down James Sitton testified that Edwards accused the employees of turning against the Company and producing some poor brick In order to cut expenses he said a few workers would be laid off but if business did not increase, and if the men continued to turn against the Company, he might have to shut down operations. McClenny could not recall much of the speech, other than Edwards wanted the men to cooperate and produce more and better brick. He could not remember any mention being made of the Union Veatch recalled Edwards saying that stock was piling up and due to high costs he was stopping construction work. He could not remember whether or not Edwards stated he knew of organizational activity at the plant or that he was 100 percent opposed to the union move- ment. Edwards testified that during the first 6 months of 1951, the sales of the Company averaged about $1,000,000 per month but beginning in July, and for the remainder of the year, they dropped to approximately $80,000 per month ? Edwards attributed this slump to economic factors, such as the restrictions placed on building construction, the defense effort, and the establishment of Government controls Since the plant had been operating full capacity for several years it became necessary to curtail production in line with the reduced sales. How- ever, while sales severely slumped in July, it was not until the latter part of September, when due to high inventories production was reduced. At the hearing the Company produced a sched- ule showing its monthly production for the year 1951, which was received in evidence and is discussed below In view of the foregoing , plus the fact that the Company had completed its construction program, Edwards decided to assemble all the employees and advise them of the conditions existing at the plant and the steps he proposed to take in respect thereto. Edwards, in substance, told the group that sales had fallen off one-third as of July, that inventories had increased and, therefore, it was imperative that the Company curtail its operations In addition he pointed out that the plant had been producing an inferior product 2 Edwards was obviously in error as to the dollar value of the sales, for the parties stipulated that the gross sales for the year 1951 amounted to approximately $1,226,000. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that certain unnamed customers had refused to accept consignments for that reason. Edwards said that future production depended upon sales, if they continued to fall off further reductions would be necessary and if they picked up production likewise would be increased. He informed the men that construction work had been completed and that the Company was discontinuing further construction until business conditions improved . Edwards stated that he knew a group of the employees was attempting to form a union, which was a right and privilege guaranteed by the Government, and the question of organization was entirely up to them. Con- tinuing, he told the employees, " I did not approve of the union for this plant, I didn't favor it because I thought I could- -that I had, that I could and would do more for the employees volun- tarily than a union, any union, would do for them by force." Edwards then went on to explain that in 1943, when he took over the plant, the number of employees had increased from 25 to 85, that working conditions had been improved, wages increased , new equipment had been pur- chased, and as soon as the Company showed a profit it initiated and maintained a Christmas bonus based on the earnings of the particular employee. C. The discriminatory discharges Alvey testified he was employed by the Company for about 1 year in the maintenance or construction gang and laid brick, poured concrete, built and repaired kilns , and performed whatever jobs that came up. The crew was under the supervision of Stacks who issued in- structions or orders to the men through Morris , the leadman At the time of his employment Alvey was paid 75 cents per hour and subsequently received 2 increases of 5 cents per hour. When first employed Alvey was working on the construction of a new brick kiln which was completed in about 6 or 7 months. The crew then began construction of a second kiln which was finished between September 15 and 20. Alvey estimated he spent two-thirds of the time on the above construction work and pouring concrete and the remainder thereof in doing re- pair jobs . While the number of men in the gang varied , Alvey said there were 7 in the crew at the time of his discharge. Following Edwards' speech, Alvey, who had previously asked Stacks for a 10-dollar advance and to be off that afternoon , went to see Stacks for that pur- pose. Stacks told Alvey that Edwards wanted to talk to him, so they went into the machine room. Alvey asked Stacks if they were through with him he would be going , whereupon Stacks said he could give Alvey the advance, or his paycheck, that the Company was discharging him, Neither Edwards nor Stacks gave any reason for his discharge . At the same time two other employees in the gang . Brewster and Morris , both union members , were discharged. On September 22, Alvey addressed a letter to the Company wherein he made a continuing application for reemployment. He stated that he never received any reply from the Company. On September 25, Alvey asked Stacks if he had any vacancies as he would like to return to work and Stacks stated there were no openings but if one did occur, he would let him know. At that time Stacks said Alvey had been a satisfactory employee. Morris said he was first employed by the Company in 1939 and, at various intervals , worked for a period of about 9 years. Apparently during the early periods of employment he worked as a laborer . In 1945, he returned to the Company as a burner and also worked in the loading department. In the early part of 1946, he was transferred to the construction gang and was subsequently made leadman working under Stacks from whom he received instructions and orders which he passed on to the crew. Morris said he had no authority to hire or discharge employees, or to effectively recommend such action, and throughout his employment he was paid on an hourly basis and at the time of his discharge he was receiving 97} cents per hour. Morris did carpenter , concrete, and some electrical work and also laid brick. For some time prior to his discharge the gang had been constructing a new kiln and pouring concrete which jobs had been completed. After Edwards' speech , Morris stated that 8 of the 7 or 8 men in the construction crews decided they "were let out" so they walked toward the company office. As they approached the office Ernest Gilbert " cut out" two of the men, seemingly one of the Freemans and Henry D., telling them, "You guys are nonunion" and instructed a third man, Sneed, to start work "on the other side." The remaining members of the crew, Morris, Alvey, and Brewster, all members of the Union, went to the office where Stacks laid them off. On September 24, Morris submitted a written application for reemployment but he heard nothing from the Company in respect thereto. sMorris said the crew was composed of Alvey, Morris , Brewster , Steed, Dawson, two Freemans, and an employee known as Henry D. He stated it was possible one of the Freemans was not in the crew at that particular time. RELIANCE CLAY PRODUCTS COMPANY 145 James Sitton was first employed by Clyde Gilbert in June 1946, as oiler on the dragline, or mechanical shovel. About 1 month later he was assigned to the machine room and was sub- sequently transferred to the loading department, under Ernest Gilbert, where he loaded brick and acted as extra lift operator Sitton remained in the latter department until about September 1947, when he quit because of the passage of the minimum age law which, he stated, prohibited persons under 18 years from working more than 18 hours per week In February 1948, Sitton, upon attaining the minimum age, returned to work loading brick and was later assigned to driving a truck, which job he held until the time of discharge, a period of about 3 years. As a driver , Sitton was a member of the pit crew, under Clyde Gilbert, which was comprised of 4 truckdrivers, G. D. Sitton, Arnold Jenkins, and Raymond Skinner, and 2 dragline operators, Ramsey and Earl Stokes. The truckdrivers were engaged primarily in hauling clay from the pit to the plant but at times they performed other duties such as building fences, pumping water from the pit, and shoveling sand . During the time in question Sitton was the oldest driver in point of service and was given preference in driving when there was insufficient hauling work for all the drivers, who were then assigned to other jobs. Sitton stated that on the occasion Clyde Gilbert spoke to the pit crew, following the first union meeting, he warned Sitton if he did not get out of the Union he would be placed at the bottom of the preferential truck list. Sitton continued to be active in the Union and thereafter when hauling was slack and it was necessary to place some of the drivers on odd jobs it was Sitton and G. C. Sitton who were assigned to these tasks. Sitton went to work after Edwards made his speech and when he had finished his shift Gilbert informed him that he had already told him "if I didn't get out of the Union I was going to lose my job and it was happening, he was going to have to let me go." He was thereupon discharged and paid off. On September 22, Sitton addressed a letter to the Company requesting reinstatement . Stacks, by letter dated February 14, 1952, acknowledged Sitton's application and advised him the Company was hiring a few men as of February 18 He stated the job would be off bearing in the machine room or on the dump truck, that he did not know how long it would last, but he would keep it open until early morning of the above date. On February 17, Sitton wrote to Stacks and asked if back pay and the Christmas bonus of 1951 were included in the offer made, to him. Sitton heard nothing further from the Company and did not report for work. Jamie Sitton, father of James Sitton and brother-in-law of Clyde Gilbert. testified that about the middle of August, Gilbert and his wife visited at their home and in the course thereof Gilbert remarked he supposed James had told him about the Union. Sitton replied he had not heard much about it. Gilbert then informed Sitton the Company "was putting pressure" on him to lay off James because of his activities on behalf of the Union. Sitton inquired if he thought that was "right, ' and Gilbert answered he had worked too long and too hard to obtain his present position and he was not going to lose his job by refusing to carry out instructions given to him. Gilbert further related that he had but two union men in his crew, James and G. D. Sitton, and that the Company would not work union men but would lay off "every frazzling one of them," even if it had to replace them with nonunion field laborers Sitton pointed out that the Company had not discharged McClenny, whom he understood had told Stacks his men were old enough to know what they wanted and would act or vote accordingly. Gilbert admitted McClenny was still employed but added, "he won't be long." Mittie Sitton, wife of Jamie, was present during the conversation and testified to sub- stantially the same effect as her husband She further stated that Gilbert admitted he had "been riding James pretty heavy about this union," and that "the Company would get rid of every man before it would go Union." Edwards testified that prior to his speech he discussed conditions at the plant with Stacks and in view of the decline in sales and the poor quality of the products he instructed Stacks to lay off the construction crew and to reduce the number of operating personnel . In accord- ance with these instructions four employees in the construction crew and James Sitton were discharged , although Edwards admitted the construction workers were not responsible for the bad brick . Edwards said this was the first time he had to make a " general layoff" and the Company had no policy in respect thereto, other than to retain the most efficient em- ployees. Edwards stated that while the decline in sales took place in July the Company, in order to maintain its staff, did not cut production until September, when reduced deliveries resulted in high inventories . He further stated that for a period of 15 months, i.e., from July 1951 to September 1952, the Company ran on a low production basis until there was a slight increase in sales in September and October 1952. Edwards, who set the daily or weekly production quota , submitted the Company's production record for the following periods: 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1951 January 2198 4 July 1862 February 1787 August 2151 March 1650 September 1911 April 2129 October 1918 May 2332 November 1429 June 1645 December 1205 1952 January 1569 May 1529 February 1355 June 1237 March 1185 July 1375 April 1132 August 1480 Edwards said the reduction in personnel was a fluctuating one and in the interval June 28, 1951, to February 28, 1952, it dropped from a high of 87 to a low of 59. Edwards produced data taken from its payrolls covering the above period which disclose that for the weeks ending June 28, July 5, 12, 19, and August 23, the Company had 87 employees and on August 30 it had 84 men, the lowest number during this interval. For the weeks ending September 6, 13, 20, 27, and October 4, it had 81, 82, 80, and 73 employees, respectively. For the period October 11 to February 7, 1952, it gradually reduced its employees from 73 to 59, and for week ending February 28, it had 65 employees. Edwards also produced a summary of its records showing that between June and September its construction crew varied from 7 to 15 men, it averaged about 9 workers, and on September 20, it had 8 men in the gang Stacks stated that on September 20, he laid off Alvey, Morris, Brewster, and J. B. Freeman from the construction crew, but retained Steed because he was handy at running equipment and employee Henry D. because he was regularly working for Ernest Gilbert and worked only part time on construction Dawson, a handyman, worked with the construction crew part time and he likewise was retained Armstrong, who worked in the bull gang under Ernest Gilbert, was also laid off on the above date Stacks said that since the layoff the Company has not hired any employees to perform, construction work, although between February 18 and Sep- tember 17, 1952, it did hire 44 employees in various other job classifications in connection with its production, loading, and hauling operations H. T. Freeman testified that he had been employed for about 1 month in the construction crew when he was laid off along with Alvey, Morris, and Armstrong At the time he was told by Ernest Gilbert that brick was piling up and as he was the last man hired he was being selected for layoff Freeman was not a member of the Union and was recalled to work some- time in February With respect to the discharge of James Sitton, Edwards said that in 1950 the Company was hauling its clay with 5 dump trucks each having a 3-yard capacity which it gradually re- placed with 3 trucks having a 7-yard capacity. One of the old trucks was sent to the plant at Mineral Wells and the other 2 were sold Edwards instructed Stacks to lay off 1 of the drivers but did not specify any individual. Stacks said that on September 20 he instructed Clyde Gilbert to lay off one man in his crew and in response to Gilbert's inquiry, stated it made no difference to him which employee he selected. Gilbert then said he would lay off Sitton and Stacks commented, "Well, James is one of your oldest drivers." When Gilbert replied he had better men, Stacks said he ex- pected Gilbert to do the work so he could do as he pleased about making the layoff. Clyde Gilbert testified the Company had 2 pits, 1 at Lindale and 1 at Traup. In operation thereof the Company maintained a dragline at each location and sought to keep 2 trucks hauling from each pit At the time in question the pit crew consisted of 4 truckdrivers, James and G. D. Sitton, Jenkins, and Skinner, and 2 dragline operators, Stokes and Ramsey All of the crew members performed other jobs such as setting pumps, pumping water, building roads, and making limited repairs to the equipment. During the summer of 1951, the Company used 3 trucks, each having an 8-yard capacity, and 1 truck with a 4-yard capacity On September 20, shortly before quitting time, Stacks told Gilbert he was sending the small truck to Mineral Wells and he would have to lay off one man Gilbert asked Stacks if he had any choice and when he replied he did not, Gilbert said he would lay off Sitton. Stacks re- marked, "James is one of your oldest men," whereupon Gilbert stated he had better and more cooperative men, so he told him to use his own judgment. When Sitton came in that day 4A11 figures are in units of 1,000. Thus, in January the Company produced 2,198 brick RELIANCE CLAY PRODUCTS COMPANY 147 Gilbert told him that due to the cut in production and the fact that only three trucks would be used in hauling clay from the pits, he was being laid off. Sitton, according to Gilbert, said, "All right " Gilbert stated that Sitton wanted to drive exclusively and soon after the Union commenced organizing, probably a month before his layoff, the draghne operators "were complaining day in and day out" that Sitton was not cooperating with them Thus, Ramsey com- plained that Sitton had refused to carry a chuck to the dragline and Stokes reported that Sitton would not even hand him a wrench when they were repairing the dragline. Gilbert said he "jacked James up . . pretty heavy" upon receiving the latter complaint. Gilbert also stated that on one occasion Sitton's truck became stuck in the mud and as he was attempting to get out, he , Gilbert, told him not to tear it up but get a shovel and dig it out. Sitton said all he ever heard was "get a damn shovel and dig," but apparently he did get a shovel and dig out. In respect to the visit to the Sittons, Gilbert stated that they engaged in general conversa- tion until Jamie Sitton mentioned how the United Mine Workers had helped the miners and the subject of the plant union was then discussed. Gilbert asked what the employees wanted and Sitton said better working conditions , pointing to the lack of adequate drinking-water facilities Apparently , Gilbert reviewed the improvements made in working conditions and expressed the opinion he could see no reason for the men being dissatisfied. When Sitton declared that James believed in the Union, Gilbert stated he was no longer an efficient worker, that he resented taking orders, that he was not cooperating with other employees and unless he changed something would have to be done Gilbert also complained that James never addressed him by his name, or uncle, but to other employees referred to him as "old shorty" and accused him of trying to drive them in their work. Mrs. Sitton remarked that James was an outspoken person and the employees who reported on him were no friends of Gilbert. In the course of their discussion Gilbert said that in accordance with union procedure it would be necessary to have a steward at the plant to handle grievances and there was no one among the employees capable of holding that office. Sitton stated that McClenny could perform these duities but Gilbert replied that he was a foreman and not even eligible for membership in the Union. In short, Gilbert denied the substance of the conversation concerning the Union and James, as related by the Sittons, including specific denials of statements that: The Company would not work union labor, pressure was being put upon him to discharge James, he had worked too hard and too long "to stick out ... (his] neck" for James; and McClenny would not be with the Company for long. Mrs. Gilbert testified that the Union was discussed but her recollection of the same was poor, except that her husband asked what the men wanted and Sitton said better working con- ditions. Clyde stated conditions had improved under Edwards whereupon Sitton made some reference to drinking-water facilities . Mrs. Gilbert , in response to a series of direct ques- tions, denied hearing her husband make the statements concerning the Union and James as asserted by the Sittons. However, she did remember Clyde saying he had worked too hard and too long for his job to throw up his hands and quit but she could not recall the conclusion of his remark. Stokes testified that about September or October James and G. D. Sitton and Jenkins were helping him to rebush the dragline and both the Sittons were slow in performing their part of the work. Stokes reported to Clyde Gilbert that James Sitton "was lagging along," and Gilbert said he would see about it, or something. On another occasion the Sittons were helping Stokes reline the clutch and he again reported James for "lagging " on the job. Stokes ad- mitted that on these occasions he made no complaint to Sitton concerning the manner in which he was performing the job, nor did he tell Sitton he was going to report him to Gilbert Concluding Findings From the foregoing evidence it is well established, and found, that in early June, Alvey and Morris played a prominent part in the circulation of a petition which was signed by some 40 to 60 employees indicating that they favored the formation of a union. Upon the strength of this petition, which later disappeared, Alvey requested the Union to send one of its organizers to Lindale and Ford was promptly dispatched to the scene for the purpose of organizing the employees The first meeting was held in June at the local ball park with 40 to 50 employees attending , practically all of whom signed union membership application or authorization cards It is undisputed that regular meetings were thereafter held at the park and that the Union used loudspeakers in the area to announce these meetings and urged the employees to attend the same. At the third meeting Alvey was elected chairman of the union committee and James Sitton was active in soliciting employees to sign authorization cards. 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Edwards admitted he had early knowledge of the organizational campaign , so in June he called a meeting of the supervisory staff for the purpose of instructing the foremen concern- ing their attitude and actions while the uniondrive was in progress . Foreman McClenny testi- fied that on this occasion Edwards, after referring to the current union activities , stated he "wanted us to keep it down all we could, not to get rough about it, [but] try to discourage it." Edwards said he told the foremen "to be very careful of what they said to be sure every- thing they did was legal , that the men had the right to decide for themselves , and that's what would be done." Attorney Lyne then spoke to the group. Edwards said he was in and out of the meeting and did not remember what Lyne stated to the foremen. When pressed by the General Counsel to relate the substance of Lyne's remarks Edwards answered, "That's his story. I don't know." However, he did testify that Lyne briefed the foremen on the topics of fair and unfair labor practices and Board representation procedure,`cautioned against in- terrogation of employees in regard to their membership or nonmembership in the Union, and pointed out they were not "to hamper" the employees in their efforts to organize. Attorney Lyne did not testify. Stacks and the three Gilberts, while called as witnesses on behalf of the Company, were not questioned concerning any statements or remarks made by Edwards or Lyne. Edward's impressed the undersigned as an evasive witness in respect to the events transpiring at this meeting. When it is considered that he called the meeting for the express purpose of issuing instructions to the supervisory staff governing their activities in the midst of t union campaign the affair was obviously an important one, yet Edwards could not even relate the substance of his attorney' s statements to the group on these vital matteis. Nor, in the opinion of the undersigned, was Edwards' failure in this connection attributable to any extraneous circumstances, for this meeting was theonly one of its character during the entire year and he had no difficulty whatever in repeating in detail his speech of September'20 to the employees. For these reasons, as well as the total lack of any evidence on the part of Lyne's, Stacks', or the Gilberts' bearing on this meeting , the undersigned rejects Edwards' version of the meeting and accepts and credits the testimony of McClenny to the effect that the foremen were instructed to discourage and impede union organization , without resorting to rough tactics Edwards' declarations make it plain that the Company was unmistakably hostile to organization and entertained a fixed determination to thwart unionization of its employees Therefore, his statements to his supervisory staff in the early phase of the union drive were clearly instructions to engage in antiunion activities , or unfair labor practices to to accomplish his expressed objective It is true Edwards did not direct the supervisors to use unlawful means to discourage or hinder organization but the omission of such directions gives no legal sanction to the instructions . (H. H. Thayer Company, 99 NLRB 1122; Cold Spring Granite Company, 101 NLRB 786.) Moreover, as found below , it is abundantly clear that Clyde and Ernest Gilbert, in accordance with the tenor of these instructions , pursued a course of action clearly tending to discourage and impede organization among the employees. The undersigned therefore finds the instructions thus given to the supervisors to be violative of Section 8 (a) (1) of the Act As detailed above, James Sutton testified that after the first union meeting Clyde Gilbert told his crew that the Company would not permit the Union to come into the plant and if the employees persisted in organizing they would be discharged and be replaced with nonunion field workers. As a consequence the employees would lose their homes and cars and would be blacklisted for work in the area . Again in July, Gilbert questioned Sitton concerning the activities of the Union and when he refused to give any information on this subject Gilbert threatened him with discharge if he did not renounce his membership in the Union. On a third occasion Gilbert warned James and G. D. Sittonto " get on the right side of the fence," other- wise they would be discharged. G. D. Sitton testified that shortly after organization commmenced Clyde Gilbert informed him that the Company would not stand for unionization and threatened to shut down the plant and replace the men with field laborers. Sitton testified to the same effect as James Sitton in regard to Gilbert's warning to get out of the Union or be discharged. In substance, Clyde Gilbert denied he uttered any of the statements , threats, or warnings as related by James and G. D. Sitton. Gilbert testified he discussed the Union with members of his crew on but one occasion, when, in response to Ramsey's inquiry, he stated that under State law an employee was not compelled to become a member of a union to maintain his job and that he could not be discharged for refusing to become a member of a labor organization. He further stated that on one occasion he asked James Sitton how the Union was coming along and what the men wanted. When Sitton answered that the Union was coming along pretty good and the men desired more pay and better working conditions, he stated conditions were good RELIANCE CLAY PRODUCTS COMPANY 149 and that pay increases and a Christmas bonus had been granted by the Company . Gilbert denied that he knew Sitton was a member of the Union but admitted Ramsey had informed him James Sitton had solicited him to sign a union card. The record , in the opinion of the undersigned, plainly discloses that Clyde Gilbert was openly hostile to the Union and played an active and leading part in the Company's effort to prevent organization among its employees . His repeated denials of specific threats and warnings averred to have been made by him and his explanation of his acts and conduct, when evaluated and weighed in the light of the positive and direct testimony of credible witnesses adduced by the General Counsel , is neither persuasive nor convincing. Gilbert's testimony in this respect Is, therefore , rejected . Accordingly , the undersigned finds that Gilbert, as de- tailed above, warned the Sittons to renounce their membership in the Union or be discharged and the Company thereby violated Section 8 (a) (1) of the Act. Bryant's testimony that Ernest Gilbert told him he should have no part in the Union and that the Company would shut down before it would allow the Union in the plant, whereby he would lose his home and car, was denied by Gilbert . Bryant appeared to be a truthful and unbiased witness and as Gilbert's remarks are consistent with the attitude of the Company, the under- signed accepts Bryant's testimony and finds that Gilbert, as stated above, warned and threatened him concerning his membership in the Union. Ernest Gilbert did not deny that he asked Veatch how he liked one of the union meetings and that he later inquired if Veatch had made any remarks about him at one of the meetings, which Veatch admitted. While the evidence shows that Gilbert was fully cognizant of the meetings and knew , at least to a limited extent, the discussions which took place, nevertheless the undersigned concludes that he did not thereby engage in any unfair labor practice. The undersigned also finds nothing illegal in the conversations Stacks had with Veatch, wherein he asked " what was the matter " with the employees. It is undisputed that each of the Gilberts , at separate times, drove past the ball park while the meetings were in progress . While their actions may create a suspicion of surveillance, the undersigned concludes it is inadequate to support a finding thereof. The Discharges The Company contends that the three employees were laid off in a reduction-in-force program which was caused by a sharp decline in its sales . Although Alvey and Morris were members of the construction crew and concededly had nothing to do with production, them discharge upon completion of the current work was prompted by the same reason for Edwards in his speech clearly stated "that business did not justify any further improvement to our plant, we were there for discontinuing all further construction until conditions improved." In support of his assertion , madeinthecourse of his speech, that business conditions prompted a curtailment in operations , Edwards produced the monthly production figures for 1951, which reveal that for the period July through October the rate exceeded that in February , March, and June , and in August the amount was surpassed only in May, the highest month, and com- pared favorably with January, the second highest month. Edwards determined the daily or weekly production quota and it seems rather incongruous that he fixed a higher quota for the period July through October than in June, in the teeth of a purported one-third decline in sales . Moreover, the payroll records disclose that the Company employed between 84 and 87 men in July and August , 80 to 82 men in September ; and 70 to 73 men in October. Except for the employees discharged on September 20, Edwards could not state the reasons why the few employees were no longer working for the Company, but it seems clear that they were not discharged by the Company for lack of work . The production and payroll records, there- fore, not only fail to bear any reasonable resemblance to a curtailment in operations and staff in proportion to a one-third decline in sales but negate the contention that there was in fact any slump at all. Finally, it is highly significant that despite Edwards' assertions in this respect the Company did not produce any records whatever showing the volume of its sales or the quantities of its deliveries during the alleged critical period, or for any period of time . it is, of course, well settled that while the General Counsel has the duty of proving the allegations of his complaint by a preponderance of all the evidence , nevertheless , where, as here, the knowledge or possession of certain facts lies solely within the province of the Respondent , the burden of coming forward with such evidence is upon him and his failure to do so creates the inference that it would be unfavorable to him. (N. L. R B. v. Kentucky Fire Brick Co., 99 F. 2d 89, 93 (C, A. 6); N. L. R. B. v. Reed & Prince Manufacturing Company, 130 F. 2d 765, 768 (C, A. 1); N. L. R B. v. Ohio Calcium Company, 133 F. 2d 721, 727 (C, A. 6); N. L. R. B. v. Collins & Aikman Corporation , 146 F. 2d 454, 456 (C. A. 4); E. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Anthony & Sons v N. L. R, B., 163 F 2d 22, 27 (C. A. D. C.); N. L. P. B. v. The Sandy Hill Iron & Brass Works, 165 F. 2d 660, 663 (C. A. 2).) Accordingly , the failure of the Company to produce its sales or delivery records, considered in the light of the production and employ- ment records , leads the undersigned to conclude that the so - called reduction in force was not attributable to business conditions .5 It is so found But assuming there may be some grounds for believing the discharges were caused by business conditions , still the result would be the same for the mere existence of a "valid reason" is no defense to a discharge motivated by antiunion considerations . (Sandy Hill, supra, Williams Motor Company, 31 NLRB 717, 726- 733, enforced Williams Motor Company v N. L. R. B., 128 F 2d 960, 964 (C. A. 8).) Having found that the Company followed a pre- conceived plan to prevent unionization of its employees , the undersigned concludes that the discharges were but part and parcel of that program it is undisputed that on September 20 the Company laid off 4 of the 6 or 7 men in its construction crew , including Alvey and Morris, leaders in the union movement , and Brewster , a member of the Union Moreover, any doubt that might exist as to the real cause thereof is fully answered by the actions of Ernest Gilbert immediately preceding the group layoff. At that time Gilbert approached and announced to 3 members of the crew , " You guys are non-union , go to work," whereupon they left the crew and went on other jobs 6 Although Alvey and Morris were old and experienced employees and qualified for various types of work yet, unlike the treatment afforded the nonunion men, they were denied an opportunity to perform on other jobs. Again while they submitted written requests for reemployment they heard nothing further from the Company despite the fact it subsequently commenced hiring employees. Nor is there any merit to the contention that Morris was employed in a supervisory capacity . In this connection , Stacks referred to him as foreman of the crew and stated that he brought Brewster to him for an interview in regard to employment and on another occasion he asked Stacks to transfer Veatch from the crew because they were not getting along together . In each of the above instances , the only ones cited , Stacks made the final decision . Morris was employed on an hourly basis 7 under Stacks and passed orders from the latter to the crew There is no contention that he attended the June meeting of the foremen. The undersigned finds that Morris was employed as leadman and even assuming he was a minor supervisor he would not thereby be excluded from the coverage of the Act (N. L. R. B. v Quincy Steel Castings Co. Inc., 200 F . 2d 293 (C A 1).) As already found , Clyde Gilbert discussed the Union with James Sitton on many occasions and several times warned him to repudiate the organization , otherwise he would be dis- charged Sitton refused to heed these warnings, so on September 20, at the conclusion of his shift, Gilbert, after reiterating his prior warnings and threats , told him "it was happening," that he was being discharged . Gilbert denied that Sitton was laid off under such circumstances His testimony is to the effect that Stacks instructed him to lay off one man and he selected Sitton because he was uncooperative and apparently not as efficient as other employees. When Gilbert advised Stacks of his selection , Stacks expressed surprise and reminded Gilbert that Sitton was the oldest driver in point of service However , he left the final decision to Gilbert. In an effort to support the reasons for his selection , Gilbert testified that, com- mencing with the organizational campaign , Sitton wanted to drive exclusively and that the dragline operators made daily complaints that he was not cooperating with them The evi- dence fails to lend any credence to these general assertions . The only instance Gilbert him- self could cite against Sitton was theoccasionhe told him to dig out his truck , which obviously he did, although he did remark all he ever heard was "get a dam shovel and dig " Stokes, the dragline operator , reported Sitton for "lagging" on two repain jobs. These instances are trivial and inconsequential and do not even remotely support the charges against Sitton. On September 22, Sitton addressed a letter to the Company requesting reinstatement to his former job, or other stated jobs On February 14, Stacks wrote him that the Company was hiring a few men and that he had a job in the machine room or as driver which he did not know how long it would last , but he would hold the job until the morning of February 18. Sitton, on February 17, wrote Stacks and asked if back pay and the Christmas bonus were S Equally implausible and improbable is Edwards ' assertion that the entire complement of employees was kept intact for 3 months merely for the sake of maintaining a staff. Nor does his claim that the employees were producing poor quality products have any bearing on the instant discharges, for he admitted Alvey and Morris were not engaged in production work, and it is difficult to comprehend how a truckdriver could be held responsible for errors in the manufacturing process. 6Gilbert did not deny Morris' testimony to this effect. 7 Roy Gilbert was the only foreman paid on an hourly rate. RELIANCE CLAY PRODUCTS COMPANY 151 included in the offer but he heard nothing from the Company . The undersigned has no difficulty reaching the conclusion that Stacks' letter does not constitute a valid offer of reinstatement Stacks made no mention that Sitton was being reemployed or reinstated to his former or substantially equivalent position for he specifically referred to Sitton 's "application" for work and since he intended to hire a few men in classifications for which he was qualified, Stacks would hold one of these jobs, the duration of which was uncertain , for him until a stated date and hour It is reasonable to infer that Sitton was being hired as a new employee in a job of a temporary nature Moreover , the so-called offer was made without any reference to back pay , seniority , or other rights and privileges previously enjoyed by Sitton. Having found that Sitton was discriminatorily discharged the alleged offer is totally inadequate to abate the original discrimination or to preclude recommendation of the usual reinstatement and back-pay order . (Continental Box Company , Inc., 19 NLRB 860, 883, enforced Continental Box Company , Inc v N. L. R B., 113 F 2d 93, 96 (C. A. 5), Waterman Steamship Corpora- tion v . N. L. R B., on contempt 119 F. 2d 760 , 763 (C. A. 5).) The undersigned therefore finds that the Company discharged Alvey, Morris, and Sitton in violation of Section 8 (a) (3) of the Act. The Discharge of McClenny The General Counsel contends that McClenny was discharged because he refused to dis- courage union activity among the employees. The evidence shows that McClenny attended the foremen's meeting in June and sometime later Stacks asked him how he felt toward the Union and he replied it was up to the men, that it made no difference to him what they decided in the matter McClenny also attended 2 or 3 union meetings at the invitation of the employees but made no report thereon to management On October 16, Stacks, without stating any reason therefor, requested McClenny to submit his resignation, which he did. The under- signed is of the opinion this evidence is insufficient to warrant the conclusion that the action was prompted by his failure to discourage union activities on the part of the employees, unless the supporting testimony of Jamie and Mittie Sitton is considered adequate to establish a violation. In substance the Sittons credibly testified that Clyde Gilbert in the course of his discussion with them concerning the Union predicted that McClenny, by reason of his favor- able attitude toward organization, would be discharged by the Company. While evidence of this nature is admissible to establish a motive, here the remark was made only to theSitton, who had no connection whatever with the Company and there is no indication it was even communicated to any of the employees. Since there was no threat the Company would use its economic power to make the prophecy come true, the admission standing alone is insufficient to support a finding that McClenny was discharged as alleged in the complaint (Mylan-Sparta Company, Inc., 78 NLRB 1144, 1145 ) IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth above, occurring in connection with the opera- tions of the Respondent have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and ob- structing commerce and the free flow thereof V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, the under- signed will recommend that it cease and desist therefrom and take the following affirmative action designed to effectuate the policies of the Act: (1) Offer Roy Alvey, Travis H. Morris, and James G. Sitton immediate and full reinstatement to their former or substantially equiva- lent position,? without prejudice to their seniority or other rights and privileges, (2) make each of the employees whole for any loss of pay each may have suffered by reason of the Respondent's unlawful discharge, by payment to each of them a sum of money equal to the amount each would normally have earned as wages, from the date of discharge to the date of 8Following their discharge the employees filed applications for unemployment benefits with the Texas Employment Commission in which they stated they had been laid off by the Company. These statements are immaterial in deciding the issues in this case. (Ace Handle Corporation, 100 NLRB 1279.) 9 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 627. 291555 0-54-11 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent's offer of reinstatement, less the net earnings of each during said period; 10 (3) the Respondent shall, upon request, make available to the Board payroll and other records to facilitate the checking of the amount of back pay, which shall be computed in accordance with the Board's customary formula;lt and (4) that the Respondent be ordered to cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. The Respondent, Reliance Clay Products Company, is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. United Stone & Allied Products Workers of America, CIO, is a labor organization as defined in Section 2 (5) of the Act. 3. By discharging Roy Alvey, Travis H. Morris, and James G. Sitton, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 6. The Respondent has not engaged in the unfair labor practices alleged in the complaint of discharging Foreman C. E. McClenny because he refused to discourage union activities among the employees, or of engaging in acts of surveillance. [Recommendations omitted from publication.] toCrossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 'IF. W. Woolworth Company, 90 NLRB 289. CROSBY CHEMICALS, INC'. and LODGE 1225, INTERNA- TIONAL ASSOCIATION OF MACHINISTS. Case No. 15-CA- 378. May 29, 1953 DECISION AND ORDER On February 13, 1953, Trial Examiner David London issued his Intermediate Report in the above-entitled proceeding, find- ing that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Inter- mediate Report. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errror was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions of the Respondent, and the entire record in the case, and hereby adopts the Trial Ex- aminer's findings, conclusions, and recommendations to=-the limited extent consistent with the findings, conclusions, and order hereinafter provided. 105 NLRB No. 15.