Bernz-O-Matic Corp.

72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is further recommended that the complaint be dismissed insofar as it relates to the discharge of Sherman Wilder. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in Retail , Wholesale and Department Store Union , AFL-CIO, 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 interrogate our employees concerning membership in or their activities on behalf of the above Union, or of any other labor organization. WE WILL NOT maintain or enforce any rule prohibiting our employees , during nonworking time, from distributing literature in nonworking areas in support of Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organiza- tions to join or assist Retail , Wholesale and Department Store Union, AFL-CIO, or any other labor organization , to bargain collectively through representatives of their own choosing , to engage in concerted activities for the purposes of col- lective bargaining or mutual aid or protection , or to refrain from any or all such activities, except to the extent that such rights 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 Reporting and Disclosure Act of 1959. WE WILL offer Joseph Landry immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make whole Joseph Landry and Sherman Wilder for any loss of pay suffered as a result of the discrimination against them. All our employees are free to become , remain, or refrain from becoming or re- maining members of any labor organization. GOTHAM INDUSTRIES, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 24 School Street, Boston, Massachusetts, Telephone No. 523-8100, if they have any question concerning this notice or compliance with its provisions. Harris Paint Company, a wholly-owned subsidiary of Bernz-O- Matic Corp. and Teamsters, Chauffeurs and Helpers Local Union No. 79, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Independent. Case No. 12-CA-2780. December 14, 1964 DECISION AND ORDER On July 21, 1964, Trial Examiner John F. Funke issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set 150 NLRB No. 15. HARRIS PAINT COMPANY, ETC. 73 forth in the attached Trial Examiner's Decision. Thereafter, the Gen- eral Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. The Charging Party adopted the General Counsel's exceptions and brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. 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 Ex- aminer's Decision, the General Counsel's exceptions and brief, and the entire record in this case, and hereby adopts the Trial Examiner's findings,2 conclusions, and recommendations, with the modifications herein indicated. [The Board dismissed the complaint.] ' We hereby correct the following inadvertent errors of the Trial Examiner: (1) In paragraph III.A 3 the name "Lee Perkins " should be substituted for "Leroy Perkins" ; (2) in footnote 13 the name "Tommy Young" should be substituted for "Arlie Cole." 2 Contrary to the Trial Examiner , we do not believe that the dismissal of the Section 8(a)(1) and ( 3) allegations of the complaint In this case is entirely free from "serious misgivings." The evidence adduced by the General Counsel raises more than a suspicion of wrongdoing However, such suspicion does not amount to that preponderance of the evidence necessary to find a violation of the Act . The Trial Examiner's findings rest In large part upon his credibility resolutions . It is the Board's policy not to overrule a Trial Examiner's resolutions with respect to credibility unless , as is not the case here, the clear preponderance of all the relevant evidence convinces us that the resolutions were in- correct. Standard Dry Wall Products, Inc., 91 NLRB 544, 545, enfd 188 F. 2d 362 (CA. 3) In adopting the Trial Examiner 's findings , we do not adopt that part of his decision in which he discusses the circumstances under which a supervisor 's knowledge of union activities may be Imputed to the corporate respondent and his stated reasons for not resolving the credibility issue concerning the alleged interrogations that took place on October 30, 1963 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed November 4, 1963, and an amended charge filed December 11, 1963, by Teamsters, Chauffeurs and Helpers Local Union No. 79 , IBT, herein called Local 79 or the Union, against Harris Paint Company , a wholly-owned subsidiary of Bernz-O-Matic Corp., herein called Harris or the Respondent, the General Counsel issued a complaint and amendment to the complaint alleging Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and ( 3) and Section 2(6) and ( 7) of the Act. The answer of Respondent denied the commission of any unfair labor practices. This proceeding, with all parties represented , was heard before Trial Examiner John F. Funke at Tampa, Florida , on February 17, 18, and 19, and at the conclu- sion of the hearing the parties were given leave to file briefs. An able brief was received from the Respondent on April 13, 1964. Upon the entire record in this case and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is a corporation organized and existing under the laws of the State of Florida and having a plant at Tampa, Florida, where it is engaged in the manufac- 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ture, sale, and distribution of paints and related products. During the past year Re- spondent shipped paints and related products valued in excess of $50,000 directly from Tampa, Florida, to points and places outside the State of Florida. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION INVOLVED Local 79 is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The facts 1. Background According to Michael Catena, its president, Harris had been sold in 1962 to Rapid American Company, which subsequently sold it to McCrory Corporation, a chain of retail stores controlled by Rapid American. At the time of and prior to this sale to McCrory, Harris was selling both McCrory and S. H. Kress Company, a competing chain of retail stores. The dollar value of these sales amounted to approximately 35 percent of Harris' total sales with the sales to Kress varying from 10 to 15 per- cent of the total.' In March of 1963 reports were published that Rapid American was to sell Harris to McCrory and Kress informed Rapid that this would endanger the Kress account. When the sale was completed in April 1963, Kress said it would cancel its contract and seek another source of supply. There were further dis- cussions between Harris and Kress while Catena tried to line up a new supplier for Kress with a cancellation deadline fixed for December. (Why Kress did not seek its own supplier is not revealed.) On Monday, October 28, Catena, in New York, re- ceived assurance from the Vita-Var Corporation that its Texas Products Company was ready to supply Kress. On the next day, October 29, Catena so advised Kress and also told Calvin Chunn, superintendent of Harris, not to manufacture any more paint for Kress. On the 30th Catena called Jack Lawrence, office manager for Harris, and told him to tell Chunn to lay off 10 employees. (Harris employed approxi- mately 85 employees.) J. W. Hughes, president of Local 79, testified that on a Sunday in late October two employees of Harris (Robert Reedy and Joseph Brickman) came to his home to get union authorization cards. Hughes gave them 16 cards and told them that in order to get an election they would have to have cards signed by 30 percent of the em- ployees. Hughes did not hear anything for 3 or 4 days, when employees began call- ing him to tell him they had been laid off. Hughes told them to get together and see the Union's attorney, Robert Frank. By telegram dated November 1, Hughes re- quested recognition and bargaining negotiations on behalf of Local 79, and on the same date Lawrence replied that Catena was out of town and would reply when he returned. (General Counsel's Exhibits Nos. 5 and 6.) On November 4 Frank filed a petition for an election in Case No. 12-RC-1828 and the unfair labor practice charge herein. (General Counsel's Exhibits Nos. 2 and 1(a).) The charge alleged that 10 employees were discriminatively discharged on October 31 and was later amended to allege the discriminatory discharge of another employee on Novem- ber 11. The complaint was amended at the hearing to allege that three other em- ployees were discharged for discriminatory reasons on November 4.2 It is against this background, for I credit the testimony of both Catena and Hughes as to the facts above set forth, that the allegations of the complaint must be measured. 2. Violations of 8(a)(3) a. The shipping room employees Of the 10 employees laid off on October 31, 5 worked in the shipping room. These were Robert Reedy, Jr., Joseph Brickman, Vincent Eleuterio, Cecil T. Bradley, and Noel Thomas. Brickman and Reedy testified that after they picked up the 16 cards at Hughes' home on Sunday, October 27, they drove to the home of Giles Trull where Trull and Brickman signed cards. Reedy did not sign on that day, for reasons not revealed, ' Another 35 percent was sold to Harris Paint stores and the remainder to dealers. 2 The motion by counsel that the Trial Examiner reconsider his ruling at the hearing and strike the amended complaint is again denied. See Rule 15(b), Federal Rules of Civil Procedure. HARRIS PAINT COMPANY, ETC. 75 but testified, after some confusion, that he signed on Monday .3 There is further confusion as to what took place with respect to the cards on Monday for Reedy testi- fied at one point that "mostly we held on to them," at another that he kept them in the glove compartment of his car, and at another point that he thought he gave some to Brickman and Eleuterio. He could not remember if he passed out any cards him- self on Monday. At noon he went to Acme Freight (across the street from Harris) to pick up more cards which Hughes was supposed to leave there but the cards had not been left. (They were picked up by Brickman and Mrs. Reedy the next day, Tuesday.) Reedy did not participate extensively in the distribution of the cards other than to give them to Brickman and Eleuterio for distribution among the em- ployees. (Reedy stated he signed one employee in the varnish department and passed out cards in the men's restroom but when and with what result is not made known.) Brickman testified that he had or received eight cards on Monday and signed eight employees, six of whom he named. He testified that he signed the employees "mostly on break," that the signing took place behind the shipping office, that no supervisor was present, and that no supervisor saw the employees sign or return the cards to him? Brickman delivered the signed cards to Reedy. Eleuterio was a voluble witness, exceptionally hostile toward the Respondent, and whose testimony was confusing and contradictory. He testified that on Monday he was approached by Reedy and asked to sign a card, that he told Reedy he would have to think about it, and that he signed the next day on break time .5 He talked to other employees and stated it appeared they all wanted to join.6 Eleuterio testified that he talked to an employee in the mixing department named Tex Shrewsbury (named in the complaint as Cilie Shrewsbury, Jr.), and that he asked Reedy for 15 cards for Shrewsbury which he gave to Shrewsbury at lunch hour. At the same time Eleuterio saw Noel Thomas and asked him if he wanted to sign and Thomas told him to give him two cards. Noel Thomas stated that he signed a card a day or two after the other employees signed (this conflicts with Eleuterio's testimony as to date) and was told at the time by Eleuterio that he did not need his card since he had enough. Thomas had been employed by Respondent for about 31/2 years at the time. Cecil Bradley stated that he had worked in the shipping department for about 3 months before he was fired, having transferred from the mixing department at his own request following trouble with one of the employees there. On either Tuesday or Wednesday Bradley signed a card in his automobile parked across the street from the plant. The signing took place at lunch time and he was in the car with his wife, both of whom had been given cards by Reedy. After signing he returned the cards to Eleuterio at break time. There is no dispute concerning the time or circumstances of the discharge of the shipping department employees. Chunn testified that on Thursday morning he told the foremen, Young and Cole, and the forelady, Bertha Taylor,7 that he had been instructed to lay off 10 employees and that he would select them himself. Chunn selected the 5 employees in the 3 His testimony: Q. (By the GENERAL COUNSEL. ) Can you tell in relation to your termination on Thursday, October 31,when you signed the card" A. No. Q. (By the TRIAL EXAMINER ) Was it before or after your termination? A. I don't know. Q. You don't recall whether you signed the card for the union before or after you were terminated? A. Oh, it was before. Q. Can you tell us when it was approximately" Q. (By the TRIAL EXAMINER ) You were terminated on Thursday, is that right? A. Yes. TRIAL EXAMINER: Do you recall whether it was Monday, Tuesday, Wednesday or Thursday? A. It was Monday. 4 Reedy testified that Hughes instructed them, when he gave them the cards, to "take them and keep quiet, get them filled out as quickly as possible and return them to me" G At one point in his testimony Eleuterio stated he received his card from F,iickman. 9 Whether Eleuterio meant all the employees in the plant or all the employees in the shipping department is not clear but the latter is the more reasonable supposition v Young was foreman of the shipping department, Cole of the mixing department, and Taylor of the labeling department. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shipping department to be discharged and about 4:30 Young collected them and Chunn came to the shipping department and simply told them 10 employees would have to be let go due to slack work. Each of them received two checks, one for the workweek which had ended Wednesday and one for Thursday's work .8 Eleuterio testified that he told Chunn the layoff was due to union activity in the plant and that Chunn "made out he knew nothing about the union." There is no testimony that any of the other employees made any comment. With respect to the shipping department employees, Chunn stated that he chose to make the largest number of layoffs in this department because employees from pro- duction could be used in shipping if necessary while shipping employees did not have the skills required in production. As to the selection of the five individual employees, Bradley was the first selected because he had had trouble in the mixing department and had asked to be transferred to shipping .9 Of the other four, all were engaged in pulling store orders (McCrory and Kress) and the loss of the Kress account left them vulnerable. b. The layoffs in the labeling department Three employees were laid off in the labeling department. These were Mary Ann Thomas, wife of Noel Thomas, Ethel Pugh, and Ruby Bradley, wife of Cecil Bradley.io Mary Ann Thomas testified that she had worked, with three interruptions of serv- ice, for Harris since 1957 in the labeling department. Her last period of uninter- rupted service had been about 21/2 years. Her forelady was Bertha Taylor. Thomas not only signed a union card at break time on October 29 but also asked employees Ethel Pugh and Coopy Pippin to sign one. (Pugh signed in the restroom.) On October 31 at 4:30 Taylor asked her, Ethel Pugh, and Ruby Bradley to stay, that Chunn wanted to talk to them. Chunn came to the label room and told them that due to the loss of the Kress account he had to lay off 10 employees and that they were part of the 10. He started to walk away and Taylor asked him if he did not have checks for the girls and he handed them to her and Taylor gave them to the girls. Pugh told Taylor that they were being let go because they had signed union cards and Taylor said she did not think any of her girls were involved in that. Ethel Pugh testified she had worked for Harris on three different occasions, the last period of employment commencing in August 1963, and terminating on Octo- ber 31. On her last employment she worked in the spray department with Hazel Bauchard.11 On either the Tuesday or the Wednesday of the week she was laid off Pugh signed a card at the request of Thomas in the ladies' room. Pugh also testified to a conversation with Nan Cole, wife of Arlie Cole, in which Cole told her "they" knew (Pugh stated she did not know who was meant by "they") that three girls had signed union cards and knew who two of them were. She was laid off at 4:30 p.m. under the circumstances testified to by Thomas. Pugh, however, met Chunn as she was leaving the plant and told him she was laid off because she had signed a card. Chunn denied knowing anything about union activity within the plant. Pugh also told Taylor this was the reason she was laid off. Ruby Bradley was employed by Harris in the labeling department for about 11/2 years before her layoff. She was the wife of Cecil Bradley. She signed a union card on Tuesday, October 29, at the request of her husband. She testified to the circum- stances of termination on October 31 and corroborated Pugh's testimony that Pugh told Taylor she was being laid off for signing a union card and that Taylor replied that none of her girls would do a thing like that. Chunn's reasons for selecting Thomas, Pugh, and Bradley were simple. Thomas and Bradley were selected because their husbands had been laid off and Chunn's experience had been that when a husband or wife was discharged it was sound policy to discharge the remaining spouse. He cited an instance to support this conclusion Pugh was selected because, as of the date of her last employment, she was the junior female employee. c. The layoff of Perkins Leroy Perkins was employed by the Respondent at the time of his layoff as a liquid filler and had a record of just short of 16 years' employment with Harris. He did not sign a union card until after his layoff and his son, Lee Lydon Perkins, also em- 8 Catena testified that ww hen he instructed Chunn to lay off the men on Thursday be had forgotten that the pay period had been changed from Thursday to Wednesday. 6 This involved an argument between Bradley and an employee named Norman Greauz at the varnish tank which almost resulted in a fight 10 According to Taylor there were 13 women employed at the time. 11 The departments were not contiguous but employees were interchanged. HARRIS PAINT COMPANY, ETC. 77 ployed at Harris, testified that his father "wouldn't go near one." Lee further testi- fied that Forelady Bertha Taylor told him, after his father was laid off and referring to the signing of union cards, "Don, we don't think your father would do anything like that. He's sort of like a company man." 12 Leroy Perkins testified that he had started toward the clock at quitting time on October 31 when Stan Wagner told him Chunn wanted to see him. Chunn came over after 5 or 10 minutes, told him he "hated to tell him mighty bad," that he had word from Catena in New York that he had to lay off 10 men and that Perkins was on the list. He then gave him his checks. Since there was admittedly no union activity on the part of Leroy Perkins the Gen- eral Counsel introduced evidence of union activity on the part of Lee to establish motivation. Lee, who was still employed by Harris at the time of the hearing, testi- fied that he signed a union card during the period of union activity (probably Octo- ber 29) in the McCrory section of the shipping department. Reedy gave him the card and he testified that no one else was present when he signed. Later "a couple of guys" asked him who was giving out the cards. Reedy refused to tell them but that he did get cards for them. Later he gave three cards to an employee named Jimmy Godwin and six or seven to Norman Greaux. On a day fixed as the day be- fore the layoff Perkins testified that Tommy Young came up to him in the McCrory section and asked why he had signed one of those "god-damn cards." When Lee asked him what cards, Young told him the union cards and that it was a bad time to be signing them and to be trying to get a union in, especially the Teamsters.13 He added that it was just before Christmas and he would hate to see anybody laid off but that work slacked off at that time of year and things could get rough. Chunn's testimony at the hearing as to his reasons for selecting Leroy Perkins for layoff had best be quoted directly. It follows: Then in the Handfilling Department we had Leroy Perkins and Washington. Now, Washington, in addition to his duties in the specialty building, he also filled in at the varnish plant when one of those individuals were not present. At the varnish plant we have two shifts of two men each, and if one of those men couldn't show up we'd have to have somebody else to be there, because one man, it was dangerous for one man to be there by himself. So when one of those men were off or something, we put Washington in his place. Q. All right. Now, who is in charge of this department, the foreman in this department? A. Well, the group leader over there was Stan Wagner. Q. Did you talk to him about- A. I talked to Stan Wagner. I told Stan Wagner that I had selected Leroy to go, and he said that was a good idea, that- Q. Did he say why it was a good idea? A. Yes, he did. He said Leroy had very little mechanical ability and he couldn't operate the machine. Now, Leroy also, due to, you might say forget- fulness or negligence or anything, that he had the habit of, when he was pump- ing liquids into the large tanks upstairs, running them over pretty consistently, and he had done this on numerous occasions, run these tanks over with paint, varnish or thinner or oil, at considerable expense to the Company. But on each one of these occasions, after a fellow does that so many times, you would say, well, we ought to let him go, but my heart wouldn't let me lay Leroy off. But in this particular situation here, we have an operation over there which requires three men and we had to have three men that could operate. Q. Could you give us some background as to what Leroy has been doing at the plant in the past? A. Leroy at all times that I can remember, has worked in this Handfilling Department. Now, part of his duty has been to fill turpentine into cans, and in doing this we have what we call a capping machine, and whenever the capping machine would get out of order, Leroy couldn't fix it, he would have to call for Stan or the maintenance man or George or some of the other boys to fix the machine for him, showing that he had practically no mechanical ability. d. The layoff of Cilie Shrewsbury Shrewsbury testified that he had been employed as a master tinter at Harris for 5 years when he was laid off and that his helper was Lowell Breeding. When he was laid off he was told by Chunn that Harris had lost the Kress account and did not have v Taylor denied this conversation. 23 Both the inquiry and the remark were denied by Young. 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD room for two tinters. Shrewsbury stated that Breeding had been there only 2 years and that he had taught Breeding to tint and that he asked Chunn why he was being laid off instead of Breeding. Chunn's reply was that Breeding had previously worked in the lab and that Chunn could use him in the lab and also on tinting. Shrewsbury, responding to leading questions by the General Counsel, then testified that he told Chunn that he thought Chunn was lying and that "it had something to do with the union." Despite the testimony of Eleuterio that Shrewsbury asked for cards to dis- tribute and that he gave him 15, Shrewsbury stated that he did not sign a card until after he was laid off, did not attend any meetings, and did not distribute any cards.14 Chunn testified that there were three tinters in the plant, one of whom was not then tinting. Faced with a choice between Breeding and Shrewsbury he picked Breeding for retention because he thought him the better tinter. Shrewsbury was recommended for a job at a company referred to as Protected Coatins by Chunn and was employed by it. Chunn denied that Shrewsbury was a master tinter, stating that he had never heard of a master tinter and also stated that, while Shrewsbury had taught Breeding tinting, Breeding was not Shrewsbury's helper. e. The layoff of Trull Giles Trull had been employed by Harris as a driver for 21/2 years with a break in service of 2 or 3 months. He had been reemployed on March 4, 1963. He drove the Florida route, making deliveries to the Harris stores. He was laid off on Monday, November 11. Trull testified that he signed a card with Local 79 before he was laid off. Trull stated that on the day of his layoff he had been loading paint on his truck when Joe Brickman drove by and stopped and they "shot the breeze, I guess for two or three minutes." Tommy Young, his foreman, observed them and later that day (it was quitting time) told Trull that Chunn wanted to see him. Trull waited and Chunn came out, handed Trull his check, and told him one of the drivers had to be laid off and the driver was Trull. Trull protested the fact that he had no notice and asked Chunn if it was on account of the Union. Chunn walked away. Trull testified that his supervisor when he was on the road, Mr. Baldwin, knew nothing of the discharge until he turned in his expense money to the trucking lessor. Trull then testified to a conversation he had had with another driver, Gene Cadle, during the week preceding his discharge. In this conversation, which took place in the yard while Cadle was hooking up his trailer, Cadle asked him if he had filled out a union card and Trull said he had. Cadle told him he was crazy and Trull told him that while the drivers were making good money the boys in the plant were not mak- ing anything. Trull stated he looked up and Tommy Young and a pusher named Billy Devore were "standing in the door listening to us." On cross-examination Trull admitted that he did not mention the Union in the presence of Young and Devore adding "but they were looking for it, they knew what we was talking about." 15 Catena testified that after the unfair labor practice charges were filed on Novem- ber 4 he instructed Chunn not to lay off or hire any men. The loss of the Kress account, however, eliminated the necessity for the Houston run, which was an ex- clusively Kress delivery and either an over-the-road driver or a local driver could be laid off. Trull was selected because he was the most recently hired driver and it was decided to keep the over-the-road drivers. In evaluating Trull's seniority Catena fixed March 3 as the date and excluded his prior employment with Harris adding, "We felt as we did in some of the other people we laid off, that if they were not re- liable enough to stay on the job over a long period of time, that would have to be taken into consideration in determining layoffs." Catena explained that Trull was laid off on a Monday because Trull had made an early delivery on Saturday and did not return until Monday and the Company then permitted him to work all day. f. The discharges of Gray, Williams, and Hayes Unlike the other employees, who were laid off for economic reasons, Eddie Gray, James Williams, and Nathan Hayes were discharged for cause on November 1. 14 On redirect, and again in response to leading questions, Shrewsbury testified that he received a bundle of cards from Eleuterio and gave them to Norman Greaux, but that he did not know what they were. 15 Young denied overhearing this conversation. I do not believe, in view of this denial, that Trull's testimony can establish any more than that Trull believed he was overheard. His statement that "they knew what we was talking about" is worthless as evidence of knowledge. HARRIS PAINT COMPANY, ETC. 79 Gray testified that he signed a union card in the restroom on Tuesday, October 29, and that later that day Cole, his foreman, asked him if he had heard about the Union and if he had signed a card.16 Gray denied hearing about the Union and asked him, "What card?" Gray was absent on Thursday, October 31, and stated that when he reported on Friday shortly before noon Cole, who was standing with Chunn, gave him his check and told him he could not use him any more. Gray admitted being absent on Monday, October 28, Wednesday, October 30, Thursday, October 31, and to reporting late on Friday, the day he was terminated. The Respondent's records 17 show that Gray was absent on Tuesday, October 29, and on Thursday and Friday, October 31 and November 1, and that he was dis- charged for absenteeism on November 1. Interrogation of Gray's knowledge of union activity was denied by Cole. Absenteeism was the sole reason for discharge. James Lee Williams was employed in the mixing department under Arlie Cole for about 5 months prior to his discharge on November 1. Williams testified that on Tuesday, October 29, Cole came to him and asked him how he was doing and if he had heard anything about a union and Williams told him he had not.18 Williams was then asked if he would tell Cole if he did know and Williams said, "Sure." Williams was sick on Thursday and Friday and stated his wife had called in 19 and that when he reported on Saturday morning he saw Chunn who told him he had been laying off for 2 days and they had to let him go. Williams returned on Monday to verify with Cole the fact that his wife had called in and Cole told him that it was no use, that they understood he was mixed up with the union business along with Nathan Hayes and Eddie Gray.20 Chunn told him it was Cole's decision. Williams did not sign a union card until after he was discharged. Respondent's records 21 indicate that he was absent October 30 and 31 and Novem- ber 1 and that he did• not call in. The only reason given for this discharge was absenteeism. Nathan Hayes had been employed by Harris for about 2 months when he was dis- charged. Hayes testified that he stayed home for J'a couple of days" because his wife was having a baby and that when he reported for work on Friday, November 1, he was discharged by Cole, who told him he thought he had quit. Hayes stated he had sent word by Eddie Gray on Wednesday night to Cole that he would be absent Hayes did not sign a union card or engage in any union activity. Respondent's records 22 and the testimony indicate Hayes was absent October 24, 25, 28, 29, 30, 31, and November 1. This would establish 7 successive working days of unexplained absence. Although Hayes denied being absent the entire week of his discharge I credit the records. The only reason given for his discharge was his absenteeism. 3. Independent violations of Section 8(a)(1) The complaint alleges five independent allegations of Section 8(a)(1). The first three of these refer to interrogation on the part of three minor supervisors 23 directed, in each case, to an individual employee. Since the General Counsel has submitted neither oral argument nor a brief there is no means of knowing on which testimony he relies to support these allegations nor which employees were allegedly unlaw- fully interrogated for there is testimony as to five incidents which might constitute interrogation. One of the three incidents presumably relates to the interrogation of Leroy Perkins by Foreman Young (supra). Norman Greaux, an employee in mix- ing, testified that Foreman Cole asked him, the day before he signed a card (fixed as October 30), if anyone had approached him and asked him to sign a card. He told 10 Denied by Cole. 17 Respondent's Exhibit No. 7. 10 Denied by Cole 19 Mrs. Williams was not called as a witness 20 Denied by Cole Respondent's Exhibit No. 9. 22 Respondent's Exhibit No. 8. 21 These were Arlie Cole, Tommy Young, and Bertha Taylor. Although Respondent has denied their supervisory status it is clear from the record that each was in charge of a separate department of the plant, responsibly directed the employees in his department, and was in turn responsible to Factory Superintendent Chunn. Each was paid on a salary basis. In view of this and other testimony I find Cole, Young, and Taylor, were supervisors within the meaning of Section 2(11) of the Act. , 775-692-65-vol. 150-7 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cole no one had and that ended the conversation. On cross-examination Greaux testified that at a later date Cole asked him if he had signed a card and asked him about the Union. Robert Reedy testified that he reported late for work on Wednesday, October 30, and met Young and Taylor in the south overflow. According to Reedy he explained to Young why he was late and that Taylor asked him what he thought about the Union and that he just shrugged his shoulders 24 In addition to these three incidents, which I assume are the ones referred to in the complaint, Eddie Gray testified that Arlie Cole asked him, on the day he signed a card, if he had signed a card and what he knew about the Union, and James Williams testified that during the week the employees were laid off Cole asked him if he had heard about a union trying to get started. Each of these allegations was denied by the supervisor involved. Paragraph 5(d) of the complaint alleges that the Respondent, through Arlie Cole, engaged in unlawful surveillance of employees' union activity on or about October 29. From testimony which is largely undisputed it is found that at quitting time on October 29 Arlie Cole was on the roof of the Harris plant. The employees' parking lot was adjacent, to the plant and could be observed from the position taken by Cole. Cole testified, and I credit him, that he had gone to the roof to check the pitch pockets for water after a rain. Among the employees who left the building and went to the parking lot at this time were Eleuterio and Lowell Breeding. According to Eleuterio, Breeding had promised to sign a union card and Eleuterio asked him if he wanted to sign then. Breeding agreed and signed a card for Eleuterio on the bumper of a car on the lot 25 About this time another employee started calling, "Birdie on the roof, birdie on the roof," and Eleuterio looked up and saw Cole. Cole was squatting and looking down and Eleuterio told him to watch out, he might fall off. This is the sole testimony offered by the General Counsel to support paragraph 5(d) of the complaint. Paragraph 5(e) of the complaint alleges that on or about October 30 Foreman Young promulgated a "no talking" rule to prevent employees from dis- cussing and soliciting for the Union. Apart from the novel contention that a fore- man cannot put a stop to talking on working time if a union is the topic of discussion, the incidents upon which the General Counsel relies to establish that such a rule was actually established are so sterile of significance that their mere recital should em- barrass the General Counsel. Lee Perkins testified that on October 30 Foreman Young saw him talking to Eleuterio, Reedy, and Bill and told them to "cut out the bull-t." Eleuterio testified 26 that on October 30 he was talking to Reedy in the shipping room (it is not clear whether this was on lunch break or working time) and Young, who was about 15 feet away, made a "yak-yak" motion with his hands in front of his mouth. This summarizes the evidence offered to support paragraph 8(e). B. Conclusions 1. Violations of Section 8(a)(3) a. Company knowledge I have previously credited the testimony of Catena that arrangements had been completed to provide a paint supplier for Kress 'on Monday, October 28; that on Tuesday Catena instructed Chunn not to manufacture any more paint for Kress; and that on Wednesday he instructed Lawrence to tell Chunn to lay off 10 men without naming the men or the departments. On each of these days Catena was in New York. On this testimony I accept the fact that the motive for the layoff was purely economic. Under these circumstances the General Counsel cannot, and I do not be- - Reedy also testified that Taylor remarked that she did not know how they would get out the paint "if there was a layoff about the union " Later the witness equivocated as to this remark and stated, "She didn't come right out and say it," but that was what he thought she "was leading up to." This testimony, obviously intended to be' self-serving, I find too ambiguous for consideration' a This is the only testimony, except for corroborative testimony by Reedy, that Breeding, retained as a tinter in place of Shrewsbury, signed a card. It is most unusual that this card was not offered with the cards of the other employees by the General Counsel. 26 Neither Eleuterio nor Reedy testified in support of Perkins' testimony. HARRIS PAINT COMPANY, ETC. 81 lieve he claims to,27 substitute his judgment for that of management as to the number of employees to be laid off nor the departments from which they were to be selected Violation of Section 8(a)(3) can be found only if it can be established that em- ployees selected for layoff were selected on the basis of Respondent's knowledge or suspicion of their union membership, sympathy, or activity. One of the difficulties in ascertaining the facts is the confusion and contradiction in the testimony of the General Counsel's witnesses and the fact that much of it was elicited in response to leading questions.28 While some union activity and distribu- tion of cards took place on Monday, October 28, the greatest activity appears to have occurred on Tuesday and Wednesday and the activity consisted almost entirely of the distribution and signing of cards. While there is testimony that a great deal of this activity took place in the plant it was, on direction of Hughes, done surreptitiously at lunch breaks and in the restrooms. No witness testified that any supervisor saw him sign a card and those who were questioned affirmatively stated that no supervisor was present when he signed. Eleuterio testified that he told Foreman Young, in the presence of Lee Perkins, on Tuesday afternoon in the course of a conversation re- lated to the quantity of work at Harris that the employees were signing cards for the Union. Young denied the conversation and Perkins, although called by the General Counsel, was not asked to corroborate this. Unlike most of the witnesses, I have a recollection of Eleuterio whom I have previously described as hostile to the Respond- ent and voluble in testifying. Apart from the contradictions in his testimony, the conflicts with that of other witnesses, the fact that there was no reason for such di- vulgence to Young (with whom he had not been on speaking terms), and the failure of a friendly witness to corroborate such important testimony, I would discredit Eleuterio on demeanor. Assuming, however, that Supervisors Young, Cole, and Taylor became aware of union activity within the plant on either Tuesday or Wednesday, it is then necessary to impose upon this assumption a superstructure of inferences. It must then be in- ferred that the supervisors learned not only of union activity but knew or suspected the identity of the participants; that they communicated this knowledge to Chunn before the selections were made; and that Chunn's selections were based on the in- formation received. There is not an iota of proof to support any of these successive inferences and there is sworn testimony in denial of each. Chunn, a credible wit- ness,29 denied that he knew of union activity at the time the layoffs took place; yet, if the General Counsel has any case, I must arbitrarily discredit Chunn without supporting grounds of demeanor, contradictory testimony, or extrinsic evidence. b. The individuals selected While this case could be dismissed without further ado on the grounds of insuffi- cient evidence of company knowledge, the reasons given by Chunn for selecting the departments and the individuals -warrant examination since of the 10 employees laid off on October 31, 8 had signed union cards. Chunn testified that he selected the shipping department for the reason that'its employees were the least skilled and em- ployees from other departments could be drafted to replace them when occasion re- quired Of the five employees selected all had signed cards, a fact which creates suspicion 30 The payroll for the week ending October 31 31 reveals that 11 employees, 21 In the absence of a brief and oral argument some speculation must be made as to the theory of the General Counsel's case. . 28 While objections to leading questions were frequently sustained the damage has been done when the question has been asked for the clue has then been given and the question, rephrased, receives the expectant answer In other cases the General Counsel utilized leading questions through routine procedure of "exhausting the witness' recollection (This does not imply that the General Counsel alone was guilty of leading witnesses ) 29 While there is testimony that Chunn told an employee that Catena - and not he had selected the individuals to be terminated, this is a harmless act of self-exculpation rather than a meaningful untruth. The responsibility for selection is not at issue 30 Cf. F. W. Woolworth Company, 25 NLRB 1362, where the Board held that, when com- pany knowledge of the identity of union adherents had been established, a marked varia- tion in the number of union members laid off as against nonunion members created an inference of discrimination 81 General Counsel's Exhibit No. 52. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclusive of the drivers, were employed in shipping. These, together with their dates of employment and classification, were: Employee Date of employment Classification James A. Meldon-------------------------- 4/27/59 Order picker-will-call department Owen A. Bush---------------------------- 9/18/62 Order picker. Glen Griffith------------------------------ 10/30/62 Warehouse order picker. Lee L. Perkins ---------------------------- 1/18/60 Do. Rioliard Russotto------------------------- 4/29/55 Warehouse order picker (night). Cecil T. Bradley-------------------------- 8/21/61 Puts up stock. Jerry Donnel------------------------------ 9/9/63 Do. Vincent Eleuteno------------------------- 9/25/62 Order picker. Robert Reedy, Jr-------------------------- 8/9/62 Do. Noel Thomas ------------------------------ 8/15/62 Order picker-McCrory. Joseph L Biickman----------------------- 7/30/63 Puts up stock. A check of the cards submitted by the General Counsel against the payroll of Octo- ber 31 discloses that of the 11 employees all had signed cards except Meldon, Russotto, and Bush and that all three were retained. Meldon and Russotto, however, not only had special classifications (Meldon was the only "will call" order picker and worked in the service center and Russotto was the only night order picker) but they had substantial seniority over the other employees in shipping 32 (Perkins, third in seniority, was not laid off although he had signed a card.) . It is therefore the failure to terminate Bush and retain one of the union shippers which alone can establish a discriminatory motive and alone I find it insufficient, particularly as there is nothing in the record to indicate that Chunn knew that Bush had not signed a card nor to indicate that he knew the other employees had. Bradley, who had more plantwide seniority than Bush, was specifically selected because he had trouble in the mixing department and had only recently transferred to shipping. Since the Board has yet to hold that an employer must terminate nonunion employees before union em- ployees to rebut an inference of discrimination I find no support for the charge that the layoffs in shipping were unlawfully motivated. As to the labelers, Chunn testified that Mrs. Bradley and Mrs. Thomas were ter- minated because the Respondent had, from past experience, determined that it was sound policy to lay off a wife if it became necessary to lay off or discharge the hus- band and vice versa. Whether or not one agrees, such a policy is not discriminatory within the meaning of the Act. Pugh was laid off because she was junior in point of resumed service to the other labelers. Her two prior voluntary quittings were also taken into account. Perkins, employed for 16 years, had not signed a card and was known as a com- pany man. The General Counsel alleges he was selected as a reprisal against his son who had signed a card. The General Counsel offered no evidence to support so tenuous a conclusion and I am unwilling to accept a naked assertion of fact as a sub- stitute for proof. Chunn's reasons for selecting Perkins have been set forth at length, supra, and I find them plausible. If it is the contention of the General Counsel, as it appears to be, that Washington should have been discharged and Perkins retained it must be noted that Washington signed a card while Perkins did not. Chunn decided to select one tinter for layoff and picked Shrewsbury over Breed- ing, who was junior in term of service. Again, however, Shrewsbury had not signed while Breeding had 33 and the General Counsel's theory of discrimination suffers frustration. The General Counsel presumably relies on testimony that Shrewsbury distributed cards and participated in union activity to establish Respondent's motiva- tion. However, Shrewsbury's own testimony, supra, belittles his union activity. Again the General Counsel is playing both ends against the middle for had the Re- spondent laid off Breeding instead of Shrewsbury it would have been alleged that it 32 While Respondent had no seniority policy as to layoffs (Catena testified that there had been no prior economic layoffs at Harris), seniority is always a factor which merits consideration 23 Breeding signed on the parking lot under alleged surveillance by Cole HARRIS PAINT COMPANY, ETC. 83 was because he had signed a union card and Shrewsbury had not. The Employer is trapped here regardless of his choice. I accept the Employer's reasons for selecting Shrewsbury as being nondiscriminatory.34 This leaves Trull. Chunn testified that when the Houston run, which serviced only the Kress account, was discontinued' a driver could be released. Chunn determined to keep the over-the-road drivers and release one of the other drivers. Trull and five other drivers were classified as semitruck drivers, over-the-road. Trull had previ- ously quit the service of the Respondent and was junior in point of resumed service to the other drivers except for John Curry. The testimony of Chunn establishes that Curry left the employment of Harris without notice but does not indicate whether or not it was before or after Trull was laid off.35 Curry did, however, sign a card on October 29 (General Counsel's Exhibit No. 17) so that in any event it would be difficult to find discrimination against Trull in favor of Curry based on union activity. c. The discharges for cause On Friday, November 1, Gray,,Williams, and Hayes were discharged for absentee- ism. Only Gray had signed a union card and neither Williams nor Hayes had en- gaged in any union activity. Gray had signed his card in the restroom and there is no evidence that any supervisor knew or learned of his signing. Williams, however, testified that after his discharge on Friday he returned on Monday "to straighten it out" and was told by Cole that "they" understood he was mixed up "with the union business along with Hayes and Gray" and nothing could be done, a statement denied by Cole. Since Cole had good and sufficient reason to discharge all three, had no reason to suspect either Williams or Hayes of union sympathy, and had no reason to give Williams such a self-incriminatory reason, I find this testimony was contrived by Williams to support the amendment to the complaint.36 The record of absenteeism of these employees has been set forth, supra, and need not be repeated here. Although it is not required that an employer justify discharges merely because a charge of discrimination has been made, I believe the records justify the action taken.37 d. Summary When economic justification for a reduction in personnel has been established it is not enough that the terminations coincide with the inception of union organization and that a majority of the employees terminated had signed union cards. In the absence of any direct evidence of a discriminatory motive the following factors must be considered: (1) Prior record of hostility on the part of the employer toward the union. (2) Evidence of company knowledge or grounds for suspicion of the identity of the union adherents.38 (3) Evidence from which it may be inferred that the reasons given for the selec- tion of either the departments to be affected or the individuals chosen were fictitious and asserted to conceal a discriminatory motive. In this case there is lack of any evidence to support either (1) or (2) and as to (3) the reasons given by Chunn have prima facie validity and have not been rebutted by other evidence. This is that unusual case brought under Section 8(a)(1) and (3) of the Act in which a Trial Examiner's findings are free from serious misgivings. 34 Chunn testified that he later recommended Shrewsbury for a job with another em- ployer and that Shrewsbury was accepted 3v The termination date of Curry is illegible on the payroll sheet (General Counsel's Exhibit No. 52) and furthermore it is not known whether the date shown is dated back to the beginning of his absence or to a date when the Respondent determined he had quit. 3o The credibility of Gray and Williams with respect to alleged interrogation is dis- cussed infra. 37 This case may be distinguished from the Board's recent decision in Family Laundry d Dry Cleaning, Inc., 147 NLRB 251. In that case a discharged employee had been ab- sent 4 days without notice but the record also indicated that she had been a leader in union activity and that this was known to the company 38 Cf Firestone Steel Products, 147 NLRB 4G2, where the Trial Examiner made no find- ing of company knowledge but found a violation of Section 8(a) (3) notwithstanding The Board, in affirming, made such a finding but the facts upon which its finding was made are left to surmise. 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Violations of Section 8(a)(1) a. Interrogation The interrogation alleged herein presents the Usual routine issue of credibility since each allegation has been denied by the supervisor in question. While I do not consider the interrogation of Williams and Gray by Foreman Cole to have been the interrogation alleged in paragraph 5 of the complaint I think a finding must be made in contemplation of a holding by the Board that the matter was fully litigated at the hearing. On the basis of notes taken at the hearing I re- solve this issue in favor of Cole and against Williams and Gray. Gray and Williams appeared but briefly at the hearing and were among some 28 witnesses heard last February and I have, no present, refreshed recollection of their demeanor on the stand. In addition to the notes I have considered the very positive testimony of Gray that he worked on Tuesday, October 29, as against the Respondent's records show- ing him absent on that day as casting reflection on both his credibility and recollec- tion. Again with Williams there is conflict between his testimony that he worked on Wednesday and the record of his absence. (I have previously discredited Williams' testimony as to an alleged conversation with Cole on the following Monday.) As to those incidents upon which the General Counsel does rely, i.e., the interroga- tion of Perkins, Greaux, and Reedy, I find it unnecessary to resolve the conflicts in the testimony. The testimony of the witnesses does not disclose that the interroga- tion, if it in fact occurred, occurred in any context of coercion and restraint. Their testimony is that each was interrogated in a working area by a minor supervisor (Greaux and Perkins were interrogated by their immediate supervisors) and the interrogation was unaccompanied by threats of reprisal 39 In fact the record is bare of evidence of Respondent's hostility or animus toward the Union at the time the interrogation took place 4° In Bonnie Bourne d%bla Bourne Co. v. N L.R.B., 332 F. 2d 47 (C.A. 2), the court, reversing the Board's finding that the interrogation which took place was un- lawful, referred to certain criteria to be employed in determining the circumstances under which interrogation became unlawful. These included: (1) The background, that is, Is there a history of employer hostility and discrimination? (2) The nature of the information sought, e.g., Did the interrogator appear to be seeking information on which to take action against individual employees? (3) The identity of the questioner, i.e., How high was he in the company hierarchy? (4) Place and method of interrogation, e.g., Was employee called from work to the boss' office? Was there an atmosphere of "unnatural formality"? - (5) Truthfulness of the reply. Applying these standards to the instant case, (1), (2), and (4) must be answered in the negative, and as to (3) the questioners occupied the lowest rank in the super- visory hierarchy, e.g., they were the immediate supervisors of the rank-and-file em- ployees. As to (5), Greaux denied signing a card and Perkins and Reedy gave evasive answers. All of the standards suggested by the court, it might be noted, have at one time or another been used by the Board in evaluating the character of interrogation. It is unnecessary, however, to rely upon the Bourne decision for the language used by the dissenting minority in Blue Flash Express, Inc., 109 NLRB 591, seems sufficient to dispose of the issue.41 The minority, while disagreeing that the interrogation therein did not constitute coercion and restraint, stated, page 597: There are, of course, instances of interrogation which can properly be regarded as isolated, casual, and too inconsequential -in their impact to constitute a viola- tion of the Act or to warrant a Board remedy. 19 While there is an implied threat in Young's alleged remark to Perkins that it was a poor time to be starting a union and that things might get rough when the work slacked off at Christmastime I do not consider this sufficient to establish that the interrogation was coercive. 40 There is testimony by one employee that at the time he was hired some 2 or 3 years prior to the time of the layoffs he was warned by Cole not to engage in union activity This testimony is both too remote in time and meager in substance to demonstrate hos- tility toward the Union on the part of the Respondent or to establish its policy toward unions. 11 In Blue Flash each of the employees interrogated denied signing a card DEL-MONT CONSTRUCTION COMPANY 85 I find the circumstances under which the interrogation is alleged to have taken place meets this exclusion 42 b. The "no talking rule" and the alleged surveillance The contentions of the General Counsel with respect to paragraphs 5(d) and (e) of the complaint and the evidence to support the allegations are too absurd to warrant comment 43 As counsel for the Respondent suggests in his brief, if Cole was re- quired to leave the roof then the president of any company remains in his office at the risk of committing an unfair labor practice if his secretary chooses to sign a card there. As the evidence in this and other cases shows, a frequent locale for the sign- ing of cards is the employees' restroom and it would follow that should a foreman happen to be using the facilities when a signing was taking place a posthaste de- parture would be required regardless of the urgency of the visit or the immediate stage of operations. It is recommended that the complaint, insofar as it alleges violation of Section 8(a)(1), be dismissed. Upon the basis of the foregoing findings of fact, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Local 79 is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety. 49 See also Mrs. Dora S. Lanthier et at., d/b/a Lanthier Machine Works, 116 NLRB 1029, 1037; N.L.R.B. v. Blue Bell, Inc., 219 F. 2d 796 (C.A. 5) ; Max Sax d/b/a Container Manufacturing Company v. N.L.R.B., 171 F. 2d 769 (C.A. 7) ; N.L.R.B. v. Tennessee Coach Company, 191 F. 2d 546 (C.A. 6) ; N.L.R.B. v. J. D. McCatron, et al., d/b/a Price Valley Lumber Co., 216 F. 2d 212 (C.A. 9) ; N.L.R.B. v. Peerless Products, Inc., 264 F. 2d 769 (C.A. 7) ; N.L.R.B. v. T. A. Moaahey, at al., d/b/a Columbus Marble Works, 233 F. 2d 406 (C.A. 5). 41 The Trial Examiner stated during the examination of a witness under the surveillance allegation that he would grant a motion to strike paragraph 5(d) at the conclusion of the General Counsel's case. For reasons which are obvious the motion was not made. Del-Mont Construction Company and Local 542, International Union of Operating Engineers, AFL-CIO, Petitioner Del-Mont Construction Company and Local 57, Laborers District Council of Philadelphia and Vicinity, AFL-CIO, Petitioner. Cases Nos. 4-RC-5394 and 4-RC-5393. December 14, 1964 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9(c) of the Na- tional Labor Relations Act, a consolidated hearing was held before Hearing Officer Robert H. Levan. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 150 NLRB No. 9.