156 NLRB 22
Southland Paint Co., Inc.
22
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in Local 1504, Retail Clerks Interna-
tional Association, AFL-CIO, or in any other labor organization, by discharging
employees, or in any like or related manner interfere with , restrain, or coerce
employees in the exercise of their rights to self-organization , to form, join, or
assist said Local 1504, Retail Clerks International Association , AFL-CIO, or
any other labor organization , to bargain collectively through representatives of
their own choosing, or to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection , or to refrain from any
and all such activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8 ( a) (3) of the Act.
DOMINICK's FINER FOODS, INC,
Employer.
Dated- ------------------ By----------- - -------------------------------
(Representative)
(Title)
NOTE.-We will notify Helen T. Avonts if presently serving in the Armed Forces
of the United States of her right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act of
1948, as amended, after discharge from the Armed Forces.
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.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office , 881 U S.
Courthouse and Federal Office Building, 291 South Dearborn Street, Chicago, Illinois,
Telephone No. 828-7597.
Southland Paint Company, Inc. and Oil, Chemical and Atomic
Workers International Union , AFL-CIO.
Cases Nos. 16-CA-
2013,16-CA-20,04,16-CA-20413, 16-CA-1103,16-CA.-2130,16-CF1-
2101, and 16-CA-1215.
December 15, 1965
DECISION AND ORDER
On August 2, 1965, Trial Examiner William W. Kapell issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefroin and take
certain affirmative action, as set forth in the attached Trial Examiner's
Decision.
Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
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 exceptions and the brief, and the entire record
156 NLRB No. 2.
SOUTHLAND PAINT COMPANY, INC.
23
in this case, and hereby adopts the findings,' conclusions,2 and recom-
mendations of the Trial Examiner, except as modified herein.
The Trial Examiner found, contrary to the contention of the Re-
spondent, and we agree with the Trial Examiner, that a production
and maintenance unit, excluding Respondent's truckdrivers, is ap-
propriate in this case. It is clear that the Respondent's refusal to
bargain with the Union, which represented a majority of its em-
ployees in the appropriate unit, was not motivated by a good-faith
doubt as to either the Union's majority status or the appropriateness
of the unit.
The Trial Examiner's conclusion, that Respondent's re-
fusal to recognize and bargain with the Union was based on a desire
to gain time in which to undermine the Union and was in violation of
Section 8(a) (5) of the Act, is fully supported by the record.
More-
over, it is now well established that a good-faith but erroneous doubt
as to the appropriateness of the unit is not a defense to an otherwise
meritorious charge of refusal to bargain.
United Aircraft Corpora-
tion (Hamilton Standard Division) v. N.L.R.B., 333 F. 2d 819 (C.A.
2), cert. denied 380 U.S. 910; Florence Printing Co., 145 NLRB 141,
enfd. 333 F. 2d 289, 291 (C.A. 4).
Cf. Primrose Super Market of
Salem, Inc., 148 NLRB 610, 615, enfd. 58 LRRM 2863 (C.A. 1), issued
April 7,1965, cert. denied 382 U.S. 830.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent, Southland Paint Company,
Inc., Gainesville, Texas, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order, as so modified :
The notice in the Trial Examiner's Decision marked "Appendix"
is hereby modified by adding the following new paragraph immedi-
ately below the signature line at the bottom of the Appendix :
NoTE.-'"Te will notify Kenneth J. Thurman, if presently serv-
ing in the Armed Forces of the United States, of his right to full
1 In connection with the Trial Eraminer 's reference to Larrance Tank Corporation, 94
NLRB 352, see Northern California District Council of Hodcarriers and Common Laborers
of America, AFL-CIO, et at.
(Joseph's Landscaping Service ), 154 NLRB 1384, wherein
the doctrine of Larrance Tank was overruled in part.
2 The Respondent contends that the Trial Examiner improperly discredited the testimony
of all of its witnesses .
It is the Board 's
established policy not to overrule a Trial
Examiner's resolutions as to credibility unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect .
Such a conclusion is not warranted here.
Standard Dry Wall Products, Inc., 91 NLRB 544, 545 , enfd. 188 F . 2d 362 (C.A. 3).
24
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act
of 1948, as amended, after discharge from the Armed Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges 1 filed by Oil, Chemical and Atomic Workers International Union,
AFL-CIO, herein called the Union, the Regional Director for Region 16 of the Na-
tional Labor Relations Board, herein called the Board, issued complaints 2 based
upon the foregoing charges against Southland Paint Co., Inc., herein referred to as
Respondent, alleging violations of Section 8(a)(1), (3), and (5) and breach of a
settlement agreement pertaining to alleged violations of Section 8 (a) (1) in Case No.
16-CA-2013, previously entered into on March 24.
Respondent's answer, in effect,
denied the commission of any unfair labor practices.
Thereafter, following a hearing
held before Trial Examiner William W. Kapell in the above matters on October 6,
7, 8, and 9 during which General Counsel presented his case and rested, the hearing
was continued, first to November 17 and then to January 19, 1965, due to the unavail-
ability of one of Respondent's witnesses because of illness.
On December 21, 1964,
the Regional Director issued a complaint 3 against Respondent in Case No. 16-CA-
2201, alleging further violations of Section 8(a)(1) and (3) and also Section 8(a)
(4).
On January 15, 1965, the Regional Director issued another complaint 4
against Respondent in Case No. 16-CA-2215, alleging additional violations of Sec-
tion 8(a)(1) and (3).
Respondent in answers to these two complaints, in effect,
denied the commission of any unfair labor practices.
Thereafter, pursuant to Gen-
eral Counsel's motions to consolidate Cases Nos. 16-CA-2201 and 16-CA-2215
for hearing with the prior cases herein, orders were entered consolidating said cases
for hearing.
Upon resumption of the hearing on January 19, 1965, General Counsel's motion
to reopen his case for the purpose of adducing evidence in support of Cases Nos.
16-CA-2201 and 16-CA-2215 was granted and the hearing thereafter continued
until concluded on January 21, 1965, when all parties rested.5
l In Case No. 16-CA-2013, the original charge and the first amended charge were filed
on March 12 and May 1, 1964, respectively; in Case No. 16-CA-2024, the original charge
and first amended charge were filed on April 8 and May 1 , 1964, respectively ; in Case
No. 16-CA-2043 the charge was filed on May 18, 1964; In Case No. 16-CA-2103 the
charge was filed on August 11, 1964; and in Case No. 16-CA-2139 the charge was filed
on September 22, 1964.
All dates hereinafter refer to the year 1964 unless otherwise
indicated.
2A consolidated complaint in Cases Nos. 16-CA-2013 and 16-CA-2024 was issued on
May 5, 1964; an amended consolidated complaint in Cases Nos. 16-CA-2013, 16-CA-2024,
and 16-CA-2043 was issued on June 17, 1964; a second amended consolidated complaint
in Cases Nos. 16-CA-2013, 16-CA-2024, 16-CA-2043, and 16-CA-2103 was issued on
September 10, 1964 ; and a third amended consolidated complaint in Cases Nos . 16-CA-
2013, 16-CA-2024, 16-CA-2043, 16-CA-2103, and 16-CA-2139 was issued on Septem-
ber 29, 1964.
3 Based upon an original charge and a first amended charge filed by the Union on
December 3 and 14, respectively.
4 Based upon a charge filed by the Union on December 23.
5 Throughout the within proceedings and beginning in June , Respondent requested con-
tinuances in the hearing as scheduled, based upon the alleged inability of R. A. Davis, Sr.,
the chairman of its board of directors
( hereinafter referred to as Davis , Senior), to appear
and testify because of his health. Several of these requests were granted to accord with
the expressed medical expectations that he would be able to appear and testify on specified
future dates.
When Respondent moved on November 7 to further continue the hearing
from November 17 to January 19 , 1965, because of the continued illness of Davis, Senior,
I issued an Order on November 12, continuing the hearing to January 19, 1965, and
providing specifically that no further continuances would be granted based upon the health
of Davis, Senior.
Thereafter, in its brief submitted on or about April 13, 1965, Respond-
ent proposed by way of a motion that in the event I would "entertain any thought of
reopening the record for the purpose of producing R. A. Davis, Sr.," it would immediately
ascertain his availability as a witness and advise me whether or not there was any pos-
SOUTHLAND PAINT COMPANY, INC.
25
All parties were represented at the hearings and were afforded full opportunity
to be heard, to introduce relevant evidence, to present oral argument, and to file
briefs.
General Counsel and Respondent filed able and comprehensive briefs which
have been duly considered.
Upon consideration of the entire record 6 in the cases, and from my observation
of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and at all times material herein has been, a corporation duly orga-
nized under and existing by virtue of the laws of the State of Texas, having its principal
office and place of business in Gainesville, Texas, where it is engaged in the manu-
facture of paint and allied products.
During the past 12 months, which period is
r
representative of all times material herein, Respondent manufactured, sold, and
shipped from its Gainesville plant, finished products valued in excess of $50,000, to
points outside the State of Texas I find that at all times material herein Respond-
ent has been an employer engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and at all times material herein has been a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The settlement agreement
Following the filing of the original charge in Case No 16-CA-2013, alleging inter-
rogation of Respondent's employees concerning their union activities, surveillance of
union meetings, threats to close the plant, and formation of an employee committee
to adjust grievances, an informal settlement was entered into between Respondent
and the Union on March 19, which was approved by the Regional Director on
March 24.
The settlement agreement provided that Respondent will comply with
the terms and provisions of a notice to be posted by it stating that it would refrain
from (1) interrogating its employees concerning their union activities, (2) keeping
union meetings and activities under surveillance, (3) threatening employees with the
discontinuance of any plant operations 'because of their union activities, and (4) in
any like or related manner interfering with, restraining, or coercing its employees
in the exercise of rights guaranteed by Section 7 of the Act.
Thereafter, following
the filing of a new charge by the Union on April 6 in Case No. 16-CA-2024 alleging
that Respondent committed additional unfair labor practices, the Regional Director
conducted an investigation therein from which he concluded that the new charge had
merit, and that Respondent's conduct was violative of the expressed terms of the
previously approved informal settlement agreement.
Pursuant thereto the Regional
Director by letter of May 4 advised Respondent that he had set aside the settlement
agreement, and that a consolidated complaint would issue in Cases Nos. 16-CA-
2013 and 16-CA-2024.
sibility of him testifying at this time or at any time In the future In view of the many
continuances previously granted and the continued uncertainty of having Davis, Senior,
appear and testify, this motion was denied by an order issued on April 15, 1905. Apropos
the alleged unavailability of Davis, Senior, to testify because of his health, It is significant
to note, as appears infra, that General Counsel produced evidence indicating that lie was
actually in the plant at various times during working hours in October and November
when it is claimed his health precluded him from appearing and testifying at the hearing
Cf. V.L.R B v Somerville Cream Company, Inc, 199 F 2d 257 (C.A 1). Furthermore,
in related cases-Seathland Paint Company, Cases Nos. 16-CA-2237 and 16-CA-227S-
involving the same parties, which were also heard by me on May 17 and 18, 1965,
Respondent also moved for a continuance on the ground that Davis, Senior, was unable
to testify because of his health, despite assurances given at the close of the instant cases
that he probably would be able to testify in 60 to 90 days
°After the hearing was concluded, the following motions were made: (1) a joint motion
dated April 13, 1965, to admit my telegraphic order dated November 15 in evidence as
General Counsel's Exhibit No. 1(qq) , (2) General Counsel's unopposed motion to correct
the record dated April 7, 1965, and (3) Respondent's motion (opposed by General Coun-
sel) to reopen the record to include a certificate of death of Robert Alvin Davis (Davis,
Senior).
Said motions are hereby granted and the record is accordingly supplemented to
include them.
26
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is well established that where it appears that an employer has failed to comply
with a settlement agreement or has engaged in additional unfair labot practices
since the settlement, the Regional Director may unilaterally set aside the settlement
agreement and proceed with a complaint which includes both pre- and post-settlement
violations.
The Wallace Corporation v. N.L R.B., 323 U.S. 248, 253-255; Inter-
national Brotherhood of Teamsters, etc. (Clark Bios. Transfer Company), 116 NLRB
1891, 1898-1899; Baltimore Luggage Company, 126 NLRB 1204, 1208
However,
"It is the Board's established practice not to consider as evidence of unfair labor
practices conduct of a Respondent antedating a settlement agreement, unless the
Respondent has failed to comply with the settlement agreement or has engaged in
independent unfair labor practices since the settlement
Moreover, in determining
whether such independent unfair labor practices have occurred after the settlement,
the Board will not appraise a Respondent's postsettlement conduct in the light of its
conduct prior to the settlement."
Larrance Tank Corporation, 94 NLRB 352, 353
In conformance with this policy, evidence of Respondent's alleged postsettlement
violations was received and appraised before considering alleged presettlement vio-
lations, and deteimined, as appears infra, to constitute a prima facie case of substan-
tial violations by Respondent of the Act.
Consequently, the alleged presettlement
violations as well as those postdating the settlement must be considered and resolved
In view of the multiplicity and sequence of the violations alleged and considered
herein, they will be discussed and resolved herein without separating them into pre-
and post-settlement violations.
B. The issues
The questions presented herein are as follows-
1. Whether employees Cleamon E Smith, Leon Brinkly, Floyd Bishop, John R.
Smith, Joe Buck, and J. R Hiser were supervisors within the meaning of the Act.
2
Whether Respondent violated Section 8(a)(3) by discriminatorily discharging
employees A. C. Holder, Cleamon E. Smith and Kenneth J Thurman, suspending
employee Jim Pat Smith for 1 week: and demoting John R Smith
3. Whether Respondent violated Section 8(a) (4) by discriminatorily demoting
John R Smith because he testified adversely to Respondent's interests in the hearing
herein and gave an affidavit to General Counsel, which was used to oppose Respond-
ent's motion for a continuance of the hearing herein.
4. Whether Respondent interfered with, restrained, or coerced its employees in
violation of Section 8(a)(1) by engaging in conduct such as unlawfully interrogat-
ing employees concerning their union activities; creatnig an impiession of, and
engaging in, surveillance of their union activities, making threats of economic re-
prisals to employees if they continued to engage in union activities, suppoi ted the
Union, or if the Union became their bargaining representative; promising economic
benefits to their employees if they discontinued their membership in or support of
the Union; granting a general wage increase to employees during a union organiza-
tional campaign to influence their union sympathies; assisting and/or soliciting
employees to withdraw their union authorization cards; refusing to ever sign a union
contract; demoting a supervisor because he gave an affidavit to General Counsel,
which was used in the within proceeding; and requesting an employee to give false
testimony favorable to Respondent at the hearing herein and urging him to solicit
other employees to do so.
5. Whether Respondent violated Section 8(a) (5) by refusing on or after March 24
to recognize and bargain with the Union as the exclusive bargaining representative
for an appropriate unit of its employees.
C. Respondent's supervisor y Net archy
Pursuant to the Board's request, Respondent prepared a list of its employees on
its payroll on March 24.7
The list, which was admitted in evidence as General
Counsel's Exhibit No. 7, indicates that Respondent had 61 employees (exclusive of
corporate officers) who were classified according to the nature and station of their
work in the following categories- 6 office employees; 2 laboratory technicians, con-
sisting of Cleamon E. Smith and Max Love; 12 drivers, including Billy Joe Jarrell-
supervisor-truck; and 41 other employees in the production and maintenance
departments, including Floyd Bishop, supervisor-aerosol department; Leon Brinkly,
supervisor-thinner department; Joe Buck, supervisor-paint department: Rudy
Dieter, supervisor-paint packing department; J. R. Hiser, supervisor-unloading
department; and John R. Smith, supervisor-shipping department.
7 The date on which the Union allegedly requested recognition and bargaining
SOUTHLAND PAINT COMPANY, INC.
27
Respondent contends that those individuals listed above as supervisors were, in
fact, supervisors, and that Cleamon E. Smith was also a supervisor as well as a tech-
nical employee.
General Counsel admits that Dieter and Jarrell were supervisors
within the meaning of the Act, makes no contention with respect to Buck, because
his status was not clearly established by the evidence and is not necessary for the
purposes of this proceeding, and contends that Cleamon E. Smith, Bishop, John R.
Smith, Hiser, and Leon Brinkly were not supervisors .8
With respect to the authority of the alleged supervisors, R. A. Davis, Jr.,9 testified
that ordinarily they were required to obtain approval of one of the Davises or
Charles E. Weed 10 to assign overtime, except on some occasions, as when these
officers were unavailable, in which event they used their own discretion in assigning
overtime, and that they also had the authority to grant time off to employees, although
they normally obtained his approval before granting it. It also is significant to note,
as appears infra, that if General Counsel's contentions were upheld with respect to
the status of the individuals in issue, there would be a disproportionate number of
employees working in different departments and at different work stations under
the immediate supervision of Davis, Junior.
1. The status of Cleamon E. Smith
Cleamon E. Smith began working for Respondent in March 1959 as a paint packer
at $1 an hour after being hired by Davis, Junior.
A week or two later he received
a 10-cent-an-hour wage increase, and a month thereafter another wage increase of
15 cents an hour.
About 6 months later he was promoted to the job of paint shader
at $1.30 or $1.40 an hour. In the latter part of 1959, he became foreman over the
paint production department and was paid $1.75 or $1.80 an hour until about Sep-
tember 1961, when he was relieved of his foreman's job at his own request and be-
came a lab technician at a weekly salary of $125.
He concededly held certain fore-
man responsibilities over the production department from about September 1961
until the latter part of October 1961, when these responsibilities were transferred
to employee Ed Porter by Davis, Junior, in a clarification of responsibilities and
duties between Porter and Smith.
Thereafter, Smith's duties were those of a quality
control man in charge of the quality of paints and varnishes, which entailed checking
each batch of paint to see that it met the standards. In July or August 1963, Max
Love, a chemical engineer, was hired to assist Smith and they shared the responsibility
of quality control. In November 1963, Davis, Junior, hired Al Siennas, a chemist,
who was placed in charge of the laboratory over Smith and Love. From then on
Smith's duties were to carry out experimental projects or developments of paints
and varnishes, to assist Sienna:s in checking the quality of certain paints, and to assist
Davis, Junior, for about 25 percent of his time in purchasing raw materials for paints
and varnishes.
In the absence of Davis, Junior, he handled technical problems
directly with customers, and ordered pigments and paint additives when necessary.
He also gave advise to the tinter upon the latter's request.
In January, Siennas was terminated and Smith resumed performing the work he
had done prior to Siennas' hiring.
Thereafter, Smith attended two meetings of super-
visors at the invitation of Davis, Junior, but did not participate in any of the dis-
cussions.
He continued working in the lab and did not direct the work of any other
employees until August 10, when he was given a letter stating that he was 'being re-
lieved of his job at lab technician and terminated."
8 The status of these individuals, with the exception of Cleamon E. Smith, clearly affects
their inclusion in or exclusion from the unit claimed appropriate for collective-bargaining
purposes.
Cleamon E. Smith is concededly expressly excluded from the unit as a tech-
nical employee.
Furthermore, the resolution of the alleged violations involving John R.
Smith and Cleamon E. Smith require a determination of their status.
9 The son of Davis, Senior, and the president of Respondent, hereinafter referred to as
Davis, Junior.
10 Secretary and treasurer of Respondent.
11 Davis, Junior, testified that upon Siennas' termination, Smith took over his job which
included responsibility for making paint formulas and supervision over personnel in the
paint production department, and over some activities in the aerosol, thinner, and pack-
aging departments.
Smith's testimony that he did not direct or supervise any employees
was persuasive and is credited.
Furthermore, Davis, Junior's explanation that Smith's
name was omitted from the list of supervisors (General Counsel's Exhibit No. 9) issued
by the Company on April 4 because he was above the level of foremen, was not convincing.
As appears, infra, Respondent was well aware of Smith's union proclivities at the time,
and no persuasive reason was advanced why he was not admonished to refrain from union
activities, as were the other alleged supervisory personnel.
28
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that during 1964 until his discharge, Smith's work was essentially that of a
lab technician, in which he, no doubt, exercised independent judgment.
He did
not possess any of the indicia of supervisory status enumerated in Section 11 of the
Act, including the right to hire, fire, transfer, reward, discipline, responsibly direct
other employees, or effectively to recommend such action. I, accordingly, conclude
that Smith was not a supervisor within the meaning of the Act on or prior to his dis-
charge on August 10.12
2. The status of John R. Smith
Smith has been working for Respondent since January 1961. In February or
March 1963 Respondent posted a notice on its bulletin board (General Counsel's
Exhibit No. 8) indicating the permanent classification and pay rates of its employees.
Smith appeared on this notice 13 as "assistant shipping." 14 In August 1963, Davis,
Junior, placed Smith in charge of the shipping department with the responsibility of
directing a loading crew consisting normally of five or six employees in carrying out
the shipping orders brought to him from the main office, which involved obtaining
the items from the warehouse and then loading them on the trucks.
His responsi-
bilities were confined to this operation, in which he personally participated to some
extent in the manual work involved, and also included correcting the mistakes of
his crewmembers, keeping Davis, Junior, posted on items running short, and dis-
cussing mistakes in loadings and complaints of customers with Davis, Junior. Jarrell,
who had previously performed these duties, became truck dispatcher, and Smith was
given a 10-cent-an-hour raise at that time to $2.10. From that time on Smith attended
meetings of the foremen where he received instructions about operations and passed
them on to the loading crew which he directed.
On February 28 Smith attended the initial union meeting and signed a union
authorization card.
On or about March 3 or 4, Smith, Hiser, and Leon Brinkly were
told by Davis, Junior, that they were considered foremen and would be fired if they
participated in any union meetings.
On March 25, Davis, Senior, called Smith to his
office and asked whether be had gone to a union meeting.
When he replied that he
had, Davis, Senior, asked him whether he understood that he was not supposed to
go.
Smith responded, "Yes, but I thought it was my business to go where I wanted
to, on my own time." On or about April 4, Davis, Junior, handed him a statement
(General Counsel's Exhibit No. 9) setting forth that all supervisors were not to
attend union meetings or engage in any surveillance of union activities, and that
failure to obey this order would result in suspension with loss of pay or discharge.
The statement listed the following as supervisors: Joe Buck-paint department;
Rudy Dieter-packaging; John Smith-shipping; Leon Brinkly-thinner; J. R.
Riser-unloading; Bill Jarrell-trucks; and Floyd Bishop-aerosol.
Prior to that
time Smith had been called a foreman, and he was regarded as such by his crew-
members, and neither his duties nor compensation changed as a result of the state-
ment handed to him on April 4.
On May 13 (Wednesday), Davis, Senior, asked him whether he was going to stay
in the Union or be a foreman, and to give him an answerby 5 o'clock on Friday. On
Friday Weed called Smith into his office and asked what his answer was in connection
with his recent conversation with Davis, Senior.15 Smith replied that he (Weed)
could tell Davis, Senior, that he would not have anything to do with the Union,
including going to union meetings.
On or about November 10, 1964, Plant Manager Ferguson called a meeting which
was attended by John Smith, Slim Hess, Junior Brinkly, Cleamon Smith, Leon
Brinkly, and Floyd Bishop.
At the meeting Ferguson handed each of them written
12 Whether his status materially changed on and after November 9 when he was rehired
( see infra ) does not affect his status as of the time he was discharged.
13 This notice was removed about the middle of March.
14 It was stipulated that his starting salary was $1.25 an hour, plus a bonus arrange-
ment, which was changed as follows: $1.40 on May 11, 1962 ; $1.50 on January 24, 1963;
$1.95 on March 8, 1963, at which time his bonus arrangement was terminated : $2 on
June 20, 1963; $2.10 on August 20, 1963, when his job classification changed ; $2.15 in
March ; and $2.05 in November.
16 Weed also advised Smith that he had been informed the preceding day by a Board
agent that supervisors could not participate in union activities, and that consequently he
would either have to quit participating in such activities or be removed from his position.
SOUTHLAND PAINT COMPANY, INC.
29
instructions.16 Smith admitted that he read the instructions pertaining to the ware-
house foremen because they applied to him, and that his duties and authority after
receiving the instructions were no different in any respect from those he previously
had.
On November 28, Plant Superintendent Ferguson called Smith into the office of
Davis, Junior, and advised him that he was not doing his job, and would be replaced
and put back in the warehouse, that customers were complaining about mistakes
being made in the shipping of orders, and that about 4 gallons of paint which had
been spilled had not been cleaned up after 2 or 3 weeks. On November 30, Ferguson
summoned all of the warehousemen and told them, "As of this morning you will have
a new foreman-Elbert Rosson."
He also advised Smith that his pay was going to
be cut back to $2.05 from $2.15 an hour. Thereafter, Rosson directed Smith in his
work, which consisted of labeling and stacking trucks and sweeping floors, as well
as tb, other crewmembers.17
Viewing the evidence in its entirety with respect to the work performed by and
required of Smith, I find that he responsibly directed the members of the shipping
department, that his duties, responsibilities, and relationship to his crew was that of
a representative of management, and that he was regarded as a foreman by the
employees whom he directed. I accordingly conclude that he was a supervisor
within the meaning of the Act until demoted on November 30.
Victory Grocery
Company, a division of E. J. Keefe Company, 129 NLRB 1415, 1416; Research De-
signing Service, Inc., 141 NLRB 211, 213; The Bama Company 145 NLRB 1141,
1142-1143.
3. The status of J. R. Hiser, Leon Brinkly, and Joe Buck
(a) J. R. Hiser, who has been employed by Respondent since April or May 1961,
drove a truck for the first year, and then operated a forklift truck until February 1963,
when he began to direct the unloading crew, with instructions to keep the men busy,
as well as operate the forklift truck. In addition to directing his crew and operating
the forklift, he spotted trailer-trucks and released boxcars after they had been un-
loaded.
According to his testimony, the direction he exercised over his crew was
similar to that exercised by John R. Smith over the latter's crew.
He performed these
duties until a day or two after Labor Day during which time he recommended raises
for four members of his crew, two of which were granted.
His immediate super-
visor was Davis, Junior, and he attended meetings of foremen where he received
instructions about his duties.
He attended the initial union meeting on February 28,
and, as related supra, he, John R. Smith, and Leon Brinkly were summoned to the
office of Davis, Junior, 3 or 4 days later, where Davis, Junior, informed them that
they were considered foremen and could be fired for participating in union activities.
On April 4, he also was handed a statement (General Counsel's Exhibit No. 9) by
Davis, Junior, in which he was listed as a supervisor and directed to refrain from
engaging in union activities or be suspended or discharged.
(b) Leon Brinkly has been continuously employed by Respondent since 1960.
Since April 1963 he has been directing the work of the employees in the thinner de-
partment, with the responsibility of maintaining a supply of thinner in stock. In
performing this work he checks the stock, decides what needs to be made, and then
"The instructions (Respondent's Exhibit No. 3) were entitled "General Duties of Fore-
men" and described the duties generally for foremen and also, in particular, for the
control laboratory technician, the paint manufacturing foreman, the aerosol department
foreman, the paint packaging foreman, the receiving foreman, the warehouse foreman,
and the thinner department foreman .
The general duties included supervision of per-
sonnel in their respective departments ,
responsibility for reprimanding employees for
minor offenses , preventing their recurrence , advising the plant manager when a foreman
was unsuccessful in correcting an offender , in which event the plant manager was to take
the necessary action to remedy the situation , and having each employee make any requests
for time off or change of job or duties to his foreman , who shall make recommendations
therein to the plant manager.
The particular duties for each department foreman per-
tained to the specific operations of their respective departments.
17Kenneth J. Thurman, a member of the shipping crew, testified that when Elbert
Rosson replaced Smith and became his foreman , he thereafter directed him in the per-
formance of his work, telling him when to load, what to get, and to see to it that the
crew members did their work , just as Smith had done prior to being replaced.
30
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advises the employees who work under his supervision, usually about four men,
what has to be done, and assigns them to specific operations required to replenish
the stock.
He also spends a great deal of his time doing manual work such as
casing, stacking off, or unloading.
When necessary, he requested Davis, Junior,
to assign additional manpower to him.
At times, on his own discretion, he would
release a man whom he could spare to work in another department. If the em-
ployees working under his direction failed to perform their duties, he would com-
plain to Davis, Junior, his immediate supervisor,18 and make recommendations as to
what should be done about it. In some instances.his recommendations were followed.
He also attended foremen meetings.
According to Brinkly, his authority over the
employees he directed was about the same as that exercised by John R. Smith and
Hiser over the employees they directed.
(c) Joe Buck, who also signed an authorization card, testified that he was foreman
of the paint department from 1963 until about October 11.
He testified further 4hat
in that capacity he directed four men, moving them from one work station to another
as necessary; recommended raises (which were followed); excused absences of his
men without 'going first to someone higher up; transferred his men on his own
authority for the day to other departments when he had no work for them; did
manual work similar to that performed by his men when the circumstances required
it; assigned overtime for short periods of time but consulted Davis, Senior, before
assigning overtime for longer periods; and attended foremen's meetings.
At these
meetings Davis, Junior, told them that if any employees failed to get the work out
or do what they were told, to send them "down the road" and that the employees
were not to come to him (Davis, Junior) for raises but to their foreman, who, in
turn, should suggest the raises, if needed or deserved, because he did not know
whether they were merited.
Viewing the evidence concerning the duties and responsibilities of Hiser, Leon
Brinkly, and Buck, and the frame of reference in which they operated, I find that
they, like John R. Smith, responsibly directed the members of their respective crews,
and that their duties, responsibilities, and relationship to their crews was that of a
representative of management.
Accordingly, I find that they were supervisors with-
in the meaning of the Act.
4. The status of Floyd Bishop
Neither side called Bishop to testify with respect to his duties or supervisory
authority.
Nor was any testimony offered concerning his status.
His name, how-
ever, appears on General Counsel's Exhibit No. 7 as follows: "Bishop, Floyd, Super-
visor-Aerosol Dept." and other employees are listed as working in that department.
Of the six other individuals, who are also indicated on General Counsel's Exhibit
No. 7 as being supervisors in the other departments, Dieter and Jarrell were admitted
by General Counsel to be supervisors within the meaning of the Act, and Buck,
John R. Smith, Leon Brinkly, and Hiser have been found, as related above, to be
supervisors.
Furthermore, only Bishop in addition to the other six individuals, who
were either admitted or found to be supervisors, were notified by Respondent (Gen-
eral Counsel's Exhibit No. 9) that as supervisors they were to refrain from union
activities or suffer suspension without pay or loss of job. In the absence of any
proof by General Counsel that Bishop's duties and responsibilities in his department
differed from those exercised by the supervisors of the other departments, it may
reasonably be inferred that he also was a supervisor within the meaning of the Act,
and I so find.
D. The alleged discrimination
1. The discharge of Cleamon E. Smith
Cleamon E. Smith signed a union authorization card on March 8.
On March 9
Davis, Junior, approached him in the lab and mentioned that the boys were having
another union meeting the following day. Smith replied that he thought he would
attend.
On March 11, the day after Smith attended that meeting, Davis, Senior,
summoned him to his office and told him that his presence at union meetings might
influence too many others to the union side, who were as yet undecided. Smith
replied that he went to see what it was all about, and then related what had happened
at the meeting.
About the middle of May, Davis, Senior, asked Smith in the presence
of Davis, Junior, how he felt about the Union, to which he replied he would rather
1s Tom Ferguson became his immediate supervisor on or about September 1, when he
became plant manager.
SOUTHLAND PAINT COMPANY, INC.
31
be neutral and not vote at the election .
When Davis, Senior, urged him to vote,
Smith replied that if he had to favor one side or the other, he would favor the
Union because he believed the boys had a gripe coming.
Whereupon Davis, Senior,
abruptly left the room in a disturbed condition.
About the middle of July, Davis,
Junior, solicited Smith to testify in the forthcoming hearing
(then scheduled for
August 4). Smith advised him that he would prefer not to be a witness for either
the Company or the Union because he was reluctant to become involved, but if
called upon to testify he would tell the truth, which would harm the Company more
than it would help it.
Davis, Junior, replied that he might have to take that chance.
About the third week of July, Davis, Senior, in another conversation in his office
with Smith, said "Cleamon, I still swear that I will never operate 1 day under a
union
. .
There are going to be a lot of changes made
.
You, know,
Cleamon, I do not have a man printing these labels , and I could legally fire Jim Pat
Smith 19 because he is nothing but a troublemaker , and I intend to get rid of all the
peolle connected with the Union ."
Smith replied that he had discussed with his
wife the possibility of losing his job because of the Union, and they had prepared
themselves financially and otherwise , in the event this contingency materialized.
On August 1 Davis, Senior, summoned Smith to his office and advised him that
the Company was considering making him a plant manager , and that, although the
board of directors preferred someone more skilled, he would rather have him be-
cause he had come up with the Company, but that he could not have a man who
was neutral on the Union , and "I want you to be outspoken against the Union or
resign."
He gave Smith 2 or 3 days to think it over. Smith replied, "If I choose to
remain as I am, it would be foolish to resign ."
Davis, Senior, then reiterated that
he had a few days to think it over. Smith , thereupon , immediately went to Davis,
Junior's office and after relating what had happened in his father 's office, he was
advised by Davis, Junior, to forget it.
On the following day Davis, Senior, attempted
to clarify to Smith what he had meant the previous day when he used the word
"resign" in their conversation , claiming Smith had misunderstood him.
Smith
denied misunderstanding him and Davis, Senior, again offered him a plant manager's
job but Smith declined it asserting that the Company had in the past failed to place
enough confidence in their foremen .
When Davis , Senior, began questioning him
as to what he meant by his reply, Smith declined to discuss the matter any further.
On August 6, Davis, Senior, in another conversation with Smith , again attempted to
resurrect the same subject matter, but Smith refused to discuss it and Davis , Senior,
then said, "You just get you another job ... I do not mean you are fired right, now,
I mean you just better be looking for you another job." 20
On August 10, Davis , Junior, handed Smith a letter dated that day stating that he
was relieved of his job as lab technician and terminated because of
( 1) his general
attitude toward management and other employees
(which was detrimental to the
well-being of the Company and its employees), (2) refusal to obey a direct order
of management (Davis, Senior ),21 (3) striking the first blow in a fight indicating his
desire to further harm relations between and among the employees ,22 and (4)
making serious untrue accusations against two of the Company's officers .23
Subse-
quently, on October 30, Smith was advised by an employee sent by Davis, Senior,
that be could return to work the following morning, provided he waived backpay.
Smith thereupon sent a letter to Davis, Senior , agreeing to return but disavowing any
control over his backpay , which he stated was in the hands of the Board. On Novem-
ber 7, he received a letter from Davis, Junior, offering him a job as a laboratory
technician and asking him to report to work not later than November 10 if he
accepted the job.
Smith reported for work on November 9, at which time he was
19 J. P. Smith was printing labels at the time.
20 Davis , Junior, testified that the term "resign" used by his father in his conversation
with Smith meant resigning from his job as plant manager in the event he took the job
and was unable to perform the work. I find it unreasonable to accept this strained
interpretation and conclude that Smith was told to oppose the Union or resign his lab job.
21 Davis , Junior, explained to Smith that this referred to his refusal to come to his
father's office and talk to him.
22 On the night of August 1, Smith engaged in a fist fight with Foreman Jarrell at a
V.F.W. club.
The immediate events leading up to the fight were controverted , there being
testimony to the effect that the union issue at the Company was the cause of the fight,
and also that it was a purely personal matter unrelated to the union issue.
Zs Intimating to the Davises , following the fight at the V.F.W. club, that one of them
had influenced Jarrell to engage in a fight with him.
32
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
given a letter listing his duties.24
The letter also stated that he was a supervisor
directly responsible to Plant Manager Ferguson, and he was to refrain from engaging
in any union activities.
At the time he was rehired, the instant proceeding involving
his alleged discriminatory discharge was pending and the hearing had been started
and partially completed, including Smith's testimony.
Since his return to work he
has exercised the authority set forth in his letter describing his duties with respect to
quality control, accepting or rejecting manufactured items, and instructing the paint
manufacturing department except for paint additives, which were under the direct
control of the plant manager.
Conclusion
The evidence amply establishes that Smith, a laboratory technician, aroused the
ire of Davis, Senior, when he expressed his support of the Union.
Davis, Senior,
clearly indicated to him that he intended to get rid of all the employees connected
with the Union, and, in fact, gave him an ultimatum to resign or oppose the U*ion,
and to begin looking for another job.
When Smith persisted in his support for the
Union, he was discharged on August 10, allegedly for the reasons stated in his letter
of dismissal, which in substance attested to his inability to get along with manage-
ment or his fellow employees.
Yet in November, despite these shortcomings, Smith
was offered and given reemployment. In view of Respondent's union animus, its
knowledge of Smith's union sympathies and support, and his refusal to repudiate
the Union, I find that the reasons ostensibly ascribed for his discharge were used as
a pretext to mask the real motivating cause-his refusal to oppose the Union. I,
accordingly, conclude that Respondent discriminatorily discharged Smith in viola-
tion of Section 8(a) (3) and (1).
2. The discharge of A. C. Holder
Holder was hired in April 1962 by Bob Argo, the then plant manager.
He drove a
truck until May 1963 when he was transferred to the warehouse where he helped
load trucks and operated a labeling machine under the supervision of Foreman Bill
Jarrell.
On February 28 he attended a union meeting at the home of J. W. Trisler
where he signed a union authorization card.
Thereafter, in March and April he
attended other union meetings.
On March 16 he was summoned to the office of
Davis, Senior, and told that he had better forget about the Union or he could be
fired at anytime, and that the Union could not protect him because of his criminal
record.
Davis, Senior, also told him that he knew he had attended a union meeting
on February 28 because someone had brought him the names of all who attended.
On May 15 Foreman Jarrell handed Holder his pay envelope which contained two
checks and said, "Mr. Davis called me a while ago and told be to give them (the
two checks) to you and tell you not to come back to work." 25
When Holder asked
why, Jarrell replied that he did not know.
Nor did anyone else at the time advise
Holder why he was discharged.
On June 9 Davis, Junior, called Holder to his
office and advised him that his father had discharged him under the mistaken belief
that he had been convicted of child fondling, and that he wanted to know whether
Holder would return to work and drive a truck.
Holder agreed and returned to work
the following day as a truckdriver.
Respondent does not deny that Davis, Senior, was aware of Holder's previous
record for armed robbery several years prior to his discharge.
However, he ad-
mittedly did not regard that record as warranting his discharge but when he ascer-
tained, albeit incorrectly, that Holder had served time after having been convicted of
child fondling, he was opposed to having anyone working for him with that record,
and decided to discharge him.
When he discovered that he was in error in connec-
tion with the child fondling charge, he offered to rehire him.
Conclusion
It clearly appears that Respondent was well aware of Holder's old criminal record
and his union activities prior to his discharge, and that he was warned by Davis,
u These duties included (1) checking paints (quality control), (2) accepting or reject-
ing all manufactured items in accordance with company standards, (3) reprimanding any
employee for engaging in any procedure affecting the quality of a manufactured item and
recommending to the plant manager disciplinary action which he deemed necessary, includ-
ing the discharge of any employee who failed to correct this discrepancy after being
reprimanded , and (4) instructing and directing the paint manufacturing department.
23 It was stipulated that Holder was discharged on May 15 and rehired on June 10.
SOUTHLAND PAINT COMPANY, INC.
33
Senior, to forget about the Union because he could be fired at any time on account
of his criminal record, and the Union would be powerless to protect him.
Respond-
ent contends that he was fired under the mistaken belief that his criminal record
was based on a conviction for child fondling.
Yet no persuasive explanation was
advanced as to why Holder was not informed as to the cause of his discharge until
he was offered reinstatement, or how it came about that his old criminal record sud-
denly became an issue in 1964, during the Union's organizational campaign.
The
sequence of events strongly suggests that the alleged reason ultimately given to
Holder was an afterthought .
Viewing Holder's discharge in the light of Respondent's
union hostility and its violative conduct during the Union's organizational campaign, I
find that Respondent was motivated to discharge him because of his continued support
of the Union, in violation of Section 8(a)(3), and not because of its mistaken im-
pression of his criminal record, as asserted.
3. The suspension of Jim Pat Smith
Smith began working for Respondent in October 1959 as a warehouseman. Since
September 1960 he has been a printer (the operator of a labeling machine).
On
February 29 Davis, Junior, called him to his office and said , "Jim Pat, what is your
beef, there is no use to lie to me because I know you were at the union meeting last
night because I have the license number of all the people that attended , of their
cars."
At the time Davis, Junior, was holding a paper in his hand , which he stated
contained the license numbers of the cars.
Later that morning Davis, Senior, came
to Smith's working station and, in discussing the Union , told him that if the plant
went union, he would close the plant down , and added, "I swear this on my Masonic
oath," knowing that Smith was a Mason.
He also told Smith that he could sell the
printing machine and have his labels printed downtown .
On March 2 Davis, Senior,
made a speech during working hours to the assembled employees , stating that if
the Union came in he would lock the doors of the plant , that he did not see why a
union was wanted because he could cut wages if the Union was voted in , and that
he was not going to operate under a bunch of gangsters or have outsiders tell him
how to run his business.
About April 17 Joyce Berry, a clerical employee in Respondent's office, approached
Smith and asked whether he would sign the letter, prepared by her, addressed to
the Union , demanding the immediate return of his union authorization card. Smith
declined to sign the letter.
Later that day Davis , Senior, called Smith to his office
and told him he could fire his brother (John R. Smith ) for attending a union meet-
ing on April 11, asserting that he knew he was there.
At the end of July Davis, Senior , called Smith to his office and offered him a
salesman's job if he would send a letter to the Board stating that he was through
with the Union .
When Smith remonstrated that he could not afford to take a sales-
man's job because of the expenses connected with it, he was offered a plant manager's
job based upon the same condition .
Smith replied that he would let him know. In
that conversation Davis, Senior, also advised him that he could stock his paints in
such quantity that he could lay off people in the slack period .
On about August 7
Smith advised Davis, Senior , that he declined the job offer which had been made
to him.
On the morning of September 4, employee T. L. Ford call Smith at his home and,
after advising him that he was calling a doctor because he was ill and would be a
little late or might not be able to get to work at all, he requested Smith to punch his
time card at the plant.
Upon his arrival at work that morning Smith punched Ford's
timecard and immediately advised Plant Manager Ferguson of what he had done.
Ferguson told him it was "all right," 26 and Smith began his day's work .
On Sep-
tember 17 Smith was summoned to the office of Davis, Junior, where he found
Ferguson who said, "I've got to suspend you," and then handed him a letter 27
When
26 Ferguson testified that he had been on the job only a few days and, being unfamiliar
with company policy, he told Smith he would have to check with Davis, Junior , who was
then out of town.
When he thereafter spoke to Davis , Junior, he found out that punching
another employee's timecard was prohibited .
Based on my observation of the witnesses
and the sequence of events leading up to Smith's suspension , I credit Smith's version of
the conversation with Ferguson as related above.
27 The letter dated September 16 stated that Smith was being suspended for 1 week
beginning September 19 for an infraction of the company rules in willfully punching the
timecard of another employee on September 4.
34
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked why, Ferguson said, "You know it is against the company 's rules to punch
another man's timecard."
Smith remonstrated that he had reported it, to which
Ferguson replied that he would have had to fire him if he had not told him the truth 28
About 9 a.m. that day Smith went to see Davis, Junior, and complained about his
suspension in view of the fact that he had reported the incident at the time it occurred.
He, however, admitted that he was aware of a company rule prohibiting an employee
from punching the timecard of another employee.
Davis, Junior, replied that Fergu-
son was the plant manager and he could not let him ( Smith ) get by with it.29
The record shows that one day in January, employee James Wilson went home
early because of an eye injury incurred the previous day while at work, and had
John R. Smith punch his timecard at quitting time.
The following Monday when Wilson returned to work he heard rumors that
John R. Smith was "in wrong" because of having punched his card.
He thereupon
went to see Davis, Junior, and told him what had happened .
Neither Smith nor
Wilson was reprimanded or disciplined because of this incident .
It also appears that
about 2 years before, the timecard of employee James Ward had been punched by
another employee , but the offending party received only a mild reprimand for the
incident.
On November 13, Davis, Senior , called Smith to his office and in the course of the
conversation with him told him that the Brinkly boys had appeared to be playing
along with him against the Union, whereas in fact they were for the Union, and he
was going to fire them as well as other union adherents as soon as he got the chance;
that if the Union came into the plant the employees would make less money next
year ; and that better job opportunities were opening up at the plant for men like
him if he would forget the Union.
Conclusion
The evidence amply demonstrates that Respondent was aware of Smith 's union
activities and sympathy, and unsuccessfully attempted to induce him to disavow the
Union by threats of economic reprisals and offers of economic benefits.
Further-
more, although claiming that an infraction of the company rule against punching
another employee's timecard was so serious a matter as to warrant an offender's
discharge upon discovery , Respondent attempted to explain the delay of almost 2
weeks in disciplining Smith by showing that Davis, Junior, was out of town for a
few days over the Labor Day weekend , and that Ferguson was unfamiliar with the
rule due to his recent appointment as plant manager .
The delay in resolving the
incident suggests that other considerations probably entered into the deliberations
concerning the matter.
The fact that Smith immediately reported the matter to
the plant manager should have absolved him of any intent to conceal any wrong-
doing or to assist in perpetrating a fraud against Respondent .
Under these circum-
stances it is not unreasonable to infer that his union activities were considered in
his suspension .
Viewed in the context of Respondent's violative conduct of Section
8(a)(1) in which the suspension occurred , and the disparate treatment accorded
Smith as compared with other employees in similar incidents , I find that the moti-
vating cause for Smith's suspension was his union activity , and not the card-punching
incident .
Moreover, even assuming that punching another employee's card was a
valid ground for suspending an offending employee , it is nevertheless a violation of
the Act if the suspension was, in fact , motivated by the employees' union activity.
See N.L.R.B. v. Linda Jo Shoe Company, 307 F. 2d 355, 357 (C.A. 5).
I, accord-
ingly, conclude that Smith was discriminatorily suspended in violation of Section
8(a)(3) and (1).
4. The discharge of Kenneth J. Thurman
Thurman began working for Respondent in August 1963 in the thinner department
under the supervision of Leon Brinkly at $1.55 an hour .
Beginning the first week
in March 1964, he was transferred to the shipping department under the direction
of John R. Smith until November 30, when Elbert Rosson became his supervisor.
On December 18, 1964, he was discharged , at which time he was earning $ 1.80 an
hour after having received several pay raises since he was hired.
2s Davis, Junior, testified that when the incident was brought to his attention, he
ordered the discharge of Smith, unaware of the fact that Smith had reported the incident
to Ferguson at the time it occurred.
When he later learned about this he thought the
discharge was too severe a penalty and ordered his suspension for 1 week.
2e T. L. Ford was paid for the day despite his failure to work, because the weekly
paychecks had been prepared early that morning, but an appropriate adjustment for the
day's pay was made in a subsequent paycheck.
SOUTHLAND PAINT COMPANY, INC.
35
On February 28, Thurman attended the initial union meeting and signed a union
authorization card after having advised Weed that he intended to go to the meeting.
Later that night, according to Thurman, Weed telephoned him at his home and
asked how the meeting went and whether the men would go for it.
Weed then
requested him to attend all the union meetings and to report back to him or Davis,
Junior, and in that way would help them "get the thing [the Union] stopped." 30
About March 1, 1964, Davis, Senior, called Thurman to his office and asked whether
he had been going to any union meetings.
After Thurman replied that he had been
to one or two meetings Davis, Senior, commented, "If you will vote against this
[the Union] when this thing is over with, I will give you $1.95 an hour . . . I am
going to fire every God-damned one of those union s o b's that are on a union card
when this is over with .... I do not think John Smith wants the union; it is just
Jim Pat bothering him with it and when it is over with, I am going to get rid of John
and Jim Pat both."
On or about April 16, Davis, Senior, visited Thurman at his
work station and told him that a man from the Board was coming the following day
with a petition for everyone to sign who wanted his union card back, and that if
enough people sign it will put a stop to the Union.
He also told him that Leon
Brinkly was going to pick him up that night with Ronnie Harmon and Ronnie
Murray and take them out to dinner, and asked Thurman whether he would go.
Thurman replied he would think about it and left.
That night Leon Brinkly picked
him up with Harmon and Murray, and proceeded to drive to Oklahoma. On the
way there, Brinkly told them that a man was coming the next day from the Board
with a petition and for everybody to sign, and that Davis, Senior, needed only about
six names to put a stop to the Union. On or about April 18, Davis, Senior, called
Thurman to his office and asked why he had not signed the petition yesterday, and
why he had again refused to sign even after he had Joyce 31 bring it out to him.
He also told him that the Union was going to get him and a bunch of others run
off if they did not quit messing with it.
On August 13, 1964, Davis, Senior, summoned Thurman to his office, where he
advised him that some of the employees had reported that he (Thurman) had been
telling them what to write in their statements (for the Board).
When Thurman
denied it, Davis, Senior, said, "When this is over with I am going to fire you and all
of the others that have signed union cards. I will make it so God damn rough on
all of you union son of a bitches that you will never get another job in this town.
I will see to that."
He stated further, "If I ever find out who started this, and I will
at the hearing . . . I will get the ringleaders . . . . I had big plans for you; you
are going to be a big man in this Company someday if you will leave that union
alone .... I want you to get on one side or the other and stay." Thurman replied
that he was going to stay with the Union and was told to go back to work. On
November 9, Davis, Senior, met Thurman on the parking lot at the plant and told
him that he wanted him to testify at the hearing herein that misrepresentations were
made to him when he signed the union card; that he signed only for a vote, and
that he should spread the word through the plant to the other employees that mis-
representations were also made to them. Thurman refused.
On December 16, Rosson, who had succeeded John R. Smith as supervisor of the
shipping crew, reported to Plant Manager Ferguson, in the presence of Davis, Junior,
and Thurman, that he had just been called a "smart son-of-a-bitch" by Thurman,
and that he did not want him working for him any more. Ferguson recommended
that Thurman should be fired immediately.
Davis, Junior, approved but stated that
inasmuch as he was going to visit the Board Regional Office on Friday, he would
inquire as to whether he could fire Thurman, and that if Ferguson did not hear from
him by 4:30 that afternoon to go ahead and fire him 32
When Ferguson failed to
hear from Davis, Junior, on Friday afternoon, he called Thurman to his office and
handed him a letter and said, "Read this."
The letter, dated December 18, stated
in substance that the recent loss of the Company's Government thinner contract
3o Weed and Davis, Junior , testified that Thurman telephoned them on several occasions
and reported what had happened at union meetings, but they denied ever requesting him
to do so. In view of their failure to discourage such reports, I find that they were made
pursuant to their mutually agreeable arrangements.
31 Joyce Berry, Respondent's bookkeeper.
M Davis, Junior, testified that on Friday he asked Elmer Davis, the Board's Regional
Attorney, what he would do to an employee who called his foreman "a smart s.o.b." and
was told he would fire him on the spot.
However, it does not appear whether any or
how much of the surrounding circumstances were allegedly related to the Regional
Attorney concerning Thurman.
217-919-66-vol. 156-4
36
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
required a reduction in plant personnel and made it necessary to remove the personnel
least essential to the operation of the plant as a whole , that Thurman's job perform-
ance had been less than satisfactory, and he had made the following mistakes in
southbound shipments of merchandise : on or about December 1, he substituted quarts
of Mission for gallons of Mushroom on Nacoma Lumber Company 's order; on or
about the same day he mistakenly loaded single gallons of paint for 5 gallons on
Davy Crockett's order; on December 15, he was requested to load 7-inch R & C rollers
and instead had gotten 7-inch R & T rollers; and on December 15, when his foreman
stopped him from loading Old South paint for Gibson paint, he had called him a
"smart son-of-a-bitch"; and that he had also been verbally reprimanded on Novem-
ber 4 for infraction of company rules.33
After reading the letter, Thurman told
Ferguson, "Tom, I am not guilty of all of this." 34
Thurman testified that he called Rosson about 5:30 the evening he was fired and
admitted he was wrong in calling him a foul name , and that Rosson replied , ". . . If
I knew they were going to fire you I wouldn't have said anything about it; besides
that is not the reason they fired you . . . you helped start this Union; you got mixed
up on both sides of it; and you knew this was coming sooner or later. So, don't
blame me for getting you fired; blame it on the Union." 35
Conclusion
Ordinarily , the use of intemperate language, such as that involved herein, by a
rank-and-file employee to his supervisor while being reprimanded for his mistakes in
the performance of his work would be regarded as sufficiently disruptive of har-
monious labor relations between employer and employee , or among the employees,
to justify a discharge of the offending employee in the absence of other considerations
establishing a different motive for the discharge 36
Where, however, the background
of acts, the utterances of the parties involved and the circumstances in question
indicate that considerations other than the intemperate language were significant
factors in causing the discharge, it becomes necessary to examine the entire picture
before resolving the motivating cause for the discharge.
The record shows that Respondent was well aware of Thurman's union activities,
and was using him as an informer of union activities , that it had engaged in and was
engaging in antiunion activities in violation of the Act , and that it had threatened
Thurman with economic reprisals for supporting the Union , and had also offered
33 With respect to the charges Thurman testified that three men worked on the
Nacoma Lumber Company order and he was unaware of the fact that Mission paint was
substituted for Mushroom paint until he read about it in the dismissal letter ; that on the
Davy Crockett order , the customer agreed to take his order in single gallons instead of
5 gallons when advised that they were out of 5 -gallon cans , and arrangements for the
change were made with the girl In Respondent's office ; that the R & C roller order was
given to Ronnie Harmon and he asked Thurman to fill it in order to avoid having to
throw away the cigarette he was smoking at the time , and he , Thurman , misunderstood
the order and got the wrong paint but Harmon caught the error in time before the rollers
were put on the truck and the order was then correctly filled ; that on the Gibson paint
order, he placed the wrong paint on the truck , then corrected himself, and that Elbert
Rosson , who overhead him telling John R. Smith about it, accused him of fouling up an
order for the second or third time , to which Thurman replied by calling him a "smart
son-of-a-bitch"; and that he was reprimanded on November 4 because he was wrongly
accused of giving a customer a can of paint without an order , when, in fact, he gave the
paint to Davis, Junior, In the presence of the customer , in order to check on whether the
customer was receiving the correct paint , and that he never gave the paint to the cus-
tomer.
John It. Smith testified that the epithet used by Thurman was commonly used
by the employees in the course of their work , and that after he was succeeded by Rosson,
he called Rosson that name on three or four occasions and was neither reprimanded nor
disciplined for it.
34 Ferguson then told him that he was relieved of his duties.
35 Rosson testified that in this conversation he told Thurman there were a lot of reasons
why he was fired, but he did not elaborate .
His testimony was vague and his manner
was not convincing in denying that he told Thurman his name-calling was not the reason
why he was fired. Furthermore , he was unable to recall, as testified to by John R. Smith,
that about 10 minutes after Thurman was fired, he told Smith that Thurman was fired
because of the Union ; having gotten mixed up on both sides, and not because of having
called him a vile name .
In view of this testimony and the events leading up to his
discharge, Thurman's testimony Is credited.
3e Cf. N.L.R.B . v. Blue Bell, Inc., 219 F. 2d 796 (C.A. 5)
; N.L.R.B. v. Soft Water Laun-
dry, Inc., 346 F. 2d 930 (C.A. 5)
SOUTHLAND PAINT COMPANY, INC.
37
him economic benefits to oppose it.
When his loyalty to Respondent appeared ended
and his support of the Union became evident, he was fired allegedly because of the
name-calling incident.
Rosson's credited conversations with John R. Smith and
Thurman, shortly after the latter's discharge, and the sequence of events prior to
the discharge, establish that it was Thurman's union activities which motivated
Respondent to discharge him.
Moreover, even assuming the concurrent existence of
an otherwise valid reason for Thurman's discharge-insubordination stemming from
the name-calling incident-it would "not preclude a factual determination that his
discharge was discriminatory if it appears from a preponderance of evidence, and
the reasonable inference drawn therefrom, that the discharge was in fact motivated
by the Employer's opposition to the employee's union activities."
N.L.R.B. v. G & J
Company, Inc., 346 F. 2d 960 (C.A. 3). Furthermore, if Thurman was discharged
for the name-calling incident, as apparently asserted at the hearing and argued in
the Respondent's brief, it does not appear why Respondent also cited the other grounds
in its letter of dismissal, such as the loss of a Government contract and his unsatis-
factory work performance.
I conclude that Thurman was discriminatorily discharged because of his union
activities in violation of Section 8(a) (3) and (1).
5. The demotion of John R. Smith
As appears hereinabove, Smith was found to be a supervisor within the meaning
of the Act during 1964 until November 30, when he was demoted from foreman to
a rank,and-file member of the shipping crew. Prior to that time the Davises had
made known to him their objections to his union activities, albeit because of his
supervisory status.
On October 8 Smith testified at the hearing held herein adversely
to Respondent's interests as a witness for the General Counsel.
On November 18,
Davis, Senior, advised him that he received statements (affidavits) signed by him and
Jim Pat Smith attesting to his presence in the plant at a time when Respondent was
seeking a further continuance of the hearing herein because of his ill health.
These
affidavits had been obtained by General Counsel and were used to oppose Respond-
ent's motion for a further continuance.
Davis, Senior, warned Smith that there was
going to be trouble if "four guys" in the plant "did not stop signing statements against
him," and said, "You can call it on account of the Union or whatever you want to call
it."
Twelve days later he was demoted without warning, purportedly on the ground
that he had failed to properly perform his duties.
There is no persuasive evidence to
the effect that he had previously been reprimanded or criticized because of any inade-
quacies in the performance of his work. I find that the motivating cause for his
demotion stemmed primarily from the fact that he had given an affidavit which was
used to oppose Respondent's motion for a further continuance of the hearing, and,
in part, also because of his known union activities and sympathy.
Conclusions
General Counsel contends that Smith's demotion violated Section 8(a)(1) and
(4).
However, it is well settled that the discharge of a supervisor is not a violation
of Section 8(a)(3).
Leonard Niederrite Company, Inc., 130 NLRB 113, 114-115.
A fortiori, the demotion of a supervisor would not be violative of Section 8(a)(3).
A more subtle question arises with respect to finding Respondent's conduct violative
of Section 8(a) (1) and/or (4). In Better Monkey Grip Company, 115 NLRB 1170,
enfd. 243 F. 2d 836 (C.A. 5), cert. denied 353 U.S. 864, the Board held the discharge
of a supervisor because he gave testimony 37 at a Board hearing adverse to the
employer's interests violated Section 8(a)(1) inasmuch as the net effect of the dis-
charge was to cause nonsupervisory employees to reasonably fear similar action
against themselves if they testified against the employer in a Board proceeding to
enforce their guaranteed rights where the cause of the discharge directly or impliedly
was brought to their attention.
The Board also held that rank-and-file employees
are entitled to vindicate their rights through the testimony of supervisors who have
knowledge of the facts without the supervisors risking discharging or other penalty
for giving testimony under the Act adverse to their employer.
For these reasons
the Board found the supervisor's discharge violated Section 8(a)(1), and in view
of his determination found it unnecessary to determine whether the discharge also
violated Section 8(a) (4).38
371 find that Smith's affidavit can be equated with the giving of testimony at a hearing.
Cf. Precision Fittings, Inc., 141 NLRB 1034, 1035.
38 Cf.
Modern Linen & Laundry Service, Inc.
(on remand), 116 NLRB 1974 ;
Eugen
Pedersen (Modern Linen & Laundry Service) v. N.L.R.B.,
234 F. 2d 417 (CA. 2).
38
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Oil City Brass Works, 147 NLRB 627, the Board sustained the Trial Examiner's
finding based upon the Board's decisions in Better Monkey Grip Company, supra,
and Dal-Tex Optical Co., Inc., 131 NLRB 715, enfd. 310 F. 2d 58 (C.A. 5), that
the discharge of a supervisor for testifying violated Section 8(a)(1) when the
employees have knowledge of the fact the supervisor gave testimony and was dis-
charged therefor, and when circumstances exist from which employees would rea-
sonably believe a similar fate would befall them if they gave testimony.
The Board,
however, also reaffirmed its finding in the Better Monkey Grip decision that it was
also a violation of Section 8(a)(1) to discharge a supervisor for giving testimony
adverse to the Respondent's interests in a Board proceeding because "rank-and-file
employees are entitled to vindicate
. [their statutory right to seek vindication
in a Board proceeding]
. through the testimony of supervisors who have knowl-
edge of the facts without the supervisors risking discharge or other penalty for giving
testimony under the Act ......
While there may be some doubt herein as to whether circumstances exist from
which employees would reasonably believe a similar fate would befall them if they
gave affidavits to the General Counsel adverse to Respondent's interests, it is, never-
theless, clear that Respondent's conduct had the tendency to interfere with the Board's
ability to obtain relevant information and supporting affidavits from supervisors, and
thereby obstructed the Board in securing vindication of employee rights protected by
the Act.39
Accordingly, Respondent's conduct violated Section 8(a)(1) of the Act.
In view of this determination, it becomes unnecessary to determine whether the
Smiths' demotion also violated Section 8(a) (4) inasmuch as the remedy would be
the same.
E. The alleged interference, restraint, and coercion of employees
1. The conduct of Davis, Senior
As related hereinabove, Davis, Senior, engaged in conduct including the following:
(a) Delivering a speech to the assembled employees on March 2 on company time
in which he threatened to close the plant if the Union came in; (b) coercively inter-
rogating employees concerning their union interests; (c) creating an impression of
surveillance of their union activities; (d) warning Holder to forget about the Union
or he could be fired at any time because of his criminal record; (e) advising Jim Pat
Smith that he would close the plant if it became unionized; he could sell the printing
machine (operated by Smith) and subcontract the labeling work; Smith could have
a job as a saleman or plant manager if he would advise the Board that he was through
with the Union; he could stock paints in such quantity as to be able to lay off
employees during slack periods; the employees would make less money the following
year if the Union came in; he knew his brother John had attended a union meeting
on or about April 11 and could be fired for it; and better jobs were opening up for
men like him if he would forget the Union; (f) offering Thurman a wage increase
if he would vote against the Union, and to advance him in the Company if he would
leave the Union alone; threatening to fire him and every other employee who signed
a union card, and preventing them from obtaining jobs elsewhere; urging him to sign
the petition to revoke his union authorization card; and requesting him to testify
falsely at the hearing that at the time he signed the union card it was misrepresented
to him that the card was for an election only, and to spread the word to other
employees that a similar misrepresentation had been made to them; and (g) advising
Cleamon E. Smith that he would never operate under a union; that he intended to
get rid of all union adherents, and that Smith should be outspoken against the Union
or resign; and offering Smith a job as plant manager if he would oppose the Union.
In addition to Davis, Senior's aforedescribed conduct, the record also shows the
following: About March 2, he advised employee Ronnie Murray that he was going
to fire the union ringleaders and would guarantee him an hourly wage of $2.25
within 3 years if he stuck with him.
On August 12, he told employee Ronnie Harmon
that he would lay off 20 men if the Union came in; and that would close down the
aerosol and thinner departments and move the texture department to Alabama or
sB Cf. Certain-Teed Products Corporation, 147 NLRB 1517, where the Board found the
employer in violation of Section 8(a)(1) because its conduct had a tendency to obstruct
and impede the 'Board in its investigative and trial procedures, and to deprive employees
of vindication by the Board of their statutory rights.
SOUTHLAND PAINT COMPANY, INC.
39
Tennessee, and Harmon could go to either place or remain in Gainesville if he would
share his opinion about the Union.
On March 13 and 16, he summoned employee
Ed Porter to his office and told him that if the plant went union he would close down
the department showing a loss; that Porter had a bright future with the Company
and he would guarantee him a good job if he would not vote for the Union; and
that he (Davis, Senior) would not sign a union contract.
2. By the conduct of Davis, Junior
As related hereinabove it appears that Davis, Junior, advised Jim Pat Smith and
other employees that he knew of their attendance at union meetings; and that he
and Weed were kept informed by Thurman of what transpired at union meetings.
In addition, the record shows that on February 29 Davis, Junior, telephoned
employee Ed Porter and, after advising him that he knew of his attendance at a union
meeting the night before, asked what could be done to stop the Union. Porter
suggested that a grievance committee be organized to present their problems, to
which Davis, Junior, assented.
Following the speech of Davis, Senior, to the
employees on March 2, Davis, Junior, announced to the employees that a grievance
committee would be organized as previously suggested to him by Porter.
A com-
mittee was thereupon elected consisting of a representative from each department,
which consisted of Porter and other employees.
The committee met in the office of
Davis, Junior, that afternoon and recommended a pay increase for T. L. Ford, a
transfer for James Wilson to the paint department, and a plantwide pay increase.
Davis, Junior, declined to discuss the pay increase because of a telegram he had
received from the Board.
However, on March 11 a notice was posted on the Com-
pany's bulletin board announcing a 5-cent-an-hour increase for all hourly paid
employees and a $2.50 weekly increase for employees receiving a weekly salary.
Conclusions
In view of Respondent's conduct as related hereinabove, and on the entire record,
I find that Respondent interfered with, coerced, and restrained its employees in
the exercise of their guaranteed rights in violation of Section 8(a)(1) by engaging
in the following conduct: creating an impression of, and engaging in, surveillance of
union activities; coercively interrogating employees as to their union activities;
threatening employees with economic reprisals if they continued to support the
Union or if the Union came in; promising economic 'benefits if they repudiated the
Union; threatening to close the plant or departments therein or to move departments
to other localities if the Union came in; threatening never to sign a union contract;
granting a general wage increase during a union organizing campaign for the pur-
pose of influencing their union sympathies; soliciting employees to withdraw their
designation of or membership in the Union and/or assisting them in doing so; demot-
ing a supervisor because he gave an affidavit which was used in the within proceeding;
and requesting and soliciting employees to give false testimony favorable to Respond-
ent at the hearing herein.
N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, 409;
L. E. Farrell Company, Inc.,
153 NLRB 40; Winn-Dixie Stores, Inc., et al.,
143
NLRB 848; Louisiana Manufacturing Company, 152 NLRB 1301. I find it unneces-
sary to determine whether other conduct of Respondent also constituted violations of
Section 8(a) (1) inasmuch as findings of further violations, even if made, would not
affect the Order which is hereinafter recommended.
F. The refusal to recognize and bargain
1. The unit requested for bargaining purposes and its composition
As indicated supra, Respondent had 61 employees on its payroll on March 24,
consisting of 6 office employees, 2 laboratory technicians, 12 truckdrivers, and 41
employees in the production and maintenance departments.
The Union requested
that Respondent recognize and bargain with it for all production and maintenance
employees, including shipping and receiving employees at Respondent's Gainesville,
Texas, plant, exclusive of all office clerical, technical and professional employees,
over-the-road truckdrivers, guards, and supervisors as defined in the Act.
General
Counsel claims that this unit is an appropriate one for collective-bargaining purposes
and should consist of 34 employees working in the production and maintenance
40
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
departments whose status as rank-and-file employees was not questioned ,40 and should
also include Floyd Bishop, Leon Brinkly, J. R. Hiser, and John R. Smith as rank-
and-file employees, for a total of 38 employees .
Respondent contends that the 12
over-the-road truckdrivers should be included in the unit, and that Floyd Bishop,
Leon Brinkly, J. R. Hiser, and John R. Smith should be excluded from the unit
because they are supervisors. It having been established supra, that these four
employees were supervisors, I find that they are excluded from the requested unit.
The Over-The-Road Truckdrivers
Respondent stipulated that it never had a collective-bargaining agreement with
the Union, that no union other than the subject Union has sought to represent any of
its employees since March 24, and that no union has sought to represent its truck-
drivers separately from its other employees. In support of its contention that the
truckdrivers should be included in the requested unit, Respondent claimed that there
is a strong community of interest between the drivers and the rest of the plant.
The
truckdrivers operate bobtail trucks, single-axle trailer-trucks and tandem truck-and-
trailer type trucks, and their wages depend upon the type of truck driven and vary
from $82.50 to $102.50 a week, whereas the production and maintenance employees
are paid on an hourly basis.
Holder testified without contradiction that he worked
as a driver during the period from April 1962 to May 1963, and knew of no instance
where a truckdriver was transferred to work in the plant or of an inside plant worker
being assigned to drive a truck 41
Deliveries are made by the truckdrivers locally
and to distant points in Mississippi, Louisiana, Alabama, Florida, and Georgia.
The drivers are required to take medical examinations, to carry a doctor's certificate
at all times, and to have a special driver's license to drive a truck.
They are subject
to interstate commerce regulations not applicable to other employees of Respondent,
and are required to keep certain records, including a logbook indicating the number
of hours worked per day, which according to the Interstate Commerce Commission
regulations are limited to 10 hours on and 8 hours off. In the performance of their
duties they may be away from the plant up to 16 days at a time and generally are
out of town more frequently than in town, the usual trip taking from 1 to 2 weeks.
After returning from a trip the drivers remain at home until called to make another
delivery.
They are given credit cards to buy fuel and are required to keep records
indicating their purchases of fuel, and are also furnished with expense money.
I find that there is no community of interest between the truckdrivers and the
production and maintenance employees which would require their inclusion in the
bargaining unit requested by the Union.
Their hours of employment, the nature
of their work and, for the most part, the areas in which they work are different.
Nor
has it been established that there is any interchange between the two groups except
for two isolated instances.
The drivers alone are subject to special regulations of
the Interstate Commerce Commission.
Furthermore, there is no history of any
representation or bargaining on behalf of the drivers and no labor organization has
sought to represent them.
Under all these circumstances, I find that the truckdrivers
should be excluded from the requested bargaining unit. See E. H. Koester Bakery
Co., Inc., 136 NLRB 1006, 1008-1013.
4O They are Brinkly, Thomas (texture department-paintmaker) ; Brinkly, Truman B.
(extra band ) ; Brown, George
( truck and plant maintenance ) ; Flietman, Henry W. (paint
packer) ; Floyd, Ruby (aerosol packer) ; Ford, T. L. (paint labeling) ; Gallagher, Jay
(general utility, cleanup, and paintmaking) ; Gallagher, Thelma (aerosol packing) ; Grew-
ing, Edward
( shipping helper ) ; Harmon, James
( paint packing-texture) ; Hellums, J. C.
(paint packing ) ;
Hensley,
Don
(shipping helper ) ;
Hess, Julius
(paintmaker) ;
Hol-
der, A. C.
( shipping helper ) ;
Johnson, Richard (general plant maintenance ) ;
Jones,
Bill M. (paintmaker) ; LeFevre, Jerry (paintpacker) ; LeFevre, Wally (paintpacker)
Leverett, Emma (aerosol ) ; Kidd, Thomas (paintmaker-aerosol department ) ; Mullins,
Weldon W.
(unloading department ) ; Murray, Jewell
(aerosol department ) ; Murray, Ron-
nie (thinner department ) ; Noggler, Ted (shipping helper ) ; Perry, Johnny (unloading
department) ; Porter, E. D. (tinting department) ; Rosson, Elbert (shipping department)
Simmons, Billy
( packer-paint ) ; Smith , Albert
( truck and plant maintenance ) ; Smith,
Jim Pat (printing) ; Thurman, Kenneth (shipping helper) ; Ward, Letha (aerosol)
Whitfield, L. L. (thinner department) ; and Wilson, James E. (paintmaker).
41 However, between May 1963 and May 1964, Holder admittedly drove an over-the-road
truck on two occasions , the first in February or March 1964 , when Jarrell called upon
him to drive Bill Argo's truck because he was ill and in bed , and the second in the spring
of 1964, when Jarrell had him tow a broken -down truck.
SOUTHLAND PAINT COMPANY, INC.
41
I accordingly find that the 34 employees named hereinabove constitute an appro-
priate unit for collective-bargaining purposes.
2. The card majority
In view of the finding made hereinabove that the unit appropriate for purposes of
collective bargaining consisted of 34 employees, it must be established that the Union
obtained at least 18 valid union authorization cards to attain a majority
status.
General Counsel contends that 24 employees executed valid cards including Hiser,
John R. Smith, and Leon Brinkly.42 Inasmuch as these three individuals were found
to be supervisors and excluded from the unit, their cards may not be counted in deter-
mining whether the Union represented a majority of the employees. It is significant
to note that all the cards on their face contained a designation of, and authorization to,
the Union to bargain on behalf of the signers as their exclusive collective-bargaining
agent in all matters relating to wages, rates of pay, and conditions of work with Re-
spondent.
Respondent attacked the validity of the cards on the grounds that altera-
tions and insertions were made after cards were signed, that cards were obtained upon
representations that they were to be used solely for the purpose of obtaining an elec-
tion, and that supervisors actively participated in obtaining cards.
Respondent in its
brief specifically attacks the cards signed by the following employees:
John Perry: J. W. Trisler 43 testified that at a union meeting at his home on Febru-
ary 28, attended by Perry and other employees, he discussed the subjects to be encom-
passed in a union contract and then asked the employees present to sign cards
which he handed out if they wished to have the Union represent them in collective
bargaining with the Company. Perry then signed a card (General Counsel's Exhibit
No. 6(D)) and Trisler filled in the name of the Employer, the date, and also witnessed
the card.
Perry testified that he attended the union meeting, that there was discus-
sion about employees needing more money, that he signed the card at the request
of Ronnie Harmon, who told him that signing the card would bring it to a vote, that
he read the card before he signed it, and that he gave a signed statement to the Board
in which he stated that he signed the card to have the Union represent him for bar-
gaining purposes.
Respondent contends that Perry's card should be invalidated
because he signed the card only for the purpose of having an election and not to have
the Union designated as his bargaining agent, and also because Trisler filled in the
name of the Employer on the card. I find that Perry was not misled, by what he
was told, into believing that this card was signed for the limited or sole purpose of
obtaining an election, and that it was indicated to him that by signing a card he was
authorizing the Union to represent him for bargaining purposes.
Furthermore Tris-
ler's insertion of Respondent's name on the card did not under the circumstances
invalidate Perry's card for the purpose of defeating the Union's majority status.
Henry Spen & Company, Inc., 150 NLRB 138. Accordingly, I conclude that Perry's
card is a valid authorization to the Union to represent him and may be counted in
determining the Union's majority status.
Julius Hess: Hess testified that he had been advised by a friend who worked at
National Supply Company that signing the card was just to bring it to a vote.
He
also stated that Ronnie Harmon gave him the card to sign, that he did not remember
whether Harmon spoke to him about the card, and that he read the card before sign-
ing it.
Harmon testified that on March 18, he handed a card to Hess in the paintroom
at Respondent's plant, that Hess started to sign the card and then said "Wait a minute,
let me read it." After looking at it for a few seconds he signed it and handed it back
to Harmon. Respondent contends that Hess also signed the card only for the purpose
of having an election.
There is no evidence to establish that the card solicitor made
any representations to Hess concerning the purpose for signing the card, and it also
appears that Hess read the card before signing it on March 18. The advice imparted
to him by a friend who had no connection with the solicitation of the card is irrele-
vant.
In these circumstances the card is valid for the purpose of determining the
Union's majority status.
Furthermore, an employee's thoughts (or afterthoughts)
as to why he signed the card cannot negative the overt action of having signed a card
designating a union as bargaining agent.
Joy Silk Mills, Inc. v. N.L.R.B., 185 F. 2d
723, 743 (C.A.D.C.).
42 The other employees are James E. Wilson, James It. Harmon, Arthur C. Holder, Jr.,
John Ralph Perry, Wayne Mullens, Jim Pat Smith, Edward Porter, Ronnie (David R.)
Murray, Edward Grewing, Kenneth J. Thurman, Lloyd Linn Whitfield, Ted Noggler,
Billy E. Simmons, Julius Hess, Jewell Murray, Henry W. Flietman, Bill Jones, Thomas
Brinkly, Emma Leverett, Ruby Floyd, and Letha Ward.
43President of the United Steelworkers of America, Local 5302, who assisted in orga-
nizing Respondent's employees on behalf of the Union.
42
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wayne Mullins: Mullins testified that he signed a card on February 28, at Trisler's
home after being told by him that the purpose was to have the Union bargain for
him and bring it to a vote. It definitely appears that Mullins was not told that sign-
ing a card was for the sole purpose of bringing it to a vote. Even regarding what
was said to Mullins in a light most favorable to Respondent's contention, that his
card was obtained solely for an election, I find that he was told that signing a card
served a dual purpose-union representation as well as a Board election. I, accord-
ingly, conclude that his card is valid for the purpose of determining the Union's
majority status.
See Cumberland Shoe Corporation, 144 NLRB 1268; cf. Engle-
wood Lumber Company, 130 NLRB 394.
Bill Jones: Jones testified on direct examination that Jim Pat Smith brought the
card to his home and he signed it after Smith told him that the card was to bring it
to a vote.
On cross-examination he admitted that he read the card and filled in the
top three lines before signing it, that he asked Smith what the card was all about
and was told that the Union would be his bargaining agent, and that the card did
not mean anything.
When specifically asked "did he (Smith) ever say that he was
not going to use the card for the purpose of bargaining?" Jones replied, "I remember
him saying he would." Jim Pat Smith testified that he visited Jones' home on
March 11, that he told him the card was a union authorization card for representation
by the Union, that they were planning to petition for an election right away and it
would be in a short while, and that he did not tell him to sign the card for the
purpose of having an election.
Viewing the evidence in its totality, I find that it
reflects that Jones was told, in effect, that signing the card was for the purpose of
having the Union bargain for him as well as to prepare for an election, and not
solely for an election as asserted by Respondent. I, accordingly, find that his card
is valid for the purpose of determining the Union's majority status.
Cumberland
Shoe Corporation, supra.
Ted Noggler: Noggler testified that sometime in February John R. Smith handed
him a card in Respondent's warehouse while they were alone and told him it was to
bring it to a vote.
He also stated that Smith might have told him that the card
authorized the Union to represent him but at the same time he also said it did not
mean anything but to bring it to a vote.
On cross-examination he admitted that he
glanced at the card before filling out the top three lines and signing it, that Smith
filled the date in, and that although he was not sure whether it was John Smith or
Jim Pat Smith who talked to him about the card, he believed it was John. Jim Pat
Smith testified that on or about February 28, in the presence of his brother John,
he asked Noggler what he thought about having a union and told him he had some
authorization cards, that Noggler asked for one, stating that he wanted to sign it, and
that he then signed the card after filling in his name, his address, and the name of
the Employer. In view of Noggler's uncertainty as to whether he was told that the
card authorized the Union to represent him or whether John or Jim Pat Smith solicited
his card, I credit Jim Pat Smith's forthright testimony that he solicited Noggler's
card, and I find that no representation was made to Noggler to the effect that signing
the card was solely for the purpose of obtaining an election.
Although the card
was solicited and signed in the presence of John R. Smith, a supervisor, that circum-
stance does not invalidate the card for the purpose of determining the Union's majority
status because he did not actively participate in its solicitation.
The Hamilton Plastic
Molding Company, 135 NLRB 371, 373; cf. Insular Chemical Corporation and
Rubber Corporation of America (Insular Division), 128 NLRB 93, 98. In these
circumstances I find that Noggler signed a valid card which can be counted toward
establishing the Union's majority status.
Ruby Floyd and Emma Leverett: Ruby Floyd and her daughter, Emma Leverett,
signed authorization cards at the latter's home in February when Jim Pat Smith,
John R. Smith, and A. C. Holder called at Leverett's home for that purpose.
Ruby
Floyd testified that Jim Pat Smith asked them to sign the cards for the purpose of hav-
ing an election, that she did not remember the rest of the conversation which took
place, that John R. Smith did not say anything, and that she signed the card without
reading it.
Emma Leverett testified that they were told 50 percent of the employees
had to sign cards to obtain an election, and that the Union would be their bargain-
ing agent if they signed the cards. Jim Pat Smith testified that on the night in ques-
tion he asked Emma Leverett and Ruby Floyd what they thought about having a
union, that in reply they asked whether a union could help them and he said it
could, that he also told them the cards which he was asking them to sign were union
authorization cards, and that they then signed up.
He testified further that after
the cards were signed they discussed having an election in the future and petitioning
SOUTHLAND PAINT COMPANY, INC.
43
the Board for one. Based on the demeanor of the parties and the manner in which
they testified, I credit the testimony indicating that Jim Pat Smith advised Ruby Floyd
and Emma Leverett that the Union would be their bargaining agent if they signed
cards.
Respondent contends that these employees signed cards for the purpose of
having an election.
The Board has stated, "If cards are to be voided on the ground
that the employees were misled into believing the cards would be used for a different
or more limited purpose, this must be done on the basis of what the employees were
told, not on the basis of their subjective state of mind when they signed the cards."
Peterson Brothers, Inc., 144 NLRB 679, 682.
Moreover, it is well settled that an
"employee's thoughts (or afterthoughts) as to why he signed a union card-cannot
negative the overt action of having signed a card designating a union as bargaining
agent."
Joy Silk Mills, Inc. v. N.L.R.B., supra.
I find that the cards of Floyd and
Leverett authorized the Union to represent them and may be counted in determining
the Union's majority status.
Thomas Brinkly: Thomas Brinkly testified that Jim Pat Smith and Trisler came to
see him at his home, that they talked about what had been done by unions for
employees of some companies, that he was unable to recall the names of the com-
panies or what the unions had done, that Trisler asked him to sign a card in order
to have an election, that he did not read the card before signing it, and that he
never attended any union meetings.
Trisler testified that on March 13, he and Jim Pat
Smith visited the home of Thomas Brinkly where they met his brother Leon, that
after advising Thomas and Leon that they came to have Thomas sign a union card,
Leon stated that he had been trying to get his brother to sign one and was glad that
they had come for that purpose, that they then discussed the advantages of having
a union represent Respondent's employees and also compared their wage rates and
other conditions of employment with those of other paint companies, that Leon
spoke favorably of unions and related his past experiences with them, and that after
Leon left, Thomas went out to his car, accompanied by Trisler and Smith, where he
signed a union card after Trisler told him to read it carefully. I find that Leon
Brinkly, a supervisor, actively participated in soliciting his brother, Thomas, to sign
an authorization card. In conformance with the Board's decision in Insular Chemical
Corp., supra, I conclude that Thomas Brinkly's card is invalidated for the purpose
of determining the Union's majority status because he was actively solicited by a
supervisor.
Respondent also attacks the validity of the cards signed by James Wilson and
Jim Pat Smith on the ground that J. W. Trisler inserted the name of Southland Paint
Company on their cards; the card signed by Kenneth J. Thurman because J. W.
Trisler erased the name of "R. A. Davis" which appeared on the card as employer,
and inserted in lieu thereof the name "Southland Paint Co."; the cards signed by L. L.
Whitfield and Jewell Murray because J. W. Trisler inserted the dates on those cards;
and the cards of other unidentified employees because J. W. Trisler signed his name
as a witness to their signatures although he, in fact, did not witness the signing of
such cards.
The preponderance of the evidence amply supports findings that the
above-named employees signed their cards for the purpose of having the Union
represent and bargain for them with Respondent prior to March 24 when the Union
requested recognition as the exclusive bargaining agent of Respondent's employees.
The fact that insertions or changes were made on the cards as claimed by Respondent
does not under the circumstances invalidate them for the purpose of determining the
Union's majority status. See Henry Spen & Company, Inc., supra.
The other employees who signed cards, which General Counsel contends should
be counted in determining the Union's majority status and whose validity was not
specifically attacked in Respondent's brief are James R. Harmon, A. C. Holder,
Edward Grewing, Henry W. Flietman, Billy E. Simmons, Ronnie Murray (David
Ronnie Murray), Edward Porter, and Letha Ward.
Harmon, Holder, and Grewing signed their cards at the Union's first meeting on
February 28, following a discussion of subjects which would be encompassed in a
union contract, and after being invited by Trisler to sign cards if they wished the
Union to represent them in bargaining negotiations with Respondent.
Flietman
signed a card on February 28 in Respondent's warehouse after being asked by Crew-
ing whether he was interested in the Union and wanted to join it. Simmons signed
a card at a union meeting on March 14 following a discussion of the Union's organi-
zational campaign during which it was brought to his attention that he had not as
yet signed a card.
Ronnie Murray and Edward Porter signed cards on March 8 at
Porter's home after being told by Cleamon Smith that all employees should sign cards
to have the Union represent them in order to obtain better working conditions at
44
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southland Paint Company. Letha Ward signed a card during the first week in March,
after being asked whether she would like to sign a card to have the Union represent
her, and following a discussion with Trisler concerning the effect a union would have
on the seniority of women, employees, union dues, and the prospects of an election.44
I conclude that the evidence amply supports finding that the representations made
to the above employees and the circumstances attending the solicitation of their cards
clearly reflect and corroborate the purpose of the card as printed thereon.45
In view of the foregoing and on the record as a whole, I find that prior to March 24
the Union represented 20 employees who constituted a majority of Respondent's
employees in an appropriate unit.
The Demand for the Return of Union Authorization Cards
The record shows that upon the request of Letha Ward on April 17, Joyce Berry,
Respondent's bookkeeper, prepared and typed a letter addressed to the Union,
demanding the immediate return of the union cards of those employees who signed
the letter48
Joyce Berry testified that after preparing the letter, she circulated it
among the employees and obtained 13 signatures which appear on the letter and
then mailed it to the Union. She stated that she acted without consulting or advising
any of Respondent's officers in preparing and circulating the letter, and that she
took care of the matter because Letha Ward was unable either to prepare the letter or
leave her work to obtain the signatures of the employees.
The cards, however, were
not returned 47
3. The demand for recognition and its refusal
In January, James Q. Stewart, an employee of the Industrial Union Department,
AFL-CIO, was assigned to organize Respondent's employees, and he appointed J. W.
Trisler to assist him.
Respondent does not deny that in March it received a letter
dated March 24 from the Union signed by Stewart, which sets forth that the Union
represented a majority of Respondent's production and maintenance employees,
including shipping and receiving employees, exclusive of office clerical, technical,
and professional employees, over-the-road truckdrivers, guards, watchmen, and super-
visors as defined in the Act; that it offered to prove its majority status through a
mutually acceptable outside party and requested a meeting within 5 days for that
purpose; that it requested recognition as the exclusive bargaining agent for the
employees in that unit; and that it requested a meeting for the purpose of negotiating
a collective-bargaining contract.
Respondent did not avail itself of any of the Union's
proposals or comply with any of its requests.
Thereafter, on May 8, Stewart visited
Respondent's plant where he met Davis, Junior, and Weed, and offered to bargain
with Respondent on the terms and conditions of employment of its employees and
to enter into an agreement.
Davis, Junior, stated that he would seriously consider
it if the Union could show that it had a contract with a paint company in Texas.
When Stewart pointed out that the Union had a contract with Socony Vacuum,
Davis, Junior, replied that he was not talking about that type of company, that he
would not bargain with the Union, and that he ". . . can get an 18-month delay by
going through the Board's Decisions." 48 Stewart thereupon left the plant and has
since had no further contact with Respondent.
44 Ward's testimony that she signed only to have an election was vague , uncertain, and
not persuasive and is not credited.
45 Although Joe Buck, a supervisor , was present at the time Murray and Porter signed
their cards, his presence did not invalidate their cards because he was also persuaded to
sign a card at the time, thereby indicating not only that he did not actively participate
in solicitng cards but rather that he was the subject of solicitation himself.
Cf. The
Hamilton Plastic Molding Company, supra.
48 Ruby Floyd testified that after hearing a rumor that the Union was coming in without
an election, she consulted a Board representative who advised her how to proceed to
retrieve her union authorization card, and that she, with Letha Ward, approached Joyce
Berry to prepare the letter.
47 The effect of the attempted revocation of the cards is discussed infra.
48 Respondent admits that it refused to bargain with the Union but claims, as testified
to by Davis, Junior, that when Stewart asked him whether he was ready to bargain,
Davis, Junior, refused, stating there had been no election and he doubted whether the
Union represented a majority of the employees.
The demeanor of the parties testifying
and Respondent's violative conduct prior to May 8, strengthens the impression that the
conversation occurred as asserted by Stewart , whose version as related above, is credited.
SOUTHLAND PAINT COMPANY, INC.
45
Conclusions
I find that an unequivocal demand for recognition and bargaining was made by
the Union on March 24, which was completely ignored by Respondent .
Respond-
ent's assertion that it refused to recognize and bargain with the Union because it did
not believe a majority of its employees desired the Union to represent them as their
bargaining agent is neither persuasive nor meritorious .
"Failure to respond to a
union's bargaining request may be justified by an employer on the ground that it had
a good-faith doubt as to the union 's majority and needed time to determine whether
the union represented a majority of the employees .
In order to determine the
validity of a claim of good faith, however, the Board looks to the employer's entire
course of conduct."
Cactus Petroleum , Inc., 134 NLRB 1254, 1258-1260.
When an
employer fails without good reason, as here, to respond to the requests of the union
which represents a majority of its employees or to avail itself of any of the sugges-
tions offered by the union to prove its majority status , and instead continues to engage
in a course of improper conduct which is either calculated to or tends to destroy that
majority, it does not demonstrate the good faith required to justify its failure to
bargain.49
Nor is it of any consequence that some of the employees sought to revoke
their union authorization cards on April 17. "The fact as to whether an employer
entertains a genuine doubt that a union represents a majority of the employees is to
be determined as of the time the employer refused to recognize the union.
Once
it is shown that the employer entertained no genuine doubt of this kind at the time
it refused to bargain , an unfair labor practice has been established.
The fact that, as
it later developed, there were grounds that might have created genuine doubt at the
time is immaterial ."
Fred Snow, et al., d/b/a Snow & Sons, 134 NLRB 709, enfd. 308
F. 2d 687 (C.A. 9). See also , N.L.R.B. v. Kellogg's, Inc., d/b/a Kellogg Mills, 347
F. 2d 219 ( C.A. 9); Franks Bros. Co. v. N.L.R.B., 321 U.S. 702. Moreover , it appears
that during the period between the request for recognition and the signing of the
letter demanding the withdrawal of the cards , Respondent engaged in coercive activity,
and it cannot take advantage of defection in the ranks of union supporters.50
The
Colson Corp . v. N.L.R .B., 347 F. 2d 128 (C.A. 8 ).
Accordingly, I find that the
Union represented a majority of employees in the unit found appropriate on March 24
and at all relevant times thereafter.
Having found that Respondent was not motivated by a good-faith doubt of the
Union's majority status at the time it ignored the Union 's request for recognition
and bargaining , and that the reason it declined to recognize and bargain with the
Union was based on a desire to gain time in which to undermine the Union 's support,
I find that Respondent violated Section 8(a) (5) since March 24, when the Union in
fact represented a majority of its employees in an appropriate unit.
Joy Silk Mills,
Inc. v. N.L .R.B., supra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in connection
with the operations of Respondent described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic , and commerce among the several
States, and, such of them as have been found to constitute unfair labor practices,
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8(a)(1), (3 ), and (5 ) of the Act, it will be recommended that it cease and
desist therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
Having found that Respondent on March 24 , and at all relevant times thereafter,
has refused to bargain collectively with the Union as the duly designated representa-
tives of the employees in an appropriate unit, it will be recommended that Respond-
ent, upon request, bargain collectively with the Union as the exclusive representative
of said employees , and if an agreement is reached , embody such understanding in
a signed statement.
'0 Cactus Petroleum, Inc., supra ; Joy Silk Mills, Inc. v. DT.L.R.B., supra.
60 As related , supra, this activity even extended to unlawfully bringing pressure to bear
on Kenneth I. Thurman to sign the letter revoking his union card , even assuming that
the impetus for withdrawal of the cards originated with the employees rather than with
Respondent.
46
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that Respondent discriminatorily (1) discharged Cleamon E. Smith
on August 10 and rehired him on November 9, (2) discharged A. C. Holder on
May 15 and rehired him on June 10, (3) discharged Kenneth J. Thurman on Decem-
ber 18, (4) suspended Jim Pat Smith for 1 week beginning September 19, and (5)
demoted John R. Smith from a supervisory position to a rank-and-file job on Novem-
ber 30, it is recommended that Respondent offer Kenneth J. Thurman and John R.
Smith reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges. It is also recommended
that Respondent make Cleamon E. Smith, A. C. Holder, Jim Pat Smith, John R.
Smith, and Kenneth J. Thurman whole for any loss of pay each of them may have
suffered by reason of Respondent's discrimination against them, by payment to each
of a sum of money equal to the amount each normally would have earned from the
date of the discrimination against them to the date of Respondent's offer to reinstate-
ment, less their net earnings during, that period, backpay and interest thereon at the
rate of 6 percent to be computed and paid in accordance with and in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating
Co., 138 NLRB 716.
The unfair, labor practices found .to have been engaged in by Respondent are of
such character and scope that in order to insure Respondent's employees of their
full rights guaranteed them by the Act, it will be recommended that Respondent
cease and desist from in any manner interfering with, restraining, or coercing its
employees in the exercise of their guaranteed rights.
Upon the basis of the foregoing findings of fact, and upon the record as a whole,
I make the following:
CONCLUSIONS OF LAW
1. Respondent is, and during all times material herein was, an employer engaged
in commerce and in a business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is, and during all times material herein was, a labor organization
within the meaning of Section 2 (5) of the Act.
3. By discriminating in regard to hire and tenure of employment and the terms
and conditions of employment of Cleamon E. Smith, A. C. Holder, Jim Pat Smith,
and Kenneth J. Thurman, thereby discouraging membership in the Union, Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a) (3) and (1) of the Act.
4. All Respondent's production and maintenance employees, including shipping
and receiving employees employed at its Gainesville, Texas, plant, exclusive of all
office clerical, technical, and professional employees, over-the-road truckdrivers,
guards, and supervisors as defined in the Act, constitute, and at all times material
herein constituted, a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
5. The Union was on March 24, and at all times relevant thereafter has been, the
exclusive representative of all the employees in the above-described appropriate unit,
for the purposes of collective bargaining within the meaning of Section 9(a) of the
Act.
6. By failing on March 24, and at all times thereafter, to bargain collectively with
the Union, as the exclusive representative of the employees in the appropriate unit,
Respondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8(a) (5) and (1) of the Act.
7. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act to the extent hereinabove set forth and
found, Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (1) of the Act.
8. The aforesaid'unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in this case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, it is recommended that the Respondent, Southland Paint
Company, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Oil, Chemical and Atomic Workers International
Union, AFL-CIO, or in any other labor organization of its employees, by discrimi-
nating in regard to their hire, tenure, or any terms or conditions of their employment.
SOUTHLAND PAINT COMPANY, INC.
47
(b) Refusing, upon request, to bargain collectively with Oil, Chemical and Atomic
Workers International Union, AFL-CIO, as the exclusive representative of all
employees in the following appropriate unit: All production and maintenance
employees, including shipping and receiving employees, of Southland Paint Company,
Inc., at its Gainesville, Texas, plant, exclusive of all office clerical, technical, and
professional employees, over-the-road truckdrivers, guards, and supervisors as defined
in the Act.
(c) Creating an impression of, or engaging in, surveillance of employee union
activities; coercively interrogating employees as to their union activities; threatening
employees with economic reprisals if they continued to support the Union or if the
Union came in; promising or offering economic benefits to their employees if they
repudiated the Union; threatening to close the plant or departments therein or to
move departments to other localities if the Union came in; threatening never to sign
a union contract; granting general wage increases to their employees for the purpose
of influencing their union sympathies; soliciting employees to withdraw their desig-
nation of or membership in Oil, Chemical and Atomic Workers International Union,.
AFL-CIO, or any other labor organization, and/or assisting them in doing so;
demoting supervisors because they furnish affidavits in Board proceedings; and
requesting and soliciting employees to give false testimony at Board hearings.
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any and all such activities.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Offer to John R. Smith and Kenneth J. Thurman immediate and full rein-
statement to their former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make each of them whole for any
loss they may have suffered as a result of the discrimination against them, in the.
manner set forth in the section of this Decision entitled "The Remedy."
(b) Make Cleamon E. Smith, A. C. Holder, and Jim Pat Smith whole for any
loss each of them may have suffered as a result of the discrimination against them,
in the manner set forth in the section of this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary for the deter-
mination of the amount of backpay due.
(d) Notify Kenneth J. Thurman, if presently serving in the Armed Forces of the
United States, of his right to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military Training and Service Act of
1948, as amended, after discharge from the Armed Forces.
(e) Upon request, bargain collectively with Oil, Chemical and Atomic Workers
International Union, AFL-CIO, as the exclusive representative of the employees
in the appropriate unit with respect to rates of pay, wages, hours of employment,
and other conditions of employment, and, if an understanding is reached, embody
such understanding in a signed statement.
(f) Post at its plant in Gainesville, Texas, copies of the attached notice marked
"Appendix." 51
Copies of said notice, to be furnished by the Regional Director for
Region 16, shall, after being duly signed by an authorized representative of South-
land Paint Company, Inc., be posted by Respondent immediately upon receipt thereof,
and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by said Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(g) Notify the Regional Director, in writing, within 20 days from the date of the
receipt of this Decision, what steps Respondent has taken to comply herewith.52
61 If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice shall be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order".
63 In the event that this recommended Order is adopted by the Board, this provision
shall be modified to read, "Notify the Regional Director for Region 16, in writing, within
10 days from the date of this Order, what steps Respondent has taken to comply
herewith."
48
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 of any of our employees in Oil, Chemi-
cal and Atomic Workers International Union, AFL-CIO, or any other labor
organization, by discharging, suspending, or in any other manner discriminating
against any employees in regard to their hire or tenure of employment, or any
other term or condition of employment.
WE WILL NOT refuse to bargain with the aforedescribed Union as the exclu-
sive bargaining representative of our employees in the appropriate unit noted
below with respect to wages, hours of employment, and other terms and condi-
tions of employment.
WE WILL NOT interfere with, restrain, or coerce our employees in the exercise
of the rights guaranteed in Section 7 of the Act, by creating an impression of,
or engaging in, surveillance of employees' union activity; coercively interrogat-
ing employees as to their union activities; threatening employees with economic
reprisals if they continue to support the Union or if the Union came in; promis-
ing or offering economic benefits to employees to repudiate the Union; threaten-
ing to close the plant or departments therein or move departments to other
localities if the Union came in; threatening never to sign a union contract;
granting wage increases for the purpose of influencing employees in the union
sympathies; soliciting employees to withdrawn their designation of or member-
ship in the Union and/or assisting them in doing so; demoting supervisors
because they furnish affidavits in Board proceedings; and requesting and solicit-
ing employees to give false testimony at Board hearings.
WE WILL NOT in any other manner interfere with, restrain or coerce employees
in the exercise of their rights to self-organization, to form, join, or assist the
above-named or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL bargain, upon request, with the above-named labor organization as
the exclusive bargaining representative of all employees in the bargaining unit
described below with respect to wages, rates of pay, hours of employment, or
other conditions of employment, and, if an understanding is reached, embody
such understanding in a signed agreement.
The bargaining unit is:
All production and maintenance employees, including shipping and
receiving employees, of Southland Paint Company, Inc., at its Gainesville,
Texas, plant, exclusive of all office clerical, technical, and professional
employees, over-the-road truckdrivers, guards, and supervisors as defined
in the Act.
WE WILL offer Kenneth J. Thurman and John R. Smith immediate and full
reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges.
WE WILL make whole employees Cleamon E. Smith, A. C. Holder, Jim Pat
Smith, John R. Smith, and Kenneth J. Thurman for any loss of pay they may
have suffered as the result of the discrimination against them.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of any labor organization.
SOUTHLAND PAINT COMPANY, 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.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, Sixth Floor,
Meacham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No. Edison
5-4211, Extension 2131.