Augusta Bedding Co.

National Labor Relations Board - Board Decisions

Feb 13, 1951

93 N.L.R.B. 211 (N.L.R.B. 1951)

AUGUSTA BEDDING COMPANY 211
CONcLusIONs of LAW
1. The Respondent, Davis Motors, Inc., is engaged in trade, traffic, and com-
merce within the meaning of Section 2 (6) and (7) of the Act.
2. International Association of Machinists, District Lodge No. 86, is a labor
organization within the meaning of Section 2 (5) of the Act.
3. All mechanics, mechanic helpers, apprentices, body mechanics, metal men,
painters, trimmers, full-time polishers and lubricators, excluding office employees,.
sales employees, parts employees, washers, porters, and supervisors, is a unit
appropriate for collective bargaining within the meaning of Section 9 (b) of
the Act.
4. The Union was on July 24, 1950, and at all times since has been, the exclusive
bargaining representative of the employees in the unit set forth in paragraph
3 above.
5. By refusing to bargain collectively with the Union on August 8, 1950, the
Employer has engaged in, and is engaging in, unfair labor practices within the
meaning of Section 8 (a) (5) and (8) (a) (1) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
AUGUSTA BEDDING COMPANY and WILLIAM G. DENNEY. Case No.
10-CA-876. February 13, 1051
Decision and Order
On October 30, 1950, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices in violation of Section 8 (a) (1) of the Act and recom-
mending that it cease and desist therefrom, and take certain affirmative
action, as set forth in the copy of Intermediate Report attached hereto,
and finding that the Respondent had not engaged in unfair labor
practices in violation of Section 8 (a) (3) and 8 (a) (4) as alleged
in the complaint. The Section 8 (a) (4) allegations of the complaint
were dismissed by the Trial Examiner upon the Respondent's motion
at the conclusion of the hearing. In the Intermediate Report the
Trial Examiner recommended dismissal of the 8 (a) (3) allegations.
Subsequent to advice by the Respondent to the Board of the Respond-
ent's intention to comply with the recommended order contained in
the Intermediate Report, the General Counsel filed exceptions to the
Intermediate Report together with a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
I Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations
Board has delegated its powers in connection with this proceeding to a three-member panel
[ Chairman Herzog and Members Reynolds and Murdock].
93 NLRB No. 33.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the hearing, including the dismissal of the Section 8 (a) (4) allega-
tions of the complaint, and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. The Board has considered
the Intermediate Report, the exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the following additions
and modifications :
The Trial Examiner found, and we agree, that the Respondent by
threatening and Interrogating its employees concerning certain con-
certed activities interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act by
specific conduct enumerated in the Intermediate Report. He also
found that certain other conduct depicted by the record either did not
fall within the scope of the complaint or did not violate section 8 (a)
(1) of the Act.
The complaint and the particulars submitted by the General Coun-
sel alleged that the Respondent violated Section 8 (a) (1) of the
Act by :
(a) Threatening and warning its employees to refrain from assist-
ing, becoming members of, or remaining niembers of the Union; and
(b) Interrogating its employees concerning their union activities
and membership.
The record contains uncontradicted evidence that Cooney, Respond-
ent's president, declared, in the presence of employees, that he would
not recognize "this or any other union." The issue thus raised in-
volves the decision as to whether a threat that the Respondent would
not bargain with this or any other union is such a threat as was en-
visaged by the complaint. In our opinion it is clear that a threat to
its employees involving an anticipatory refusal to bargain is tanta-
mount to a threat to its employees to refrain from assisting or
becoming members of any union.2
The Trial Examiner absolved the Respondent of any violation of
Section 8 (a) (1) in connection with Cooney's reply to the assembled
employees, during a question period following his speech, to the effect
that the employees of the Georgia-Carolina Brick and Tile Company
"were still walking the streets, looking for employment and probably
wouldn't find any here; and that if [the Respondent's employees] kept
on [they] would probably be walking the streets with them looking for
employment." We do not agree with the Trial Examiner's resolution
of this issue by considering subsequent events. The coercive character
2 Member Reyonlds does not believe that this statement falls within the specificity- of the
pleadings, although he is of the opinion that this type of statement constitutes a N iolation
of Section 8 (a) (1) of the Act if properly alleged.
AUGUSTA BEDDING COMPANY 213
of the statement in question must be appraised as of the time of its
utterance. In view of the circumstances under which this statement
was made, the reference to the possibility of the Respondent's em-
ployees' loss of employment must be considered as a thinly veiled threat
of loss of employment as the price of adherence to the Union in the
absence of clarification to show that the speaker was referring only to
the consequences of strike action, if such was his intention. Contrary
to - the Trial Examiner, we find that by this statement Cooney
threatened his employees in violation of Section 8 (a) (1) of the Act.'
Order
Upon the entire record in the case and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Augusta Bedding
Company, Augusta, Georgia, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Threatening and interrogating its employees concerning their
union or other concerted activities.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self -organization,
to form labor organizations, to join or assist 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
or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8 (a) (3) of
the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post 4 at its plant in Augusta, Georgia, copies of the notice at-
tached hereto and marked Appendix A.5 Copies of said notice, to be
furnished by the Regional Director for the Tenth Region, shall, after
being duly signed by the Respondent's representative, he posted by the
B Member Reynolds would not find that by this statement Respondent illegally'threatened
its employees ; rather he regards the statement as an expression of fact with respect to the
employees of the Georgia -Carolina Brick and Tile Company together with the expression
of the opinion that a similar result might , but not necessarily would, result in the event
of the continued adherence by Cooney's employees to the Union
' In the event that the posting requirement of this Order has already been complied with.
or partially complied with, such compliance shall be considered in determining further com-
pliance with this Order
5 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted in the notice before the words • "A Decision and Order ," the words •
"A Decree of the United States Court of Appeals Enforcing "
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent immediately upon receipt thereof, and be maintained by it
for sixty (60) consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to its employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
0
(b) Notify the Regional Director for the Tenth Region, in writing,
within ten (10) days from the date of receipt of this Order, what steps
it has taken to comply herewith.
IT is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent violated Section 8 (a)
(3) and (4) of the Act.
Intermediate Report and Recommended Order
Messrs. Frank E. Hamilton, Ji , and Frank M. Paschal, Jr, of Atlanta, Ga., for
the General Counsel.
Mr. Frank A. Constangy, of Atlanta, Ga.. for the Respondent
SPATEMErT OF THE CASE
Upon a first amended charge duly filed on August 8, 1950, by William G.
Denney, the General Counsel of the National Labor Relations Board,' by the
Regional Director for the Tenth Region (Atlanta, Georgia), issued a complaint
dated August 9, 1950, against Augusta Bedding Company, herein called the
Respondent, alleging that the Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Section 8 (a)
(1), (3), and (4) and Section 2 (6) and (7) of the National Labor Relations
Act, as amended, 61 Stat. 136, herein called the Act Copies of the charges, com-
plaint, and notice of hearing were duly served by the General Counsel upon all
other parties.
With respect to unfair labor practices, the complaint alleged in substance that
the Respondent violated Section 8 (a) (3) of the Act by refusing to employ nine
employees named in the complaint because of their union and other concerted
activities, including participation in a strike; Section 8 (a) (4) of the Act by
refusing to employ such employees because unfair labor practice charges had
been filed in their behalf in the instant and an earlier proceeding ; and Section
8 (a) (1) of the Act by said alleged acts and by threatening its employees with
respect to, and interrogating them concerning union activities and membership.
In its answer, the Respondent denied the allegations of the complaint with
respect to unfair labor practices.
Pursuant to notice, a hearing was held at Augusta, Georgia, on August 28,
1950, before J. J. Fitzpatrick, a Trial Examiner duly designated by the Chief
Trial Examiner; and said hearing was continued on September 11 to 13, 1950,
inclusive, before the undersigned Trial Examiner likewise so duly designated.
The General Counsel and the Respondent were represented by counsel, and all
parties participated in the hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bear-
ing upon the issues.
The General Counsel and his representatives at the healing are herein ieferred to as the
General Counsel, and the National Labor Relations Board as the Board
AUGUSTA BEDDING COMPANY 215
At the opening of the hearing, the Respondent's motion previously made for
a bill of particulars was in part withdrawn upon receipt of certain particulars;
as to other items, the motion was denied. The Respondent's motion to revoke
a subpoena was also denied at that time.
Likewise denied was the Respondent's motion to dismiss certain paragraphs
of the complaint on the ground that the charge with respect thereto was filed more
than 6 months after the unfair labor practices alleged therein as violating
Section 8 (a) (4) of the Act. Pending resumption of the hearing, the Respondent
petitioned the Board for permission to appeal directly to it from the denial of
said motion to dismiss ; by order dated September 7, 1950, the Board sustained
the ruling of the Trial Examiner, without prejudice to the Respondent sub-
sequently raising the issue for further Board consideration pursuant to Section
203 46 of Board Rules and Regulations.
At the conclusion of General Counsel's case-in-chief, the Respondent moved to
strike from the complaint the allegation of violation of Section 8 (a) (4) and
to dismiss the complaint in its entirety. Decision was reserved on the former
motion ; the latter was denied. The motions were renewed at the close of the
hearing; decision on the motion to dismiss the complaint in its entirety was then
reserved and said motion is now disposed of in accordance with the conclusions
and recommendations below.
The motion to dismiss with respect to Section 8 (a) (4) was, as appears on
the record, at that time granted on the merits 2 on General Counsel's statement
that he was not relying on the sole suggestion 3 on the record of a direct violation
of that subsection, but, without proof of different motivation, that the failure
and refusal to reemploy alleged as violative of Section 8 (a) (3) constituted
violation of Section 8 (a) (4) because they were continued after the filing of
charges. After the close of the hearing, General Counsel moved that the under-
signed vacate his ruling dismissing the allegations of a violation of Section 8 (a)
(4) ; said motion is hereby denied.
The General Counsel and Respondent argued orally at the close of the hearing
and, pursuant to leave granted, filed briefs.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Georgia corporation with its principal office and place of
business in Augusta, Georgia, is engaged in the manufacture, sale, and distribu-
tion of mattresses, box springs, sofa beds, and related products. During the
12-month period preceding the date of the complaint herein, the Respondent
purchased raw materials, consisting principally of linters, steel, and ticking,
valued at more than $250,000, more than 50 percent of which originated outside
the State of Georgia and was shipped in interstate commerce to the Respondent's
plant at Augusta, Georgia. During the same period, the Respondent manufac-
tured and shipped from its plant at Augusta, Georgia, finished products of a
2 It was thus unnecessary to pass on the questions whether, to the extent that it included
such allegations, the complaint contravened Section 10 (b), as originally urged by the Re-
spondent, or whether, as later argued, certain remarks were piivileged. (In the latter
connection, as noted, General Counsel declared that he (lid not contend that the statement
referred to constituted a violation of Section 8 (a) (4).)
'See footnote 17.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
value in excess of $250,000, more than 50 percent of which was sold and shipped
to customers outside the State of Georgia It is found that the Respondent is
engaged in commerce within the meaning of the Act.
II. TUE ALLEGED UNFAIR LABOR PRACTICES
A. The alleged violation of Section 8 (a) (3)
Griffin, a representative of the United Construction Workers; affiliated with
the United Mine Worl-ers of America, herein called the Union,` attempted to
organize the production employees of the Respondent, and called on Cooney, the
Respondent's president to urge recognition of the Union There was a sharp con-
flict in the testimony concerning the date of this visit, the alleged discriminatees
testifying that it took place on September 16, 1949, and was followed by a speech
which Cooney deliverea later that day ; other witnesses called by General Counsel
declaring that Cooney delivered the speech a week or two before the strike'
on September 20 (it was not disputed that Griffin's visit preceded the strike)
while the Respondent's witnesses maintained that the speech was made on
August 24.
Interested as the former employees were in the events leading up to the strike,
it is difficult to charge them with faulty memories in this connection. Nor is
there motive for them to falsify the date. But the impression of those who testi-
fied to an earlier date is fortified by the written notation on the copies of the
speech and by the records of Respondent' s counsel as declared at the hearing,
and credence would have to be given to these latter were a determination of
the matter necessary for decision of the case.
It was agreed at the hearing that this question of the dates does not directly
affect the issues to be determined; it is one of credibility solely. Actually, despite
the welter of facts and details in the record, there is relatively little dispute in
the testimony ; the problem concerns the conclusions to be drawn from the facts,
which were in the main stipulated or uncontradicted. References hereinafter
made to the evidence, not ascribed to named witnesses, represent uncontradicted
testimony, or findings where conflicts have been resolved ; findings are made herein
on the basis of reliable, probative, and substantial evidence on the record con-
sidered as a whole and the preponderance of the testimony taken.
Griffin and a committee of the Respondent's employees met with Cooney and
Norton, the Respondent's general manager, on that first occasion . Again,
whether the latter said that he was tired and would meet them later, or whether
he stated that he wanted to think it over and speak with his attorney, is not
of great moment: there is no charge of refusal to bargain, it'being admitted
that the Union had not complied with the filing requirements of the Act
Further discussions were briefly held between Cooney and Norton and a com-
mittee' of the employees on the mornings of September 19 and 20, but to no
Although the answer denied the allegation of union status and no proof was offered in
connection therewith, the organization was without objection referred to at the hearing
as the Union.
5 In its answer , the Respondent declared that certain of its employees ceased to work on
or about September 20, but denied the allegation of the complaint that they ceased con-
certedly and went on strike Throughout the hearing, however, the strike was recognized
as such , no question was raised but that the employees involved engaged in concerted
activities within the meaning of the Act when they went on strike . See Worthington
Creamery and Produce Company , 52 NLRB 121.
"Five employees ( Denney , Lord, Mary McMahon. Willie Williams, and Byrd) were
elected to the committee to speak with management General Counsel 's witnesses disagreed
concerning the identity of the employees who served on the committee ( Those who were
AUGUSTA BEDDING COMPANY 217
avail. Cooney refused to recognize the Union and even to meet with Griffin,
and at about 9 a. m. on Tuesday, the 20th, shortly after the meeting ended, some
40 of the production employees struck. Respondent immediately announced that
it would continue in production and would replace employees on strike .7
Between September 20 and 22,814 new employees were taken on. It is presently
unnecessary to follow the ramifications of appointment and transfer as detailed
on the record. Suffice it to note that 8 of the 14 replaced alleged discrimina-
tees; 1 took the place vacated by another employee, who replaced the charging
party; 3 replaced strikers on whose behalf no claim was made in the proceeding;
and 2 were employed on jobs not previously filled.
At about noon of the 22nd, a committee of the strikers advised Cooney that
the strike was or would be terminated, and asked that the strikers be returned
to their jobs. The matter was turned over to Norton, who said that all except
those who had already been replaced would be "signed up again."' The strikers
then lined up outside Norton's office, were called in singly, and their job numbers
checked against Norton's card index. Where jobs had not been filled, the respec-
tive employees were reinstated ; where they had been filled, the men were so
advised. More than half of the strikers were taken back ; the nine alleged dis-
criminatees herein were not. Some subsequently returned to the plant to seek
employment, the frequency of their visits varying, and there were other variations
as some requests were for the specific job formerly held while others were for
,.anything." 10
The record shows that employees hired as replacements were transferred to
other jobs as the necessity arose. There had previously prevailed an easy
transferability from one task to another; after the strike was called, and as
newcomers were employed, there was for a time also a shifting of more perma-
nent assignments or so-called job titles. As one of the foremen testified, he
"would have to find which man would be the best suited for the job," and he
"tried to run them through to the best of the company's advantage."
elected did not appear at all of the three meetings with management, and others were
designated to serve in their place ) Denney testified that Layne and Agner "helped
out"; Lord didn't think that Layne or Agner were at any of the meetings; Agner did not
state whether he was on the committee, while Layne declared that he had attended the
first meeting. It appears, at any rate, that Denney and Lord attended all three committee
meetings with management, that Hughes attended the third, and that two other employees,
Byrd and Willie Williams, attended one or two (here again, General Counsel's witnesses
differed) There was further disagreement concerning the identity of the committee which
notified Cooney that the strike was terminated ; Denney naming himself, Lord, and either
Layne or Agner, while Lord included himself, Denney, Layne, Agner, and Hughes
7It was recognized in the complaint and throughout the hearing that this was an
economic strike, the Respondent not being obliged to recognize a noncomplying union.
See Isaac Andrews, at al, d/b/a Andrews Company, 87 NLRB 379
8 Yates Hayes, who was given Layne's fob, went to work on the 23d, although he was
among the group recruited by Garvin and employed on the morning of the 22nd It
appears that Mike Hummel was also hired on September 22, but reported for work on
the 23d. It was stipulated that the Company's records available show that Ruby Gilmer,
who replaced Mrs Lord, was hired of the 21st These three are not included on the list
of "employees on job" on September 22 ; the first two for obvious reasons, and the third
because the list was prepared from payroll sheets and her sheet was missing
0 Whatever the technical significance of this phrase or of Norton's action in marking
the strikers' cards "Quit of own accord," they were not claimed by General Counsel to be
In violation of the Act The Respondent's acts in connection with the returning strikers,
rather than these characterizations, aie determinative
10 In a letter, which it is found was written on behalf of the employees named therein
and with their authorization (despite indication to the contrary in an earlier statement by
Dennev), the request mentioned is that the Respondent "immediately reinstate." (General
Counsel's Exhibit 10-A.)
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has not been shown, nor was it even contended, that the Respondent acted
capriciously or in an illegal manner, considering its economic interest, in replac-
ing the strikers whose places it claimed were filled during the strike"
Of the five 12 employees elected to the committee," all but McMahon went on
strike. Of these four, two were rehired at the end of the strike. There was
no greater distinction with respect to those who actually served on the com-
mittee : some were rehired, others were not " Further, among those not taken
back, were some who were not on the committee. While it is noted that none
of those 15 who informed Cooney that the strike was broken was rehired, it is
difficult to assign an impi oper motive in this connection since a more lenient
attitude toward such employees might be anticipated than toward other strikers
or toward those who had been connected with the committee earlier. The record
does not warrant more than speculation in this connection.
The Respondent had the right to replace permanently its striking employees in
order to protect and carry on its business." To the extent that they were so
replaced, a permanent termination was effected, and it was under no obligation
to recall them so long as it did not discriminate against them by treating them
differently from other former employees or applicants for employment.i1
True, Denney testified that Cooney said that he didn't see why the strikers
should not be given the first chance if their jobs were open , but this certainly
was no promise to recall them. But even were there such a promise, as might
be spelled out of Norton's statement to Barton that he would let him know if
anything was open, there was no attempt to show that the men relied 18 on such
a promise to their prejudice, that failure to keep it was contrary to the Respond-
ent's usual hiring practice, or in any event that it was discriminatory. (Nor
does the letter of October 519 alter the situation )
It appears without contradiction that it was the Respondent's practice to hire
"right at the door," and when necessity arose, it used the State employment
service.20 As General Counsel showed with each witness, the Respondent did not
31 A faint but insufficient attempt was made to show that Garvin did not fully replace
Denney . The evidence indicates that the former was transferred to the garnett machine
during the strike and has continued to work there although he needed assistance at times
and did not do maintenance and odd jobs which Denney performed.
12 See footnote 6.
13 No one headed the committee; "all five . . . were chairmen . In a sense"
14 Two of the five ( or seven-see footnote 6) who served as committeemen were rehired.
Of the nine alleged disciiminatees , six (or four ) had not appeared at any meetings of the
committee with management.
is The number was variously placed at three or four and at five
20Vogue-Wright Studios, Inc, 76 NLRB 773
i7 The undersigned has not overlooked Clarence O'Neal's testimony that several months
after the strike lie spoke with Cooney about putting Barton back to work, and that "after-
wards" Cooney asked whether he knew that "the boys had filed stiff against him, or the
company " (The Respondent 's claim of privilege in this connection is denied.)
1B Barton, among others , testified that he went back for a job several times See also
footnote 10.
10 Despite General Counsel ' s statement during argument to revoke a subpoena at the open-
ing of the hearing, that he intended "to show . . . that the applications of the 8 (a) (3)'s
were , or should have been , in accordance with past company practice, continuing applica-
tions," there was no such proof ; the only reference to past practice was that made on be-
half of the Respondent.
20 Sometimes employees weie asked to aid in recruitment What determined such
requests , and whether they were limited to periods of unusual need , such as when the
strike occurred or fighting broke out in Korea, does not appear
AUGUSTA BEDDING COMPANY 219
use an application file, and its hiring practices were presumably well known21
To be employed, applicants had to present themselves when the need arose There
were always plenty of such applicants until the Korean War started With the
expansion of employment requirements, experienced people were needed, and in
July and August 1950, registered letters concerning employment were sent to
seven of the alleged discriniinatees It appears that such former employees were
offered jobs which paid approximatel} what they had previously earned, their
former places being filled, and that Agnet, Layne, Thompson, and Williams were
then reemployed; Hughes and Barton did not reply to their letters, and it does not
appear whether Mrs Lord did Other evidence on this subject is Norton's state-
ment that he did not send such a letter to Denney because he was earning more
than he had or would now receive from the Respondent, and that Lord was
similarly not asked to return since there was no job available at his former rate z
Accepting Norton's explanation (there is no evidence to the contrary), it cannot
be said as a matter of law that the Respondent had no right to ignore Lord's
statement the day the strike terminated that he would "take anything' that's
left."
It is not a present purpose or function to determine either the wisdom or the
fairness of such a hiring procedure, the duty does exist to find the facts. It is
found from the evidence adduced that the Respondent did not discriminate against
employees in violation of Section S (a) (3) of the Act. (Cooney's refusal to
make an advance to Benny Buck because of the latter's activity on the picket line
may have constituted discrimination in regard to a condition of employment in
violation of Section S (a) (3) But it was neither alleged in the complaint nor
litigated as such.)
B. Alleged violation of Section 8 (a) (1)
Denney testified without contradiction that before the strike but after he, as
a member of the committee, had called on Cooney on behalf of the employees,
Norton told him that if the Union came into the plant, he wouldn't get any more
money but would probably draw 10 or 15 cents an hour less, as in other bedding
plants. That statement by Norton is not to be classed as an expression of opinion
or as a prediction, standing alone as it does without any attempt to justify it on
the basis of expense or cost, and without any other explanation. It was, and is
found to be a threat, in violation of Section 8 (a) (1) of the Act.
Another statement which is found to have been a threat was Cooney's to Buck
in June of 1950 to the effect that he would never forget the strike. This was on
the occasion of the refusal to make a wage advance and of the reminder of the
picket sign which Buck carried and which charged Cooney with being unfair.
As was noted above in consideration of Section 8 (a) (3), such a refusal for the
21 It appears that, in the category of jobs held by the alleged discriminatees, one Charles
Franklin was hired as a tape edge operator on October 3, 1949 There is no proof that the
Respondent discriminatorily employed him. While witnesses testified that they applied
for reemployment at various times, there is no showing that they applied and were refused
employment at times when there ii ere vacancies which the Respondent then filled with other
applicants There is a marked variance between the allegations of the complaint and
the argument submitted in their support, on the one hand, and the evidence adduced, on
the other
12 The record does not show what rates were paid on the various jobs, or specifically what
Lord had been paid.
13 Lord testified further that a few days later he asked his foreman whether his job was
open. See also above , at footnote 10.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason stated may have been in violation of Section 8 (a) (1). But it lies without
the scope of the issues raised by the pleadings and litigated 24 The complaint
and the particulars submitted by General Counsel do not allege general interfer-
ence with organizational activities, but only interrogation and threats in connec-
tion with union membership as violative of Section 8 (a) (1). As distinguished
from the refusal to make the advance, the statement that he would never forget
the strike was a threat connected with concerted action, past and prospective.
It is within the issues of the case and is found to have been in violation of
Section 8 (a) (1).
While Norton testified that he spoke to employees about the Union when they
asked questions about it and that he did not remember asking employees whether
they were members of the Union, the undersigned credits the testimony of Sybil
Ritch that a few days before the strike he asked her and Fanning whether they
belonged to the Union. Also credited is Fanning's testimony that Norton asked
him who the leaders were in the Union. Each of those questions violated Section
S (a) (1), as did the questions testified to by Norton himself as having been
asked of Fanning: Whether men in a certain car were union leaders and whether
Fanning did not know who all the union leaders were. If nothing more, the latter
questions test an employee's activities, interest, and knowledge of union matters
and thus constitute interference and restraint or coercion in the exercise of the
rights guaranteed in Section 7 of the Act26
Denney testified that in response to a question at the conclusion of his speech
to the assembled employees, Cooney declared that he would not recognize "this
or any other union" ; there was some corroboration of this by Lord, who was
generally hazy in his recollection. The latter further testified that Cooney made
such a statement on the occasion of the aborted meeting with Griffin ; this testi-
mony was not corroborated, and differed from that of both Layne and Denney. In
any event, any such statement by Cooney is not within the issues as noted above.
A similar ruling must be made in connection with Hughes' testimony that Cooney
had stated that "he didn't want no one around the plant, no union telling him
how to run his business at the plant."
Denney and Lord testified further that when Byrd referred to the Georgia-
Carolina Brick & Tile Company in a question which he asked at the conclusion
of Cooney's speech, the latter replied that those employees "were still walking
the streets, looking for employment and probably wouldn't find any here ; and
that if (the Respondent's employees) kept on (they) would probably be walking
the streets with them, looking for employment." That statement by Cooney was
a threat if it contemplated unlawful discharge as a penalty for engaging in a
strike. On the other hand, it was a privileged expression of opinion if it merely
predicted a result which might flow from an economic strike. In fact, such a
strike and result did eventuate; there is no proof that Cooney here threatened
his employees, and it is found that such statement was not in violation of
Section 8 (a) (1).
No more threatening was Cooney's statement to Denney that he was "almost
floored" when he saw Denney walking in with the committee, that "he never
dreamed that (he) would have been in the bunch, too," and that "he hated to
know that (Denney) was messed up with them."
Also to be considered is Layne's testimony that about a week before the strike
Norton asked "what good (he) was going to get out of the Union," and declared,
24 It cannot be found that the matter was "litigated " by virtue of such direct testimony
alone
25 Standard - Coosa -Thatcher Company, 85 NLRB 1358
AUGUSTA BEDDING COMPANY 221
"Well, you are just making your gravy that much thicker for yourself." The
first portion is an argumentative question indicating the speaker's views and as
such is covered by Section 8 (c) of the Act. The other is equivocal in nature.
It may have been a threat ; or,, to continue with the alimentative metaphor,
reference to gravy may have been equivalent to telling Layne that after paying
dues he would sink deeper into the financial "soup " In the one case, the remark
would be unlawful ; in the other, privileged In the absence of testimony, expert
or otherwise qualified, to indicate the technical or colloquial significance at-
taching to the reference to thickening of gravy, it is not found that the expression
constituted a threat.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section II, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
IV. THE REMEDY
Since it has been found that the Respondent has engaged in certain unfair
labor practices affecting commerce, it will be recommended that it cease and
desist therefrom and take certain affirmative action in order to effectuate the
policies of the Act.
It has been found that the Respondent, by interrogation and threats, interfered
with, restrained, and coerced its employees in violation of Section 8 (a) (1)
of the Act. It will therefore be recommended that the Respondent cease and
desist from such or similar acts.
For the reasons stated in the subsection entitled, the alleged, violation of
Section 8 (a) (3), it will be recommended that the complaint be dismissed insofar
as it alleges violation of Section 8 (a) (3) of the Act.
Upon the basis of the above findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1 Respondent's employees. in the exercise of their concerted activities for
the purpose of collective bargaining or other mutual aid or protection, con-
stituted a labor organization within the meaning of Section 2 (5) of the Act.
2 By threatening and interrogating its employees concerning such concerted
activities, thereby interfering with, restraining, and coercing its employees in the
exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices, within the meaning of Section 8 (a)
(1) of the Act.
3 The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
4 The Respondent has not engaged in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act by failing and refusing to employ
William G Denney, Lawrence Williams. J. E. Lord, Edward Agner, Arthur R.
Layne, W A Hughes, Jr, Sallie Mae Lord. Vernon Barton, and Ollie R. Thompson.
[Recommended Order omitted from publication in this volume.]
"I Lerner Shops of Alabama, Inc. 91 NLRB 151