Cecil I. Walker Machinery Co.

National Labor Relations Board - Board Decisions

Sep 30, 1991

305 N.L.R.B. 172 (N.L.R.B. 1991)

172
305 NLRB No. 22
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolution unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing the findings.
2 In adopting the judge’s findings that the discharge of employee
Gore on April 10, 1989, and the layoff of 18 employees on June
30, 1989, violated Sec. 8(a)(3) and (1) of the Act, we agree with
the judge that such actions were pretexts and that the real reason for
discharging Gore and laying off the other employees was Gore’s and
the employees’ union activities. Limestone Apparel Corp., 255
NLRB 722 (1981).
3 We have modified the judge’s recommended Order and notice to
provide that the Respondent cease and desist from discharging and
laying off employees because of their union or other protected con-
certed activities.
Cecil I. Walker Machinery Company, Inc. and Paul
R. Schafer and Darren L. Gore. Cases 9–CA–
26643 and 9–CA–26763
September 30, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On May 6, 1991, Administrative Law Judge William
F. Jacobs issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Cecil
I. Walker Machinery Company, Inc., Rita, West Vir-
ginia, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Insert the following as paragraph 1(a) and reletter
the subsequent paragraphs.
‘‘(a) Discharging and laying off employees because
of their union or other concerted protected activities.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT maintain a rule requiring information
regarding wages, salary, or other compensation to be
kept in confidence.
WE WILL NOT unlawfully solicit grievances.
WE WILL NOT inform employees that it would be fu-
tile for them to select the Union as their bargaining
representative.
WE WILL NOT interrogate employees regarding union
activity of other employees.
WE WILL NOT discharge or otherwise discriminate
against any of you because of your union or other pro-
tected concerted activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Darren Gore, John Casebolt, John
Curry, Mark J. Curry, Michael Curry, Timothy Hat-
field, Jody W. Gartin, Warnie E. Jones, Gary K.
McNeil, Robert O. Meeks, Joseph A. Miller, Timothy
Miller, James Ogle, Homer Pennington, Paul R.
Schafer, John Spears, Robert Whitt, Richard Wiley,
and Robert Zastawniak immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or other rights or privileges
previously enjoyed, and make them whole for any loss
of earnings or other benefits suffered as a result of the
discrimination against them, in the manner set forth in
the remedy section of the decision.
WE WILL expunge from our files any reference to
the unlawful discharge of Darren Gore and the unlaw-
ful layoffs of John Casebolt, John Curry, Mark J.
Curry, Michael Curry, Timothy Hatfield, Jody W.
Gartin, Warnie E. Jones, Gary K. McNeil, Robert O.
Meeks, Joseph A. Miller, Timothy Miller, James Ogle,
Homer Pennington, Paul R. Schafer, John Spears, Rob-
ert Whitt, Richard Wiley, and Robert Zastawniak, and
173CECIL I. WALKER MACHINERY CO.
1 Hereinafter all dates are in 1989 unless noted otherwise.
2 Hereinafter called Respondent, Employer, or Company.
3 In accordance with Respondent’s motion, Respondent’s brief is
received into the record as R. Exh. 7.
4 The complaint alleges and the answers admit that the Board has
jurisdiction and that the Union is a labor organization within the
meaning of the Act.
5 Respondent admits the supervisory status of McLean and Gordon
but denies that of Rowe. The record indicates, however, that Rowe
has authority to, and does, in fact, independently issue employees
their daily work assignments, transfer employees from one job to an-
other, grant days off, send employees home early, and issue memo-
randa to service personnel containing authoritative instructions on
proper job performance.
6 Par. 5(a).
7 Blue Cross-Blue Shield of Alabama, 225 NLRB 1217 (1976);
A.L.S.A.C., 277 NLRB 1532 (1986).
8 Complaint, par. 6(a).
notify them in writing that this has been done and that
the discharge and layoffs will not be used against them
in any way.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of a
labor organization.
CECIL I. WALKER MACHINERY COM-
PANY, INC.
James E. Horner, Esq., for the General Counsel.
Fred F. Holroyd, Esq. (Holroyd, Yost & Merical), of
Charleston, West Virginia, for the Respondent.
Paul Schafer, of Chapmanville, West Virginia, and Darren
L. Gore, of Holden, West Virginia, for the Charging Par-
ties.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge. This case
was tried before me on November 7 through 9 and December
5 through 7, 1989, at Charleston, West Virginia. The charge
in Case 9–CA–26643 was filed by Paul Schafer, an indi-
vidual, on July 17, 1989.1 The charge in Case 9–CA–26763
was filed by Darren L. Gore, also an individual, on August
25. The consolidated complaint issued October 5 and alleges
that Cecil I. Walker Machinery Company, Inc.2 violated Sec-
tion 8(a)(1) of the Act by maintaining a rule in its employee
handbook which prohibits employees from discussing their
wages and other compensation, creating the impression
among its employees that their union activities were under
surveillance by Respondent, unlawfully soliciting grievances
from its employees, informing its employees that it would be
futile for them to select United Mine Workers of America
(UMWA) as their bargaining representative, and interrogating
an employee about the union activities of its other employ-
ees. The consolidated complaint also alleges that Respondent
violated Section 8(a)(1) and (3) of the Act by discharging an
employee on April 17 and permanently laying off 18 other
employees on June 30 because of their union activity. Re-
spondent, in its answers, denies the commission of any unfair
labor practices.
All parties appeared at the hearing and were afforded full
opportunity to be heard and present evidence and argument.
General Counsel and Respondent3 filed briefs. On the entire
record, my observation of the demeanor of the witnesses, and
after giving due consideration to the briefs, I make the fol-
lowing
FINDINGS OF FACT4
Respondent is engaged in the sale, rental, and servicing of
material handling equipment at various locations in the State
of West Virginia including Rita (Logan). Its employees at the
Logan store, include mechanics, helpers, warehousemen, and
parts department employees. Management at the Logan store
consists of Branch Manager Tim McLean, Assistant Branch
Manager Jake Gordon, and Field Service Coordinator Nathan
Rowe, all supervisors5 under the Act.
Respondent established its Logan location about 1980 and
since that date its store has proven quite successful. Each
year Logan has improved in terms of revenue from parts and
service until by the end of 1988, it was second only to
Charleston among Respondent’s seven locations, in this area
of business. By the end of 1988, it was anticipated that busi-
ness would continue to improve and the anticipation proved
accurate as the first half of 1989 reflected substantial in-
creases in parts sales and service sales over the same period
of 1988. Similarly, there were significant increases in new
machine sales as well. Due to the increase in business the
number of employees at Logan also increased.
Since 1982, Respondent has been in the practice of distrib-
uting employee manuals to its employees. Its most recent
manual, dated January 1, 1989, contains the following para-
graph:
Confidentiality of Pay
It is company policy that, in all cases, information re-
garding wages, salary or other compensation will be
kept in confidence. Violations of this policy make those
involved subject to dismissal.
The complaint alleges6 that the maintenance of such a rule
is in violation of Section 8(a)(1) of the Act. I agree and so
find.7
Darren Gore, one of the alleged discriminatees,8 first
began seeking employment at Respondent’s Logan facility in
1983 or 1984. In the summer of 1984 he filed an application
for employment and took a mechanical aptitude test. The
manager at the time called Gore and told him that he had
passed the test and that he would call him later and tell him
when to report to work. However, that manager was trans-
ferred out of Logan and Gore did not obtain employment at
the time.
Gore continued, thereafter, to visit the Logan shop once or
twice per week in hopes of being hired. Finally, in April
1988, he was told that he would be hired but would first
have to file another application and retake the test. On April
7, 1988, Gore filled out his second job application. The ap-
plication included the question, ‘‘Are you related to any of
our employees?’’ Gore checked the box marked, ‘‘No.’’ He
testified that he did not know of any company policy prohib-
iting the employment of relatives since the Logan shop, at
the time, was already employing employees who were re-
lated.
174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 P. 19.
10 Darren Gore and a number of rank-and-file employees testified
to this fact. Nathan Rowe did not testify.
Tim McLean interviewed Gore for the job, reviewed his
application, and hired him effective April 18, 1988. At the
time, according to McLean, he did not know that Gore was
related to two of Respondent’s employees.
Darren Gore was a longtime resident of the area and many
of Respondent’s employees had known him for several years
prior to his employment with Respondent. They also knew
that Gore was related to two of Respondent’s employees,
Mike Curry, his uncle, and Mark Curry, his cousin. Accord-
ing to Gore, whom I credit, when he was first seeking em-
ployment with Respondent, when McLean was still the as-
sistant branch manager, he told McLean to ask his uncle
what kind of worker he was. Since Gore told McLean, before
he was hired, that Mike Curry was his uncle, and since
McLean admits to having reviewed Gore’s application at the
time of his interview and must have, or should have, seen
where Gore checked the ‘‘No’’ box, I conclude that neither
Gore’s relationship to the Currys nor his denial of the same
on his application were considered of any importance by
McLean. Indeed, Mike and Mark Curry were already em-
ployees of Respondent when Gore was hired and Tom Brad-
shaw and his son were also employed at the Logan store at
the time.
Respondent distinguishes Gore’s case from that of the two
Currys and the Bradshaws. In the latter cases, neither Mark
Curry nor the younger Bradshaw denied, on their applica-
tions, being related to other employees, and the knowledge
of the relationship before hiring enabled McLean to seek per-
mission of his superiors, as required by company policy, be-
fore actually hiring the new employees. After Mike Curry
asked McLean to hire his nephew, McLean did, in fact,
check with higher management for permission to hire Mark
and it was granted, according to McLean, provided Mark
worked on the second shift, while Mike worked the first
shift. McLean also obtained permission before hiring Mike
Bradshaw and he was hired to work together with his father
in the same department on the same shift despite the rule
contained in the employee manual.
After the hiring of Gore, just about everyone was aware
of the relationship between Gore and the Currys. Comments
were made daily about Mark and Darren working together
and by Rowe each time he sent Gore out to work with Mike.
Though Mark Curry worked primarily on the second shift, he
occasionally worked for Mike Curry as his helper, just as
Gore did, more frequently. This was done though specifically
prohibited under the terms of Mark Curry’s employment, and
generally prohibited under the rules contained in the em-
ployee manual.9 On numerous occasions when Gore was as-
signed as mechanic’s helper to Mike Curry, Rowe would say,
‘‘I’m going to send you with your uncle today.’’ Thus, man-
agement and rank-and-file employees were well aware of the
relationship between Mike Curry and Darren Gore10 and I do
not believe it could have escaped McLean’s notice. The rela-
tionship was common knowledge and the Respondent, after
the hiring of Mark Curry and Darren Gore, was frequently
referred to by the employees and even by Jake Gordon, as
‘‘Curry Machinery.’’ Since McLean admitted to hanging
around with the mechanics while at work and knowing each
and every one of them on a personal basis, I conclude that
he was well aware all along of Gore’s relationship to Mike
Curry.
Sometime after January 1, Respondent distributed its new
employee manual which contained, among many other
things, the statement:
You are free to terminate your employment at anytime
without statement of reason. The company has the same
right.
A number of employees were disconcerted by the inclusion
of this provision in the manual, and the possibility that they
could be fired at any time. The provision became the subject
of much discussion among the employees and some were of
the opinion that perhaps they might need a union to insure
job security.
As a result of these discussions about union representation,
Gore decided, on his own, in mid-February, to visit the
UMWA (the Union), and obtain authorization cards to dis-
tribute among Respondent’s employees. On or before Feb-
ruary 28 he picked up 30 such cards from the union rep-
resentative. On that date, before starting work, he advised a
number of fellow employees, while in the company cafeteria,
that he had union cards in the glove box of his truck and
that they were welcome to get and sign them if they wanted
to do so.
Between February 28 and March 7, at least 12 of Re-
spondent’s employees signed union cards. Most of them re-
turned the cards back to Gore’s truck, a few gave them di-
rectly back to Gore himself. Darren Gore and Paul Schafer
signed cards on February 28, and witnessed each other’s sig-
natures; Jody Gartin and Warnie Jones signed cards on
March 1, and witnessed each other’s signatures; Mike, John,
and Mark Curry signed cards on March 2, and their signa-
tures were witnessed by Joseph Miller, Mark Curry, and
Darren Gore, respectively; Richard Wiley, John Workman,
and Gary McNeil signed cards on March 3, and their signa-
tures were witnessed by Schafer, Gore, and Jones, respec-
tively; and Timothy Hatfield, Bob Zastawniak, and Robert
Meeks signed cards on March 7 and their signatures were
witnessed by Schafer in the case of Hatfield and Zastawniak,
and by Gartin in the case of Meeks. Gore testified that, al-
though not sure, he thinks he returned 21 to 22 signed cards
back to the Union. Schafer testified that employees Joseph
Miller, Homer Pennington, and Jimmy Trent also signed
cards but the record does not support his testimony and I
find they did not.
While distributing cards to his fellow employees, Gore
told them that, in his opinion, they needed a union. He testi-
fied that he notified as many of Respondent’s employees as
he could that he had cards in his truck. A few employees
later called Gore at this home and asked him what the Union
was going to do for them. He advised them that they should
call the Union directly and ask that question.
Despite the involvement of more than a dozen of Respond-
ent’s employees in the union activity described, and
McLean’s admission that he hung around the mechanics at
work and knew each and every one of them on a personal
basis, he testified that he was unaware, during the first quar-
ter of 1989, that the Logan employees were involved in any
175CECIL I. WALKER MACHINERY CO.
11 Wiese Plow Welding Co., 123 NLRB 616 (1959); Don Swart
Trucking Co., 154 NLRB 1345 (1965), affd. 359 F.2d 428 (4th Cir.
1966).
12 Par. 5(d). Complaint amended at hearing.
13 Liquitane Corp., 298 NLRB 292 (1990).
union organizing. There is, however, record evidence to the
contrary.
Some time after February 28, Gore had occasion to visit
the tool room at the Logan store to obtain a service manual.
As he entered, he greeted the tool room man, Noah Jacobs,
by asking him what was going on. Noah replied that he had
heard that McLean had found out that Gore had been the em-
ployee who had distributed the union cards and was looking
for a reason to fire him. Jacobs had been present along with
several other employees, in the cafeteria, on February 28,
when Gore had announced that he had the cards in his truck
and when Schafer signed one of the cards and Gore signed
it as witness. Thus, Jacobs was in a position to know of
Gore’s activity and to warn him of McLean’s knowledge of
his activity. Though Jacobs’ statement does not, of course,
prove the truth of the statement made, it does exemplify how
information can be so easily spread among employees and
from employees to management in a small plant or shop.11
Noah Jacobs had firsthand information about Gore’s union
activity and Gore credibly testified that Jacobs told him that
McLean was aware of it. Jacobs, however, was not called to
testify concerning the matter.
More important to the General Counsel’s case than Jacobs’
statement to Gore is the credited testimony of Diane Starr,
which proves beyond doubt that McLean was fully aware of
the union activities of his employees and of Darren Gore, in
particular. According to Starr, who was employed, at the
time, as Rowe’s assistant, she first became aware of Re-
spondent’s employees’ interest in the Union in February. She
explained that it was common knowledge around the shop
and she knew about it because the mechanics were in her of-
fice every day, an office separated from Rowe’s office by a
wall. Into her office, she testified, came most of the mechan-
ics, all talking about trying to start a union. Gore, Schafer,
Meeks, all card signers, would engage in these conversations
in her presence. She noted that although Logan is a highly
unionized community and is prounion, she had never before
heard Respondent’s employees engage in conversations con-
cerning the possibility of unionizing the Logan store until
this time. She added that because the Logan store is so small,
it is easy to know what is going on there.
In early March, according to Starr, McLean called her into
his office, where Jake Gordon was already seated. McLean
asked her, point blank, what she knew about the Union. She
told him that she knew that the mechanics were trying to or-
ganize a union. McLean asked her if she thought they would
succeed and she replied affirmatively. McLean then wanted
to know if Starr had any more information as to how far the
mechanics had gotten with their organizing efforts. Starr re-
plied that she knew that they had signed some union cards.
When McLean next asked her who the ringleader was, she
told him that Darren Gore was the one who had passed out
the cards. Finally, Starr asked McLean why it would be so
bad for the Logan store to have a union. McLean replied that
a union would be the worst thing that could happen to the
Logan store.
As to the conversation between Starr and McLean de-
scribed immediately above, McLean denied that it ever oc-
curred. I have found, however, as noted, that Starr gave an
accurate description of her conversation with McLean and
conclude that by early March he knew of the union activity
among his employees and the key role that Gore played in
their organizational efforts.
The complaint12 alleges that Respondent, through Tim
McLean, interrogated an employee concerning the union ac-
tivities of other employees. In light of Starr’s credited testi-
mony, I find the allegation meritorious.13
It was on March 8 that Gore returned the signed union au-
thorization cards to the Union. Gore testified that he obtained
no signed cards from Doug Tolar, Mark Ferguson, Darrell
Cline, or Michael Sansom.
On March 9, Respondent conducted two meetings with its
employees, one in the morning with its service mechanics
and helpers, the other in the afternoon, primarily with its
warehousemen and parts department employees. In attend-
ance for management were Vice President for Parts and
Services Joseph E. Dailey, Personnel Manager Ed Wode,
McLean, and Gordon. All denied having any knowledge of
organizational activity at this time.
The highlight of the meetings was the showing of a video
tape film by Wode called ‘‘Get the Facts.’’ It was an
antiunion film designed to convince employees of the pitfalls
involved in signing union cards and joining unions. The film
itself is not alleged to be violative of the Act and I do not
find it so.
Dailey, Wode, and McLean all testified to how the tape
was initially acquired and why it was shown to Respondent’s
Logan employees at this particular time. Dailey offered a
charming vignette designed ostensibly to show that the deci-
sion to run the film during the height of the union organiza-
tional campaign was purely fortuitous, and that management
was totally unaware of its employees’ activities. I found the
story amusing but unconvincing. I conclude, rather, that Re-
spondent’s showing of the antiunion film, on March 9, was
an attempt at dissuading its employees from pursuing their
union activities and additional evidence of management’s
knowledge of such activities.
It is also instructive that Wode, though personnel manager
for 5 years, had never before visited the Logan store to show
such a film or to discuss unions or union organizing with the
employees nor, as of the time of the hearing, had he ever
shown the film to employees at any of Respondent’s other
locations. Of the employee witnesses who had attended the
meeting and testified, all stated that they had never attended
such a meeting with Wode before, and virtually all said that
they had never met him before. It must be concluded that
this was not a meeting called in the normal course of busi-
ness but a special meeting called for a specific purpose.
Prior to showing the film, Wode addressed the employees.
He told them that he had a movie he wanted them to watch
and that the purpose of the film was to let the employees
know what unions can and cannot do. According to the cred-
ited testimony of Schafer, Wode said that the Company had
heard that there was some union organizing going on at the
shop and that the film he was about to show probably should
have been shown to the employees when they were first
hired. He added that the Company was planning to make the
176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Tim McLean; D. Stephen Walker, president, chief operating of-
ficer, and corporate coowner; and Richard B. Walker, chairman of
the board, chief executive officer, and corporate coowner.
15 Par. 5(a).
16 Par. 5(b).
17 Page Avjet, Inc., 278 NLRB 444 (1986).
18 Par. 5(c)(i).
19 Reliance Electric Co., 191 NLRB 44 (1971), enfd. 457 F.2d 503
(6th Cir. 1972); Briarwood Hilton, 222 NLRB 986 (1976).
film a part of the orientation program for new employees in
the future. He said that the film was about unions and how
Walker Machinery felt about them. Finally, before actually
showing the film, Wode stated that the Logan store was non-
union and Walker Machinery wanted it to stay that way.
After the film concluded, Wode and McLean addressed the
employees. Wode stated that there was no need for a union
in the Logan store; that the film depicted how management
felt about it; and that any problems the employees had could
be worked out with Tim, Steve, and Dick.14 He urged the
employees to get the facts, reiterating the title of the film.
After delivering these preparatory words, Wode then
talked about the employee manual including those portions
of it which had initially caused the employees to contact the
Union, and other portions which concerned them generally.
Wode alluded to page 1 of the employee manual, cited in
part supra, which states:
Because of certain court decisions we advise you
that this manual is not a contract for employment un-
less otherwise stated, but is your employment at will.
You are free to terminate your employment at anytime
without statement of reason. The company has the same
right.
With regard to this paragraph, Wode told those present
that he had heard that there had been a little bit of grumbling
and some controversy because some employees felt that, in
effect, this employee manual did not mean anything; that
whereas previously a lot of people had looked at their em-
ployees manual as establishing the employees’ rights and du-
ties in their relationship to the Company, this paragraph
seemed to say that the employees could not hold the Com-
pany to anything stated in the manual; that the manual was
worthless insofar as the employees could depend on it to pro-
tect themselves. He followed up this statement of under-
standing by arguing that he did not know why the manual
not being a contract should become and issue at this time be-
cause the same language had been contained in the previous
manual and West Virginia law required the inclusion of such
a statement.
Wode also addressed that section of the manual dealing
with the confidentiality of pay. He noted that this was a new
section in the manual which provided that talking about
wages among employees could be grounds for dismissal. He
told those present that two people in another store had been
fired because they had been talking to each other about their
wages and this had caused a lot of turmoil. He warned those
present not to discuss their wages.
As noted earlier, the complaint15 alleges that Respondent
violated Section 8(a)(1) of the Act by maintaining a ‘‘Con-
fidentiality of Pay’’ provision in its employee manual.
Wode’s speech on the subject clearly indicates that Respond-
ent intended to fully enforce that provision. Its enforcement
would necessarily interfere with its employees’ rights to en-
gage in concerted activity and its mere maintenance, as I
have already found, is violative of the Act.
After Wode briefly touched on such subjects as life and
health insurance and the 401K plan, McLean addressed the
employees. Like Wode, McLean told the assembled employ-
ees to, ‘‘Get the Facts’’ before they signed cards or did any-
thing about union organizing. He stated that Respondent was
a service company, not a coal company, and had been the
most consistent employer over the past 5 years.
The complaint16 alleges that Wode, on March 9, created
the impression among its employees that their union activi-
ties were under surveillance by Respondent. I find that the
activities of Wode, his showing of the film and statements
made during the meeting of March 9, fully discussed above,
are insufficient to support the allegation contained in para-
graph 5(b) of the complaint.17
On March 16, Stephen Walker visited the Logan shop and
spoke with several employees. As noted earlier, on March 9,
Wode had suggested that if the employees had any problems,
they could work those problems out with certain named
members of management including Walker. Walker ap-
proached Warnie Jones on March 16 and engaged him in
conversation. Although Walker had previously visited the
shop on occasion, he had never before engaged Jones in per-
sonal conversation. This time Walker interrupted Jones while
he was working on his truck and asked him if he had any
problems. Jones climbed off his truck and he and Walker
discussed several problems which Jones felt he had, includ-
ing a compensation case and his pay. Walker told Jones that
previously he had tried to stay away from the branches and
let them build an identity of their own but he could see
where that had given rise to problems. He promised that the
Logan employees would be seeing more of him in the future.
In the context of the conversation concerning Jones’ prob-
lems, Walker commented that the employees did not need a
union at the Logan store, especially not the UMWA. Jones,
in reply, admitted that he had been making a pretty good liv-
ing working for Respondent, but admitted further that he also
had signed a union card. He said it was not something that
he felt he should hide but that he knew of other employees
who had signed union cards and that that was a matter be-
tween the Company and them.
The complaint18 alleges that, on or about March 16 or 17,
Respondent solicited grievances from its employees in viola-
tion of Section 8(a)(1). The above-described facts reflect that
the allegation is meritorious.19
On March 22, Stephen Walker again visited the Logan
shop and for the first time addressed the assembled employ-
ees. Some of the employees had never before seen Walker.
Virtually the only subject he discussed was unions or union
contracts.
Walker opened his speech by stating that he had heard that
there was some union organizing going on in the store and
that there were people who were trying to get the employees
to sign union cards. He told his employees that the Logan
store had always been nonunion and he intended it to stay
that way; that he would do everything in his power to keep
the Logan store from going union. He said that the employ-
ees did not need a union; that they could work out any prob-
177CECIL I. WALKER MACHINERY CO.
20 Par. 5(c)(ii).
21 Madison Industries, 290 NLRB 1226 (1988).
lems that they had through the Company; and that they could
call him day or night or work out such problems with
McLean, Gordon, or other members of management. He
warned, however, that if the Company ever signed a contract
with the Union, such talks between the employees and man-
agement would end because everything would have to be ne-
gotiated.
Walker warned the employees that if they went union,
they would just be hurting themselves; that if they signed a
union card or joined the union, they were signing a pact with
the devil. He said his father had let the union in at the
Charleston store and that it was the worst mistake he ever
made; that he regretted it till the day he died; and that he,
Stephen Walker, was not going to let that happen at the
Logan store.
Walker advised the employees that he had the best union
busting lawyers there were and that he had never lost but one
case since he hired them. He named the lawyers and said
that they specialized in defeating union organizing activities.
He described one as an exmarine, somebody that he would
not want to tangle with.
Walker stated that he did not have to sign a contract, if
he really did not want to; that he had been through contract
negotiations before and had not signed one. He added that
he would never sign another union contract; that he had been
through strikes before and had outlasted them.
Walker then described to his employees the bargaining
tactics which he intended to use if negotiations were re-
quired. He declared that the employees would start with a
clean sheet of paper. He told them that if he had to negotiate
a new contract, the employees would lose all their benefits
and he would renegotiate all their insurance and other bene-
fits. He said that if he had to negotiate wages, he would go
for a pay scale based on the lowest qualified man’s abilities
so that the higher paid people would lose money; that after
a contract was negotiated, the highest paid employee then,
would be receiving the same pay as the lowest paid me-
chanic was receiving before negotiations. Thus, he said, he
would put a freeze on wages and back up and pay every man
what the lowest paid man was worth so that everyone would
take a wage cut except the lowest paid man.
As to working conditions at the currently unionized stores,
Walker stated that in all the years that he had been involved
with such stores, the Employer had lost only one grievance
and that had been just recently.
The complaint20 alleges that Respondent, acting through
Walker, on March 22, informed its employees that it would
be futile for them to select the Union as their bargaining rep-
resentative and thus violated Section 8(a)(1) of the Act. After
having considered the above-described content of Walker’s
speech, I find the allegation meritorious.21
Immediately after Walker had finished his speech, while
the employees were finishing up their paperwork, Mike
Curry, Darren Gore, and Paul Schafer began discussing,
among themselves, what they should do next. They had
planned to invite a union representative to come in and talk
to all the employees and tell them what a union could and
could not do. In light of Walker’s speech, however, their ini-
tial plan did not appear feasible so Curry asked Walker if the
employees could have the use of the conference room for a
few minutes to talk among themselves. Walker agreed and
the members of management who had been in attendance left
the room.
At the brief meeting of employees which followed, it was
decided that they had better get all the employees together
and talk about what they wanted to do. They determined to
hold a meeting some nonwork day in the future to talk about
the situation. Mike Curry then went into McLean’s office
and asked him if the employees could hold a meeting in the
conference room on Sunday, April 2. McLean told him that
they could do so as long as there were no union officials
present. Curry agreed to the stipulation and the meeting was
scheduled.
The meeting of employees was held as scheduled on Sun-
day, April 2, in the conference room. Almost all the hourly
employees attended but no member of management. Mike
Curry volunteered to take charge of the meeting just to get
things started. He gave a general overview of the situation
at the Logan shop. He noted that a number of employees had
signed union cards and were investigating the possibility of
having the UMWA organize the store. He said that in light
of Walker’s speech, however, maybe the employees should
vote on whether to go ahead with the union organizing ef-
forts or, in the alternative, try to talk to the Company to see
what kind of answers management would give to the prob-
lems, and grievances that the employees had with the Com-
pany.
After some discussion, the employees voted on the issue
presented and decided that they would rather talk to the
Company, present the employees’ problems and obtain man-
agement’s reaction before going any further with their orga-
nizational campaign.
Following the vote, it was decided that the employees
should prepare a list of grievances to present to Walker.
Curry suggested that spokesmen be elected to get all the ma-
terial together and to present the grievances when ready. He
suggested further that two employees be chosen from the
service department and one from the parts department since
the service department was larger. This was agreed on and
subsequently Mike Curry and Paul Schafer were elected to
represent the service employees and John Workman to rep-
resent the parts department employees.
The rest of the meeting was taken up with collecting infor-
mation concerning individual grievances and problems which
the three spokesmen would eventually present to manage-
ment. An outline of main topics was prepared which the
spokesmen intended to summarize for later presentation.
The three spokesmen and a few other employees met
briefly after the general meeting and decided to meet the fol-
lowing weekend to put together a final product after gath-
ering additional grievances through the week. They planned
a second general employee meeting to get the approval of
their product from the other employees before presenting it
to management. Union organization was on the back burner.
The following day, April 3, Mike Curry and Schafer vis-
ited McLean to tell him what had transpired the day before
at the employee meeting. They told him of the election of
the three spokesmen and that they were working on a list of
grievances which they planned to present to the employees
then, if approved by them, to Walker. McLean offered to
178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 The length of time during which Mike Curry continued to work
on the first shift after returning from his injury is in dispute. Per-
sonnel records were introduced by neither party.
23 McLean testified contrary to this finding but is not credited be-
cause of inconsistencies in his testimony discussed infra. According
to McLean, during this conversation he reminded Mark Curry of a
stipulation to which they had agreed when Mark was hired, to the
effect that because of Mark’s relationship to Mike Curry, they would
not work on the same shift. He testified further that he told Mark,
at this time, that this stipulation was the reason for his transfer to
the second shift.
Mark Curry testified that there never was such a stipulation and
that he never was told that he could not work the same shift as his
uncle; not at the time of his hire, nor at the time of his transfer back
to the night shift.
McLean testified further that when he reminded Mark Curry of the
alleged stipulation, Mark replied that there were other related em-
ployees working on the same shift and so he should be permitted
to do so also. When McLean stated that he was unaware of this fact,
Mark explained that Darren Gore and he were both nephews of Mike
Curry.
Since I have credited Mark Curry’s statement that McLean never
gave him a reason for his transfer to the night shift, I find also that
Mark Curry, in effect, denied that this extended conversation ever
took place. I find that McLean subsequently created the alleged con-
versation, out of whole cloth, in order to establish a basis for his
contention that he suddenly, for the first time, learned that Darren
Gore was the nephew of Mike Curry, and to establish a pretext for
his discharge.
give them time off, on company time, later in the week, to
work on the list and they accepted his offer.
On Thursday, April 6, Rowe told Mike Curry and Schafer
to stay in the shop that day because McLean wanted them
to get together with Workman to work on the grievance list.
Since Workman was on the second shift, he had to be called
in special and arrived about an hour after work had started.
The three committeemen went into the conference room
and discussed the project. They felt they were probably wast-
ing their time but since the majority had voted to try to ne-
gotiate directly with their Employer, they would do the best
they could. They felt that none of them had any experience
whereas the Company had lawyers and experience both.
They decided to make out a general list of grievances rather
than attempt to draw up a contract, present the list to the em-
ployees first, then to management and gauge by the response
of management whether the Company was seriously dealing
with them or not. They worked for a couple of hours and
finally came up with a finished product which they gave to
Workman to have typed and reproduced for distribution.
On Friday, April 7, Workman and Schafer happened to
meet. Workman told Schafer that when he reported to work
on the afternoon of April 6, McLean confronted him in the
warehouse and asked him where his list was. Workman ex-
plained that they were just working on it, that they had not
yet finished. McLean commented that he thought that Work-
man was one of the ringleaders.
A few day after the April 2 employee meeting, Workman
had heard rumors to the effect that he had been nominated
and elected by the parts department employees only because
if there was any flak that came down from management over
the problem of the employees making demands on manage-
ment, he would take it and they would be in the clear. After
hearing these rumors and being confronted by McLean and
called a ringleader, Workman confronted the other parts de-
partment employees on the evening of April 7 with the infor-
mation he had received. They freely admitted that the reason
they had elected him as spokesman was that they did not
think that McLean liked Workman very much anyway and
if anyone was going to get fired, it might as well be him.
They admitted that that was why they had nominated him.
Since Workman had accepted the nomination with the under-
standing that he would be the direct representative of the
parts employees, and they would back him up in that posi-
tion, he felt betrayed. Although the other parts department
employees apologized for what they had done, Workman de-
cided to resign as their spokesman. The following day, he
described to Schafer what had happened, tendered his res-
ignation, and did not participate further in the employees’ ef-
forts at bettering their working conditions through direct
dealings with management. No one replaced Workman as
spokesman for the parts department and Mike Curry and
Schafer carried on alone as a committee of two. Subse-
quently, Workman also advised McLean of his resignation
from the committee. Workman denied that his conversation
with McLean, in which McLean called him a ringleader, had
anything to do with his resignation from the committee. I do
not credit his denial. Indeed, I find that Workman switched
allegiances in order to keep his job, which, unlike the rest
of the card signers, he did.
At this stage of the scenario, it is clear that the Company
had successfully blunted the union organizational drive by
offering to deal directly with its mechanics in their concerted
effort to better their working conditions under the leadership
of the two remaining members of their committee. McLean’s
conversation with Workman, however, just as clearly indi-
cates some dissatisfaction with the newly organized activities
of the employees.
Meanwhile, as of mid-March, Mark Curry had been absent
from work for about 3 months due to an on-the-job injury.
When he returned, he was put on the day shift, the same
shift worked by Mike Curry, his uncle, and Darren Gore, his
cousin. Mark worked the day shift for several weeks22 before
being told by McLean that he was being transferred back to
the second shift.
When Mark was told that he was being transferred back
to the second shift he objected, stating that he preferred to
work on the first shift. He argued that he had more seniority
than several other employees on the first shift. McLean ig-
nored Mark’s argument and insisted on the transfer without
providing further explanation.23
Mark Curry worked the second shift about 2 weeks. He
was dissatisfied and still objected to being assigned to the
second shift while three or four other employees, with less
seniority than himself, continued to work the first shift. He
must have recalled, at this time, Steve Walker’s mid-March
invitation to the employees, to call him personally if they
had any grievances because Mark Curry did just that.
When he contacted Walker, he asked him why he could
not work first shift and whether there was a problem with
him and Mike Curry working together because they were re-
lated. Walker replied that he had no problem with Mark and
Mike Curry working together on the same shift adding, ‘‘I
can hire your daddy, if I want to . . . . It don’t matter what
goes on, as long as Mike doesn’t sign your paycheck.’’
When the rule in the manual concerning the employment of
179CECIL I. WALKER MACHINERY CO.
24 Ibid.
25 It is not unheard of for an employer who is disturbed by an em-
ployee’s participation in protected activities, to suddenly decide to
review his application in hopes of finding a discrepancy to use, as
a pretext for discharge. Campbell 66 Express, 238 NLRB 953
(1978), enfd. denied 609 F.2d 312 (7th Cir. 1979).
relatives was mentioned, Walker stated that it did not matter
what the manual said, that he owned the place.
Shortly after Mark Curry’s conversation with Walker, he
was transferred to the day shift where he worked with Darren
Gore until the latter’s suspension and with Mike Curry until
both were laid off on June 30. The content of the conversa-
tion between Steve Walker and Mark Curry and the subse-
quent transfer of Mark Curry prove, beyond question, that
Respondent had no serious problem with relatives working
together.
Of course, Walker would not have made the actual transfer
himself, but would have had to go through McLean to get
Mark’s transfer accomplished. In the process of scheduling
the transfer, Walker would necessarily have had to review
with McLean, his conversation with Mark and the content
thereof, including their discussion about the rule in the man-
ual regarding the employment of relatives. It may have been
at this time that it occurred to management, that the rule
could be used to get rid of Gore.
On April 10, according to Gore, he and Mark Curry were
called into McLean’s office. McLean asked Gore if he was
kin to Mark Curry. Gore admitted he was. McLean then
asked if Gore knew, when he was hired, that it was against
company policy to hire kin. Gore answered that he did not.
McLean then said that Gore was suspended until further no-
tice, that he would let him know in 2 or 3 days what would
happen next. He told Gore to leave, that he wanted to speak
with Mark. Mark Curry though present during this critical
conversation was not called to testify by either party con-
cerning its content.
McLean’s testimony concerning Gore’s suspension and
eventual discharge is at variance with that of both Mark
Curry and Gore. McLean testified that while Mark was still
on second shift he had a conversation with him wherein
Mark told him that he and Gore were nephews of Mike
Curry.24 In connection with this already discredited testi-
mony, McLean further testified that the first thing he did
after hearing of Gore’s relationship to Mike Curry was to
check Gore’s application which indicated that he was not re-
lated to anyone.25 He then called both Mark Curry and Gore
into his office and asked Gore if he was kin to Mark Curry.
Gore admitted being related to both Mark and Mike Curry.
McLean then asked if he knew, when he was hired, that it
was against company policy to hire kin. Gore replied in the
negative. When next asked why he had not put that informa-
tion on his application, he replied that he did not think it
mattered. McLean then informed Gore that the omission was
grounds for dismissal and that if he had the information up
front when considering Gore for hire, he probably would not
have hired him. He then told Gore that he was suspended
until further notice, and would let him know something in
2 or 3 days. He told Gore that he could leave; that he wanted
to talk with Mark.
After Gore left the office, he met Mike Curry just outside
and told him that he had been suspended. Shortly thereafter,
McLean came out of his office and called Mike in. Once
there, McLean explained to Mike Curry the situation and the
reason for Gore’s suspension. He told Mike Curry that he
had no idea that Darren and Mark were kin to each other.
Mike, after some further discussion, said that he kind of
thought all along that McLean knew that he was Darren’s
uncle. At this statement, McLean threw his hands up and
said he never knew that Mike was Darren’s uncle, that he
just thought he was kin to Mark.
In light of McLean’s own testimony to the effect that he
had been told by Mark Curry, while he was still on the night
shift (testimony which has been discredited) that he and
Darren Gore were Mike’s nephews, and had just been told
the same thing minutes before by Darren Gore, I find
McLean’s feigned surprise at hearing it for yet another time,
a disingenuous attempt to convince Mike Curry of the truth
of the pretext on which he had just suspended Gore. I find
that the inconsistencies in McLean’s testimony seriously un-
dermines his overall credibility.
Mike Curry and Tim McLean continued their conversation,
with McLean explaining that he had suspended Gore because
he had put on his application that he was kin to nobody at
the Company. He admitted knowing that Mark was kin to
Mike, up front, when he hired Mark and so that was dif-
ferent.
Following his suspension, Gore tried all week to find out
his status. He visited the store and talked with McLean and
called up both McLean and Steve Walker but neither would
tell him whether he was fired or still under suspension.
Meanwhile, the employees’ list of grievances, dated April
14, was typed and duplicated. Workman supplied a number
of copies to Schafer and Mike Curry who brought them to
the second employee meeting which took place on April 16.
Workman, having completed his task, reiterated his position
that, henceforth, he would no longer be involved in com-
mittee activities.
The meeting of April 16 was attended by a majority of
Respondent’s employees but not nearly as many as had at-
tended the first meeting. True to his word, Workman did not
attend. He told Mark Curry that he did not attend because
he was afraid of losing his job. Others failed to appear be-
cause they had simply lost interest.
Schafer and Mike Curry generally ran the meeting. They
distributed copies of the list of grievances to all who were
present. They asked the employees to read it and decide
whether or not they wanted to make any amendments. They
explained that they did not think that they could negotiate a
contract with management because they were not capable of
doing so but felt that they could submit this list of grievances
to management to see what response there was and to deter-
mine if the Company was serious in dealing with the em-
ployees. Mike Curry opined that if management wanted to
talk about the list of grievances, the matter probably would
go further but, as of then, this was just something to let the
Company know what the employees’ grievances were.
The employees read the list of grievances, discussed its
content, decided that it was fine the way it was, and voted
that it be submitted to management. Schafer then commented
that he thought submitting the list to management was a
waste of time but if that was what the men wanted, that is
what would be done. He noted that a number of employees
had not come to this second meeting because they were
afraid of what had happened to Gore. He said that he could
180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 Par. 6(a).
understand their not wanting to lose their jobs and thinking
they could distance themselves from what those in attend-
ance were trying to accomplish. But, he added, whether or
not the employees attended the meetings, there had been
enough cards signed to ensure a representation election, and
when the day came to vote, everyone would look as guilty
as he, when they went in to cast their ballots.
Discussion turned to the suspension of Darren Gore. Mike
Curry mentioned to the employees that the Company had
suspended Gore and McLean had said it was because he was
related to Curry. However, Curry testified, the majority of
employees present at the meeting believed that Gore had
been disciplined because he had brought the union cards to
work and management found out about it. Those present
knew that Gore had been suspended and that management re-
fused to tell him whether the suspension was temporary or,
in fact, a termination. They felt that Gore was being wrongly
treated and that something should be done about it besides
merely talking about it. At least he should be given a straight
answer. These feelings were voiced by several of those
present.
After a good deal of discussion, it was suggested that, to
show their support for Gore, the employees staged a sickout
the following day. A vote was taken and it was agreed on.
It was suggested that each employee should obtain a doctor’s
excuse. Later that evening, the employees not present at the
meeting were called and advised of the sickout.
After the meeting, and before he the left shop, Schafer
placed a copy of the list of grievances in an envelope and
slipped it under the door to McLean’s office for him to find
Monday morning. A second copy was mailed to Stephen
Walker the following day.
On Monday, April 17, in accordance with the decision ar-
rived at the day before, almost all the employees failed to
report for work. Almost none of them called the shop to re-
port they would be absent but most of them brought in doc-
tor’s excuses when they returned to work.
At 6:30 the morning of the sickout, Gore visited the Logan
store and talked with McLean. He asked him what his status
was, whether he was fired or suspended. He asked McLean
whether or not he was going to be put back to work.
McLean replied that he would let Gore know in a minute.
He then went into his office, talked to somebody on the
phone, then came out and told Gore that he was terminated
and could look for another job. Gore asked for a reason for
his termination but McLean answered that he would receive
an official statement along with his final check. Gore eventu-
ally received his paycheck but no explanation.
The complaint26 alleges that Respondent terminated Gore
because of his protected concerted activities in violation of
Section 8(a)(1) and (3) of the Act. In support of this allega-
tion the record reveals that Gore was the initial primary orga-
nizer for the UMWA; that he was responsible for virtually
all the distribution of union cards among Respondent’s em-
ployees; that he obtained almost all the signatures thereon;
and that he collected all of them and turned them over to the
Union. The record also reveals that management obtained
knowledge of Gore’s activities; demonstrated through the
commission of 8(a)(1) violations its antiunion animus; and
terminated him in timely fashion. I find that counsel for the
General Counsel has presented a prima facie case.
Respondent takes the position that Darren Gore was termi-
nated for cause, that cause being that he falsely denied in his
application for hire that he was related to any other individ-
uals employed by Respondent. The record reveals, however,
that everyone at the Logan installation was aware of the rela-
tionship between the Currys and Gore, some at the time of
hire and even before, including Norman Rowe, the dispatcher
and supervisor under the Act. I cannot credit the denial of
McLean, that he alone was ignorant of the relationship be-
tween the Currys and Gore, particularly in light of his admis-
sion that he hung around with the mechanics at work and
knew each and every one of them on a personal basis.
Moreover, the record also reveals that Respondent em-
ployed other sets of relatives who worked occasionally or
regularly with each other on the same shifts. I conclude that
Gore’s relationship to the Currys was used as a pretext to
terminate Gore and that the true reason for his termination
was his organizing activities on behalf of the Union.
On the morning of April 18 there was an accident on the
highway leading to the shop which resulted in a traffic jam
which lasted about 45 minutes. Schafer was caught in the
backup and as he was seated in his truck, waiting for the
backup to clear, McLean, also caught in the traffic, walked
up to Schafer’s truck, got in, and engaged him in conversa-
tion. He asked Schafer what yesterday was all about, refer-
ring to the sickout. He asked if it meant that the employees
were not going to negotiate something with the Company.
Schafer replied that, officially speaking, he had been sick on
Monday but that most people were very upset about Gore’s
situation, especially that it could not be resolved in a week.
McLean then informed Schafer that he had terminated Gore
the day before. Schafer replied that he thought that McLean
should expect a charge to be filed with the National Labor
Relations Board (NLRB) over Gore’s firing. McLean then in-
formed Schafer of Respondent’s ostensible reasons for
Gore’s termination. Schafer replied that the rest of the em-
ployees were left with taking McLean’s side of the story or
Gore’s and asked, ‘‘Who are we going to believe?’’ Thus,
this part of the conversation ended with a line clearly drawn
between management on one side and Schafer and the major-
ity of employees on the other side along with Gore.
Continuing the conversation in Schafer’s truck, and getting
back to the subject of negotiations, Schafer advised McLean
that, as far as he knew, the employees were going to con-
tinue talking to the Company but there would have to be an-
other employee meeting to see what they wanted to do be-
cause he, Schafer, could not make a decision for everybody.
McLean then asked Schafer if there were going to be any
more sickouts and Schafer said that he did not think so, but
did not know.
McLean then mentioned that he had received the list of
grievances, had looked through them, and thought they could
probably work some things out. He added that it would take
a while to work on it.
On the morning of April 18 the employees who had par-
ticipated in the sickout reported to work. McLean asked for
doctors’ excuses and took them from those who had them.
He told the mechanics gathered in the conference room that
he had to know if he could depend on them to be there for
work because he had jobs for them to do.
181CECIL I. WALKER MACHINERY CO.
A meeting between management and the employee com-
mittee was finally scheduled for April 25. On that day,
Schafer and Mike Curry were brought into the conference
room to discuss the April 14 list of grievances with Walker,
McLean, Dailey, and other members of management. Walker
did most of the talking throughout the meeting and began by
stating that he was not there to talk about the previous Mon-
day (sickout) but was there to talk about the list of griev-
ances and what the Company could do about them. He added
that the Company needed more information because manage-
ment did not understand what the employees wanted with re-
gard to some of the items. The discussion then proceeded in
a more or less exploratory vein.
The parties went down the list, item by item. Walker and
occasionally McLean would ask the two committee members
what they meant by a certain provision and what the Com-
pany could do about another. According to Mike Curry and
Schafer the subjects of training, layoffs, pay scales or wages,
job posting, vacations, and work during inclement weather
were all discussed. With regard to increased training, Walker
announced that a new training director had been hired and
a new training program would be established. Concerning
layoffs, Walker said that the Company tried to give their em-
ployees advance notice of layoffs; that they had worked with
employees to get some kind of time sharing or shifting be-
fore actually laying anybody off; and laid people off on the
basis of seniority when their qualifications were equal. On
the subject of pay scales and wages, Walker asked Schafer
what the employees wanted. Schafer replied that the Com-
pany’s competition for labor was the UMWA and the union
scale was $16.50 per hour. Walker then said that there was
no way that Walker Machinery would ever pay that much;
that he could not pay what a coal miner made because his
was a service company. He said he could not afford to pay
union scale, then offered a brief explanation about the
amount of work done by the Company, the amount of rev-
enue received, and how it was decided how much the Com-
pany could pay its employees. With regard to job posting,
Walker asked Curry what kind of job posting the employees
wanted. Knowing Curry had been a mineworker, he asked
him how the UMWA did it. Curry explained the system but
Walker stated that there was no way the Company would
ever go to that rigid a job posting set up. Concerning vaca-
tions, Walker explained how the Company was going to take
care of the scheduling of employees’ vacations. Finally, as
to the employees’ grievance involving working in inclement
weather, a revised policy was apparently announced. Accord-
ing to Mike Curry, a few minor grievances were resolved at
this meeting. According to Schafer, nothing was resolved.
Although none of the larger issues and few of the less im-
portant issues were resolved at the meeting, the parties ap-
pear to have treated each other cordially and with respect
while discussing the various problems listed. When the meet-
ing was about to break up, however, Walker asked if anyone
else had anything to say. Curry said that he did, then said
that speaking for the employees of the Company, it would
be of great benefit to the success of their negotiations, if the
Company would reconsider Gore’s situation. Schafer added
that he thought what had happened to Gore, ‘‘would cast a
long shadow over our proceedings with the grievance list.’’
These remarks were greeted with total silence. No one said
anything for about 30 seconds. Finally, Walker simply said
‘‘okay,’’ then everyone got up and left the meeting.
At one point during the discussion, Dailey asked Schafer
and Curry how the other employees were going to find out
about what they talked about that day. They replied that they
would have to call another employee meeting to inform them
of the results of the committee’s meeting with management.
After the meeting was over and management had left, Curry
and Schafer decided to request permission of McLean to
have the meeting on company time. McLean granted permis-
sion for two employee meetings, one with the second-shift
employees that afternoon and another the following day with
the first shift.
Both employee meetings were conducted in the same fash-
ion. Schafer told everyone that he had taken notes during the
meeting with management and that he was going to tell
them, without bias, exactly what the Company’s response
had been. Then, he said, if the employees wanted to know
his personal opinion of the meeting, he would tell them.
Schafer then read through his notes and told those present,
point by point, management’s reaction to each of the griev-
ances contained in the list. When he was then asked his
opinion, he told them that he thought they were wasting their
time. He said he thought that management might make a few
superficial changes, but nothing serious was going to come
of the negotiations. Curry joined Schafer in his opinion and
stated that he too, thought they were probably wasting their
time.
After completing his report on the results of the meeting
and offering his opinion, Schafer addressed the gathered em-
ployees on the subject of the Union. He told them that when
the employees signed union cards, it had been a serious mat-
ter. He stated that the process of organizing had been started
and even if employees failed to attend meetings, it was not
going to stop the union organizing campaign because Darren
Gore had been fired for his participation in it. He added that
the least the employees owed to Gore was to continue with
the organizing campaign until they had a union representa-
tion election, whether or not an agreement was reached with
the Company through the committee’s negotiations with
management.
Thus, by late April, Respondent’s management was deal-
ing directly with the employee committee in an attempt to
keep the Union out while the committee, consisting of two
strong union adherents, was negotiating with management
and, at the same time, continuing the union organizing cam-
paign and attempting to get Darren Gore reinstated to his
job.
As of May, Respondent’s business was good and improve-
ment was contemplated. Its employees were working full
time and overtime was mandatory. This was true although
there was picketing at certain mines.
On May 11, McLean conducted a meeting with the service
employees. He told them that management did not have a
written response to everything on the list of grievances but
it had been working on it and wanted to let the employees
know what it had accomplished so far. Memos on tool policy
and on inclement weather policy were distributed, but noth-
ing was said about the more difficult issues such as seniority
or pay scales. Schafer therefore asked McLean about these
other matters. McLean replied that management would get
back to the employees on the other matters contained in the
182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 McLean testified that employees Homer Pennington, Mike
Parks, and Mark Ferguson actually crossed picket lines.
list in a couple of weeks. After the meeting, Schafer dis-
cussed it with other employees and concluded that there was
little substance to management’s offer.
In June, the UMWA’s strike against the Pittston Coal
Company spread south, and a number of mines were being
picketed in the Logan area. In normal times, during June and
July, the mines close down for two 2-week periods while the
miners take vacation. During these periods, Respondent
would ordinarily take the opportunity to service equipment at
the mines, and available work would increase dramatically.
With the strike and picketing in progress in 1989, however,
Respondent’s management did not know what to expect.
Eventually, however, sometime before June 12, McLean
learned that the annual vacation for the miners, previously
scheduled for June 26 through July 8, had been rescheduled
for mid-July, so the expected increase did not occur.
When the strike began, Dailey contacted the managers of
the stores to advise them of the Company’s position with re-
spect to informational picketing. That position was that pick-
ets were defined as persons carrying signs at places of busi-
ness where the pickets had a primary labor dispute with the
business being picketed. Picketing of places of business
where the pickets had no labor dispute with that business,
wildcat picketing, was in a different category, according to
Dailey. Strike-bound property, he defined as property where
pickets were present in either case, but if a picket came and
then left the entrance to a business or mine, that property
was not strike-bound property and he expected his service
employees to go onto those jobs and get the work done for
Respondent’s customers.
Dailey testified that it was Respondent’s position that it
did not want its employees to put themselves in physical
jeopardy by crossing picket lines. It wanted them, when
faced with picketing, to call the shop and advise management
of the situation so that the service personnel could be sent
to another job. According to Dailey, Respondent had collec-
tive-bargaining agreements at three of its stores and arrange-
ments had been made with Local 132 of the Operating Engi-
neers concerning picketing. The arrangement was that Re-
spondent’s employees could only go through a picket line if
it first obtained permission from the aggrieved union, but if
there were no pickets, Respondent’s employees could enter
onto the property and get the work done whether or not there
was a strike in progress. This is what Respondent expected
its Logan employees to do also.
Prior to January 12, the UMWA picketed only Pittston fa-
cilities. On that date, however, pickets appeared at UMWA
mines and facilities throughout southern West Virginia,
wherever B.C.D.A. contracts were in effect, and a series of
wildcat strikes broke out at various locations including sites
in Logan County. Reports of the strike and of violence ac-
companying the strike appeared in newspapers. Respondent’s
mechanics reported for work at certain locations, saw pick-
ets, and turned around and left. Some mechanics would fail
to go to work, according to McLean, even when there were
no pickets at the site. Whereas there had been a lot of work
and Respondent’s employees worked a good deal of overtime
in early June, as of June 12, with the advent of the wildcat
strike, actual hours worked suddenly decreased.
After sporadic primary picketing in early June, the number
of mines being picketed dramatically increased beginning
June 12, until virtually all union jobs were shut down. Ini-
tially, according to Schafer, Respondent’s employees were
not affected by the Pittston strike. Eventually, however, they
were because they would not cross picket lines nor work on
strike-bound property which, unlike Dailey’s definition, in-
cluded struck property, even when no pickets were present.
Reports of violence appeared in the newspapers and the sub-
ject was widely discussed throughout Logan County and
among Respondent’s employees. These reports played a role
in the decision of employees not to cross picket lines, and
it did not matter whether the picket line was legal or illegal.
Schafer testified that he consistently told company officials
that he would not work on strike-bound property, that it was
just a waste of time and the Company’s money to send him
to strike-bound property because he was not going to work
on it. He stated that he did not expect management to send
him out just to pay him for 2 or 3 hours’ driving time only
to return without doing any work, and was always surprised
when they did it.
Michael Curry also testified that he too refused to cross
any picket lines and that reports of violence played a part in
his decision not to cross. He grew up in Logan County, he
stated, was aware of what could happen to people who
crossed picket lines and was frightened for his safety. He tes-
tified further, that if, at a particular worksite, there had been
picketing earlier, but the pickets had left, he still would not
work on that property. He described the pickets as usually
dressed in camouflaged T-shirts and khaki army-type camou-
flaged pants. Whereas pickets carried signs at Pittston loca-
tions, they did not do so at wildcat locations. According to
Michael Curry, groups of these wildcat pickets would move
from one site to another, picket for 2 or 3 hours, then move
on to the next site. He was afraid of going onto a site which
the pickets had just left because they might return, a hundred
strong, and he would then be faced with either staying on
the property or suffer the consequences of having to go
through the picket line to get off the property.
Pickets showed up at both the Charleston and Logan stores
on or about June 12. Newspapers carried reports of wide-
spread violence and rumors of the same came to the attention
of Respondent’s employees. They would be assigned to jobs
at customers’ locations, arrive there to find pickets, then re-
turn to the store. Attempts to contact the mechanics at cus-
tomer locations were unsuccessful and it appeared to man-
agement, according to Dailey, that for the first time, Re-
spondent had an undependable work force at Logan. Me-
chanics based at Charleston, Beckley, and Huntington would
work at sites where pickets had come and gone, but not the
Logan mechanics. Although the Logan management agreed
that the mechanics were not expected to take the risk of
going through the picket lines, they were expected to go on
customer properties and do their assigned jobs, once the
pickets left. This, for the most part, the mechanics refused
to do.27 They expressed concern for the safety of themselves,
their personal vehicles, and property.
According to Respondent, after June 12, as a result of the
picketing, as it affected customers and Respondent, there was
a drastic decrease in parts-sales-orders (PSO). The decrease
in PSOs was greater at the Logan store than any other, al-
though there were decreases in some of the other stores.
183CECIL I. WALKER MACHINERY CO.
28 I have relied on company records to make these determinations.
Where testimony is not in agreement with these records, I do not
credit the witnesses.
29 Robert Zastawniak.
30 Bituminous Coal Operators Association.
With the loss of revenue due to the refusal of the Logan me-
chanics to go through the picket lines or even enter onto
struck worksites where there were no pickets, management
attempted to get certain employees to agree to fly onto these
properties by helicopter. Most, if not all, refused for fear of
violence and on philosophical grounds. This occurred on the
morning of June 20. When the employees refused to fly over
picket lines or onto strike-bound property, management as-
signed several mechanics to nonunion jobs and told the rest
to go home because there was no other work available.
Those sent home were told that they would be called when
needed. Paul Schafer was among those employees who re-
ceived job assignments to nonunion jobs that morning. He
received the assignment despite the fact that he had made it
clear that he would not cross picket lines or work on strike-
bound property both for reasons of safety and philosophy and
it did not matter whether the worksite was the target of a pri-
mary or a wildcat strike, legal, or otherwise. In all, seven
employees received assignments that day, four of them card
signers. Assignments appear to have been made on the basis
of seniority with no evidence of discriminatory motivation.
Indeed, one card signer was transferred to the second shift
to replace a younger employee who was sent home, in order
to give work to the card signer. Those mechanics who were
sent home received 2 hours showup time. If they had been
willing to work on strike-bound property, there was work
available for everyone.
On June 21, the same seven employees who worked on
June 20, again received assignments. In addition, two em-
ployees who had been sent home the day before received as-
signments. Both had signed union cards. Thus, six of the
nine employees who worked June 21 were union adherents.28
On Thursday morning, June 22, McLean called a meeting
of the service personnel in order to explain to them the posi-
tion of the company with regard to the Pittston strike. He
told them that Walker Machinery was a service Company,
not a mine, and that it was obligated to service its customers.
He again advised them that the Company was neutral with
regard to the primary strike at Pittston locations. With regard
to secondary locations, he said that he did not expect the me-
chanics to cross where pickets were present but did expect
them to work where there were no pickets. He stated that the
Company was willing to stagger starting times to avoid pick-
ets if it had to implement that option. He presented the in-
junction which the court had issued against the union locals
and explained that it was illegal for anyone to try and stop
Walker Machinery Company from conducting its business.
He then stated that he needed to know from each individual
whether he was willing to work and whether he, McLean,
could depend on him. He told them that he was giving them
24 hours to decide and get back to him. At this point,
Schafer spoke up and said that he did not need 24 hours to
think about it, that ‘‘he would not work scab’’ or on union
jobs.
When the meeting was over, McLean said, ‘‘Anybody that
has a job, let’s get to it. Everybody else can go home.’’ Ac-
cording to Respondent’s field service schedule for that day,
11 employees were given assignments. Six of the 11 were
given to union card signers.
When the meeting ended, Schafer remained seated, filling
out some paperwork. When he had finished, he stood up and
found McLean standing beside him. McLean looked at
Schafer and said, ‘‘I guess your going home.’’ Schafer
asked, ‘‘How come?’’, since the field service schedule for
that day had Schafer scheduled to work at the same nonunion
jobsite where he worked the day before. McLean replied,
‘‘Because you refused to work.’’ Schafer denied that he had
refused to work and said that he wanted 24 hours to think
about it, like everyone else had. He added that he did not
think that he would change his mind, but he did want to
think about it. McLean said, ‘‘Well, I guess you’ll have to
think about it at home.’’ Again, Schafer asked, ‘‘How
come?’’ McLean replied, ‘‘Because I’m sending you to Old
Hickory today.’’ Both McLean and Schafer were aware that
Old Hickory was a union job which had been shut down by
the wildcat strike and was being picketed, so Schafer asked,
‘‘Are those my only choices? To go to Old Hickory and
work on this struck job or go home? If those are my only
choices, then I guess I’ll probably go home.’’
After working an additional half hour on more paperwork,
Schafer approached McLean and said, ‘‘Tim, I just want you
to understand, I’m not refusing work today. I just want the
same 24 hours to think about it that you gave everyone
else.’’ McLean replied that he understood that. He added that
he was not trying to put anybody on the spot and he under-
stood that this was a difficult situation. He explained that he
had plenty of work and wanted to get it done. He told
Schafer to think about it and expected Schafer’s answer by
8 a.m. the following day. He said that Schafer did not even
have to come to the shop; that he could call him on the
phone.
Respondent’s field service schedule for June 22 indicates
that the Old Hickory job had been tentatively assigned to
employee Jimmy Trent and was transferred to Schafer imme-
diately after he made his position known that he would not
work on union jobs. I find that McLean transferred Schafer
in retaliation for making the statement he did. I do not, how-
ever, find a violation because none was alleged.
Certain employees did not attend the June 22 meeting.
Some of those, but not all, were given the same message in-
dividually by McLean. According to McLean’s records, four
employees agreed to work at union locations where there
were no pickets, four refused to do so, and the rest did not
decide immediately. According to one witness,29 the employ-
ees were all in agreement that they would not work on
strike-bound property.
At the time of the meeting, there was plenty of work for
Respondent’s employees to perform. A majority of Respond-
ent’s customers, however, were members of BCOA30 and
were victims of secondary picketing or considered by Re-
spondent’s employees as strike-bound even if no pickets
were present. Respondent had solicited much of this work
and had agreed to perform the necessary services within a
specific time period, namely during the miner’s vacation pe-
riod. For this reason, McLean had to know if his employees
were willing to do the work. That was the reason for the
184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
meeting and he told the employees this at the meeting of
June 22.
During the meeting, after McLean had finished his expla-
nation of the Company’s position, some of the employees
wanted to know what would happen if they decided that they
would not work on strike-bound property. McLean replied
that he did not know but he was going to have to make some
kind of personnel adjustments.
Whereas, between June 12 and June 22, pickets would oc-
casionally appear at the Logan store for varying periods of
time, on June 23 the first mass picketing of the store was
undertaken. Fifteen or so pickets, dressed in camouflage
pants, shirts, and sometimes hats and wearing red bandannas
over their faces, blocked the driveway to the store. None of
the pickets carried signs but their outfits identified them as
UMWA members, outfits typically used to picket secondary
employers.
As each employee approached the shop and saw the pick-
ets massed at the railroad track, near the shop driveway, he
turned around and went home or to a nearby restaurant
where other employees had gathered. None of the employees
had to ask questions of the pickets because they recognized
the situation as similar to the secondary picketing occurring
throughout the area. Nevertheless, some of the employees
drove up close to the pickets where they were told that, in-
deed, it was a picket line, and were asked not to work. None
of the rank-and-file employees crossed the picket line that
morning but members of management did. McLean’s truck
was pelted with rocks as he went through the line and it suf-
fered a flat tire as well.
There is no evidence in the record as to precisely why the
UMWA chose to undertake mass picketing at Respondent’s
Logan store on that particular morning. An immediate effect
of the picketing, however, was that it prevented McLean
from meeting with his employees and obtaining from them
their positions with regard to the 24-hour ultimatum which
he had issued the day before.
Early in the afternoon of June 23, after the pickets had
gone, Gordon called Schafer at his home and told him to
bring his service truck to the shop; that for security reasons,
management wanted to have all of the vehicles returned to
the compound. Schafer asked Gordon what was going to be
done about work in the future. Gordon replied that he did
not know. Schafer asked whether or not he should take his
tools off the truck and Gordon answered that it was up to
Schafer. Schafer said that he would unload some of his tools,
then bring the truck in.
Later, that afternoon, when Schafer arrived at the shop’s
parking lot to deliver the truck, he approached McLean and
asked what they were going to do next. McLean replied that
he did not know and asked Schafer if he had any good ideas.
When Schafer replied in the negative, McLean simply said,
‘‘We’ll call you.’’ Although the conversation would appear
to have come to a conclusion, Schafer, at this point, added,
‘‘Well, I just want you to know, Tim, that I don’t want to
cross any picket lines and I don’t want to work on any strike
bound property.’’ McLean then turned to employee
Zastawniak, who had accompanied Schafer back to the shop,
and asked him if he felt the same way. Zastawniak replied
that he did, and he and Schafer left.
On Monday morning, June 26, when the employees re-
ported for work at the shop, they found that the pickets had
returned. Some employees went home, others turned and
drove back to the restaurant which they were in the habit of
frequenting. In a while, McLean and Gordon stopped by the
restaurant and told one of them, Warnie Jones, to return his
truck to the shop. After McLean and Gordon left, the em-
ployees decided that since no one knew how the Company
intended to deal with the situation, Schafer should call
McLean and schedule a meeting. He did so and arrangements
were made for the employees and management to meet in the
parking lot of a nearby vocational school to discuss the situa-
tion. This place was chosen in order to avoid the pickets who
had picketed the shop that morning and who might return.
On June 26, only one employee, Darrell Cline, worked that
day. The pickets remained all day but Cline had arrived at
work before the pickets had come.
The meeting took place at 5 or 5:30 p.m.. McLean, Gor-
don, and Rowe all attended the meeting. The employees
asked them what was going to happen. McLean replied that
there was plenty of work to be done, both at the store and
in the field, enough to last a month, and it was their decision
as to whether they would do it. He said that if they would
agree to work behind picket lines, he would provide trans-
portation to work and the protection of the state police while
crossing the picket lines. The men objected that they did not
want to cross picket lines. McLean then agreed that they
should not cross picket lines and endanger themselves but
should work at sites where there was a strike but no actual
picketing going on—strike-bound property. The men, how-
ever, advised McLean that they would not work on strike-
bound property either, because of fear that if they entered
onto the strike-bound property, a picket line might be estab-
lished behind them, and they would be unable to get out
without going through the line.
One employee suggested that McLean lay off the mechan-
ics or give them low earnings slips, presumably while the
wildcat strikes were in progress, so they could draw unem-
ployment insurance. McLean replied that he could not justify
a layoff while there was work available. That, he said, would
be illegal. He then suggested, in turn, that it might be a good
time for employees who had vacations coming, to take them
at this time. Employee James Ogle had 2 weeks’ vacation
coming and decided to take advantage of McLean’s offer. He
began vacation June 26 and was not due to return to work
until July 4.
During the meeting, one employee stated that the reason
that the Logan store had been picketed was because McLean
had directed his mechanics to go onto strike-bound property.
He suggested that McLean talk with the UMWA to get some
relief, McLean testified that he did not know, at the time,
what the employee meant by ‘‘relief’’ and did not know that
the pickets were UMWA pickets. He also testified that he
asked his employees if they thought the pickets were UMWA
pickets and they said they did not know. He further testified
that he was unaware, at the time, of the extensive involve-
ment of his employees with the UMWA. I find McLean’s
testimony on this matter disingenuous, at the very least and
I do not credit him.
Clearly, Schafer was the spokesman for the majority of the
mechanics. Schafer and this majority consistently refused to
work on strike-bound property. When, on June 22, McLean
lay down the 24-hour ultimatum, he found mass picketing at
his place of business the very next morning, by individuals
185CECIL I. WALKER MACHINERY CO.
31 Also appearing in the transcript as P&C.
32 B&C employees were not on strike but the UMWA was pick-
eting, nevertheless.
wearing what everybody in Logan County knew to be the
UMWA’s uniform of choice. Then on Monday, as picketing
continued at the shop, he was told at the meeting by his em-
ployees that the picketing was initiated because he had told
his employees to work on strike-bound property and he
should talk to the UMWA about it. With this set of facts
staring McLean in the face, it is ludicrous for him to testify
that he did not know who the pickets were and that he did
not know of his employees’ involvement with the UMWA.
On the morning of June 27, the pickets again returned to
the Logan store. A number of employees reported to work
but turned around when they saw the pickets and went home.
Employee Darrell Cline had been told the evening before by
Gordon that there would be work the following day; to con-
tact employee Tim Hatfield and to report in to work the fol-
lowing morning after the pickets left. Cline called Hatfield
and both worked a full day on June 27 as did employee
Mike Parks. Of the three who worked, Hatfield was the only
card signer.
On June 28, there were no pickets at the Logan shop and
15 of the 20 mechanics showed up for work and were given
assignments. Of the five employees who did not receive as-
signments that day, Schafer stayed at home voluntarily for
personal reasons, and of the other four, only one was a card
signer.
Of the 15 employees who received assignments that morn-
ing, 4 of them were sent to Tug Valley, a nonunion jobsite.
Of these four, two, Jody Gartin and Warnie Jones, had
signed cards. The other two, Joe Miller and Mike Parks, had
not. The other 11 employees who worked that day, worked
at the shop. The Tug Valley job was not completed on June
28 although the mechanics worked all day and some over-
time. There remained additional work to be done on the
project.
On Thursday, June 29, there were two pickets, once again,
in the driveway of the Logan shop. Only two employees
worked that day—Darrell Cline and Mike Parks. Cline re-
turned after the pickets left and worked the whole day in the
shop. Parks went to Tug Valley where he had worked the
day before. Other than these two mechanics, none of the oth-
ers returned after the pickets left and none called the shop
with excuses for their absences. They either went home or
to the restaurant.
About half an hour after McLean and Gordon went to
work, saw the pickets and realized that the employees were
going to honor the picket line, they too went to the res-
taurant. They told Schafer and the other employees there that
the Company had obtained an injunction limiting the number
of pickets to three and prohibiting the pickets from threat-
ening, coercing, or intimidating the employees in any way.
He added that the pickets could not stop or even talk to the
employees, that he had plenty of work, and wanted and need-
ed the employees to come to work.
Schafer reminded McLean that there was still a picket line
there and that it did not matter how many pickets were on
the line. He said that the situation was unchanged. After
some additional unsuccessful coaxing by McLean, he and
Gordon left and Schafer and the other employees eventually
went home.
As of June 29, there was still work in progress at Tug
Valley. Of the four mechanics assigned to that job on June
28, Jody Gartin, Warnie Jones, Joe Miller, and Mike Parks,
only Parks worked there on that job on June 29. The other
three refused to cross the picket line at the Logan shop
where the equipment was stored, and did not go to Tug Val-
ley that day.
On June 30, there were no pickets at the shop. All em-
ployees reported for work except those who had never been
recalled after being sent home on June 20. These were
Casebolt and Whitt, employees who are named in the com-
plaint, along with others, as discriminatees. Neither had
signed union cards. Whitt appears, from the record, to have
been the youngest, in seniority, of Respondent’s mechanics.
The record is silent as to Casebolt’s seniority.
Darrell Cline, who had been working on days when the
shop was picketed, was given an assignment to work in the
shop on June 30.
Mark Curry, a card signer, who had been honoring the
picket line, reported to work on June 30 but was sent home
because, McLean testified, he was not dependable. He had
not worked the day before, would not work on strike-bound
property, and was not expected in that day.
Gary McNeil and Rick Wiley, both card signers, who had
been honoring picket lines, were given a single assignment
at the Hobet mine located near B&C Coal Company.31 As
they exited the main highway onto a two-lane dirt road, lead-
ing to the jobsite, they received a message over their CB, to
the effect that employees were not working at the site toward
which they were headed, and they might as well go on back
to the shop. They ignored the statement and drove on, in-
tending to make an effort to get to the job. When they got
about halfway to the job, they came on a red truck parked
broadside in the road. A voice came over the CB stating,
‘‘We’re on strike out here. You guys might as well go
back.’’ Wiley attempted to make a three point turn, but be-
fore he could get back on the road, the truck was hit by three
or four rocks, one of which hit the windshield, another of
which damaged the hood. Wiley and McNeil headed back to
report the incident to Rowe.
Meanwhile, Mike Curry and Warnie Jones had been as-
signed to work at the B&C Coal Company. Jones, who had
been in the middle of the nonunion Tug Valley job on June
28, was surprised to find that the parts and equipment for
that job had been removed from his truck and that he had
been reassigned to B&C. Other mechanics had been sent to
Tug Valley, presumably from other branches.
Curry and Jones left the shop after McNeil and Wiley. As
they approached the B&C jobsite, they saw pickets.32 Two
were on the railroad track, near the entrance, and one was
hiding in the nearby weeds. At that point they received a
message over the CB from McNeil and Wiley who advised
them of the rock throwing incident in which they had just
been involved. Jones, on hearing of the rock throwing inci-
dent, and fearing that the picket in the weeds might be plan-
ning to throw rocks, turned his truck around and left.
Curry and Jones stopped at a public telephone to advise
Rowe of their failure to obtain entrance to B&C. They were
joined, shortly thereafter, by Wiley and McNeil. Curry called
Rowe, told him what had happened to the four employees
and asked him what they should do. Wiley also discussed the
matter with Rowe. Rowe advised all four to return to the
186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
shop, which they did about 9:30 a.m. Rowe then told Jones
to go home but then Gordon came out and told him that he
might have some work scheduled for Monday and would let
him know by 5 p.m. At 5 p.m., Rowe contacted Jones and
said there would be no work scheduled for Monday, July 3.
Curry was also sent home but volunteered to go to
Charleston to pick up his truck which had just been repaired.
Rowe agreed to this and Curry was paid for both time spent
going to and from the jobsite and to and from Charleston.
Mark Ferguson, an employee of Respondent since 1984,
testified that at the time the union cards were being distrib-
uted, he was aware of it, but chose not to sign a card. Al-
though company records indicate that Ferguson was absent
on those days when the Logan shop was being picketed, he
testified that for 3 or 4 days prior to the layoff, he was per-
mitted to keep a company truck at his home, and each day
he would drive from his home to Marrowbone Development,
a nonunion jobsite, where he was assigned to work. On June
30, Ferguson worked at Marrowbone once again. There were
no pickets at Marrowbone that day, nor at any other time.
Ferguson testified that it was his policy, despite receiving
threats, to work wherever he was assigned, as long as there
were no pickets there at the time. Thus, Ferguson, unlike
most of Respondent’s mechanics, was willing to work on
strike-bound property. Despite his willingness to work strike-
bound assignments, Ferguson continued to work at
Marrowbone from June into September.
On June 30, union card signers Jody Gartin and Tim Hat-
field showed up for work but were both sent home with the
explanation that there was not much need for helpers that
day, that there was nothing for them to do.
Robert Meeks, a card signer, was one of Respondent’s
more senior mechanics, having been hired in 1980. He had
requested and had been granted permission to take vacation
about this time and, like Ogle, was still on vacation on June
30.
Joe Miller, a mechanics helper, had not signed a union
card. When he reported for work on June 30, he was told
that there were just so many jobs available so he and some
of the others were being sent home and would be called back
as needed. As noted earlier, Miller had been working on a
pan at the Tug Valley mine along with Jodie Gartin. The job
had started on June 28, had been interrupted to some extent
by picketing at the Logan shop on June 29, and was ex-
pected to last at least 3 weeks. Although Miller had not
worked at Tug Valley on June 29 because there was pick-
eting at the Logan shop where the trucks were parked, he
was available to work at Tug Valley on June 30. Instead, he
was sent home.
Joe Miller, during the wildcat strike period refused to
cross any picket lines for fear of retaliation or injury. Thus,
he had refused to cross the picket line on June 29 to pick
up the truck to go to Tug Valley where there were no pick-
ets. Nor did he phone in later or report directly to Tug Val-
ley. He testified, however, despite this fact, that he would
work on strike-bound property.
Mike Parks, a mechanic who had not signed a card, was
sent to the Tug Valley jobsite. He was the only one of four
mechanics and helpers who had worked there on June 28
who returned there on June 30. However, he was the only
one to report to Tug Valley June 29, when the Logan shop
was picketed.
Homer Pennington, a mechanic who had not signed a
union card, had been sent home on June 20 and never re-
called. He was marked absent on June 30.
Michael Sansom, a helper who had not signed a union
card, was sent home on June 20 and did not work again until
June 28. That day, he was assigned to work with Ferguson
who, as noted above, was working at the nonunion
Marrowbone job. Though he is listed as absent on the June
29 field service schedule, and Ferguson’s name had a ques-
tion mark after it, it is quite possible that he worked with
Ferguson at Marrowbone. On June 30, he worked again with
Ferguson.
Paul Schafer reported to work half an hour late on June
30, along with Bob Zastawniak, the mechanics’ helper, with
whom Schafer usually rode to work. He reported along with
Zastawniak to Nathan Rowe’s office. Rowe told Schafer that
he would be sent to Old Hickory that day and that he had
nothing for Zastawniak and he could go home. Schafer asked
Rowe if Old Hickory was not one of the jobs that was being
picketed and shut down due to the wildcat strike. Rowe ad-
mitted that it was. Schafer then asked rhetorically, ‘‘Well,
I’m not going to get much work done there, then, am I?’’
Rowe replied that he did not know. Schafer asked, ‘‘Well,
do you want me to drive over there and to try to go to
work?’’ Rowe replied that he did.
After obtaining permission to take the truck home and load
it with his tools, Schafer did so, then proceeded to Old Hick-
ory. When he arrived about 11:30 a.m., he found one gate
locked and so proceeded to the second gate where he found
three pickets on duty. He decided that he would not cross
the picket line, turned around and returned to the Logan shop
where he told Rowe what had happened. Rowe told Schafer
that he could go home.
That morning, before Schafer left to prepare to go to Old
Hickory, Gordon told him that there would be no work Mon-
day, July 3. However, about noon, when Schafer returned
from Old Hickory on June 30, Gordon told him that he
thought there had been a change in plans and that Respond-
ent’s employees were going to work on Monday. He told
Schafer that he would call him that evening to let him know
one way or the other.
With regard to the Schafer assignment on June 30, to Old
Hickory, McLean testified that when Schafer returned to the
Logan shop, he reported that the gate was locked. He testi-
fied that he had reason to believe that Schafer was lying be-
cause he had received a call from Old Hickory, a couple of
hours after Schafer had left the shop. The customer had
wanted to know where the mechanic was, since there were
no pickets at the jobsite, and the mechanic had not yet
shown up. McLean, surprised, tried to get Schafer, who was
still in transit, on the radio, but was unsuccessful. After an-
other hour had passed, Schafer arrived back at the shop and
told Gordon and Rowe that the reason he was not working
was because the gate was locked at Old Hickory. Subse-
quently, apparently during a second conversation between
McLean and the customer, the customer advised McLean that
there was no gate at Old Hickory. The record does not re-
flect that McLean ever confronted Schafer concerning the
lack of a gate at Old Hickory but, then again, the opportunity
never arose.
Doug Toler, a mechanic who did not sign a union card,
reported to work on June 30 and was assigned work in the
187CECIL I. WALKER MACHINERY CO.
33 Certain of the 18 employees named in the complaint did not re-
ceive their notice until they reported for work on July 5. These were
Paul Schafer and Robert Meeks.
shop on the coke truck and in the toolroom. From the field
service schedules it would appear that Toler’s job between
June 20 and 30 was to service the coke truck(s).
James Trent, a mechanic who did not sign a union card,
received an assignment on June 30 when he reported to
work.
From the above it is clear that most of Respondent’s em-
ployees reported to work on June 30. In part, this may have
been because there was no picketing of the Logan shop that
day. However, it may also have been due to McLean’s an-
nouncement that employees would not receive Fourth of July
pay unless they worked Friday, June 30.
On June 30,33 Respondent mailed out identical letters,
over the signature of E. M. Wode, to 18 of its Logan em-
ployees containing the following relevant paragraph:
This is your layoff notice, effective July 1, 1989. Due
to the extensive loss of business and the restructuring
of our operation you are further notified that as a result
of this layoff you have no reasonable expectancy of re-
call.
No advance notice had been given to any of these employ-
ees. Wode testified that he was made aware of the forth-
coming layoff of Logan employees when he received a tele-
phone call while he was on vacation. He also testified that
he was not aware, at the time, of how Respondent planned
to pick up the slack for the work previously performed by
the laid-off employees because that was a function of the
service department.
McLean testified that he saw the June 30 layoff notice be-
fore it was mailed and that he participated in the decision to
lay off the employees. Although McLean denied that the lay-
offs were really discharges, he admitted that they were per-
manent and that the Company decided, prior to June 30, not
to recall any of the laid-off employees. McLean also admit-
ted that the employees laid off on June 30 included some of
the more senior, more capable employees at the Logan facil-
ity. Finally, McLean testified that the laid-off employees
have not been replaced and that what little field work re-
mained was transferred to the Charleston store.
Prior to the June 30 layoff, employees with special skills
would be dispatched from Charleston to work in the Logan
area. Logan mechanics would occasionally be dispatched to
other jurisdictions as needed. Record testimony indicates
that, prior to June 30, there might be one or two trucks from
Charleston working in the Logan area at any given time. The
mechanics would complete the job, then return to Charleston
unless the work load was such, that their services were need-
ed for longer periods.
According to Joseph Dailey, after June 30, the amount of
work performed in the Logan area by crews from the Beck-
ley, Charleston, and Huntington branches increased by two
crews per day, that is, two trucks with a couple of mechanics
in each. These and the four Logan mechanics, who were not
laid off, were expected to service customers in the Logan
area. Mark Ferguson, one of the four mechanics who were
not laid off on June 30, testified, however, that he had con-
versations with McLean about the laid-off employees. He
mentioned to McLean that he thought the Company could
use some of the laid-off mechanics; that their expertise was
needed, particularly on certain types of equipment; and that
there was too much work for him to perform. He pointed out
that whereas he, Schafer, Mike Curry, and Meeks were capa-
ble of performing the necessary work on certain equipment,
taking care of several jobs at once, he could not be in more
than one place at a time and the other mechanics, kept on
the payroll after June 30, were untrained in the performance
of the job requirements. McLean’s reply was that they would
simply have to handle things the best they could for now.
McLean testified that after June 30, what jobs were left to
be done were nonunion jobs, where there were neither pick-
ets nor harassment. These were done, according to McLean,
by employees sent out of Charleston. These employees made
their repairs, then returned to Charleston. If continuity of the
job required, the Charleston field service employees were re-
quired to spend nights on the road, in the area of the jobsite,
at company expense. Open charge accounts were kept by the
Company at various motels in the Logan area for the purpose
of maintaining room and board for the Charleston mechanics.
A week or two after the June 30 layoff, Joseph Dailey
called a meeting of the employees still employed at the
Logan shop to explain the situation. He stated that if busi-
ness did not fall off any further, there would be no additional
layoffs. He said that if it were necessary to lay off any of
the employees still employed, the layoff would be temporary,
they would be put on low earnings and would be called
back. He told those present that they were in a different cat-
egory than those employees who had been laid off June 30.
Dailey also testified concerning operations in the Logan
area after June 30. He testified that Respondent saved more
time by dispatching mechanics from Huntington, Charleston,
and Beckley to the Logan area than by dispatching the Logan
shop employees from the Logan shop to jobsites in the
Logan area. Respondent offered no substantiating documenta-
tion to support this assertion, which I find, on its face, to be
incredible. Charleston is at least an hour’s drive from Logan.
In explanation, Dailey testified that before June 30, the
Logan mechanics would first report to the Logan shop where
they would spend 20 hours doing paperwork, thus wasting 25
percent of their time before being dispatched to their jobsites.
After June 30, however, the mechanics from the other
branches saved these 2 hours by going directly to the jobsite.
I find the explanation inane. If the Charleston mechanics
could be sent directly to the jobsite from their homes, so
could the Logan mechanics and, indeed, the record indicates,
that in some cases, they were. Moreover, the record testi-
mony is devoid of any explanation as to why Logan mechan-
ics had to keep records while Charleston mechanics did not.
On cross-examination, Dailey denied that it was more ex-
pensive to send mechanics to Logan and put them up at a
motel than it was to dispatch mechanics out of the Logan
shop who lived in the area. I find Dailey’s testimony on this
matter also incredible, as I do his statement that customers
did not care that they were having to bear the additional cost
of food, lodging, and travel for mechanics from Charleston
and other branches.
Finally, Dailey admitted that, in effect, Respondent re-
placed the Logan employees, who would not work on strike-
bound property, with employees from other branches who
188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would work on strike-bound property. This statement, I do
credit.
On July 7 the following notice was posted at Respondent’s
Charleston location:
NOTICE
MEMO TO: Charleston Service Employees
FROM: Steve Kittle
DATE: July 7, 1989
SUBJECT: Field Service Job Opportunities
Due to potential increases in the amount of field
service work, you are advised that an increase in the
Charleston Field Service force is being considered.
Qualified personnel who are interested in working as
a field service mechanic will be interviewed during the
week of July 10–14, 1989.
Those qualified personnel must be willing to work
long hours, second or third shift situations, occasional
weekends, and to stay away from home up to a week
at a time.
Interested persons should notify your supervisor, or
myself no later than Wednesday, July 12, 1989.
Steve Kittle
Kittle is the parts and service manager for the Charleston
branch. He posted the notice in accordance with the provi-
sions of the collective-bargaining agreement in effect at that
location. With regard to this notice, Dailey testified that it
was posted because of a new contract it had signed with Cy-
prus Mining Company in Kanawha County, where Charles-
ton is located. In the absence of documentation or testimony
indicating where the mechanics would be working if they
volunteered for the jobs offered in the notice, and in accord-
ance with record testimony to the effect that Charleston me-
chanics were subsequently sent to the Logan area, I conclude
that the purpose of the notice was to recruit Charleston me-
chanics to replace the laid-off Logan mechanics.
On July 12, a letter was sent from management in Roa-
noke, Virginia, to Steve and Dick Walker, in Charleston. One
of the topics covered in this letter concerned the need for im-
proving Logan’s technical functions. The writer of this letter,
one W. P. Fusco, stated with regard to Logan’s failure to im-
prove its technical support function, ‘‘I recognize that part of
this was due to the recent labor problems there.’’ The impor-
tance of this communication and the reference to ‘‘labor
problems’’ at Logan lies in the fact that despite the apparent
absence of any union activity at the Logan shop, during the
several weeks preceding the June 30 layoff, management was
nevertheless concerned, at that time, with ‘‘labor prob-
lems’’—either the organizing efforts of its Logan mechanics,
or the refusal of these mechanics to go through picket lines
or to work on strike-bound property because of fear or sym-
pathy with the UMWA’s objectives. Whichever, labor prob-
lems were clearly not a dead issue at the time of the mass
layoff of June 30.
On July 17, Paul Schafer and Jonathan ‘‘Mike’’ Curry
filed the charge in Case 9–CA–26643 which alleges that Re-
spondent had laid off 18 employees on June 30 and which
requested that a full investigation be undertaken because the
majority of the individuals laid off had signed authorization
cards to join the UMWA.
The complaint alleges that the 18 individuals named were
laid off because of their union or concerted activity. In his
brief, General Counsel contends that the 18 employees were
discharged rather than laid off, because of their union activ-
ity and because they acted in concert in refusing to cross
stranger picket lines.
Respondent, in its brief, contends that the 18 employees
were laid off because they refused to cross picket lines and
were permanently replaced for lawful business reasons. Re-
spondent also contends that the laid-off employees have been
placed on a preferential hiring list and will be recalled if
business improves.
In support of Respondent’s position that the June 30 layoff
was economically motivated, both Dailey and McLean testi-
fied on the subject. Dailey testified that one reason for the
layoff was the loss of jobs due to the failure of Respondent’s
employees to work on them if there were pickets present or
if the job was on strike-bound property. A second reason was
the loss of parts orders. Dailey admitted, however, that there
was plenty of work to be done and much overtime to be
worked after the layoff. McLean testified that the loss of the
mechanics resulted in a loss of business in the parts depart-
ment.
Diane Starr, Respondent’s service clerk, testified that she
handled the service orders and billing and was therefore fa-
miliar with the amount of business available at the time of
the layoff. She stated that when she heard of the mass layoff,
she was shocked. She admitted that business had been slow
for a couple of days because of the wildcat strike but there
was safety work and vacation work to be done. She testified
that there was plenty of work including machines in the shop
on which the mechanics could have worked and the mechan-
ics’ trucks always needed some work done on them. Starr
admitted that although there was plenty of work to be done,
in some cases, it was not getting done.
Mark Ferguson, one of the mechanics who was not laid
off on June 30, testified that his work schedule after the lay-
off was pretty much the same as it had been before the lay-
off. He worked on the average, at least 60 hours per week,
and could have worked 70 hours, if he chose to do so. There
have been occasions, on the average of 3 days per week,
when Ferguson would work 12 hours straight.
After the layoff of June 30, the customers previously serv-
iced by the laid-off mechanics were thereafter serviced by
mechanics out of the Charleston, Huntington, and Beckley
branches. Ferguson named 14 mechanics who had been sent
to the Logan area to do the work previously done by the
Logan employees laid off on June 30. These men made up
the five or six crews who worked in the Logan area after
June 30. According to Ferguson, whom I credit, they would
stay several days at a time in the Logan area at a local hotel
or motel. After a week, their places would be taken by an-
other crew. The number of out of town crews, in the Logan
area, increased after June 30, and Logan used as many of
these crews as it could. Ferguson’s testimony was supported
by that of other witnesses. From this credited testimony, I
conclude that, at the time of the mass layoff, much work was
available to be done and that mechanics from other branches
were used to do this work.
189CECIL I. WALKER MACHINERY CO.
34 Otis L. Broyhill Furniture Co., 94 NLRB 1452 (1951);
Fairprene Industrial Products, 292 NLRB 797 (1989).
35 Ibid.
A comparison of the employees laid off on June 30 with
those whom Respondent decided to keep reveals some rather
surprising facts. Thus, Respondent clearly paid little or no at-
tention to seniority. It laid off its most experienced and most
valuable journeymen mechanics—Schafer, Wiley, and
Meeks, and kept only one senior mechanic—Parks, along
with several junior employees. Of the seven mechanics’ help-
ers employed by Respondent, as of June 30, it laid off the
five most senior employees. Of the three warehousemen laid
off on June 30, Respondent subsequently called back two;
the two with the least seniority.
In the business world where there are legitimate economic
reasons for a reduction in force, an employer will normally
retain his better, more experienced employees and lay off his
least valuable, least experienced, and newest employees.
Where an employer follows the opposite procedure, as in the
instant case, one may infer that the layoff was motivated by
other than purely legitimate economic considerations.
Following the mass layoff, several employees called
McLean to inquire about returning to work for the Respond-
ent. One of these, Jonathan ‘‘Mike’’ Curry, was told by
McLean, that customers were not calling and that he did not
have any work. He added, however, that he had given Cur-
ry’s name to another employer. When Curry asked why
McLean had done this, McLean replied, ‘‘Well, I guess
you’re looking for a job aren’t you?’’ Curry said, ‘‘Well, I
don’t know. Should I be? Does that mean I should be look-
ing for a job; that I’m not coming back to work?’’ After
hesitating briefly, McLean replied, ‘‘That’s exactly what that
means.’’
I find this conversation instructive. At a time when Re-
spondent had four or five crews from the Charleston branch
coming down to the Logan area to do the Logan mechanics’
work, McLean is telling Mike Curry, an experienced jour-
neyman mechanic with no problems with his employment
record, that he has no hope of reemployment with Respond-
ent.
In a second incident of note, Joe Miller, a mechanics help-
er, returned to the Logan shop to pick up his tools. While
there he engaged McLean in conversation. He asked McLean
if work had picked up. McLean replied in the negative. Mil-
ler then asked him if any of the employees who had been
laid off were going to be called back to work. McLean an-
swered that he had been told that if any of the laid-off em-
ployees should ask that question, he was to tell them, ‘‘No.’’
Miller then asked McLean how ‘‘he had decided to have
this layoff that he had had.’’ McLean said that he had had
people working on nonunion jobs that did not have pickets
on them, and since they had already started those jobs, he
determined to let them continue to work. Miller then in-
quired, ‘‘How come you laid me and Warnie Jones and Jodie
Gartin off because we had started a job at Tug Valley on the
pans. There were no pickets there.’’ McLean did not reply.
Miller’s question remained unanswered through the hearing.
Not all the laid-off employees remained in layoff status.
Robert Whitt, a mechanic, with only 2 months’ seniority, the
youngest mechanic on the payroll, was rehired to work at the
Beckley branch. John Spears, a truckdriver and warehouse-
man with Respondent since September 1988, was rehired as
was Tim Miller, a warehouse employee with only 2 months’
seniority. Miller was rehired as a truckdriver. Both were
brought back to the Logan shop.
On June 30, Respondent determined to lay off certain em-
ployees and to keep certain other employees employed. Re-
spondent chose to lay off all the card signers; employees
who refused to go through picket lines or work on strike-
bound property. Thus, as of June 30, Respondent employed
13 journeymen mechanics. Six of them had signed union
cards during the union campaign the previous February and
March. Respondent terminated all six and kept none. Re-
spondent kept four journeymen mechanics, none of whom
had been involved in union activity. Of the three mechanics
who had not signed union cards but who were laid off along
with the card signers, one moved out of the area and one
was rehired.
As of June 30, Respondent employed seven mechanic’s
helpers, four of whom had signed union cards. Respondent
terminated all four along with Joe Miller, a helper who,
though he may or may not have signed a card himself, was
involved in obtaining one card, and signing as witness for
another card signer. Of the seven mechanics helpers, Re-
spondent chose to keep only the two youngest ones em-
ployed. Neither one had been involved with the Union.
As of June 30, Respondent employed five warehouse em-
ployees and truckdrivers. Only one, John Curry, had signed
a union card. That day Respondent terminated Curry and two
other warehouse employees. Subsequently, however, the two
warehousemen who had not signed union cards, were re-
hired.
As noted supra, the only parts department employee who
had signed a union card was Workman and he, early in the
campaign, abandoned his prounion position, following a con-
versation with McLean. Subsequently, he adamantly refused
to have anything to do with the Union or with the concerted
efforts of his fellow employees to obtain improved working
conditions. One parts department employee was laid off,
James Ogle.
Thus, the Respondent, on June 30, successfully rid itself
of every single card signer. It kept no prounion employees.
In all, it laid off 12 union activists and kept 11 employees
who were not involved with the Union. Of six nonactivists
laid off on June 30, it rehired three. Clearly, by the numbers
alone, a pattern emerges which indicates that the June 30
layoff was discriminatorily motivated.34 When the pattern is
perceived in light of Respondent’s history of violations and
antiunion animus, the violation becomes even more obvi-
ous.35
Respondent’s defenses are four in number. It contends that
the layoffs were the result of business considerations, pri-
marily a decrease in parts orders, a corporate restructuring,
a lack of communication from service personnel to the shop
when faced with pickets while out in the field and, finally,
a decision simply to lay off any employee who did not work
on June 30.
In support of its economic defense, Respondent offered
into evidence selective documents which reflect a decrease in
the number of parts sales orders. I find the documentation
lacking as proof of a decrease in business since the number
of orders does not reflect the number of parts sold. An order
may be for one part or a hundred parts. Moreover, there was
190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
36 Dailey’s testimony that four parts department employees were
laid off probably referred to, and included the one parts department
employee and three warehousemen/truckdrivers.
only 1 employee laid off from the parts department36 where-
as there were 10 mechanics and helpers laid off from the
service department and no documentation was offered to re-
flect a decrease in service orders. Rather than rely on Re-
spondent’s documentation and the testimony of management
witnesses, I shall rely on the testimony of Ferguson and Starr
which, as noted, indicates that there was plenty of work
available and lots of overtime, including work to be done at
sites which were neither picketed nor strike-bound, and most
of which work was to be performed by the five or six crews
sent down to the Logan area from Charleston, Huntington,
and Beckley to replace the laid-off Logan employees. Thus,
I reject Respondent’s defense based on economic or business
considerations.
Similarly, I reject the defense based on Respondent’s con-
tention that the layoff was the result of a corporate restruc-
turing program. No documentation was placed in evidence
which predated the June 30 layoff. No documentation was
offered which reflected that the June 30 layoff was a
preplanned restructuring program whereby the Logan me-
chanics would be replaced by mechanics from other
branches. The only documentation offered to support the re-
structuring defense were letters dated after the layoff, con-
taining self-serving and extremely vague references to con-
versations, which allegedly occurred some 18 months before
the layoff. I conclude that what restructuring actually oc-
curred, namely, the displacement of Logan mechanics by me-
chanics from other branches, was not the cause of the June
30 layoff, but the result. In short, there was no restructuring.
With regard to Respondent’s contention that it laid off its
Logan service employees because they failed to commu-
nicate, McLean admitted that he never disciplined, threatened
to discipline, nor warned any employees concerning their
failure to communicate with the home office when out in the
field. Moreover, seven employees were called to testify con-
cerning their failure to communicate from the field when
faced with picketing, and each testified that he had never
heard any complaints from management on this subject. I
conclude that if such a problem ever existed, management
would have, at least, brought it to the attention of the em-
ployees responsible. There is no evidence that this was done.
I therefore find that no such problem existed and that the de-
fense is ill founded.
Finally, Respondent’s position that on the afternoon of
June 30, Dailey and McLean chose for layoff, those employ-
ees who failed to work that day, and chose to keep, all those
employees who did, in fact, work that day, regardless of se-
niority, experience, capability, specialization, expertise, or
any other logical basis, is incredible. No one can successfully
run a business based on such an approach. On the other
hand, that appears to be what happened. Those employees
who worked on June 30 remained in Respondent’s employ
and those who did not, were permanently laid off.
But Respondent’s explanation as to the basis for the choice
of employees to be laid off, though if fits the facts, does not
answer the ultimate question. For the fact that certain em-
ployees worked on June 30, while others did not, was not
a matter of fortuity, but was rather the result of a carefully
orchestrated management plan to rid itself of prounion em-
ployees. Thus, as noted above, on June 28, the Logan shop
was not picketed and most employees worked. On June 29,
Logan was picketed and only a few employees worked.
Then, on June 30 when, once again, there were no pickets,
and most of the employees reported for work, Respondent
acted to selectively schedule employees to work or not work
depending on their prounion propensities or lack thereof.
So, Paul Schafer, a card signer and known union activist,
was sent to Old Hickory, a union job, which everyone knew
was being picketed. Though he objected to the assignment,
he was nevertheless sent to that jobsite, refused to cross the
picket line and, to no one’s surprise, did not work that day.
Warnie Jones, Joe Miller, and Jody Gartin, all union activ-
ists who had been working on the nonunion Tug Valley job
on June 28, were not assigned to that job on June 30, despite
the fact that the Tug Valley job was not yet finished. Instead,
when they reported to work on the morning of June 30, Mil-
ler and Gartin were sent home while Jones was sent along
with Mike Curry to face the pickets at B&C after which they
did not work but were sent home.
Union activists Wiley and McNeil, on June 30, were sent
to Hobert, a picketed job, and after being turned back, were
sent home and did not work. Respondent was aware that nei-
ther of these mechanics would cross the picket line. In fact,
McLean had, just the day before, questioned McNeil, as to
whether he would cross a picket line. When McNeil told
McLean that his family had been in the coal business for
over a hundred years ‘‘and it ain’t really a thing I should do.
I know it wouldn’t be safe for me or my family,’’ McLean
stated, ‘‘I respect your decision. I’ll let you know.’’ Then,
the following day, McLean intentionally sent McNeil to a
picketed jobsite, knowing full well what would occur.
Mark Curry, Tim Hatfield, and Robert Zastawniak, all me-
chanics’ helpers who had signed cards, had worked on as-
signments in the shop on June 28 but were sent home by Re-
spondent on June 30, with the explanation that there was no
work for them.
Robert Meeks, who had been told that it would be all right
for him to take a vacation at this time did, in fact, take his
vacation and consequently was absent on June 30. A
prounion activist, he too was permanently laid off because of
this absence.
John Curry, a card signer and union activist, who drove
a parts truck and worked in the warehouse, was also laid off
on June 30.
From the facts related immediately above, I conclude that
Respondent determined to rid itself of all prounion employ-
ees. In order to do so, its chief officers, Dailey and McLean,
decided to utilize a very specific prearranged pretext. As
both Dailey and McLean testified, Dailey told McLean that
they would lay off the people that were not working Friday
afternoon, June 30, and would keep the people that were
working. They then assigned the five journeymen mechanics
to jobs which they knew were being picketed, realizing they
would refuse to cross the picket line, for the sole purpose of
using as pretext, the fact that they did not work that after-
noon. They used the same pretext to lay off Meeks even
though he was on vacation. They then told the five mechan-
ics helpers who were also union activists that there was no
work for them, then laid them off too, for not working. In
order to appear consistent, they felt that they had to lay off
191CECIL I. WALKER MACHINERY CO.
37 Overnite Transportation Co., 154 NLRB 1271 (1965), modified
364 F.2d 682 (1966).
38 Rich’s Precision Foundry, 250 NLRB 1317 (1980), affd. 667
F.2d 613 (1981).
39 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
40 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
anyone else who happened to be absent that day. Thus,
Casebolt, Pennington, and Whitt, all journeymen mechanics,
who were absent that day but who were not involved with
the Union, had to be laid off as well. Similarly, two ware-
housemen and parts department employee James Ogle who
was, like Meeks, on vacation and therefore absent that day,
had to be laid off for the sake of consistency. Of the six em-
ployees laid off on June 30, who were not union activists,
three were rehired. No prounion employee was rehired or re-
called.
Although the layoff notice specifically stated that those
laid off had no reasonable expectancy of recall, Respondent,
in its brief, declares that the layoffs were not permanent and
that the laid-off employees are subject to recall. However,
Respondent’s belated attempt to convert, by declaration, nunc
pro tunc, what was clearly a permanent layoff or termination
into a temporary layoff with possibility of recall, is devoid
of evidentiary support. The three employees whom the Re-
spondent rehired or recalled were clearly not involved in any
union activity. No prounion employees were recalled or
given any hope of recall. Indeed, all the evidence is to the
contrary.
To summarize, I conclude that the prounion employees
were laid off June 30 because of their union activities and
sympathies and because of their refusal to cross picket lines
or work on strike-bound property. I find, further, that the em-
ployees who were laid off on June 30, who had not been en-
gaged in these activities were laid off in order to disguise
Respondent’s true reasons for ridding itself of the prounion
employees. I find, therefore, that in the case of each layoff,
Respondent violated the Act. With regard to those employees
who were laid off because they engaged in union activities
and demonstrated their prounion sympathies by refusing to
cross picket lines or work on strike-bound property, I find,
in light of Respondent’s clearly articulated antiunion animus
and its commission of independent violations of Section
8(a)(1), that Respondent thereby violated Section 8(a)(1) and
(3).37 I find, further, with regard to those employees laid off
by Respondent, in order to support its pretextual reasons and
disguise the true reasons for the layoff of the prounion em-
ployees, that these layoffs were part and parcel of Respond-
ent’s discriminatory acts and were, thus, likewise violations
of Section 8(a)(1) and (3).38
THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth above, occurring in
connection with its operations described above, have a close,
intimate, and substantial relationship 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.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices violative of Section 8(a)(1) and (3) of the Act, I
shall recommend that it be ordered to cease and desist there-
from and to take certain affirmative actions designed to ef-
fectuate the policies of the Act.
Having found that Respondent unlawfully discharged
Darren Gore and unlawfully laid off 18 other employees, I
shall recommend that Respondent offer them immediate rein-
statement to their former positions, or if such jobs no longer
exist, to substantially equivalent positions, without loss of se-
niority or other rights and privileges, discharging, if nec-
essary, any replacements, and make them whole for any loss
of earnings they may have suffered by reason of their unlaw-
ful terminations, by payment to them of sums of money
equal to the amounts that they normally would have earned
from the date of their terminations to the date on which a
bona fide offer of reinstatement is made, with interest there-
on to be computed in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB (1950); and New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).39
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By maintaining a rule requiring information regarding
wages, salary, or other compensation be kept in confidence;
unlawfully soliciting grievances; informing employees that it
would be futile for them to select the Union as their bar-
gaining representative; and interrogating an employee regard-
ing union activities of other employees, Respondent has en-
gaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. By discharging Darren Gore and by laying off the fol-
lowing employees because they engaged in union and other
concerted activities including refusing to cross picket lines or
work on strike-bound property, Respondent has violated Sec-
tion 8(a)(3) and (1) of the Act:
John Curry Robert Meeks
Mark J. Curry Joseph Miller
Michael Curry Paul R. Schafer
Timothy Hatfield Richard Wiley
Jody Gartin Robert Zastawniak
Warnie Jones Gary McNeil
5. By laying off the following employees in order to sup-
port its pretextual reasons for laying off its prounion employ-
ees and in order to disguise its true and unlawful reasons for
laying off its prounion employees, Respondent has violated
Section 8(a)(1) and (3) of the Act:
John Casebolt John Spears
Timothy Miller Robert Whitt
James Ogle Robert Zastawniak
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended40
192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
41 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The Respondent, Cecil I. Walker Machinery Company,
Inc., Rita, West Virginia, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Maintaining a rule requiring information regarding
wages, salary, or other compensation be kept in confidence.
(b) Unlawfully soliciting grievances.
(c) Informing employees that it would be futile for them
to select the Union as their bargaining representative.
(d) Interrogating employees regarding the union activity of
other employees.
(e) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of their rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer immediate reinstatement to the following em-
ployees to their former positions of employment or, if such
positions no longer exist, to substantially equivalent positions
without prejudice to the seniority or other rights or privileges
previously enjoyed:
Darren Gore Joseph Miller
John Casebolt Timothy Miller
John Curry James Ogle
Mark J. Curry Homer Pennington
Michael Curry Paul R. Schafer
Timothy Hatfield John Spears
Jody Gartin Robert Whitt
Warnie E. Jones Richard Wiley
Gary K. McNeil Robert Zastawniak
Robert O. Meeks
(b) Expunge from its files any reference to the unlawful
discharge of Darren Gore, and notify him in writing that this
has been done and that the discharge will not be used against
him in any way.
(c) Make all the employees listed above whole for any loss
of pay they may have suffered as a result of their termi-
nations in the manner set forth in the remedy section of this
decision.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its place of business in Rita, West Virginia,
copies of the attached notice marked ‘‘Appendix.’’41 Copies
of the notice, on forms provided by the Regional Director for
Region 9, shall, after being signed by Respondent’s author-
ized representative be posted immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that such notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.