Nashville Display Co.

National Labor Relations Board - Board Decisions

Apr 10, 1951

93 N.L.R.B. 1310 (N.L.R.B. 1951)

1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
liability for any other quarter. It is also recommended that the Board order the
Company to make available to the Board upon request payroll and other records
to facilitate the checking of the amount of back pay due.24
It will not be recommended that the Board issue a broad cease and desist order
because in the opinion of the undersigned the Respondent committed the unlawful
acts naively rather than with such intent as would warrant reasonable apprehen-
sion of danger that it will commit unfair labor practices different from and not
related to those found herein.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Radio Broadcast Engineers' Local Union 1224, International Brotherhood of
Electrical Workers, AFL, is a labor organization within the meaning of Section 2
(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Alphonso
F. Nuzzo, Gordon N. Hall, Adrian B. Currens, and William K. Hagan, thereby
discouraging membership in the Union, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of
the Act.
3. By such discrimination and by interrogating its employees concerning union
membership, sympathy, and activities, thereby interfering with, restraining, and
coercing its employees in the exercise of rights guaranteed in Section 7 of the Act,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
24 F. W. Woolworth Company, supra.
C. B. ROLLINS, SR., D/B/A NASHVILLE DISPLAY COMPANY and UNITED
STEELWORKERS OF AMERICA, CIO. Case No. 10-CA-911. April
10, 1951
Decision and Order
On January 12, 1951, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a brief.
The Board 1 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act,
the Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Herzog and Members Houston and Reynolds].
93 NLRB No. 236.
NASHVILLE DISPLAY COMPANY 1311
exceptions an a brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.2
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, C. B. Rollins, Sr., d/b/a
Nashville Display Company, Nashville, Tennessee, and its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in United Steelworkers of America,
CIO, by discriminately discharging any of its employees, or by dis-
criminating in any other manner in regard to their hire or tenure of
employment or any term or condition of employment.
(b) By means of surveillance, or in any other manner interfering
with, restraining, or coercing its employees in the exercise of the right
to self-organization, to form labor organizations, to join or assist
United Steelworkers of America, CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain
from any and all of such activities except-to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Sec-
tion 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Make whole the employees listed in Appendix A of the Inter-
mediate Report in the manner set forth in the section thereof entitled
"The Remedy."
(b) Upon request make available to the Board or its agents for
,examination and copying all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necssary to analyze the amount of back pay due.
(c) Post at its plant in Nashville, Tennessee, copies of the notice
attached to the Intermediate Report as Appendix A 3 Copies of such
notice, to be furnished by the Regional Director for the Tenth Region,
shall, after being duly, signed by the Respondent's representative, be
2 The Respondent excepts to the inclusion of alleged nonworking days in the back-pay
period. Back pay shall be computed only for the time that the Respondent's employees
would have worked absent the discrimination against them.
3 This notice, however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "The recommendations of a Trial Examiner" and substituting
in lieu thereof the words "A Decision and Order " In the event that this Order is enforced
by a decree of a United States Court of Appeals, there shall be inserted before the words
"A Decision and Order" the words "A Decree of the United States Court of Appeals
Enforcing."
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posted by Respondent immediately upon receipt thereof and main-
tained by it for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees customarily are
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(d) Notify the said Regional Director in writing, within ten (10)
days from the date of this Order, what steps the Respondent has
taken to comply herewith.
Intermediate Report and Recommended Order
Mr. John C. Carey, Jr., for the General Counsel.
Mr. Richard Marshall, of Nashville, Tenn., for the Respondent.
Mr James E. Payne, of Nashville, Tenn., for the Union.
STATEMENT OF THE CASE
Upon charges duly filed' by United Steelworkers of America, CIO, herein
'called the Union, the General Counsel of the National Labor Relations Board,
herein called the General Counsel and the Board, respectively, by the Regional
Director for the Tenth Region (Atlanta, Georgia), issued his complaint dated
October 25, 1950, against C. B Rollins, Sr, d/b/a Nashville Display Company,
herein called the Respondent, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the
complaint, the charges, and notice of hearing were duly served upon Respondent
and the Union
With respect to the unfair labor practices, the complaint alleged in substance
that Respondent: (1) On or about January 13, 1950, discharged its employee,
Mande Marshall, because of her union activities and has failed and refused to
reinstate her; (2) on or about January 19, 1950, laid off and thereafter failed
and refused to reinstate various named employees because of their union activi-
ties, ' (3) on various dates, through its officers and agents, interrogated its
' The original charge was filed January 20, 1950 , and named the Nashville Wire Products
Manufacturing Company , Incorporated , as the employer . Subsequent charges were filed
on Pebiuary 1 0, 1950 , March 1 , 1950 , and July 18, 1950, all including C. B Rollins, Sr.,
d/b/a Nashville Display Company.
2 Those named in the complaint were :
Bakes , Thomas Johnson, James Scott, Jackie Warren
B.iss, Thomas M. Judkins, B R. Seagraff, James Henry
Boguskie, Richard Keen, David Seaton, William M
Boguskie , Russell Kinnard, William B. Shoemaker , Stanley
Booker , Cola llai Lassiter, Annie Mai Stafford , Hollis R
Bristol, Christine Lassiter, Bernice Stafford, William D.
Cai r, Dewey G Leaver, James C Swift, William
Chapman , James McGrady, Henry Thaxton , Richard
Choate, Dorothy McKennon, Margaret Thomas, Harry
Color igh, Pete, Jr. Massey, Morris B Thomas, Pattie
Crymes, Albert D Pastva, Norman Threet, Leroy
Ciyines, Louis Patterson, Dorothy Trinim, Jean
Goodrich, Mai Pewitt, Annie Mai Vick, Mrs Louise
Gregory, Alice Pewitt, Beulah Walker, Johnnie
Heniy , Geraldine Pewitt, R. H. Waters, James
Holloway, Clyde E. Reed, Wiley D Wheeler, Charlie
Hurd, B. C Robertson, Woody
Ivey, Major Scott, Dorothy
NASHVILLE DISPLAY COMPANY 1313
employees concerning their union membership, activities, and sympathies ; (4)
on or about January 13, 14, 15, and 10, through its agent, C. L. Martin, solicited
its employees to spy upon and keep under surveillance the union members in
their union activities; and (5) on or about January 18, 1950, through its officer,
agent, and representative, C. B. Rollins, Jr., engaged in surveillance of the
employees in their union activities.
In its duly filed answer, Respondent denied that it had engaged in or was
engaging in any of the alleged unfair labor practices. It affirmatively alleged
that Marshall voluntarily terminated her employment but applied for and was
granted reinstatement on January 31, 1950. Respondent's answer further alleges
that the layoff of January 19, 1950, was due to a lack of orders and a lack of
materials, necessitating a temporary suspension of operations at that time, and
further that the employees in question were all requested to report back for
work on January 23, 1950.
Pursuant to notice, a hearing was held at Nashville, Tennessee, on November
8, 1950, before Eugene E. Dixon, the undersigned Trial Examiner, duly designated
by the Chief Trial Examiner. All parties were represented by counsel, partici-
pated in the hearing, and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon the issues.
During the course of the hearing the General Counsel's motion to strike the
names of Louis Crymes and William M Seaton from those named in the com-
plaint was granted without objection. At the end of the General Counsel's
case-in-chief, Respondent moved to dismiss that portion of the complaint alleging
the solicitation of employees to engage in surveillance and spy on the employees'
union activities. The motion was granted without objection. Respondent's
motion to dismiss the complaint with respect to the allegation of Marshall's
discharge was denied with leave to renew. The General Counsel's motion to
conform the pleadings to the proof in matters not of substance was granted
without objection
Upon the conclusion of the hearing, the General Counsel briefly argued the
issues orally upon the record, and although leave was granted to file briefs, only
the,Respondent has availed himself of that privilege.
Upon the entire record in the case and from my observation of the witnesses, I
make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is an individual doing business as the Nashville Display Com-
pany, having his principal office and place of business at Nashville, Tennessee,
where he is engaged in manufacturing and selling wire merchandising displays.
During the course and conduct of his business for the year preceding the hear-
ing, Respondent purchased steel wire and other raw materials valued in excess
of $100,000, more than 75 percent of which originated outside the State of Ten-
nessee and was shipped in interstate commerce to the Nashville plant. During the
same period, Respondent manufactured and sold products valued in excess of
$300,000, approximately 90 percent of which was sold and shipped from the Nash-
ville plant to customers outside the State of Tennessee.
Respondent does not deny and I find that lie is engaged in commerce within
the meaning of the Act.'
3 The Board has previously determined that Respondent is engaged in commerce within
the meaning of the Act in Nashville Wire Products Manufacturing Company, Incorporated,
and C. B. Rollins, d/b/a Nashville Display Company , 89 NLRB 135.
943732-51-84
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IL THE ORGANIZATION INVOLVED
United Steelworkers of America, CIO, is a labor organization admitting to
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The issues
As noted in the foregoing statement of the case, the allegation of Respondent's,
solicitation of its employees to engage in surveillance of the employees' union
activities was dismissed on motion at the hearing. Because no evidence was
offered in support of the allegation of interrogation by Respondent of its em-
ployees regarding their union activities, no finding of violation of the Act by Re-
spondent will be made on that count. As for the mass layoff of January 19, the
evidence shows that on January 21 in a meeting between a union committee of the
employees and officials of Respondent, the employees were requested to return
to work. On that day also in front of the plant where the employees had estab-
lished pickets Respondent posted a notice announcing that the plant would be re-
opened Monday, January 23. In addition, on January 21, Respondent mailed indi-
vidual registered special delivery letters to the employees announcing that work
would be resumed on both shifts Monday, January 23, and requested that the
employees report for their regular shifts These requests I find to have been
bona fide unconditional offers of reinstatement to the employees effective as of
the start of business January 23, 1950.°
From the foregoing it appears that the only issues involved herein are Re-
spondent's surveillance of its employees' union activities, the question of discrim-
ination against Marshall, and Respondent's liability for back pay to the employ-
ees in question from January 19, the date of the mass layoff, to January 23, the
date that the unconditional offer of reinstatement was effective.
B. The surveillance
At 8 p. in. on January 18, the Union held its second meeting on the third
or fourth floor of the Exchange Building in Nashville. The meeting had been
in progress 20 or 30 minutes when it was discovered that C. B. Rollins, Jr., son
of the president and owner of Respondent Company, was watching the meeting
from the window of a parking garage located on the opposite side of the street.
James S. Temple, a union official, and two employees left the meeting to investi-
gate. After a few minutes' wait on the ground floor of the garage, Rollins came
walking down the ramp. Temple introduced himself as did Rollins. Temple
then asked Rollins for an explanation of his "spying" on the meeting and told
him, "If you are so interested, why don't you come up to the meeting? I think
the people have something to tell you. You don't have to spy on the meeting."
Rollins replied, "No, thanks. I have seen enough already," and walked hurriedly
away. Although present at the hearing, Rollins, Jr., did not testify.
Rollins, Jr., is secretary of the Nashville Wire Products Company which is
owned by his mother, wife of C. B Rollins, Sr. Part of its facilities occupy the
same building that houses Respondent's facilities. Rollins, Sr., owns no stock
in Nashville Wire Products Company but is a director thereof and acts in a sales
and advisory capacity to it. . Rollins, Jr., holds no official position with Nash-
ville Display Company of which his father is president but spends considerable
4 E. C. Brown Company , 81 NLRB 140 ; Barr Parking Company, 82 NLRB 1.
NASHVILLE DISPLAY COMPANY 1315
time in its plant and offices, and, by C. B. Rollins, Sr.'s admission on the witness
stand, represents his father in Respondent's business in the latter's absence.
By reason of the foregoing and since Rollins, Sr., was not in the city on January
18 or 19, I find that C. B. Rollins, Jr.'s action on the night of January 18, as
described above, constituted surveillance of the union activities of Respondent's
employees and that this surveillance was a violation of Section 8 (a) (1) of the
Act attributable to Respondent.`
C. The discri'm'ination against Marshall
Except for a few months' employment during the first part of 1945, Marshall's
tenure with Respondent dates from December 1949. At this time she was put
on spot welding but on occasion also ran a press mill and did field jig and wire
bending work. In 1945, because of illness, Marshall found it necessary to leave
her job with Respondent. In discussing the situation at that time with C. L.
Martin, whom she described as her foreman,' she was told that work was slack
"and he couldn't use me for a while." Martin also told her at that time that
he understood that she "was having quite a bit to do with trying to get a union"
into the plant. Her union activity in 1945 consisted of having "been asked by
some of the employees" if she would join a union if one came into the plant.
About the first of January 1950, because she had a telephone, Marshall was
asked by Russell Boguskie and other unidentified employees to call the Union
for the purpose of getting a union organizer to call on them at their homes.
Marshall complied with the request, giving the union official the names and ad-
dresses of the ones who wanted to see him. Except for this call to the Union
she engaged in no further union activity or discussion until after the Union
was organized and after she returned to work on January 31.
Shortly after the above incident, her daughter became ill and Marshall asked
her foreman for time off to take care of her. Her request being approved,
she did not report for work for about 2 weeks. Then on Friday, January 13,
she phoned Martin telling him she expected to be able to return to work the
following Monday or Tuesday. Martin informed her that Respondent was
short of wire and would not need her for a while-that he would call her
when she was needed. The following Monday she again called Martin about
picking up her check. Martin told her that they were still short of wire and
mentioned something about a "disturbance" that they were having at the plant.
Marshall said that she "understood that everyone was blaming" her for it.
Martin replied that "he hadn't heard that part" and added that although he
had not sought it, he had friends who brought information to him of their own
volition. Marshall had never been given a termination notice nor was she
included with the others who received offers of reinstatement as of January 23.
According to Marshall's testimony, when the problem of the mass layoff and
the resulting strike was finally settled and the employees returned to work on
January 31, Marshall returned with the others. Not finding her card at this
time, she sought out her foreman, T. S. Thompson. He told her he did not
know if he could use her and asked her to check with Martin. Martin informed
her that work was slow and that he would call her when he needed her. Mar-
shall then went to the president of the Union about the matter. He told Martin,
"I didn't think there was supposed to be any discrimination against any of the
workers about coining back to work." Martin replied, "Well, there isn't but in
Mamie's case, she was laid off prior to the rest of them and she was not included
a Taylor-Colquztt Company, 47 NLRB 225; Vermont American Furniture Company/,
82 NLRB 408; Pure Oil Company, 90 NLRB 1607.
6 At all times pertinent herein Martin was plant superintendent.
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the rest of them." Then Martin told her to wait to see Erickson, who
among other things was in charge of the payroll, to ascertain if she was on
the list; but Erickson did not come in and Martin put her to work.
In his testimony about this incident, Martin did not allude to any conversation
with the union president and did not specifically deny Marshall's version of it.
The substance of his testimony was that the absence of Marshall's card was an
oversight, which in effect was his explanation to Marshall at the time. The
testimony of these two witnesses is not necessarily conflicting. Even in credit-
ing Marshall's more complete recital, which I do, I do not believe that it or the
other circumstances of the failure to take her back when she became available
after her daughter's illness supports the conclusion that her union activity
was the motive.
Even though I find, as appears below, that the shortage of wire Respondent
was experiencing in January 1950 was not the real reason for the mass layoff
on January 19, there is no doubt that at the time Marshall was told of the wire
shortage and the lack of need for her services Respondent was having real dif7
ficulty in getting enough wire to satisfy its requirements. Besides the good
faith implications of Respondent's position regarding material shortages as they
affected Marshall's employment, there is considerable doubt that Respondent had
knowledge of Marshall's union activity at the time she was laid off. Marshall's
layoff occurred prior to the time the employees held their first union meeting z
This fact plus Martin's denial on January 23 of having heard about the part
Marshall volunteered was being attributed to her in connection with the "dis-
turbance" at the plant tends to rebut the presumption or inference that Respond-
ent was aware of Marshall's union activity at the time of her layoff. More-
over, it is clear from Marshall's testimony that the only activity she engaged in
until she returned to work was the telephone call to the Union from her home.
While it is apparent from Martin's statement to her on the 23rd that informa-
tion about the union activities of the employees was reaching him, it is hardly
likely that the informer would be among those whose convictions and initiative
in promoting the Union were demonstrated by their request to Marshall to seek
a union representative to call on them. Furthermore, it would seem that if
Respondent's purpose at that time was to provide the employees with an object
lesson to discourage union activities or to make inroads on the employees' union
leadership, Boguskie or one of the other instigators of the Union, rather than
Marshall, would have been the logical choice.
It is possible to interpret the circumstances of Marshall's rehiring on Janu-
ary 31 as indicative of an inclination on Respondent's part to discriminate
against her. However, since she was not involved in the mass layoff and there
being no indication that her case was specifically provided for in the settle-
ment agreement, Respondent's original failure to include her in the reinstate-
ments is not unreasonable. Indeed it tends to indicate that there was no
element of discrimination in her layoff in that Respondent by not originally in-
cluding her with the others demonstrated that there was a distinction in its
thinking between her case and that of the others. Thus, by finding that the
mass layoff was discriminatorily motivated, this distinction tends to support
Respondent's contention regarding Marshall's layoff.
7 Boguskie testified that the first meeting took place on January 12 or 13. Since the
burden of proof is on the General Counsel to establish its allegation of unfair labor
practices against Marshall, I am unwilling and not at liberty to resolve any vagueness
in the General Counsel's evidence against Respondent. Thus, in view of the fact that
Boguskie, the union president, was employed on the day shift and that the meeting of
the 18th was held at night, I find that the first meeting took place on the evening
of January 13.
NASHVILLE DISPLAY COMPANY 1317
Although Martin's remarks to Marshall in 1945 may have had some significance
with respect to events that occurred at that time, on the record of the events
with which we are now concerned and in view of the minor part Marshall played
in these events, I am unable to conclude that the 1945 incident has any sub-
stantial value in support of the General Counsel's contention that Marshall was
discharged because of her union activity. Considering the nature of her union
activity in 1945, the possibility that Martin was simply fishing for information
at that time, and the lack of evidence as to what she told Martin, it can hardly
be said that on that basis Respondent had tagged Marshall as a union adherent.
On the basis of the foregoing and the record as a whole, I find that although
not without its questionable aspects, the General Counsel has failed to prove
by the necessary preponderance of the evidence that Respondent discriminated
against Marshall because of her union activities. See Punch and Judy Togs, Inc.
of California, 85 NLRB 499; B. F. Goodrich Company, 88 NLRB 550.
D. The mass layoff
At all times material herein Respondent was operating two shifts, the first
from 7:30 a. in to 3:30 p. in. and the second from 3:30 to 11:30 p. in. On
January 18, the night of C. B. Rollins, Jr.'s surveillance of the second union
meeting, about an hour and a half before the end of the second shift, Erickson
paid off the employees of the second shift and gave them temporary separation
notices which specified shortage of materials as the reason for the terminations.
Checks and termination notices for the first shift were given to those employees
when they reported for work the following morning. Sometime after the end
of the first shift on January 18, a notice was posted in the plant stating that
due to the shortage of several gauges of wire, it was necessary to close the plant
for about 2 weeks or until the required sizes of wire were received and that
temporary termination notices were being given the employees to enable them
to draw unemployment benefits.
Informed of the layoff and questioning the explanation for it, Boguskie, a jig
builder on the first shift, in company with 3 other employees immediately took
an inventory of Respondent's wire, listing the number of coils of each gauge of
wire on hand. This inventory showed that Respondent had on hand at this time
282 coils of wire of various sizes.' In addition to these coils, Boguskie testified
that based upon his observation, it was his estimate that there was on hand at
this time an equal amount of cut wire ready for fabrication. Of the coils on
hand and included in Boguskie's count, not over 5 were unusable by reason of
rust or otherwise.' '
Confronted with the layoff, the employees countered by establishing pickets
at Respondent's plant and, assuming that Respondent was connected with the
Nashville Wire Products Company, picketed that company's plant and brought
about a cessation of its operations. On Friday, January 20, C. B. Rollins, Sr.,
8 The 282 coils were distributed as follows :
Gauge number Number of coil Gauge number Number of coil
00----------------- 9 8----------------- 36
1----------------- 6 9----------------- 9
2----------------- 5 10----------------- 53
3----------------- 38 11----------------- 18
5----------------- 6 121A--------------- 6
6----------------- 40 13----------------- 6
7----------------- 50
0 Based on the credited testimony of Boguskie. Martin's testimony was that "some"
of the wire on hand at that time was unusable because of rust but did not specify
the amount.
1318 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
returned to Nashville and on reaching the plant later that afternoon was greeted
by his picketing employees. He asked what the trouble was and invited a com-
mittee into his office saying, "I hope we can straighten this out without trouble."
This conference lasted only a few minutes, Rollins deciding that he was unable
and unwilling to go into detail on the matter until he had an opportunity to
discuss it with his lawyer. Before the meeting adjourned, however, it was.
agreed to meet the following day, which meeting took place as scheduled.
It was at this meeting, as already noted, that Respondent requested the em-
ployees to return to work. In spite of the attempt of Temple, the union organ-
izer, to lend the impression in his testimony that the only thing sought by the
employees at this time was reinstatement "without discrimination," I find, in
accordance With Rollins' testimony as corroborated by Boguskie's, that the em-
ployees' willingness to go back to work was conditioned upon compliance with
their demand for recognition of the Union as their bargaining agent. After-
some additional negotiations the employees and Respondent had settled their
difficulties by January 30 and the employees resumed work on January 31.
In fabricating any given article Respondent uses from 2 to 9 different gauges
of wire, the average display requiring perhaps 5 different gauges In the course
of a normal week's operations Respondent uses from 200 to 250 coils of wire of
all sizes. Although Respondent claims that its orders were comparatively low
at the time of the layoff, it is clear that there were sufficient orders on hand
at that time to warrant full operation and at the hearing Respondent made no
contention that lack or orders played any part in the layoff It also appears
from Erickson's testimony that at no time has it ever been possible for Respond-
ent to carry a sufficient inventory of material to complete all orders on hand at
any given time In fact, it appears that it was Respondent's policy to try to
keep only a 3 to 4 weeks' balanced supply of wire on hand. At the time of the
layoff, according to Rollins' testimony, Respondent was completely out of the
5 largest sizes of wire.
To support its contention that a shortage of material necessitated the layoff;
Respondent adduced evidence showing that as a result of a strike in the steel
industry during the fall of 1949, it began having difficulty obtaining sufficient
wire for its needs particularly in the smaller gauges or larger sizes of wire.
This difficulty had been at a serious stage from the beginning of December 1949
through the month of January 1950. As indicated by Rollins' testimony during
this period Respondent was operating on a day-to-day basis and "practically
shut down half a dozen times on account of the shortage of steel." Nevertheless,
that Respondent was determined to keep operating is apparent from Rollins'
summary, ". . . but we didn't let it close down. We worked from hand to mouth.
We had wire come in at 5: 00 and it cut at 6: 00 That's how close we were."
Although at the time of the layoff the steel strike had been over about 31/
months,1° Rollins testified that at that time the wire supply situation had become
even worse than it had been previously because odd-size inventories had been
used up by everyone with the result that all the fabricators were competing for
wire and the manufacturers were months behind on deliveries. All during this
period Rollins on his numerous sales trips was continually trying to locate wire.
Just before January 18, Rollins left Nashville primarily for the purpose of
securing new orders, but also for the purpose of purchasing wire. On the 18th
he went to Kokomo, Indiana, from Chicago, solely to see what he could do about
getting some heavy gauge wire from the Continental Steel Company there.
10 There was no definite testimony as to the exact dates of the steel strike except from
A. L. Smith , a representative of the Republic Steel Company , called as a witness by
Respondent Smith was convincingly positive that the strike lasted from October 1 to
November 8 . 1 base the above finding on Smith's testimony.
NASHVILLE DISPLAY COMPANY 1319
Continental had none on hand but was scheduled to run some the following
week, of,which Respondent was assigned "only a truck load" as Rollins described
it. Apparently at this time Rollins called Martin, informing him in substance
that he was unsuccessful in obtaining immediate delivery on wire and that
although it was his thought that they ought to keep operating as long as they
could, if Martin determined that it was impossible to continue operating he
was to exercise his discretion and close the plant.
Following this call from Rollins, according to Martin's testimony, immediately
after lunch that day he decided to suspend operations and sometime between
3 and 5 that afternoon he instructed Erickson to make up the payroll to date."
This latter testimony, it appears from Martin's cross-examination, is in conflict
with the statement Martin gave the Board's field examiner some months prior
to the hearing, wherein Martin recites that "On Thursday 12 night when Mr.
Erickson was making out the payroll for the previous week, I told him to bring
the payroll up to date through the night shift, and to notify the employees
that there was going to be a layoff due to material shortage, and to pay them
up for the night at the end of the shift."
In general accord with Martin's direct testimony, Erickson at first testified
that he did not recall exactly when he was first informed of the shutdown but
testified "it would be sometime after lunch," probably late in the afternoon
because he had commented he would have to come back after supper to do the
payroll. However, after being referied by the General Counsel to the statement
he gave the Board's field examiner, in which he had stated that he first learned
of the shortage after supper that night, he admitted that it was possible that
he had first learned of the layoff at that time and further admitted that the
statement given the field examiner was correct when made.
The striking correlation of the inconsistencies in the statements made by
these 2 men prior to and at the hearing leads to the conclusion that Erickson
was not informed of the layoff until sometime in the evening of January 18-
a fact which brings the layoff into a significant timing relationship with Re-
spondent's surveillance of the union meeting that night and tends to support
the General Counsel's contention that the layoff was motivated by the employees'
union activities. The inference thus established is conclusively strengthened,
in my opinion, by an analysis of the evidence regarding Respondent's material
supply position. Thus, in spite of Rollins' testimony that at the time of the
layoff Respondent was completely out of the 5 largest sizes of wire, it appears
from Boguskie's otherwise uncontroverted and credited evidence that Respondent
had some wire of all the lower gauges except gauge 4. It also appears that of
some 17 orders on hand as of January 15, 1950, only 2 of them required gauge 4
wire. While it is true that the supply of the various lower gauges of wire was
not large it would seem that consistent with Respondent's previous "hand-to-
mouth" and day-to-day operations and Rollins' demonstrated determination to
keep going, production would have continued until the supply was exhausted.
Significantly, when work was resumed on January 31 there was no more wire
on hand than when the layoff occurred, since no shipments of wire were received
during that interim.
Moreover, while the exhaustion of the larger sizes of wire would probably
have necessitated a substantial reduction in force even in that event it would
seem logical that Respondent would have need for the services of at least a few
11 Normally the employees are not paid on a current basis , there being a payroll lag
of 1 week
" Martin agreed that the statement inadvertently uses Thursday night rather than
Wednesday night.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees and would not have found it necessary to completely close down
its plant.
If Respondent's material position had been as critical as it contends, it is incon-
ceivable that Respondent would have so completely and precipitously placed itself
in the inconsistent position of pleading with its employees to return to work
almost in the same breath that they were told their services were not required.
This conduct is indicative of Respondent's guilt complex regarding' the layoff
which is given expression by Rollins when he explained that he asked the
employees to return to work "because they were charging us that we had done-I
said I wanted to rectify it, and we agreed that they could come back to work
Monday morning."
In view of the foregoing, and the record as a whole, I am not convinced that
Respondent laid off its employees because of a shortage of wire but find, on the
contrary, that the layoff was due solely to the employees' union activities."
By thus discriminating against its employees Respondent violated Section 8 (a)
(1) and (3) of the Act.
IV. TIIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in Section III, above, occurring in con-
nection with its operations described in Section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in the unfair labor practices set
forth above, I shall recommend that it cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act.
Thus, it will be recommended that Respondent remedy its discrimination against
the employees listed in Appendix A hereof by making them whole for any loss of
pay that they may.have suffered by reason of Respondent's discrimination against
them from January 19, 1950, to January 23, 1950. It is also recommended that
Respondent make available to the Board, upon request, payroll and other records
to facilitate the determination of the amount of back pay due 34
The violations of the Act which the Respondent committed are persuasively
related to other unfair labor practices proscribed by the Act, and the danger of
their commission in the future is to be anticipated from the Respondent's conduct
in the past. The preventive purposes of the Act will be thwarted unless the order
is coextensive with the threat. In order, therefore, to make more effective the
interdependent guarantees of Section 7, to prevent a recurrence of unfair labor
practices, and thereby minimize industrial strike which burdens and obstructs
commerce, and thus effectuate the policies of the Act, it will be recommended that
the Respondent cease and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact and upon the entire record of the
case, I make the following :
CONCLUSIONS OF LAW
1. The United Steelworkers of America, CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of those
employees listed on Appendix A hereof, the Respondent has engaged in and is
13 Fogel Refrigerator Company, 82 NLRB 150; Jasper National Mattress Company,
89 NLRB 75.
14 F. W. Woolworth Company, 90 NLRB 289.
CAPITAL JOURNAL 1321
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the
Act.
3. By such discrimination and by interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. Respondent has not violated the Act with respect to its employee, Mamie
Marshall.
[Recommended Order omitted from publication in this volume.]
GEORGE PUTNAM, D/B/A CAPITAL JOURNAL and INTERNATIONAL
BROTHERHOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN & HELP-
ERS OF AMERICA , LOCAL UNION No. 324, AFL, PETITIONER. Case
No. 36-RC-548. April 10, 1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Melton Boyd, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Houston and Reynolds].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent employees
of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Petitioner requests a unit limited to four district managers in
the circulation department of the Employer's Salem, Oregon, news-
paper publication company. The Employer contends that the pro-
posed unit is inappropriate, because it excludes other employees in the
circulation department who have the same interests and working
conditions as do the district managers, and also because the district
managers are supervisors.
The Employer has 83 employees, divided among 4 departments
mechanical,' editorial, advertising, and circulation. The circulation
I The employees in the mechanical department , about one-half of the total personnel,
are represented by two other unions which did not appear at the hearing.
93 NLRB No. 234.