Reeves Brothers, Inc.

National Labor Relations Board - Board Decisions

Aug 3, 1956

116 N.L.R.B. 422 (N.L.R.B. 1956)

422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the substantial bargaining history predicated thereon," we find that
the por'twide units requested by the Petitioners are too limited in scope
to be appropriate. We shall, therefore, dismiss the petitions.
[The Board dismissed the petitions.]
CHAIRMAN LEEDOM and MEMBER MURDOCK took no part in the con-
sideration of the above Decision and Order.
11 The Board has held that a bargaining history for somewhat more than a year 's dura-
tion is substantial and may be controlling as to the scope of the appropriate unit Owen-s-
Illinois Glass Company, 108 NLRB 947, 950
Reeves Brothers , Incorporated ,. Bishopville Finishing Division.
successor to Fairforest Finishing Company , Bishopville Finish-
ing Division , Bishopville Company 1 and United Textile Work-
ers of America , AFL-CIO. Case No. 11-C_A-906. August .3,1956
DECISION AND ORDER
On April 10, 1956, Trial Examiner Thomas N. Kessel 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 certain affirmative action, as set forth in the copy of the-
Intermediate Report attached hereto. The Trial Examiner also found
no violation with respect to certain allegations of the complaint and
recommended that such allegations be dismissed. Thereafter, the
Respondent and the Union filed exceptions to the Intermediate Re-
port and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report,' the, exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of* the Trial Examiner.'
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)•
of the National Labor Relations Act, as amended, the National Labor
1 The Employer 's name was inadvertently spelled "Reaves "
2 The Union excepted to the Trial Examiner ' s finding that Everett Hall and Guy Smith
we not supervisors and, accordingly , that threats and interrogation attributed to them are
not violative of the Act In view of our finding that the Respondent had otherwise
violated Section 8 (a) (1) of the Act, we deem it unnecessary to resolve this issue because
the finding of additional violation based on the conduct of Hall and Smith would be
cumulative in character
116 NLRB No 56
REEVES BROTHERS, INCORPORATED 423
Relations Board hereby orders that Respondent Company, Reeves
Brothers, Incorporated, Bishopville Finishing Division, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in and activities in behalf of the
United Textile Workers of America, AFL-CIO, or any other labor
organization of its employees, by discriminating in regard to the hire
or tenure of employment of its employees.
(b) Making statements to employees that it knows the identity of
their leader in their union activities and that it will get rid of him
for engaging in such activities, and making threats to employees that
they will be discharged for engaging in union activities.
(c) Interrogating employees as to their union activities in a man-
ner constituting interference with, restraint, or coercion of employees
in violation of Section 8 (a) (1) of the Act.
(d) Requesting and sending employees to attend union meetings
of its employees in order to acquire and report information concern-
ing what transpires at such meetings.
(e) In any other manner, interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist United Textile Workers of America, AFT CIO,
or any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
and protection, or to refrain from engaging in such activities, except
to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act, as guaranteed in Sec-
tion 7 thereof.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Ernest Gainey immediate and full reinstatement to
his former or substantially equivalent position without prejudice to
his seniority or other rights and privileges, or place his name on a
preferential list, and make him whole for any loss of earning suf-
fered as a result of the discrimination against him in accordance
with the terms and subject to the conditions described in the section
of the Intermediate Report entitled "The Remedy."
(b) Post at its plant in Bishopville, South Carolina, copies of the
notice attached to the Intermediate Report marked "Appendix." I
Copies of said notice, to be furnished by the Regional Director for
3 This notice is amended by substituting for the words "The Recommendations of a
Trial Examiner" 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 substituted for
the words "Pursuant to a Decision and Order " the words " Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order."
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Eleventh Region, shall, after being duly signed by an authorized
representative of the Respondent, be posted by the Respondent im-
mediately upon receipt thereof and maintained by it for a period of
sixty (60) consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(c) Preserve and make available to the Board or its agents upon
request, 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 back pay
due and the rights of employment under the terms of this Order.
(d) Notify the Regional Director for the Eleventh Region in writ-
ing, within ten (10) days from the date of this Order, what'steps it
has taken to comply therewith.
It is further ordered that the complaint, insofar as it contains al-
legations on which no findings of violation have been made herein,
be, and it hereby is, dismissed.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed by the United Textile Workers of America, AFL-CIO, herein
called the Union, the General Counsel of the National Labor Relations Board, by
the Regional Director for the Eleventh Region (Winston-Salem , North Carolina),
issued his complaint dated January 3 , 1956, against Fairforest Company, Bishopville
Finishing Division . Subsequent to the issuance of the complaint , the aforesaid
Fairforest Company changed its corporate name to Reeves Brothers, Incorporated,
Bishopville Finishing Division .' It will be referred to herein as the Respondent.
The complaint alleged that the Respondent had engaged in and was engaging in un-
fair 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, 61 Stat. 136,
herein called the Act. Copies of the complaint, charge, and notice of the hearing
were duly served upon the parties hereto.
The complaint specifies several acts alleged to have been committed by agents
of the Respondent at its Bishopville , South Carolina, plant which interfered with,
restrained , and coerced employees in the exercise of rights guaranteed by Section 7
of the Act in violation of Section 8 (a) (1) of the Act. The complaint also alleged
the unlawful discharge by the Respondent of employee Ernest Gainey in violation
of Section 8 (a) (3) of the Act. The answer filed by the Respondent denies the
commission of any conduct violative of the Act.
Pursuant to notice a hearing was held at Bishopville , South Carolina, on February
16 and 17, 1956, before Thomas N. Kessel , the Trial Examiner duly designated to
conduct the hearing . The General Counsel and the Respondent appeared through
counsel, and a represeratativz appeared for the Union. Full opportunity to be
heard , to examine and cross-examine witnesses , and to produce evidence was afforded
all parties . After the close of the hearing the Respondent filed a brief with the
Trial Examiner which has been carefully considered.
Upon the entire record in the case , and from his observation of the witnesses, the
Trial Examiner makes the following:
' Upon motion at the hearing , the pleadings and all formal papers in this proceeding
« ele amended to iefiect the change in the Respondent's name.
REEVES BROTHERS, INCORPORATED 425
FINDINGS OF FACT
1. THE RESPONDENT'S BUSINESS
The complaint alleges that the Respondent is a South Carolina corporation with
its principal office and place of business in Spartanburg, South Carolina; that it
operates plants at Spartanburg, and Bishopville, South Carolina, and at Columbus,
Georgia, for the manufacture and sale of synthetic fabrics; and that during the past
calendar year, in the course of the operation of business at its Bishopville plant, it
sold and, directly shipped to customers outside South Carolina finished products
valued in excess of $1,000,000. The Respondent's answer admits these allegations
and concedes that it is engaged in commerce within the meaning of the Act. I so
find.
II. THE LABOR ORGANIZATION INVOLVED
United Textile Workers of America, AFL-CIO, is a labor organization admitting
to membership employees of the Respondent.
HI. THE UNFAIR LABOR PRACTICES
a. Evidence relating to allegations of interference, restraint, and coercion
The campaign to unionize the Respondent's Bishopville employees started in late
April or early May 1955 and progressed during the ensuing months to the point
where approximately 75 of the 200 to 225 employees had signed cards designating
the Union as their representative. The Union's first meeting for the employees was
held on August 6 in a vacant store on the main business street of Bishopville. A
second meeting was held at the same location on August 13. Except for one incident
alleged to have occurred on October 4, 1955, all conduct specified in the complaint
as constituting violations by the Respondent of Section 8 (a) (1) occurred during the
course of the foregoing organizational activities. The record includes the following
evidence relative to such conduct.
Employees Archie Mooneyhan,and Lee Stokes, Jr., testified that at a plant safety
meeting on July 5, 1955, attended by them, Foreman Garland Street in effect told
the employees present that if the Union were to come in the Respondent would close
the plant. Foreman Street flatly denied having made such a remark either at a
safety meeting or elsewhere. He was supported by the testimony of employees
Stafford Farmer, T. W. Watson, and Frank Hall who claimed they attended every
safety meeting conducted by Street during his tenure with the Respondent and never
heard him make the comment attributed to him. I resolve this testimonial conflict
by crediting Street's corrobated positive denial of the less certain testimony by
Mooneyhan and his corroborator.
Employee Harvey Dampier testified that on August 5, 1955, Assistant Plant Super-
intendent John Clark had engaged him in conversation in the plant and asked him
about his union activities and how the Union was coming along; that Clark then
asserted that if the Union came in the Respondent would close the plant; and that he
requested him to attend a union meeting and report back what was said there.
Dampier testified that Clark further observed that he knew who was responsible for
the union movement, that he identified Ernest Gainey as the ringleader, and stated
that he was going to get rid of him. According to Dampier, Clark asked him on
August 8 or 9 whether he had attended the August 6 union meeting and how the
Union was progressing. Clark did not testify. It was stipulated at the hearing that
he now works for another employer in New York City. Dampier further testified that
shortly before the August 6 union meeting Edward "Shorty" Hall, who was identified
by him as the foreman of the dyehouse where he worked at the time, asked him
how the Union was progressing. Hall did not testify and the Respondent offered no
explanation for its failure to call him as a witness. Dampier conceded that he had
signed a union card and had helped Gainey procure the signatures of other em-
ployees. I have considered this circumstance as a factor indicating Dampier's in-
terest in the outcome of this proceeding. It is not by itself reason for failing to credit
him. I find from Dampier's uncontradicted testimony that Clark and Hall made the
comments attributed to them by him.
Employee Pearlie R. Amerson testified that on August 12 or 13, 1955, as he was
about to leave his work, Henry Lane, head foreman of the preparation department
where Amerson worked, told him that he had heard he was for the Union and that
if he wanted to keep his job he had better watch what he was doing. Employee
Gilbert; Lowery, -testified that;he was nearby when Lane spoke to Amerson and cor-
roborated the latter's account of what Lane said to him. Lane did not testify and
no explanation was offered by the Respondent for its failure to call him as a witness.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1 find from Amerson 's uncontradicted and corroborated testimony that Lane made
the comments attributed to him.
Employee Gary Grantham testified that on August 8, 1955 , the aforementioned
Everett Hall , who Grantham identified as his shift foreman in the dye department,
remarked to him that he had heard there had been a union meeting attended by a
pretty good crowd . He further testified that on August 11, Hall had spoken to him
while at work and said that he had better watch himself because he, Hall , thought
Grantham was helping to bring the Union into the plant ; also, that Hall said he
would hate to see Grantham fired if he were not guilty of such conduct . Grantham
further testified that Hall based his belief that he was aiding the Union on the fact
that Grantham rode to and from work together with Ernest Gainey. I find from
Grantham 's uncontradicted testimony that Hall had made the comments attributed
to him.
Employee Thomas Watson who works in the packing department identified Guy
Smith as his foreman . According to Watson , Smith had observed during the week
after the Union 's August 6 meeting that if the Union came in the plant would close.
Employee Ray Kelly, who also works under Smith , testified that Smith had made
the comment to him and other employees as related by Watson . Kelly added that
Smith 's comment then was being voiced by rank -and-file employees throughout the
plant. I find from Watson 's and Kelly's uncontradicted testimony that Smith had
made the comments attributed to him.
Willie R. Watford had formerly been employed by the Respondent in the prepara-
tion department and had worked during 1955 on the second shift under Jennings
Watson who was identified by Watford as his shift foreman . Watford testified that
in the fall of 1955, fixing the date as sometime after he had received a 5-cent per
hour pay raise , Watson had talked to him about the Union while at work , and, during
the discussion in which Watford had stated he would have nothing to do with the
Union , Watson had remarked that if he did he would lose his job. I find from Wat-
ford's uncontradicted testimony that Watson had made the comment attributed to
him.
Employee Ernest Griggs, who works as an electrician in the maintenance depart-
ment, testified that John T. McCantz , the chief electrician , had said to him that he
had heard that it was rumored in the mill that if the Union came in the plant would
close. Griggs did not indicate when this incident occurred . He also testified that
on an occasion in the summer of 1955 Junior Segars , the head guard, had made an
identical remark in the plant canteen where Griggs and other employees were having
coffee and were discussing the Union . According to Griggs, the employees had al-
ready heard this rumor Employee Tommie Amerson testified that in a conversa-
tion about the Union that he had had with Junior Segars in the guard room on
October 4, 1955, Segars had told him that he didn't want to have anything to do with
the Union and also that he would not have anything to do with it were he in Amer-
son's place. Segars conceded in testimony that he had repeated in the canteen in
the presence of Griggs and others the generally prevailing rumor in the plant as to
what might happen if the employees were unionized . He also conceded that he had
told Amerson in a conversation in which Amerson had solicited his opinion of the
Union , that he didn 't like it and that were he in his place he would "leave it off."
There is uncontradicted evidence by the General Counsel 's witnesses , which I
credit , that Guy Smith , referred to previously as a foreman in the packing depart-
ment, had attended the August 6 union meeting where he had vigorously expressed
his opposition to unionization . The Respondent 's answer admits that Smith had
attended the meeting at the request of Assistant Plant Superintendent John Clark,
but denies that this was for the purpose of spying on the Union 's activities . Ernest
Gainey, formerly employed by the Respondent , testified that during the August 6
meeting he had gone outside to get a supply of union cards and had then observed
Edward Lewis , foreman of the steam department , sitting in his automobile parked in
the street on the same side as the meeting place about two doors distant . On this
occasion Gainey had raised his hand in apparent greeting , and Lewis had in similar
manner greeted him Gainey testified that on the occasion of the August 13 union
meeting he had seen . Lewis standing on,the sidewalk across the street from the meeting
place and had called out an invitation to Lewis to attend the meeting so he could
hear and see what took place. Employee Gilbert Lowery testified that he, too, had
seen Lewis sitting in his automobile as related by Gainey at the time of the August 6
meeting, that he had noted his presence there when the employees had entered • the
meeting hall, and had observed that he was still there 1 hour later when the meeting
ended . Lowery further testified that he had seen Lewis on August 13 standing across
the street from the Union 's meeting place facing its direction and that when the
t 2 hour meeting concluded he had seen him still standing there. Lewis denied that
REEVES BROTHERS, INCORPORATED 427
he had ever known in advance when the Union was to hold its meetings, or that
he had ever spied on the Union. He recalled the occasion when Gainey had invited
him to attend the August 13 union meeting . He explained that he was present at that
particular place and time because he had left his automobile at a service station to be
greased and that in the interim he had walked up the street to a nearby drugstore
and was returning when Gainey addressed him. He claimed no recollection of
the occasion when on August 6, as Gainey had related, he was sitting in his auto-
mobile parked near the Union's meeting place on Main Street. He maintained that
it was not unusual for him to be on Bishopville's Main Street on any Saturday after-
noon and there was nothing so uncommon about being greeted by someone from the
Company as to fix such an incident in his mind . It was conceded by the General
Counsel that Bishopville's Main Street on Saturday afternoon enjoys its busiest time
of the week and that it is a time of the week when the greatest number of people and
vehicles are to be found there.
There may be no attribution to the Resvon'dett of any, liability for statutory
infractions involved in the foregoing comments and activities without proof that
the conduct in question was committed by agents of the Respondent . The General
Counsel contends that all persons shown to have engaged in that conduct were
managerial personnel or supervisors and hence agents of the Respondent. The
Respondent concedes this as to some but not as to others. By stipulation at the
hearing it is established that during all times relevant to this proceeding that John
Clark was assistant superintendent of the Respondent's Bishopville plant, that Gar-
land Street, Henry Lane, and Edward Lewis were foremen, and that all of them
were supervisors within the meaning of the Act. There remains for consideration
the disputed status of Everett "Shorty" Hall, Junior Segars, John T. McCantz, Guy
Smith, and Jennings Watson.
As to Hall, there is testimony by employee Harvey Dampier that he had worked
under him in the dye department on the first shift during the period from July to
September 1955. According to Dampier there were then about 15 employees
under Hall who assigned work to them, and directed when, where, and how they
should carry out their assignments. If he desired time off from work, Dampier
would go to Hall who would then take the matter up in the company office with
higher authority. Dampier acknowledged that Hall punched a time clock like the
rank-and-file employees, but asserted that he was known to the employees under
him as their foreman and that they regarded him as their "boss." Testimony by
employee Gary Grantham who also had worked in the dye department on the first
shift under Hall was in substantial accord with Dampier's testimony as to Hall's
supervisory status. Employee Gilbert Lowery, who had worked in the prepara-
tion department in 1955, testified that in the course of his duties he occasionally
went to the dye department for packing boxes and that he had observed Hall in the
capacity of "more of a floorman telling his men what to do and when to do it and
what time to do it," and that the dye department employees considered him to be
their foreman. The hourly rates for dye department employees in 1955 ranged
from $1.25 to $1.35, while Hall's rate was $1.50.
Concerning Segars, employees Pearlie R. Amerson and Tommie Amerson, who
worked in the preparation department, and employee Ernest Griggs, who worked
in the maintenance department, testified that they and the other employees con-
sidered him as the head guard. Segars testified that the guard force consists of him
and three other guards. Each of them works a separate shift. Segars has the
first shift. In point of service he is the senior guard. His rate of pay in the sum-
mer of 1955 was $1.55 per hour. Two of the other guards were then receiving
$1.10 per hour, and the third was paid $1.15 per hour. He conceded that he is
required to see that the other guards perform their duties properly, and observes
them to make sure they are properly uniformed. While disclaiming that he had
interviewed the other guards when they were hired to determine their qualifications,
he acknowledged that when applications had been received for guard positions he
had helped pick the man he thought suitable, had expressed his opinion as to the
suitability of some who were hired, and that in fact some were hired for whom
he had indicated a favorable opinion.
Regarding John T. McCantz, there is the testimony of Ernest Griggs and William
Archie Griggs that they both performed the duties of electricians under McCantz
who is known to them as the chief electrician. William Archie Griggs also per-
formed mechanical duties in the maintenance department which were assigned to
him and laid out by Benson, the maintenance department foreman, or by his assist-
ant, Steadman, but all his orders for electrical work came from McCantz. Both
Ernest and William Archie Griggs testified that McCantz not only assigned them
their electrical work, but told them where, when, and how to do it if necessary,
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and both, considered him to be their boss., William ,Archie Griggs would go to
McCantz for time off • McCantz' hourly, rate of pay in August 1955 was $2, while
Ernest Griggs then received $1.45 per hour, and the rate for the other Griggs was
$1.30. The record shows that the electricians were part of the maintenance de-
partment, over which Foreman; Benson was in charge.
Guy, Smith,, according to aforementioned packing department employees Thomas
Watson and Ray Kelly, had been their, foreman while working on the first shift in
1955. Both these employees stated, that Smith had about eight employees under
him to whom he assigned work„, and told them what, when, and how to do it.
When these employees desired time, off they would go to Smith. ,Watson's_duties
consist of -porting. cloth according to, shade. and, placing it in boxes which he seals
preparatory to shipment. It appears, that, some of the other employees- under
Smith-perform the same duties,,cwhile the, remainder-work on invoices. The pack-
ing department is in a single room which also houses the inspection and putup
departments. All three departments are under the supervision of Bryson Clamp.
The hourly rate for the employees under Smith in August 1955 was $1.25, while
he received $1 35 per hour.
Employee Tommie Amerson had worked in 1955 on the second shift in the
preparation department., Former employee Willie R. Watford had also worked
on the same shift. Both testified that Jennings Watson had been the foreman in
charge of the eight men on this shift. They indicated that the head foreman of
the department, Henry Lane, would leave the plant between 4:30 and 7 p. m., and
that Jennings Watson would then be the sole person in charge of the second shift
employees who worked from 3 to 11 p. m. Amerson and Watford both testified
that Watson assigned and directed the work of the second shift employees, and
that they made requests for time off from work to him. Watford's hourly rate in
1955 ranged from $1.15 to $1.20, and Amerson's ranged from $1.05 to $1.15.
Watson's rate in August 1955 was $1.45 per hour.
Finishing Department Supervisor Garland Street testified that Everett Hall, Guy
Smith, and Jennings Watson are classified as working floormen whose duty is to
carry out work already laid out by others. They have no authority to hire or dis-
charge employees. Street estimated that they perform manual duties 65 to 85
percent of their working time and engage in supervision during the remainder of
their time. They are hourly paid and punch a time clock, and are regarded by
Street as part of the working force as distinguished from the plant supervisory force.
I am satisfied that Junior Segars is a supervisor within the meaning of the Act
particularly because his recommendations as to the hire of guards have been effec-
tive, and that Jennings Watson also is, a supervisor in view of the fact that he
appears to be the sole person present and responsible for production by the sec-
ond shift employees under him during the major portion of that shift.2 I am
further satisfied that John T. McCantz is a supervisor because I infer from the
craft nature of his work that in assigning , directing, and telling the mainte-
nance electricians under him how to perform their electrical duties that he neces-
sarily gives responsible direction to them.
I am not persuaded by the evidence that Everett Hall and Guy Smith are super-
visors within the contemplation of the Act. None of the statutory authority of
supervisors with. respect to power.to hire or discharge or make effective recom-
mendations involving statuts of employees was shown by the evidence to repose
in these persons. A finding that they are supervisors therefore could be made only on
the basis that they responsibly direct the work of employees under them. The
record, however, fails to show the nature of the duties performed by any of the
dye department employees under Hall and the inference that these employees per-
form routine duties which require no responsible direction from Hall is as reason-
able as any other. I cannot, therefore, make the required finding that Hall exercises
independent judgment in directing the work of employees under him and that he
responsibly directs their work. While there is some evidence as to the duties of
the packing department employees under Smith, these duties appear to be of a
simple routine nature not requiring the exercise of independent judgment and re-
sponsible direction by Smith. I find, therefore, that the General Counsel has not
sustained his burden of proving by the necessary preponderance that Hall and Smith
are supervisors within the meaning of the Act.
In sum, I find that John Clark, Garland Street, Henry Lane. Edward Lewis. Junior
Segars, John T. McCantz, and Jennings Watson are supervisors as defined in the
Act for whose conduct in this proceeding the Respondent is responsible.
2Enterpr e-Tool,& Gear Corporation,•112 NLRB 1355; Potomac Electric Power Com-
pany, 111 NLRB 553.
REEVES BROTHERS, INCORPORATED 429
b. Conclusions as to interference , restraint, and coercion
From the foregoing findings of fact I conclude that the Respondent through its
supervisors and agents engaged in the following unlawful conduct in violation of
Section 8 (a) (1) of the Act:
(a) The assertion by Assistant Superintendent Clark to employee Dampier that
the plant would close if it became unionized; his added comment that he knew who
was responsible for the union movement ; his identification of Ernest Gainey as the
ringleader, and his statement that he was going to get rid of him; his interrogation
of Dampier concerning his union activities which in the context of the foregoing
implies clear threats of reprisal to employees for engaging in such activities I con-
strue as coercive ; his request to Dampier to attend a union meeting and to report
to him what was said there, and his later inquiry from Dampier as to whether he
had attended the meeting and how the Union was progressing.
(b) The attendance at the August 6 union meeting by Guy Smith at the behest
of Assistant Superintendent John Clark as admitted by the Respondent's answer.
I am convinced , contrary to the Respondent 's contention , that Smith 's attendance
was for the purpose of interfering with the unionizing activity of the Respondent's
employees , and that he pursued that purpose pursuant to Clark 's request. He was
thereby constituted the Respondent's agent for the commission of this conduct. No
explanation was offered by the Respondent for Clark's request to Smith to attend
the meeting . In view of Clark's opposition to unionization , his coercive comments
to and interrogation of employee Dampier, his request to Dampier to attend a union
meeting and report its activities to him , and Smith 's vigorous opposition to unioniza-
tion as expressed by him at the meeting, I infer that Smith 's mission on behalf of
'Clark was by unlawful surveillance to procure for him information as to the em-
ployees' union activities and thereby to impede their organizational activities.
(c) Foreman Henry Lane's remark to employee Gilbert Lowery that he had heard
he was for the Union and that if he wanted to keep his job he had better watch what
he was doing, which I construe as an undisguised threat to Lowery of discharge if
he persisted in his support of the Union.
(d) Jennings Watson's remark to employee Willie R. Watford that if he had any-
thing to do with the Union he would lose his job . This also is a clear warning of
discharge for engaging in union activities.
Because I have found that Everett Hall and Guy Smith are not supervisors and
because I do not find them to be agents of the Respondent on any other basis, except
as to the attendance at the union meeting by Smith as already related , I do not charge
the Respondent with responsibility for remarks by them to employees which may be
construed as unlawful interrogation concerning their union activities , warnings that
the Respondent would close its plant if the employees were to unionize , or that em-
ployees would be discharged if they were to engage in union activities . I also do
not find coercive remarks made by Chief Electrician McCantz and by Head Guard
Segars to employees to the effect that the Respondent would close its plant if it were
to become unionized. I do not believe that these remarks reasonably conveyed
to the employees who heard them the impression that they reflected the Respondent's
policy, but rather that McCantz and Segars were repeating a rumor in general cir-
culation in the plant which was being disseminated by the rank -and-file employees
themselves. Nor do I regard as coercive the comment by Segars to employee Tommie
Amerson and to other employees in the canteen that were he, Segars , in their place
he would not have anything to do with the Union. This, in my view, was a privileged
expression of opinion.
Finally, I do not find that Foreman Edward Lewis had engaged in surveillance
of the August 6 and 13 union meetings despite the fact that he was observed in the
vicinity of the meeting hall on both occasions. I accept his explanation for his
presence on Main Street in Bishopville on August 13 when he was waiting for his
automobile to be greased as plausible and truthful. As to the August 6 occasion
concerning which he had no recollection I am further satisfied that his presence at
that time in his automobile in a parking space near the meeting place can readily
be understood without the implication that he had come there to spy on the union
meeting. As the evidence clearly shows, and as the parties agree, the small business
area of Bishopville where the meetings were held was frequented most by the local
populace on Saturday afternoons, and the fact that Lewis, like any one of the many
persons on Main Street, was there at the time of the meeting, does not preponderate
in favor of the belief that he was bent on espionage any more than the belief that
he was there for the legitimate reasons which ordinarily brought people to Main
Street on Saturday afternoons.
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Except for the hereinabove specific findings of violation of Section 8 (a) (1) of
the Act by the Respondent , I shall recommend that all other complaint allegations
with respect to 8 (a ) ( 1) violations shall be dismissed.
c. Discrimination
The complaint alleges that employee Ernest Gainey was discharged on August
10, 1955, because of his union activities. This is denied in the Respondent's answer.
The answer also affirmatively asserts that Gainey was laid off-as a matter of legiti-
mate economic necessity. At the hearing the Respondent contended that if it should
be found that Gainey had been unlawfully discharged that his reinstatement to his
former employment should nevertheless not be ordered because he had forfeited such
right by abusive and vulgar conduct directed towards his foreman, John Benson, when
the latter notified him of his termination. Such conduct was testimonially denied
by Gainey.
In substance, Gainey testified that when he was hired as a skilled welder on No-
vember 10, 1954, he had indicated to Benson, the head of the maintenance depart-
ment, that he was interested in a steady job and that Benson had assured him of its
permanence provided that he proved his ability. During the period of his employ-
ment, his major job consisted of pipe welding on a continuous dye range then being
installed. Gainey estimated, that this installation was completed about 3 or 4
months before- his -employments was. terminated . In addition to skilled welding,
Gainey claimed experience as a millwright and stated that he perfornied"-millwright
duties with the maintenance mechanics about 4 or 5 hours weekly.
Concerning the manner in which he was notified of his termination, Gainey gave
the following account. He had finished his work on August 10 at 3 p. m., the
regular quitting time, and was about to leave with the rest of the maintenance crew
when Benson told him to accompany him to his office. There Benson told him he
was letting him go for economy reasons, and asked him to sign certain papers so
that he could be paid in full. Gainey related that he then remarked, "Mr. Benson
I know you are not firing me or letting me go because of the expenses and I would
like to know the real reason for you letting me go." He told Benson that he had
not kept his promises to him, whereupon Benson replied that if Gainey wanted to
know the real reason for his discharge it was because he "tried to sneak a goddamn
union in the plant." Gainey then sought to make clear to Benson that his activitie.,
had in effect been openly- conducted and that he had not -resorted to sneak tactics.
Benson did not retort, but instead insisted that Gainey sign the proffered papers or
he would not be paid. Gainey adamantly refused to sign and was about to walk
out when Benson gave him his checks.
Concerning the availability of welding work requiring his services at the time
of his termination, Gainey testified that on August 9 he had completed a set of
winders for a frame and that Cleve Steadman, Benson's assistant and concededly a
supervisor, then told him that a "bunch" of these winders would have to be made
and that "it looks like they are so pleased with that one that we are going to have
to make them everywhere they can use them here." Gainey further stated that
Steadman had told him that he would make the winders. Steadman did not tell
him how long it would take to make and install all the winders, or how many
winders would have to be installed, but did indicate that one day would be required
for each. Gainey testified that when he finished his work on August 10 there were
more winders to be installed. He also referred to another conversation with Stead-
man about 3 weeks before his termination relating to the modification, repair, and
installation of pipelines in certain dye becks, some of which Gainey had already
successfully completed, and that Steadman had then told him that he would be
required to do similar work on all the dye becks, but that the start of this opera-
tion would be delayed until' the arrival of material. Gainey stated that Steadman
had not mentioned the time it would take to complete this work, but in Gainey's
opinion at least 2 to 3 months would have been required.
Gainey's account of his union activities in the plant was not controverted by the
Respondent. In its brief the Respondent concedes that it is undisputed that he
was very active, that he had initiated the movement to unionize the plant, and that
he had obtained the signatures of 50 employees to union membership cards It is
clear from the record that Gainey's activities which started in late April or early
May 1955 and which continued until his employment was terminated, established
him as the leader of the union movement in the plant. The record further shows
that Gainey's activities were carried on extensively inside the plant, and that, as
hereinabove found, knowledge of these activities had been acquired by Assistant
Superintendent Clark who had stated to employee Dampier his intention to get
REEVES BROTHERS, INCORPORATED 431
rid of Gainey. As noted, Clark's comment was made on August 5, 5 days before
Gainey's termination.
Benson gave this version of Gainey's termination. Before Gainey was hired the
Respondent had not included a full time welder in its maintenance department,
but had utilized the services of a welder from another of the Respondent's plants
as the need arose. When hired in November 1954 Gainey had pointed out that
he had been getting only 2 days' work per week on his former job and Benson
had indicated that there was at least 6 months to a full year of welding work to be
done in the Respondent's plant. He denied giving assurance that Gainey would be
employed beyond this period. When Gainey came to work the Respondent began
installation of the continuous dye range which was completed in April or May
1955. Following this operation there was the installation of a rope soaper and
jigs. These installations kept Gainey busy welding and resulted in the setting aside
for the future of a backlog of repair work involving welding. As the installation work
was being finished this repair work was undertaken and the backlog began to
diminish until it was finished in either September or October 1955. Referring to the
dye beck operations mentioned by Gainey, Benson indicated that the modifications
which were required would have involved no more than 2 weeks' work if there were
no interruptions; that Gainey had completed all the required work on the dye becks
in: the summer of 1955, but that he could not recall the exact completion date.
Concerning the question of available welding work at the time - of Gainey's ter-
mination, Steadman, Benson's assistant , testified that the dye beck work was about
completed at the time of Gainey 's departure , and that there may have remained
one beck to be modified. As to the winders concerning which Gainey had testified,
Steadman denied that there was a substantial amount of work to be done on them
when Gainey left. He further denied having held a special conversation with Gainey
shortly before his termination in which he had indicated there was a backlog of
welding work, but conceded having had "daily routine talks" with Gainey. He also
testified that he did not recall that a backlog of welding work existed when Gainey
left.
According to Benson, Plant Manager Morrison during the summer of 1955 had
indicated the necessity of a reduction in the maintenance force in view of the Re-
spondent's monetary losses then being incurred. Thereupon Benson surveyed his
force and concluded that he could economically eliminate the welder's job and
that of a janitor. Factors which influenced his decision to dispense with Gainey
were the completion of the installations which required welding and particularly the
completion of the gas line which occurred 2 days before Gainey's termination, the
fact that there were 2 skilled mechanics in the maintenance department who were
capable of performing such welding as might be required in the future, the further
fact that while these persons were superior to Gainey as mechanics they could do
adequate welding, and, finally, that Gainey was the employee with the least seniority
in the maintenance department. Since Gainey's departure no employee has been hired
in the maintenance department to replace either him or the janitor who had been
terminated with him the same day. Whatever welding has since then been required
was performed by the aforementioned two mechanics in the department, and no
welding work has been farmed out to an outside shop.
As noted above, the Respondent acknowledges that Gainey actively supported
the Union. Both Benson and Steadman, however, expressly disclaimed knowledge
that he was the leader of the movement. Benson testified that he had heard it
rumored that William Archie Griggs, the aforementioned electrician in his department,
was the union ringleader.3 He stated that Assistant Plant Superintendent Clark
was concerned with production operations in the plant and not with maintenance,
and that Clark had never told him that Gainey was the union ringleader or had
instructed him to get rid of Gainey. He admitted that Plant Manager Morrison,
his direct superior, had told him in June or July 1955 that there were attempts being
made to unionize the plant. He also conceded that the union movement was then
being discussed among the Respondent's supervisors who talked about the rumors
circulating throughout the plant, and that he knew about the movement because
"you could hear it all over the plant." He denied that Morrison had ever ordered
or instructed him to do anything in connection with the Union. Steadman admitted
that he had held a conversation with Gainey about the Union in which Gainey
had told him he had heard the Union was coming in and that he would have to quit
because he couldn't get along with it. He testified that he had reported this discus-
sion to a supervisor, but did not make any report that Gainey was active in the Union.
3 Foreman Edward Lewis testified that he, too, had heard the same rumor. Griggs
denied that he had engaged in any activities which could have supported such rumor.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He admitted that he had heard rumors around the plant concerning union activity
but heard nothing about anyone being the ring leader in the movement.
Ostensibly to show that Gainey had not after his termination considered himself
discharged for union activities, the Respondent introduced in evidence a copy of
the claim for unemployment compensation filed by Gainey on August 18, 1955,
,with the South Carolina Employment Security Commission in which as explana-
tion for his separation from employment appears the notation:
John Benson Foreman said they had to economize on the shop labor and were
going to double up on some of the jobs.
,Gainey testified that this notation had been inserted by the clerk who received the
claim who had told him that to process his claim it was unnecessary to furnish addi-
tional information. It was for this reason that he had failed to tell her that his
discharge resulted from his union activities 4
With respect to the contention that Gainey was disqualified for reinstatement
because of his abusive and vulgar conduct at the time of his termination, Benson
gave this account. He related that he had called Gainey into his office after quitting
time on August 10 where he explained that economy reasons had compelled the
termination and had requested him to sign certain personnel forms. Gainey's
response was that he wouldn't sign a "damn thing," and charged "that is not what
you are firing me for." Gainey further implied that he was being fired for his
union activity and denied that he belonged to the "damn thing." Benson claimed
that he remained silent about 'the Union, but repeated his explanation whereupon
Gainey exclaimed, "you are nothing but a Goddamn s. o. b.," and reiterated this
several times before walking out of the office. He then returned and stated to
Benson "you are nothing but a Goddamn s. o. b. in the plant anyway." Upon
Gainey's refusal to sign the personnel forms, Benson called Plant Manager Morri-
son and explained the situation. He was advised by Morrison to give Gainey his
checks whether he signed the papers or not. Benson also decided to call Head
Guard Segars to avoid any trouble with Gainey. However, Gainey had left the
,office before Segars arrived Segars testified that when he came to Benson's office
and ascertained that Gainey had left, he went back to the guard room. On the
way he saw Gainey in the parking lot stopping and talking to various persons. He
asked Gainey to leave the premises, which he did, but not before he said, "I have
been handed a raw deal and John Benson is a damn s. o. b. and that goes for you
too, Mr. Segars." Foreman Edward Lewis testified that he had been near Benson's
,office when Gainey came out and entered the shop to pick up his personal belongings
and that Gainey had said to him, "that Goddamn s. o. b. in there, if I 'ever catch
him away from the plant, I will beat hell out of him." Then, according to Lewis,
as Benson came out of his office Gainey exited from the shop and the latter declared
to Benson, "If I ever catch you away from here, I will cut your damn ass."
Gainey denied that he had cursed at Benson as related by the foregoing witnesses.
He conceded that after he had left Benson and as he was departing from the plant
he had encountered a Negro employee and in a discussion about a union card which
the employee had failed to give him that day he had said to him, "Damn you and
the card too."
These facts are clearly established. Gainey had started the movement to unionize
the plant and was its leading proponent. The extent of his union activities far
surpassed those of the other employees and unquestionably distinguished him as the
union ringleader in the plant. I do not credit the claims by Foremen Benson and
Lewis concerning rumors that William Archie Griggs rather than Gainey was the
union ringleader for Griggs had done nothing to rate such reputation. It is highly
implausible that such unfounded rumor should have originated and reached these
supervisors especially as the evidence shows that Gainey's role as ringleader was
so well known that it came to the attention of Assistant Plant Superintendent Clark
who was so concerned as to state his intention to discharge him therefor. It is
clear that Gainey's termination occurred in the midst of the Union's campaign
4 days after it had held its first meeting of employees and 5 days after Clark's threat
to get rid of him. The record further demonstrates that the Respondent's officials
and supervisors were aware of and discussed the movement in the plant, were hostile
towards it, that Assistant Plant Superintendent Clark had through unlawful surveil-
lance sought information concerning the union activities of the employees, and,
as found above, he and other supervisors had by unlawful means sought to impede
the campaign to unionize the employees. Finally, it appears that Gainey's termi-
nation occurred abruptly without any advance notice. These facts coupled with
3 I credit Gainey's explanation which I further accept as plausible
REEVES BROTHERS, INCORPORATED 433
Gainey's. testimony which indicates that there was welding work available for him
at the time of his termination which he had been assured by his superior was to be
performed by him establishes a strong prima facie case from which the inference
may readily be drawn that he was unlawfully discharged because of his union
activities. The issue for determination is whether the Respondent's explanation
that Gainey's termination was motivated by lawful economic considerations is
sufficiently proved to overcome the General. Counsel's prima facie case.
The crux of the question is the bona fides of Benson's and Steadman's testi-
mony that by August 10 the amount of welding work to be done in the maintenance
department had been reduced to the point where there was no further need for
Gainey's services as a full-time skilled welder. Had Benson's and Steadman's
testimony convincingly demonstrated the lack of welding work for Gainey as claimed
by them, I would be satisfied that his termination on August 10 was for legitimate
economic reasons. Their testimony as a whole does not satisfy me that these were
the reasons. I have reached this conclusion despite the proof that the Respondent
has not hired anyone to replace Gainey, and that since his departure all welding
work in the Respondent's plant has been performed by mechanics in the mainte-
nance crew. While this circumstance provides cogent support to the Respondent's
defense, it is not conclusive. I am convinced by this evidence that there probably
came a time after August 10 and before the hearing in this case when there was
insufficient welding work economically to warrant Gainey's retention, but I am
not persuaded that this was the prevailing condition when he was terminated.
Gainey's testimony about the welding work which Steadman had assured him he
would be assigned on the dye beck modifications and on the making and installation
of winders import that so far as Steadman was concerned he had no doubt as to
the need for Gainey's services after August 10. It will be recalled that Gainey
fixed the conversation with Steadman regarding the dye becks as occurring about
3 weeks before his termination, and the conversation with him about the winders
1 day before the event. Steadman did disagree with Gainey's estimate of the
amount of work remaining on the dye becks when he left, for purposes of this
analysis, his recollection that the dye beck operation was virtually finished by
August 10 may be regarded as more accurate than Gainey's opinion that 2 to 3
months' work was still to be accomplished. However, the question of how much
work on August 10 remained to be done on the winders was not settled with equal
certainty by Steadman's testimony. Thus, when asked whether there were any
winders to be built when Gainey was laid off, he answered, "I don't know, Sir, we
built several of them but I believe we began taking them out about the time he left
there." He was subsequently asked whether at that time there was a substantial
amount of work to be done on the winders and he replied, "No," and then when
asked, "One way or another," he testified, "No, not as I know of." Steadman's
testimony on this subject is not a precise refutation of Gainey's account that he had
completed but one set of winders on August 9, and that according to Steadman, a
"bunch" of winders were to be made and installed wherever they could be used in
the plant. Rather, Steadman's belief that they had begun taking out the winders
about the time of Gainey's departure would appear to be consistent with the latter's
claim that on August 9 this project was at its beginning stage. That Steadman
did not regard the unfinished winder work as substantial when Gainey left, is not
helpful, for his view as to what was substantial was not explicated and could
within his meaning of the term have involved enough work to have kept Gainey
busy for weeks beyond August 10. 1 am convinced that Steadman did discuss the
winder program with Gainey on August 9 and had then indicated to him the ex-
pectation that for an unspecified Period he would be occupied with this activity.
I am satisfied that this was so not alone because I credit Gainey's testimony on the
point, but for these additional reasons. Bearing in mind Steadman's testimony
that he had daily routine discussions with Gainey, I infer that they related to Gainey's
current or future work. As the winder work was the very job with which Gainey
was concerned on August 9, it may reasonably be assumed that this was the topic
discussed with Steadman. Significantly, Steadman testified that with the exception
of remodeling or rebuilding jobs, he lays out all .the "foreward work" for the mainte-
nance force. In view, thereof, it may reasonably be concluded that during a daily
routine discussion with Gainey on August 9, Steadman outlined to Gainey what
work was expected from him in the ensuing period, and, if Steadman had not been
able to lay out future work for him, that he would have mentioned this matter to
Gainey. The fact is that Steadman gave no indication that Gainey's welding work
was running out. I am thereby persuaded that at the very least there was winder
405448-57-vol. 116-29
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work for Gainey on August 9 which Steadman could and did lay out for future
accomplishment by him.
Benson's testimony also fails convincingly to support his claim of lack of welding
work for Gainey when he was separated. While emphasizing the reduction in the
welding backlog as a factor in Gainey's layoff on August 10, he testified that "we
began to catch up" with the backlog in September or October. This was from 1 to
3 months after Gainey's layoff. He further stated that Gainey's layoff coincided
with the completion of the running of a gas line about 2 days before his layoff. This
seems to be work in the category of installation rather than repair work which
had been accumulating during the period of concentration on installation. There
would then appear to be an inconsistency in Benson 's account of a reduction in the
backlog for he had explained that this work had been put off until the installations
were finished. Benson's account of Gainey' s gas line activities before his layoff
is also inconsistent with Steadman's testimony to the effect that Gainey before his
layoff had been occupied with the dye beck modifications which had by then been
virtually completed by him. It certainly is inconsistent with his claim that Gainey's
work on the winders was virtually completed on August 10 when he was laid off.
I find, in accord with Gainey's testimony, and contrary to the testimony of Ben-
son and Steadman, that there was welding work available when Gainey was termi-
nated on August 10 which he had been assured by Steadman would be performed by
him for an undetermined period after August 10, and that lack of such welding
work was not a factor which influenced the Respondent's decision to terminate
Gainey's employment on August 10.
Having rejected the explanation that Gainey's layoff on August 10 resulted from
an unavailability of sufficient welding work to warrant his employment beyond that
date, I conclude therefrom and from all the elements previously enumerated as
constituting the General Counsel's prima facie case, that Gainey was discharged by
the Respondent on August 10 because of its desire to rid itself of the leader of the
union movement in its plant. The Respondent thereby violated Section 8 (a) (3)
of the Act. In so concluding I find it unnecessary to resolve the conflicting testi-
mony by Gainey and Benson as to whether the latter had admitted to the former
that he was laying him off because he was trying to sneak a union into the plant,
for I am satisfied that the motive for Gainey's termination is established without
proof of such admission of culpability. Were it necessary, however, to make such
determination I would credit Gainey's testimony over Benson's. Benson demon-
strated a resentment towards Gainey, manifested by the alteration of Gainey's per-
sonnel record prepared by Benson on the occasion of the former's termination,
which impairs his reliability as a witness. The circumstances concerning this inci-
dent are these. As related, Benson had requested Gainey to sign certain docu-
ments when he gave him the separation notice, and Gainey had adamantly refused
to sign. One of these documents was a rating form which had been prepared in
advance by Benson. On it he had written as a reason for discharge, "full time job
discontinued" and had rated Gainey on certain factors relevant to his effectiveness
as pan employee. Using letter symbols with "A" as the highest rating and "D" as
the lowest, Benson had originally rated Gainey "A" for ability, and "B" for con-
duct, quality of work, quantity of work, and attitude. He also had inserted "Yes"
concerning eligibility for rehire. Following the events which transpired in his office
when he gave Gainey his notice, Benson changed the ratings for conduct and quan-
tity of work to "D," and Changed the "Yes" for rehire to "No." Benson explained
at the hearing that Gainey's offensive conduct had caused the changes. While I can
perceive how Benson could justifiably have changed the conduct factor on the basis
of Gainey's alleged abusiveness, no such justification appears for the downgrading
of the quantity of work factor. Benson conceded he had made this change because
he was "mad." The Respondent contends that this change was the result of Benson's
angry confusion and that he had really intended to change the rating for attitude to
"D." This, however, was not Benson's testimony, and it should be noted that
Benson did not make the alteration in the heat of the moment but after he had left
his own office and had gone to the main office. I am satisfied that Benson had
deliberately altered Gainey's rating form to preclude Gainey's eligibility for rehire
by the Respondent, and that in so doing he had falsified the report.
With respect to the Respondent's contention raised at the hearing that Gainey's
insubordinate and vulgar remarks to and about Benson, as related by Benson, Segars,
and Lewis, disqualify him for reinstatment, there are credibility issues to be re-
solved arising from Gainey's denial of the conduct attributed to him. First, as to
Benson's testimony, in view of the impairment of his reliability as indicated, I credit
REEVES BROTHERS, INCORPORATED 435
Gainey's denial that he had in his presence referred to him as an "s. o. b." 5 I discredit
Lewis' testimony that Gainey had threatened Benson to his face with mayhem.
Surely, if Gainey had uttered these words to Benson the latter would have remembered
them and would have referred to them in his testimony. He did not, I am satisfied,
because Gainey did not speak these words to him. Moreover, Benson's account of
Gainey's movements conflicts with Lewis' account, for Benson had testified that
when Gainey came to his office a second time and called him an "s. o. b." he then
left. Nothing in this account refers to another meeting with Gainey in the presence
of Lewis. Segars' testimony also indicates the fallaciousness of Lewis' account, for
when he arrived at Benson's office in response to the latter's call, Gainey had
already left. That Gainey did not thereafter return, so as to explain Lewis' account,
is borne out by Segars' testimony that on his way back to the guard room he saw
Gainey in the parking lot, that he instructed him to leave the premises, and that
Gainey did thereupon leave. Because I regard Lewis' testimony in this respect as
unworthy of belief, I also discredit his testimony that Gainey had in his presence,
but not in the presence of Benson, referred to the latter as an "s. o. b." and threat-
ened him with a beating. Segars impressed me as a credible witness whose testi-
mony that Gainey referred to him and Benson as "s. o. b: s" is believable, particu-
larly as Gainey was in an excited mood as evidenced by his admitted angry remarks
to the employee who had failed to return a union card to him. The question then
remains whether having uttered these words to Segars, Gainey has thereby disquali-
fied himself for employment by the Respondent. I do not believe that a reinstate-
ment remedy for the Respondent's unfair labor practice should be withheld because
of this incident. Had Gainey during the course of his employment been insolent,
insubordinate, or guilty of an impropriety towards a superior, he could with im-
punity have been disciplined or discharged therefor. His misbehavior had nothing
to do with his discharge. That action, which I have found to be unlawful, in my
view provided sufficient foreseeable provocation to the employee affected by the
discrimination to have caused an emotional response intense enough to produce the
remark attributed by Segars to Gainey. I do not feel that Gainey thereby rendered
himself unemployable by the Respondent so as to disqualify him for reinstatement .6
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that the Respondent had on August 10, 1955, discriminatorily
discharged employee Ernest Gainey and that it has since failed to reinstate him to
employment. It will therefore be recommended that the Respondent be ordered
to offer him immediate and full reinstatement to his former or substantially
equivalent position without prejudice to seniority or other rights and privileges,
subject to the following conditions. The record contains evidence which, as I have
indicated, shows that absent the discrimination against him Gainey might neverthe-
less have been separated from his employment because of a reduction in the
Respondent's welding work requiring Gainey's skilled full-time services. If there is
now insufficient work to warrant Gainey's employment by the Respondent as a
welder, it is recommended that the Respondent not be required to offer him imme-
diate reinstatment, but that it be required to place his name on a preferential hiring
list and that he be offered employment therefrom as work requiring the services of a
skilled welder becomes available and before any other person is hired for such work.
If any person has been hired since the close of the hearing to perform such work,
5 The Respondent's brief argues that because Benson downgraded Gainey's ratings
after the events which occurred in Benson's office, this proves that he had been angered
by Gamey's offensive language attributed to him by Benson This is not necessarily so.
Benson could just as well, and I believe was, angered by Gainey's refusal to sign the docu-
ments presented to him by Benson and by Gainey's accusation that the real reason for his
discharge was his union activities and that Benson's economic explanation was false.
6 See Efco Manufacturing, Inc., 108 NLRB 245, enfg. 227 F. 2d 675 (C. A. 1) ; Vermont
American Furniture Company, 82 NLRB 408, enfg. 182 F. 2d 842 (C. A. 2).
436 DECISIONS - OF -.NATIONAL LABOR RELATIONS BOARD
it is further recommehded that isuchsperson-be -dismissed-aid'tliat Gainey forthwith
be offered reinstatement.
It shall also be recommended that the Respondent make whole Gainey for any
loss he may have suffered because of the discrimination against him by payment of
a sum of money equal to the amount he normally would have earned as wages from
the date of the discrimination to the date of the offer of reinstatment, or placement
on such preferential list, as the case may be, less his net earnings during said period,
with back pay computed on a quarterly basis in the manner established by the Board
in F. W. Woolworth Company, 90 NLRB 289. As it appears that he might ulti-
mately have been separated from employment even if he had not on August 10,
1955, been discriminatorily discharged, this possibility will be taken into considera-
tion in determining the back pay due him, in compliance with this recommendation.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices may reasonably be anticipated. It will
therefore be recommended that the Respondent be ordered to cease and desist from
in any manner infringing upon the rights guaranteed to its employees by Section 7
of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Reeves , Brothers, Incorporated , Bishopville Finishing Division , is an employer
within the meaning of Section 2 (2) of the Act, and is engaged in commerce within
the meaning of Section 2 (6) and (7) of the Act.
2. United Textile Workers of America, AFL-CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
3. By discriminating with respect to the hire and tenure of employment of Ernest
Gainey thereby discouraging the free exercise of rights guaranteed by Section 7 of
the Act and discouraging membership in and activities for the above -mentioned labor
organization , the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (3) of the Act.
4. By interfering with , restraining, and coercing its employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the Labor Management Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities in behalf of the United
Textile Workers of America, AFL-CIO, or in or on behalf of any other labor
organization of our employees, by discriminating in any manner in regard to
hire, tenure , or any term or condition of employment.
WE WILL offer to Ernest Gainey immediate and full reinstatement to his
former or substantially equivalent position without prejudice to any seniority
or other rights previously enjoyed, and make him whole for any loss of earn-
ings as a result of the discrimination against him as set forth in the Intermediate
Report and Recommended Order issued by the Trial Examiner of the National
Labor Relations Board.
WE WILL NOT coerce employees in the exercise of their rights to engage in or
to refrain from engaging in union activities by interrogating them as to their
union membership or activities in a manner constituting interference, restraint,
or coercion in violation of Section 8 (a) (1), by telling employees that the plant
will close if they become unionized , by making statements that the identity of
the leader of the employees in their union activities is known and that he will
be discharged therefor, by threatening employees with discharge for engaging in
union activities , and by requesting and sending employees to union meetings to
acquire and report information concerning what occurs at such meetings.
WE WILL NOT in any manner interfere with , restrain , or coerce our employees
in the exercise of the right to self-organization, to form labor organizations, or
BROWN WOOD PRESERVING COMPANY 437
to join or assist the above-named or any other labor organization , to bargain
collectively -through representatives of their own choosing , and to engage in other
concerted activities for the purpose of collective bargaining or other mutual
aid or protection , or to refrain from engaging in any or all such activities, except
to the extent that such rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment in conformity
with Section 8 (a) (3) of the Act.
All our employees are free to become or remain , or to refrain from becoming or
remaining members of any labor organization except to the extent above stated.
REEVES BROTHERS , INCORPORATED,
BISHOPVILLE FINISHING DMSION,
Employer.
Dated---------------- By----------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Brown Wood Preserving Company and Louisville District Council
of Woodworkers , United Brotherhood of Carpenters and Join-
ers of America, AFL-CIO, Petitioner . Case No. 9-RC-2756.
August 3, 1956
DECISION AND DIRECTION
Pursuant to the provisions of a stipulation for certification upon
consent election duly executed on April 20, 1956, by the Employer and
the Petitioner, an election by secret ballot was conducted on May 15,
1956, among certain employees of the Employer in the appropriate
unit. At the conclusion of the election, the parties were furnished
with a tally of ballots, which shows that of approximately 40 eligible
voters, 37 cast ballots, of which 18 were cast for the Petitioner, 18
against the Petitioner, and 1 ballot was challenged.
As the challenged ballot was sufficient to affect the results of the
election, the Regional Director, acting pursuant to the Board' s Rules
and Regulations, made an investigation of the issues raised by the
challenge, and on June 8, 1956, issued his report recommending that
the challenge be overruled and that the ballot be opened and counted.
On June 14, 1956, the Employer filed exceptions to the report.
Upon the entire record in this case, the Board makes the following
findings :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of Sec-
tion 9 (c) (1) and Section 2 (6) and (7) of the Act.
116 NLRB No. 60.