The Kendall Co.

National Labor Relations Board - Board Decisions

Feb 8, 1960

126 N.L.R.B. 502 (N.L.R.B. 1960)

502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the Respondents' action in successfully invoking Foreman Adams'
union obligation to refuse to let the employees under his supervision
work on millwork made by employers not under contract with the
United Brotherhood of Carpenters
On July 9, 1959, the Court of Appeals for the District of Columbia,
remanded this case to the Board for further supplementary proceed-
ings or dismissal of the complaint, as the Board should determine 2
The court was of the opinion that the evidence upon which the Board
relied was insufficient to support the Board's conclusion that Respond-
ent's business agent had utilized Miller's foreman, Adams, as a medium
of transmission for the purpose of instructing the employees of Miller,
the secondary employer, not to install cabinets manufactured by the
Del-Mar Cabinet Company The court accordingly remanded the
case to the Board for dismissal of the complaint or, in the alternative,
for the presentation of additional evidence to sustain the Board's
conclusion
The Board has reexamined the entire record in this case and finds
no additional evidence upon which a violation of the Act can be
imputed to the Respondent Accordingly, the Board accepts the
court's remand solely as the law of this case and will therefore dismiss
the complaint
[The Board dismissed the complaint ]
MEMBERS RODGERS and JENKINS took no part in the consideration of
the above Supplemental Decision and Amended Order on Remand
2 274 F 2d 564
The Kendall Company, Bethune Plant and Textile" Workers
Union of America, AFL-CIO. Case No 11-CA-1018 Febru-
ary 8, 1960
DECISION AND ORDER
On August 26, 1959, Trial Examiner A Bruce Hunt issued his
Intermediate Report in the above-entitled proceeding, finding that
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 Inter-
mediate Report attached hereto Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief
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 [Members Rodgers, Bean, and Fanning]
The Board has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed The rulings are
126 NLRB No 65.
THE KENDALL COMPANY, BETHUNE PLANT 503
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and brief, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the following additions and modifications.
1. The Trial Examiner found, and we agree, that Respondent
violated Section 8(a) (1) of the Act by the following conduct: (a)
Supervisor Roland's interrogation of Paul Watkins on December 6
and request that Watkins inform him concerning union meetings; (b)
Plant Engineer Yarborough's efforts to ascertain by surveillance the
identities of the employees who attended the union meeting at E. K.
Huckabee's cabin on the night of December 6, 1957; (c) Foreman
Appellof's interrogation of Paul Watkins and Paul Huckabee on
December 7; and (d) Foreman Appellof's interrogation of R. C.
Gainey on December 9.
However, we disagree with the Trial Examiner's finding that Re-
spondent violated Section 8 (a) (1) of the Act by the alleged attempts
of Barney Hendricks, another individual employed by Respondent, to
ascertain by surveillance the identities of the employees attending
the meeting at E. K. Huckabee's cabin on the night of December 6.
The record does not indicate that Hendricks has the authority to hire
or discharge employees or effectively to recommend such actions. The
record merely reflects that Hendricks is charged with the respon-
sibility of relaying the written job orders of various plant foremen
to the maintenance employees working with him. Accordingly, we
find that he does not responsibly direct these employees and is not
a supervisor within the meaning of the Act.' As the record does not
indicate that Respondent directed him to engage in his alleged act
of surveillance, and since we have found that he is not a supervisor,
we further find that Respondent has not violated Section 8(a) (1)
of the Act because of Hendricks' alleged conduct.
2. We agree with the Trial Examiner that Respondent violated
Section 8 (a) (3) and (1) of the Act by discharging Paul Watkins and
Paul Huckabee.
Watkins and Huckabee were both well known to the Respondent as
active union adherents. Each had attended the first union meeting
on the night of December 6, 1957, at the cabin of E. K. Huckabee, a
relative of Huckabee, which was under surveillance by Plant Engineer
Yarborough. Watkins and Huckabee were interrogated together the
following morning by their foreman, Hugo Appellof, who inquired
what had taken place at the meeting. They were again identified as
having attended the same meeting, when Foreman Appellof inter-
rogated their coworker, Gainey, on December 9, 1957.
After a union meeting on January 23, 1958, at a "Steak House" in
the nearby community of Hartsville, eight employees, including Wat-
i See Central Mutual Telephone Company, Inc, 116 NLRB 1663, 1665.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
kins and Huckabee, signed a paper which was addressed to Respondent
and recited, inter alia, that the signers had agreed to serve as part of
an organizing committee "to bring" the Union "into the Kendall
plant." This letter was received by Respondent, on January 27, 1958.
On January 24 and 25, 1958, Watkins and Huckabee solicited sig-
natures of employees to union cards. On January 25, 1958, Huckabee,
in the company of employees Farmer and Fred Watkins, was driving
an automobile in the vicinity of Bethune when they saw a fourth
employee, Horace Waters, also driving in the direction of the neigh-
boring town of McBee. Huckabee and his companions decided to
solicit a union card from Waters, so they overtook Waters and the
two autos stopped on the side of U.S. Highway No. 1. While the
four men were talking, Supervisor Roland drove past them, reduced
his speed, and then continued up the highway to a filling station
which was so nearby as to be visible to the four employees. At the
filling station Roland entered another car driven by Newsome and
Newsome came back along the highway and stopped at a point on the
other side thereof, directly opposite Huckabee and his companions.
After a few moments in which Roland observed the employees but
did not speak to them, Roland and Newsome continued on their way.
Watkins was discharged on January 30,1958, by Foreman Appellof,
who informed Watkins that this action was taken by Respondent for
economic reasons. On February 6, 1958, Appel] of also discharged
Huckabee, stating that he had to let Huckabee go because of lack of
work and on account of Huckabee's lack of versatility.
Respondent urges that, due to a general recession in the textile
industry over the winter of 1957-58, its Bethune plant management
was under pressure to cut down expenses. Pursuant to this end,
management engaged in a study which resulted in a plan whereby
through better utilization of its personnel the positions of Watkins
and Huckabee were eliminated.
The Trial Examiner concludes, and we agree, that the depressing
effect, if any, of the recession on Respondent's Bethune operations
cannot be determined from the present record. Although there were
layoffs in other departments, the number of employees engaged in
the manufacturing of diapers, a new operation, steadily mounted.
Also, some operations which had formerly been performed at other
plants were transferred to Bethune at about the same time.
Watkins was the putup department employee who was engaged in
the gathering and baling of waste rags, remnants, etc. Respondent
asserts that, since this work was on the decline, it was decided that the
gathering would be done by the janitorial service and the baling by
other putup department employees on a fill-in basis, thus eliminating
THE KENDALL COMPANY, BETHUNE PLANT 505
Watkins' position? Huckabee was the putup department employee
who operated the forklift machine on the first shift. Respondent also
urges that it was decided that this job would be accomplished on a
fill-in basis by other putup department employees and, thus, this posi-
tion was eliminated as well. The Respondent further contends that
since Watkins and Huckabee were not sufficiently versatile to be used
at other work in the putup department, and since there were no
openings at the time, anyway, they were both discharged.
We are unable to attach any meaningful significance to Respond-
ent's alleged reorganization of the baling and forklift work to be done
on a fill-in basis. Both functions continue to be a part of the work
of the putup department and the baling work, particularly, requires
a substantial amount of time each week, even though the gathering has
been transferred to the janitorial department. Moreover, from the
week ending February 21 until April 19, 1958, J. D. Winburne, an-
other putup department employee, was the only individual engaged
in baling work, averaging approximately 242/3 hours per week thereat
including 1 week in which he baled for 361/2 hours. Although each
of the two functions represented the principal effort, respectively, of
Watkins and Huckabee, neither task ever amounted to full-time work
for either of them. Watkins spent on the average of one-quarter of
his workweek (occasionally as much as half) engaged at other tasks
such as packing. Huckabee, by his own estimate, operated the fork-
lift truck about 70 to 80 percent of the time, employing the remainder
of his workweek at such jobs as making boxes and laying out, wrap-
ping, and packing cloth.
While Watkins was working as a baler he was occasionally helped
out by other employees when he fell behind. Thus, Respondent has
operated its putup department both before and after the discharges
of Watkins and Huckabee by shifting the work assignments of a
number of its personnel on an "as needed" basis. Inasmuch as
Watkins and Huckabee were among those frequently shifted, we can
perceive little, if any, substantial change resulting from the alleged
reorganization of their work and their subsequent discharges, other
2 The Trial Examiner has carefully analyzed the statistics with respect to the time
spent by Watkins at baling and gathering for 23 weeks prior to his discharge and the
statistics of the hours spent at baling only by other putup department employees for the
37 weeks after Watkins left The Trial Examiner concludes after analysis , using the
method of the least squares, that the baling and gathering work was generally on the
increase while Watkins was there and the baling work was also on the rise , at a sharper
rate of increase , after he left Respondent countered with an analysis which utilizes
only those statistics for the 16 weeks before and the 16 weeks after Watkins' discharge
and leads to the conclusion that the work was on the downslide for both periods.
However, we observe, as did the Trial Examiner , that no statistics are in evidence with
respect to the time spent by the janitorial service at gathering waste after Watkins left.
Accordingly , even accepting the Respondent 's method of analysis , we must conclude that
the record provides no basis for a finding that the baling and gathering work was
decreasing from the time Watkins was discharged until 16 weeks thereafter.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than to conclude that two general laborers have been replaced by
other general laborers.
Respondent urges that Huckabee's lack of success as a yarder op-
erator indicated that he was not sufficiently versatile to be kept on.
However, the record reflects that Huckabee had been transferred from
that position about a year previous to his discharge and, as has been
noted, engaged in a number of other tasks besides forklift work since
his transfer. As to Watkins, although his personnel record indicates
three or four errors in weighing and marking packages, this problem
had been largely corrected at the time of his termination. Watkins
had also filled in at other work in the putup department. The record
does not indicate that either Watkins or Huckabee was adversely
criticized for his performance at other work. Moreover the qualifica-
tions and training for a number of other assignments in the putup de-
partment were reviewed at the hearing and only a nominal period of
"on the job" training was shown to be prerequisite for satisfactory
performance at such work. Accordingly, we do not conclude that
either Watkins or Huckabee was insufficiently versatile for general
work in Respondent's putup department, particularly when each had
performed at such general tasks without criticism before his discharge.
Respondent's personnel records also cast doubt upon its contention
that there were no other openings in the putup department at the time
Watkins and Huckabee were discharged. Respondent contends that
three other employees were discharged or went on military leave dur-
ing January and February 1958 and, like Watkins and Huckabee,
allegedly were not replaced. Respondent's records indicate that 44
employees worked in its putup department during the first 4-week
period of 1958, that 41 worked during the second 4-week period, and
41, again, in the third. Although Respondent placed in evidence a
separate record of separations through March 1958 (i.e., through the
third 4-week period), no separations in the putup department, ex-
cept those of Watkins, Huckabee, and of three other employees were
shown to have occurred during the first three 4-week periods of 1958.
Hence, if Respondent's record of separations without replacement is
accurate, Respondent's putup department complement in the third 4-
week period of 1958 should have stood at 39 (44 minus 5) and not 41,
as Respondent's records reflect. Therefore, during the first two 4-
week periods of 1958, two employees were either hired or transferred
into the putup department from other departments, indicating that
two vacancies were filled at about the same time Watkins and Huckabee
were discharged.
Respondent placed in evidence only one document with respect to
its management study. This was a memorandum, dated January 6,
1958, from Plant Manager Gove to Plant Manager Delk, suggesting
THE KENDALL COMPANY, BETHUNE PLANT 507
that Respondent's foremen be impressed with the need for effecting
personnel savings. This memorandum specifically referred to the
possibility of eliminating temporary jobs (the memorandum stating
that two such jobs had already been dissolved) and also recommended
that positions vacated by resignation should be absorbed by shifting
work assignments. Respondent does not urge that Watkins and
Huckabee, or the positions they occupied, were temporary and neither
resigned. No other formerly nontemporary job assignments were
alleged to have been eliminated nor their incumbents discharged as
the result thereof, subsequent to this memorandum, except the posi-
tions of Watkins and Huckabee.
The decision to eliminate the position of Watkins was approved in
two memorandums, dated January 27, 1958, the same day as Re-
spondent received the Union's letters of January 23, 1958, announc-
ing its intention to organize Respondents' plant. The decision to
eliminate Huckabee's position was made in the first week of February
1958.
Hence the record indicated that Respondent took no action to
eliminate any assignments, which it considered nontemporary, until
the union activity, which had begun in November and December 1958,
flared up again late in January. When it did act, Respondent chose
for reorganization the assignments of two principal and well-known
union protagonists, Watkins and Huckabee. In view of Respondent's
antiunion animus, its knowledge of the union activities of Watkins
and Huckabee, the timing of their discharge in relation to the Union's
announcement of its decision to organize Respondent's plant, and the
absence of any persuasive evidence that their discharge was motivated
by economic considerations, we agree with the Trial Examiner that
the reason for the discharge of Watkins and Huckabee was their
union activity.
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
Relations Board hereby orders that the Respondent, The Kendall
Company, Bethune Plant, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in Textile Workers Union of Amer-
ica, AFL-CIO, or in any other labor organization of its employees,
by discharging any of its employees because of their concerted or
union activities, or in any other manner discriminating in regard to
their hire or tenure of employment or any term or condition of em-
ployment.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Engaging in or attempting to engage in surveillance of con-
certed or union activities.
(c) Requesting employees to inform management concerning the
union activities of their fellow workers.
(d) Interrogating employees concerning union affiliation or activi-
ties in a manner constituting interference, restraint, or coercion in
violation of Section 8 (a) (1) of the Act.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist Textile Workers Union of
America, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bargain-
ing or other mutual aid or protection as guaranteed in Section 7 of
the Act, and to refrain from any and all such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Paul Watkins and Paul Huckabee immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights or privileges.
(b) Make whole Paul Watkins and Paul Huckabee for any loss of
pay each may have suffered as the result of Respondent's discrimina-
tion against him in the manner set forth in the section of the Interme-
diate Report entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of backpay due
and the rights of employment under the terms of this Order.
(d) Post at its plant in Bethune, South Carolina, copies of the
notice attached hereto marked "Appendix." 3 Copies of said notice,
to be furnished to the Regional Director for the Eleventh Region,
shall, after being duly signed by the Respondent's representative, be
posted by it immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to its employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
s 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 "
THE KENDALL COMPANY, BETHUNE PLANT 509
(e) Notify the Regional Director for the Eleventh Region, in
writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
IT IS I-TRTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges a violation of Section 8(a) (1) of the Act
in connection with the activities of employee Hendricks.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in Textile Workers
Union of America, AFL-CIO, or in any other labor organization
of our employees, by discharging any of our employees because
of their concerted or union activities, or in any other manner
discriminating in regard to their hire or tenure of employment
or any term or condition of employment.'
WE WILL NOT engage in or attempt to engage in surveillance of
concerted or union activities.
WE WILL NOT request any of our employees to inform us con-
cerning the union activities of his fellow workers.
WE WILL NOT interrogate employees concerning union affiliation
or activities in a manner constituting interference, restraint, or
coercion in violation of Section 8(a) (1) of the Act.
VVE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist Textile
Workers Union of America, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of
their own choosing, or to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment
as authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL offer Paul Watkins and Paul Huckabee immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights or
privileges.
WE WILL make whole Paul Watkins and Paul Huckabee for
any loss of pay they may have suffered as a result of our discrimi-
nation against them.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain, or to refrain from
becoming or remaining, members in good standing of Textile `Yorkers
Union of America, AFL-CIO, or any other labor organization.
THE KENDALL COMPANY, BETHUNE PLANT,
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , based upon the complaint of the General Counsel and the
answer of the Respondent, The Kendall Company, Bethune Plant, involves alleged
violations of Section 8(a)(1) and (3) of the National Labor Relations Act, 61 Stat.
136 A hearing was conducted by the duly designated Trial Examiner at Camden,
South Carolina, on August 26 and November 5 and 6, 1958, and April 14, 1959,
at which all parties were represented.
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
The Respondent , a Massachusetts corporation , operates a textile finishing plant
at Bethune, South Carolina, from which it annually ships finished products valued
in excess of $100,000 to points outside South Carolina. I find that the Respondent
is engaged in commerce within the meaning of the Act.
II. THE UNION
Textile Workers Union of America , AFL-CIO, herein called the Union, is a labor
organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The issues
Our issues are whether the Respondent discharged and refused to reinstate two
employees, Paul Watkins and Paul Huckabee, in violation of Section 8(a) (3) of the
Act, and whether the Respondent interrogated employees concerning union activities,
engaged in surveillance of such activities, and otherwise interfered with , restrained,
and coerced employees in violation of Section 8(a) (1).
B. Chronology of events
The Respondent's plant is located in the town of Bethune, South Carolina, which
had a population of 639 in 1950 according to an official State highway map which
is an exhibit. During January 1958, the earliest month for which there are figures
in the record, the number of production and maintenance employees at the plant
was 195.
On November 14, 1957, union leaflets were distributed to employees. Paul Catoe
received one and posted it inside the plant a day or so later. Foreman Francis
Wobecky removed the leaflet and asked Catoe if he had posted it. Catoe answered
in the affirmative and Wobecky said that they could "iron out [their] own troubles."
Ralph Gainey also received a leaflet. His foreman , Hugo Appellof, asked Gainey
if he had received one and Gainey responded affirmatively. Appellof said that he
did not "see any cause for the union to try to come in the plant," that grievances
should be brought to the attention of foremen , and that it "was a pain to operate
with the union in the plant." 1
' These findings are based upon the uncontradicted testimony of Catoe and Gainey.
W-obecky was not a witness . Appellof , a witness for the Respondent, did not testify con-
cerning the conversation with Gainey.
THE KENDALL COMPANY, BETHUNE PLANT 511
During late November, arrangements were made to have an organizational meet-
ing on the evening of December 6 at a cabin in the country. During the morning
of that day, Supervisor John Roland spoke with Paul Watkins, an employee whose
discharge is discussed below. Roland asked if a union meeting was to be held that
night at the cabin and Watkins, who was unaware of the arrangements, answered
negatively. Roland also asked whether there had been any union meetings, and
Watkins said that he knew of none. There was further discussion about the Union
in which Roland asked how Watkins felt about it, but the record does not disclose
the details. The conversation ended with Roland's request that Watkins tell him
anything that Watkins should hear about union meetings and Watkins' answer that
Watkins would do so .2
That night about 10 of the Respondent 's employees including Watkins and Paul
Huckabee, another employee whose discharge is discussed below, met with repre-
sentatives of the Union at a cabin which is used primarily for fishing trips and which
is owned by a relative of Huckabee. Representatives of the Respondent were in the
area. As Huckabee and Gainey were driving eastward on County Road No. 521
from Gainey's home to the cabin, and as they arrived at a point where the county
road intersects with two dirt roads, one going northward to the cabin and the other
southward into a field, they noticed an automobile parked on the field road near
the intersection and facing northward. Instead of turning northward toward the
cabin, Huckabee and Gainey turned into the field road so that the lights of Hucka-
bee's automobile shone directly upon the front of the parked automobile. It ap-
peared to be unoccupied and Huckabee and Gainey walked around to its rear in
order to learn the license number. As they returned to Huckabee's automobile,
they noticed that a man had sat upright in the parked automobile. They recognized
Barney Hendricks, a foreman at the plant.3 They did not speak to Hendricks, nor
did he speak to them. They departed, but instead of going directly to the cabin they
drove eastward along the county road to a point where they met union representa-
tives and other employees who were en route to the cabin. After a discussion
concerning whose automobiles should be used to transport persons to the cabin,
Huckabee and Gainey got in the automobile of William Farmer, another employee.
As they drove westward on the county road toward the dirt road to the cabin, they
passed the automobile in which they had seen Hendricks. It was traveling in an
easterly direction with Hendricks at the wheel.4
Another supervisor whb was in the vicinity of the cabin is F. K. Yarborough, the
plant engineer . As Huckabee, Gainey, and Farmer left the cabin after the meeting
and drove southward along the dirt road to its intersection with the county road,
they saw the lights of an automobile going west on the county road. Farmer's
automobile came to a halt at the intersection to await the passing of the oncoming
automobile. As the latter went by, the lights of Farmer's automobile shone directly
upon it and the three employees saw that Yarborough was driving the Respondent's
station wagon and was accompanied by two men. Farmer then drove onto the
county road and proceeded eastward to the place where Huckabee's automobile had
been parked. Huckabee and Gainey entered that automobile and drove westward
on the county road toward the home of Gainey, a few hundred yards past the
2 These findings are based upon the uncontradicted testimony of Watkins. Roland was
not a witness.
3 The General Counsel contends , and the Respondent denies, that Hendricks is a super-
visor within the meaning of the Act. Hendricks was not a witness land thus did not
testify as to his status. The evidence on the subject consists of testimony for the
General Counsel Eddie Cook, maintenance mechanic, testified that there were about 10
maintenance employees who were directed in and assigned to work by Hendricks, and that
requests for their services came from the foremen of departments where repairs were
necessary. James Montgomery, a maintenance mechanic, testified that he worked under
Hendricks whom he regarded as his supervisor in the maintenance shop but that he
worked elsewhere in the plant only upon the request of foremen for repairs. W. A.
McPherson, an oiler and greaser, testified that he worked under Hendricks who told him
what work to perform. McPherson also testified that at a conference attended by a
number of employees, a representative of management, whose identity McPherson could
not recall , said that Hendricks was the maintenance supervisor . Hendricks has Inter-
viewed prospective maintenance employees or has been present when someone else con-
ducted the interviews. Although It does not appear then Hendricks has authority to hire
or discharge, I find that he responsibly directs the work of maintenance employees, that
he is held out by management as a supervisor, and that he is so regarded by employees
4 These findings are based upon the uncontradicted testimony of Huckabee and Gainey.
Hendricks was not a witness.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intersection of the dirt road which leads to the cabin. As they drove, they passed
the station wagon which had been turned around and was going eastward. At
Gainey's home, he and Huckabee spoke with their wives and prepared to go to a
basketball game. Before they left the house, however, the station wagon passed
by headed west and, a few minutes later, it passed again headed east. As Gainey,
Huckabee, and their wives were going to the game, they passed the station wagon
which was headed west.
The cabin is owned by E. K. Huckabee, who is not an employee of the Respondent.
He attended the meeting and afterwards he drove alone in his automobile on a
State road toward Bethune. Watkins followed in his auto. Watkins noticed that
the lights of an automobile, parked on a side road facing the State road, were turned
on just as he passed by. The auto pulled onto the State road behind Watkins.
Watkins overtook E. K. Huckabee and they stopped by the side of the road. As
the automobile which had been following Watkins passed by, he saw that it was
the Respondent's station wagon or one like it. Watkins and E. K. Huckabee
pursued the station wagon but did not overtake it. Watkins had not recognized
the driver, but a short while later, in Bethune, he saw Yarborough driving the
Respondent's station wagon, accompanied by two men.5
On the next day, December 7, Foreman Appellof talked with Watkins and Paul
Huckabee. Appellof asked them about the identities of union representatives at
the meeting and the rate of pay and holidays which those representatives had said
the employees should receive. Appellof also said that they should "lay off the
union. It is no good." Watkins spoke of the activities of Hendricks and Yar-
borough, and Appellof asked if Watkins and Huckabee were sure that they had
recognized Yarborough. Upon their affirmative reply, Appellof said that Yar-
borough and Hendricks "shouldn't have been up there." 6
On December 9, Appellof spoke with another of his subordinates, Gainey.
Appellof asked whether Gainey had attended the meeting and, upon Gainey's affirma-
tive response, Appellof asked the names of other persons who attended. Gainey
answered, in part, that he, Watkins, Paul Huckabee, Farmer, Catoe, and "two union
men" had been present. At the time of the hearing, Gainey could not relate the
complete list of names which he had given to Appellof because he could not re-
member everyone who had been there.?
On January 23, 1958, nine employees plus union representatives met at a "Steak
House" in the nearby town of Hartsville. Eight of the employees signed a paper
addressed to the Respondent which recited inter alia that the signers had agreed to
serve as part of an organizing committee "to bring" the Union "into the Kendall
plant" and that "the time has come when it is necessary for all workers to join
together" to solve their mutual problems. Watkins and Paul Huckabee were among
the signers. The paper was mailed to the Respondent and was received on the next
Monday, January 27.
On Friday, January 24, Watkins solicited employees to join the Union. He
testified credibly that on that and the next day he obtained 12 to 15 signatures of
employees to union cards, but that other employees were as prominent in the
Union as he. On those 2 days Paul Huckabee also solicited signatures of employees.
In company with Farmer and a second employee named Watkins (Fred Watkins),
Huckabee solicited signatures of employees at their homes and wherever he saw
them in Bethune. On January 25, Huckabee, Farmer, and Fred Watkins saw a
fourth employee, Horace Waters, leaving town for the nearby community of McBee
where Waters lived. They decided to solicit Waters' signature and within 3 miles
5 The findings concerning Yarborough's movements in the station wagon are based upon
the uncontradicted testimony of employees. Yarborough did not testify.
9 These findings are based upon the credible testimony of Watkins and Huckabee.
Appellof, a witness for the Respondent, was not asked specifically about the conversation.
He testified, however, that he had no "indication of any sort" that Watkins and Huckabee
were interested in the Union until January 27, 1958, some weeks later, when the Re-
spondent was informed that they were members of an organizing committee. This testi-
mony by Appellof must be rejected. It is contradicted by the testimony of Watkins and
Huckabee. It is also contradicted by the testimony of Gainey as set out in the next
paragraph Moreover, in view of the attempts at surveillance by Supervisors Hendricks
and Yarborough, and in view of the efforts of Supervisor Roland to obtain from Watkins
information about the Union, I cannot believe that Appellof remained so long in 'ignorance
of the interest which Watkins and Huckabee, his subordinates, showed in the union
activities.
7 The findings concerning this conversation are based upon the credible testimony of
Gainey. Appellof was not asked about the conversation.
THE KENDALL COMPANY, BETHUNE PLANT 513
they overtook him. Both cars stopped on the side of U.S. Highway No. 1. As the
four employees talked, Supervisor Roland came along in a station wagon, reduced
his speed until he was traveling "fairly slow," and continued up the highway toward
McBee. But within a short distance, still visible to the four employees, Roland
turned into a filling station where he entered an automobile being operated by a
man named Newsome. They drove back down the highway and Newsome stopped
the automobile at a point immediately across from the four employees. After some
moments in which Roland observed the employees but did not speak to them,
Roland and Newsome continued on their way.8
On January 27 the Respondent received the paper which eight employees had
signed on January 23. On the same day, the Respondent posted on its bulletin
board a notice in which it said that employees had inquired concerning the Re-
spondent's position toward the organizational activity. The notice expressed oppo-
sition to union representation of employees. According to the Respondent, the
notice had been prepared some days earlier and was posted before the Respondent
received the paper which contained the eight employees' signatures.
On January 30 the Respondent discharged Watkins. On February 6 it discharged
Huckabee. The discharges are discussed below.
C. Interference, restraint, and coercion
With respect to the allegation that the Respondent engaged in surveillance of
union activities, we have seen that the General Counsel's evidence is uncontradicted.
I conclude that Hendricks and Yarborough sought to learn the identities of em-
ployees who attended the meeting at the cabin. Neither Hendricks nor Yarborough
lives on the county road. Hendricks was parked where he could see the automo-
biles, if not all occupants, which went to the cabin, and since we are concerned here
with a small plant in a small town, it is a reasonable inference that Hendricks was
acquainted with the automobiles of a number of employees. It is a reasonable
inference too that Hendricks tried to conceal his presence upon the approach of
Huckabee and Gainey by lying upon the seat when the lights of Huckabee's auto-
mobile shone directly upon the front of the auto which he occupied, and it also is
reasonable to infer that Hendricks left the scene because his presence had been
discovered. In the absence of any explanation by Hendricks, I must draw those
inferences. Turning to the acts of Yarborough, in the absence of any explanation
by him, I must infer that his purpose in driving along the county road, first in one
direction and then another, reversing directions several times, was to recognize
employees or the automobiles of employees in the vicinity of the union meeting.9
I find that the Respondent violated Section 8(a)(1) of the Act by the efforts of
Hendricks and Yarborough to ascertain the identities of employees who attended the
meeting in the cabin.
I find that the Respondent also violated Section 8(a) (1) by Roland's inquiries of
Watkins on December 6 and by his request that Watkins inform him concerning
union meetings, by Appellof's inquiries of Watkins and Huckabee on December 7,
and by Appellof's inquiries of Gainey on December 9.
D. The discharge of Watkins
Paul Watkins was hired during November 1956, a few months after the plant
began operations. He worked in the putup department where goods are inspected
and packaged. His principal work was to gather and bale salvagable materials, such
as paper, burlap, and rags and other cloth, which he gathered throughout the plant,
sorted, and then baled by machine. In addition, he performed miscellaneous tasks
such as packing cloth, wrapping rolls of burlap, and driving a forklift truck. Ac-
cording to statistics which the Respondent produced, during the last 23 weeks of
Watkins' employment, he worked 6841/2 hours at gathering and baling, and 232'/2
hours at other tasks, a ratio of about three to one.
During the 14 months of Watkins' employment, he made a few errors in baling.
According to Foreman Appellof, he "got after" Watkins six or eight times concerning
8 These findings are based upon the uncontradieced testimony of Huckabee and Farmer.
As already said, Roland did not testify Newsome was not a witness.
9 The Respondent concedes that Yarborough was a supervisor, but defends with respect
to Hendricks by asserting that Hendricks was not a supervisor. I have rejected that
defense . Moreover , even if Hendricks were a rank-and-file employee , upon the evidence
here I would hold that he was an agent of the Respondent in an effort to ascertain the
identities of employees who attended the meeting.
554461-60-vol. 126-84
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
errors in incorrectly weighing the baled goods or in baling two kinds of cloth in the
same bale. Watkins' errors came to the Respondent 's attention when customers
complained that certain bales were below the listed weights or that certain bales
contained mixed goods, some of a cheaper quality than had been ordered. On
November 4, 1957, David Schein Company wrote a letter of complaint to the
Respondent , saying that for the first time in their business relations the Schein
Company had received two bales which were represented as weighing a total of
139 pounds more than the correct weights.'° In addition , the record contains three
intraplant memorandums which were written by Foreman Appellof concerning
alleged complaints from John R . Lyman Company, but the Respondent did not
produce any letter of complaint from that company. The first of Appellof's mem-
orandums , dated October 12, 1957, relates to two bales of mixed goods . Appellof
testified that when he discussed the matter with Watkins the latter was unable to
explain the error and "did not know that this was wrong ." The second and third
memorandums , dated January 2 and 15, 1958 , respectively , relate to an alleged
supplementary complaint from Lyman that all 15,000 pounds of goods which Lyman
had on hand were mixed goods. " These memorandums recite that Appellof had
"talked to [Watkins ] and tried to make him realize the seriousness of this error"
and that Appellof had told Watkins that the Respondent "could not tolerate any
more complaints and that serious steps would be taken if this happens again." On
the other hand, Watkins testified that upon "a couple of" occasions Appellof told
him that he had made a mistake and to try not to make any more. In view of my
inability to credit Appellof 's testimony in certain instances plus the fact recited in
the next paragraph that Appellof , upon discharging Watkins, said that Watkins had
performed his work satisfactorily , I find that Watkins' errors in baling were not so
numerous or so serious as to make him an unsatisfactory employee.
As we have seen, Watkins was one of the relatively few employees who attended
the two organizational meetings and solicited employees to join the Union. On
January 30 , he was discharged by Appellof who told him that business was "slack"
and that the job of regular baler was being eliminated . Watkins replied that he had
been "kind of" anticipating a discharge because he had "come out" for the Union,
and Appellof denied that Watkins' union activities constituted the reason , repeating
that business was slack and that the job was being eliminated . Watkins asked if he
had performed his work satisfactorily and Appellof answered affirmatively. 12
The Respondent 's position is that business considerations dictated the discharge
of Watkins . The Respondent asserts that in late 1957 a recession in the textile
business decreased the work at the plant and caused a careful examination of the
plant's operations in an effort to curtail costs. The Respondent asserts too that
Appellof, as one of the foremen who participated in that examination , observed
during December that the quantity of salvage was decreasing because in the 11/2
years that the plant had been in operation the employees had gained experience and
the electronic cutting machines were operating more efficiently . According to the
Respondent , the salvage from the machines "dropped down tremendously" and
during November or December Appellof proposed to his superiors that the salvage
be gathered throughout the plant by janitors who would bring it to the putup depart-
ment where various employees would bale it in their spare time. Following Ap-
pellof's proposal , says the Respondent , there were a number of discussions among
management personnel before it was determined to adopt the proposal and to lay
off Watkins. Although in the last 23 weeks of his employment Watkins had spent
25.4 percent of his time at tasks other than gathering and baling , and although he
had more seniority than some employees , having been at work since a few months
after the plant began operations , the Respondent asserts that he was unqualified for
'd The Respondent offered evidence that Watkins' errors in weights may have resulted
from weighing two bales simultaneously and incorrectly subtracting the weight of one
from the combined weight of the two , 'instead of weighing each bale separately. I can
visualize a situation in which the weighing of two bales together could result in the
expenditure of less labor , but the record does not disclose why it would have been
advantageous to Watkins to weigh two bales together
"The Respondent did not support Appellof 's memorandums by offering In evidence the
written complaint , which it assertedly had received , that "all of the 15,000 pounds"
consisted of mixed goods
17 The findings concerning this conversation are based upon Watkins' credible testimony.
Appellof testified that he told Watkins that economic reasons were the basis for the
discharge and that Watkins "didn't have much to say at all, he just took it and that
was it."
THE KENDALL COMPANY, BETHUNE PLANT 515
other work and, in any event , that there was no job available for him 13 The
Respondent asserts too that Watkins was not recalled later in 1958 when vacancies
occurred because he was unsuitable.14
The Respondent produced various statistics in support of its contention that
business considerations dictated Watkins' discharge . Other statistics were produced
by stipulation . The statistics are analyzed below, but first it should be noted that
Watkins' errors in baling are not advanced as a reason for the alleged decision to
eliminate the job of regular baler. Those errors are advanced instead as a reason
for not transferring Watkins to another job and not later recalling him when business
conditions improved.
The first statistics to be considered are those which were stipulated . In January
1958, the month in which Watkins was discharged , there were 195 production and
maintenance employees . During the following few months , the number moved to
a low of 189 in March and a high of 207 in May. In explanation of a decrease of
only 6 employees and a later increase of 18 during a recession , the Respondent says
that one operation at the plant, the manufacture of diapers , was new and that the
number of employees therein steadily mounted whereas in other departments there
were layoffs . It says too that some operations formerly performed at its other plants
were transferred to the Bethune plant. I conclude that the extent if any, to which
the Bethune plant was affected by a business recession cannot be determined on the
record.
The remaining statistics were produced by the Respondent . Its business records
are maintained on an annual basis of 13 periods of 4 weeks each.15 In support
of its contention that there was a decrease in the work of the putup department,
where Watkins worked, the Respondent asserts that the total employment in that
department during period 13 of 1957 was 45, during period 1 of 1958 was 44, and
during each of the next two periods was 41. The Respondent asserts also that no
one was hired or transferred to work in that department during the 16 weeks covered
by those 4 periods and that the following employees who worked there were sepa-
rated on the dates given : layoff of Olin Taylor on January 3; military leave of
Hazel Phillips on January 12; layoffs of Watkins and Paul Huckabee on January 30
and February 7, respectively; and military leave of Gerald Reese on February 10.
The defect in this proof is that there is no way in which the numbers of employees
can be reconciled with the data showing separations . If both the numbers and the
data are accurate , an employee or employees must have been hired or transferred
to work in that department.
Additional statistics relate to the hours per week which Watkins spent during
the last 23 weeks of his employment at the job of gathering and baling salvage, on
the one hand , and at miscellaneous tasks, on the other. Still additional statistics
relate to the 37 weeks following Watkins' discharge, but the Respondent 's testimony
raises a question whether the statistics for the 37 weeks are complete. We will
examine that testimony and then analyze the statistics. As has been said, the
Respondent contends that Foreman Appellof recommended, and that his superiors
approved, that the janitors take over the task of gathering the salvage. Appellof
13 There is testimony that Watkins is unsuitable for another type of job because he is
a very big man who would have been unable to go around , over, or under equipment fast
enough But Appellof , who proposed that Watkins be discharged , 'according to the
defense , testified that Watkins was unqualified for other work because of the errors which
he had made in bating.
14 The only criticism which the Respondent voiced to Watkins about his work related to
the errors in baling . He was not criticized for his work in packing cloth. At the time
of the hearing, a new employee was performing that work.
15 The concluding dates of various 4-week periods are as follows :
1957 Periods Date Ended 1958 Periods Date Ended
9------------------- September 7 1-------------------- January 25
10---------------------- October 5 2------------------- February 22
11-------------------- November 2 3---------------------- March 22
12------------------- November 30 4----------------------- April 19
18------------------- December 28 5------------------------ May 17
6----------------------- June 14
7------------------------ July 12
8---------------------- August 9
9------------------- September 6
10---------------------- October 4
11-------------------- November 1
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that upon Watkins' layoff, the janitors did so.16 On the other hand, Person-
nel Manager Janey Cline testified that the statistics for the 37 weeks cover all
employees who did the work which Watkins had done in connection with baling.
Thus, Cline appears to have testified that the statistics cover both baling and gather-
ing. If Cline's testimony is accurate, the statistics for the 37-week period furnish a
basis for comparison with Watkins' work during the 23-week period, but a reason
for Appellof's recommendation that Watkins' employment be terminated, i.e., that
janitors gather the salvage, disappears.17 On the other hand, if Appellof's testimony
is accurate, the basis for comparison is less favorable to the Respondent because the
statistics for the 37-week period would be incomplete by the extent to which janitors
gathered the salvage, a substantial figure.18 Likely, the facts lie somewhere between
the testimony of Appeliof and Cline.
We turn now to an analysis of the statistics for the separate periods of 23 and 37
weeks.19 The first statistics show that Watkins' average workweek was 39.87 hours,
of which 74.6 percent was spent in gathering and baling and the remainder was
spent at other tasks. The statistics for the succeeding 37 weeks do not permit one
to make similar computations concerning employees who baled but they do permit
other comparisons. First, Watkins gathered and baled for 6841/2 hours, an average
of 29 76 hours per week. For the succeeding 37 weeks, the statistics show a total
of 1,095 hours, a weekly average of 29.59. Second, bearing in mind that the
Respondent operates on a basis of 13 periods of 4 weeks each, the readers' atten-
tion is called to Appendixes A, B, and C, attached. Appendix A covers Watkins'
gathering and baling during periods 9 through 13 in 1957 and period 1 in 1958.20
The vertical column of numerals along the left-hand margin shows hours per week.
The horizontal row of numerals, 9 to 13, inclusive, and 1, denotes those 4-week
periods. The broken line shows the average hours worked per week at gathering
and baling during each of those periods. The straight line, running diagonally
upwards from 25.226 to 33.78 hours, was fitted to the data by the method of least
squares and reflects the slope of the increase in the amount of gathering and baling
during 22 of Watkins' 23 weeks. The last week of the 23-week period, in which
Watkins worked 4 days, is included within Appendix B because a new 4-week
period in the Respondent's operations began at that point. Appendix B, drawn to
the same scale, covers the same subject matter for Watkins' final week plus the
succeeding 37 weeks 21 Appendix C shows the relation to each other of the sloping
lines on Appendixes A and B.
Do the Respondent's statistics plus its testimony support its contention that there
was a decline in the need for Watkins' services because efficient machines and
experienced employees had lessened the quantity of salvage to be baled? The
answer must be in the negative. First, the average hours per week in the 37-week
period, 29 59, were about the same as those in the 23-week period, 29.76. The
difference is a mere 2 minutes a day. Second, Appendix C shows a somewhat lower
rate of increase for the hours which Watkins spent in gathering and baling, on the
one hand, than for the hours which other employees spent in baling, or in gathering
and baling, after Watkins' discharge. This would not be so if it were true that
efficient machines and experienced employees had done much to decrease the quan-
tities of salvage. Moreover, after Watkins' discharge, if janitors were gathering
selvage to any extent not shown in the statistics, the average hours per week for the
37-week period would be even greater. Thus, although the beginning point of
11 Appellof also testified that the janitors took over the task sometime before Watkins'
layoff, but he later changed his testimony to say that the janitors did not do so until
the time of the layoff
17 The document which contains the statistics for the 37-week period lists J. D Winburn
and Curtis Davis as the sole employees who engaged in the work for, respectively, a
period of 9 consecutive weeks and another period of 4 consecutive weeks Neither
Winburn nor Davis is a janitor.
19 Appellof's testimony indicates that the time required for gathering is approximately
the same as that required for baling. He testified that Watkins' work during the last
week or two of the 23-week period, when Watkins did no work other than gathering
and haling, was about evenly divided between each task
10 The latter statistics cover a period of 38 weeks, 1 of which was the plant's vacation
period.
"'The calculation for period 9 Is based upon statistics for 2 weeks only, the first and
second of the 23 weeks.
21 Period 7 reflects the work of 3 weeks, the vacation having occurred during that
period. Period 11 also reflects only 3 weeks' work, the last weeks for which the Re-
spondent submitted statistics.
THE KENDALL COMPANY, BETHUNE PLANT 517
Appendix B is lower than the ending point of Appendix A, and although Appendix
B shows a decline to a low in period 5, the explanation may lie in the Respondent's
contention and in Appellof's testimony that the gathering of salvage was done by
janitors . If it required as much time to gather as it did to bale, as Appellof's
testimony indicates , and if janitors were gathering while nonjanitors such as Winburn
and Curtis Davis were baling, we have a simple explanation for low points on
Appendix B . In any event , Appendix A shows that at one time Watkins' work
declined to approximately the same low point as is shown on Appendix B. He was
not discharged then , nor was he discharged later during periods 12 and 13 when
another decline was underway . In fact , Appendix A shows that the time spent by
Watkins at gathering and baling rose and fell and that it was on the rise at the
time of his discharge . Third, the maximum time in which a comparison can be
made between the statistics for 1957 and a corresponding period in 1958 is a 9-week
period from the latter part of August to the latter part of October . In 1957, while
Watkins was at work , the total hours were 230. In 1958, after his discharge, the
total hours were 319. The increase is about 39 percent. The fact is illustrated by
comparing periods 9 through 11 on Appendixes A and B.
We have one more set of statistics to consider . It relates to the quantities of
salvage which the Respondent says were shipped from the plant during its business
periods 9 through 13 in 1957 and I through 6 in 1958. Period 1 of 1958 is the last
full period in which Watkins worked . The figures are:
Period Pounds shipped
1957 10-------------- 50,734
11-------------- 45,088
12-------------- 35,004
13-------------- 55,799
1958 1-------------- 39,267 (Watkins worked through this period)
2-------------- 31,792 (Watkins worked 4 days in this period)
3-------------- 40,972
4-------------- 42,687
5-------------- 35,118
6-------------- 36,880
Comparing the total shipments in the first five periods with the total shipments
in the remaining five periods , we see that in the latter periods there was a decrease
of more than 38,000 pounds, but this fact does not prove the Respondent 's conten-
tion that there was a decrease in baling. The salvage is sold, and factors such as
customers ' needs and a competitive market are involved. The quantity of salvage
which is shipped in a particular 4-week period is unrelated to the hours spent in
gathering and baling during the same period . Thus, in period 10, when 50,734
pounds were shipped, only 82 hours were worked, whereas in period 1, when a
smaller quantity, 39,267 pounds , were shipped , 149/ hours were worked . Next, in
periods 13 and 2 , when the hours of work were nearly identical , 106 and 1051/z,
respectively, the shipments were 55,799 and 31 ,792 pounds , respectively . Moreover,
in periods 12 and 5, where the figures for shipments are nearly the same, the hours
worked were 119 and 81 , respectively . Finally, I cannot find any meaningful rela-
tionship between the pounds shipped in one period and the hours worked in any
other period. I conclude that a simple reason for baling in the absence of orders
from customers is the matter of space, particularly where the goods are rags,
paper, etc.
I find that Watkins was discharged because of his union activities . On the one
hand , we have the General Counsel's proof that Watkins was one of the relatively
few employees who attended both organizational meetings of the Union and who
solicited employees to join, that the Respondent was informed that Watkins had
become a member of the organizing committee , that Supervisor Roland asked
Watkins to keep Roland informed about union meetings , that Foreman Appellof
inquired of Watkins concerning events at the meeting in the cabin , and that the
Respondent 's hostility toward the Union is also shown by invalid inquiries and by
attempts of management personnel to spy upon employees who went to the meeting
at the cabin . On the other hand , we have detailed figures which the Respondent
submitted in an effort to establish that there was no need for Watkins ' services
because the work of gathering and baling salvage was on the decrease, and we
have seen that those figures refute the Respondent 's contention. In view of the
collapse of the defense , I am impelled to decide that Appellof's proposal that Watkins
be discharged and that other employees handle the gathering and baling was a ruse
to get rid of one of the active union supporters . I find that the Respondent violated
Section 8 ( a)(3) and ( 1) in discharging Watkins.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. The discharge of Huckabee
Paul Huckabee began work for the Respondent during October 1956, as the
operator of a yarder, a machine which measures cloth by the yard. One duty of the
operator is to inspect the cloth for defects as it is measured. During the next few
months, Huckabee sustained a back injury which necessitated an absence from work
for about 2 weeks. During the same period, he was transferred to a second yarder
on which the inspection work was different and he allowed certain defective cloth
to pass undetected. A complaint from a customer followed. During February
1957, by which time Huckabee was dissatisfied with the operator's job because it
caused him to have headaches, he was transferred to a job as the forklift truck
operator The forklift is an electrically powered vehicle which lifts and transports
materials upon forks attached to it As operator of the forklift, Huckabee trans-
ported cloth to the packers and wrappers and he also transported bales of salvage
and other goods. The forklift work was not full time, however, requiring from 70
to 80 percent of Huckabee's time according to his estimate, and he also made boxes,
packed cloth, wrapped rolls of cloth in burlap, laid out cloth, and pulled a hand
truck which is used for lifting goods by means of a hydraulic lift and transporting
them. Upon more than one occasion, Huckabee's foreman, Appellof, complimented
him upon his work.
On February 6, 1958, Huckabee was discharged by Appellof who said that there
was a lack of work, that Huckabee had limited abilities, and that the Respondent
preferred more versatile employees.
The General Counsel, in contending that Huckabee was discharged invalidly,
points to the Respondent's hostility to the organizational activities of employees as
is shown by the violations of Section 8(a)(1) and to the fact that Huckabee, like
Watkins, was one of the relatively few employees who engaged in those activities.
The General Counsel also asserts that Huckabee's job performance had been good
and that Huckabee, who was hired not long after the plant began operations, had
seniority over a number of employees who were not laid off. On the other hand,
the Respondent asserts that economic considerations caused the discharge of
Huckabee, that his union activities were not a factor, that his interest in the Union
was unknown to management until January 27 when the paper bearing the names
of eight employees was received, and that after that date the Respondent had no
reason to believe that Huckabee was more active in the Union than any other
employee According to the Respondent, as an economy measure, it decided to
eliminate the job of regular forklift operator on the first shift 22 and to have various
employees operate the vehicle in their spare time, and, although Huckabee's sen-
iority was considered in deciding whom to lay off, he was not offered a transfer to
another job or later offered reinstatement when jobs became more plentiful because
he was not versatile. The Respondent says too that Huckabee had not satisfactorily
performed his work as operator of the yarder because he had failed to detect cloth
of poor quality, that Huckabee did not want a job with any responsibility because
he had asked to be transferred from the yarder on the ground that he did not wish
to have the responsibility of deciding upon the quality of cloth, and that Huckabee's
back injury of about a year earlier made him unqualified for jobs which require
heavy lifting.
The evidence supports the General Counsel's position. First, as is seen in the
discussion of Watkins' discharge, the Respondent failed in its proof that there was
a decreased need for employees in the putup department where Huckabee also
worked. Second, Huckabee's work as a forklift operator and at miscellaneous tasks
had been without criticism since the one occasion, about a year earlier, when he
passed defective material in his work on a yarder. That occasion was not excep-
tional.23 Third, although Superintendent Lucius Delk testified that he could not
think of a job in the putup department which did not require either responsibility
22 Taylor, whose layoff on January 3, 1955, Is mentioned in connection with Watkins'
discharge, was the operator of both the forklift and the hand truck on the second shift
where there were fewer employees and less production.
28 Foreman Appellof was asked on cross-examination whether he had testified on direct
examination that complaints had been received from customers which he attributed to
Huckabee's operation of the yarder. He answered "I received a complaint, yes, sir."
Appellof testified further that he did not know the total number of complaints which
he had received concerning operation of the yarders and that be could not remember any
operator who had been disciplined in any manner other than by being told that "it can't
go on"
THE KENDALL COMPANY, BETHUNE PLANT 519
or lifting, the cross-examination of Foreman Appellof discloses that various tasks of
employees in that department are simple and require little or no training . Moreover,
although Appellof also testified that the operation of the forklift truck is "simple"
and involves "very little responsibility ," I do not believe that the operation of such
a vehicle in a plant where employees are at work may be so described. The driver
of the vehicle must be alert and cautious in order to avoid injury to employees or
property and the record is clear that various tasks of employees in the putup depart-
ment are simpler and involve less responsibility . Fourth, it is not shown that the
Respondent had a reasonable basis for its professed belief that Huckabee failed to
recover fully from the back injury which he suffered in late 1956 or early 1957, and
Superintendent Delk testified that "maybe occasionally" after the injury Huckabee
would "pick up halfway some diaper rolls that weighed up to 280 pounds." Finally,
at the time of Huckabee's discharge, he was not asked whether he would accept a
transfer to a job which involved lifting or responsibility in preference to bing laid
off. I must conclude under these circumstances that the Respondent violated Section
8(a)(3) and (1) in the discharge of Huckabee.
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 of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act . It has been found that Paul
Watkins and Paul Huckabee were invalidly discharged on January 30 and February
6, 1958, respectively . I shall recommend that the Respondent offer each of them
immediate and full reinstatement to his former or a substantially equivalent position
(The Chase National Bank , of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827), without prejudice to his seniority or other rights or privileges, and
that the Respondent make each of them whole for any loss of pay he may have
suffered as a result of the Respondent 's discrimination against him, by payment to
him of a sum of money equal to that which he normally would have earned from
the date of his discharge to the date of reinstatement , less his net earnings ( Crossett
Lumber Company , 8 NLRB 440 , 497-498 ) during said period, the payment to be
computed upon a quarterly basis in the manner established in N L.R B . v. Seven-Up
Bottling Company of Miami, Inc., 344 U.S. 344. I shall recommend also that the
Respondent 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 amounts of backpay due and the rights to reinstatement under the terms of
these recommendations.
In order to make effective the interdependent guarantees of Section 7 of the Act,
I shall recommend further that the Respondent cease and desist from , in any manner,
infringing upon the rights guaranteed in said section N.L.R.B. v. Express Publishing
Company, 312 U .S. 426; N.L.R.B . v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4).
Upon the basis of the above findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union 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 Paul
Watkins and Paul Huckabee , thereby discouraging membership in a labor organiza-
tion , 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 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 affect commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication.]
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lours Per
1
Week
-3B
-31
-39
-35
-34
-33
-32
-31
-30
-29
-29
---21
--19
--13
-24
-23-
-22
- 21
APPENDIX A
12 1
Hours Per
Week
38
37
30
35
I
-31 __
-30
-20
-21
-2S
I x
-24
-23--
-22-
-21--
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX C
-38 -
30 OS
-37
-36
- - -
--35
34
33 78
-33
32
-31
-29
28
-27
-2
25.26
-15
-24
-23
-22
21.78
-21
Bell Bakeries , Inc. and Local Union No. 361, The American
Bakery and Confectionery Workers' International Union,
AFL-CIO. Case No. 12-CA-844. February 8, 1960
DECISION AND ORDER
On September 10, 1959, Trial Examiner Owsley Vose 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
126 NLRB No. 63.