United States Gypsum Co.

National Labor Relations Board - Board Decisions

Mar 27, 1951

93 N.L.R.B. 966 (N.L.R.B. 1951)

966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By discriminating in regard to the hire and tenure of employment of Ralph
S. Click, thereby discouraging membership in a labor organization, the Respond-
ent has engaged and is engaging in unfair labor practices within the meaning
of Section 8 (a) (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
UNITED STATES GYPSUM COMPANY and LOCAL 504, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, AFL. Case No. 1-CA-466. March 27, 1951
Decision and Order
On August 30, 1950, Trial Examiner George A. Downing 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 that the Respondent had not engaged in unfair labor practices
by discharging David Mingo or by refusing to reinstate him as
alleged in the complaint, and recommended that the complaint be
dismissed as to him. Thereafter, the Respondent filed exceptions to
the Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Reynolds and Murdock].
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Respondent's request for oral argument is
hereby denied, inasmuch as the record and brief, in our opinion,
adequately present the issues and positions of the parties. The Board
has considered the Intermediate Report, the exceptions and brief, and
the entire record in the case, and hereby adopts the findings and
conclusions of the Trial Examiner with the following modifications.
1. The Trial Examiner found that the Respondent violated Sec-
tion 8 (a) (1) by Bledsoe's statements made during contract negotia-
tions with the Independent and at the meeting of employees on
August 13, 1949.
(a) The Board certified the Independent as the collective bargain-
ing representative of the Respondent's employees on August 31, 1948.
Bargaining negotiations between the Independent and the Respond-
93 NLRB No. 149.
UNITED STATES GYPSUM COMPANY 967
ent did not get under way until early June 1949 . At the first
meeting of the parties on June 2, the Independent 's negotiating com-
mittee informed Bledsoe that the Independent was considering affil-
iating with AFL because it might then "have a little bit stronger
weapon in bargaining ." As stated in the Intermediate Report, Bled-
soe replied that what "he would give the Independent would be just
as good, as [the Independent ] could get with the AFL ." The Trial
Examiner found that Bledsoe's statement "clearly showed Respond-
ent's position to be that the proposed affiliation by its employees
with a different bargaining representative would be ineffective," and
therefore constituted interference within the meaning of Section 8
(a) (1) of the Act.
Bledsoe's statement was made during bargaining negotiations, in
response to initial comments by the certified bargaining agent that
perhaps a different bargaining agent could achieve better results.
Under these circumstances , we construe Bledsoe's statement as no
more than an assurance that the Respondent would bargain in good
faith extending the same considerations and contract proposals to
the incumbent certified employee representative as 'it would to any
other representative . A different situation might exist if Bledsoe
had threatened a less advantageous contract if the Independent affil-
iated with the AFL. N. L. R. B. v. Gate City Cotton Mills, 167 F.
2d 647 (C. A. 5), relied upon by the Trial Examiner is inapposite,
as there the employer's statements and actions which both the Board
and the Court found violative of the Act were part and parcel of
the employer 's illegal antiunion campaign. Accordingly, we reverse
the Trial Examiner's finding with respect to Bledsoe's June 2
statement.'
(b) The Trial Examiner found that Bledsoe's statements made at
the July 4 bargaining negotiations together with his statements made
at the meeting of employees on August 13, contained threats of loss
of contract benefits if the•Independent affiliated with the AFL, thereby
violating Section 8 ( a) (1). The pertinent portions of Bledsoe's
statements are set forth in detail in the Intermediate Report. The
July 4 statement , made in the course of bargaining negotiations, was
to the effect that if the Independent did not accept the proposed
contract offered by the Respondent, the employees would not get
the benefits of the contract . The August 13 statement , made after
the contract was signed and after the AFL had instituted court
1 See Indianapolis Wirebound Box Company , 89 NLRB 617 , where the statement that
"no Union could possibly get you more than (the employees) already had," was held to
be protected . To the same effect, see Dixie Shirt Company, Inc, 79 NLRB 127, 128; The
Babcock & Wilcox Co , 77 NLRB 577, 578, 587, 592 ; The Hinde & Douch Paper Company,
78 NLRB 488 ; see also N . L. R. B. v Enid Cooperative Creamery Association , 169 F. 2d
986 (C A. 10).
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action alternatively to have the contract set aside, was to the effect
that if the contract was set aside the contract benefits accruing to
the employees would be lost. Both of these statements, we believe,
represent logical explanations of the results which would follow cer-
tain courses of events. As explanatory statements, they are within the
ambit of "views" which, being devoid of any "threat of reprisal or
force or promise of benefit," are permissive.' Accordingly, we do
not adopt the Trial Examiner's finding that Bledsoe's July 4 and
August 13 statements violated the Act.
2. Shortly after the contract between the Respondent and the In-
dependent was signed, Bledsoe inquired of Miles why he and other
employees were wearing AFL buttons. When told why, Bledsoe re-
sponded "if that's the way you want it, OK." Although the Board
ordinarily finds inquiries concerning the wearing of union buttons
to be illegal, we find, contrary to the Trial Examiner, that, under
the circumstances of this case, Bledsoe's inquiry was not violative of
the Act. Miles and Bledsoe were leading spokesmen for the Inde-
pendent and Respondent respectively in the negotiations which had
just concluded, and Miles was signatory to the recently executed
collective bargaining contract. Having recently dealt with Miles in
these matters which presumably stabilized relationships between the
Respondent , its employees , and their representative , it is not difficult
to understand why Bledsoe evinced both surprise and curiosity upon
seeing Miles wearing an AFL button. Under these circumstances,
and especially in view of his remark that "if that's the way you want
it, O.-K.," Bledsoe's inquiry impresses us as an understandable im-
pulsive reaction which did not tend to interfere with, restrain, or
coerce employees within the meaning of Section 8 (a) (1) of the Act.
3. The Trial Examiner found that Evely's remarks in a conversa-
tion with Bennett on or about April 25, violated the Act. Evely,
Bennett's forenman , denied the conversation . The Trial Examiner
credited Bennett that such conversation occurred. While we do not
disturb this credibility finding , in our opinion the excerpts from Ben-
nett's testimony singled out by the Trial Examiner do not represent
the true picture of the purport of his entire testimony.
The Trial Examiner concluded that Evely's remarks "constituted
a warning against joining the AFL, in view of the implication that
Respondent intended to resort to such measures as it deemed necessary
to prevent AFL's entry into the plant." To support his conclusion,
the Trial Examiner relied on Bennett 's testimony on cross-examina-
tion that Evely stated "it was crazy to join the AFL. It wouldn't
do any good-couldn't get in there." However, as to this same crucial
point, Bennett testified on direct examination that Evely stated "you
2 Section 8 (c) of the Act.
UNITED STATES GYPSUM COMPANY 969
were crazy to join the AFL, that it wasn't any good. You couldn't
get in there." We view these two versions of Evely's statements as
related by Bennett as creating a troublesome ambiguity. They could
mean that the AFL could not get into the plant, or that Bennett
could not get into the AFL, or merely that it was useless to join the
AFL. Because the multiple interpretations-not all of which are
coercive-result from Bennett's vagueness, we shall not isolate one
version of his testimony to support a finding of a violation of the Act.
Accordingly, as we are of the opinion that Bennett's entire testimony
does not disclose that Evely's remarks constituted "a warning against
joining the AFL," the Trial Examiner's finding of a violation of
Section 8 (a) (1) based on those remarks is hereby reversed.
4. The Trial Examiner found that the Respondent had not engaged
in unfair labor practices by discharging David Mingo or by refusing
to- reinstate him as alleged in the complaint, and recommended that
these allegations in the complaint be dismissed. The Trial Examiner
also recommended dismissal of other allegations in the complaint of
violations of Section 8 (a) (1). No exceptions have been filed to these
findings and recommendations, and we adopt them.
5. The sole remaining question is whether, as found by the Trial
Examiner, Evely's interrogation of Wolusky constitutes a violation
of the Act. The interrogation attributed to Evely is clearly of the
type of conduct which we frequently have held coercive and violative
of the Act. We do not condone such conduct now. However, be-
cause the interrogation was the act of a minor supervisor and because
of its wholly isolated character, we find that it would not effectuate
the purposes of the Act to issue a cease and desist order based upon
this one act .3 Accordingly, we shall dismiss the entire complaint.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the complaint issued herein against the Re-
spondent, United States Gypsum Company, Charlestown, Massa-
chusetts, be, and it hereby is, dismissed.
Intermediate Report and Recommended Order
Mr. Leo J Halloran, for the General Counsel.
Messrs Harold D. Burgess and C. Boyd Mahin (MaoLetslt, Spray, Price and
Underwood), of Chicago, Ill., for the Respondent.
Mr. John J Devlin, of Boston, Mass., for the Union.
3 Sunray Oat Corporation, 82 NLRB 942 ; Goldblatt Bros, Inc , 77 NLRB 1262, 1264.
See Opelika Textile Mills, Inc, 81 NLRB 594, 595; Rice -Sties of Arkansas , Inc, 79 NLRB
1333, 1,137 °
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STATEMENT OF THE CASE
Upon a third amended charge filed February 2, 1950, by Local 504, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL, herein called the Union and the Teamsters, the General Counsel
of the National Relations Board,' by the Regional Director for the First Region
(Boston, Massachusetts), issued a complaint dated May 8, 1950, against United
States Gypsum Company, herein called the Respondent, alleging that the Re-
spondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6)
and (7) of the National Labor Relations Act as amended, 61 Stat. 136, herein
called the Act. Copies of the complaint, of said charge, and of the notice of
hearing were duly served on the Respondent and the Union
With respect to the unfair labor practices the complaint alleged in substance
that the Respondent on or about April 27, 1949, discharged David Mingo and
thereafter refused to reinstate him because he joined or assisted the Union or
engaged in other concerted activities, thereby discriminating against him in order
to discourage membership in the Union ; and that by the above and by other
stated acts the Respondent interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed in Section 7 of the Act.
By its answer filed May 29, 1950, Respondent admitted certain of the allega-
tions of the complaint but denied the commission of any unfair labor practices.
The answer admitted the discharge of Mingo but denied that Respondent had
any knowledge that Mingo was interested in, a member of, or was engaged
in any activities of the Teamsters. The answer also pleaded affirmatively, in
substance, that Mingo's discharge was made during a general layoff due to a
temporary recession of business ; that Mingo was selected because of his in-
efficiency and because he was indifferent, surly, and unresponsive to admonitions
of improvement.
Pursuant to notice a hearing was held June 5-9, 1950, in Boston, Massachusetts,
before George A. Downing, the undersigned Trial Examiner duly designated by
the Chief Trial Examiner. The General Counsel and the Respondent were repre-
sented by counsel and the Union by a representative. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence rele-
vant to the issues was afforded all parties.
By order of the Board dated May 26, 1950, a portion of a motion for bill of
particulars, ruled on by another Trial Examiner, was granted and the General
Counsel thereafter complied with the order of the Board. Respondent, at the
hearing, renewed its entire motion for a bill of particulars ; said motion was
denied. The undersigned also denied Respondent's motion to strike paragraphs
8 (b) and 8 (f) of the complaint which alleged certain acts of interference,
restraint, and coercion.
At the conclusion of the hearing the Examiner granted without objection the
General Counsel's motion to conform the pleadings to the proof for the purpose of
correcting names, dates, and other matters not going to the issues of the case.
The parties were afforded an opportunity to make oral argument and to file
briefs, proposed findings of fact, and conclusions of law. Oral argument was
waived. Respondent has filed a brief which has been considered.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
i The General Counsel and his representatives are herein referred to as the General
Counsel and the National Labor Relations Board as the Board.
UNITED STATES GYPSUM COMPANY 971
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
United States Gypsum Company is an Illinois corporation. It is engaged in
the manufacture of wall board and wall plasters, gypsum, and paper. Gypsum
and paper are the principal raw materials used.
In the past 12 months raw materials to a value in excess of $100,000 were
received at the Charlestown, Massachusetts, plant of the Respondent. All such
raw materials were received from outside Massachusetts. Finished products
shipped from the Charlestown plant during said period amounted to a value in
excess of one-half million dollars, of which 30 to 40 percent represented ship-
ments to points outside the Commonwealth of Massachusetts. Respondent has
plants in other States of the United States.
Respondent stipulated, and it is hereby found, that it is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 504, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL, is a labor organization admitting to member-
ship employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background; summary of main events and issues
Respondent normally employs approximately 100 employees at its Charles-
town plant. At the time of Mingo's discharge, Fred J. Reinking was works
manager, Frederick Schaible was personnel manager, Fred H. Zajonc [pro-
nounced Zion] was plant superintendent, Donald Burris was quality control
supervisor, and Cecil Evely was foreman of the loaders under Zajonc?
At times the plant has operated with one, two, or three shifts, and from 3 to
6 days depending upon the volume of orders and the press of business.
Respondent's employees had, at some period in the past, been represented by
the United Mine Workers. However, on or about August 31, 1948, an independ-
ent union known as the United Gypsum Workers of New England (herein
called the Independent) had received a certification from the Board as the
bargaining representative of the employees, but no contract was entered into or
was in effect prior to July 6, 1949.
In April 1949 the members of the Independent became interested in affiliating
with the AFL, and, at a meeting on Sunday, April 24, 1949, voted unanimously
to affiliate with the Teamsters, after an address by W. Frank Holland, president
of Local 504.
In the meantime Reinking had held a conference on April 20, 1949, with his
department heads to discuss a recession in orders and proposed changes in
the plant operating schedule to meet the drop in business. The plant was then
operating three shifts but only on 3 days a week. It was decided to drop one
shift and to convert to a two-shift, 5 day week. Such conversion necessitated
a reduction in force, and Reinking outlined to his department heads the factors
2 The names of Respondent's foregoing supervisors are variously spelled in the record.
Thus, Reinking may also appear as Reiking and Rankin ; Zajonc may appear as Zion,
Sajonc, Gajong, Zanal, and Sarnac, Schaible may appear as Scharble, and, Evely as
Everly and Everley.
972 DECISIONS OF NATIONAL,LABOR RELATIONS BOARD
they should consider in selecting employees for retention or layoff in their-
respective departments.
Selections were made and completed by department heads and were approved
by Reinking and Schaible on April 22, and the actual layoff was made on
Wednesday, April 27, which was the last work day of the board plant that
week Thirty-three employees were laid off or discharged, including Mingo,
who was a member of the loading crew.
On April 28 Local 504 filed a representation petition with the Regional Director,
who notified the Respondent thereof on April 30 Respondent wrote the Regional
Office calling its attention to the Board's certification of the United Gypsum
Workers Union, and the Regional Director by a letter received by Respondent
on May 6, 1949, advised Respondent that the petition had been withdrawn
without prejudice by the filing party
On or about May 25, Bledsoe succeeded Reinking as works manager. Shortly
thereafter Bledsoe called a conference with the officers of the Independent "to
get acquainted," but he also discussed with them the absence of a contract and
the reasons why none had previously been negotiated with his predecessor.
Negotiations began and were continued through a series of meetings ending on
or about July 6, when a contract was signed.
In the meantime, Teamsters had filed another representation petition on
June 22. That petition was finally dismissed by the Regional Director on
September 22, 1949, because it was filed within the certification year. On appeal,
the Board, on November 1 sustained the Regional Director's action.
Shortly after July 6, Local 504-filed an action in a State court to set aside
the contract or to have its own name substituted as the contracting party or to
have the contract, declared to be one executed in its behalf. On August 13, 1949,
prior to any ruling in that case, Bledsoe called and addressed employees' meet-
ings, referring to the dispute between the unions
The material issues in the case are whether Mingo's discharge was discrimi-
natorily motivated and whether any of Bledsoe's remarks to the employees on
August 13 and certain of his comments and statements relative to the AFL
made during the bargaining conferences constituted interference, restraint, or
coercion. Other questions of interference, restraint, and coercion are posed by
Bledsoe's inquiry of Miles as to the wearing of an AFL button and alleged
statements by Evely to Herman Bennett and George Wolusky, relative to AFL,
which incidents are later summarized in detail.
B. Interference, restraint , and coercion
1 Statements by Evely
Herman Bennett, another loader who was included in the layoff, testified that
shortly after the April 24 meeting of the Independent (at which the member-
ship had voted to affiliate with the Teamsters) his foreman, Evely, told him,
"it was crazy to join the AFL, it wasn't any good" or "it wouldn't do any good,"
and it "couldn't get in there."
Bennett had given an affidavit to a field examiner in November 1949, which
indicated that Evely's statement was made prior to the April 24 meeting, but
Bennett maintained during his testimony that it occurred afterwards. His
final testimony was that it occurred after the meeting and before the layoff
which would fix it either on April 25 or 26.
George Wolusky, a car checker, testified that on Tuesday, April 26 Evely asked
him, "are you now in the AFL or what" and that he replied, "I don't know, you'll
soon find out "
UNITED STATES GYPSUM COMPANY 973
Evely denied both of the above conversations. Although the incidents were
separate ones, both related to the possible advent of the AFL and both occurred
almost immediately after the meeting at which the membership of the Independ-
ent had voted to affiliate with the AFL. Furthermore, Bennett's affidavit was
in substantial accord with his testimony at the hearing Under the foregoing
-circumstances the undersigned credits the testimony of Bennett and Wolusky
and finds that the incidents occurred substantially as they testified.
2. Statements by Bledsoe
Miles testified that some days or weeks after the signing of the contract in July
and at a time he was wearing an AFL button, Bledsoe spoke to him asking, "what
was the idea of the boys wearing these AFL buttons." Miles testified that he re-
plied that the move to affiliate with AFL had started before Bledsoe came there,
that it was no reflection on Bledsoe but it was something the men wanted and they
were going through with it, and that Bledsoe responded in effect, "If that's the
way you want it, O.K." Bledsoe's testimony as to the incident was not in sub-
stantial conflict with Miles'.
Miles also testified that during the series of bargaining conferences that ensued
after Bledsoe became works manager, Bledsoe made certain remarks relating to
the proposed affiliation with AFL and to the possible effect thereof on the negoti-
ations or on any benefits which might be negotiated for. Miles testified that the
first of such statements by Bledsoe was made at the first meeting which Bledsoe
called with the officers of the Independent On cross-examination he testified that
during that meeting someone made the remark that the Independent was affili-
ating with the AFL, that there was a general discussion as to the necessity for
that, during which Bledsoe stated that, "what he would give us as an Independent
Union would be just as good as [we] could get with the AFL, and he wanted to
know why we thought we needed the AFL . . . i
Miles also testified that at the meeting at which Bledsoe presented the com-
mittee with a contract (which he fixed as July 4) Bledsoe stated that:
... if the contract wasn't signed and the AFL did come in and obtain bar-
gaining rights, before the AFL could be certified, and I believe he cited an
instance in St. Paul, that it was a matter of nearly a year before the Union
was finally certified as a bargaining agent, and during that time we would
lose all the benefits of the increases that lie was about to give us, and . . at
[such] future date, he wasn't sure whether conditions would be the same and
whether the increase would be warranted.
Bledsoe testified that there were a total of six conferences (including the
original "get together meeting") in which negotiations were had, and he fixed
the dates from his notes as June 2, 4, 22, 30, July 1, and 6. Bledsoe admitted that
at the first meeting the committee mentioned the fact that the Independent was
considering affiliating with the AFL, that he inquired the reason and was in-
formed that, "they felt they might have a little bit stronger weapon in bargain-
-ing." On direct examination Bledsoe could not recall that he made any reply, but
he admitted on cross-examination that he had discussed the subject of the pro-
posed aflliation when it cane up during the negotiations and that he had stated
among other things that ; "[he] was willing to sit down and work out
a contract with them, and that [he] didn't think that an International Union
gave them any stronger bargaining weapon." Pursued further as to whether he
had also said or indicated that he could give the employees a better contract than
the Teamsters could get for them or one just as good, Bledsoe testified that he
did not remember. ' -
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bledsoe testified that the committee made further references to the proposed
affiliation with AFL at the June 4 meeting and that there was a "frank open dis-
cussion" of the subject. He also testified that at the June 22 meeting the com-
mittee represented that the Local was not interested in affiliating with an Inter-
national if a workable contract could be agreed on. Bledsoe testified further
that at that meeting the committee mentioned that Teamsters had negotiated
a contract at Respondent 's St. Paul plant which called for paid holidays and that
he denied that fact. Bledsoe also testified that in the final meeting of July 6,
when the contract was signed , there was no reference to the AFL affiliation.
Schaible , recalled to the stand to corroborate Bledsoe, testified that he did not
recall Bledsoe 's saying anything about the AFL at the first meeting , June 2 (but
cf. Bledsoe ' s testimony on cross-examination , supra ). Similarly he did not re-
call that Bledsoe said anything about the AFL at the June 4 meeting . Aside from
the foregoing , Schaible simply made a general adoption of all of Bledsoe 's testi-
mony as to occurrences at all of the meetings.
On August 13, 1949, Bledsoe called meetings of employees on the various shifts
and addressed them with reference to the dispute between the Independent and
the AFL. Miles ' testimony as to Bledsoe's statements is as follows :
Well, he said he understood that there was a movement afoot to set aside
the contract by the AFL, and he reiterated what he had told us at the pre-
vious meeting with the Committee Men and President Tom Kenney, that
if the contract was set aside , that it would take some time for the Union to
get in, and we would probably lose the benefits of the increase that he had
already given us, plus the fact he wasn 't sure but what he'd have to take
them away . That is, he didn't know whether it would be legal to give the
increase or not if the contract was set aside.
Bernard H. MacNeil testified that Bledsoe's speech was in substance as follows :
He informed us that the contract with the Independent Union that was in
effect was binding, and that we were enjoying the benefits of that contract,
and that he wanted us to live by the agreements under that contract.
I don't recall whether it was spoken or inferred that with this con-
tract with the Independent Union retracted in any way that we would suffer
the loss of the benefits.
Bledsoe's version of his speech may be summarized as follows : He referred
to the dispute in the shop between the Independent and the Teamsters. He told
the employees the choice was up to them, that he had negotiated a contract with
the Independent, that they were enjoying the provisions of that contract, that
it included a wage increase, that it was his understanding that the Teamsters
wanted that contract ruled illegal, and that if they did so legally he did not
know where he stood with the contract, but what the Independent and the
Teamsters did about the controversy was entirely up to them. Bledsoe denied
that he told the employees that if the AFL won the suit they would lose the
benefits of the contract ; but on cross-examination be admitted that he had stated
he did not know where his contract would stand if the Teamsters were success-
ful in their pursuit of the pending action and that he did not know what might
happen, since he did not know of the legality of the contract in that event.
Bledsoe explained during his testimony that he had been surprised and dis-
turbed to learn that the Teamsters had started the action to set aside the con-
tract and also that he was upset by reports that the AFL had been sending
telegrams to his employees to attend meetings ; and that it was because of such
reports and the legal action by AFL that he called the meetings.
UNITED STATES GYPSUM COMPANY
3. Concluding findings
975
The factual issues concerning Evely's statements have been resolved. On the
basis thereof , it is hereby concluded and found that by Evely's inquiry of
Wolusky as to his AFL membership ( cf Standard - Coosa-Thatcher Co., 85 NLRB
1358 and cases cited) and by his statements to Bennett that AFL could not get
into the plant and that membership therein was worthless and futile , 3 Respond-
ent interfered with, restrained , and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act, and thereby engaged in unfair labor
practices within the meaning of Section 8 ( a) (1).
It is concluded and found that Respondent similarly engaged in interference,
restraint , and coercion by Bledsoe ' s inquiry of Miles as to the wearing of AFL
buttons. Standard- Coosa-Thatcher Co., supra; cf Firestone Tire & Rubber Co.,
67 NLRB 335; Atlas Imperial Diesel Engine Co., 68 NLRB 994.
There remain for resolution the various additional statements attributed to
Bledsoe during the contract negotiations and at the employee meetings which
he called on August 13 . Initially , Bledsoe 's testimony is adopted as to the
number and the dates of the meetings with the Independent 's committee, which
he fixed by reference to contemporaneous notes. However , an analysis of the
evidence shows that the notes were not of assistance to Bledsoe in his testimony
on the crucial questions.
The first of these was whether Bledsoe had stated , as testified by Miles, that
what he would give the Independent would be just as good as they could get with
the AFL. Bledsoe ' s testimony on this point was indefinite and inconsistent.
Thus he admitted on direct examination that the subject of AFL affiliation was
mentioned at the first meeting but testified he could not recall that he made
any reply . On cross -examination , however, Bledsoe admitted that when the
subject came up during the negotiations he had denied the committee 's suggestion
that affiliation would give them a stronger bargaining weapon. But when
pursued further as to whether he had said specifically that he could give the
committee as good or a better contract than Teamsters could get for them, he
testified that he did not remember.
Under these circumstances , Schaible 's attempted blanket corroboration of
Bledsoe's testimony is unpersuasive. Furthermore Schaible had testified he
could not recall whether Bledsoe had made references to the AFL in either the
June 2 or 4 meeting, whereas Bledsoe had admitted that at the latter meeting
he had engaged in a "frank open discussion " of the subject . Also, as shown,
Bledsoe had admitted discussing the subject of affiliation at the first meeting.
Miles' foregoing testimony is, therefore , credited Bledsoe's statement, which
clearly showed Respondent's position to be that the proposed affiliation by its
employees with a different bargaining representative would be ineffective, con-
stituted interference with rights which Section 7 granted exclusively to the
employees . See N. L. R. B. v . Gate City Cotton Mills, 167 F. 2d 647 (C. A. 5),
where it was held that Section 8 (c) does not protect an employer's conduct
which included making a speech in which he told the employees be "did not
believe the union could give you anything which you are not already receiv-
ing from the Company."
3 The latter statements clearly constituted a warning against joining the AFL in view
of the implication that Respondent intended to resort to such measures as it deemed neces-
sary to prevent AFL's entry into the plant Cf Globe Wireless , Ltd., 88 NLRB 1262,
Falcon Tool Co , 60 NLRB 1262 ; N L R B v Vermont American Furniture Co , 182 F
2d 842 ( C. A. 2). Any contention that statements of such character are protected by
Section 8 ( c) is disposed of by N L R B v. Kropp Forge Co, 178 F 2d 822 (C A 7)
and cases cited ; Gate City Cotton Malls, 167 F 2d 647 (C A 5 ) ; LaSalle Steel Co , 178
F. 2d 829 (C A 7).
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In issue also is whether Bledsoe had threatened (as testified by Miles) to take
away the wage increases he was about to give if the AFL should finally re-
ceive a certification as bargaining agent. Although Bledsoe denied making
the statement, he had, as shown, admitted that he had engaged in a full dis-
cussion of the question of affiliation and that he had stated his position that
affiliation would add nothing to the bargaining stature of the committee. Also,
as found, he had expressly spelled out Respondent's position to be that a change
of membership or affiliation would be ineffective. The foregoing circumstances,
coupled with the nature of Bledsoe's similar statements in the August 13 meet-
ings with employees, and now to be adverted to, persuades the undersigned, and
he finds, that Miles' version of Bledsoe's statements was the correct one.
These is no substantial dispute as to Bledsoe's statements on the latter occca-
sions. Miles testified that Bledsoe said in express terms that if the contract
were set aside it would take some time for the AFL to get in the plant and that
the employees would probably lose the benefits of the increase he had given
them, and that he would, or might, have to take such benefits away. MacNeil
testified that Bledsoe either stated or inferred that if the contract were "re-
tracted" the employees would suffer the loss of the benefits. Bledsoe's testimony
admitted statements which clearly implied a threat that if the AFL won out,
the wage increases provided in the contract would be lost. Under these circum-
stances MacNeil's testimony is adopted, and it is concluded and found that
Bledsoe's statements on the occasion contained either express or implied threats
that AFL success would mean loss of the wage increases and other benefits
which were provided in the contract with the Independent.
Respondent's concern over its contract, which according to Bledsoe motivated
his action, did not, of course, justify Respondent's interference in the contro-
versy between the AFL and the Independent, since the Act leaves solely to the
employees the selection of their bargaining representatives and membership in
or affiliation with the union of their choice. Employers have no right to restrain,
coerce, or interfere with the exercise of those rights. Bledsoe's statements,
made during the negotiations and at the later employee meetings which he called
at the peak of the controversy, were obviously designed and calculated to impede
and restrain the movement to join or to affiliate with Teamsters. Nor did his
statement to the employees on August 13, that the settlement of the controvery
was up to them, remove the stated or clearly implied threat that successful
support of the Teamsters would mean the loss of existing benefits.
It is therefore concluded and found that by Bledsoe's statements threatening
the loss of such benefits if the Teamsters should become the collective bargain-
ing representative of its employees, Respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed by Section 7 of
the Act.
To summarize, it is found that the General Counsel has, by a preponderance
of the evidence, established the allegations of the complaint that Respondent
engaged in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act, by :
(a) Interrogating employees relative to their union membership and
activities ;
(b) Conferring with employees on its time and premises for the purpose
of inducing them to relinquish their union memberships and activities ;
(c) Threatening economic reprisals and threatening to take away wage in-
creases and other benefits previously granted if the Union became the collective
bargaining representative for its employees.
UNITED STATES GYPSUM COMPANY 977
There is no evidence to support other allegations of the complaint that Re-
spondent urged employes not to join the Union or that it threatened to break
up any outside Union which sought to organize its employees . It will therefore
be recommended that said allegations be dismissed.
C. The alleged discriminatory discharge of David Mingo
The complaint alleges that Respondent discharged Mingo because he joined
or assisted the [Teamsters ] Union or engaged in other concerted activities. The
evidence presented by the General Counsel was devoted to establishing that
Mingo was discharged because of his affiliation with and activities on behalf of
the Teamsters. The General Counsel did not contend, nor is there substantial
evidence to support a theory, that Mingo's discharge was because of participa-
tion in any other concerted activities.
It is therefore necessary to consider only the question whether in making the
discharge Respondent was motivated by Mingo's membership in and activities
on behalf of the Teamsters. And under the evidence as it was ultimately de-
veloped in this case, that issue narrows to the single question whether Respond-
ent had knowledge of Mingo's said membership and activities. Since, as will be
shown, that question must be answered in the negative, there will be need for
only brief consideration of the various matters which were impleaded by the
Respondent in its affirmative defense, to which the great bulk of the testimony
on both sides was devoted.
On the single crucial issue necessary for determination there is scant evidence
that at the time of the general layoff Respondent knew or could have known of
Mingo's membership in and activities on behalf of the Teamsters
The factor of time is most important. It was at the meeting of Sunday, April
24, that the members of the Independent voted to affiliate with the Teamsters
and it was at that meeting that Holland, the AFL representative, accorded to
Mingo the credit for having arranged for his presence. There had been an
earlier meeting at which the members had decided to explore the possibilities of
affiliating with an international union and at that time three or four members,
including Mingo, had volunteered to contact organizers of diffetent unions to
make arrangements for them to address the'membership' Aside from disputed
testimony of Mingo later to be adverted to there is no evidence, however, that
Respondent had any knowledge of the AFL movement until after April 24 and
certainly none of Mingo's participation in it.
Yet on April 20 the Respondent had already decided to effect a general layoff
and had laid down the policies to be followed by its supervisory staff in making
selections, i. e., employees with the greatest ability would be retained, and
where abilities were considered equal, length of service would be determinative.`
On April 22 the actual selections had been made and approved. Mingo was in-
cluded because of his supervisors' feeling that he was less efficient than other
loaders with less seniority and that he showed less promise of development for
advancement.
I Credited testimony of Kenney. Kenney's further testimony is credited that the only
movement to affiliate with the Teamsters occurred at the meeting of April 24. Mingo
testified that the actual motion to affiliate with AFL had been made and unanimously
carried at the earlier meeting That testimony is not credited . At that time it was not
known whether the Independent would affiliate nor with which union . Those questions
were not decided until the April 24 meeting and the signing of the application cards in
the Teamsters.
6In making earlier layoffs Respondent had followed a similar practice There uas no
contract in effect which required any different basis for selection.
943732-51-63
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The only direct evidence that Respondent had any knowledge of Mingo's AFL
activities was Mingo's testimony that Zajonc stated, among other things in in-
forming him of his discharge' that Mingo was working with the AFL. That
testimony was denied by Zajonc and Schaible who were present at the time.'
Their denials are credited. In view of all the circumstances, Mingo's testi-
mony is regarded as an attempt to supply gratuitously evidence that Respondent
acted in his case through a discriminatory motive.
There remains the question whether other evidence affords an adequate basis
for inferring Respondent's knowledge of Mingo's Teamsters activities.
The fact that a general layoff was made at that particular time is without
significance since there is no evidence (nor was there contention by the General
Counsel) that Respondent's decision to abolish the third shift was motivated
by a desire to forestall the Teamsters. There is, for example, no showing that
the employees selected for layoff were predominantly members of Teamsters
nor any that those later recalled were predominantly not members. Neither did
the General Counsel contend that Respondent was discriminatorily motivated
in the case of any other single employee of the 33 selected for layoff, although
the evidence is that the vote to affiliate with Teamsters was unanimous. Further-
more, included in those retained were Kenney and Miles, who had alternated as
president of the Independent and who had been active in the movement to
affiliate with Teamsters. Even assuming arguendo that Respondent actually
wished to discourage the Teamsters' movement there is no persuasive showing
or suggestion why Respondent would have selected the single employee, Mingo,
as the vehicle of its discriminatory spite in view of the opportunities presented
by the general layoff (cf. New York Stea'na Laundry, 85 NLRB 1470, 1480), the
bona fides of which the General Counsel did not question.
Nor will Evely's statements to Bennett and Wolusky, referred to in section
B, supra, support an inference that Respondent had learned of Mingo's Team-
sters' activities. Those statements did show that Evely had learned of the
Teamsters' movement, and through this it may be inferred that such informa-
tion reached Respondent. However, Evely's statements bore no relation to
Mingo. The same considerations dispose of the visit to the plant by Holland
and Devlin on April 27.8
Furthermore, even if it were to be assumed that these incidents somehow
brought home to Respondent knowledge of Mingo's connection with the Team-
sters, they occurred after the consummation of the plans for the layoff and after
Mingo's selection for discharge. That circumstance forecloses the possibility
that Mingo's selection was made because of such knowledge and because of
Respondent's discriminatory intent. -
The evidence does show that Respondent knew of Mingo's membership in
the Independent. Thus his name as recording secretary was included with the
names of the other officers of the Independent on a• list posted on the bulletin
board. Furthermore, Wolusky testified to a conversation held a week or two
before the layoff between Zajonc and Evely in which one of them referred to
6 Mingo was actually discharged, though the evidence indicates-that most of the others
were laid off and that some of those were recalled in June
' Mingo testified that only Zajonc was present though he admitted that he spoke to
Schaible immediately afterwards
8 Though the issue is an immaterial one it is found that the visit occurred on the 27th
rather than on the 26th. Schaible's testimony to that effect is corroborated by a con-
temporaneous memorandum he made for Reinking , who was out when Holland and Devlin
called. Schaible's testimony is also credited that they delivered at that time no letter
requesting recognition . Respondent denied it received such a letter , and the Union failed
to produce a copy as agreed during the hearing.
UNITED STATES GYPSUM COMPANY 979
the fact that Mingo was running for president of the Independent and the other
replied, "Yes, he's getting up in the world." But those statements cannot be
related to any contention that Mingo was discharged because of his Teamsters'
activities nor even, indeed, to any (not advanced here) that his activities in the
Independent led to his discharge.
The General Counsel has at all times, of course, the burden of establishing
the illegal motivation of an alleged discriminatory discharge. W. C. Nabors,
89 NLRB 538. There must be substantial affirmative evidence presented from
which a discriminatory motive can reasonably be interred. The Texas Com-
pany, 80 NLRB 862. Even where the circumstances are such as to raise a
strong presumption of discriminatory action, a finding of a violation of the
Act cannot be based on suspicion alone; there must be a preponderance of
evidence to show that Respondent was motivated by antiunion considerations.
Punch and Judy Togs, 85 NLRB 499.
Of course the evidence offered by the Respondent in support of its defenses is
also to be considered on the question of motive. Thus it is well settled that the
giving-of evasive, contradictory, or inconsistent reasons may be considered in
determining the question of fact as to the real motive for a discharge.
N. L. R. B. v. Condenser Corporation, 128 F. 2d 67 (C. A. 3). In other words,
such fact, if found, may in itself be a circumstance indicating the employer's
action was discriminatory. Cf. Lewis and Holmes Motor Freight Company,
63 NLRB 996.
But analysis of Respondent's evidence likewise fails to establish that it acted
through discriminatory considerations in discharging Mingo. Although there
was a sharp conflict between the Respondent's witnesses and the General
Counsel's as to the quality of Mingo's performance, his relative efficiency in
comparison with other loaders, his attitude toward his supervisors, and his
disposition in general, the evidence establishes beyond question that Re-
spondent considered Mingo's performance and attitude unsatisfactory and that
it had ample support for its evaluation of him. As one example, in February
1949 Respondent became concerned about the number of complaints of improper
loading which were being received from customers. Its investigations con-
vinced it that of 17 complaints which it checked into, 10 were attributable to
the loading team of Mingo and Gardella, the latter of whom was also laid off.
Zajonc and Burris called a meeting of the loaders about February 14 or 15
and went over the complaints with them.'
The evidence is also in conflict as to whether loading complaints had been
called to the attention of the loaders, including Mingo, before and after the
February meetings. Although the point is immaterial in view of the con-
clusions herein reached, the preponderance of the evidence is that complaints
were frequently mentioned to the loaders, albeit on an informal basis io
Respondent also offered considerable evidence to support its contention that
a recession of business necessitated the dropping of the third shift and the
9 The General Counsel's witnesses testified consistently that only two complaints were
called to the attention of each team whereas Respondent's witnesses testified that all the
complaints were gone into The issue is really an immaterial one, since regardless of how
many complaints were discussed with the loaders, the fact remains that the Mingo-Gardella
team had by far the worst record.
IU The February meeting was the only occasion on which complaints were formally brought
to the loaders' attention. Though Wolusky testified that similar meetings were held each
6 months, that testimony is not supported by any witness on either side . It is concluded
that he was referring to occasions when his own errors were brought to his attention.
Couture and Miles, other witnesses for the General Counsel also admitted that loading
errors were called to the attention of the loaders.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consequent reduction in force. Although such evidence is not consistent in its
entirety and although it may be arguable whether as a matter of judgment
(particularly a postiori) the dropping of the third shift was an economic neces-
sity or whether some other adjustment would have been preferable, yet these
were matters falling within the realm of managerial prerogatives. Cf. Pepsi-
Cola Bottling Co., of Montgomery, 72 NLRB 601. Furthermore, as has been
pointed out there is no evidence that the layoff was motivated by Respondent's
intent to forestall or impede the Teamsters' movement. Nor does the General
Counsel contend that the selection of any of the 33 employees was so motivated,
save only in Mingo's case. Cf. West Boyleston Manufacturing Company of
Alabama, 87 NLRB 808.
Under the foregoing circumstances and on the basis of all the evidence it is
therefore concluded and found that the General Counsel has not met the
burden of establishing illegal motivation on Respondent's part in its discharge
of Mingo and that the respondent did not thereby engage in unfair labor prac-
tices. It will therefore be recommended that the complaint be dismissed insofar
as it alleges violations of Section 8 (a) (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent as set forth in Section III, above, occurring
in connection with the operations of 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
Since it has been found that the Respondent has engaged in unfair labor
practices, the undersigned will recommend that the Respondent cease and
desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
It having been found that Respondent has engaged in certain acts of inter-
ference, restraint, and coercion it will be recommended that the Respondent
cease therefrom.
The violations of the Act which the Respondent committed are in the opinion
of the undersigned persuasively related to other unfair labor practices pro-
scribed by the Act, and the danger of their commission in the future is to be
anticipated from the Respondent's conduct in the past. The preventive pur-
poses of the Act will be thwarted unless the order is coextensive with the threat.
In order, therefore, to make more effective the interdependent guarantees of
Section 7, to prevent a recurrence of unfair labor practices and thereby minimize
the industrial strife which burdens and obstructs commerce and thus effectuate
the policies of the Act, it will be recommended that the Respondent cease and
desist from infringing in any manner upon the rights guaranteed in Section 7
of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case the undersigned makes the following :
CONCLUSIONS OF LAW
1. Local 504, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL, is a labor organization within the meaning
of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and
FIRESTONE TIRE AND RUBBER COMPANY 981
is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and ( 7) of the Act.
4. The Respondent has not engaged in unfair labor practices by discharging
David Mingo or by refusing to reinstate him.
[Recommended Order omitted from publication in this volume.]
FIRESTONE TIRE AND RUBBER COMPANY and E. CARL RHODUS
INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA, OVER-THE-ROAD AND CITY
TRANSFER DRIVERS, HELPERS, DOCKMEN AND WAREHOUSEMEN, LOCAL
UNION No. 41, A. F. L. and E. CARL RHODUS. Cases Nos.
17-CA-247 and 17-CB-18. March 27,1951
Decision and Order
On September 25, 1950, Trial Examiner James R. Hemingway
issued his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondents had not engaged in the unfair labor prac-
tices alleged in the Complaint,' and recommending that the complaint
be dismissed in its entirety, as set forth in the copy of the Intermediate
Report attached hereto. The General Counsel and the Respondent
Union thereafter filed exceptions to the Intermediate Report and sup-
porting briefs. The Respondent Union 'also requested oral argument.
This request is denied as the record and briefs, in our opinion, ade-
quately present the issues and the positions of the parties.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in this case, and hereby adopts the
Trial Examiner's findings, conclusions, and recommendations to the
extent that they are consistent with this Decision and Order.
1, The Trial Examiner found that the Employer did not violate
Section 8 (a) (1) or (3) of the Act, and the Union did not violate
Section 8 (b) (1) (A) or (2) of the Act, in connection with employee
Rhodus' reduction in seniority about November 10, 1949, and his
consequent transfer and discharge. We agree with the Trial Exam-
iner's result, but not with his reasoning.
As found in the Intermediate Report, on September 1, 1949, the Em-
ployer and the Union executed a lawful contract requiring, inter alia,
'The complaint alleged violations of Section 8 (a) (1), 8 (a) (3), 8 (b ) ( 1) (A), and
8 (b) (2) of the Act as amended.
93 NLRB No. 161.