Benton and Co., Inc.

National Labor Relations Board - Board Decisions

Jun 5, 1961

131 N.L.R.B. 965 (N.L.R.B. 1961)

BENTON AND COMPANY, INC. 965
5. Respondent did not , by the aforesaid termination of its employees , discourage
membership in a labor organization in violation of Section 8(a)(3) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 ( 6) and- (7) of the Act.
[Recommendations omitted from publication.]
Benton and Company, Inc. and Lloyd G. Blake, George C. Stuart,
Leo Everett Jones, Russell Johnson , Dan W. Derwort, John
Crawford , Robert E . Claycomb, and Frank D. Kersey. Cases
Nos. 12-CA-1393-1 through 12-CA-1393-7 and 12-CA-1458-1.
June 5, 1961
DECISION AND ORDER
On February 13, 1961, Trial Examiner Eugene F. Frey 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 a copy of the Inter-
mediate Report attached hereto. He also found that the Respondent
did not engage in certain other unfair labor practices alleged in the
complaint and recommended that it be dismissed insofar as it contains
such allegations. Thereafter, the Respondent and the General Coun-
sel filed exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings and recommendations of the Trial
Examiner with certain modifications in the remedy as hereafter set
forth.
THE REMEDY
Having found that the Respondent has engaged in and is engaging
in certain unfair labor practices, we shall order that it cease and
desist therefrom and take certain affirmative action designed to effec-
tuate the policies of the Act.
It appears that following the layoffs on March 18 and 21, 1960,
found herein to have been discriminatory, the Respondent's business
operations and workload have declined in volume and that at the time
of the hearing it was conducting its operations with a reduced work
force. It is therefore possible that some of the employees discrimi-
131 NLRB No. 124.
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nated against on March 18 and 21, 1960, might have been laid off in
a subsequent reduction in force even absent the Respondent's unfair
labor practices. Under these circumstances, we shall order the Re-
spondent to offer Lloyd G. Blake, George C. Stuart, Russell Johnson,
Dan W. Derwort, John Crawford, and Robert E. Claycomb imme-
diate and full reinstatement to their former or substantially equiva-
lent positions without prejudice to their seniority and other rights and
privileges, dismissing, if necessary, all employees since then hired.
If there is not then sufficient work available, the Respondent shall
place those employees for whom no immediate employment is available
on a preferential list, with priority in accordance with the system of
seniority or other nondiscriminatory practice heretofore applied by
the Respondent in the conduct of its business, and thereafter offer
them reinstatement as such employment becomes available and before
other persons are hired for such work.
We shall also order the Respondent to make whole the employees
named above and Leo Everett Jones, who was laid off on March 18,
but reinstated on June 20, 1960, for any losses they may have suffered
because of the Respondent's discrimination, by payment to each of
them of a sum of money equal to that which he would have earned as
wages from the date of such discrimination to the date of the offer of
reinstatement or placement on a preferential list, as the case may be,
less his net earnings during said period, the backpay to be computed
on a quarterly basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289. As some of the employees dis-
criminated against on March 18 and 21, 1960, might have been laid off
in a subsequent reduction in force, even absent unfair labor practices,
such termination of employment shall be taken into consideration in
computing the backpay due these employees under the terms of this
Order
In view of the nature, variety, and extent of the unfair labor prac-
tices committed, the Respondent shall be ordered to cease and desist
from infringing in any manner upon the rights of employees guaran-
teed by Section 7 of the Act.
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, Benton and
Company, Inc., St. Petersburg, Florida, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Union of Operating
Engineers, Local 25, Marine Division, AFL-CIO, or any other labor
BENTON AND COMPANY, INC. 967
organization of its employees, by laying off, refusing to reinstate, or
in any other manner discriminating against them in regard to their
hire or tenure of employment or any term or condition of employment.
(b) Interrogating employees about union activities in a manner
constituting interference, restraint, or coercion within the meaning of
the Act, inducing or causing employees to engage in such interroga-
tion of other employees for its benefit, threatening employees with
plant shutdown, layoff, discharge, or other economic reprisal if they
join or assist the above labor organization, or said labor organization
becomes their authorized bargaining agent.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above Union or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Lloyd G. Blake, George C. Stuart, Russell Johnson, John
Crawford, Robert E. Claycomb, and Dan W. Derwort immediate and
full reinstatement to their ,former or substantially equivalent posi-
tions, without prejudice to their seniority and other rights and privi-
leges, and make them and Leo Everett Jones whole for any loss of pay
they may have suffered by reason of the discrimination against them,
in the manner set forth in the section of this Decision and Order en-
titled "The Remedy."
(b) 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 amount of backpay due
and the right of reinstatement under the terms of this order.
(c) Post at its plants in and around St. Petersburg, Florida, copies
of the notice attached hereto marked "Appendix." 1 Copies of said
notice, to be furnished by the Regional Director for the Twelfth
Region, shall, after being duly signed by Respondent's representative,
be posted immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Respond-
ent shall take reasonable steps to insure that such notices are not
altered, defaced, or covered by any other material.
IIn 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 "
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for the Twelfth Region, in
writing, within 10 days from the date of this Order, what steps it has
taken to comply herewith.
IT IS FURTHER ORDERED, that, except as otherwise found herein, the
allegations of the complaint be, and they hereby are, dismissed.
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, as amended, we hereby notify you that :
WE WILL NOT discourage membership in International Union of
Operating Engineers, Local 25, Marine Division, AFL-CIO, or
any other labor organization of our employees, by laying off,
refusing to reinstate, or in any other manner discriminating
against them in regard to their hire or tenure of employment or
any term or condition of employment.
WE WILL NOT interrogate employees about union activities in a
manner constituting interference, restraint, or coercion within
the meaning of the Act, inducing or causing employees to engage
in such interrogation of other employees for our benefit, threaten
them with plant shutdown, layoff, discharge, or other economic
reprisal if they join or assist the above-named labor organization,
or said labor organization becomes their authorized bargaining
agent.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist the
above-named Union, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to refrain from
any or all such activities.
WE WILL offer Lloyd G. Blake, George C. Stuart, Russell John-
son, John Crawford, Robert E. Claycomb and Dan D. Derwort
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges previously enjoyed, and make them and Leo
Everett Jones whole for any loss of pay suffered by them as the
result of the discrimination against them, all in the manner set'
forth in the section of the Decision and Order entitled "The
Remedy."
BENTON AND COMPANY, INC. 969
All our employees are free to become or remain, and to refrain from
becoming or remaining, members of the above-named or any other
labor organization. .
BENTON AND COMPANY, INC.,
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
STATEMENT OF THE CASE
The issues in this case are whether Benton and Company, Inc. herein called the
Respondent, (1) is subject to the jurisdiction of the National Labor Relations Board,
(2) discriminatorily discharged seven of its employees named in the caption, and
deprived another, Frank D. Kersey, of economic benefits, and (3) subjected its em-
ployees to coercive interrogation and threats of discharge and other reprisals, be-
cause they joined or assisted International Union of Operating Engineers, Local 25,
Marine Division, AFL-CIO, herein called the Union, in violation of Section 8(a) (3)
and (1) of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat.
519, herein called the Act. The issues arise on a consolidated complaint issued by
the General Counsel of the Board on May 13, 1960, as amended on May 23 and
June 8, 1960, and answers duly filed by Respondent, which denied jurisdiction and
the commission of any unfair labor practices.
A hearing on these issues was held before the duly designated Trial Examiner at
Tampa and St. Petersburg, Florida, on June 20 through 23, 1960, in which all
parties were represented and participated fully through counsel. Motions of Re-
spondent at the close of the case to dismiss the complaint for lack of jurisdiction
were taken under consideration and are now denied for reasons stated below. All
parties waived oral argument, and none submitted briefs on the merits. Respond-
ent submitted a brief on the question of jurisdiction which has been carefully con-
sidered by the Trial Examiner.
Upon the entire record in the case, and from my observation of the witnesses on
the stand, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND JURISDICTION OF THE BOARD
Respondent is a Florida corporation with its principal office and place of busi-
ness in St. Petersburg, Florida, where it is engaged in the production and sale of
shell products. During the calendar year 1959, in the course of its business, Re-
spondent bought and caused to be delivered to its plants in and around St. Petersburg,
Florida,' petroleum products, operating supplies, replacement parts, and other goods
and materials valued in excess of $83,000, of which goods and materials valued in
excess of $50,000 were delivered to said plants from other enterprises, including
Epperson and Company, Gulf Coast Industrial Supply Company, and Sinclair Refin-
ing Company, all located in the State of Florida, which enterprises had received
such goods and materials directly from States other than the State of Florida. Re-
spondent admits, and I find on the above facts, that Respondent has been and is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.2
'The plants involved here are the "terminal" or "downtown" yard, housing the main
office of Respondent and located at 870 Third Street, South, St Petersburg, and the
Aliens Creek, or "upper" yard, located about 30 miles away on U S. Highway No 19
and Tampa Bay.
a Respondent argues that, although the indirect inflow criterion promulgated by the
Board for assertion of jurisdiction exists here, the General Counsel has not proven the
underlying, essential legal jurisdiction which must appear before the Board can apply
any of its income criteria, citing International Longshoremen Warehousemen's Union, and
Local No . 13, International Longshoremen & Warehousemen's Union (Catalina Island
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IL THE LABOR ORGANIZATION
. The Union is a labor organization within the meaning of Section 2(5) of the Act,
which admits to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
.The parties agreed, and I find on the entire record, that the following officials and
employees of Respondent are supervisors within the meaning of Section 2(11) of
the Act: Norman W. Berger, vice president in charge of operations; Arthur U.
Huffman, vice president in charge of Allens Creek yard; Howard M. Weenick,
treasurer and personnel director of Respondent; James F. Delaney, secretary, and
office manager at Aliens Creek yard; Capt. Kenneth L. Lund, superintendent at
downtown yard, Mansell R. Hamilton, foreman of Allens Creek yard; Lampley W.
Neal, welding foreman; Homer G. Roberts, captain of the dredge Broward; Louis
Budd, chief engineer ; and Howell Prince and Lloyd O. Montgomery, tug captains.
The record also shows that Marion V. Prine, captain of the tug Hero on one
watch, is responsible for its operation, maintenance , and upkeep, and responsibly
directed one deckhand on that tug up to March 18, 1960, and that Elmer H. Mor-
rison is the operator of and in charge of the dredge Broward on alternate watches
with Captain Roberts, during which periods he responsibly directs a mate and several
deckhands, and uses independent judgment in the operation of the dredge. I find
that at the times mentioned herein Prine and Morrison were also supervisors within
the meaning of the Act.
A. The union organizing campaign
Sometime in February or March 1960, Dan W. Derwort, a deckhand on the tug
Hero, began to solicit employees of Respondent to sign authorization cards desig-
nating the Union as their bargaining representative. In the week of March 14,
unidentified agents of the Union also distributed cards to employees at the gate of
the Allens Creek yard, notably to welders and welders' helpers. By March 17, weld-
ers Lloyd G. Blake, George C. Stuart, Leo Everett Jones, Robert E. Claycomb, and
Herbert R. Guthrie and welders' helpers Russell G. Johnson and John J. Crawford
had signed cards.
On March 24, 1960, the Union filed a petition with the Board in Case No. 12-RC-
878 seeking certification as statutory bargaining representative of the employees.
After a hearing, the Board issued its Decision and Direction of Election on June 29,
1960. An election was held on July 22, 1960, which the Union lost.
B. The terminations of March 18 and 21, 1960
I find from credible testimony of Blake that, on an occasion before Christmas
1959, while he, Jones, and Johnson were working in the Allens Creek yard, Neal
was working with them and asked Blake where he had worked before. Blake re-
plied that he came from South Carolina and had been in the Boilermakers' Union.
Neal asked if he was still a union member and Blake replied that he had been paying
his union dues for 2 years in order to keep in good standing, and remarked that it
would be nice to have a union at the yard as the pay would be more and the men
would get more benefits. Neal replied, "There is no use to think of that because
Benton & Company would never become Union. If Mr. Huffman even heard of
Benton becoming union he would close the place down before he would ever accept
the Union." While Neal's question about Blake's union membership appears to be
a casual one prompted by Blake's offer of information on the subject, I consider his
quoted remark as a coercive threat of reprisal if the plant became unionized, and find
that Respondent thereby violated Section 8(a)(1) of the Act.
Respondent first heard rumors of the union activity in February and received more
information about it a few days before March 18. On March 16, 1960, Treasurer
Weenick telephoned Manager Delaney at the Allens Creek yard, told him that some
of his "proteges" at the yard might be trying to form a union , and asked Delaney to
find out what was going on. Delaney said he would try, and would let Weenick
know. When he hung up, Delaney told Frank D. Kersey, a scale clerk at the yard,
Sightseeing Linea), 124 NLRB 813 However, the Board has already disposed of this
contention in Case No. 12-RC-878 involving Respondent, decided June 29, 1960 (not
published in NLRB volumes), where It found that Respondent had an annual indirect
Inflow of goods originating outside Florida of about $72,000 in value, on which basis it
concluded that its operations affected commerce , and that it would effectuate the policies
of the Act to assert jurisdiction over Respondent . See also Southwest Hotels, Inc.
( Grady Manning Hotel ), 126 NLRB 1151.
BENTON AND COMPANY, INC. 971
"That was Howard, he informed me that one of my proteges out here was trying to
form a union and wanted me to find out what I could about it and call him back."
Delaney asked Kersey what he knew about it. Kersey replied that he knew nothing.
Delaney, who is elderly, physically disabled, and unable to move around freely, asked
Kersey to go out and talk to the employees and find out if he could what was going
,on, the name of the Union, and where the employees were getting union cards.
Kersey talked to the employees outside for about a half hour, then returned and told
Delaney that none of them would talk to him, and he could not find out anything
about the Union, except that the men were getting cards from someone outside the
yard gate in the afternoon.
On the 17th, Delaney telephoned Weenick and reported what Kersey had told him.
After he finished talking with Weenick, Delaney told Kersey "Frank, Howard sus-
pects somebody in this office of being behind this union organization ." Kersey
replied, "You mean he suspects me." Delaney answered, "He did not mention your
name specifically, he even suspects me." The same day Welding Foreman Neal
asked most of the welders and helpers at both yards if they had signed union cards
and what they knew about the union activity. Blake, Stuart, Claycomb, Guthrie,
and Johnson admitted they signed cards; Chester Mizzia, a burner, refused to commit
himself. Stuart also told Neal at the time that quite a few other employees also,
signed up, to which Neal replied, "Well, I don't know, you might get laid off, the
boss may be pretty mad about it." When Johnson admitted signing, Neal told him,
"I don't know how Mr. Huffman will feel about this union business, we might all
get laid off" and "he might shut down the plant." Neal made substantially the same
comment to Stuart after Stuart told him he had signed the card because of dissatis-
faction with his working conditions and pay. When Guthrie was interrogated, he
gave Neal similar reasons for signing a card, and told Neal he heard all the welders
had signed up, and that they had a right to sign, that the Federal Government "backs
a man up on that." In Neal's discussion with Blake and Johnson, Blake told Neal
he signed up because most of the other men had done so, and he wanted a union.
Neal replied to both, "Well, I guess you know what will happen if Mr. Huffman
hears about it, he will probably want to let all of you go." The same day Neal re-
ported the results of his interrogation to Weenick who, with other company officers,
then consulted the Commerce Clearing House Labor Service about proper practices
,of employers under the Act, and concluded that the supervisor's interrogation of the
employees was illegal. Weenick then telephoned Delaney and advised him that some
of his "proteges" were engaging in union activities, and that he should "keep his
ears open and his mouth shut" until he could get proper instructions from Weenick
,on his future conduct.3
On or about March 17, yard foreman Hamilton asked crane operators Joseph
Tedder and George S. Nobles if they had signed union cards. Tedder admitted he
signed, but Nobles denied that he did. Hamilton told Nobles he was glad he did
not "because I would be out two operators." He told Tedder that the Company
knew all those who had signed up. In the same period, while there was talk among
the employees about who had signed cards and who had not, Hamilton told yardman
Bernard L. McKenzie that all the welders had admitted signing cards, and that Mr.
Huffman would "shut her down if there are any union activities going on ," and that
"they will fire anyone who signs one of those cards." 4
On the morning of March 18, Neal returned to the Aliens Creek yard, where
Delaney asked him, in Kersey's presence, "What is this I hear about this Union?"
Neal replied that he had questioned all his welders and found out all of them had
signed union cards. Kersey commented that he thought that there had to be an
election before a union could represent a company. Neal said that was right. He
added that the Company could do nothing about the welders signing the cards, that
the Company could not fire them, as that was against the law, and that "all they
can do is to lay them off because we do not have the work for them to do." Neal
also said that the "big shots" were meeting at the downtown office to decide what
3 The findings above are based on credited testimony of Kersey, Wesley Bragg, Stuart,
Blake, Claycomb, Guthrie, and Johnson, as corroborated in substantial part by admissions
of Weenick, Neal, and Delaney.
4 These findings are based on credited testimony of Nobles and McKenzie, as corroborated
in part by admission of Hamilton. I do not credit Hamilton's denials of the threat, nor
his explanation that his remarks to Nobles were caused by his fear that if the crane
operators signed union cards, there would be a strike and he would have to shut down
his cranes for lack of operators, for it is not clear from Hamilton's testimony that he
explained to either operator the reason for his alleged fear that he would be "out two
operators " hence the coercion inherent in the interrogation was not explained away
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to do, and that as soon as Arthur Huffman returned from town, Neal had to go back
to the office to find out what the decision was. Later that day, Neal conferred
again with Vice President Berger at the downtown yard and was told to lay off
welders and helpers. While there, Neal told welder Guthrie that Respondent was
going to lay off a number of welders because work was slack. Guthrie commented
that work was "not that slack," and that it was a bad time to lay them off when
Respondent had learned only the day before that they signed union cards, and that
it was against the law to do that. Neal replied that he hated to lay them off but
he "had to." 5
At quitting time on the 18th, Neal laid off Stuart, Jones, Johnson, Blake, and
Crawford, giving them final paychecks, and telling them that he would have to lay
them off because Respondent was cutting down the force for lack of work, and
that he was laying them off according to seniority, and would retain welders Paul
Armstrong and Claycomb and burner Mizzia. Stuart objected to his layoff and the
retention of Claycomb, saying he would take the matter to the Board and get rein-
statement because he had seniority over Claycomb. Neal replied that Claycomb had
more seniority than Stuart. He also told Jones, Stuart, and Crawford that this was
not a discharge, but only a temporary layoff, and that "in a couple weeks, if you want
to go back to work when this thing clears up, you call me up and I'll put you right
back on." He asked Johnson for the telephone number of his landlord, saying that
he or Huffman would notify him when Respondent was ready to recall him. Neal
told Stuart that he was keeping Mizzia because he was classified only as a helper,
not a welder, and that he helped not only the welders but the machinists, and "be-
sides he did not sign a union card." 6 A few days after the 18th, Homer G. Roberts,
captain of the dredge Broward, asked oiler Cyrus Messimer on the dredge if he had
signed a union card. Messimer asked, why, and Roberts replied, "there's no use
lying about it, we are going to find out about it anyhow." 7
It is clear from the above that, shortly after Respondent learned of the union
activity at its yards, top management took deliberate steps to find out the nature
and extent of the activity, both by soliciting one employee to engage in such interro-
gation, and through supervisors' direct and widespread questioning of employees. I
do not credit Neal's testimony that he questioned his welders for his "own personal
satisfaction," because he immediately reported his findings to his superiors, and the
fact that he interrogated the men the same day that Delaney, at the order of Ween-
ick, had unsuccessfully tried to question them through Kersey warrants the inference
that Neal acted at least with the knowledge, if not at the direct order, of Respondent.
Weenick's testimony of his consequent actions on the 18th also shows that Respond-
ent realized the interrogation was illegal .8 I therefore find that Respondent violated
Section 8(a)(1) of the Act by (1) Neal's, Hamilton's, and Robert's interrogation
of employees found above. (2) the attempt of Weenick and Delaney to procure in-
formation about the union activity by use of Kersey, and (3) Neal's and Hamilton's
concomitant and coercive threats that Respondent might lay off the welders and
shut down the business because of their union activities.
On the morning of March 19, Foreman Hamilton asked Claycomb at the Aliens
Creek yard where he got the union card that he signed. Claycomb told him a man
had given it to him at the yard gate the previous evening. Hamilton then said,
"Well, if we are going to have a union here, Mr. Huffman will close the place down.
That is why they came down here from up North." When Claycomb came to work
Monday, March 21 , Neal told him that he "was going to get it," and at noontime
he handed Claycomb two checks, asking him to endorse them and give them back
to Neal, to pay off an outstanding loan Respondent had recently made to Claycomb.
Claycomb did so, and then left the yard. I find that Respondent further violated
5 These findings are based on credited testimony of Kersey and Guthrie , and admission
of Neal Testimony of the latter at variance therewith is not credited.
6 These findings are based on credited testimony of the laid -off men, Claycomb, and
admissions of Neal.
4 This incident is based on credited testimony of Messimer. Roberts specifically denied
any such talk, but admitted he might have asked questions about the Union during daily
casual talks with the men about various topics, hence, I do not credit his denials
6 Further admission of the illegal conduct lies in Respondent's belated attempt on
May 5, 1060, after charges had been filed and served upon it herein, to repudiate the
coercive conduct of its supervisors by a circular letter to its employees indicating its intent
to respect all rights of employees protected by the Act Weenick admitted that the
illegality of the interrogation made it "absolutely necessary that some official act of the
Company be done to stop that inference that might have resulted from their questioning."
BENTON AND COMPANY, INC. 973
Section 8 ( a)(1) of the Act by Hamilton 's interrogation of Claycomb and his clear
threat that Respondent would close the plant if it went union.
The supervisors' illegal interrogation of employees on the 17th which disclosed
their union affiliation , their immediate warnings of termination and other reprisals
if management found out about it, and Neal's prompt report of it to management
the same day, followed by the actual layoff the next day and on the 21st of most of
those who had joined the Union , are circumstances presenting a strong prima facie
case of discriminatory termination, which required Respondent to adduce cogent
evidence to rebut it.
Respondent 's defense is that the layoffs were motivated solely by lack of work for
welders and helpers, which had been caused by an increasing slowdown in its busi-
ness in the months preceding the layoff which , in turn , compelled Respondent to
carry out a policy of retrenchment. The record shows that: The oyster shell pro-
duced by Respondent is used mainly by local municipalities and private builders for
road construction. In August 1959, the volume of residential building in the St.
Petersburg area began to fall off and the downward trend continued until building
activity in the spring of 1960 was 30 to 40 percent below the similar 1959 period.
This recession was continuing at the time of the hearing, with no definite signs of an
upturn in the immediate future. However, it did not affect Respondent's business
immediately. Sales continued to rise in the latter part of 1959, as they had yearly
for the past 5 years, and in January 1960, Respondent had the greatest monthly
sales volume in its history. But there was a sharp 27 percent sales drop in Febru-
ary, and the downtrend continued in March, April, May, and June. Berger and
Weenick testified that, as a result, Respondent became cost conscious and the decision
was reached about March 1 to retrench, by postponing further capital improvements,
reducing purchasing , cessation of hiring , and reduction of the work force. During the
fall of 1959 and the first 2 months of 1960, Respondent kept a force of at least nine
welders and three helpers busy on major capital improvements to plant and equip-
ment. In September or October 1959, it began a major overhaul of its large dredge,
Broward, which included installation of a whole new hull and deck; the welding force
was increased by a least two welders (Jones and Blake) and two helpers (Johnson
and Crawford) in October specifically to finish the hull in time to send it to a dry-
dock on December 14 for attachment to the dredge; when this was completed in
January, the dredge was returned to Respondent's downtown yard where the welding
crews installed a new deck, completing that job January 30. In February, the
welders also put a new "skin" or hull covering on one of Respondent 's tugs, made
new pipe for use on the dredges, and installed the steel framework of an extension
to a building at the upper yard. Thereafter, Neal and Berger discussed ways of
keeping the welding crews busy and Neal, with the approval of Berger, put them to
work building chutes and other components for use on the dredges, repairing clam
buckets for use on the dredges , and other odd repair and maintenance jobs. About
a week or so before the March 18 layoff, Berger noticed four to six welders and
helpers at the upper yard, grouped around a piece of equipment known as a "spud"
but apparently not working. The welding job on this item is normally handled by
two welders in a half-day. Berger asked Neal why these men were not working.
Neal explained that they did not have much to do, that they were catching up on
elbows and other items, that it was getting hard to find jobs for them, and that he
was not "shoving them too hard." Berger said Neal might as well lay them off, and
they decided that as soon as the welders caught up with pending work on elbows and
a chute, Neal should lay them off. The next day Neal told at least one welder,
Jones, who had been in the group, that he was "lucky you are here right now, you
almost got fired yesterday," and that only Neal had prevented it.9 With the excep-
tion of burner Mizzia, whose case will be analyzed below, Neal followed seniority in
selecting men for the layoffs. Since the layoff Respondent has handled its regular
day-to-day maintenance at the yards with a force of three or four welders, one helper,
and one burner.10 According to Neal and Hamilton, this force has been sufficient
for the purpose, and none of the large cranes or other heavy equipment has been
out of service due to breakdowns or delays in normal repair work, except for one
mechanical breakdown of a large crane at the upper yard which kept it out of
service for a half day while a replacement component was installed ; there was no
0 The finding as to the "spud " Incident is based on credited testimony of Berger, Neal,
Stuart, Blake, and Jones
10 At the downtown yard, Mizzia is the day-shift welder, Armstrong handles the second
shift at Aliens Creek, Guthrie and Keenan do the work with Jones, who was recalled
June 17. The record does not show who the burner is. Neal is also an experienced
welder who takes a hand at it when necessary.
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interruption of operations , for a smaller crane was substituted for it during the
repairs. Respondent now operates only 1 dredge , with 1 idle , 4 out of 6 tugs (as
against 7 some years ago ), but 11 shell and service barges ( as against 6 some years
ago). In line with Neal 's claim that the layoff was only temporary and the men
would be recalled, the record shows that Stuart was rehired for a period of 3 weeks,
starting in April , to replace a welder on one of the dredges while he was laid up with
a broken rib , and Jones , who had worked as a welder and setup man for Respondent
prior to his employment in September 1959 , applied for work on Friday, June 17,
1960, was rehired on the following Monday, and has since been working on con-
struction of a new tugboat . After the layoff , Claycomb also applied for work, but
Neal did not rehire him because he had no work for him . Neal testified that he
would take back all the laid -off men if there was work for them . The above facts
and testimony in their totality afford substantial support for Respondent 's contention.
However, other circumstances weaken the force of these facts. Despite the local
recession , Respondent 's records show that its sales during the first 6 months of 1960,
though in a downward trend after January 1960 , were still above sales for the similar
1959 period . The sharp drop in February was caused by unusual rainfall . Weemck
admitted that Respondent experiences no seasonal fluctuations in sales of shell, ex-
cept during a prolonged rainy spell, or when St. Petersburg stops buying due to budget
limitations . These facts indicate that Respondent's sales in the first half of 1960
were not suffering as much as Berger 's testimony indicated . In addition , sales in
January and February almost depleted the shell piles in both yards, because the
dredge Broward was out of production up to January 30, and the dredge R. C.
Huffman No. 3 was laid up for a period with a broken engine. Thereafter, both
dredges were in full production building up the stockpiles until April 30, when the
R. C. Huffman No. 3 was taken out of operation . Since that date the Broward
alone has operated , digging more than enough shell to match sales, and at the
time of the hearing shell piles in both yards were at record levels. Since the layoff,
handling of shell at the upper yard has required constant use of three large cranes.
There is no proof that any crane operators or other personnel working in either
yard were laid off, aside from welders. These facts indicate that up to April 30,
more than a month after the layoff in question , Respondent 's digging and yard
operations continued without appreciable abatement.
Additional circumstances weigh against Respondent 's claim and support the
conclusion of discrimination.
(1) Neal and Berger claim that the layoff had been under consideration for some
time past , and that Neal already had authority to make the layoff when, in his
judgment, the repair work was "caught up." Neal testified that he went to the
Allens Creek yard on the 17th with the intention of making the layoff . If that was
his true intention, based on the economic situation , it would be reasonable to assume
that he would have made the layoff as soon as he arrived , without further ado. His
failure to explain why he waited until after interrogating the men illegally, reporting
the result to management, and then getting an order to proceed "as planned,"
warrants the inference that the real purpose of his visit was to confirm management's
suspicion , already voiced by Weenick , that employees at that yard had joined the
Union, and then terminate them under the convenient pretext of an economic layoff.
This is consistent with Neal 's admission to Kersey the morning of the layoff that
Respondent could not fire the welders for union activity but could lay them off for
lack of work The same inference is supported by the fact that the layoff occurred
on Friday , during the workweek , rather than on Saturday , the end of the normal
workweek , and that those laid off were paid on the spot rather than the next Wednes-
day, which was the normal payday.
(2) Claycomb was not laid off by Neal on the 18th , because Neal was under the
impression , as he told Stuart , that he had more seniority than Stuart . If this reason
is credible , it warrants the inference that on the 18th Neal intended to lay off only
three welders , ending with Stuart on the seniority list. Neal testified that after the
argument with Stuart about Claycomb , he thought it over and decided he had
"done Stuart an injustice ," so he laid off Claycomb Monday , the 21st . This explana-
tion is not credible . If Neal was confused about the relative seniority of the two
men on the 18th because , as he testified , he thought they had been hired about the
same time, he could have corrected the "injustice " at once by checking Respondent's
records which show that Stuart had far more seniority , having been hired March 16,
1957, while Claycomb was hired September 4, 1957. He could then have kept
Stuart on and laid off Claycomb . However , when he realized his error, he did not
recall Stuart , but laid off Claycomb in addition . He gives no explanation for not
correcting the "injustice" to Stuart in an obvious way but enlarging the layoff on
the 21st . This leaves only the inference of discriminatory motivation as to Claycomb
BENTON AND COMPANY, INC. 975
as well as the others which arises from the supervisors' prior illegal conduct, including
threats of reprisal, found above. Furthermore, it is significant that, despite assurances
to the men on the 18th that the layoff was only temporary and they would be recalled
shortly, Neal made sure to collect outstanding loans from those laid off.11 When
terminating Johnson, he gave him a final paycheck from which a balance of $50,
due Respondent on a loan, had been deducted. When Johnson asked Neal why the
whole debt had been deducted if he was only being laid off, Neal gave no answer.
When Claycomb was laid off, Neal had him endorse two final checks back to
Respondent to repay a loan of about $200 which Claycomb had applied for on
March 15 and had received on the evening of March 17. The liquidation of the loan
accounts of both men is additional evidence that their termination was final, not
temporary.
(3) The retention and later treatment of burner Chester Mizzia is also significant.
So far as the record discloses, he was the only employee who was noncommittal about
his union affiliation, from which Neal concluded that he did not sign a card, as he
told the welders on the 18th. On that date, Mizzia had less seniority than Stuart and
Claycomb, and was getting $1.75 an hour, 10 cents an hour less than a welder, but
more than helpers. He had been classified as a "yard burner," who actually cuts
metal with a blowtorch most of the time; he only occasionally did welding work.
On May 9, 1960, he was raised to a welder classification and paid accordingly
thereafter, and at the time of the hearing he was the only welder on day shift, doing
welding work as needed, and also operating various equipment in the machine shop.
The retention of an apparent antiunion employee of lower pay, classification, and
seniority, as against union adherents who surpassed him in all those aspects, and
his elevation in classification, pay, and work to that of the latter shortly after their
termination, is in itself potent evidence of discrimination against them, as well
as persuasive evidence that the alleged lack of need for welders was merely a pretext.
(4) It is clear from credible testimony of Stuart, Crawford, Blake, Claycomb,
Jones, Johnson, and Neal that the welders and helpers laid off on the 18th and 21st
were busy up to the end on the maintenance and repair outlined above. Just before
layoff, at least three clam buckets were still not built. Jones and Stuart were working
on the morning of the 18th on a chute which they left unfinished when they were
laid off.12 When Stuart mentioned the unfinished work to Neal at his layoff, the
latter replied, "Well, me and Keenan [another welder] ran this place before and we
can run it again." For several weeks other welders had been hard-surfacing
elbows for the dredge pipes, and much work of this type remained to be done; in
fact, Neal had told welder Blake that, when his work slowed down, he should bring
elbows from a parts pile and hard-surface those which needed it; Blake and Claycomb
were doing that work on the 17th. Respondent's records also show that Stuart and
Claycomb each worked 6 hours overtime on March 17.13 Neal admitted that this was
regular maintenance work, of the type which Respondent always had to perform, and
that it had kept the laid-off employees just as busy immediately before the layoff as
during the preceding 2 months. In this connection, Kersey testified credibly that
(1) a week or so after the layoff, he overheard Hamilton make a telephone request
to Lund for a welder from the downtown yard to do an emergency job on a large
crane, because welder Keenan, who was working on it, was too slow, and late that
day Delaney got a call from Lund and then sent Kersey to give the message from
Lund to Hamilton that no welders were available because they were overloaded
with work downtown, and Hamilton would have to get the job done as best he
could; and (2) about a week later, Hamilton told Kersey in the yard that Neal had
said there was plenty of work for the welders to do, but Respondent would not let
Neal recall them because they had signed union cards, and if Neal hired replacements
that would be an admission "they were guilty," so as things stood they had to get
the work done the best way they could.14
11 Respondent made frequent loans to employees and liquidated them by weekly deduc-
tions from payroll checks.
12 Chutes wear out quickly, and are in constant need of repair and rebuilding.
19 Jones had been off the 14th and 15th, and Guthrie was off half a day on the 18th,
but there is no proof that they had been absent for lack of work
14I do not credit Hamilton's denials of these conversations, for Delaney did not deny
the first incident, and although Hamilton and Neal testified that Keenan was a capable
welder and actually did the job in question in a short time on a Monday morning they
also admitted that a welder had been sent from downtown to do the job, being prevented
from doing it by rain. In addition, other remarks of Neal noted herein indicate per-
suasively that he really preferred to keep the whole welding crew because of the amount
of work ahead.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(5) In the months before the layoff the welders had been led by management to
believe that steady work was in store for them. In 1959, Respondent bought a mas-
sive Mississippi River tugboat at a bargain, as an investment with the idea of future
conversion of the hull to a dredge, for use as a replacement or additional unit when
needed.15 The tug arrived at Respondent's yard before Christmas 1959, and was
the subject of much talk among the employees. Neal told them it would be con-
verted to a dredge, but he did not know when, that Respondent might start work
on it any time. When the Broward renovation was nearing completion in January,
welder Jones asked Neal what work was planned next, and Neal said they were
going to build a fuel barge and a tug. Shortly before the layoff, Neal told the
welders they had several months' work ahead building a barge at the upper yard,
and that Respondent had ordered the steel for it. Just before his layoff Stuart had
completed a spreader bar for use in unloading steel; Neal told him it would be used
on the barge job. About the same time Neal told welder Guthrie to hurry com-
pletion of his work at the downtown yard, because he would be needed for work
on the barge at the upper yard.16 Sometime before the layoff, Respondent had
bought steel plate usable for barge construction, and when Johnson asked Neal
about new work shortly before the layoff, Neal told him a new barge would be built
soon, that Respondent had already procured steel for it.17 On this subject, Neal
admitted that early in 1960, he and Captain Lund had urged Berger to approve
building a new barge, but Berger said Respondent would not build it then for lack
of immediate funds; this would have been a major construction job requiring a
month or more of work. However, there is no proof that Neal ever communicated
the decision to postpone the new dredge and barge to the welders. Neal's prognos-
tication of future work is home out partially by the fact that several weeks before
the hearing, Respondent began to build a new tug and other equipment for the
boats, and on Monday, June 20, 1960, Neal rehired Jones as a welder and setup
man to work on that job. Jones was still working at the time he testified. It is note-
worthy that this occurred when Respondent's shell piles were the largest ever and,
according to management's views, its business was in a continuing slump.
I am convinced by all the pertinent facts and circumstances that, while Respond-
ent had taken some retrenchment steps early in 1960, it fixed no definite date for a
substantial reduction in the welding crews until it discovered the union activity
among those employees, whereupon it immediately terminated most of the welders
who had joined the Union, using the pretext of economic necessity in a palpable
effort to defeat the workers' organizing campaign and discourage other employees
from joining the Union. While a legitimate reason for the terminations may have
existed, I am satisfied that the welders' union activities in fact triggered their separa-
tions.18 I conclude that General Counsel has sustained the ultimate burden of
proving by a preponderance of credible and substantial evidence that Respondent
terminated Blake, Stuart, Jones, Johnson, and Crawford on March 18, 1960, and
Claycomb on March 21, because of their union affiliation. This was a discrimina-
tion in regard to their tenure of employment which had the effect of discouraging
membership in the Union and also coerced and restrained employees in the exer-
cise of rights guaranteed by Section 7 of the Act, in violation of Section 8(a)(3)
and (1 ) of the Act.
C. The termination of Dan W. Derwort
Derwort was hired on January 13, 1960, as a deckhand on the tug Hero. His
superior was Captain Prine, the supervisor in charge of the tug on the day watch.
18 Respondent paid about $45,000 for the boat, which had cost about a million and a
half dollars to build It was bought when business was at a peak and future prospects
looked good However, Berger testified that its conversion would cost about $500,000,
and Respondent had no immediate plans for its conversion or use
16 Most of the welding crews were employed at the upper yard, where major building,
overhaul, and repair work was done; only occasional emergency repairs were handled at
the downtown yard
17 These facts are based on credited testimony of Berger, Neal, Johnson, Jones, Stuart,
and Guthrie.
"Where nondiscriminatory reasons exist and may have figured in a termination, 'dis-
crimination may be found if the employees' union activities were a substantial or motivat-
ing reason for the termination, or if the union activity weighed more heavily in the de-
cision to terminate than did the nondiscriminatory reasons. N.L R B v Whitin Machine
Works, 204 F. 2d 883, 885 (C.A 1) ; N L R B. v. Jamestown Sterling Corp, 211 F. 2d
725, 720 (C A 2); and see N L R B. v C & J Camp, Inc, et at. d/b/a Kibler-Camp
Phosphate Enterprise, 210 F. 2d 113, 115 (CA. 5)-.
BENTON AND COMPANY, INC. 977
As found above, Derwort initiated the union .-tivity among employees in February
or March. A few days before March 18, Captain Lund, who is in charge of all
boat operations (and thus Prine's immediate superior), asked Capt. Lloyd O. Mont-
gomery of the tug Payday if any of his crew were unionmen. Montgomery
replied none were to his knowledge. He then asked if Montgomery knew "Red"
on the Hero.19 Montgomery said he knew only that Red was a friend of Earl
Probst, the mate on the Payday. Lund told him that the Company knew Red was
creating a disturbance, trying to start a union, and he wanted to know if Mont-
gomery knew anything about him. Montgomery said he only knew that Red was
from Tampa. Lund then said Red "was going to have to go." On the 18th Lund
told Captain Prine to send Derwort to him, saying that Lund was getting rid of one
of the men on the Hero. Prine sent Derwort to the office where Lund gave him a
final paycheck, telling him "we are cutting down, no longer need your services."
That evening, Elmer Morrison, night operator and supervisor on the dredge Broward,
told Prme and three other employees in the galley of the dredge that "the Swede 20
told me to warn all you guys out here not to mess with that union," and that if they
kept "messing" with the Union "you will all be out of a job." These facts are based
on credited testimony of Derwort, Prine, Lund, Montgomery, and Cyrus Messimer.
Lund's and Morrison's denials of the antiunion remarks attributed to them are not
credited, for Morrison admitted frequent talks with the crew of the dredge, knew
they were talking about the Union for several months, and equivocates about
whether he engaged in such discussions. Lund's denial is not credited (1) as against
the clear testimony of Supervisor Montgomery,21 which carries far more weight as
an admission by a member of management, and (2) in the light of Respondent's
inordinate interest in the union activity and its antiunion animus apparent in the
threats of other supervisors found above. Morrison's remarks to the men on the
dredge was another clear coercive threat of discharge for union activity which vio-
lated Section 8 (a) (1) of the Act. In the context of Respondent's illegal termina-
tion of the welders and other unfair labor practices, the above facts present a prima
facie case of discrimination against Derwort.
Respondent contends Derwort was terminated as part of its retrenchment pro-
gram and reduction in force. On this point Berger, Weenick, and Lund gave testi-
mony as follows: Early in March, Berger reviewed the tug and dredge payrolls and
found a large difference between the two dredge payrolls, due to the fact that the
four hands employed on the Hero were carried on the tugboat payroll, while hands
on -the other tugs were carried on the payroll of dredge Huffman No. 3. This made
the Huffman No. 3 dredge payroll larger than that of the Broward, and at the same
time made the tug payroll higher than Respondent expected. The Hero, which
serviced the dredge Broward, was operated by two hands per watch, four men in
all, while the tug tending the other dredge was handled by one man per watch, with
crewmen from the dredge helping him when necessary. On learning these facts,
Berger asked Captain Roberts of the Broward if he could operate with only one
man on the tug, and Roberts said he could "get by." Berger then told Lund he was
"cutting down" the tug payroll, and that Lund should lay off two men from the
Hero, one on each watch. He left the choice to Lund who laid off Derwort, as the
employee with least seniority. However, he did not lay off a man on the other
watch, because he knew the captain on that watch was quitting, and that officer
had told Lund that his deckhand, Clyde Ackley, who had been working on tugs for
nearly a year, was competent to handle it alone. Hence, as Lund told Berger, with
the captain quitting, the "thing might take care of itself." The captain in fact quit
several weeks after Derwort's termination, and Lund made Ackley captain of the
Hero on his watch, and Ackley has since handled it alone. The Hero has since been
operating satisfactorily with one man on each watch. In addition, it appears that
deckhands are a comparatively unskilled and unstable class of workers, in which
there is always a constant turnover, due to voluntary quitting, discharge for cause,
or economic layoff. Hence, Derwort cannot be considered as a highly valuable
employee of long experience, whose sudden termination during union activities in
which he was prominent might give rise to a strong inference of discriminatory
motive.
19 Montgomery understood that "Red" referred to Derwort
20 This is the name by which Captain Lund was known among the marine eml'loveeo
211 make no finding of violation of the Act as such, from Lund's remarks to Mont-
gomery, another supervisor, nor his later interrogation of Montgomery about March 26
regarding the extent of unionization of the boat crews and posGibility of a strike How-
ever both conversations fni ther show that Respondent was keeping close watch on the
union activities of the employees
599198-62-vol 131-63
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While the above circumstances together afford substantial proof of economic mo-
tive for the layoff, other circumstances detract from their force:
(1) Captain Prine testified that prior to Derwort's termination, he had always
had one deckhand to help him, and Lund admitted on cross-examination that he had
kept the Hero staffed with two men per watch for "quite a while" because he con-
sidered them necessary. Prine also testified that since Derwort's departure, he has
been able to handle the tug alone, with assistance about half the time from crew-
men on the dredge when tying up to or moving the dredge, but that he has been
unable to keep up with the usual tug maintenance, such as cleaning , painting, re-
placement of rubber bumpers, and other repairs, and that recently Lund complained
to him that some bumpers had been knocked off and not replaced. As Prine per-
sonally handled the tug 24 hours at a time, I consider him in a better position to
state his operating difficulties than Lund, who supervised all tugs from a shore sta-
tion. Lund does not deny Prine's testimony regarding the falloff in maintenance.
Hence, I do not credit Lund's story that the tug was operated as satisfactorily as
before Derwort left. Ackley, captain of the Hero on the alternate watch, was not
called to testify in support of Lund. These facts, plus Roberts' statement that "they
could get by" with elimination of two men from the Hero, persuade me that neither
Lund nor Roberts, who were directly concerned with efficient operation of the dredge
and its tender, were wholly in accord with Berger's decision to cut the Hero's crews
in half, and that the elimination of Der-wort made it more difficult for Prine to carry
out his operation and keep up with tug maintenance.
(2) Respondent does not explain why it did not correct the alleged disparity in
the dredge payrolls and unusual size of the tug payroll by transferring the Hero pay-
roll to that of the dredge Broward, nor how or to what extent elimination of two
men from the Hero brought the tug payroll more in line with some financial norm
or criterion desired by Respondent but not disclosed in the record. If this reduc-
tion effected a significant savings in tug costs, Respondent could easily have shown
that by its books from which it produced much data regarding the welders' payrolls
and workhours. In any event, a desire to adjust an alleged imbalance in its cost
records seems to me to be a very weak reason for termination of an otherwise satis-
factory employee, whose work was praised by Prine.
Although the issue is close, I am, constrained to conclude from all the pertinent
facts and circumstances pro and con, that Respondent has failed to sustain its burden
of going forward with evidence adequate to rebut the prima facie case of discrimina-
tion made out by the General Counsel, and that a preponderance of substantial proof
on the record considered as a whole shows that Respondent terminated Derwort on
March 18, 1960, because it knew that he was prominent in organizing a union among
the employees, and desired to eliminate him for that reason, and that it used its
pending retrenchment program as the pretext for his termination by laying off Der-
wort. Respondent discriminated against him in regard to his tenure of employment,
and thus discouraged membership in the Union and other concerted activity of its
employees, in violation of Section 8 (a) (3) and (1) of the Act.
D. The alleged discrimination against Frank D. Kersey
Kersey was hired in January 1957, and worked thereafter as a clerk in the Allens
Creek yard office under the supervision of Secretary and Office Manager Delaney.
His duties were mainly clerical, but he also operated the yard scales in the absence
of Scale Clerk Henry W. Bragg, and collected bills, ran errands, and performed
other administrative work assigned to 'him by Delaney. Due to Delaney's disabilities,
most of the day-to-day operation of the office devolved on Kersey. As found above,
Delaney detailed him on March 16 to find out the extent of the union activity in the
yard, and on the 17th he was advised by Delaney that management suspected some-
one in the office of being "behind" the union organization, although Delaney em-
phasized that Kersey's name had not been mentioned specifically. There is no sub-
stantial proof that he was actually involved in the campaign. Kersey's charge herein
was served on Respondent May 7, 1960, and I find from uncontradicted testimony
of Delaney that after he saw the charge, he asked Kersey if he was a member of the
Union, and Kersey said he was not. On the morning of the discriminatory layoff
of the welders, Kersey had indicated in the discussion with Neal found above that
he knew something about election procedure under the Act.
The amended complaint alleges that about May 2, 1960, Respondent discrimi-
natorily "reduced the hours of work" and "terminated other economic benefits" of
Kersey.
During his employment up to April 25, 1960, Kersey had worked 56 hours a week,
for which he received a gross pay averaging about $80 per week. Under an in-
BENTON AND COMPANY, INC. 979
formal arrangement with Delaney, he was not paid at overtime rates for overtime
work nor was his pay reduced for time off, hence his weekly paycheck remained
about the same despite fluctuations in actual hours worked. In the same period,
Kersey used his own car to collect bills and run other errands for Respondent, for
which he was allowed to take gasoline from the company pump, in accordance with
a company practice still existing at the time of the hearing.
During the week of April 18, 1960, Delaney told Kersey and Bragg that beginning
on Saturday (April 23) hours of employees at the yard would run from 8 a.m. to
4:30 p.m. When the clerks asked if this would affect their pay, Delaney said he did
not think so, as Respondent was only changing the hours, that the clerks, like the
crane operators, would probably work shorter hours for the same pay, and their
hourly rate would be adjusted accordingly.
On April 25, 1960, Weenick and Arthur Huffman took Kersey to the office of
Respondent's counsel in St. Petersburg, where Kersey was asked to sign a statement
apparently relating to the issues herein.22 Kersey refused to sign it, saying it was
not true in certain particulars. After he pointed out the errors, counsel had it
changed and retyped, but Kersey refused to sign it claiming it was still incorrect.
Counsel then gave him a copy and suggested Kersey show it to his own lawyer, and
said that maybe he might then decide to sign it. However, the attorney made it
clear to Kersey that he was under no compulsion to sign it. Kersey apparently never
signed the statement. The next day, Vice President Huffman told Kersey and Bragg
at the yard that the office hours thereafter would be 7:45 a.m. to 4:45 p. m., and
that they should not work overtime but leave promptly at 4:45 p.m. He also told
Kersey not to order any more gasoline for the yard pump, that Respondent was dis-
continuing its use. Kersey later asked Delaney about the gas pump order, and
Delaney told him there was nothing he could do about it, that it had just been an
arrangement between the two of them. On or about Wednesday, April 27, Huff-
man told Bragg that his pay would be cut. On or about Monday, May 2, Delaney
told both clerks that their pay would be cut, that they would be paid for hours actu-
ally worked, which would be five 9-hour days, or 45 hours per week 23 Kersey also
testified that: In this conversation Delaney told him the paycut and gasoline order
was effective the day after he had visited the office of the company attorney. Kersey
replied that this was a "clear case of discrimination" because of the effective date,
and Delaney replied that he hoped Kersey would not feel angry with him, that he
had nothing to do with it, but was just following orders. Bragg testified that, on
one of his usual visits to Delaney's house the weekend of April 30-May 1,24 he had
a talk with Delaney as follows:
And he told me that he had some bad news for me. He got out of the car and
said, "As you know, Frank is on the list with the company." Then
I went over that following night and he told me about-Well, he asked me if Art
Huffman hadn't told me about our new hours and that our pay would be cut,
which he hadn't told me of, and that night he explained that we would work
40 hours and be paid for 5 hours overtime, time and a half, which we wouldn't
work. And I then told him that-I says "well, they sure must have it in for
Frank Kersey"-I just said Frank; and he then told me that-his exact words,
he said, "Just between you and I, Frank is the cause of your pay being cut,"
And I got up and went into the living room, and as I went into the living room
he told me, "Well, you know the company can't fire Frank."
Bragg also testified that on an unidentified date after this talk, Delaney told him that
if the Board did not take jurisdiction over the pending case, Frank would be "in hot
water."
In the light of Respondent's antiunion animus and other unfair labor practices,
the above facts and testimony in sequence present a prima facie case of discrimina-
tory action against Kersey In answer, Berger, Weenick, and Hamilton testified
that, as part of the retrenchment program, and specifically due to the buildup in
shell inventory, Respondent on April 25, 1960, cut the loading hours in both yards
from 10 hours to 8, after clearing the change with its main customers, and learning
they had no objection. At the same time the hours of crane operators and other
22 The original charges in this case were filed on March 22, 1960, and served on Re-
spondent on March 23
"The above facts are based on credited testimony of Kersey, Bragg, Delaney, and
Huffman.
24 Bragg lived across the street from Delaney, drove him to and from work and home
for lunch daily, and also visited him nearly every weekend, and the two talked quite
freely with each other.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
yard employees were reduced from 10 to 8, and those of four scale clerks (two in
each yard) from 10 to 9, with no Saturday work. Respondent has had no trouble
in handling its products and servicing customers under the reduced schedule. As
early as January Respondent had discovered that its crane operators' rate of pay
was below the area level, and Huffman had recommended to Berger that their pay
rate be raised; Hamilton had been asking for it for about a year. This was ac-
complished at the same time as the cut in hours, by raising the operators' hourly
rate to compensate for the shorter hours and prevent a reduction in takehome pay
and possible loss of the operators. The actual adjustment resulted in a $1 reduc-
tion in gross weekly pay for crane operators, yardmen, and scale clerks. About a
week after, the yardmen were given in effect a slight raise in pay rate, when their
reporting time was advanced from 6:30 a.m. to 7 a.m. without change in weekly pay.
I credit this testimony, which is uncontradicted and supported by that of operator
Geoige S. Nobles, and I consider it an effective rebuttal to the prima facie case,
because it clearly militates against Kersey's self-serving charge that he was singled
out for a cut in hours and pay, and instead shows that he was treated like all other
yard and office employees in that respect. There is no allegation in the amended
complaint that the pay reduction suffered by other employees violated the Act, and
it is inconceivable to me that Respondent would penalize its whole workforce in
order to discriminate against Kersey to the extent of $1 per week. In light of these
facts, Bragg's rather disjoined and fragmentary story that Delaney volunteered in
one talk that Kersey was in the bad graces of the Company (without any apparent
context), and said in another that Kersey was the cause of Bragg's paycut, although
not completely denied by Delaney, loses force as cogent evidence of discriminatory
intent toward Kersey. Delaney's only recollection is that once he told Bragg that
no one had been treated better by the Company than Kersey, and that he personally
was provoked by Kersey's attitude 25 and I am inclined to believe his version, be-
cause other testimony of Kersey and Delaney indicates that from the beginning of
Kersey's employment Delaney had been very lenient with him in the matter of time
off and had even defended his use of gasoline when questioned by a company official;
in addition, Respondent had been liberal in taking care of some of his medical and
other personal financial burdens. Hence, it is but natural that Delaney would re-
sent Kersey's great indignation over a change in working conditions that meant only
a small pay reduction, and also eliminated overtime and Saturday work; and in the
light of the companywide change in hours and pay, and the lack of probative evidence
that Kersey actually engaged in union activity or joined the Union, the other remarks
attributed by Bragg to Delaney appear equivocal.
The real reason for discontinuance of the gas pump at Aliens Creek yard is shown
by credible testimony of Kersey and Berger, on which I find that- The pump was
originally located in a far corner of the yard, where its contents were used mainly
for cleaning and fueling machinery, cranes, and trucks; in addition, Kersey and a
few other employees were allowed to take gas from it for their cars when they used
them on company business. However, there was originally no written check on
use of the gas, and when Respondent discovered an unusually high gas consumption
without apparent explanation, Arthur Huffman talked to Kersey about it several
times, and then had the pump moved near the office so that office personnel could
better supervise its use. When this move apparently achieved no better results,
Respondent decided to discontinue its use entirely at the time of the cut in hours,
and advised Kersey accordingly. However, Respondent has still continued the prac-
tice of allowing employees who use their cars on company business to procure
gasoline on company credit, and Kersey still has the benefit of it when occasion
arises. There is no clear proof that Kersey's duties have been changed so as to
eliminate his use of his car for company business when requested. These facts far
outweigh any implication of discrimination which might arise from the timing of
the gas cut order; and of course Kersey's self-serving statement that its application
to him as of April 26 was discriminatory has no probative effect.26
2e Delaney said he told Bragg that, so far as he was concerned, Kersey was "on my
personal - - - - list" The four blanks stand for a four-letter, vulgar, scatological word
2s Bragg also testified that since the change in hours, Kersey has been performing
maintenance and janitorial chores in the office, which he had never done before, while
Bragg continued his duties as scale clerk However, Bragg admits that he has always
cleaned and maintained his own scale office, and that other scale clerks do the same
There is no allegation that Respondent improperly imposed harder or degrading working
conditions upon Kersey Hence, I do not consider the assignment of these chores as
substantial evidence of discrimination, but more consistent with Respondent's general
retrenchment program
BENTON AND COMPANY, INC. 981
Considering all of the above facts and circumstances, I conclude that the case
adduced by General Counsel at best raises only a strong suspicion that Respondent
may have suspected Kersey as being the office employee behind the union organi-
zation, and retaliated by his paycut and the gasoline order, but in view of the lack
of substantial proof of union activity on his part, and the cogent facts adduced by
Respondent regarding the reasons for the pay and gasoline cut, I must conclude that
Respondent has sustained the burden of rebutting the prima facie case and that
General Counsel has not met the ultimate burden of proving discriminatory action
against hun as alleged. I therefore grant Respondent's motion to dismiss the
amended complaint as to Kersey.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with Respondent's operations described in section I, above, have a close, inti-
mate, 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 Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action
which will effectuate the policies of the Act.
Having found that Respondent has discriminated in regard to the tenure of
employment of Lloyd G. Blake, George C. Stuart, Russell Johnson, Dan W.
Derwort, John Crawford, and Robert E Claycomb, I shall recommend that
Respondent offer to each of them immediate and full reinstatement to his former or
substantially equivalent position,27 without prejudice to seniority and other rights
and privileges, and make each of them (and Jones) whole for any loss of pay he
may have suffered by reason of the discrimination against him by payment to him
of a sum of money equal to that which he would have earned as wages from the
date of such discrimination to the date of reinstatement or a proper offer of rein-
statement, as the case may be, less his net earnings during such period, the backpay
to be computed on a quarterly basis in the manner established by the Board in
F. W Woolworth Company, 90 NLRB 289. I will also recommend that Respond-
ent preserve and, upon request, make available to the Board or its agents, all perti-
nent records and data necessary to assist in analysis and computation of the amount
of backpay due.
In view of the nature, variety, and extent of the unfair labor practices com-
mitted, I shall also recommend that Respondent be ordered to cease and desist from
infringing in any manner upon the rights of employees guaranteed by Section 7 of
the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following -
CONCLUSIONS OF LAW
1. The above-named Union is a labor organization within the meaning of Section
2(5) of the Act.
2. By laying off and refusing to reinstate employees to the extent found above
because of their participation in union activities, thereby discouraging membership
in said labor organization, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a) (3) of the Act.
3. By said layoffs and other conduct found above, Respondent has interfered
with, restrained, and coerced employees in the exercise of rights guaranteed to
,them by Section 7 of the Act, and thereby has engaged in and is engaging in unfiiir
labor practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com
imerce within the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not discriminated against Frank D. Kersey as alleged in the
amended complaint.
[Recommendations omitted from publication.]
T Leo Everett Jones is not included because he was apparently reinstated on June 20,
1960