Coral Homes

National Labor Relations Board - Board Decisions

Apr 26, 1962

136 N.L.R.B. 1581 (N.L.R.B. 1962)

CORAL HOMES 1581
Evendale Lumber Company, Inc . doing business as Coral Homes 1
and American Federation of Labor and Congress of Industrial
Organizations
Evendale Lumber Company, Inc. doing business as Coral Homes
and American Federation of Labor and Congress of Industrial
Organizations. Cases Nos. 9-CA-2343 and 9-C-4-2398. April
26, 1962
DECISION AND ORDER
On February 7, 1961, Trial Examiner William Seagle issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices alleged in the complaint, and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the Intermediate Report attached hereto. The Trial Ex-
aminer also found that the Respondent had not engaged in certain
other alleged unfair labor practices, and recommended that those
allegations of the complaint be dismissed. Thereafter, the Respond-
ent filed exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, and Brown].
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 brief, and the entire record in
this proceeding, and hereby adopts the findings,' conclusions, and
recommendations of the Trial Examiner.
ORDER
The Board adopts as its Order the "Recommended Order" of the
Trial Examiner.
i The request of the Respondent for oral argument is hereby denied because the record,
including the exceptions and brief , adequately presents the issues and positions of the
parties
2 We hereby correct the following inadvertent errors in the Intermediate Report which
do not affect the Trial Examiner 's findings , conclusions , and recommendations, or our
agreement therewith : ( 1) The Respondent ' s circular letter to the employees on the erec-
tion crew was dated August 2, 1961 , rather than August 21 , 1961 , as stated in the Inter-
mediate Report ; and (2) Becker was the plant manager, active in the management of the
plant, rather than Bales as stated by the Trial Examiner on page 11 of the Intermediate
Report.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge and amended charges dated , respectively, June 16, July 13, and
September 5, 1961 , a complaint and amended complaint dated , respectively August 4
and September 20, 1961, were issued against the Respondent . The amended com-
plaint charged the Respondent with violations of Section 8(a)(1) and (3) of the
136 NLRB No. 142.
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act through the activities of four of its officials or supervisory employees, i.e.,
Robert Bales, its plant superintendent; Wilford Acree, a group leader; Robert Becker,
its plant manager and vice president; and Robert Kipp, its president. The charges
against Robert Bales alone included no less than 21 specifications of acts of inter-
ference, restraint, or coercion. In its answer the Respondent denied the commission
of any unfair labor practices, but admitted the supervisory status of Bales, Becker,
and Kipp.
I held a hearing with respect to the allegations of the complaint at Cincinnati,
Ohio, on October 10, and 11, 1961. At the close of the taking of testimony, counsel
for the General Counsel and the Respondent waived oral argument but, subsequent
to the hearing, filed briefs which I have duly considered.
Upon the record so made, and based upon my observation of the witnesses, I
hereby make the following:
FINDINGS OF PACT
I. THE RESPONDENT
The Respondent, Evendale Lumber Company, which also operates under the
trade name, Coral Homes, is an Ohio corporation. It is engaged in the manufacture
of prefabricated homes at its plant in Cincinnati, Ohio. Until recently the Respond-
ent also engaged in the erection of such homes but as of August 16, 1961, it sold
its erection business to the Tatu Erection Company.
During the year 1960, which is a representative period, the Respondent had a
direct inflow of goods and materials, in interstate commerce, of a value in excess
of $50,000. These goods and materials were shipped to its plant directly from points
outside the State of Ohio. Jurisdiction is not disputed.
The plant presently operated by the Respondent, which covers about 12 acres that
are enclosed by a wire fence, is located on Fields Ertel Road. The plant had previ-
ously been located on Evendale Drive but had proved inadequate for all of the
Respondent's operations. At this time it also had leased a plant which was located
on Glendale-Milford Road in Woodlawn. During the month of June 1961, when
the Union was attempting to organize the Respondent's employees, the Respondent
was engaged in moving from the Evendale to the Fields Ertel Road plant, and the
shipping and receiving department was then still at the Evendale plant.
II. THE LABOR ORGANIZATION INVOLVED
The AFL-CIO (hereinafter referred to as the Union ) is a labor organization that
has sought to organize the employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Union's attempt to organize
There has been no history of collective bargaining among the employees of the
Respondent. There had been an attempt to organize its employees in 1958 but it
had been unsuccessful. The present attempt had its beginning in the latter part of
May 1961. It seems to have been precipitated by the disciplining of two of the
Evendale employees, Donald Eugene ("Gene") Richardson, who had been hired as
an employee in the shipping and receiving department on May 1, 1961, and James
D. Mitchell, who had first been employed in the middle of April 1959, and who ran
a saw in the panel department. Gene Richardson and Mitchell failed to report for
work on a Saturday, which was probably May 29, and on the following Monday
they were sent home for the day when they did report for work. They talked to
Orville Bussell, a leadman in the panel department, about getting the plant unionized,
and Orville Bussell and Gene Richardson talked to several other employees. The
upshot of this was that they resolved to have a meeting on Sunday, June 4, with a
union representative who was to be contacted by Gene Richardson
The meeting of June 4 appears to have been a rather furtive affair. It was not
held in a union hall but in the rear of a tavern in Sharonville-Dave's Tavern.
Various employees testified that from four to nine employees were present at the
June 4 gathering, and the record affirmatively shows that at least six employees
were present.' The employees present talked to Al Jordan, a representative of the
'These employees were Gene Richardson, Orville Bussell, George Hasty, Edgar Helton,
Billy Edward Crank, and James D Mitchell, as appears from their own testimony
'Mitchell testified that he arrived at the meeting when it was practically over Another
employee was also late in arriving at the meeting but he is not identified.
CORAL HOMES 1583
United Steelworkers, who informed them that he had no jurisdiction in their field
of employment.
However, on Monday, June 5, Jordan informed William Kircher, the regional
director of the AFL-CIO of the interest of the Evendale employees in union
organization, and Charles M. Elder, one of its organizers, was instructed by Kircher
to attempt to organize the employees. Later in the day, Elder received a telephone
call from Gene Richardson, who told him that he had attended the meeting of
June 4, and the two of them arranged to meet at Richardson's home the following
day.2 At this meeting they planned to handbill the plant on Fields Ertel Road and
distribute union organization cards to the employees as they left the plant at
4:30 p.m. the following day, Wednesday, June 7. However, at about noon on
Wednesday, Richardson telephoned to Elder and they arranged to meet at 3.30 p.m.
that day, since he had learned that the employees would be getting off at that time.
When Elder arrived at Richardson's home, the latter was not there, and Elder pro-
ceeded by himself to the plant, arriving there a little after 3.30 pm. He drove
down Fields Ertel Road past the plant but saw that no employees were leaving.
Consequently, he went to look for Richardson, and found him at a garage near his
home which was within sight of the plant. At 4.30 p.m. Elder-still alone-drove
past the plant again, but again he saw no employees emerging from it. He went
back to Richardson, and at 5:30 p.m. the two of them together circled the plant.
When Elder commented on the failure of any of the employees to come out of the
plant, Richardson remarked: "That's funny, that's the boss, and he doesn't usually
leave first." "Well," observed Elder, "maybe he is looking to see if the coast is
clear." Richardson was referring to Robert Bales, the plant manager, who was
then making his exit from the plant. In order to keep out of Bales' sight, Elder and
Richardson drove around various side streets near the plant but as they headed back
toward the plant itself, they perceived that Bales was following them in his car.
They, therefore, passed the plant and pulled the car into a driveway. However,
Bales drove his car right behind them in the driveway, blocking their car. Elder
and Bales both stepped out from their cars, and the latter asked the former why he
was watching his plant. Elder explained that he was planning to handbill the plant,
and told Bales in pretty vivid and emphatic language to get his car out of his way.
Bales got into his car and left, and Elder and Richardson drove back to the plant,
parking the car on Fields Ertel Road, and proceeding to the plant entrance Since
most of the employees had already gone home, Elder and Richardson distributed
only some nine leaflets. Bales left the plant again with three or four supervisory
employees, one of whom approached Elder and told Elder that Bales wanted all of
them to be given leaflets. Elder, therefore, gave them all leaflets, Bales being the
last to receive one. When Bales received his leaflet, he very deliberately tore his
into shreds, and dropped them in the driveway. Whereupon Elder and Richardson
left the plant.
Bales did not confine himself, moreover, to interfering with Elder's handbilling of
the plant. Through Wilford Acree, who was known among the employees by the
sobriquet of "Pappy," he also took measures the following day, June 8, to prevent
the employees from leaving the plant during their lunch hour. The employees were
accustomed to eat their lunches at a delicatessen across from the plant. But on
June 8 Acree instructed the employees to have their lunches inside the plant, and
told them that a chuckwagon would supply their lunches. Only two employees
went to lunch that day outside the plant, Don Johnson and David Blair, both of
whom were supervisory employees. June 8 was the only day that the Evendale
employees were not allowed to leave the plant for lunch. The chuckwagon has
been coming to the plant since June 8 but the employees now have the option of
leaving the plant for lunch.
B. The Respondent 's antiunion campaign
In the meantime, Bales had also been busy in attempting to dissuade the employees
from having anything to do with an outside union , and to persuade them to or-
ganize an inside or company union . These attempts had been made even before the
appearance of Elder and Richardson at the gate of the plant. On the very morning
after the meeting of the employees at Sharonville, namely on Monday morning,
June 5, Bales had interrogated a number of the employees about their attitudes to-
ward union organization.
2 Richardson had been discharged by the Respondent on June 5 While the circum-
stances of his discharge are not clear, it seems that it had something to do with Iii-
failure to unload a boxcar of lumber In any event, Richardson 's discharge is not charged
as discriminatory , and I assume, of course, that it was for just cause.
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Monday morning, June 5, shortly after he started to work at 7 a.m., Acree
told Orville Bussell that Bales wished to talk to him . Bussell went to Bales' office,
and the plant manager started the conversation by telling Bussell that he had had
good reports about him, and intended to make him a foreman over the panel line.
Bales then asked Bussell whether the latter had anything to tell him . Bussell coun-
tered by asking Bales what he wanted to know. Bales then remarked that he had
seen "a bunch" of the employees in Sharonville on Sunday , and asked Bussell directly
whether he had been among them . Bussell admitted his presence at the meeting,
whereupon Bales commented: "Well, I knew you was because you had on a red
shirt and blue pants and red socks." Bales also said that he had heard "some details
about a union trying to get in." Bussell pretended that he knew nothing about the
Union, and that they had been in Sharon Woods playing ball. Bales then referred
to the fact that the last time that a union had attempted to organize the plant Bussell
had told him the truth when called into his office and questioned, and that he wanted
him to tell the truth on the present occasion . When Bussell persisted in his denial
of any knowledge of union activity, Bales added that they could not have a union
in the plant, and that they ought to organize a company union. He also pointed
out that if a union came in , the firm would lose Fred Ross , their biggest customer,
who represented about 50 percent of their business . Bussell returned to work at
this point.
As Bussell left Bales' office, another employee, James D. Mitchell, who ran a saw
in the panel department , was being ushered into the office by Acree. In talking to
Mitchell, Bales did not at first refer directly to the Union but remarked that he had
heard that the employees were trying "to get a little game started." However, when
Mitchell pretended that they were "going to get a baseball game or something
started," Bales asked him whether he was one of those who had been down in Sharon-
ville, and whether he had any complaints.
Also on Monday, June 5, at about noon, George Hasty, an employee who cut
trim in the door shop, which was then still at the old plant on Evendale Road, was
told by Alonso Richardson, his foreman, that there was union trouble, and was
taken by the latter to see Bales in his office at the new plant. When they got there,
Bales asked Hasty "what went on in Sharonville on Sunday." Bales wanted to know
whether Hasty was for the union, and the latter, who felt that this was putting him
"on the spot," evaded this question but, when Bales also asked him who had been
present at the Sunday meeting of the employees , told him the names of "some of
the guys."
Since one of the interrogated employees, Orville Bussell, had not taken very kindly
to the suggestion of organizing an inside union, it was necessary for Bales to look
elsewhere . He turned , apparently , to another leadman in the panel department,
James Bowman, who had signed a union card at the instigation of Gene Richardson.
This occurred about a week after Bales' approach to Bussell. The morning after
the handbilling of the plant Bales had already sought to enlist Bowman 's sympathies
by remarking to the latter that the union man-meaning Elder-had "talked mean
to him." Now Bales went further and asked Bowman to go around and "talk to the
boys, see if they would go along with union ." Bales pointed out to Bowman that,
while a foreman could not engage in this enterprise , a leadman could do so . Conse-
quently, Bowman went and talked to two of the employees, Ed Wolfe 3 and Cecil
Lyons, who was a layout man on the panel line, and who was to loom large in
Bales' plans to combat the union . Bowman met with a cold reception , however, at
least from Wolfe , when he broached the idea of an inside union . Bowman reported
this to Acree, requesting the latter to tell Bales of his lack of success with the "boys"
but not mentioning their names. The following week Bowman had a conversation
about the outside union with Bales himself , and Bales told Bowman that if the Union
succeeded in organizing the plant , one of the firm's competitors , Valley Homes, which
was also engaged in the construction of prefabricated houses , would "take their
business ." At about the same time Bowman also had a conversation with Acree in
which the latter told him that the Union had "planted" Richardson among the Even-
dale employees-meaning, presumably that his employment had not been bona fide
but had as its purpose the promotion of union organization.
The testimony of Cecil Lyons shows that both Bales and Acree went further
with him than even with Bowman : they attempted to get Lyons not only to promote
an inside union but also to spy on the activities of the outside union . Lyons had
signed a union card but he had not attended the meeting of June 4 in Sharonville
because his people in Kentucky were sick . On Monday , June 5 , just before quitting
time, he had a conversation with Bales in which the latter remarked that he had
8 The nature of Wolfe's job does not appear precisely but he may have operated a nail
driver.
CORAL HOMES 1585
fired Gene Richardson and that "there would be a bunch more of them dismissed
if they didn 't quit this union talk ." The next day Bales had Lyons brought into his
office , and, after referring to the assistance he had formerly rendered in keeping the
Teamsters out of the plant, declared that he would appreciate it if he would also
help out this time because otherwise they might lose Ross' business , and the plant
might have to shut down . Lyons then told Bales that the employees were "trying
to get a union into the plant" but that he himself had torn up his union card, and
that he had thrown it out of the window of his car as he was driving, although this
was untrue . Thereupon Bales threw a $20 bill on the table without explicitly stating
what it was for but he did say that Lyons had earned it. Lyons later intimated
to Bales that he would tell Bales about union meetings but that he would do it for
the sake of his job and the company but not for money. Bales also asked whether
he or Gene Richardson or Orville Bussell had had "a hand in trying to get the
union in" but Lyons stated that he did not know. When Lyons expressed the fear
that if the Union or the employees found out that he was helping out he might be
beaten up, Bales suggested that he could leave town and that he would take care
of him. Thereafter Lyons talked to Bales virtually every day but all he told him
was "when the union was coming out to the plant one day."
Acree also encouraged Lyons to spy on union activities , or sought otherwise to
obtain knowledge of the Union's affairs, or to spread rumors about the dire con-
sequences that would ensue upon union organization . Lyons also talked to Acree
almost every day, and on one occasion in June, Acree transferred Lyons to the nail
driver so that he could ascertain the union sympathies of the employees in this
group. Acree also suggested that Lyons hang around the men 's room with the same
purpose; and like Bales, asked Lyons to promote the inside union . When after talk-
ing to Ed Wolfe, Lyons reported to Acree and Bales that this effort would be worth
nothing, he was told that a lot of the employees would be dismissed "if they didn't
forget about the whole thing." About the middle of June, Lyons told Acree that
he had received a letter from the Union and the latter excused him from work, so
that he could go home, and get the letter. After Lyons returned to the plant with
the letter , he turned it over to Acree, who in turn showed it to Bales , as well as to
Becker .4
The Respondent 's attempt to discourage the organization of an outside union was
climaxed by a speech made to its employees by Robert Kipp , its president. The
speech was delivered in the latter part of June to the employees , who had been
assembled to hear it after they had had their lunch. The text of the speech, which
had been prepared in advance , consisted of several pages, but it was not offered in
evidence either by the General Counsel or by the Respondent , and Kipp himself was
not called as a witness by the Respondent to testify with respect to it. As a matter
of fact, Kipp did not entirely follow the text of the prepared speech. He was inter-
rupted by questions from employees even as he was reading the speech , and paused
to answer these questions . In addition, there was a question -and-answer period at
the conclusion of the speech . In all, the meeting at which the speech was read took
approximately 1 hour and 15 minutes.
What Kipp actually said on this occation is to be gathered from the testimony of
two of the employees , Edgar Helton and James Mitchell. Helton 's recollection of
the event was vaguer than that of Mitchell but, it is significant that what seems to
have impressed Helton most was that Kipp declared that "he didn't want no union
in there." Helton also remembered that Kipp declared that if there was a union
there would be no overtime , and that they would lose the business of Ross with
whom they did 52 percent of their business . Finally, Helton remembered also that
Kipp said that "he would set up a grievance plan union there among us employees,
that if we had a gripe or something like that, we would have one of them guys there
to bring it to, if we had a gripe or something and, just straighten it out among
ourselves."
Mitchell , whose recollection of Kipp's speech was somewhat more vivid than
Helton 's, mentioned the same points as the latter but supplied the additional details
that Kipp had also said that if the Union got into the plant there would be bigger
layoffs, and that the Union would bring outsiders in to do some types of work, such
as electrical work . What particularly lodged itself in Mitchell's memory was that
Kipp declared that "if we got this outside union in, we were going to be nothing but
door mats . . . ." Mitchell also remembered that Kipp , in speaking of the formation
of an inside union , had mentioned that he had a lake 2 or 3 miles from the plant
where the employees could go to fish . Finally, Mitchell recalled the answers to two
4 Testimony was not offered with respect to the contents of the letter but there is no
doubt that it came from the Union
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
questions put to him by employees. One of these employees asked what would
happen if half of the employees wanted the Union, and half of them did not want it,
and Kipp replied that if the Union got 51 percent it would be in but that "the other
49 percent, if they were strong enough, they would just have to fight over it. " 5
Another employee brought up the question whether they would be paid more than
straight time for overtime work, and Kipp replied that such would be the case only
if they shipped houses out of the State, to such States as Kentucky and Indiana.
C. The incident of the Arlington Tavern
In connection with the money which Bales offered him to spy on the union, Lyons
testified that he boasted to three other employees, Billy Crank, James Mitchell, and
Melvin Bussell, about Bales' offer while the four of them were having a beer in a
tavern, and that when these three employees seemed to doubt his story, he made a
telephone call to Bales from the tavern at about 9 a.m., while the others were listen-
ing in on the telephone and on an extension over the bar, in order to get Bales to
admit the offer in the course of the conversation.
The telephone call was made early one Saturday morning in June, probably about
the middle of June. The four employees were driving in Lyons' car but Lyons had
been drinking the previous evening, and was not disposed to work. They had, there-
fore, stopped at the bar, and, certainly, the ostensible purposes of the telephone call
to Bales was to excuse the absence of the employees from work.6 However, Bales
was not in the office when the telephone call came in, and the call was actually taken
by Robert Becker.
According to the testimony of Lyons, Becker asked him why he had not reported
for work, and he explained that he had got drunk the night before and felt sick
but that he had succeeded in getting some of the employees to change over to a shop
union; when Becker asked for the names of these employees, he remarked that
Becker probably had a good idea that these employees were the ones who rode to
work with him, and added that he must know that he had turned down money to
help the company; and Becker observed that he knew all about this, that he was
well pleased. and to keep up the good work.
Crank, Mitchell, and Melvin Bussell were called as witnesses by the General
Counsel to corroborate Lyons' testimony concerning the telephone call from the
tavern. Although they were segregated, and each one of them did not, therefore,
hear the testimony of the others, the testimony of Crank, Mitchell, and Bussell was
in close agreement, allowing for the natural divergencies in the testimony of different
witnesses about the same event. This was true not only with respect to the substance
of the conversation between Lyons and Becker 'r but also with respect to the me-
chanics of the telephone call,8 and the physical layout of the taverns 9 It was only
with respect to the name and precise street location of the tavern that two of the
four employees were vague, although even they knew the neighborhood in which it
was located, namely, Lockland or Arlington Heights, two neighborhoods which ad-
joined each other. Mitchell and Melvin Bussell, who lived in the vicinity of the
tavern, both identified it readily as the Arlington Tavern. Indeed, Mitchell cashed
checks there. But Lyons first testified that the name of the tavern was the Wavering
Tavern, and then that it was the Arvin Tavern, and Crank did not know the name of
the place at all.
In testifying about the incident of the Arlington Tavern, Becker, who was called
as the Respondent's second witness, admitted that he had received a telephone call
from Lyons on a Saturday morning in June, and he fixed the time of the call at about
5 However, Mitchell did not recall Kinp's exact words
e Actually Crank was not scheduled to work that Saturday morninc
7Lyons' own testimony emphasized the espionage aspect of the conversation, while in
their testimony his companions stressed the explanation for not reporting to work This
seems, psychologically, readily understandable, for Lyons was more interested than his
companion in making good his boast
According to their testimony, one of the four employees listened with Lyons on the
pay telephone to the telephone conversation with Becker, while the other two listened to
it on an extension behind the bar Lyons himself did not specify who was listening in
with him but the testimony of the other three employees was in perfect agreement that
Mitchell was on the telephone with Lyons and that Crank and Melvin Bussell were on
the extension It is precisely with respect to such details that the witnesses would have
made slips if they were fabricating a story
g Lyons even testified correctly to such a detail as that there were three steps leading
up into the tavern.
CORAL HOMES 1587
9 a.m., which is in agreement with the testimony of Lyons and his companions.
According to Becker, Lyons did ask to talk to Bales but he explained to Lyons that
Bales was not in, and Lyons then told him that he had a hangover from drinking the
night before, and was not, therefore, able to work. But Becker denied that there was
any reference in their telephone conversation to the taking of money to convert any-
one to a company union.
Becker was followed to the stand by two additional witnesses produced by the
Respondent, one Perry Morgan, a part-time bartender who worked at the Arlington
Tavern on Saturdays, and by one Lucille Monnig, the lady who was the owner of
the Arlington Tavern. Their appearance proved to be a rather melodramatic episode
of the hearing. Lyons and his three companions were lined up in the hearing room,
and Morgan and his employer were asked to identify them. They were unable to
do so. They also testified that the Arlington Tavern never opened for business
until 10 a.m., and that while there was a pay telephone and extension at the Arlington
bar, the extension was behind the bar, and could not be reached by customers on
the other side of the bar, since the extension cord was not more than 24 or 30 inches
in length. Notwithstanding this testimony, Lyons, Crank, and Mitchell, when called
as rebuttal witnesses, reaffirmed their previous testimony.
D. The status of Acree
In testifying about his status, Acree gave evasive and contradictory testimony. He
attempted to represent himself during his direct examination as practically no more
than a leadman. "Well," he testified, "the group leader and the leadmen are prac-
tically the same thing." He put himself in the same category as Orville Bussell,
Alonso Richardson, Don Johnson, Stan Wernsing, and David Blair, all of whom he
characterized as leadmen. He denied that he had power to hire or fire but admitted
that he could move employees between the truss and panel departments, the two
departments which he claimed to supervise. He also testified that when the union
came in, he was not excluded from discussions of the union but participated in
it just like all other employees.
But on cross-examination Acree admitted that the chain of command was from
Bales to him; and from him to Don Johnson, David Blair, and Orville Bussell. He
also admitted that he had recommended the discharge of Gene Richardson, who was
a yard employee, and that the yard was also under his jurisdiction "to a certain ex-
tent." He finally also admitted that prior to the hearing he had made an affidavit in
which he had deposed that he had never discussed the union with any employee.
Becker, the only officer of the Respondent who was called as a witness, was equally
evasive and contradictory in testifying about the status of Acree. Like Acree, he put
Orville Bussell, Alonso Richardson, Don Johnson, Stan Wernsing, and David Blair
in the same category of employees and he denominated them as "group leaders"
But on cross-examination Becker conceded that Acree was an employee above Orville
Bussell and directed his activities, and that Acree directed the activities of the em-
ployees in three departments, the panel department, truss department, and yard
department; and also that he was a step above the so-called group leaders whom he
had enumerated. After attempting for a long time to evade the question whether
Acree did not receive more pay than any other production employee, he finally ad-
mitted that he had testified in a representation proceeding involving the Respondent
that Acree made 15 to 20 cents an hour more than the highest paid employee in the
panel department 10 Although Acree had testified that even during the peak season,
he spent half of his time in working, like other production employees, Becker con-
ceded that he had also testified in the representation proceeding that Acree spent
virtually none of his time in physical labor during the peak season.
There is no doubt that Acree is a supervisory employee within the meaning of the
Act. Below Becker as plant manager and Bales as plant superintendent, there were
both "group leaders," such as Alonso Richardson, Don Johnson and David Blair, who
were supervisory employees, and leadmen, such as Orville Bussell, James Bowman
and Cecil Lyons, who were not supervisory employees. While Acree appears also
to have been denominated a group leader, he was, by virtue of the fact that he super-
vised at least three departments, considerably higher in the Respondent's managerial
hierarchy. His pay was greater than that of the group leaders and leadmen, and he
discharged more responsible duties. While he had no authority to hire employees,
he did have authority at least to recommend the discharge of employees. He was, in
io Acree himself testified that his pay was $2 30 an hour It also appears from the testi-
mony of Orville Bussell and Cecil Lyons, who were both leadmen, that they were paid
$1 95 and $1.90 an hour, respectively.
641795-63-vol. 136-101
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fact, a sort of general shop foreman, and to the rank-and-file employees he was cer-
tainly the "boss." Two facts shown by the record are highly significant in revealing
the true status of Acree. He did not attend the meeting at which Kipp spoke to
the assembled rank-and-file employees. Also, about 2 weeks before the hearing,
Acree was put on the night shift because the Respondent was conducting an experi-
ment to determine whether in the new plant it would be better to handle the increased
volume of work on two shifts in the summer months. Nothing could better illustrate
the greater extent to which the Respondent relied on Acree. This reliance was also
manifested in the commission of the unfair labor practices in which Acree was Bales'
principal assistant.
E. Concluding findings with respect to violations of Section 8(a) (l) of the Act
The evidence fully supports the allegations of the complaint relating to violations
of Section 8(a)(1) of the Act, except that in a few instances the precise locutions
specified in the complaint were not employed.il Disregarding the extreme prolixity
of the pleading, which contains variations on the same themes, it can be said that
the Respondent, either through Bales, Acree, or Becker, kept its employees under
surveillance, insofar as their union activities were concerned; attempted to spy or
spied upon the union activities of its employees; interrogated its employees with
respect to their union activities and solicited information from them concerning
such activities; encouraged the formaton of an inside or company union; interfered
with the union handbilling of the plant; staggered the quitting time of its employees
on one occasion and on another occasion prevented them from leaving the plant
for lunch in an effort to thwart their union activities; spread false propaganda against
the Union and made all sorts of threats of dire consequences that would follow upon
union organization, such as loss of business, possible shutdown of the plant, and
reductions in the employees' earnings.
Few of these conclusions require any comment. It is evident from Elder's experi-
ence on June 7 at the gate of the plant that the usual quitting times of the em-
ployees were being staggered to keep them away from the union organizer. But this
conclusion is not merely a deduction, James Bowman explicitly testified that he
went home early the day of the handbilling, and Mitchell testified that, although
prior to the day of the handbilling, he had been working a 10-hour day, which was
until 5:30 p.m., Acree sent him and three or four other employees home on the day
of the handbilling, and also that he has not been sent home at that hour since then.
Moreover, the mere fact that Elder, with the assistance of Gene Richardson, was
able to distribute only nine leaflets that day indicates that the plant was not being
operated normally that day.
So far as the chuckwagon incident of June 8 is concerned, the order to the em-
ployees not to leave the plant for lunch was doubtless issued by Acree, as is alleged
in the complaint, but it is hardly conceivable that Acree would have taken it upon
himself to issue such an order , which must undoubtedly have emanated either from
Bales or Becker. However, since Acree himself is a supervisory employee, the Re-
spondent is none the less chargeable with his conduct.
That Bales himself or someone on his behalf was keeping under surveillance the
employees who had attended the meeting of June 4 in Sharonville is apparent from
his interrogation of various employees the very morning following the meeting.
It is highly significant that these interrogations began as early as 7 a.m. in the morn-
ing of June 5, for it was at this early hour that Orville Bussell was interrogated.
Bales had, therefore, obtained or received information about the meeting on the day
it had occurred, although this day was a Sunday. This information was so exact,
moreover, that he even knew the exact color of Orville Bussell's shirt, pants, and
socks! It is equally apparent from Bales' surveillance of Elder on June 7 that he
had advance knowledge of his impending visit to the plant.
These conclusions do not rest only on the testimony of the witnesses but on the
inherent logic of the situation. That in Lyons, Bales had recruited an employee who
was prepared to spy on the activities of the Union and the union employees is, how-
ever, affirmatively established by the testimony of Lyons and his three companions
"This would seem to be so in the case of the allegations of paragraph 5(a) (IV),
5(a) (XXI), and 5 (d) (VI) of the complaint. The allegation in paragraph 5(a) (XVI)
that an employee was given gasoline money by Bales to go home and secure a union letter
is not supported by the proof, for Lyons testified that, while he was promised gasoline
money, the promise was not kept The allegation of paragraph 5(a) (XIII) that Bales
transferred an employee to a more difficult and onerous job in an attempt to thwart his
union activities is more properly an 8(a ) (3) allegation, and is considered infra
CORAL HOMES 1589
in the tavern. Despite the testimony of the bartender at the Arlington Tavern and
the owner of the tavern, I credit the testimony of Lyons and his companions.
I fully realize that Lyons, who is a self-confessed amateur spy, cannot be regarded
as a very admirable character. In addition, he was a heavy drinker, and he, as well
as Crank and Melvin Bussell, could qualify as barflies.12 But they seemed to me to
be rather simple, if befuddled fellows, who would have been quite incapable of
fabricating the stories which they told, and then of testifying with respect to them
without betraying themselves on essential details.
But, quite apart from their demeanor, there are very cogent reasons for believing
their stories. The chief architect of the Respondent's unfair labor practices was,
obviously, Bales. But the Respondent did not call him as a witness to deny any of
the unlawful activities with which he was charged by the General Counsel's witnesses.
Thus, the charges against Bales stand as wholly admitted, and this admission extends,
of course, to Lyons' testimony that Bales offered him money to spy on the union
activities of his fellow employees. The Respondent did, to be sure, call Becker as
a witness but Becker had no direct knowledge, so far as is shown by the record, of
the incident. Moreover, Becker himself could hardly be regarded as a trustworthy
witness.13 Nevertheless, Becker admitted that he received the telephone call from
Lyons at about 9 a.m., which is quite in accord with the testimony of Lyons and his
companions. This call could have been made, to be sure, simply to report that
Lyons was unable to work that day. But there is a significant detail in Becker's testi-
mony that indicates that the conversation between him and Lyons went beyond this
subject, especially when it is considered in the light of Becker's position in the plant.
Bales was the plant manager, and active in the management of the plant. He testified
that he knew the employees and their work. Now, if Lyons were merely reporting
his absence from work, he need merely have told Becker that; there was no need to
ask for Bales. But Becker admitted not only that he received Lyons' telephone call,
but also that when Lyons called he wanted to talk to Bales. This supports Lyons'
testimony, and the testimony of his companions, that the purpose of the call was
also to inveigle Bales into incriminating himself.
As the telephone call to Bales, which was received by Becker, was undoubtedly
made, various possibilities present themselves : (1) the bartender and his employer
may have been mistaken in testifying that the Arlington Tavern had not opened
before 10 a.m. that particular morning in June; (2) Lyons and his companions may
have been mistaken in testifying that the telephone call was made from the Arling-
ton Tavern before 10 a.m., and the call may actually have been made later than
this; and (3) the call may have been made before 10 a.m. but from some other place
than the Arlington Tavern.
Surely, the failure of the bartender and his employer to identify Lyons or his com-
panions almost 4 months later is meaningless.14 It seems to me also that if the tele-
phone extension cord was 30 inches in length that it could be reached from the other
side of the bar, at least with a little effort. In view of the apparently intimate ac-
quaintance of Lyons and his companions with the layout of the Arlington Tavern, it
seems unlikely that the telephone call was made from another place, and, since this
is so, it must follow that it was made, as they testified, from the Arlington Tavern
either before or after 10 a.m.
In the last analysis, however, the testimony of Lyons and his companions must also
be accepted because it fits so perfectly into the pattern of the Respondent's unfair
labor practices. As to these practices, there is the testimony of witnesses whose
credibility there is no reason whatsoever to doubt, and for the most part, this testi-
mony is not even denied. Only the testimony implicating Acree was denied by him
but there is every reason to doubt his credibility. Yet even Acree did not deny that he
asked Lyons to procure the letter that he had received from the Union. Thus, actu-
ally, even if the testimony of Lyons, as well as that of his three companions were
wholly disregarded, the posture of the case would not be affected very materially.
12 Crank testified that on some days he was capable of drinking as much as two cases of
beer ! Melvin Bussell was discharged by the Respondent on July 8, 1961, for drinking on
the company premises. There is nothing to show any insobriety on the part of Mitchell
1S His untrustworthiness is demonstrated not only by the testimony that he gave with
respect to the status of Acree but also by the testimony that he gave with respect to the
transfer of Orville Bussell to the erection crew in the field, which is discussed infra.
14I find it difficult to understand the testimony of the owner of the tavern that after
one has been in the business one gets to the point "where you automatically remember
each person that comes into your tavern." If such is indeed the case, she should have
recognized Mitchell who lived in the neighborhood and who, on occasion, had cashed
checks at the Arlington Tavern.
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Their testimony is almost entirely cumulative and repetitious of the testimony of the
other witnesses . It adds, indeed , only one significant detail to the story of the Re-
spondent's unfair labor practices, namely, that Bales offered Lyons money to spy
on the Union. The incident of the Arlington Tavern thus turns out to be a tempest
in a beer glass.
F. The constructive discharge of Orville Bussell
Orville Bussell, the leadman in the panel department, who, with Gene Richardson
had been chiefly instrumental in getting the union drive started, had been employed
by the Respondent in 1957. At about 2:30 p.m. on Tuesday, June 6, which was the
very day after Bussell had been interrogated by Bales about the Union, Bales and
Acree came out to where Bussell was working, and Bales told the latter: "We are
going to transfer you to the erection crew out in the field." He also explained that
he was being sent out at the instance of Kipp in order to train him as a supervisor.
When Bussell asked whether he had anything to say about his transfer, Bales replied:
"Not a damn thing." When Bussell asked when he was to report to the field, Bales
replied: "Right now." The erection crew was then working on Kemper Road in
Springdale, and Bussell immediately reported there, and got to work. Bussell re-
mained with the erection crew from June 6 to August 18, 1961.
Under date of August 21, 1961, the Respondent sent a circular letter to the em-
ployees on the erection crew in which it explained that it had decided to sell its erec-
tion business to the Tatu Erection Company because "experience has shown that
ERECTION does not mix with MANUFACTURING, and manufacturing is the
main aim at Evendale"; that the sale of the erection business would not mean that
the erection crew employees would lose their jobs, for as a condition of sale Tatu
had agreed to keep them on at their present rate of pay; that the transfer to Tatu
would be effective as of August 16, 1961, and that before then Tatu would be in
touch with them with regard to their employment. Following these explanations was
the statement: "We shall be happy to assist each of you in any way possible."
Bussell did not recall when he had received this letter. But on August 11 he mailed
to Robert Kipp, the president of the Respondent, the following letter: 15
I received your letter saying that you were selling the erecting part of the
business to Tatu, the erecting company. I tried to call them, but the telephone
operator said they didn't have a phone so that is why I am writing to ask that
you put me back in the plant where I worked until June of this year.
Thank you
To this letter, Bussell never received a reply.
As a leadman, Bussell appears to have been in charge of the employees on the
erection crew in the field. He would check and correct their work . He denied that
he was asked to make any reports on the problems which he might encounter but
he admitted that on Fridays of every week, when he came to the home office for
his check, he would be asked how the work was going , and he would state what
he thought was wrong. This, apparently, would be relayed to Kipp.
It was not unprecedented to transfer an employee , especially a leadman, to the
field. Apparently , special problems would arise in the course of erecting the houses.
Bussell himself had been put on erection crews on two previous occasions . The first
occasion had occurred on March 4, 1959 , and the second on September 16, 1960.
But Bussell testified that on the first occasion , he had remained with the erection
crew in the field for only 2 days , and, on the second occasion , for only 1 day.
As Bales was not called as a witness , it was left to Becker to testify with respect
to Orville Bussell 's transfer to the erection crew, and the sale of the erection busi-
ness to Tatu . He explained that the erection business was what he called "a bastard
operation ," carried on for the convenience of customers who wanted help in the
erection of their houses. Kipp and himself talked about it, and at times they also
involved Bales in the discussion . As employees in the erection crew were inex-
perienced people, it was necessary from time to time to send one of the leadmen out
to get things straightened out. In June of 1961, they had difficulty with a group
of model houses known as the Emerald project, and the situation was discussed by
Kipp and himself, and the result of the discussion was the transfer of Bussell to the
erection crew.
As to how the selection of Bussell was made, Becker gave rather contradictory
evidence. At first he testified that Kipp and himself merely made the decision to do
something about the problem on the Emerald project and that Bales "was told to
get the necessary people out on the job ." But a moment later he testified that
Bussell was selected as the one to be sent out to the field, and that the decision
15 The letter was in longhand and was written for Bussell by his wife
CORAL HOMES ]591
was relayed to Bales who implemented it by transferring Bussell. When Bussell was
transferred to the erection crew, his duties were taken over by David Blair, the
group leader in the panel department . At this time, Becker testified , he "knew
nothing about any union activities."
As for the time that Bussell had spent on erection crews in 1959 and 1960 , Becker
testified that he had checked the records with respect to these transfers and that it
appeared from them that in 1959 Bussell had been "out of the job away from the
factory" from March 4 to March 15, and that in 1960 , he had been away from
September 16 to September 23. This testimony, if true, would be wholly at variance
with that of Bussell. But when Becker was examined about the nature of the rec-
ords which he had consulted, they turned out to be only Bussell's timecards from
which it would be impossible to tell the nature of the work which he was then doing.
Becker was forced to admit also that he had no personal knowledge concerning
the duration of Bussell's activities in the field in 1959 or 1960 during the periods in
question.
A preponderance of the evidence supports the conclusion that Bussell was trans-
ferred to the erection crew because of his union activities and his refusal to co-
operate with Bales in helping to defeat the Union 's effort to organize the Respond-
ent's employees . In the union effort , he was particularly prominent . Whether or
not Becker knew about his union activities , Bales was aware of them , and his knowl-
edge is chargeable to the Respondent . Actually, it is impossible to believe that
Becker would remain ignorant of what Bales knew on this subject.
Not only the timing but the very nature of the action taken in the case of Bussell
is strong evidence of the discrimination against him. The transfer was effected 2
days after the meeting of the employees in Sharonville, the very day after his interro-
gation by Bales and his refusal to cooperate, and the very day before the handbilling
of the plant by Elder and Richardson . This latter circumstance is particularly
significant . Bales' interference with the handbilling , and the chuckwagon incident
of the folowing day clearly indicate that Bales was seeking to isolate the employees,
so that the Union would be unable to contact them. The transfer of Bussell to the
erection crew in the field effectively removed him from ready contact with his
fellow employees . It was, therefore , an integral part of Bales' overall strategy.
It may well be that the need for transferring one of the more experienced and
valuable employees to the field at the time of Bussell's transfer was perfectly genuine.
But the genuineness of the occasion only made it easier for the Respondent 's execu-
tives to mask their real motives, and , in any event , it does not in itself explain why
Bussell was the employee to be selected.
As a leadman in the panel department , Bussell was , to be sure , one of the logical
choices. But, then , there is the fact that on this occasion he was kept in the field
indefinitely-almost 21/2 months elapsed after his transfer to the erection crew-and
he was still in the field when he asked to be brought back to the plant . I cannot
credit the exploded testimony of Becker that in 1959 Bussell was kept in the field
from March 4 to 15, and in 1960, from September 16 to 23 . I credit rather the
testimony of Bussell that his work in the field on these occasions was extremely brief.
But, even if Becker's testimony could be accepted , the periods of time that Bussell
spent in the field in 1959 and 1960 would still be comparatively brief-12 days in
1959 and 8 days in 1960 While leadmen had been sent to the field to help straighten
out particular difficulties prior to 1961 , their transfers had always been temporary.
It stands to reason that the Respondent would not relegate to the field indefinitely
an employee who had been with it since 1957, and who was valuable enough to be a
leadman. In fact, Becker himself admitted this to be true during his cross-
examination , as follows:
Q. You testified that you sent group leaders out in the field quite often for
problems , to help out with model houses, I think you stated?
A. I think that 's right.
Q. Is that true?
A. Yes.
Q. And these transfers were usually a temporary deal to get that model
house put up or that trouble straightened out and they were brought right
back into the plant; is that not true?
A. Depending on the length of time.
Q. And they were usually always brought back in because these were valued
employees and they were good production workers?
A. When the trouble was cleared up, that was usually the case, that's right.
Q. So these were all temporary transfers9
A. Yes
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Becker attempted to make much of the sale of the erection business to the Tatu
Erection Company, and to regard the loss of Bussell's services as an incidental
casualty of this deal. The circumstances surrounding the sale to Tatu are extremely
vague and it may be that the sale itself was made for perfectly legitimate business
reasons. But, if such a sale was to be made, there would be all the more reason
for bringing Bussell back to the plant before the sale was consummated. The circu-
lar letter was sent to the members of the erection crew but Bussell was not a mem-
ber of the erection crew. His job was that of a leadman in the panel department,
and he had only been assigned to the erection crew as a troubleshooter. With the
sale of the erecting business, all of the Respondent's troubles were over, however,
and normally Bussell would have been returned to his job. Instead, the Respond-
ent's executives did not even extend to Bussell the courtesies which they had promised
in their circular letter. Far from assisting him in any way possible, they did not
even answer his letter when he asked to be put back on his job in the plant.16
I must conclude that by discriminatorily transferring Orville Bussell to the erec-
tion crew in the field, by keeping him there indefinitely until it had affected a sale
of the erecting business to Tatu, and finally, by ignoring his request for reinstatement
to his job as leadman in the panel department, the Respondent effected his con-
structive discharge as of the date of the sale to Tatu.
I have already indicated that Orville Bussell cannot appropriately be regarded as
a supervisor within the meaning of the Act. But, even if he were such an employee,
the Respondent by reason of its conduct in his case would have violated Section
8(a)( I) of the Act, since one of its motives was to punish Bussell for his refusal to
cooperate with Bales in the commission of unfair labor practices.
G. The transfer of Billy Crank to the shipping department
Billy Crank, one of the four employees involved in the Arlington Tavern in-
cident, was hired by the Respondent on May 5, 1959. In June 1961 he was work-
ing as a carpenter's helper in the truss department under Don Johnson. On June 2
Gene Richardson and Orville Richardson asked him to attend the meeting at
Sharonville, and he was among those present when it took place on June 4. On
June 6, which was the same day that Orville Bussell was transferred to the erection
crew in the field, Crank was told by Don Johnson that he was being transferred to
the shipping department, which was then still located at the old plant on Evendale
Drive. The reason given him for the transfer was that the shipping foreman was
"in the hole" and needed more help. Crank protested at the time that there were
"younger guys" than he-meaning employees who had less seniority-and that one
of these should have been transferred. Despite this protest, he was transferred to
the shipping department, and worked there the remainder of the month of June.
Crank's rate of pay was not affected by the transfer but in the shipping department
he did not work on Saturdays, as he had done while in the truss department. Crank
remained in the shipping department for a brief period only. He worked 2 weeks
in the shipping department, and then took a 2-week vacation Upon his return
from vacation, he worked another week in the shipping department, and then was
restored to his job in the truss department.
I must conclude that the General Counsel has not borne the burden of establish-
ing by a preponderance of the evidence that Crank's transfer to the shipping depart-
ment was discriminatory. Unlike Orville Bussell, Crank was not particularly promi-
nent in the union effort. As a companion of Lyons, moreover, he would hardly be
suspected of excessive union zeal. Besides, his transfer could not accomplish very
much in the way of removing him from contact with other employees. There were
only 8 miles between the new plant on Fields Ertel Road and the old plant on
Evendale Drive, and Crank's duties, which included driving to the new plant to pick
up lumber, took him from one plant to the other.
Although Crank complained that he should not have been transferred because of
his greater seniority, his seniority could not have been very great, since he had been
employed at Evendale for only a year when his transfer took place. In any event,
there is no evidence with respect to the Respondent's seniority policies, particularly
in relation to transfers. There is evidence that at about the time when Crank was
transferred to the shipping department, another employee, Royce Chandler, who was
in the shipping department, was transferred to work in the shop. Crank testified
that Chandler was transferred to the panel department, basing his testimony on the
fact that when he drove to the plant to pick up lumber or other materials, he saw
19 It is presumed that a letter mailed by the sender was received by the addressee. The
Respondent made no attempt to prove that Bussell's letter was not received
CORAL HOMES 1593
Chandler driving nails on the panel line. Becker testified, on the other hand, that
Chandler was a forklift truck operator who was transferred from the old plant to
the new. In any event, since Chandler, even according to Crank's own testimony,
was transferred to the panel department, he could not have taken over Crank's job,
which was in the truss department.
As a matter of fact, Crank had been required in the course of his employment in
the truss department to do various types of work, and on one occasion he had
stacked lumber in the yard. Since at the time of his transfer in June 1961 the
Respondent was engaged in moving its plant from one location to another, the
burden on the shipping and receiving department must have been greater, and it
was not unnatural that extra help should have been required in that department.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
I find that the activities of the Respondent set forth in section III of this report,
occurring in connection with the operations of the Respondent described in section I,
thereof, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
The scope of the Respondent's unfair labor practices in the present case seem
sufficiently extensive to justify a broad -form of cease and desist order, and I shall
recommend an order designed not only to prevent the repetition of the specific un-
fair labor practices in which the Respondent has engaged but also to effectuate all
the guarantees of Section 7 of the Act.
So far as affirmative relief is concerned, I shall recommend that the Respondent
offer Orville Bussell immediate and full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority, or other rights or privileges,
dismissing, if necessary any employees who may have been hired to replace him. I
shall also recommend that he be made whole for any loss of pay he may have suf-
fered by reason of the discrimination against him by payment to him of a sum of
money equal to the amount which he normally would have earned as wages from
the date of his constructive discharge to the date of the Respondent's offer of rein-
statement , less his net earnings during said period, said backpay to be computed on
a quarterly basis in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. By performing the acts summarized in the first paragraph of section III(E) of
this report , the Respondent has violated Section 8(a)(1) of the Act.
4. By discriminating with respect to the hire and tenure of employment of Orville
Bussell, the Respondent has violated Section 8 (a) (3) and (1) of the Act.
5. The Respondent has not discriminated with respect to the hire and tenure of
employment of Billy Edward Crank in violation of Section 8(a)(3) and (1) of
the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Respondent, Evendale Lumber
Company, Inc., d/b/a Coral Homes , its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Keeping under surveillance the union activities of its employees ; spying or
attempting to spy upon the union activities of its employees ; interrogating its em-
ployees with respect to their union activities ; soliciting information from its employees
concerning the union activities of fellow employees ; encouraging the formation of
an inside or company-dominated union ; interfering with the union handbilling of
its plant; staggering the quitting time of its employees, or preventing them from
leaving the plant on legitimate occasions in order to thwart the union organization
of its employees ; spreading false propaganda against the Union or making threats
of dire consequences that would follow upon union organization , such as loss of
business, possible shutdown of the plant, and reductions in the employees' earnings.
1594 DECISIONS OF NATIONAL LABOR :2ELATIONS BOARD
(b) Discouraging membership in AFL-CIO, or other labor organization of its
employees, by discriminating in any manner against employees with respect to their
hire or tenure of employment or any term or condition of their employment.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action in order to effectuate the policies of
the Act:
(a) Offer to Orville Bussell immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other rights
and privileges and make him whole for any loss of pay he may have suffered by
reason of the Respondent's discrimination against him in the manner and to the
extent set forth in section V, entitled "The Remedy."
(b) Preserve and, upon request, make available to the National Labor Relations
Board or its agents for examination and copying, all records necessary for the
determination of the amount of backpay due under these recommendations.
(c) Post at its plant on Fields Ertel Road in Cincinnati, Ohio, copies of the notice
attached hereto marked "Appendix." 17 Copies of said notice, to be furnished by
the Regional Director for the Ninth Region, shall, after being duly signed by
Respondent's representatives, be posted for 60 consecutive days thereafter in con-
spicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure that such notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Ninth Region, in writing, within 20
days from the receipt of this Intermediate Report and Recommended Order, what
steps Respondent has taken to comply herewith.18
17 In the event that these Recommendations are adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" In the notice In the further event that the Board's Order is enforced by a
decree of a United States Court of Appeals the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order"
18In the event that these Recommendations are adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director in writing within 10 days from
the date of this Order what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT keep the union activities of our employees under surveillance;
spy or attempt to spy upon the union activities of our employees ; interrogate
our employees with respect to their union activities, or solicit information from
them concerning such activities ; encourage the formation of an inside or com-
pany-dominated union; interfere with union handbilling of our plant; stagger
the quitting time of our employees or prevent them from leaving the plant at
proper times as a means of thwarting their union activities ; spread false propa-
ganda against the Union and make threats of dire consequences of union
organization , such as loss of business , possible shutdown of the plant and
reductions in earnings.
WE WILL NOT discourage membership in the AFL-CIO, or any other labor
organization , of our employees , by discriminating in regard to the hire or
tenure of their employment or any term or condition of their employment.
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 AFL-CIO , or any other labor organization
of our employees , to bargain collectively through representatives of their own
choosing , and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection or to refrain from any and all
of such activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8(a)(3) of the National Labor Relations
Act.
EUROPEAN CARS YPSILANTI, INC. 1595
WE WILL offer to Orville Bussell immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his seniority or
other rights and privileges and make him whole for any loss of pay he may
have suffered as a result of our discrimination against him.
All our employees are free to become , remain , or refrain from becoming or re-
maining members of any labor organization , except to the extent that such right
may be affected by an agreement requiring membership in a labor organization as
a condition of employment as authorized in Section 8 (a) (3) of the Act.
EVENDALE LUMBER COMPANY,
D/B/A CORAL HOMES,
Employer.
Dated------------------- By-------------------------------------------(President)
Dated------------------- By-------------------------------------------
(Vice President)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office in the
Transit Building, Fourth and Vine Streets, Cincinnati, Ohio; Telephone Number
Dunbar 1-1420, if they have any question concerning this notice or compliance
with its provisions.
European Cars Ypsilanti , Inc. and Wolfgang Wenzlawe. Case
No. 7-CA-3?10. April 26, 1962
DECISION AND ORDER
On January 15, 1962, Trial Examiner John C. Fischer issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its power in connection with
this case to a three-member panel [Chairman McCulloch and Members
Rodgers and Leedom].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner except as modified herein.
1. We accept the Trial Examiner's conclusion that Respondent dis-
charged Wenzlawe, the Charging Party, because it believed, among
other reasons, that he was attempting to buy a used car from a cus-
tomer in violation of a company policy against such dealing. The
General Counsel has excepted to the Trial Examiner's finding because
it is based on inferences regarding Respondent's motivation which
136 NLRB No. 140.