Custom-Pak, Inc.

National Labor Relations Board - Board Decisions

Jan 20, 1960

126 N.L.R.B. 242 (N.L.R.B. 1960)

242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requested application of the Brown-Olds is remedy to expunge the effect of the
illegal closed-shop conditions of employment By enforcing closed-shop conditions
of employment, the Respondents have inevitably coerced employees to pay the dues,
fees, and assessments necessary to achieve and retain membership in the Respondent
Union or to receive a permit or clearance for them to work within the Union's
jurisdiction In order to adequately remedy the unfair labor practices found, and
to encourage compliance with the Act in the future, the Respondents should be
required to reimburse employees of the Company, that is Fenix, for any dues, fees,
assessments , or other moneys that were unlawfully exacted from them as a condi-
tion of obtaining or retaining employment with the Company Accordingly, the
Trial Examiner shall recommend that the Respondents refund to all employees
of the Company the initiation fees, assessments, dues, and other moneys paid by
them as the price of their employment The liability of the Respondents for reim-
bursement should include the period beginning 6 months prior to the filing and
service of the charges 'herein and shall extend to all such moneys thereafter collected
Roy Lumpkins, against whom the Respondents caused the Company, i e, Fenix, to
discriminate, as found, should be made whole by the Respondents for his resulting
pay losses suffered as a result of the discrimination against him, in accordance with
the formula in F W Woolworth Company, 90 NLRB 289 It appears from the
record that prior to the hearing, the Respondent Union through its agent, Respondent
John Haney, advised the Company, i e , Fenix, that they had no further objections.
to its hiring Roy Lumpkms, which it did on or about August 18, 1958 It will be
left to the compliance stage of these proceedings to establish the dates when such
notification and actual hiring of Lumpkms by the Company were effective
Upon the basis of the above findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following
CONCLUSIONS OF LAW
1. The Company, i e, Fenix, is engaged in commerce within the meaning of the
Act
2 The Respondent Union is a labor organization within the meaning of the Act,
and at all times material herein, Respondent John Haney was its agent
3 By causing the Company to discriminate against Roy Lumpkms in violation
of Section 8(a)(3) of the Act, thereby also restraining and coercing employees in
the exercise of their rights under Section 7 of the Act, the Respondents have engaged
in unfair labor practices within the meaning of Section 8(b) (2) and 8(b) (1) (A) of
the Act
4 By maintaining and enforcing an understanding or practice wherein member-
ship in or clearance from the Respondents is required as a condition of employment
and by requiring employees or applicants for employment to pay dues or other
moneys to the Respondent in order to obtain and retain employment, the Respondent
has violated Section 8(b) (1) (A) and (2) of the Act
5 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act
[Recommendations omitted from publication ]
Is United Assooaataon of Journeymen & Apprentices of Piumbang & Pape Fatting Industry
(J S Brown E F Olds Plumbing & Heating Corporation), 115 NLRB 594, 597-602
Custom-Pak, Inc. and International Union, Allied Industrial
Workers of America, AFL-CIO. Case No 9-CA1653 Janu-
ary 00, 1960
DECISION AND ORDER
On September 25, 1959, Trial Examiner Charles W Schneider
issued his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist
126 NLRB No 33
CUSTOM-PAK, INC. 243
therefrom and take certain affirmative action, and further finding
that the Respondent had not engaged in other unfair labor practices
alleged in the complaint and recommending that the complaint be
dismissed with respect thereto, all as set forth in the copy of the In-
termediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Fanning].
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
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings,' conclusions,2 and recom-
mendations 3 of the Trial Examiner, with the modifications, amend-
ments, and additions noted herein.
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, Custom-Pak,
Inc., Cincinnati, Ohio, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in International Union, Allied In-
dustrial Workers of America, AFL-CIO, or in any other labor or-
ganization of its employees, by discriminating in regard to hire or
tenure of employment, or any term or condition of employment.
(b) Making unilateral change in conditions of employment because
employees have selected a bargaining representative.
(c) Threatening employees with physical reprisals or reprisals in
employment because of their union membership or activities or selec-
tion of a bargaining representative.
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist International Union, Allied In-
dustrial Workers of America, AFL-CIO, or any other labor organiza-
1In the absence of exception thereto, we adopt pro forma the Trial Examiner' s recom-
mended dismissal of certain allegations of the complaint
2 In adopting the conclusion of the Trial Examiner that failure to give the employees
a yearend bonus for 1958 was violative of Section 8(a) (1) and (3) of the Act, we find
no merit in the Respondent ' s contention that such action was motivated by economic
considerations The profit and loss figures relied on by the Respondent cover only the
last 6 months of each yeas, a normally slack season, and, therefore, do not rebut the
prima facie case of violation established by the General Counsel
'As a discriminatory layoff "goes to the very heart of the Act," we shall order the
Respondent to cease from in any manner interfering with the rights of employees under
Section 7 of the Act. N L R.B. v Entwistle Mfg. Co., 120 F. 2d 532, 536 (C A. 4).
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, 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 re-
frain from any and all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Oden Morehead immediate and full reinstatement to
his former or substantially equivalent position without prejudice to
his seniority and other rights and privileges previously enjoyed, and
make him whole for any loss of pay which he may have suffered by
reason of the discrimination against him in the manner described in
the section of the Intermediate Report entitled "The Remedy," in-
cluding any sum of money lost by reason of the discrimination of the
yearend bonus and pay for New Year's Day.
(b) Make whole its employees for any sums of money lost by them
by reason of the Respondent's elimination of the yearend bonus for
1958 and holiday pay for New Year's Day, 1959.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary or appropriate to analyze the amounts
of backpay and other benefits due and the right of employment under
the terms herein.
(d) Post at its plant in Cincinnati, Ohio, copies of the notice
attached hereto marked "Appendix." 4 Copies of said notice, to be
furnished by the Regional Director for the Ninth Region, shall, after
being duly signed by the Respondent's representative, be posted by it
immediately upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Ninth Region, in writing,
within 10 days from the date of this Order, what steps it has taken to
comply therewith.
IT IS FURTHER ORDERED that, except as otherwise found herein, the
allegations of the complaint be, and they hereby are, dismissed.
4 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
CUSTOM-PAID, INC. 245
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 our employees that :
WE WILL NOT discourage membership in International Union,
Allied Industrial Workers of America, AFL-CIO, or in any other
labor organization, by discriminating in regard to hire or tenure
of employment, or any term or condition of employment of any
of our employees.
WE WILL NOT (1) make unilateral changes in conditions of
employment of our employees because our employees have selected
a bargaining representative, or (2) threaten employees with
physical reprisals or reprisals in employment because of their
union membership or activities or selection of a bargaining
representative.
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 Inter-
national Union, Allied Industrial Workers of America, AFL--
CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection ; or to refrain from any and all
such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as
a condition of employment as authorized in Section 8(a.) (3) of
the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL offer to Oden Morehead immediate and full reinstate-
ment to his former or substantially equivalent position without
prejudice to his seniority and other rights and privileges previ-
ously enjoyed, and make him whole for any loss of pay suffered
by reason of the discrimination against him, including any sum
of money lost by reason of the elimination of the yearend bonus
and pay for New Year's Day.
WE WILL make whole our employees for any sums of money
lost by them by reason of our elimination of the yearend bonus
for 1958 and holiday pay for New Year's Day, 1959.
All our employees are free to become, remain, or refrain from
becoming or remaining members of any labor organization, except
to the extent that such right may be affected by an agreement requir-
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing membership in a labor organization as a condition of employment
as authorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
CUSTOM-PAIL, 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 AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges of unfair labor practices filed on December 31, 1958, by Interna-
tional Union, Allied Industrial Workers of America , AFL-CIO, herein called the
Union, 'against Custom-Pak, Inc., Cincinnati , Ohio, herein called the Respondent,
the General Counsel of the Board issued a complaint dated May 8, 1959, and an
amended complaint dated May 25, 1959 . In substance , the complaint alleged
that the Respondent , in violation of Section 8(a) (3) and ( 1) of the National Labor
Relations Act, 61 Stat. 136, had laid off and refused to reinstate Odell Morehead
on December 22, 1958 , because of his union membership and activities , and had
engaged in other stated conduct in the nature of interference , restraint , or coercion,
or for the purpose of discouraging union membership . On May 26, 1959, the
Respondent filed its answer admitting the jurisdictional and certain other allega-
tions of the amended complaint , but denying the commission of unfair labor practices.
On June 22 and 23, 1959, 'a hearing was held at Cincinnati , Ohio, before the duly
designated Trial Examiner . The General Counsel and the Respondent appeared
at the hearing, were represented by counsel , and were afforded full opportunity
to present and to meet evidence , to examine and cross -examine witnesses , to engage
in oral argument , and to file briefs and proposed findings. On July 27, 1959, the
Respondent filed a brief and proposed findings. On July 29, 1959, the General
Counsel filed a brief . The Respondent 's proposed findings are disposed of by the
following findings and recommendations.
Upon the basis of the entire record in the case , and from my observation of
the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Custom-Pak, Inc., is an Ohio corporation engaged in the business of packaging
food materials for sale to food brokers, with its principal office and place of business
in Cincinnati, Ohio.
During the year 1958, which is a representative period, the Respondent sold,
shipped, and delivered from its plant in Cincinnati, Ohio, directly to points outside
the State of Ohio, products valued at more than $50,000.
It is admitted that the Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Union, Allied Industrial Workers of America, AFL-CIO is admitted
to be a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The union activities
The findings herein are from testimony or other evidence which I find credible.
The Respondent has attacked the credibility of Oden Morehead, upon whose testi-
mony some of the findings are based. However, upon my observation of More-
head as a witness, and after analysis of the evidence, I have concluded that on
material matters Morehead's testimony is to be accepted. All the findings are
from uncontradicted evidence.
CUSTOM-PAK, INC. 247
At the time of the events herein, the Respondent's principal plant official and
supervisor were Kenneth Bradford, president, and Rock Bradford, superintendent
and son of Kenneth. Neither is presently connected with the Respondent.
Union organizational activities in the Respondent's plant began about October
7, 1958, when employee Oden Morehead, the alleged discriminatee, secured union-
authorization cards and distributed them among the employees. A petition for a
Board election was filed about November 25. The activity evoked response from
the Respondent, more particularly described hereafter. An election was held on
December 19 and the Union thereafter certified. Bargaining negotiations have since
been undertaken.
Several weeks prior to the election, Superintendent Rock Bradford spoke to a
number of the employees at their places of work and asked whether they had joined
the Union, knew anything about it, or had voted for it. In one case, when the
employee indicated that she had joined the Umon Rock Bradford asked her why
she had done so.
B. The December 18 speech
About 3:45 p.m. on December 18, 1958, the day before the election, President
Kenneth Bradford called the employees to a meeting in the plant and spoke to
them about the Union. Bradford said that he did not think that the Union could
help the employees or do the Company any good, saying that he had once been
in a union and that it did not help him. However, Bradford added that unionization
was a matter of the employee's choice. He referred to the situation of the coal
miners who were then engaged in a strike in nearby Kentucky. Bradford said that
the coal miners were out of work because of union demands. He further told
his audience that if the Union came in ad there were strikes or trouble the Company
could move the plant and the employees would "all be out of a job."
C. Rock Bradford's postelection comments to Morehead
Oden Morehead was an observer for the Union in the election.
The day of the election was payday. The employees' checks were usually dis-
tributed by Superintendent Rock Bradford. On December 19, following the an-
nouncement of the results of the election, Oden Morehead, in the presence of
President Kenneth Bradford, asked Superintendent Rock Bradford for his check.
Rock Bradford told Morehead to "go find it." However, at the suggestion of his
father, Rock Bradford directed Morehead to go to the office for his check.
Morehead thereupon went to the office and got his pay. He then changed his
clothes and started out of the plant to go home. As he went out one of the doors,
Superintendent Bradford stood in another door, invited Morehead to come out that
way, cursed him, and called him a "bastard." Bradford accused Morehead of
bringing the Union into the plant and said that he hoped that Morehead was "satis-
fied" inasmuch as he had "got the Union in here now." Bradford then said, "Don't
come to work Monday because you don't have a job here." Morehead insisted
that he was coming in. Bradford then added that if Morehead did come to work
he should make sure to shave because "this is a food plant . . . and I want you
to look sharp from now on." Morehead continued on his way, out the plant door
and onto the parking lot. Rock Bradford followed him out, continued to curse
him, referred to Morehead as "chicken," and said, "I ought to wipe up the parking
lot with you." At this point a Board agent, apparently there in connection with the
election, approached. Superintendent Bradford thereupon turned and walked away.
D. The December 22 speech
December 19 was a Friday. The results of the election were ascertained in the
late afternoon. On the following Monday morning at 10 a.m., December 22,
President Kenneth Bradford held a meeting of employees in the plant where he
announced the layoff of the jelly operators (three in number) and certain changes
or prospective changes in working conditions. More specifically Bradford's state-
ments were as follows.
Bradford said that since the Union was "in now" he was "going to have to make
some changes."' Bradford went on to say that he had an excessive inventory of
"This finding is based on Morehead's testimony Respondent's brief points out that
Morehead was not corroborated on this point by other witnesses for the General Counsel.
However, Morehead's testimony in this connection, easily refutable if untrue, is not
denied.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jelly, that it was necessary to cut expenses, and that he would have to lay off the
jelly machine operators until the inventory could be reduced.
Bradford further said that employees would no longer be permitted to make
coffee during the coffee breaks, that if they wished coffee it would have to be brought
from home. He suggested that the coffee breaks themselves might have to be cut
out. He said that no yearend bonus would be paid that year, as had been customary
in the past. He told the employees that the usual Christmas party would be dis-
continued in the interest of economy, and that the Coke machine might have to be
moved out to conserve space. Bradford further said that the employees would not
be paid holiday pay for New Year's Day, as they had in past years, and suggested
that Christmas Day holiday pay might also not be given.
Ultimately, however, the Respondent did hold a Christmas party, though appar-
ently on a somewhat smaller scale than formerly. The Coke machine was not
moved despite Bradford's suggestion that it might be, and the employees were paid
for Christmas. However, they were not paid for New Year's Day nor were they
given a bonus. Coffeemaking was discontinued, to be resumed some months later,
after a change in management.
E. The discharge of Morehead
It has been seen that in the December 22 speech President Kenneth Bradford
announced that he was laying off the jelly operators for economic reasons.
Immediately after the speech President Bradford came to Oden Morehead and
said that he was letting Morehead go because he had to cut down on expenses.
Bradford checked out Morehead's tools, and Morehead went to the lockerroom.
While he was there changing his clothes, Superintendent Bradford came into the
lockerroom, checked Morehead's uniform, and then proceeded to berate Morehead.
Bradford asked Morehead whether he was "satisfied" and whether his conscience
did not "bother" him. Morehead asked why. Bradford said, "By bringing the
Union in, you are causing the jelly operators to be laid off, and you have caused
a prince of a man, my father, to lose two sleepless nights, and caused him to lose
his job." Bradford cursed Morehead, saying, "You are no good, you son of a bitch."
Bradford concluded by saying that someday when he had "aa couple of beers" in him
he would assault Morehead.
Conclusions
At the time of the layoff the Respondent's jelly inventory and its direct labor costs
had shown substantial increase over the previous year, and its net profit had de-
creased. Without discussing the matter in detail, I am satisfied that the Respondent's
economic position at the time was such as to warrant temporary contraction if that
action was deemed desirable. The problem was not permanent, however. The
evidence in the record indicates that in early 1959 the situation was alleviated and
the jelly operators were reinstated. The question presented is whether the situation
was utilized as a pretext for getting rid of Morehead and whether the changes in
working conditions announced in December were intended to discourage member-
ship in the Union. We take the latter inquiry first. The layoff of the jelly operators
is not alleged as an unfair labor practice.
It has been seen that the changes were announced immediately on the heels of
the Union's victory in the election. Bonuses which are a part of the wage structure,
holiday pay, and kindred conditions of employment are matters for negotiation with
the collective-bargaining representaive, not for unilateral action, such as indulged
in here. President Bradford's statement at the beginning of his speech frankly
expressed the reason for his action: because the Union was "in now." Unilateral
changes in conditions of employees without discussion with the bargaining repre-
sentative initiated because of the selection of such representative are violative of
Section 8(a) (1) and (3) of the Act. It is found that the changes in working con-
ditions announced in the December 22 speech of Kenneth Bradford, and those
subsequently carried out, were intended to and had the effect of discouraging mem-
bership in the Union and restraining and coercing employees.
It is further found that Kenneth Bradford's statement in the December 18 speech
to the effect that the Respondent could move its plant if the Union came in, and
the employees "all be out of a job," constituted a threat of reprisal. The Respond-
ent's contention that the statement was merely a prediction of possible eventualities
is not sustained.
Similarly, Superintendent Rock Bradford's cursing of Morehead on December 19,
following the election, because of Morehead's union activity, and Bradford's state-
ment-later modified-to the effect that Morehead should not come to work Monday
CUSTOM-PAK, INC. 249
because he no longer had a job, and Bradford 's intimations of physical violence,
exceeded the bounds of free speech and constituted interference , restraint, and
,coercion . Similar findings are made respecting Rock Bradford 's statements of the
same character on December 22 following Morehead 's discharge . The Respondent,
adverting to Rock Bradford 's age (20), refers to these incidents as "a young boy's
emotional outburst ," citing Nocona Boot Company , 116 NLRB 1860. However,
the situation here is quite different from that in the Nocona case. There the ex-
pressions contained no hint of reprisal or threat . And whatever Rock Bradford's
emotional maturity , the Respondent considered him old enough to be plant
superintendent.
However , no finding of unfair labor practices is made with respect to the in-
terrogation of employees by Rock Bradford . There is no indication , express or
overt, of coercion therein.
Morehead
The Respondent contends that Morehead was discharged for economic reasons.
in sum, the defense is that Morehead , a skilled mechanic and general shopman, and
according to his foreman "a good man ," was laid off because there was no more
machine work for him to do. More specifically , the Respondent 's position is that
the job for which it says Morehead was primarily employed-the building of a jelly
machine-had been completed , that another mechanic , Roy Koch , was considered
more versatile because he could work without blueprints , and, there being no further
need for Morehead 's service in his skilled capacity , and economy being required,
Morehead was laid off.
There is no direct testimony from the Respondent as to the reason for Morehead's
termination ; that is, no testimony from the supervisors who made the decision in
December to separate him.
I have previously indicated my opinion that the basis for a nondiscriminatory lay-
-off perhaps existed. The basic job of building the jelly machine had been completed
in September or October 1958.2 To judge from the statistics in evidence , sales and
profits had fallen off, and jelly inventory risen, to a degree more than customary for
that period of the year . Direct labor costs also rose Morehead 's wage was $1.80
per hour, substantially above the rate for unskilled employees. About the first week
of October 1958 President Bradford , noting apparent seasonal trends , said that
"business was starting to get slack like it always does," and indicated to his super-
visory staff that he was considering laying off Morehead . However, Bradford did
not lay Morehead off. Instead he announced his determination to look around and
find out other work for Morehead to do. He found it in various and sundry work
about the plant.
As a consequence when there was no machine work to do , Morehead was assigned
to these other jobs, some of them unskilled. Among this work was making up
sample boxes of the Respondent 's products , relieving at machines , and doing car-
pentry jobs, inspection , and shipping.
Morehead continued to work in this fashion from early October until he was
terminated in late December. The exact amount of time he spent at jobs apart from
his machine work during that period is not disclosed . There is no suggestion that
his work-of whatever kind-was ever other than satisfactory , and there is no in-
dication that President Bradford could no longer find work for Morehead to do.
Indeed, in the light of the record , the latter supposition is untenable , for the Re-
spondent thereafter transferred employees or hired new persons to do work which
Morehead had done or was capable of doing 3 In addition , after Morehead's layoff,
the male employees in the shop worked a substantial amount of overtime. There
was therefore no evident lack of work which Morehead could perform.
3 However , improvements to the machine, on which Morehead was working at the time
of his layoff, were never completed.
3 Thus , for about a month after Morehead 's layoff, employee Hahn was transferred
from the night shift to make samples and work on the jelly machine . For several weeks
in January and February 1959 a new employee, Dick Oliver, who was on military leave,
worked part-time making samples and inspecting jelly In late January another new
employee , Francis Pinks , was hired replacing Hahn, who was transferred back to the
night shift. Pinks was hired at .$1 50 an hour , 10 cents an hour less than Morehead was
hired at Pinks packaged samples , made jelly , worked at the punch press, and did other
sundry jobs . He has since been made jelly foreman . In March a new employee was
hired as stock clerk , and in April another in the shipping department . Morehead was
capable of performing any of these jobs.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have then the situation of an employer who, faced with the possibility of hav-
ing to lay off an employee, chooses instead to find other work for him to do. There-
after the employee becomes active in a campaign to organize the Respondent's em-
ployees into a union. His actions in that regard are successful and evoke unfavorable
and abusive comment and threats from the plant superintendent. Immediately
thereafter, and without prior notice, the employee is laid off. During this period of
time the Respondent's president is making his opposition to the Union known to
the employees generally. Following the layoff new persons are hired, and others
transferred, to do work which the employee had done or was capable of doing. In
addition the employees who remained performed a substantial amount of overtime
during the succeeding months. There is no explanation by the Respondent's wit-
nesses for not retaining or not recalling the employee for this work. Indeed the
record is barren of any direct testimony by the Respondent as to the motivation for
the layoff.
In my opinion these facts require a finding that Oden Morehead was laid off by
the Respondent because of his union membership and activity. Of decisive force is
the fact that before Morehead became active in the Union, and the Respondent
demonstrated its opposition and antipathy, the Respondent had found other work
for him to do. But after his activity became known and was openly resented,
the Respondent let him go. In the absence of testimony indicating that it was a
factor in the layoff, the circumstance that Morehead's pay rate was higher than that
of some other employees, does not explain his selection. That fact did not deter
his retention prior to his union activity. And it has been seen that Pinks was hired
at a rate only 10 cents per hour less than that at which Morehead hired. Morehead
was not offered a job at a lower rate of pay--a course of action which would seem
suggested if that was the bona-fide reason for hiring others in his place. Nor is the
action ascribable to sudden discovery in late December that the Respondent was in
economic straits. For the Respondent received monthly reports as to its fiscal, sales,
and inventory situation. In October President Bradford apparently expected a de-
cline of seasonal duration. And so it developed, for after 6 weeks or 2 months the
three laid-off jelly operators were recalled to work. Despite this expectancy of de-
cline President Bradford sought and found work for Morehead through October,
November, and December, and ceased to do so only after Morehead had engaged
in union activity and Superintendent Bradford had berated him for it.
Upon these facts I conclude that Oden Morehead was laid off by the Respondent,
and not reinstated, because of his activities on behalf of the Union. It is found
that by -that action, and by its failure to pay the customary yearend bonus and to pay
employees for New Year's Day because the Union was "in," the Respondent dis-
couraged membership in the Union by discrimination in employment, and inter-
fered with, restrained, and coerced employees in the exercise of rights guaranteed in
Section 7 of the Act.
Other allegations of the complaint on which no affirmative findings of unfair labor
practices are made, are found to be not sustained by the evidence. It will be recom-
mended that these allegations, specifically the following, be dismissed.
1. That Rock Bradford threatened to discharge employees, or to discriminate
against them in selection for layoff, because of their union membership and activities.
2 That Rock Bradford told an employee that the Respondent would not hold a
Christmas party in the plant if the employees selected a bargaining representative.
3. That Rock Bradford's interrogation of employees as to whether they had joined
the Union constituted unfair labor practices.
4. That Rock Bradford refused to give an employee his paycheck.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices it will
be recommended that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It will be recommended that the Respondent offer Oden Morehead immediate
and full reinstatement to his former or substantially equivalent position without
prejudice to his seniority and other rights and privileges, and make him whole for
any wage losses incurred as a result of the discrimination against him in accordance
with the Board's usual remedial policies.
LOCAL 135, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 251
It will also be recommended that the Respondent make its employees whole for
any sums of money lost by reason of the elimination of the yearend bonus and pay
for New Year's Day.
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. International Union, Allied Industrial Workers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
2. By interfering with, restraining , and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. By discriminating in regard to employment , thereby discouraging membership
in a labor organization , the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Local 135, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Aetna Plywood
& Veneer Company
Local 135, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America [Holland Motor Ex-
press , Inc.] and Aetna Plywood & Veneer Company. Cases
Nos. 35-CB-307 and 35-CC-59. January 920, 1960
DECISION AND ORDER
On September 18, 1959, Trial Examiner David London issued his
Intermediate Report in the above entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a brief in support of
its exceptions.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman Leedom and Members Bean 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 Respondent's exceptions and brief, and the entire
record in these cases, and hereby adopts the Trial Examiner's find-
ings, conclusions, and recommendations.'
I Member Fanning dissents from the majority ' s conclusion that the Respondent violated
Section 8 (b) (1) (A) for the reasons stated in his dissenting opinions in Paint, Varnish &
Lacquer Makers Union, AFL-CIO, et at ( Andrew Brown Company ), 120 NLRB 1425;
126 NLRB No. 40.