Dubin-Haskell Lining Corp.

National Labor Relations Board - Board Decisions

Aug 20, 1965

154 N.L.R.B. 641 (N.L.R.B. 1965)

DUBIN-HASKELL LINING CORP. 641
It is finally recommended that unless on or before 20 days from the date of receipt
of this Trial Examiner's Decision, Respondent notify the Regional Director, in
writing, that it will comply with the foregoing recommendations, the National Labor
Relations Board issue an order requiring Respondent to take the action aforesaid.
APPENDIX A
NOTICE TO ALL MEMBERS OF DISTRICT LODGE No. 94, LODGE No. 311, INTERNA-
TIONAL ASSOCIATION OF MACHINISTS, AFL-CIO
Pursuant to the Recommended Order of a Trial Examiner of the National
Labor, Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause Parker Aircraft Company to
terminate the employment of Colin Sinclair, or any other employee similarly
reemployed, or restrain or coerce employees by threatening Colin Sinclair or
any other employee similarly reemployed, with termination of his employment
at Parker unless he becomes or remains a member in good standing of District
Lodge No. 94, Lodge No. 311, International Association of Machinists, AFL-
CIO, except to the extent such may become lawfully required under the terms
of some new collective-bargaining agreement requiring membership as a condi-
tion of employment as authorized in Section 8(a)(3) of the Act.
WE WILL terminate the union membership of Colin Sinclair and pay back
to him any money collected from him as reinstatement fees, dues, or other
levies resulting from his reinstatement following his reemployment at Parker.
DISTRICT LODGE No. 94, LODGE No. 311, INTERNATIONAL
ASSOCIATION OF MACHINISTS, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If members have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 849
South Broadway, Los Angeles, California, Telephone No. 688-5204.
Dubin-Haskell Lining Corp. and Fred A. Cox. Case No. 26-CA-
1882. August 20,1965
DECISION AND ORDER
On May 12, 1965, Trial Examiner Jerry B. Stone issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent filed exceptions
to the Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three -member panel [Members Fanning, Brown, and
Jenkins].
154 NLRB No. 42.
206-446-66-vol. 159-42
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Trial
Examiner's Decision, the exceptions and supporting brief, and the
entire record in the case, and hereby adopts the findings,' conclusions,
and recommendations of the Trial Examiner.2
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as
Order the Recommended Order of the Trial Examiner, and orders
that Respondent Dubin-Haskell Lining Corp., Collierville, Ten-
nessee, its officers, agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order.
i The Respondent has excepted to certain credibility findings made by the Trial Ex-
aminer . As it is the Board's established policy not to overrule a Trial Examiner's
resolutions with respect to credibility unless , as is not the case here , the clear preponder-
ance of all the relevant evidence convinces us that the resolutions were incorrect, we
find insufficient basis for disturbing the Trial Examiner's credibility findings. Standard
Dry Wall Products , Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3).
2llember Jenkins , in agreeing with his colleagues that the Respondent had knowledge
of Cox 's union activities prior to his discharge , finds sufficient evidence apart from the
small size of Respondent ' s plant and the community where it is located for inferring such
knowledge.
In view of the holding herein, the Board finds it unnecessary to pass upon the finding
of the Trial Examiner (footnote 10 of his Decision) that even if Cox were a supervisor
his discharge would still be violative of the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on July 27, 1964, by Fred A. Cox, an Individual (herein
sometimes called the Charging Party), the General Counsel for the National Labor
Relations Board, by the Regional Director of Region 26 (Memphis, Tennessee)
issued a complaint dated September 11, 1964, against Dubin-Haskell Lining Corp.
(herein sometimes called the Employer or Respondent), alleging violations of
Section 8(a)(1) and (3) of the Act. The Respondent's answer filed on Septem-
ber 24, 1964, admitted many of the facts but denied the commission of unfair labor
practices.
Pursuant to appropriate notice, a hearing was held before Trial Examiner Jerry
B. Stone, at Memphis, Tennessee, on October 28, 1964. All parties were represented
at the hearing, participated therein, and were afforded the right to present evidence,
to examine and cross-examine witnesses , to offer oral argument , and to file briefs.
At the hearing the General Counsel amended his complaint to reflect the filing of
an amended charge, and alleged in additional effect that Respondent had discrimi.
nated with respect to the refusal to reinstate Cox because he had filed unfair labor
practice charges against the Respondent, and that the Respondent had violated
Section 8(a) (4) of the Act. Although Respondent did not orally or in writing
amend his answer to the complaint after the aforesaid amendments, the manner in
which Respondent litigated the issues reveals that Respondent was relying upon the
denials in his written answer to the complaint filed on September 24, 1964.
Oral argument was made by the General Counsel and Respondent, and a brief
from the Respondent has been filed. Both the oral argument and the brief have
been considered.
DUBIN-HASKELL LINING CORP. 643
Upon the entire record in this case, and from my observation of the witnesses,
the following findings of fact, conclusions of law, and recommendations are made.'
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER INVOLVED
The facts pertaining to the business of the Employer involved are based upon
the pleadings and admissions therein.
Dubin-Haskell Lining Corp. is now, and has been at all times material herein, a
New York corporation with its principal office located at New York, New York,
and with a plant located at Collierville, Tennessee, where it is engaged in the
manufacture of interlinings for shirt collars.
Dubin-Haskell Lining Corp., in the course and conduct of its business, during the
12 months preceding September 11, 1964, purchased and received at its Collierville,
Tennessee, plant, products valued in excess of $50,000 from points directly outside
the State of Tennessee, and during the same period of time, manufactured, sold,
and shipped products valued in excess of $50,000 from its Collierville, Tennessee,
plant directly to points outside the State of Tennessee.
Dubin-Haskell Lining Corp., the Respondent, is now, and has been at all times
material herein, an employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The facts pertaining to the labor organization involved are based upon a com-
posite of a stipulation by the parties and the credited testimony of Krieger.
Amalgamated Clothing Workers of America, AFL-CIO, is now, and has been at
all times material herein, a labor organization within the meaning of Section 2(5)
of the Act.
Ill. THE UNFAIR LABOR PRACTICES
Preliminary Issues; Credibility Problems; Cox's Employee Status
The principal issues in this case concern certain events occurring during the first
part of June 1964, July 24 and 25, 1964, and July 29 or 30, 1964. General Counsel's
witness Cox and Respondent's witness Jones in their testimony give substantially
different versions of the event in early June 1964 of the July 25, 1964, incident and
of the July 29 or 30, 1964, incident. Jones' testimony at the hearing is substantially
different in effect from statements contained in his August 11, 1964, sworn affidavit.
For a complete understanding of the credibility aspects of this case, I find it proper at
this point to set forth certain salient facts and determinations.
From my observation of the witnesses' demeanor as they testified, I noted and
found that General Counsel's witnesses Thomas Anthony, James Beesinger, Free-
man Miller, Asa Wilson, Jr., and Fred Cox all appeared to be honest, frank, forth-
right, and candid witnesses, that they exhibited a desire to fully and objectively
state the answers to the questions propounded, and I am convinced that their
testimony was a truthful and reliable version of the facts as they knew them.
Jones, Respondent's principal witness, appeared strained as a witness, with lack of
candor, and lacking in a desire to state the facts objectively. I did not find him to be
credible as to the major part of his testimony. During the examination of Jones, it
came to light that Jones had given a sworn affidavit to a National Labor Relations
Board agent. Respondent by argument and by testimony of Jones attempted to
attack the effect of Jones' prior sworn statement.
In respect to Jones' testimony pertaining to his prior sworn statement and to the
prior sworn statement the following is noted- On July 28, 1964, Respondent was
served at its office in Collierville, Tennessee, with a copy of the original charge in
the instant case. The charge in effect alleged that Cox had been discriminatorily
discharged on July 25, 1964, because of his activities on behalf of a labor organiza-
tion. Affixed to a return receipt card, evidencing service of the above charge and
an attached letter, is the signature of C. B. Jones. The attached letter averred that
a charge alleging that unfair labor practices had been committed in violation of the
National Labor Relations Act, as amended, had been filed. The letter averred that
Field Examiner David Kaufman had been assigned the case and would contact the
'All credibility resolutions made with respect to the witnesses' testimony are based
upon a consideration of a composite evaluation of witness demeanor and logical con-
sistency of the evidence.
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent in the near future. The letter requested the Respondent to forward to
the Regional Office a description of the facts and circumstances and a written state-
ment of Respondent's position concerning the allegation in the charge.
On August 11, 1964, around 11 a.m., Field Examiner Kaufman appeared at
Respondent's plant in Collierville. Jones' testimony as to what occurred is largely
conclusionary and without reference to specific statements of Kaufman. On direct
examination Jones' testimony was to the effect that he did not know that Kaufman
was there with reference to the unfair labor practice charges, that Kaufman did not
permit Jones' assistant (Gaither) to stay in the office, that he (Jones) tried to run
his business (answering the telephone, etc.) and give his statement from 11 a.m. to
4 p.m., that Jones did not have lunch during this time, and that Kaufman told him
that if he did not sign the statement he had given that the matter would be deter-
mined with reference only to the evidence given by the other side and that this was
the last time Kaufman had scheduled to see him. Jones' ultimate testimony revealed
that Kaufman did not tell him not to have lunch but was to the effect that the
"questioning" was continuous. Jones' ultimate testimony revealed that Kaufman
told him that unless he signed the statement that the Region would have to determine
the matter on the evidence given by the other side and that this was the last time
Kaufman had scheduled to see Jones. Jones also testified to the effect that he had
a college engineering education, that he had training for his job and had been plant
manager for 17 years, that he was an elder in the Presbyterian Church, and had
only lied since becoming an elder 15 years ago as to matters of no import. Jones
further testified to the effect that he did not know the legal significance of the
words "foreman," "supervisor," "reprimand," and "insubordinate."
The General Counsel questioned Jones with specific reference to many statements
contained in the August 11, 1964, affidavit which were in apparent conflict with
Jones' testimony at the hearing. In all cases Jones either testified to his lack of
understanding of certain words as indicated before or admitted that the statement
was true and correct. From my observation of Jones' demeanor, which appeared
lacking in candor, forthrightness, and objectivity, and a consideration of the
conflicts between his testimony and his affidavit, as well as all the evidence, I am
convinced that his testimony as to the issues of any import in this case is not to be
believed. As to Jones' testimony that be did not know that Kaufman was investigat-
ing the charges in this case, I do not believe him. Jones, as indicated beforehand,
had been notified on July 28, 1964, that Kaufman was assigned to investigate the
charges, and that the Region desired that Respondent forward a description of facts
and a written statement. Respondent witness Krieger testified that he (Krieger) was
a vice president of Respondent and was in charge of the factories that produce cut
linings. The Collierville plant was one of these factories. Krieger testified that he
and Jones spoke to each other on the telephone daily and that he received a letter
from Jones dated July 27, 1964, setting forth that the reason for Cox's discharge
was insubordination.2 Considering the above, it is hard to believe that Jones had
not discussed with Krieger the problem of the unfair labor practice charges prior
to August 11, 1964. Considering Jones' educational background and experience,
I do not believe his testimony to the effect that he did not understand the words
"reprimand" and "insubordinate." It is clear that his testimony was to the effect
that he used the words "insubordinate" in the conversation with Cox on July 25,
1964, and that he used the word "insubordinate" in his August 11, 1964, affidavit.
It is reasonable that an investigator in a confidential type investigation would not
desire other potential witnesses hearing the questions and answers of other wit-
nesses during an investigation. Gaither (the assistant who was asked to leave the
room) was a potential witness and was asked to give and gave a statement to the
Board agent It is also reasonably good policy in investigation to attach weight to
sworn statements and little if no weight to unsworn statements.
Considering all the evidence and Jones' demeanor, I am convinced that Jones had
had reasonable time (July 28. 1964, to August 11, 1964) to ascertain what he should
do with reference to the Company's position herein, that he did express the Com-
pany's position as of that time, and that his statement reflected his free answers as
of that time. However, I do not believe Jones' testimony or his statement in his
affidavit with respect to what he told Cox at the time of Cox's discharge. Gaither,
whose demeanor was that of a person having strong character, of frank, candid, and
forthright appearance, testified to the effect that after Cox's discharge that Jones
told him that Cox was discharged because he could not get along with other
employees and that Jones said nothing about insubordination. I am convinced that
the alleged reason of insubordination is a reason brought forward by Respondent and
Jones after the discharge as a pretextuous reason.
2The exact date that this letter was mailed and received was not established.
DUBIN-HASKELL LINING CORP . 645
In summary I am convinced from Jones' own testimony that his sworn affidavit
reflects his free answers and that Jones decided to swear to and sign the affidavit
because he wanted his position considered . Nowhere in Jones' testimony does he
deny the truth and correctness of the affidavit except as to his understanding of
certain words. I am convinced from all the foregoing that Jones, in his affidavit,
added to the reason he gave Cox on July 25, 1964, in order to pretextuously justify
the discharge. I am further convinced that Jones tailored his testimony at the
hearing so as to create an additional defense as to the "alleged supervisory" status
of Cox, and tailored his testimony as to the July 29, 1964, incident so as to escape
blame. I do not credit Jones' testimony relating to the issues set out herein
wherein his testimony is in conflict with his affidavit. Nor do I credit Jones'
testimony, nor believe the alleged facts set forth in his affidavit as to what he said
to Cox at the time of Cox's discharge as to the reasons for Cox's discharge, or as to
the conversation with Cox in early June except as to the extent that I have set forth
such facts in my factual findings.
Respondent's witness Krieger testified to the effect that he was vice president of
Respondent in charge of production and over the Collierville plant in this regard.
Krieger's testimony on direct was to the extent that Respondent's labor relations
and attitude toward the Union was one of amiability and belief in democracy.
When asked, however, whether Respondent would recognize the Union if it had a
majority of the employees signed up at the Collierville plant, Krieger hedged his
answer and tried to minimize his responsibility and influence on labor relations.
I do not credit Kneger's testimony to any effect in this regard except to the
extent that where the Company is already organized that its labor relations rela-
tionship is good and that no prior unfair labor practice charges have been filed
against the Respondent. Krieger was also questioned about production problems
around the time of Cox's discharge. Krieger's answers were somewhat rambling
and general and referred to "over abundance of complaints," to the effect that
complaints fluctuated, and to the effect that complaints were a little more at the
time of Cox's discharge. Krieger referred to two companies, "Gary" and "Marb-
right." No letters relating to such complaints, no memorandums relating to com-
plaints, and no specific written reports of comparison of complaints were adduced.
Considering Krieger's demeanor and testimony as a whole, I am not convinced that
his testimony had sufficient objectivity for reliability. I note however from the facts
found hereinafter that it is clear that the asserted reason given Cox at the time of
his discharge was failure to get along with other employees. I am convinced that
"complaints" about production is an issue injected into the problem well after Cox's
discharge.
From my observation of Respondent's witness Leon Gaither's demeanor while
testifying and his testimony, Gaither impressed me as a reserved, quiet, frank, forth-
right, candid, and completely truthful witness. I credit Gaither's testimony in its
entirety. From my observation of Respondent 's witness Boyce Wilson's demeanor
while testifying and his testimony, Wilson impressed me as a frank, forthright, and
truthful witness. I credit his testimony generally except as to the portions indicated
later herein in which I found him to appear confused. From my observation of
General Counsel's witness Charles Wilson's demeanor while testifying and his
testimony, he impressed me generally as being a frank and truthful witness. How-
ever, I did not find him to be completely frank and forthright in his answers as to
whether he had heard remarks on the morning of July 24, 1964, when Jones
instructed Cox to take the men to the center lining department . I credit his
testimony generally but not to the extent that he did not hear what was said on
July 24, 1964.
Cox's Status as an Employee 3
Cox was originally employed by the Respondent in September 1959 and worked
continuously thereafter until July 25, 1964. Cox's wage rate per hour at the time
of original employment was $1.30 per hour. After employment and until his July 25,
3 The facts relating to Cox's status as an employee are based upon a composite of the
credited testimony of Anthony, Beesinger, Miller, Asa Wilson, Fred Cox, Leon Gaither,
Boyce Wilson and Charles Wilson, and upon admissions contained in Charles B Jones'
sworn statement of August 11, 1964, and upon the credited positions of Jones' testimony.
I do not credit Jones' testimony relating to Cox's authority to effectively recommend
transfers, raises, etc. nor to the effect of "responsible direction" of employees. In some
instances the manner of questioning and answers by Jones created a situation wherein
the obvious inference was that Cox had effective power as indicated above although
specifically not stated. Jones, who impressed me as an intelligent man, in such testimony
and by his demeanor revealed a lack of candor, forthrightness, and truthfulness
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1964, discharge , Cox received two 5 -cent raises and one 10-cent raise and was
making $1 . 60 per hour . at the time of his discharge and received a Christmas bonus
two or three times as great as other employees in the shipping department. All of
the raises received by Cox were raises received as part of general raises given all
employees . Two of the other three employees in the shipping department made
$1.55 per hour and the other employee made $ 1.50 per hour . Cox's original duties
when hired consisted of working in the shipping department . Cox's work at that
time consisted in tying bundles , helping pack bundles, strapping boxes, helping
unload trucks , stacking material , and helping wrap center lining. Cox and another
employee used a desk in connection with the writing of bills of lading, etc.
In 1962 Cox was made head shipping clerk. For 90 percent of his working time
thereafter he continued doing the same work as the other three men in the shipping
department. This work was essentially the same that Cox had done prior to becom-
ing head shipping clerk. For 10 percent of his time Cox wrote bills of lading and
wrote contents for boxes.
Cox did not have authority to layoff, recall, or suspend an employee, to grant
privileges , to grant overtime , recommend promotions , hire, or to discipline
employees. Cox did not have authority to effectively recommend hiring or firing,
transfers , or raises.
Cox denied in his testimony that he recommended the transfers of Boyce Wilson
and William Carter and stated that he (Cox) was on vacation at the time that
Boyce Wilson was transferred to the shipping department and Carter transferred out
of the shipping department. Jones' testimony elicited by questions as to whether
Cox had recommended transfers was to the effect that he had so recommended.
Jones' testimony and his prior sworn statement reveal that Cox had "suggested" and
had "asked" for the transfers.
The General Counsel's questions directed to Boyce Wilson about his transfer
related to his transfer "out" of shipping which occurred at a date later than Cox's
discharge. Boyce Wilson's answers appear to have confused the transfer in and the
transfer out of the shipping department. The confused nature of Boyce Wilson's
testimony in this respect is completely unreliable to establish the facts either way.
Cox also denied that he had recommended the transfer of either Charles Wilson
or Gene Boyd in order to separate the two from talking to each other. Jones'
testimony was to the effect that Cox had "suggested" the transfer of one of the two
men and that Cox had said that the two were not performing their work because
they were talking too much Jones' sworn statement of August 11, 1964, alluded
to the fact that Cox had asked that a transfer be made. Cox's testimony as to
whether he could recommend transfers was to the effect that he knew he could ask
concerning transfers , raises, etc . As indicated previously and hereafter I find Cox
a more credible witness than Jones. I believe Jones' testimony , however, to the
effect that Cox had related to him that the two men were not doing their work
properly because they talked too much . I am convinced from Cox's denial that he
had recommended their transfer, that the incident and his conversation did not reach
the strength of strong suggestion or recommendation . I am convinced that Cox's
statements were so weak in tone that the matter was not of such significant stature
that he recalled the incident at time of the hearing in this matter.
Jones' testimony at the hearing was to the effect that Cox had authority to
recommend transfers and raises , had made such recommendations , and that the
recommendations were effective . Jones' sworn affidavit of August 11, 1964, was to
the effect that Cox did not have authority to recommend effectively promotion or
raises, that Cox had made requests for transfers or raises , that Jones had investigated
or considered the facts and had made his own decision . The facts are clear that
Cox had suggested raises and transfers and that some transfers had been made and
some had not, that some raises had been given. The question is whether Cox had
the authority to effectively recommend raises or transfers . It is obvious that a
person may request , suggest, or recommend action and that after a request , sugges-
tion , or recommendation that action may be taken favorably in accordance with
such request , suggestion , or recommendation . The authority to effectively recom-
mend action connotes that great weight will be given such recommendation because
of the grant of such authority. I am convinced from a consideration of Jones'
affidavit and the fact of what occurred that the weight that was given Cox's recom-
mendations was not weight accorded because of granted authority but was such
weight as might normally be given suggestions , requests , or recommendations of
any exuerienced employee Jones' affidavit and the facts reveal that the weight
given Cox's suggestions , requests and recommendations was not the type of weight
accorded to one who has granted authority to effectively recommend action.
DUBIN-HASKELL LINING CORP. 647
Jones' sworn affidavit of August 11, 1964, reveals, and I accord weight to parts
thereof, that the work performed by the employees in the shipping department was
so routine in nature that Cox did not actually have to make any job assignments.
The employee witnesses testified to the effect that usually when trucks had to be
unloaded, that Gaither gave the instructions as to who should unload the trucks,
but that occasionally Cox gave the instructions. Cox testified that he did not make
the decision but that he and the employees discussed and decided who would unload
the trucks. Cox credibly testified to the effect that after the employees had worked
several weeks they knew what to do and would when work was caught up in
shipping go on their own to the "center lining" department, that Jones usually
passed on instructions to the group. I am convinced that Jones' statement in his
August 11, 1964, affidavit to the effect that the work was so routine that Cox did
not actually have to make assignments is correct. Considering all the foregoing,
I am convinced that assignments made by Cox were of such a routine nature that
independent judgment within the meaning of Section 2(11) of the Act was not
exercised by Cox.
Jones' testimony at the hearing was to the effect that Cox was responsible for the
overall direction of the shipping department and the work therein. It is clear from
all the evidence that as to handling the employees that Cox had no authority within
which he could implement by himself the conduct of the work of the employees.
Jones testified that Cox was responsible for "procedures" but did not spell out the
procedures with any specificity. Jones also testified that Cox was not expected to
check each item of production, packing, and tying, etc., and that because of work
on each item at different times that responsibility for blame could not be placed on
the individual employee. Jones also testified to the effect that Cox for the most
part was responsible for the bills of lading and for his production work. Jones'
affidavit of August 11, 1964, part of which I accord weight thereto, was to the effect
that in the final analysis Cox was responsible for the work of the employees in the
shipping department. Considering all the foregoing and all the evidence, including
Jones' statement in his affidavit of August 11, 1964, to the effect that the work of
the employees in the unit was of such a routine nature, I am convinced that such
direction or responsibility for direction that Cox had was of a routine nature and
did not require the exercise of independent judgment within the meaning of Section
2(11) of the Act. I am convinced that the absence of any real authority to affect
the employees in the shipping department and the routine nature of the work
reveals that Jones' use of the word "responsibility" in describing Cox's responsibility
for the work, refers to the fact that Cox served as a conduit for messages of
instructions and complaints.
The totality of all the evidence reveals that Jones in effect considered Cox
responsible for the work in the shipping department in the sense of the person for
Jones to complain to as a receiving instrument for the other employees. That this
did not constitute responsibility to direct in a nonroutine manner, and with the
exercise of independent judgment is revealed by Jones' statement in June 1964 to
employees that when he (Jones) was gone that employees loafed, that Gaither would
be in charge, that Gaither was only to have to tell the employees once and not twice,
and that if the employee did not follow instruction that Gaither and Jones would
work it out later.
Jones' testimony at the hearing was to the effect that he considered Cox to be a
supervisor. Jones' statement in his August 11, 1964, affidavit was to the effect that
Cox was not a supervisor or foreman. An employer's statement as to supervision
status is not controlling in either event.
Considering all the evidence herein I am convinced, conclude and find that Cox
was an "employee" within the meaning of Section 2(3) of the Act4 and not a
"supervisor" within the meaning of the Act.
Events of Early June 1964; Jones' Conversation with Cox about Union Activity 5
On an occasion in the first part of June 1964 Respondent's manager, Jones,
called Fred Cox, an employee, into his (Jones') office. Cox credibly testified to
4 See Houston Terminal Warehouse ct Cold Storage Company, 107 NZRB 290, Pacific
Metals Ltd., 91 NLRB 6966, San Manuel Copper Corporation, 120 NLRB 174, Palmer
Manufacturing Corporation , 94 NLRB 1477.
s Based on Cox's credited testimony. To the extent that Jones' testimony as to this
event conflicts with Cox's version it is discredited. I am also convinced that Jones'
version of this event contained in his August 11, 1964, affidavit is a self-serving version
and untrue.
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jones' appearance at the time as is revealed by the following excerpts from his
credited testimony:
A. Well, he looked like he was worried . His face was red and his eyes
were glary, like he wanted to cry, maybe. I mean, by his face being red, and
his eyes glary, I knowed he was worried. Didn't nobody have to tell me he
was worried.
Cox credibly testified that there was no one else in the office besides Jones and
Cox. Cox credibly testified to the effect that Jones told Cox to sit down, and asked
Cox if he knew that Alpha Chemical Company had voted in a union. Cox replied
to Jones that he did not know this. Manager Jones asked Cox if any of the men
in the plant were thinking about a union. Cox replied to Jones that the men were
not thinking about a union . Jones told Cox in effect that Cox knew that Respondent
had two big customers, the Colonial outfit and Spartan Industries, and that if the
Respondent were unionized that these two customers would quit the Respondent,
and that this meant the loss of a majority of Respondent's business. Manager Jones
told Cox in effect that if the Respondent became unionized that it would mean
Cox's and Jones' job. Jones told Cox to let him (Jones) know if he (Cox) heard
anything about a union. Cox replied to Jones that he would let him know if he
heard anything about a union.
Jones' testimony, which I do not credit, to the event is revealed by the following
excerpts from his testimony in the record in this case:
Q Did you have occasion to discuss unions with any of your employees
within the last half year?
A. Yes. This was brought to my recollection by the National Labor Rela-
tions Board examiner when he came out. I had forgotten about it.
Q. And when did this take place?
A. It took place sometime in early June. It was my positive recollection
that it was out in the shipping department, because Fred Cox was there and at
least two other men.
Q. Do you know who the other men were?
A. No, I don't, but we were discussing the topic of the Alpha Chemical
Company, which was common news in Collierville, and which, at the time,
everybody was talking about it, and I talked about how they had an election,
that the union had won and that I had heard that there was another plant in
Collierville going to be organized and I had no idea who that plant was, but I
expressed the hope that it wasn't ours, because they all knew my feelings in
the matter . I didn't mind a union, but I didn 't think a union was of an
advantage to them and that 's really-my recollection is not good on that meet-
ing because it wasn't something I had any reason to remember.
Q. Did you ever discuss union with Cox in your office?
A. I did not.
Q. Did you ever threaten Cox with discharge if a union ever came to the
plant?
A. No. That was not my method to threaten people with discharge for any
reason.
Q. Did you ever request that Cox come to you if there was any organiza-
tional activity in the plant?
A. No, I didn't. They had come to me before. I didn't figure it was
necessary.
Q. Did you have any suspicion at the time of this discussion that there was
or would be an attempt to organize your plant?
A. No, only that I had heard by the grapevine that there was another
organizational attempt going to be made in Collierville, but I really didn't
suspect that it would be mine
Q. Did you, at any time, either on this occasion or on any other occasion,
threaten Cox or any of the employees concerning union activities?
A. No, I did not.
Q. Did you at any time interrogate Cox or any other employee in your plant
about union activity?
A. No, I did not.
In connection with the foregoing it is noted that Jones ' sworn affidavit of August 11,
1964, alludes to the same incident in the manner as is revealed by excerpts from the
affidavit:
I do remember talking to Cox about the union or Alpha Chemical some-
times in the early part of June 1964. 1 remember telling Fred that I had heard
DUBIN-HASKELL LINING CORP. 649
the union was trying to organize another plant in Collierville , but I don't
remember specifically asking Cox if the boys in our plant were thinking about
a union . I don't recall ever telling Cox that if he heard anything from a
union in our plant as it would cost him his job as well as mine.
As indicated, I found Cox to be a witness of frank, forthright and truthful
demeanor and I believe his testimony to the "Alpha Chemical" event. As indi-
cated, I did not find Jones to be a witness of frank, forthright and truthful demeanor
and I do not believe his testimony as to the "Alpha Chemical" event. I am also
convinced that Jones' August 11, 1964 , affidavit ( insofar as the statements therein
with reference to the "Alpha Chemical" incident are self-serving) is not truly
reflective of the actual facts.
The General Counsel contends that the Respondent (by Manager Jones' state-
ments in early June 1964 ini reference to the "Alpha Chemical" incidents ) threatened
employees with discharge if Respondent became unionized and illegally interfered
with employees ' right to engage in or refrain from engaging in union activity by
requesting Cox to report on what he heard about union activity . The Respondent,
in addition to a denial of certain facts, contends that the evidence at most reveals
statements privileged by Section 8(c) of the Act. The Respondent contends that,
at most, Jones was expressing opinions as to what would happen.
Considering all of the evidence and the foregoing , I note the following : ( 1) The
facts revealed by Cox's credited testimony does not reveal that Jones stated that it
was his opinion that the two big outfits would cease being customers if Respondent
became unionized , and (2 ) there is no evidence whatsoever to reveal that it was
Jones' opinion that the two big outfits would cease being customers if Respondent
became unionized.
Considering all the foregoing , I am convinced that Jones' statements , to the effect
that if the Respondent became unionized that two big customers would quit and
that this would mean the loss of a majority of the business, and that if the
Respondent became unionized that it would mean Cox's and Jones' job, coupled
with Jones' request for Cox to report any union activity that Cox heard , constituted
statements reasonably calculated to convey to employees a threat that Respondent
would shut down its operations , resulting in loss of jobs, if Respondent became
unionized . Such a threat constitutes Respondent 's conduct violative of Section
8(a)(1) of the Act. I so conclude and find.
The questioning of an employee about whether other employees were thinking
about a union and the requesting of an employee to report on union activity, con-
sidered in light of the threat to employment revealed by the statements as a whole,
constitutes conduct reasonably calculated to reveal to employees that Respondent
is, checking on employee union activity and that reprisals are likely to occur. Such
conduct constitutes illegal interference , restraint , and coercion within the meaning
of Section 8 (a)( 1 ) of the Act. I so conclude and find.
Union Activity and the Reason Therefor
Around April 1963 Manager Jones announced to Respondent"s employees that
they were receiving an overall raise (apparently 5 cents an hour ) and that they
would receive another 5 -cent-an-hour raise a year later . In April 1964 some of
the employees spoke to Manager Jones about the raise and Jones turned down to
employees' request for a raise. As a result of the foregoing, between the last of
April and first of June 1964, Cox commenced thinking in terms of having a union
at the Respondent's plant. Around the last part of June 1964 Cox commenced
talking to fellow employees (Freeman Miller, Thomas Anthony, Asa Wilson, James
Beesinger, James Churchill, James Moore and Ray Cox) about having a union
in the plant. As a result of some of Cox's discussions with fellow employees, Cox
telephoned representatives of the AFL-CIO in Memphis, Tennessee, on July 6,
1964, and was told that a Mr. Bill Burch would get in touch with him. On
July 7, 1964, Cox and Anthony discussed the progress of events and Anthony there-
upon telephoned Burcham. Burcham told Anthony that he had referred Cox's
inquiry to a Mrs. Adele Taylor, a representative of Amalgamated Clothing Workers
of America, AFL-CIO, and gave Anthony Taylor's telephone number. Anthony
later related to Cox the results of his telephone conversation with Burcham. Cox,
on July 8, 1964, telephoned Taylor and discussed with her wages at Respondent
and at plants represented by Amalgamated Clothing Workers of America, AFL-CIO.
Thereafter and until July 25, 1964, Cox continued to talk to fellow employees at
work, and they to each other , about the union , and attempted to get employees to
sign union cards.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the occasions when Cox, Thomas Anthony, James Beesinger, Freeman Miller,
and Asa Wilson, Jr., discussed the Union (between the last of June and July 25,
1964) at the plant they did not discuss it in such a manner that either Respondent
Manager Jones or Leon Gaither could overhear what they were saying. Nor did
Cox, Anthony, Beesinger, Miller, or Asa Wilson, Jr. report to Manager Jones or
Gaither that they were engaging in union activity.
One of the issues in this case is whether Respondent had knowledge of the union
activity of its employees and particularly whether Respondent had knowledge of
Cox's union activity.
The Respondent's plant is located in Collierville, Tennessee. Collierville, Ten-
nessee, is a town of approximately 2,000 population. The Respondent's employees,
approximately 27 in number, work in a building wherein its office is located and the
building is approximately 80 by 140 feet in size. The door from the Respondent's
office which leads to the work area is of an opaque glass. A person looking
through the opaque glass would have difficulty, if it were at all possible, in identify-
ing persons in the working area of the building. Similarly it would appear that a
person in the Respondent's office would have difficulty in hearing conversations
carried on in a normal tone by employees in the working area while operations were
being, carried on. Leon Gaither, Respondent's inventory coordinator, and the man
in charge when Manager Jones is gone from the plant, credibly testified to the effect
that he did not know that union activity was being engaged in during June and July
1964. I observed nothing about Gaither's demeanor nor in his testimony to reveal
that he would be the type of person to seek to inquire into other persons' affairs
unless such inquiry was directly tied into Gaither's job. I was impressed by Gaither's
demeanor and testimony and am convinced that he is a man of principle and
integrity and that he would resist improper intrusion into matters of illegal connota-
tion. It is also clear from the evidence that insofar as the employees are concerned
as to their benefit that Manager Jones was the man of decision and power. I find
nothing in the evidence to reveal that employees seeking favor would be inclined to
report things or "tell on" other employees to Gaither.
Respondent Manager Jones testified to the effect that the union discussions that
he knew about was a problem several years ago and the early June 1964 (Alpha
Chemical) incident. Jones testified that several years ago that the majority of his
employees had reported the union activity of that time to him and that he had
assumed that they would in the present situation Jones testified (with reference to
questions relating to Cox's testimony to the effect that his desk had been gone
through on June 25, 1964) that he had no suspicion of union literature, etc. being
in the desk. Although the manner of the questions asked Jones, and his answers
thereto, leave his testimony in such a condition that it might be said that he had
not specifically denied knowing about Cox's union activity, I construe his overall
testimony as a denial that he knew of Cox's union activity. As indicated previously
I did not find Jones a credible or reliable witness in many respects. I do not credit
Jones' testimony to the effect (1) that he had no basis of suspecting that Cox might
have union literature in his possession (2) that the only union discussion he had
with employees in 1964 was the "Alpha Chemical" incident in early June 1964, or
that he did not know of Cox's union activity. As indicated hereinafter, I do not
believe that the reason for Cox's discharge was the reason advanced to Cox by
Jones at the time of discharge. Considering all of the evidence in the case, the
smallness of the plant and the small number of employees (27), the smallness of
the town in which the plant was located (population 2,000), Jones' definite interest
in the union problem as revealed by his statements to Cox in early June 1964, the
false reason for discharge and the additions thereto, and the past indications that
many of Respondent's employees had reported union activity to the Respondent's
Manager Jones, I find it proper to infer and do infer from all the circumstances of
this case that Respondent's Manager Jones knew of the union activity of Cox and
his fellow employees."
Events Concerning Cox's Discharge
On Friday, July 14, 1964, at 2:30 p.m., Manager Jones gave Cox his weekly
paycheck and gave Cox instructions about a shipment to go out the next day and
O Although Cox and the employees who were interested in the union attempted to keep
their activity from the attention of Jones, it is reasonable to believe that their union
activity in such a small plant and small town would be known to their fellow employees.
Under all the circumstances it is reasonable to believe that, as in the past , one or more
of these fellow employees would report on Cox and the other union sympathizers to Jones.
DUBIN-HASKELL LINING CORP . 651
told Cox to check with an employee named Fletcher the next day about the
shipment.
Cox reported and punched in for work before 7 a.m. on Saturday, July 25, 1964.
At that time Cox noticed that Manager Jones was already at the plant. Jones
normally did not work on Saturday, although on occasions he did come to the plant
on Saturday for a few hours work? A short time later, around 7 a.m., Inventory
Coordinator Gaither came to Cox and told Cox that he (Gaither) was going on a
vacation and for Cox to watch out about some poor quality material he wanted to
keep separate and about a shipment coming in.8 A short time later Manager Jones
came out of his office and motioned Cox to come into his (Jones') office. Cox
went into Jones' office and Jones told Cox to sit down and Cox sat down. Jones
told Cox that he was going to let him go. Cox asked Jones "for what." Jones
told Cox "you can't get along with the men out there." Cox told Jones that he had
not done anything to anyone that he knew of and that what Jones said was not true.
Cox asked Jones several times to tell him why he was being discharged. Jones told
Cox that he (Jones) did not want to get mad and gave Cox an envelope with his
paycheck in it.
I credit Cox's testimony as to what occurred at the time of his discharge. Jones
in his testimony and in his August 11, 1964, affidavit alludes to the fact that he
told Cox that he had been insubordinate the day before. Gaither credibly testified
to the effect that after Cox's discharge that he asked Manager Jones why he had
fired Cox and that the only answer that he received was that Cox could not get
along with the other employees, that nothing was said about insubordination. As
indicated elsewhere, I did not find Jones a reliable or credible witness. I do not
credit Jones' testimony to the effect that he made any statement about insubordina-
tion to Cox at the time of Cox's discharge.
The Respondent contends that it was not motivated by union activity considera-
tions in discharging Cox but that Cox was discharged because of insubordination,
failure to get along with the other employees and refusal to accept criticism.
The principal evidence in support of its claim of insubordination is based on
Jones' testimony, general in nature, that Cox resisted his orders, and that Cox had
not carried out his instructions on July 24, 1964, about taking some men into the
center lining department. As indicated previously, I found Jones to be an unre-
liable witness as to most of his testimony. I do not find his testimony reliable as
to the general effect that Cox resisted his orders. As to the incident that occurred
on July 24, 1964, the evidence is not in great dispute. Around 7 a.m. that morning
Jones instructed Cox to take the men over to the center lining department. Cox,
at the time, said words to the effect that the men in center lining were about caught
up and did not need any help.9 Cox did not immediately take his men over to
center lining but went to the restroom. Around 15 minutes later someone from the
center lining complained to Jones about needing help. Jones went out into the
work area, did not see Cox or the other men working in center lining but saw one
of Cox's men (Boyce Wilson) and told Boyce Wilson to go and help in center
7 Cox testified that Jones' presence was unusual since Jones did not work on Saturday.
Jones testified to the effect that there was no work for him on Saturday but that when
the plant had work on Saturday that he made scattered visits for a few hours at a time
to the plant . It would appear unusual for Jones, if he had no work to do, to appear at
the early hour of 7 a m., on Saturday . I credit Cox 's testimony to the effect that this
was an unusual occurrence.
8 Cox credibly testified to the effect that when he came to work that a fan was on near
his desk and that a desk drawer appeared to have been ransacked and that the desk
drawer was on top of his desk. Manager Jones testified to the effect that he knew
nothing about the condition of Cox's desk and the desk drawer. In view of the other
factual findings in this case I find it unnecessary to determine whether the Respondent
was responsible for the events touching upon the state or condition of Cox's desk at the
time.
9 The facts relating to July 24 , 1964, incident are based upon a composite of the credited
testimony of Cox , Charles Wilson , Boyce Wilson , Jones, and Jones' sworn affidavit Cox
and Charles Wilson placed the time as around 7 a.m. Jones in his testimony did not
place the time except after work had started . Jones testified that 15 minutes later he
spoke to Boyce Wilson and Boyce Wilson placed the time of Jones' conversation with
him as around 8 to 8:30. Considering all the evidence and the demeanor of the witnesses,
I find Cox's and Charles Wilson's testimony as to the time more reliable than the other
witness.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lining. About this time Cox returned from the restroom and took his other men
over to center lining. Boyce Wilson asked Cox why he had not been told to go to
center lining and Cox did not reply.
Considering the foregoing and all the evidence in this case, I am convinced that
insubordination was not a reason for Cox's discharge. I am convinced that if
Jones had fired Cox for insubordination that he would have told Cox this at the
time of his discharge and that Jones would have later told Gaither that Cox was
fired for insubordination. I do not believe and have not credited Jones' testimony
to the effect that he alluded to insubordination at the time he discharged Cox. I
am convinced that the alleged insubordination reason is an afterthought and a
pretextuous attempt to hide the real motivation reason for discharge.
The principal evidence relied upon by the Respondent to establish that one of
the, reasons for Cox's discharge was the inability to get along with men consists of
the fact that Cox had made certain recommendations for transfers of men, recom-
mendations with which Jones disagreed at the time or later. Jones in his sworn
affidavit stated "as far as I know Cox got along with the men in his department as
well as the men in the plant. None of the employees complained to me about Cox."
Even from Respondent's version of the facts, Cox's requests for transfers of men
amounted to only four requests in 2 or 3 years. Considering the foregoing and all
the evidence, including Jones' attempt after the discharge to develop other reasons
for Cox's discharge, I am convinced that "inability to get along with men" was not
the reason for Cox's discharge but a pretextuous reason utilized to hide the real
reason.
Jones testified to the effect that there was a third reason for his discharge of Cox.
This reason was that Cox allegedly refused to accept criticism . Considering the
evidence as a whole and the fact that Jones told both Cox and Gaither that his
reason for discharging Cox was Cox's inability to get along with other employees,
as well as my consideration of Jones' demeanor and testimony as a whole, I am
convinced that this asserted reason constitutes another pretextuous reason to cover
up the real reason for Cox's discharge.
In summary and conclusion and consideration of all of the evidence, the clear
concern that Jones displayed about union activity in early June 1964 the illegal
interrogation about and request of reports on union activity, Cox's union activity
prior to his discharge, and the flimsy pretextuous reason given for discharge at the
time of Cox's discharge, and the addition thereto of other pretextuous reasons for
discharge, I am convinced and conclude and find that Respondent Manager Jones
discharged Cox on July 25, 1964, because Cox had failed to report to him about
the union activity of the employees, and because Cox had engaged in union activity.
The conduct of Respondent in discharging Cox for such reasons constitutes conduct
violative of Section 8(a) (1) and (3) of the Act.1e
The Event of July 30, 1964 it
On July 30, 1964, Cox telephoned Manager Jones at his office and asked if he
could come over and talk to him. Jones told Cox that he was going by the post
office and then going home. Cox asked if it would be all right if he came to Jones'
house to talk to him. Jones told Cox that it would be all right.
Cox went to Jones' house and after meeting Jones at the door the two entered
into the house and sat down. Cox told Jones that he was there to see about getting
his job back. Jones told Cox in effect that the home office would not let him hire
Cox back because Cox had filed a charge (the charge in the instant case) against
them. Cox told Jones that he would drop the charges if Jones would give him his
job back. Jones told Cox that Droxell, (a manufacturer in Moscow, Tennessee)
10 Even were I to be convinced that Cox were a supervisor within the meaning of the
Act, I would find his discharge under the circumstances violative of Section 8(a) (1) of
the Act and require an 8(a) (1) type of remedy similar to the normal remedy for 8(a) (3)
type violations.
11 Based on Cox's credited testimony. Considering Jones' demeanor and testimony as
a whole, the conflicts between his August 11, 1964, affidavit and his testimony at the
hearing , I find Jones ' testimony unreliable and do not credit Jones ' version. Cox testified
at the hearing that the event occurred on July 30 , 1964 . Jones did not testify as to the
date. The pleadings and Jones ' sworn affidavit allude to the event as occurring July 29,
1964 I find it proper to fix the date in accordance with the sworn testimony at the
hearing. In any event whether the incident occurred on July 29 , 1964, or July 30, 1964,
it is clear that Cox and Jones were alluding to the same incident and ultimate findings
would not be affected.
DUBIN-HASKELL LINING CORP. 653
had called him about an application Cox had made for employment and that he
(Jones) could not recommend Cox, that Cox should not have hopes of ever getting
back to work at the Respondent's. Cox asked Jones had he talked to New York
(the home office). Jones said that he would do so but that Cox should not have
any hopes of ever getting back to work at the Respondent's.
Jones' version of the incident as set forth in his sworn affidavit of August 11,
1964, appears to corroborate Cox's version as testified to, and to contradict Jones'
testimonial version. Jones' statement in his sworn affidavit is as follows:
On or about July 29, 1964, at approximately 2.00 P.M. I received a call
from Cox at my office. Cox asked if he could come over to my home that
evening. I arranged to meet him at 4 P.M. at my home. Cox arrived at
4:30 P.M and asked for his job back. I told him that in view of his filing
charges that I couldn't possibly rehire him. Cox said he had nothing to do
with any union and offered to withdraw the charges if I would rehire him. I
told him I couldn't rehire him and there would still have to be an interrogation.
Jones version of the event according to his testimony at the hearing is revealed
by the following excerpts from his testimony.
A. He came in the living room and we sat down and he told me that he
wanted to get his job back and that he would drop the charges if I would give
him his job back and I told him that he was not fired for union activities, he was
fired for insubordination and it was my feeling at that time-
Mr. MEYER: Objection.
A. It was my understanding, it was my knowledge.
Q. [By Mr. MILLER.] Did you state to him what your knowledge was?
A. I stated to him that I felt you could not drop the charges before the in-
vestigation had been made. Now, I got that from something. I don't know
whether it was the papers that came to me, or what.
Q. So that was the only reference to the charge before the Board?
A. That's right. He's the one that brought up dropping the charges. I didn't.
Considering the foregoing testimony and affidavit statement of Jones, his
demeanor as a witness, and his testimony as a whole, I find Jones' testimony as a
witness to this unreliable and have not credited his version of the event.
Considering the credited facts based upon Cox's testimony, I conclude and find
that Respondent Manager Jones, by his statements, revealed that Respondent was
not and would not consider Cox for reemployment because Cox had filed unfair
labor practice charges. Such conduct is violative of Section 8(a)(1) and (4) of
the Act. I so conclude and find.12
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Those activities of Respondent which have been found to be unlawful as set forth
in section III, above, occurring in connection with its operations set forth in section
I, above, 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
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a) (3) and (1) of the Act by
the discriminatory termination of Fred A. Cox, and having found that Respondent
violated Section 8(a)(4), (3), and (1) of the Act by the discriminatory refusal to
consider Fred A. Cox for reinstatement, it is recommended that Respondent offer
to Fred A. Cox 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 loss of earnings he may have suffered by reason of
such discrimination by payment to him the sum of money equal to that which he
normally would have earned as wages from the date of his discharge to the said
offer of reinstatement, less his net earnings during such period with back pay com-
v I find from the overall facts that Respondent has failed to reinstate a discriminatorily
discharged employee . This constitutes a continuation of conduct violative of Section
8(a) (3) of the Act.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
puted on a quarterly basis in the manner established by the Board in F. W. Wool-
worth Co., 90 NLRB 289, 294, and with interest thereon as prescribed by the
Board in Isis Plumbing & Heating Co., 138 NLRB 716.
As the unfair labor practices committed by the Respondent were of a character
which go to the very heart of the Act, it is recommended that the Respondent cease
and desist therefrom and cease and desist from infringing in any other manner upon
the rights of employees guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Dubin-Haskell Lining Corp., the Respondent, is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Amalgamated Clothing Workers of America, AFL-CIO, is now, and has been
at all times material herein, a labor organization within the meaning of Section
2(5) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging, in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
4. By discriminating in regard to the hire and tenure of employment of
employees thereby discouraging membership in or activities on behalf of a labor
organization, Respondent has engaged in unfair labor practices within the meaning
of Section 8(a)(3) of the Act.
5. By discriminating in regard to the hire and tenure of employment of em-
ployees thereby discouraging the filing of unfair labor practice charges with the
National Labor Relations Board, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a) (4) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER 13
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this case, it is recommended that Respondent, Dubin-Haskell
Lining Corp., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf of Amalgamated Clothing
Workers of America, AFL-CIO, or in any other labor organization of its employees,
or discouraging the filing of unfair labor practices charges with the National Labor
Relations Board, by discharging, refusing to reinstate, or otherwise discriminating in
regard to the hire or tenure of employment or any terms of condition of employment
of any of its employees.
(b) Interrogating its employees concerning theirs or other employees' union
affiliation or activities, or protected concerted activities, in a manner constituting
interference, restraint, or coercion in violation of Section 8 (a)( I) of the Act.
(c) Requesting employees to report on the union activities of its employees, in
a manner constituting interference, restraint, or coercion in violation( of Section
8(a)(1) of the Act.
(d) Threatening employees with loss of jobs or employment or other reprisals
because of their activity on behalf of Amalgamated Clothing Workers of America,
AFL-CIO, or on behalf of any other labor organization of its employer.
(e) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join, or assist labor
organizations, 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 as guaranteed by Section 7 of the Act, and to refrain from
any and all such activities.
is In the event that this Recommended Order be adopted by the Board, the word "Order"
shall be deemed substituted for the words "Recommended Order." Additionally there
shall be deemed substituted for the first paragraph of the Recommended Order the follow-
ing paragraph:
Upon the entire record in these cases, and pursuant to Section 10(c) of the
National Labor Relations Act, as amended, the National Labor Relations Board
hereby orders that Respondent, Dubin-Haskell Lining Corp., its officers, agents, suc-
cessors, and assigns , shall:
DUBIN-HASKELL LINING CORP. 655
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Offer to Fred A. Cox immediate and full reinstatment to his former or
substantially equivalent position without prejudice to his seniority and other rights
and privileges.
(b) Notify Fred A. Cox if presently serving in the Armed Forces of the United
States of his right to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces.
(c) Make whole Fred A. Cox for any loss of pay he may have suffered by reason
of the discrimination against him by payment to him of a sum equal to the amount
he normally would have earned as wages from the date of his discharge to the date
of Respondent's offer of reinstatement in the manner set forth in the section entitled
"The Remedy."
(d) Preserve and upon request make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records relevant or necessary to
the determination of the amounts of backpay due and to the reinstatement and related
rights provided under the terms of this Recommended Order.
(e) Post at its plant in Collierville, Tennessee, copies of the attached notice
marked "Appendix." 14 Copies of said notice, to be furnished by the Regional Direc-
tor for Region 26, shall, after being signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places, where notices to employ-
ees 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.
Notify the Regional Director for Region 26, in writing, within 20 days from the
date of this Recommended Order, what steps the Respondent has taken to comply
herewith.15
In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be 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".
'SIn the event that this Recommended Order be 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 a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL offer Fred A. Cox 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 discrimination against him.
WE WILL NOT discourage membership in or activities on behalf of Amalga-
mated Clothing Workers of America, AFL-CIO, or in any other labor organi-
zation of its employees, or discourage the filing of unfair labor practices charges
with the National Labor Relations Board, by discharging, refusing to reinstate,
or otherwise discriminating in regard to the hire or tenure of employment or
any terms or condition of employment of any of its employees.
WE WILL NOT interrogate our employees concerning their or other employees'
union affiliation or activities, or protected concerted activities, in a manner
constituting interference, restraint, or coercion in violation of Section 8(a)(1)
of the Act.
WE WILL NOT request our employees to report on the union activities of its
employees, in a manner constituting interference, restraint, or coercion in viola-
tion of Section 8 (a) (1) of the Act.
WE WILL NOT threaten our employees with loss of jobs or employment or other
reprisals because of their activity on behalf of Amalgamated Clothing Workers
of America, AFL-CIO, on on behalf of any other labor organization of its
employee.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, join, or
assist labor organizations , 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 as guaranteed by Section 7 of the
Act, and to refrain from any and all such activities.
All our employees are free to become or remain, or to refrain from becoming or
remaining members of Amalgamated Clothing Workers of America , AFL-CIO,
or any other labor organization.
DUBIN-HASKELL LINING CORP.,
Employer.
Dated------------ ------- By-------------------------------------------
(Representative ) ( Title)
NoTE.-We will notify Fred A . Cox if presently serving in the Armed Forces of the
United States of his right to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military Training and Service Act of
1948 , as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by an other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 746
Federal Office Building, 167 North Main Street , Memphis, Tennessee , Telephone
No. 524-3161.
J. Brenner & Sons, Inc. and International Union of District 50,
United Mine Workers of America. Case No. 5-CA-3078. Au-
gust 20,1965
DECISION AND ORDER
Upon a charge filed on March 11, 1965, by International Union
of District 50, United Mine Workers of America (herein called the
Union), against Respondent J. Brenner & Sons, Inc., and duly
served on Respondent on or about March 11, 1965, the General
Counsel for the National Labor Relations Board by the Regional
Director for Region 5, on April 13, 1965, issued and served upon the
parties herein a complaint and notice of hearing. The complaint
alleges that Respondent had engaged in and was engaging in certain
unfair labor practices affecting commerce within the meaning of
Section 8(a) (1) and (5) and Section 2(6) and (7) of the National
Labor Relations Act, as amended.
With respect to the unfair labor practices, the complaint alleges
that on or about February 12, 1965, the Union was duly certified by
the Board 1 as the exclusive collective-bargaining representative of
Respondent's employees in the unit found appropriate by the Board
and that, since on or about March 5, 1965, Respondent has refused
to recognize or bargain with the Union as such exclusive bargaining
representative, although it has been requested to do so.
1 Case No. 5-RC-4917. On February 17, 1965, the Board entered an Order correcting
the title of its Decision of February 12, 1965.
154 NLRB No. 49.