H. K. Porter, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1961

131 N.L.R.B. 1383 (N.L.R.B. 1961)

H. K. PORTER , INC. 1383
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
recommend that it cease and desist therefrom, and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Boby Long, Donnie V. Burgess, Gilbert E. Essex, and Charles
Gentry were discriminated against with respect to their hire and tenure of employ-
ment, I recommend that Respondent be ordered to offer each of them immediate
and full reinstatement to their former or substantially equivalent position, without
prejudice to their seniority and other rights and privileges, and to make them whole
for any loss of earnings each may have suffered because of the discrimination against
him by payment of a sum of money equal to the amount he normally would have
earned as wages from the date of his discharge to the date of the offer of reinstate-
ment, respectively, less his net earnings during said period (Crossett Lumber Com-
pany, Inc., 8 NLRB 440), with backpay computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90 NLRB 289. I also
recommend that Respondent make available to the Board, upon request, payroll
and other records to facilitate the determination of the amounts due under this
recommended remedy.
Because of Respondent's prior record of unfair labor practices as disclosed in 116
NLRB 565, and because the discriminatory discharges herein for union or con-
certed activities go "to the very heart of the Act," 24 I am convinced and find that
there exists the danger of the commission of similar and other unfair labor practices.
I therefore recommend that Respondent be ordered to cease and desist from in any
manner infringing upon the rights guaranteed to its employees 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. Boot & Shoe Workers' Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Bobby
Long, Donnie V. Burgess, Gilbert K. Essex, and Charles Gentry, because of their
union and concerted activities, thereby discouraging membership in the above-named
labor organization, Respondent has engaged, and is engaging, in unfair labor prac-
tices within the meaning of Section 8 (a) (3) of the Act.
3. By interrogating its employees concerning their union activities Respondent
has violated Section 8(a) (1) 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.]
u N L.R.B. v. Entwistle Mfg Co, 120 F. 2d 532, 536 (CA 4).
H. K. Porter, Inc. and United Textile Workers of America, AFL-
CIO. Case No. 5-CA-1718. June 29, 1961
DECISION AND ORDER
On April 12, 1961, Trial Examiner A. Bruce Hunt issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent 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 Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report.
131 NLRB No. 166.
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the Respondent's exceptions, and the entire record in this
case , and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
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 H. K. Porter Company, Inc., Dan-
ville, Virginia, its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in United Textile Workers of Amer-
ica, AFL-CIO, or in any other labor organization of its employees,
by discharging any of its employees because of their concerted or
union activities, or in any other manner discriminating in regard to
their hire or tenure of employment or any term or condition of
employment.
(b) Engaging in or attempting to engage in surveillance of con-
certed or union activities.
(c) Interrogating and threatening employees concerning union
activities in a manner constituting interference, restraint, or coercion
in violation of Section 8 (a) (1) of the Act.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Norman Hanks, Joseph Shelton, and James Hodges im-
mediate and full reinstatement to their former or substantially equiv-
alent positions, without prejudice to their seniority or other rights
or privileges and make each of them whole in the manner set forth in
the section of the Intermediate Report entitled "The Remedy" for any
loss of pay he may have suffered as a result of the Respondent's dis-
crimination against him.
(b) Preserve and, upon request, make available to the Board or its
agents all payroll and other records, as set forth in the section of the
Intermediate Report entitled "The Remedy."
'Absent exceptions to the Trial Examiner 's finding that the General Counsel did not
sustain his burden of proving that Carter was discharged in violation of Section 8(a)(3),
we adopt that finding pro forma.
H. K. PORTER, INC. 1385
(c) Post in conspicuous places at its plant in Danville, Virginia,
including all places where notices to employees customarily are posted,
copies of the notice attached hereto marked "Appendix." 2 Copies of
said notice, to be furnished by the Regional Director for the Fifth
Region, shall after being duly signed by the Respondent's representa-
tive, be posted by it immediately upon receipt thereof, and maintained
by it for at least 60 consecutive days thereafter. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) File with the said Regional Director, within 10 days from the
date of this Order, a report in writing setting forth in detail the steps
which the Respondent has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint herein be, and it
hereby is, dismissed insofar as it alleges that Carter was discharged in
violation of the Act.
2 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."
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, we hereby notify our employees that :
WE WILL NOT discourage membership in United Textile Work-
ers of America, AFL-CIO, or in any other labor organization of
our employees, by discharging any of our employees because of
their concerted or union activities, or in any other manner dis-
criminating in regard to their hire or tenure of employment or
any term or condition of employment.
WE WILL NOT engage in, or attempt to engage in, surveillance
of concerted or union activities.
WE WILL NOT interrogate or threaten our employees concerning
union activities in a manner constituting interference, restraint
or coercion in violation of Section 8 (a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or co-
erce our employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist United Textile
Workers of America, AFL-CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, or to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to re-
frain from any or all of such activities.
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer Norman Hanks, Joseph Shelton , and James
Hodges immediate and full reinstatement to their former or
substantially equivalent positions , without prejudice to their
seniority or other rights or privileges.
WE WILL make whole Norman Hanks, Joseph Shelton, and
James Hodges for any loss of pay they may have suffered as a
result of the discrimination against them.
All our employees are free to become or remain , or to refrain from
becoming or remaining , members in good standing of United Textile
Workers of America , AFL-CIO, or any other labor organization.
,H. K. PORTER, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding involves allegations that the Respondent , H. K. Porter Company,
Inc., violated Section 8(a) (1) and (3) of the National Labor Relations Act, as
amended , 61 Stat. 136, 73 Stat. 519. On September 7, 8, and 9, 1960, I conducted
a hearing at Danville , Virginia, at which all parties were represented . Upon the
entire record and my observations of the witnesses , I make the following:
FINDINGS OF FACT
1. THE RESPONDENT
H. K. Porter Company, Inc., a Deleware corporation , operates a plant in Danville,
Virginia , where it manufactures saws and other tools. During a representative 12-
month period , the Respondent shipped finished products valued in excess of $ 500,000
from that plant directly to points outside the Commonwealth of Virginia. I find
that the Respondent is engaged in commerce within the meaning of the Act.
IT. THE UNION
United Textile Workers of America, AFL-CIO, is a labor organization which
admits to membership employees of the Respondent.
III THE UNFAIR LABOR PRACTICES
A. The issues
The complaint , as amended at the hearing, alleges, and the Respondent denies, that
the Respondent ( 1) interrogated and threatened employees concerning union mem-
bership and activities ; ( 2) engaged in surveillance of union meetings ; and (3) dis-
charged Norman R. Hanks. Joseph Shelton, James M. Hodges, and Rogers N. Carter
because of their union membership and activities
B. The events
The Respondent 's plant in Danville was opened during the summer of 1959. A
few employees were hired during August. By the early part of 1960, the number of
employees had reached 250 to 300.
During late October 1959, several employees, including Shelton, went to the local
office of the Union and spoke with Howard Robertson , international representative,
concerning unionization of the plant. Thereafter , an organizational campaign was
H. K. PORTER, INC. 1387
begun and a committee of employees was formed. Hanks, Shelton, Hodges, and
Carter were among the 12 to 14 members of the committee.'
During November, William E. Wilson, supervisor of industrial relations, went to
Shelton at the latter's place of work and said that he had been told that Shelton was
unhappy and dissatisfied. Shelton answered that the contrary was true, that he
worked regularly, that he attended to his business, and that he would like to confront
anyone who had said that he was unhappy. Wilson patted Shelton on the back,
saying that if Shelton should become dissatisfied and choose to work elsewhere,
Wilson would give him a recommendation because he was a good worker?
During a period in late 1959, Hanks worked under two foremen, Bill Hankins and
Roy Greicer. About December 1, Hankins disclosed to Hanks that he had been a
member of a labor organization for a period of years and that he believed that the
plant should be organized. Hanks replied that he was "trying to get it organized,"
and Hankins said that Hanks should be careful. A short time later, Greicer told
Hanks that he had talked with Milan C. Sevchik, then the plant manager, that "they"
knew that Hanks was working for the Union and that Hanks should "leave it alone."
Upon undisclosed dates, when Hanks was visiting m Hankins' home, Hankins said
to him that the plant should be organized but that he should "let somebody else do
it" because he knew "what would happen" if be should get "caught." 3
About January 1, 1960, Arthur Kratz, manufacturing superintendent, spoke
with Shelton at the latter's place of work and said that be had heard things about
Shelton which he did not like. Shelton replied that he stayed on his job and attended
to it, that he had told the same thing to Wilson, that he knew there were rumors of
a union movement, but that he attended to his business, let other persons attend to
theirs, and that he preferred not to hear anymore about it. Kratz then said that he
"didn't think it," that "they kept telling" him and that he "didn't think it." KTatz
walked away and the conversation ended.4
On January 30, Kratz discharged Hanks, as described hereinafter
Billy Robertson, an employee, was active in the organizational efforts. On Febru-
ary 17, Robertson's foreman, Tom Sims, said to Robertson that there was a rumor
that Robertson was dissatisfied with his job and that a couple of people had said so
to Sims. Robertson replied that he was not dissatisfied and that he did not know
what Sims was talking about. Sims said several times that if Robertson "had anything
to say . now was the time to say it," and Robertson repeatedly answered that he
had nothing to say.5 On February 23, Sims took Robertson to Wilson's office. After
some moments of idle conversation, Sims said that Robertson had been brought into
the office so that Sims and Wilson could learn why Robertson was dissatisfied, adding
that several persons had said that Robertson was dissatisfied. Robertson replied
1 The record does not disclose the date the committee was formed, but union activity
was underway before Hodges was hired on December 14, 1939
'- The findings concerning this conversation are based upon Shelton's uncontradicted testi-
mony Wilson, a witness for the Respondent, did not testify concerning the conversation
' The findings concerning these conversations are based upon the uncontradicted testi-
mony of Hanks At the time of the hearing, Hankins, Greicer, and Sevchik were no longer
employed by the Respondent It does not appear, however, that the Respondent diligently
sought to locate them and to call them as witnesses In any event, the initial charge was
not served upon the Respondent until June 7, 1960, perhaps more than 6 months after
some or all of the conversations, and the General Counsel offered this portion of Hanks'
testimony to establish that the Respondent knew of Hanks' union activities, not to prove
a violation of Section 8(a) (1) of the Act
4 These findings are based upon the testimony of Shelton On the other hand, Kratz,
who testified that at an undisclosed time he had heard a rumor that Shelton was working
for the Union testified also that lie was not interested in the rumor, that upon several
occasions he asked Shelton whether Shelton was dissatisfied, that lie made such inquiries
because Shelton spent a substantial amount of time away from Shelton's place of work,
and that fie did not question Shelton about the Union I cannot credit Kratz' testimony
His professed lack of interest in the Union is weakened by the efforts of three supervisors
to engage in surveillance of a union meeting, as described hereinafter, and his versions of
certain discharges, also described below, are unreliable
5 These findings are based upon the testimony of Robertson Sims, a witness for the
Respondent, testified that upon a number of occasions lie inquired of Robertson whether
Robertson was dissatisfied, that he did so because Robertson was a poor worker, that on
February 17 lie asked whether Robertson was dissatisfied and what was bothering
Robertson, that Robertson asked for outside work, that he replied that he did not believe
that Robertson would like outside work, and that, insofar as he could remember, nothing
else was said
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he was not dissatisfied, and he was asked what was bothering him and what was
wrong with "company policy." Robertson answered that he knew of nothing wrong.
Again there was idle conversation following which Sims asked whether Robertson had
signed a union card, and Robertson gave an untruthful, negative answer. Sims asked
whether Robertson had been asked to sign a card, and again Robertson answered
in the negative. Sims asked the identity of the "leader of the union" and the date
of the next meeting, and in each instance Robertson answered that be did not know.6
On the next day, February 24, Shelton was discharged. The circumstances are
related hereinafter.
During February, Claude Swain, an employee, talked with his foreman, Dale
Young, concerning the Union. The conversation occurred as Swain and Young
rode to or from work in Young's automobile. According to Swain, a witness for
the General Counsel, during the course of the conversation he said to Young that
several employees had sought to persuade him to sign a union card and Young
answered that "the best thing" Swain could do would be to "turn in the names of"
the employees who had solicited his signature and "let the company take care of
them." Swain could not recall anything else which he or Young said about the
Union upon that occasion although, as he testified, he had not signed a card, he
"tried to leave the impression" with Young that he was not in favor of the Union,
and Young did not ask him to give to Young the names of employees who had so-
licited his signature. On the other hand, Young testified that Swain, in telling
of having been solicited, spoke of having been bothered several times while at work,
to which Young responded that Swain should report the matter to the head of the
department, Joe Labiak. In view of Swain's inability to recall portions of the con-
versation, plus Swain's effort to indicate to Young that he was not in favor of the
Union, plus Young's failure to ask Swain to disclose to Young the names of the
solicitors, it is reasonable to conclude that Swain gave Young the impression that
Swain had been bothered on the job and that Young's response was directed to
that impression and was not a threat that employees who were active for the Union
during nonworking hours might be disciplined.?
O These findings are based upon Robertson's testimony On the other hand, the testi-
mony of Wilson and Sims is unpersuasive and inconsistent. Wilson testified that
Robertson was brought to the office because Sims was endeavoring to learn what was
bothering "Robertson as far as his work was concerned" and that there was no reference
to the Union. While Sims also testified that there was no such reference, he testified that
the purpose in taking Robertson to Wilson's office was to learn of vacant jobs and to find
something more suitable and appealing to Robertson than the job which Robertson held.
Sims testified further that Robertson said that he "didn't want to leave" the Respondent's
employ if he could "get something different " Nevertheless, according to Sims, Sims did
not offer Robertson a different job because he wanted Robertson to "make a suggestion"
about another job. I believe that a transfer of jobs for Robertson was not discussed and,
as indicated above in this footnote, it does not appear from Wilson's testimony that there
was such a discussion. The versions of this conversation which were given by Wilson and
Sims do not ring true, and Sims' additional testimony that nothing was said about the
Union because that subject would have been of no interest to Sims is belied by Sims'
surveillance of union activity which is described hereinafter.
7 Subsequently, perhaps 2 or 3 months after the conversation described above, Swain
and Young again spoke of the Union as they rode to or from work. Swain asked what
would happen to employees who signed union cards. According to Swain, Young replied
that representatives of the Union, in asking the Respondent for recognition, would disclose
the names of card signers, following which the Respondent would discharge those em-
ployees one at a time. On the other hand, Young testified that in answering Swain's
question, he recited an experience of his own when he had worked for an electrical con-
tractor and had designated a union of electricians to represent him, following which a
representative of that labor organization, in seeking recognition, disclosed to the con-
tractor the names of card signers. Young testified further that he recited the experience
"as an example," saying to Swain that the contractor could have discharged the elec-
tricians but did not discharge them because they quit, that "this could happen . . . tor]
It could not" at the Respondent's plant, but that there were "too many people involved"
for the Respondent to discharge them. As recited above, Swain could recall but little of
the first conversation with Young. He also could recall but little of the second conversa-
tion, and at one point in his testimony he said that the conversations occurred a few
days apart whereas he later testified that they occurred a few months apart. I credit the
version as recited by Young, and contrary to the General Counsel's contention, I find that
there was no threat of discharge in Young's answer to Swain's question.
H. K. PORTER, INC. 1389
On March 1 , afternoon and evening meetings for employees were held at the
union hall in downtown Danville. About one-half hour before the afternoon meet-
ing was scheduled to begin , Hanks, who had been discharged and who was in the
union hall , noticed that Supervisor Wilson was seated in a parked automobile di-
rectly across the street from the union hall. Hanks informed representatives of the
Union and an effort was made to take a picture of Wilson . As Howard Robertson,
the Union 's international representative , walked toward the automobile with a cam-
era, Wilson drove away .8
That night Wilson and Foremen Sims and Sam Jackson sat in Wilson 's automo-
bile which was parked near the union hall in a location which enabled the occu-
pants to observe the entrance to the hall as employees approached for the second
meeting of the day. Somewhat later the three supervisors drove by the hall upon
two or more occasions . The testimony for the General Counsel is that the auto-
mobile was parked at two places near the union hall and that the supervisors also
repeatedly drove by the hall as employees came to the meeting. On the other hand,
the testimony for the Respondent is that the automobile was parked in only one
place and that the supervisors drove by the hall only twice . I believe that it is un-
necessary to recite the testimony and to resolve the conflicts because of admissions
in the testimony of the supervisors plus my conclusion that the supervisors were in
the vicinity of the union hall for the purpose of ascertaining the identities of em-
ployees who came to the meeting . Wilson , Sims , and Jackson testified for the
Respondent that earlier that evening they had dinner at a restaurant near the south-
ern city limits of Danville and that thereafter , with Wilson driving the automobile,
they proceeded in a northerly direction within the city toward the residence of Sims
and Jackson about 20 blocks north of the center of the city. According to their
testimony , as they approached an intersection in downtown Danville near the union
hall, they intended to make a left turn at the intersection but Wilson saw one or
two employees crossing the intersection on foot, whereupon Wilson did not drive
up to the intersection but crossed over the right hand lane of traffic and entered and
parked on the premises of a retail store in the Firestone Tire & Rubber Co . chain .9
That store is located at one corner of the intersection . It was not open for business,
having been closed for the day, and Wilson parked in an unlighted area close to
the union building. According to the Respondent 's testimony , when Wilson saw one
or two employees at the intersection , he drove onto the Firestone property in order
to "see what was going on." After having been parked for 5 or 10 minutes, accord-
ing to that testimony , during which time the supervisors were seen by Artie L. Clay,
an employee , Wilson drove out of the Firestone property. Instead of turning to the
left toward the residence of Sims and Jackson , Wilson turned to the right in order
to travel directly in front of the union building. At the next intersection , according
to the Respondent 's testimony , the supervisors saw an automobile which was driven
by Shelton , who had been discharged ; Wilson turned around and again drove by
the union building and thence on to their destination . Jackson testified that when
they passed the union building the second time, Hanks was standing on the side-
walk. Wilson testified that he "observed many people" there.
I cannot credit the testimony of Wilson , Sims, and Jackson that Wilson parked
on the Firestone property merely because he became curious upon noticing one or
two employees at the intersection and wanted to "see what was going on." That
intersection is near the heart of the city. The population of the city in 1960 was
46,577.10 The Respondent had 250 to 300 employees . Under these circumstances,
8 These findings are based upon the testimony of Hanks and Robertson. On the other
hand, Wilson testified that he may have been in a parked automobile across from the
union hall because he is "in the downtown area of Danville many times during the week,"
that, if he was there, his purpose was related to some matter other than the union
activities of employees, and that he did not see any employee that afternoon. As described
hereinafter, Wilson was near the union ball later that day and he then was intent upon
watching employees as they approached the hall. As will appear, I cannot credit portions
of Wilson's testimony concerning his presence near the hall upon the second occasion, and
I believe that he was there during the afternoon for the purpose of ascertaining which
employees entered the union building
9 Jackson testified on direct examination that Wilson had stopped the automobile at
the intersection because of the traffic light On cross-examination, Jackson testified that
he could not recall whether Wilson had stopped at the intersection and that he thought
that the automobile was approaching the intersection when Wilson first observed employees
10 The figure is obtained from a Bureau of the Census publication, document number
PC(Al)-48, entitled "1960 Census of Population, Advance Reports."
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
the Respondent's testimony is incredible. Absent an unusual incident such as a
commotion, as to which there is no evidence, I cannot believe that .the mere sight
of one or two employees in downtown Danville at a reasonable hour in the evening
would have so aroused Wilson's curiosity that he would have stopped to investigate
the activities of the employees. Even assuming that Wilson had been driving Sims
and Jackson to their residence and that Wilson saw an employee or two in the
intersection, as the three supervisors testified, I must conclude that Wilson would
not have parked the automobile in an unlighted place from which the union build-
ing was visible unless the or one of his companions quickly inferred that union ac-
tivities of employees were underway in that building. Upon the Respondent's own
evidence, I find that Wilson parked on the Firestone property in order that the
three supervisors might engage in surveillance of union activities and that Wilson
drove past the union building for the same purpose.
On March 7 Carter was discharged as described hereinafter.
On or about April 14, the Union filed with the Board's Regional Office a petition
for an election. A representation hearing was scheduled for May 5. On the day
before that hearing was to begin, the Union wrote a letter to the Respondent asking
that nine employees, including Hodges, be excused from work in order to attend
the hearing as representatives of employees. Although the Respondent excused
some of the employees, Hodges was not excused. He was discharged about 2 weeks
later,-as described hereinafter.
During June, Charles Moll, a foreman, spoke with a subordinate, Frank Adams.
Willis Barrow, another subordinate and a union adherent, was standing nearby and
overheard the remarks. Adams asked Moll what he thought "about the union
coming in the plant." Moll answered that the Union would do "no one any good"
and that the employees who were "working with it would be on their way out."
Adams, indicating Barrow, asked: "What about him?" Moll answered that if
Barrow was active in the Union, Barrow was "going too." At the time of the hear-
ing, Barrow was still employed."
C. Interference, restraint , and coercion
I find that the Respondent violated Section 8 (a)( 1 ) of the Act by the conversa-
tion which Kratz initiated with Shelton on or about January 1, 1960; by the inquiries
which Sims addressed to Billy Robertson during February; by the remarks of Moll
to Adams during June; and by the surveillance of union activities in which Wilson,
Sims, and Jackson engaged.
D. The discharge of Hanks
Hanks was employed during September 1959, the month in which production
began at the plant. He was discharged on January 30, 1960. He worked as a
"setup man" with the duty of servicing 15 milling machines which employees oper-
ated in making knives. A portion of Hanks' work was to install cutters in the
machines, in some instances as many as 48 cutters per machine, and to take the
cutters to the maintenance department to be sharpened by other employees after
about 8 hours' use. Kratz, the manufacturing superintendent who discharged Hanks,,
testified that Hanks set up the machines properly, and it does not appear that any
operator of 'a machine complained about Hanks' work. As will appear, however,
the Respondent asserts that Hanks wandered around the plant and away from the
machines.
Hanks began work at $1.15 per hour. He received four automatic raises of 3 cents
each under the Respondent's wage policy, the last having been received during late
November. A subsequent increase of 6 cents was received by Hanks on January 1,
upon the recommendation of Foreman Hankins.12 Upon an undisclosed date, when
Hankins went away for a weekend, Hanks was placed in charge of the department
for 1 and a fraction days.i3
11 The findings concerning the conversation between Moll and Adams are based upon the
testimony of Barrow Adams was not called as a witness by any party Moll, in denying-
that the conversation occurred, impressed me as an untruthful witness.
12 Hanks testified without contradiction by Hankins, who was not a witness, that on
January 29, the day before Hanks' discharge, Hankins told him that Hankins had been
successful in securing another raise of 6 cents for him. Kratz testified, however, that
Hanks was not given a raise on January 29.
18 On direct examination and once on cross, Kratz testified that Hanks had been in
charge "for a couple of hours" Upon further cross-examination, Kratz acknowledged-
that Hanks had been in charge during one afternoon and for 10 hours during the next day.
H. K. PORTER, INC. 1391
On the day of Hanks' discharge, he went to the maintenance department for a
piece of metal. While he was waiting for a welder to attach brackets to the metal,
Hankins came to him and said that he and another employee, Stuart Wells, were,
wanted in the office. As Hankins and Hanks walked away from the maintenance,
department, Hankins said that Hanks was being called to the office because of the
Union.14 Near the office, Hanks was joined by Wells. The two employees entered
Wilson's office where Kratz and Wilson were present. Kratz said that he had been
told that the two employees were dissatisfied with their jobs, and the employees,
answered that they were not dissatisfied. Hanks said too that he was earning more
money than at any time in his life, that he liked his job and that he wanted to con-
front anyone who had said that he was dissatisfied. Kratz replied: "No, we don't
want anybody that's dissatisfied in our company." Hanks asked for a second chance,
and Kratz replied that "we give no second chances . . . you can punch out, you're,
through." 15 Wells was discharged also. Hanks returned to his department where
Foreman Hankins told Hanks, with reference to the discharge, that Hankins had not
had "anything to do with it." i6
The record will not support a finding that Hanks wandered around the plant or-
was inattentive to his duties. We have seen that Hanks received several increases
in pay, the last increase having been effective upon the recommendation of Fore-
man Hankins about a month before the discharge. Too, Hanks demonstrated
enough responsibility to have been placed in charge of the department for about
11h days when Hankins was out of town, and we have seen also that Hankins denied
having had anything to do with Hanks' discharge. Manifestly, Hankins had been
favorably impressed with Hanks' work and, as recited, no operator of a milling
machine appears to have been critical. Although Kratz testified that Hanks wan-
dered around the building upon numerous occasions and that Kratz told Hanks to
stay on the job, the credible testimony of Hanks is that neither Kratz nor any other
supervisor criticized his work and that Hankins told him that his work was "all
Tight." In view of the Respondent's hostility toward the union activities, the sub-
stantial evidence that Hanks was a capable employee, and Kratz' remarks when,
discharging Hanks, I find that Hanks' discharge was violative of Section 8(a)(3)
and (1) of the Act.
E. The discharge of Shelton
Shelton began work for the Respondent on August 24, 1959. He was discharged
on February 24, 1960, at which time he was a nickel plater. He began at $1.15 per
hour and received six increases of 3 cents each. The fifth increase was received
on January 1, 1960, and the last one on or about February 1. We have seen that
Shelton was active in behalf of the Union from the inception of the organizational
campaign and that he was a member of an employee committee. In addition, he
solicited the signatures of employees to union cards. We have seen, too, that
Shelton's interest in the Union became known to management. Contrary to the
General Counsel's contention that Shelton was discharged because of his union
activities, the Respondent asserts that Shelton left his work upon various occasions
over a period of several months with the result that his production dropped and
that the situation became so intolerable that the Respondent discharged him.
Superintendent Kratz discharged Shelton According to Kratz, as early as Novem-
ber he noticed that "Nothing was going through" in the nickel plating process which
Shelton handled and thereafter he looked frequently to see whether Shelton was at
1* Hanks so testified without contradiction On the other hand, Kratz testified that
upon numerous occasions he had observed Hanks wandering around the building and'
entering departments where Hanks had no work to perform, that he had told Hanks to
stay on the job, that on the day of the discharge Hanks was away from the department,
that Hankins did not know Hanks' whereabouts, and that Kratz "got disgusted" and told
Hankins to send Hanks to the office. The question whether Hanks wandered around the
building and was inattentive to his duties is discussed hereinafter
15 The findings concerning the conversation are based upon the testimony of Hanks.
Wells was not a witness Wilson was a witness for the Respondent but he did not testify
concerning Hanks' discharge Kratz testified that he asked why Hanks was away from the
job so much and whether Hanks was unhappy or dissatisfied, that Hanks denied being
dissatisfied, that Kratz asked where Hanks had been during recent minutes, that Hanks
spoke of having been in the maintenance department, that Kratz did not "check with the
maintenance department" but instead said to Hanks that he did not believe Hanks, and'
that he said too that he was not satisfied with Hanks' "performance at all" and "thought
it would be best to terminate" Hanks' employment. I cannot credit Kratz' testimony
The reliable evidence establishes that Hanks performed his work well.
16 This finding is based upon the uncontradicted testimony of Hanks.
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work. Kratz testified also that Shelton was away from his place of work on 10 to
15 percent of the occasions when Kratz had looked, that Shelton made excessive
trips to the men's room, and that on numerous occasions during November, Decem-
ber, and January Kratz told Shelton to stay on the job. Foreman Jackson, under
whom Shelton worked, testified that upon one occasion, after talking with Kratz,
Jackson told Shelton that it had been called to Jackson's attention that Shelton had
been leaving his work "too often" and that Shelton should "stick. to the job." Jack-
son testified further, however, that he never reprimanded Shelton about the quantity
of Shelton's production, and it is clear that Shelton's last two wage increases were
received upon Jackson's recommendations. The record contains testimony concern-
ing the frequency of Shelton's trips to the men's room and that he passed out union
cards there, but it suffices to say, without detailing such testimony, that the record
will not support a finding that Shelton spent an undue amount of time there. In
the first place, Kratz could not have observed during November that production
was not "going through" Shelton's place of work in nickel plating. This is so be-
cause such plating did not commence until the latter part of December. Secondly,
Shelton credibly contradicted the testimony of Kratz that Kratz had warned him
about not being at his place of work and, as recited above, Shelton's production
was satisfactory to Foreman Jackson.17
Upon the occasion of Shelton's discharge, Kratz went to Shelton's place of work
and said that he wished to ask a "point-blank question" and to receive a "point-
blank answer." Kratz asked: "Are you working for the union?" Shelton answered:
"No sir. I work for H. K. Porter Company, the Danville Division, nickel plating."
Kratz then said that he could not "understand it. . They keep telling me that
you are working for the union." Kratz asked: "Where were you last week, last
Thursday?" Shelton answered that for 10 hours he had been at work for the Re-
spondent and that he preferred not to say what he had done after working hours.
Kratz then asked whether Shelton had attended a union meeting, and again Shelton
said that he preferred not to answer. Kratz said: "That did it. That did it. You're
through. ..." 18 I find that Shelton's discharge was violative of Section 8(a)(3)
and (1).
F. The discharge of Hodges
Hodges worked for the Respondent from December 14, 1959, until May 18, 1960.
He was a draw-grind operator, grinding the sides of handsaws. Prior to May 1,
1960, Hodges was the grinder on the night shift, George Childress was the grinder
on the day shift, and Elmer Dutcher was foreman of the handsaw department. On
or about May 1, Dutcher's employment at the plant ended. On May 1, Childress
became the foreman and Hodges moved to the day shift. Hodges began work at
$1.15 per hour and advanced to $1.39 with some of the increases having been made
upon Dutcher's recommendations. Hodges was designated by the Union to be one
of its representatives at the representation hearing on May 5 and , as recited above,
the Union notified the Respondent that Hodges had been so designated.
The General Counsel, pointing inter alia to the Respondent's hostility toward the
employees' organizational efforts and to the Respondent's knowledge that Hodges had
become a union adherent, asserts that Hodges was discharged because of his union
activity. On the other hand, the Respondent asserts that Hodges was discharged
because of frequent, unexcused absences from work. According to Supervisor Wil-
son, Hodges' attendance record was "bad" because Hodges was absent on January 16,
18, 19, 20, 21, 22, and 23, 1960, a portion of February 5; all of February 6, 13, 14,
23, and March 10; a portion of March 26; and all of April 16, 18, 30 and May 11
and 18. The evidence establishes, however, that all absences during January were
due to an injury received while at work, and Superintendent Kratz testified that the
17 Shelton was paid an hourly rate instead of a piece rate, and thus his earnings do not
reflect the quantity of his production The Respondent's only production records, accord-
ing to Kratz, are those which "the boys would report on their daily time sheets " No
party offered in evidence any time sheets respecting Shelton
18 These findings are based upon the testimony of Shelton Kratz' testimony, on the
other hand, is that he had observed that Shelton had spent 15 minutes in the men's room
and that he went to Shelton, saying that Shelton was not producing and was away from
the "job entirely too often," that the Respondent could not "put up with it," and that
Shelton was discharged Kratz testified further that the Union was mentioned during
the conversation, that he did not recall how the subject arose or exactly what was said
about it, but that he did ask whether Shelton was working for the Union or the Respond-
ent because Shelton was not working "very much" for the Respondent. Kratz denied
that he asked whether Shelton had attended a union meeting, testifying that such subject
did not interest him.
H. K. PORTER, INC. 1393
Respondent "would not charge a man for being absent if he had an injury." In
addition , the evidence shows that the plant was closed on April 16 and 18 and that
the absence of April 30 was excused because that was the occasion when Hodges
moved from the night to the day shift.19 Leaving aside for the moment the two
absences during May which were due to illness , as recited hereinafter , there remain
the 4 days during February and 1 day during March when the Respondent says that
Hodges did not work, as well as 1 day during each of those months when he worked
less than a full shift . February 6 and 13 were Saturdays, February 14 was a Sunday,
and the record will not support a finding that the night shift employees worked a
7-day week during February . In addition , during the first 2 or 3 months of 1960,
Danville had two heavy snowfalls and Hodges testified without contradiction that he
was absent from work for 2 days due to the snows, once with the advance permission
of Foreman Dutcher. Superintendent Kratz testified that employees who could not
get to work because of the snows were not "criticized too much." Upon another
occasion Hodges received Dutcher 's permission to be absent for I day in order to
take his baby to a physician . Under these circumstances , thhe Respondent has failed
to show that Hodges' attendance record prior to May was "bad" or that Hodges was
criticized for those absences . 2° We turn to the absences during May.
On 2 days during May, the 11th and the 17th or 18th , Hodges was absent due to
illness.21 With respect to the absence of the 11th, Hodges first testified that Fore-
man Childress gave him permission to be absent to see a physician . Hodges changed
his testimony , however, to say that his wife telephoned a plant guard with the mes-
sage that Hodges was ill and had to see a physician . On the other hand, a guard
testified that he could not recall having received a message from Mrs. Hodges but
that, if she telephoned , he would have made a written note for delivery to manage-
ment. Childress testified that the guard did not notify him. Wilson testified that
the guard did not deliver such a note . I have found that Wilson 's testimony cannot
always be credited and in this instance I am satisfied that Hodges followed the usual
practice of seeking to notify his foreman that he was unable to go to work 22
With respect to the absence of May 17 or 18, Hodges notified Childress of his
need to visit a physician and Childress gave him permission to be absent. When
Hodges next saw Childress , the latter said that Kratz and Wilson had discharged
Hodges and that if Hodges "just hadn't got messed up in that damn union,"
Hodges would have "been all right." 23 I find that Hodges was discharged in viola-
tion of Section 8(a) (3) and (1).
G. The discharge of Carter
Carter worked for the Respondent from October 19 , 1959, to March 7 , 1960. He
performed various tasks and his rate of pay rose from $1.15 to $ 1.30 per hour.
11 Childress testified that Hodges moved to the day shift when Childress was made
foreman on May 1. Wilson testified that an employee who worked 6 nights a week would
be entitled to "one night off" upon transferring to the day shift Wilson testified also
that Hodges moved to the day shift on February 6, but it is clear from other testimony by
Wilson and the testimony of Childress that Wilson was mistaken in the date
Y0 Hodges testified without contradiction that Dutcher never spoke to him in criticism
of his absence Dutcher was not a witness The testimony of Icratz that Dutcher com-
plained to Kratz on several occasions about Hodges ' absences , as well as the testimony of
Childless that Dutcher told Childress that Dutcher had warned I-lodges about absences,
has no probative value in establishing that Dutcher ever spoke critically to Hodges con-
cerning Ilodges ' absences.
"i Hodges testified that he was absent on the 17th The Respondent fixed the date as
the 18th
2" Hodges testified , without contradiction , that once before, when Dutcher was the
foreman and when Hodges had been unable to go to work, Hodges telephoned Wilson's
secretary and explained the situation but that on the next day Dutcher told Hodges that
Dutcher had not been informed Hodges testified also , without contradiction, that upon
two occasions he received permission from Dutcher to be absent I see no reason to believe
that after Childress succeeded Dutcher as foreman , Hodges would have varied his practice
of notifying his superior when being unable to report for work or when desiring per-
mission in advance to be absent.
23 These findings are based upon the testimony of Hodges . On the other hand , Childress,
who had been Hodges' foreman for less than 3 weeks, testified unconvincingly that Hodges
had not asked permission to be absent , that he did not speak with Hodges concerning being
"messed up in that damn union, " and that he discharged Hodges for being absent without
permission
599198-62-vol. 131-89
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About November 1, Carter signed a union card and thereafter attended an undis-
closed number of union meetings and became a member of an employee commit-
tee. He also distributed blank union cards to employees but did not collect any
signed cards . No supervisor ever spoke to Carter concerning his interest in the
Union and the record does not establish that the Respondent was aware of that
interest.
Carter customarily reported for work early and it was his practice to stop at an
entrance and talk with a guard, Howard Ferguson . Upon more than one occasion,
Carter told Ferguson that he did not "like the way things was going" and that
"things wasn 't suiting him there." On Monday, March 7, the day of the discharge,
Carter told Ferguson that "the company " would do him "a favor if they would
fire him." Within a few minutes, Foreman Elwood Dorman telephoned Ferguson
and directed that Ferguson remove Carter 's timecard from the rack, which signified
that Carter was being discharged Ferguson turned to Carter and said that "it looked
like the company" had "done him a favor," that his card was being removed 24
Carter made no effort then to learn the reason for his discharge and he testified
that he did not know why he made no effort. On Friday , March 11, Carter went to
the plant to receive his paycheck . Wilson was in the office to which Carter went,
and Carter asked the reason for his discharge . Wilson replied that "They seem to
think you are not progressing rapidly enough ." Carter left the plant without inquir-
ing further.
The Respondent 's evidence , in brief, is that Carter lacked interest and certain apti-
tudes, that he could not keep pace with certain operations , and that he talked exces-
sively with other employees . In addition , according to the Respondent , Carter was
told to work on Sunday , March 6, but he failed to do so, and such failure exhausted
the Respondent 's patience with him. On the other hand , Carter testified that no
supervisor ever complained to him about his work and that he had not been told to
work on March 6. I do not believe that it is necessary to recite the testimony in
more detail . It suffices to say that ( 1) I was favorably impressed with Dorman's
testimony that Carter was not a satisfactory employee; ( 2) the uncontradicted testi-
mony of Guard Ferguson establishes that Carter was not pleased with his job and
that he anticipated that he might be discharged for cause ; ( 3) Carter's inability to
explain his lack of interest in learning the basis of his discharge is indicative that
he believed that a lawful basis existed; and ( 4) Carter was not as active in the Union
as some other employees and, insofar as appears , his activity did not come to the
attention of management . I conclude that the General Counsel has not sustained his
burden of proof with respect to Carter's discharge.
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 the operations of the Respondent described in section I, above, have
a close, intimate and substantial relation to trade, traffic , and commerce among the
several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act.
I have found that the Respondent invalidly discharged Norman Hanks, Joseph
Shelton, and James Hodges. I shall recommend that the Respondent offer each of
them immediate and full reinstatement to his former or a substantially equivalent
position ( Chace National Bank , 65 NLRB 827) without prejudice to his seniority or
other rights or privileges , and that the Respondent make each of them whole for any
loss of pay he may have suffered as a result of the Respondent 's discrimination
against him , by payment to him of a sum of money equal to that which he normally
would have earned from the date of his discharge to the date of reinstatement, less
his net earnings ( Crossett Lumber Co ., 8 NLRB 440, 497-498 ) during said period,
the payment to be computed upon a quarterly basis in the manner established in
N.L.R.B . v. Seven-Up Bottling Company , of Miami, Inc., 344 U.S 344. I shall
recommend also that the Respondent preserve and make available to the Board or its
agents, upon request, for examination and copying , all payroll records , social security
24 The findings concerning the conversations between Carter and Ferguson are based
primarily upon the uncontradicted testimony of Ferguson Carter testified merely that he
was engaged in conversation with Ferguson when the latter answered the telephone and
thereafter told him that Dorman had directed that his timecard be removed
STOCKBRIDGE VECE:rABLE PRODUCERS, INC. 13) 95
payment records, timecards, personnel records and reports, and all other records
necessary to analyze the amounts of backpay due and the rights to reinstatement
under the terms of these recommendations.
In view of the nature of the unfair labor practices committed, I shall recommend,
in order to make effective the interdependent guarantees of Section 7 of the Act, that
the Respondent cease and desist from, in any manner, infringing upon the rights
guaranteed in said Section. N.L.R.B. v. Express Publishing Company, 312 U.S. 426;
N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4).
Upon the basis of the above findings of fact, and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
2. By discriminating in regard to the tenure of employment of Norman Hanks,
Joseph Shelton, and James Hodges, thereby discouraging membership in a labor
organization, the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the 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. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
5. The allegations of the complaint that the Respondent invalidly discharged
Rogers Carter have not been sustained.
[Recommendations omitted from publication.]
Stockbridge Vegetable Producers, Inc. and Local No. 164, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Ind. Case No. 7-CA-2828. June
29, 1961
DECISION AND ORDER
On January 3, 1961, Trial Examiner William J. Brown 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 Inter-
mediate Report attached hereto. Thereafter, the Respondent and the
General Counsel filed exceptions to the Intermediate Report together
with supporting briefs.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the following additions and
modifications.
1. We agree with the Trial Examiner that Respondent did not
violate Section 8(a) (4) of the Act by Shilling's statements to the nine
discriminatees on August 1, 1960, that they could not be put to work
"because of the Union" and until the "union thing" was settled, for no
131 NLRB No. 162.