I.v.Sutphin, Co.-Atlanta, Inc.

National Labor Relations Board - Board Decisions

Aug 2, 1965

154 N.L.R.B. 178 (N.L.R.B. 1965)

178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threaten, or coerce Pass Development, Inc., or any other employer, where in
either case an object is to force or require said employers to cease doing busi-
ness with Midway Electric Company.
GULF COAST BUILDING AND CONSTRUCTION TRADES COUNCIL,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
LOCAL UNION No. 903,
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 employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, T6024
Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana, Telephone
No. 529-2411, Extension 6396.
I. V. Sutphin , Co.-Atlanta, Inc. and King Adams . Case No. 12-
CA-3099. August 2, 1965
DECISION AND ORDER
On May 19, 1965, Trial Examiner Thomas A. Ricci issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent has
engaged in and is engaging in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that Respondent had not engaged in cer-
tain other unfair labor practices and recommended that the complaint
be dismissed with respect to such allegations. Thereafter, the
Respondent filed exceptions to the Trial Examiner's Decision and a
brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
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 Respondent's exceptions and brief, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
154 NLRB No. 18.
I. V. SUTPHIN, C0.-ATLANTA, INC. 179
Respondent, I. V. Sutphin, Co.-Atlanta, Inc., Jacksonville, Florida,
its officers, agents, successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order, as so modified :
Add the following as paragraph 2(b) to the Trial Examiner's Rec-
ommended Order, the present paragraph 2(b) and those subsequent
thereto being consecutively relettered :
"(b) Notify the above-named employee 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."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A hearing in the above-entitled proceeding was held before Trial Examiner Thomas
A. Ricci on April 13, 1965, at Jacksonville, Florida, on complaint of the General
Counsel against I. V. Sutphin, Co.-Atlanta, Inc., herein called the Respondent or the
Company. The principal issues are whether the Respondent violated Section 8(a)(1)
and (3) of the Act. A brief was filed by the Respondent after the close of the
hearing.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent operates a wastepaper plant in Jacksonville, Florida. During the
past 12 months the Company shipped from this Jacksonville plant goods, supplies,
and materials valued in excess of $50,000, directly to locations outside the State of
Florida. I find that the Respondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act
to exercise jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Truck Drivers, Warehousemen and Helpers of Jacksonville, Local Union No. 512,
affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
A Board-conducted election took place among the employees of this Company on
December 18, 1964. As usual during the preceding weeks there was much talk, among
the employees at work, in writing by the Company to its employees, and between
employees and supervisors. The Company believed collective bargaining through the
Union inadvisable and, concededly, conveyed its views to rank-and-file workmen and
tried to convince them to the Respondent's view.
The complaint alleges that in a number of instances management representatives
exceeded the proper bounds of permissible expressions of opinion and legitimate
attempts at persuasion, and thereby unlawfully coerced the employees and interfered
with their right to express a free choice in the election, all in violation of Section
8 (a) (1) of the Act. It also alleges that the quick discharge, a week before the elec-
tion, of King Adams, 12 years an employee, was motivated by an intent to curb
prounion sentiments, in him as well as in other employees, and therefore an unfair
labor practice within the meaning :of Section 8 (a) (3 ).
The Respondent denies commission of any illegal acts. As to Adams it asserts
affirmatively that he was summarily dismissed because he had threatened another
workman with physical harm if he chose not to vote for the Union in the imminent
election.
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Illegal interference, restraint, and coercion
During the several weeks before the election the Company sent a number of letters
to each employee in which it expressed its opposition to the Union's organizational
campaign and explained why the employees would be better served by direct deal-
ings with the Company. One of these letters, dated November 13, 1964, apparently
a major message of this kind, was received in evidence. It contains the usual argu-
ments of position, refers to union officers as strangers, speaks of their wanting only
to collect dues, alerts employees to the possibility of strike or other economic action
in the event of collective activity, assures the reader that economic benefits in the
end can only be received by agreement and willingness by the employer, and also
includes assurances that employees may not be threatened in the matter, and suggests
that threats be reported to management representatives.
Five employees testified to conversations they had during the several weeks before
the election with Plant Manager Jesse Colley, Plant Superintendent E. P. Sheetz, and
Assistant Manager Robert Scott. It is conceded that in all these conversations the
officers discussed the contents of the November 13 letter with the employees. Colley,
Sheetz, and Scott testified at variance from the employee witnesses as to some of the
things the employees recalled having been told; in other respects the management
witnesses conceded what the employees related.
Ulysses Shingles said that a week before December 18, Scott called him in to a
more private spot in the plant and, for about 30 minutes, related his own past union
experiences elsewhere and expressed the hopes "we don't belong to the Union-we
don't get involved here on the job." Scott then asked Shingles how he felt about it,
and the employee replied: "I with the Company." Shingles also recalled how dur-
ing this talk Scott introduced the subject of raises: "He said about giving us a raise
before the union come in, but being the union tried to get in, then nothing they could
do about it now." During the conversation Scott found occasion to tell Shingles
that the Atlanta employees of the Company had received raises, but until the union
question was resolved here nothing could be done.
Oscar Peterson said he was taken aside by Sheetz, also a week before the election,
and asked whether he had received the company letter and had he understood it.
Sheetz then asked ". . . how I felt about the union. I told him, well, I didn't know
nothing about the union was coming in ... I told him I was 100 percent with the
Company." Still according to Peterson, Sheetz then said ". . if all those [the
employees] felt the same way about the union as I did, it was all right ... the Com-
pany didn't know who started the union, but they got a pretty good idea who did
start the Union." Two days before the election Sheetz called Peterson to the office
again. "He asked me how I felt about the union and everything, asked me the same
question over and over again."
George Phillips testified that 2 weeks before December 18 Sheetz took him aside
to ask had he received the letter and had he understood. Phillips said he had and
that it was "all right." Sheetz then invited the man to speak to the plant manager.
In his office later Colley asked Phillips what he thought about the Union, and had
he signed a union card. Phillips said he had not. Colley then said the man could
vote as he pleased, and to report any threats that might be made to him to coerce
his vote.
Solomon Sanders testified that on about November 23, Colley called him to the
office and handed him a written warning slip based on a truck accident he had had
a few days earlier in the course of his work. The employee was asked to sign it in
the presence of another employee who then signed as witness. The manager told
Sanders this new procedure was necessary because of the presence of the Union-
that for this reason written records must be kept-and added that a second violation
of company rules could mean dismissal. There had been no system of written warn-
ings before. Colley then spoke of the Union and asked did Sanders "Know anything
about it." According to Sanders, Colley then "told me if I had anything to tell him,
to feel free to come in and let him know, if I found anything out about it."
A week or 10 days later, Sanders and the plant manager were returning from traffic
court, where Colley had gone to help Sanders avoid any fine for a violation charge
resulting from the truck accident. Again Colley brought up the subject of the Union.
Among other things he asked Sanders what did he know about it, how did the others
feel, how did it get started. Sanders professed to know nothing. Colley then told
Sanders how the Company's Atlanta employees had received a raise, and explained
that "there weren't anything that this company could do while this union activity
was going on."
I. V. SUTPHIN , CO.-ATLANTA, INC. 181
Sanders also testified that about a week before the election Sheetz asked him had
he received the November 13 letter and how did he feel about it, had anyone else
talked to him about it. Sanders said that Sheetz also then told him "if I had anything
to tell him, to come in and feel free to talk to him about it." Sanders also made clear
at the hearing that when he told his superiors he was ignorant of union activities, he
hid the truth from them.
Colley, Scott , and Sheetz denied having asked any employees such questions as
whether they personally favored the Union, had signed cards , or who had started the
movement . Considering their total testimony and their demeanor at the hearing,
they were not convincing witnesses . Sheetz started by saying he had spoken to no
employees before the election, and then proceeded to list five of them, the very ones
who had just finished testifying in support of the complaint . He then said that he
had called other employees in addition to these into private conversation for the
express purpose of discussing the Company 's November 13 letter urging all to reject
the Union . Persistently throughout his story he insisted the only things he asked
were whether the employees had received the letter and did they understand it.
Although admitting some of the talks lasted quite a while, he was unable to recall
any other single thing he said to any of them . He also testified , however, that after
talking this way to Peterson he called that man for a second interview , and at that
time Peterson reported having discussed the Union with his wife and having decided
to have nothing to do with it. Sheetz added that Shingles also came to him a second
time, after an initial interview . According to Sheetz , Dixon answered by saying
"he didn't want no union." Sheetz added that Sanders answered by saying "he didn't
know nothing about the union or nothing about it." But if, as Sheetz would have it,
all he asked was whether the men had received and understood the letter , these would
be irrelevant and incoherent remarks by the man. More logically they would follow
statements by the supervisors-as the men testified-asking them how they felt about
the Union , or whether they had signed . Indeed any conversation between Sheetz
and the men on the subject matter of the letter , lasting as much as 30 minutes, neces-
sarily must have been on the subject of the merits of the Company 's contentions that
the Union was an undesirable thing.
At one point , pressed for a better recollection , Sheetz admitted he asked one man,
at least, ". . . if he wasn 't for the union , if he was willing to help the Company."
In a memorandum he said he made to himself at the time of the events , Sheetz noted,
with respect to employee Shingles: "I explained to him that the Company was against
the Union and he said that he was not for the Union and I asked him if he would
help the Company and he told me that he would." Other notes made by this super-
visor before the election also serve as admissions now that in substance the employees
told more reliable stories of their talks with them . Thus as to Solomon Sanders:
"So I ask him how he felt about the letter, Solomon told me he did not want to lose
his job over this kind of business . Solomon said when the time come to vote that
he was on the Company side , so I ask Solomon if he found out anything if he would
come and tell me, he said he would. " And concerning Peterson , Sheetz made this
notation
I talked with Oscar again and he told me that he and his wife talked this union
business over since he talked to me, and he said that he was going on the Com-
pany side . Oscar said if I could help him any way , he sure could use little more
money, I told him that I could not do a thing at the present time until this union
business was settled.
Despite all this Sheetz closed his testimony with repeating that aside from inquiries
concerning the November 13 letter, he asked the employees nothing.
Scott testified that he called Shingles aside in order to explain his own attitude
toward unions , and not to probe concerning the employees ' position . Had he talked
of raises with the employees at that moment ? "If we did, it was merely my telling
him that there was nothing that I could do for him at that time or Mr. Colley or
anyone else , until we were either in a union or out of a union .... I probably told
him that the Company had been-this division had been founded on loyalty, and I
thought it should stay that way, loyalty to the Company."
Plant Manager Cooley also admitted he spoke to a number of employees to explain
his opposition to the Union and in an effort to persuade them to his view. He offered
to explain the November 13 letter in greater detail , and asked them to return to him
again if they had any further questions . Colley denied having told Sanders to report
on the attitude of others , or that the Company knew who started union activities, but
he did not contradict Sanders' testimony that on the way back from traffic court,
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
while urging the employee to vote against the Union, he told him of the raises given
in Atlanta, only to leave the employee with the thought that the Company could do
nothing for him now because of the union activity.
Clearly the pattern of activities by the supervisors went beyond the permissible
limit of expressions of views or attempts to persuade by mere argument, or, as the
company witnesses at times insisted, mere inquiry on whether the Company's anti-
union literature had been received and understood The clear proof that in some
instances the employees were interrogated as to their leanings and urged to report
what they might learn, supports the testimony of other employees that they also were
asked had they in fact signed up for membership. In every instance, the employees
were invited into more secluded places in the plant for private conversation, admit-
tedly for the purpose of pressing upon them the Respondent's contrary views. Sheetz
kept asking the employees, after he finished his appeal to each, whether they were
willing to talk to the manager also; some said yes, some no. This must have been
a jointly planned technique of repetitive reiteration of the Company's opposition view
into the minds of the employees. In such a cohesive campaign by the supervisors
the unquestionable evidence that Sheetz interrogated the workmen in the first instance
supports a credibility resolution in favor of employees who testified Colley did likewise.
Moreover, in such circumstances injection into the conversations, by Colley and
Sheetz, of the subject of raises, with the unsolicited comment that in some fashion
the fact of organizational activities was a barrier to wage increases already received
by other employees of the Company, could only had been taken by the employees as
meaning that abandonment of union support would lead to improved working con-
ditions. The employees as a group are simple folk, and they impressed me as candid
and honest. The supervisors on the other hand evaded a good deal in their recitals,
much of their statements were patently unpersuasive, and their demeanor generally
unimpressive, Accordingly, I credit the employees concerning these interviews set
out above.
I find that by various supervisors' interrogation of individual employees on what
their attitude toward the Union was, whether they had signed union cards, how others
felt about the matter, and how the movement had begun, by Sheetz' statement to
Peterson that the Company knew who had started it, and by Colley's and Scott's
statements to Sanders and Shingles, respectively, that raises were at the moment pre-
cluded by their union activities, the Respondent restrained and coerced the employees
in violation of Section 8(a) (1) of the Act.'
C. The discharge of King Adams
King Adams worked for this Company for 12 years, always competent, well
behaved, and liked by fellow workers as well as supervisors at every level. About
a week before the election of December 18, Superintendent Sheetz asked him what
he thought about the Union, and he replied: "It's all right " About the same time
Assistant Manager Scott invited him into the office where for well over an hour he
spoke of unions generally and of this union drive particularly to Adams. Scott
related at length his union experiences in other employments, and then asked Adams
what he thought "about the Union." Adams said. "Its all right if it could better our
working conditions and give us a raise." Still according to Adams, Scott then said
"he couldn't promise us nothing now ... Mr. Colley wasn't going to have no union.
When he says something, he means just that." According to Adams: "... I just sat
there and listened, and he asked me to let him know if I changed my mind, which
way I was going to vote." Scott, although a witness himself, did not contradict any
of this.
On December 11, an hour before quitting time, Adams was called to the manager's
office and, with no advance notice, discharged. Earlier that day, toward the end of
i The evidence does not support a complaint allegation that a Christmas party given the
employees on December 17, 1964, constituted improper restraint and coercion in the elec-
tion the next day The employees were given gift bonuses ranging from $5 to $20, but
these varied according to years of service and had been given by the Respondent in past
years on the same seniority basis In his comments to the employees the manager
spoke of the coming election and voiced again the Company's view , but he also told them
they could vote as they pleased and that if they voted for the Union "he would come to
some kind of agreement afterwards "
Nor did Scott 's act of photographing employees outside the plant the day after the
election-one of them the Union 's observer-constitute an unfair labor practice He
had taken such pictures on other occasions and there was nothing particularly revealing
said on this occasion.
I. V. SUTPHIN, CO.-ATLANTA, INC. 183
the lunch hour, he had talked about the coming election and, in his usual direct and
rough language, urged everybody to vote yes. Employee Knight testified he heard
Adams say to Hollifield Warthen, a more elderly employee: "Old man, if you don't
join that union, I will beat your god damn ass. I take you outside the gate and beat
your god damn ass." Employee Dixon, although confused as to the date, testified
he was present when all this talk occurred at lunch before Adams' discharge, and that
he remembered Adams' words as: "Didn't nobody go for the Union is a fool .. .
they need their butt beat if they didn't go for it, so we just laughed at him."
After lunch Warthen went to Manager Colley and related the conversation. "I went
in there and told him I didn't want to have nothing to do with the union, did I have
to have something to do with it. He said, `No, if you don't want to.' I told him King
said if I didn't, he would take me out there and whip my damn ass and I said I didn't
want that done. And I said will he protect me, and he said yes, because I didn't want
to have nothing to do with it, and I told him, because I didn't want no part of joining
the union, see. I didn't know whether he meant it, but he said it." As Colley recalled
it at the hearing, Warthen reported that Adams told him "if he didn't vote for the
union, he was going to take him outside the fence and he was going to whip his
butt ...."
Colley then called Knight to his office, verified Warthen's report and decided to dis-
charge Adams immediately. Colley also said that he recalled Warthen to his office
and on further checking learned that Adams had made a similar remark to the
employee on an earlier occasion He prepared a letter to the employee stating the
reason as the threat to "beat up" an older man. Adams was called in, given the
letter, and asked to sign a form termination of employment notice, which, among
other things, stated that the notice had been read to the departing employee, the final
payment amount inserted was correct and had been received, and that the reason
stated is true and correct: the form stated no reason but referred to the letter attached.
If Adams' words to Warthen that day-"I'll hit you if you don't vote for the
Union"-a phrase he had used twice before without serious concern arising in
Warthen's mind, are weighed without consideration given to any other pertinent fac-
tor appearing in this record, the Respondent's summary discharge of the man could
not reasonably be suspect as an opportune device to curb union activities. The
Company had told the employees that no one could be coerced in the matter, and
even invited them to report any threats that might be made. It is in this posture,
isolating the one phrase from all else in the record, that the Respondent proposes the
case be viewed, and Plant Manager Colley testified he based his decision solely upon
these words of threat.
The General Counsel contends instead that fair inquiry into Colley's true motiva-
tion demands appraisal also of the total situation prevailing in the plant at that time,
as well as the Respondent's past attitude toward Adams and the rest of the employees,
extending over many years. He argues that if the total picture be considered, it must
be held that the substantial evidence test on the entire record warrants a conclusion
that Colley's real interest was the fact that Adams was pushing too strongly in favor
of the Union, and in matters of intent fairness to all parties does require that the
general attitude of the Respondent be also considered.
It is by no means clear that Warthen really believed Adams was speaking seriously
when he talked of whipping peoples' backsides. The two men have long been friends,
even apart from their employment, for over 20 years; Adams visits Warthen at home.
This sort of language between them was an old story, for Warthen also said that on
two earlier occasions Adams had spoken to him the same way about the Union, and
he had paid no attention to it. Indeed their past conversations with the same kind of
banter were so meaningless to him that Warthen forgot them entirely, insisting at first
in his testimony that Adams spoke to him about joining the Union only at this critical
lunch talk. It was in consequence of prodding by counsel that he recalled like rough-
house talk on other occasions.2
2 There is significant indication in Warthen's testimony that what he resented was the
attempt to win him over to the union side, and not any threat of violence Toward the
close of his testimony he was asked
Q. Why at this time did you feel that he might do violence to you'
A Don't you know, I'd be hearing, he says, "You belong to that Union, I will
whup you," and I didn't want to have nothing to do with it
Q Who told you that's
A That I always hear-people say if you belong to the anion, and when they
say for you not to work , if you did work , they would whop you and I told him
I always-and I didn't want to have nothing to do with it I never see the day
I am going to have anything to do with it.
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mrs. Hopkins , who lives with Warthen , testified that only a week earlier Adams
had called and in talk about the Union had said to the reluctant Warthen • "If you
don't join them, I'll beat your backside." She said ". . . he [Adams] was laughing.
It didn't seem like he was mad, but I don't know whether he was mad or not."
The testimony of Knight , the only employee who was questioned by the plant
manager about the incident , is equally ambiguous : "Well, I don't know whether he
meant it or what , but he said it. I don 't know whether he meant it for a joke or
what, but Hollifield act like he got scared enough." And Adams testified that what-
ever talking he did do at lunch was a matter of "teasing with him ," so far as Warthen
was concerned . He said: "We just out there laughing when I said, `if we don't join
the union , boys, we need our asses tore up,' and we just started laughing, and we'd
thought nothing else about it."
Adams was the reputed jokester of the plant. One employee after another described
him as a fun-loving, animated , friendly man by nature. The following is from fel-
low employees who testified: "He loves to have fun with everybody around there.
He always tease you, play with you like that , as far as I know him ." .. he was a
good worker , and he also had fun with everybody there." "Q. Did you ever see
King Adams fool with any of the bosses? ..." " A. Well, I seen them, they played a
lot, you know , one of them be hiding behind the building, and he come and grab him
behind his back and talk to him for a few minutes , and then go away." .. he was
just a laughing fellow. He liked to joke." "... he was always teasing ...." "Nice,
gentle fellow , like to have fun all the time."
Of much greater meaning to the question of why the Company suddenly released
Adams is the fact that this jocular, manly , roughhouse-and perhaps even rowdy-
way of life throughout the plant was not only well known to the supervisors, but an
attitude in which they joined. Friendliness , back-slapping fellowship , all evidence of
mutual respect and affection , are to be commended , especially in a plant such as this,
where the work is unskilled , the machines noisy and harsh , and physical conditions
generally onerous. It is the quick change of attitude toward Adams , with the man-
ager suddenly expecting almost drawing room niceties where he had long accepted
horseplay as routine , which goes to the heart of his real motivation . The descriptive
phrase "horseplay" was added to the record by counsel for the Respondent.
Assistant Manager Scott testified that he used to "horse around" with Adams.
I remember one morning , actually there was-King was kind of-there was
three of us that worried him quite a bit . There was Lloyd Dixon and Eddy
King and myself, and then occasionally I. P. Grant would be on it. We would
corner King and make him squall a little bit , and we let him go.
Scott also remembered another occasion:
On this particular morning, I remember distinctly we caught him in the tool
room, I. P. Grant, Eddy King and myself , and we help him up in there and shut
the door on him and had him locked in, and then he gave us some jaw and so we
went in with him. And, of course, eventually, came out and we three were left
in the tool room while he walked away , turned around and said, "I ' ll get all of
you son-of-a-bitches today sometime ," and that is when I decided , well, maybe
better not play with him so much because he may be getting tired of it.
Adams' description of what went on in the plant was not really different , nor less
colorful:
Well, sometimes Mr. Bob, he'd be feeling good, he come by and grab me and
see who could muscle back the hand, you know, the old Indian style ... and I
could bring his back. And he said , `I get you later ,' all like that.
Asked when he had stopped this sort of horseplay , Scott said, "It's hard to say.
I'd say a year ago." He then gave inconsistent reasons for discontinuance. At one
point he said : "He could pin me. I never could catch up with him . No particular
reason." Later he said it was because Adams seemed to be tiring of the game, and
might become angry. Adams said all this continued until about the time of the
union organizational campaign , and I see no reason to disbelieve him.
In the end Manager Colley said he discharged Adams, after the crude remark to
Warthen, "for the harmony of the plant and for the harmony of the employees in
the plant." But in the past, when Adams went about the plant calling aloud, "I'll get
all of you son-of-a-bitches today sometime ," Colley did not consider such behavior a
threat to anybody or disruptive of harmony . And this could only be because, as
Scott testified : "Adams didn't say it maliciously or viciously either one. It was a
common thing for him to say ......
I. V. SUTPHIN, CO.-ATLANTA, INC. 185
There are other facts that are pertinent and ought to be considered. The manager
told more than one employee that the men could vote as they pleased in the coming
election. At the company party, on the eve of the election, after distributing Christ-
mas bonuses and urging the employees to vote against the Union, Colley said if they
chose the Union he "would come to some kind of agreement afterwards." These
phrases, however, cannot offset the compelling inference of antiunion purpose in
Adams' discharge that rises from the record as a whole.
Adams had for 12 years worked without fault, but Colley gave him no opportunity
to explain the one incident that was seized summarily as cause for discharge. In the
final interview Adams asked that Hollifield Warthen be called in and confronted,
but Colley refused the request. The decision was made without advance notice to
him. He was a practical jokester, always teasing people, and Colley knew it. The
phrase he uttered to Warthen that day suggested violence no less than had other
language, spoken to supervisors themselves, but which Scott characterized as not
seriously intended at all. It follows that the manager in all probability knew this
rough talk also fell into the pattern of employee behavior generally. The distin-
guishing element here was that now Adams was talking union sentiments. And
finally, the evidence is clear that the Respondent was deeply opposed to having any
union, even to the extent of resorting to intimidating interrogation of employees
coupled with suggestions that raises given to other workmen were being withheld
here because of this union affair. And only on the very morning of the discharge,
after telling Adams that the manager would never have a union in the plant, Scott
asked Adams to let him know if he changed his mind ". . . which way I was going to
vote." Adams said he would go home and pray over the matter.
The Respondent makes much of the fact that before receiving his final pay Adams
was asked to sign, and did sign, the termination notice, which by reference incorpo-
rated the letter giving "threat of bodily injury" as reason for the discharge. Adams
denied having admitted threatening anyone. He is not a very literate man and the
stunning effect the sudden discharge must have upon him, after 12 years of employ-
ment without a word of faultfinding by his employer, could not be appreciated with-
out seeing the man and hearing him testify. Respectful toward his superiors as his
demeanor clearly showed, in that office he was a duck out of water.
Upon the record in its entirety, I find that by discharging King Adams on Decem-
ber 11, 1964, the Respondent violated Section 8(a)(3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set out in section III, above, occurring in con-
nection with the operations of the Respondent set out 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 committed certain unfair labor practices, I
shall recommend that it be ordered to cease and desist from such conduct and to
take certain affirmative action designed to dissipate its effect King Adams was still
in discharge status at the time of the hearing; the Respondent must therefore be
ordered to reinstate him to his former or equivalent position, and to make him
whole for any loss of earnings he may have suffered because of the illegal discrimi-
nation against him in his employment. Any money that is due pursuant to this
order must be paid with interest at the rate of 6 percent per annum. In view of the
nature of the unfair labor practices committed the commission of similar and other
unfair labor practices reasonably may be anticipated. I shall therefore recommend
that the 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. The Respondent is an employer within the meaning of Section 2 of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discharging King Adams on December 11, 1964, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By the foregoing conduct, by interrogating employees concerning their union
sentiments, whether they had signed union cards, and as to the union activities of
other union adherents, by inviting employees to report to management concerning
the union activities of other employees, and by telling employees that wage increases
were being withheld because of union activities, the Respondent has interfered with,
restrained, and coerced employees in their rights guaranteed in Section 7 of the Act,
and thereby has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices, affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, I recommend that the Respondent, I. V. Sutphin, Co.-Atlanta,
Inc., Jacksonville, Florida, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against employees because of their
exercise of the right to self-organization or to join labor organizations
(b) Interrogating employees concerning their union activities, whether they
signed union cards, or as to the union activities of fellow workmen, inviting employ-
ees to report to management on the union activities of other employees, or telling
employees that wage increases are being withheld because of union activities.
(c) In any other manner interfering with, restraining, or coercing employees in
the exercise of rights to self-organization, to form labor organizations, to join or
assist Truck Drivers, Warehousemen and Helpers of Jacksonville, Local Union No.
512, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual aid or protection,
as guaranteed in Section 7 of the Act, or to refrain from any or all such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer King Adams immediate and full reinstatement to his former or substan-
tially equivalent position, without prejudice to his seniority or other rights and privi-
leges previously enjoyed, and make him whole for any loss of pay he may have
suffered by reason of the discrimination against him, with interest at the rate of 6
percent per annum on any amount due.
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all records necessary to analyze the
amounts of backpay due under the terms of this Recommended Order.
(c) Post at its place of business at Jacksonville, Florida, copies of the attached
notice marked "Appendix." 3 Copies of said notice, to be furnished by the Regional
Director for Region 12, shall, after being duly signed by the Respondent's represent-
ative, be posted by Respondent immediately upon receipt thereof, and be maintained
by it for a period of 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 12, in writing, within 20 days from
the date of receipt of this Decision, what steps the Respondent has taken to comply
herewith?
3If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order."
If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 12, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
D'ARMIGENE, INC. 187
APPENDIX
NOTICE TO ALL EMPLOYEES
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 Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership by any of our employees in Truck
Drivers, Warehousemen and Helpers of Jacksonville, Local Union No. 512, affil-
iated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or in any other labor organization, by discharging or
otherwise discriminating against employees in regard to their hire or tenure of
employment, or any other term or condition of employment.
WE WILL offer King Adams immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other
rights and privileges previously enjoyed.
WE WILL make whole King Adams for any loss of pay he may have suffered
as a result of the discrimination against him.
WE WILL NOT interrogate our employees concerning their union sentiments,
whether they have signed union cards, or as to the union activities of other
employees, invite employees to report to management concerning the union
activities of other employees, tell employees that wage increases are being
withheld because of union activities, or in any other manner interfere with,
restrain, or coerce our employees in the exercise of their rights to self-organiza-
tion, to bargain collectively through representatives of their own choosing, to
engage in concerted activities for the purpose of collective bargaining, or other
mutual aid or protection, or to refrain from any or all such activities.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of any labor organization.
I. V. SUTPHIN, CO.-ATLANTA, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing Act of 1948, as amended, after discharged 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 any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, Room 706,
Federal Office Building, 500 Zack Street, Tampa, Florida, Telephone No. 228-7711.
D'Armigene , Inc. and Local 107, International Ladies' Garment
Workers' Union , AFL-CIO. Case No. 29-CA-181. August 3,
1965
DECISION AND ORDER
On June 9, 1965, Trial Examiner Sidney Lindner issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices 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 Deci-
sion. Thereafter, the respondent filed exceptions to the Trial Exam-
iner's Decision.
154 NLRB No. 13.