The Weston and Brooker Co.

National Labor Relations Board - Board Decisions

Aug 27, 1965

154 N.L.R.B. 747 (N.L.R.B. 1965)

THE WESTON AND BROOKER COMPANY 747
Chauffeurs, Warehousemen and Helpers of America, has been, and now is, the
exclusive representative of all the employees in the aforesaid appropriate unit for the
purposes of collective bargaining within the meaning of Section 9(a) of the Act.
5. By failing and refusing on, and at all times since, August 20, 1964, to bargain
collectively with Truck Drivers, Warehousemen and Helpers Union, Local No. 340,
affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as such exclusive bargaining representative, Respondents
have engaged in and are engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act, Respondents have engaged in
and are engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
The Weston and Brooker Company and United Stone and Allied
Products Workers of America, AFL -CIO, CLC. Case No. 11-
CA-2413. August 27,1965
DECISION AND ORDER
On March 24, 1965, Trial Examiner James V. Constantine issued
his Decision 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 attached Trial
Examiner's Decision. He also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that such allegations be dismissed. There-
after, Respondent, the Charging Party, and the General Counsel
filed exceptions to the Decision and supporting briefs.
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 Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and- hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following modifications.'
1 The Trial Examiner's Decision, section III, C, 1, inaccurately reports a conversation
concerning longevity pay that took place during bargaining negotiations The date of
the bargaining session was July 23 and not March 23. Moreover, the statements at-
tributed by the Trial Examiner to Respondent's Counsel Smith were in fact made by
President Weston.
Also, the Trial Examiner's Decision, section III, C, 2, refers to Section 10(d) of the
Act. The correct section is Section 8(d).
154 NLRB No. 58.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We do not agree with the Trial Examiner's finding that Walter
Zeigler's discharge did not violate Section 8(a) (3) of the Act. The
record reveals that Respondent's policy was one of reassigning re-
placed employees to other jobs rather than terminating them. For
example, none of the jackhammer operators whose jobs were elimi-
nated by the addition of the drop-ball machine in October 1963 were
laid off or discharged. Instead, Respondent found other jobs for
them. This same policy was followed in the case of Bob Gilliam
whose job as watchman was subcontracted out on March 21, 1964.
Rather than dismiss Gilliam, Respondent assigned him to the job of
front-end loader. This no-layoff policy was verified by the testimony
of both President Weston and Vice President and Sales Manager
Brooker. Zeigler, however, was not accorded this treatment but was
discharged without warning or the opportunity to take another job.
This was done despite the fact that he had requested a transfer to a
truckdriving job in 1963, in March 1964, and on April 1, 1964.
It is obvious from the record that Zeigler was an experienced
truckdriver. In fact, he originally had been hired by Respondent in
this capacity, but voluntarily transferred to the job of canteen-air
compressor operator after the first year to year and a half of his
employment. It is also apparent from the record that Respondent
was obtaining additional trucks throughout 1964-both before and
after Zeigler's termination. Furthermore, Respondent transferred
certain employees from laboring jobs to jobs as truckdrivers on
May 28, June 11, July 16, and November 5, 1964. During this same
period, Respondent also hired seven new employees as laborers. Two,
of the laborers who were transferred to truckdriving jobs testified that
they had no previous experience driving heavy-duty trucks for Re-
spondent. Both further testified that they needed training to learn
how to operate the trucks. Respondent's president admitted he was
aware of Zeigler's truckdriving experience. He did not explain,
however, why the laborers, rather than Zeigler, were chosen to fill
the truckdriving posts.
It is equally clear from the record that Respondent was well aware
of Zeigler's prominent role in the union organizing campaign. Re-
spondent knew that Zeigler was "among the first" to sign a union
card, that he had attended union meetings, and, that he was the
Union's observer at the election.
The disparate treatment accorded Zeigler plus his known union
activity, the timing of his discharge, the lack of any notice, the
availability of other employment, and Respondent's extensive
8(a) (1) conduct prior to the election, leads us to conclude that
THE WESTON AND BROOKER COMPANY 749
Respondent's decision to terminate Zeigler was motivated by dis-
criminatory considerations and that its action was thus violative of
Section 8(a) (3).
Nor can we agree with the Trial Examiner that the unilateral
abolishment of Zeigler's job as canteen-air compressor operator and
the subcontracting of the canteen operation did not violate Section
8(a) (5). The Trial Examiner concluded that Respondent's uni-
lateral decision abolishing Zeigler's job did not have a substantial
effect on unit work and conditions of employment. However, Zeigler,
who was found by the Trial Examiner to be in the bargaining unit,
lost his job as a result. Certainly Respondent's decision had a dem-
onstrably adverse impact on the job tenure of at least one unit em-
ployee-Zeigler. Moreover, the Respondent's unilateral action also
affected to some extent the working conditions of other employees
in the bargaining unit, for the record apparently indicates that the
unit employees had charged purchases at the canteen, a service which
of course would not be available after the installation of vending
machines. Even assuming, as the Trial Examiner concluded, that
Respondent's unilateral action was motivated by good-faith economic
considerations,2 this alone did not relieve Respondent of its obligation
to bargain over its decision.
Accordingly, we find that Respondent violated Section 8 (a) (5)
of the Act by unilaterally abolishing the job of Walter Zeigler.
THE REMEDY
As we have found, contrary to the Trial Examiner, that Respond-
ent violated Section 8 (a) (3) and (5) by discharging Walter Zeigler,
it is necessary to provide an adequate remedy. We could order Re-
spondent to resume the discontinued job of canteen-air compressor
operator and reinstate Zeigler in that capacity. However, we do not
believe that it would be appropriate, under the circumstances, to
order Respondent to resume an operation it no longer desires to
pursue. Such an order would in fact burden it with an unwanted
position not essential to the conduct of its business.
Nevertheless, Respondent has engaged in serious violation of the
Act, and they should not go unremedied. Although Respondent
appears to have no present intention of reestablishing the job of
2 However , Respondent's good -faith economic motives become quite questionable, not
only when viewed in the light of the evidence adverted to above supporting our finding of
discrimination against Zeigler, but also when considered in conjunction with Respond-
ent's evasive answers to General Counsel's questions concerning the specifics involved
in the abolition of Zeigler's job. Respondent's president did not know when the vending
machines which were to replace the canteen were ordered. He could produce no order
slip. In fact, he did not know whether the machines were owned by Respondent or
merely leased , and if leased , whether the lease was verbal or written.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
canteen-air compressor operator, we note that it still has a presently
functioning business, and it is conceivable that it may resume this.
position. We deem it appropriate, therefore, to provide for the
following alternative methods by which the Respondent may remedy
its unfair labor practices.
We shall order Respondent, in the event it reestablishes the posi-
tion of canteen-air compressor operator, to offer employee Walter
Zeigler immediate and full reinstatement to his former position
without prejudice to his seniority and other rights and privileges, and
make him whole for any loss of earnings he may have suffered by
reason of the unlawful discrimination against him, by payment to
him of a sum of money equal to that which he would have earned as
wages from the date of discrimination against him to the date of
offer of full reinstatement, less his net earnings during the period,
in the manner prescribed by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289, and with interest on the backpay due in accord-
ance with Board policy set out in Isis Plumbing and Heating Co.,
138 NLRB 716.
We shall also order Respondent, in the event it does not resume its
former position, to offer employee Zeigler immediate and full rein-
statement to a substantially equivalent position, such as truckdriver,
without prejudice to his seniority and other rights and privileges,
and make him whole for any loss of earnings in the manner set forth,
in the preceding paragraph.
We have found the unilateral discontinuance of Zeigler's job to be
a violation of Section 8(a) (5). We have also found that Zeigler's
discharge as a result of the discontinuance of his job violated Section
8(a) (3). However, whether Zeigler's discharge which resulted from
the violation of Section 8 (a) (5) be regarded as an 8 (a) (3) or (5)
violation, the remedy would be the same. His reinstatement would be
required to remedy either the discriminatorily motivated discharge or
the failure to bargain with respect to the discontinuance of the job.
In view of the nature of the numerous unfair labor practices coin-
mitted, which go "to the heart of the Act," the commission of
similar and other unfair labor practices may be anticipated. We
shall, therefore order that Respondent cease and desist from in any
other mamier infringing upon the rights guaranteed to employees
by Section 7 of the Act.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that
the Respondent, The Weston and Brooker Company, Cayce, South
Carolina, its officers, agents, successors, and assigns, shall:
THE WESTON AND BROOKER COMPANY 751
1. Cease and desist from :
(a) Threatening employees with loss of existing benefits, reduc-
tion of hours, and elimination of overtime if they select United
Stone and Allied Products Workers of America, AFL-CIO, CLC,
or any other labor organization, as their collective-bargaining rep-
resentative.
(b) Threatening to eliminate longevity or loyalty pay because
employees selected said Union as their collective-bargaining agent.
(c) Instructing employees to vote against said Union, or any other
labor organization, or suffer economic loss.
(d) Engaging in unlawful surveillance of meetings of said Union,
or any other labor organization, which its employees attend.
• (e) Informing employees they had been observed attending union
meetings.
(f) Coercively interrogating employees about their and other
employees' union membership, sympathies, desires, and activities.
(g) Informing employees they are ringleaders of said Union.
(h) Discriminating against any employee in regard to his hire or
other terms and conditions of employment to discourage membership
in the above-named Union, or any other labor organization.
(i) Refusing to bargain collectively with said Union as the ex-
clusive bargaining representative of all employees in the aforesaid
certified unit with respect to all bargainable matters, including
changes in working hours, merit wage increases, and abolishment of
unit jobs.
(j) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist said Union, or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to refrain from any
and all such activities.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) In the event Respondent reestablishes the position of canteen-
air compressor operator, offer Walter Zeigler immediate and full
reinstatement to that position; if Respondent does not reestablish the
position, offer him a substantially equivalent position, such as truck-
driver; Respondent also should reinstate employee Zeigler without
prejudice to his seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered by reason of said
discrimination in the manner set forth in the section entitled "The
Remedy."
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Upon request, bargain collectively with said Union as the
majority representative of Respondent's employees in the aforesaid
appropriate unit upon all bargainable subjects, including changes in
working hours, merit increases in wages, and abolishment of unit
jobs.
(c) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its plant at Cayce, South Carolina, copies of the
attached notice marked "Appendix." 3 Copies of said notice, to be
furnished by the Regional Director for Region 11, shall after being
signed by the Company's representative, be posted by the Company
immediately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Company to insure that said notices
are not altered, defaced, or covered by any other material.
(e) 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.
(f) Notify the Regional Director for Region 11, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
It is further ordered that the complaint be, and it hereby is, dis-
missed in all other respects.
3 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 "a Decision and Order" the words "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, as amended, we hereby notify our employees that:
WE WILL NOT threaten employees with loss of existing benefits,
reduction of hours, and elimination of overtime if they select
United Stone and Allied Products Workers of America, AFL-
CIO, CLC, or any other labor organization, as their collective-
bargaining representative.
THE WESTON AND BROOKER COMPANY 753
WE WILL NOT threaten to eliminate longevity or loyalty pay
because employees have selected the above union as their agent.
WE WILL NOT instruct employees to vote against the above-
named Union, or any other labor organization, or suffer economic
loss.
WE' WILL NOT engage in unlawful surveillance of meetings of
the above-named Union, or any other labor organization, which
our employees attend.
WE WILL NOT inform employees they have been observed
attending union meetings or are union ringleaders.
WE WILL NOT coercively interrogate our employees about their
and other employees' union membership, sympathies, desires,
and activities.
WE WILL NOT discourage membership in the above-named
Union, or any other labor organization, by discharging or refus-
ing to reinstate any of our employees or in any manner dis-
criminating in regard to their hire or tenure of employment, or
any terms or conditions of employment.
AVE WILL NOT refuse to bargain with the majority representa-
tive of our employees as the exclusive bargaining agent in the
unit certified by the Board with respect to all bargainable sub-
jects, including changes in working hours, merit wage increases,
and abolishment of unit job.
AVE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to join or assist the above-named Union, or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities
for the purposes of collective bargaining, or other mutual aid, or
to refrain from any and all such activities.
WE WILL, upon request by the above-named Union, bargain
collectively with such labor organization as the majority rep-
resentative in the unit certified by the Board with respect to all
bargainable subjects, including changes in working hours, merit
increases in wages, and abolishment of unit jobs.
WE WILL offer to Walter Zeigler immediate and full reinstate-
ment to his former or a substantially equipment position without
prejudice to his seniority and other rights and privileges, and
make him whole for any loss of pay suffered as a result of the
discrimination against him.
All our employees are free to become or remain, and to refrain
from becoming or remaining, members of said United Stone and
206-446-66-vol. 151-49
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allied Products Workers of America , AFL-CIO, CLC, or any other
labor organization.
THE WESTON AND BROOKER COMPANY,
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 application in accordance with the Selective
Service Act and the Universal Military Training Service Act of
1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate with the Board's Regional Office,
1831 Nissen Building, 310 West Fourth Street, Winston-Salem,
North Carolina, Telephone No. 723-2302, if they have any question
concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case is before Trial Examiner James V. Constantine of the National Labor
Relations Board upon a complaint issued on September 29 and amended on Novem-
ber 30, 1964, by the General Counsel of the Board , through the Regional Director for
Region 11 (Winston-Salem, North Carolina). The complaint as amended is based
on a charge and amended charge filed respectively on April 30 and August 7, 1964,
by United Stone and Allied Products Workers of America, AFL-CIO, CLC, naming
The Weston and Brooker Company as Respondent . As finally amended at the hear-
ing, the complaint in substance alleges that Respondent has violated Section 8(a) (1),
(3), and (5), and that such conduct affects commerce within the meaning of Section
2(6) and (7), of the National Labor Relations Act, as amended, herein called the
Act. Respondent's answer as amended at the hearing admits some facts but puts in
issue the commission of any unfair labor practices.
Pursuant to due notice a hearing was held before me at Columbia , South Carolina,
on November 30 and December 1 and 2, 1964. All parties were represented at and
participated in the hearing, and were granted full opportunity to introduce evidence,
examine and cross-examine witnesses , submit briefs , and offer oral argument. All
parties have submitted briefs.
Before evidence was introduced at the hearing, Respondent moved to disqualify
Robert Pearlman as counsel for the General Counsel on the ground that Pearlman
investigated the case from its inception and that , therefore, he should not be per-
mitted to try the case because his investigation "proceeded on one factor and that
was case building to determine . how best to frame the complaint." This motion
was denied . A motion by the General Counsel to sequester the witnesses was unop-
posed and , therefore , it was granted.
When the General Counsel rested, Respondent moved to dismiss that segment of
the complaint alleging that Respondent ceased paying longevity pay. I reserved deci-
sion therein . That motion is now granted on the ground that the General Counsel's
only evidence thereon , adduced through witnesses Ott and Richardson , discloses that
this type of remuneration had not been abolished as of the date of the hearing. And
President Weston testified to the same effect for Respondent . No evidence to the
contrary appears in the record.
The Charging Party has filed a motion to correct transcript . In the absence of
opposition thereto, said motion is granted.
THE WESTON AND BROODER COMPANY 755
Upon the entire record in this case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. AS TO JURISDICTION
Respondent, a South Carolina corporation, is engaged at Cayce, South Carolina, in
operating a rock plant and granite quarry. During the year preceding the issuance
of the complaint, Respondent directly shipped to and received from points outside
the State of South Carolina products valued in excess of $50,000. I find that
Respondent is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction
over Respondent by this proceeding.
U. THE LABOR ORGANIZATION INVOLVED
United Stone and Allied Products Workers of America, AFL-CIO, CLC, herein
called the Union, is a labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
This case involves certain conduct by an employer which is alleged to conflict with
the provisions of the Act vouchsafing to employees the right to engage in union
activity. The Union initiated an organizing drive about the first of the year 1964.1
On March 20, following the Regional Director's Decision and Direction of Election
of February 19, an election was held among employees of Respondent in the unit
described in the next sentence. That unit, which I find constitutes a unit appropriate
for the purpose of collective bargaining within the provisions of Section 8(a) (5) and
9(a) of the Act, is composed of "all production and maintenance employees of
Respondent at its Cayce, South Carolina, plant, including weighmasters and screening
leadmen, but excluding office clerical employees, professional employees, guards, and
supervisory employees as defined in the Act." The Union won the election and on
March 30 it was certified as the exclusive representative for the purpose of collective
bargaining of the employees in the foregoing appropriate unit. I further find that at
all times material the Union had a majority and thus was the exclusive bargaining
agent of the employees in said appropriate unit.
A. Interference, restraint, and coercion
1. Threats of loss of existing benefits
About March 5, Supervisor Sam Lucas spoke to employees J. C. Jackson and
Ben Blakely. Telling them that they were receiving company benefits they were not
aware of, Lucas also suggested they see President Weston who would outline the
benefits in detail. When Jackson replied that Weston usually left before Jackson's
quitting time, Lucas granted Jackson the right to call on Weston then and there.
However, Jackson declined this offer. Finally, Lucas told them that all of those
benefits would be taken away from the employees and they would work less hours
if they voted for the Union.
About March 12, W. S. Weston, Jr., Respondent's president and a supervisor under
Section 2(11) of the Act, spoke in his office to employee Hayesford Ott, a derrick
operator, and five other employees. This office is located about a mile from Respond-
ent's quarry. Ott had been directed to go there when he finished work that afternoon
by Joseph Meetze, the Company's purchasing agent. Employees Ben Blakely, J. C.
Jackson, Damon Starks, Henry Sutton, Jr., and Russell Laird also were present.
Handing a letter to each of those in the room Weston told them that if they had not
received one they soon would because it was already in the mail. (See General
Counsel's Exhibit No. 3.) This letter, dated February 25, among other things states
that "The Company does not believe that a Union is necessary for your security,"
that "The Company believes that by working together without the interference of
outsiders and persons and organizations interested only in securing money from you
in the form of dues, that we can keep on building and maintaining a strong and
profitable Company," that any attempt "to restrain and coerce you into becoming and
remaining a member" of the Union should be reported to the Company, that six
enumerated "benefits" had been granted to employees "without the necessity" of a
union or union dues, that "even if you have signed a union card it in no way obligates
' All dates mentioned herein refer to 1964 except where otherwise noted.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you to have anything further to do with this Union ," and that the Union did not
provide jobs or pay bills for Respondent 's employees . Later, Ott received another
letter like this in the mail . This letter does not violate the Act as it amounts to
an expression of opinion safeguarded by Section 8(c).
Continuing , Weston mentioned that the Union had filed a petition with the Board
for an election, that this was a "serious matter,"' that employees had received 32 to
34 benefits , many of which are not described in the above letter , including sick pay,
vacations , and "loyalty pay," without "outside pressure ," that if the Union was voted
in these benefits would be thrown out or go out the window and "we would start
bargaining from scratch " on everything , such as wages , hours, fringe benefits, and
loyalty pay .2 When Ben Blakely asked if the insurance plan remained in effect after
retiring, Weston replied that the life insurance features did continue but the hospital
benefits did not.
About March 17 employee David Earle , a mechanic , was instructed by Respond-
ent's assistant superintendent to go to the office of President Weston. When Earle
arrived there about 11 a.m. Weston handed Earle "a paper to read with the benefits
on it." This was General Counsel's Exhibit No. 3. Then Weston asked if Earle
was aware of these benefits . When Earle replied that he was not, Weston added that
he, too, did not realize employees enjoyed so many until he checked into them. Con-
cluding, Weston said "if this thing come in here all of these benefits will go out the
window."
On about March 19 President Weston spoke to the assembled employees in the
new truck shop at the plant. He read from a letter sent to employees around Christ-
mas 1963. Among other things Weston referred to matters about to be discussed as
so very important that the employees ' decision thereon could well be the most impor-
tant they had made in their lives. Displaying a sample ballot he explained it. Then
he mentioned some company benefits, including the "loyalty pay plan ," hospital
insurance, and vacations , and stated the effect of the "loyalty pay plan" upon the
base rate of specific employees whose names he read out. Then he remarked that
"this loyalty pay was one percent for every five years [of ] uninterrupted service."
Finally, Weston said that these benefits "would be done away with and thrown out
the window if the Union was voted in." Respondent 's version is condensed in the
next paragraph.
On March 19 President Weston spoke to the assembled employees . At the close
thereof Weston invited questions . One employee asked what happened to existing
benefits. Weston replied they were all subject to bargaining at the bargaining table
because "we begin from scratch ." When another asked what power the Union had
"to get these things" Weston replied that the Union enjoyed the right to strike.
After the election Respondent posted on its bulletin board a notice reading:
"March 20, 1964. TO CAYCE PLANT EMPLOYEES. You have been given your
chance to vote by secret ballot. The results show your choice. Now that the electior
is over, forget about it and get down to doing your job properly . W. S. Weston, Jr.
President."
Concluding Findings as to Loss of Existing Benefits
To the extent that the testimony of Supervisor Lucas is inconsistent with the Gen-
eral Counsel 's evidence , as set forth above, I do not credit Lucas . This failure to
accept his testimony is derived not only from his demeanor on the stand , but also
because ( 1) some of his testimony substantially conflicts with his affidavit given to
the General Counsel ( General Counsel's Exhibit No. 11), ( 2) that affidavit in many
respects confirms the General Counsel 's evidence , and (3 ) as more fully set out in
connection with the subsection on Interrogation herein, I have found that Lucas en-
gaged in a pattern of sending employees to the front office on the day of the election
to be interviewed about the Union , so that Lucas had an antiunion hostility . Because
of such union animus, it is probable, and I find , that Lucas would speak against the
Union as he did. Further , President Weston in effect does not deny making the
statements attributed to him. But Respondent contends that he was correctly stating
the employer 's position and that such statement was lawful under the Act. In any
event, I credit the General Counsel 's witnesses on this.
First , I find that Lucas told employees Jackson and Blakely that benefits would
be taken away if the Union won the election and that this violates Section 8 (a) (1)
of the Act.
g Employee Ott testified that as of the date of the hearing he continued to receive
loyalty pay and all other benefits in force prior to the election.
THE WESTON AND BROOKER COMPANY 757
Secondly, I find that President Weston told employees that the benefits would go out
the window if the Union won the election and that thereafter the parties would start
from scratch at the bargaining table. This is prohibited by Section 8 (a)( 1 ) of the
Act. It is no defense to argue, as does Respondent, that all matters are bargainable
and that the employer may say so to his employees. I recognize that an employer
may lawfully communicate his position to employees and may advert to the law
affecting his rights by saying he will start from scratch (Schick, Incorporated, 118
NLRB 1160, 1162-1163), but he may not couple this with a warning that existing
benefits will be lost while bargaining from scratch. Hence a threat to discontinue
such benefits if the Union won amounts to a threat of reprisals which exceeds the
area of acceptable speech sanctioned by Section 8(c) of the Act. Suprenant Manu-
facturing Co. v. N.L.R.B., 341 F. 2d 756 (C.A. 6).
Finally, I find that at a bargaining session Respondent stated it was going to
abolish loyalty pay because the Union won the election and the employees thereby
demonstrated their disloyalty. This is a form of reprisal prohibited by Section 8
(a) (1) of the Act. It is no defense that this threat was never consummated or
carried out; for the vice lies in the restraint and coercion inherent in the utterance.
It is not necessary that a threat of reprisal materialize to render it an unfair labor
practice. Eastern Die Company, 142 NLRB 601, footnote 2; Joy Silk Mills, Inc. v.
N.L.R.B., 185 F. 2d 732, 743-744.
2. Instructing employees to vote against the Union or suffer economic loss
At about 4 p.m. on March 20 Plant Foreman Sam Lucas, whom I find to be a
supervisor under Section 2(11) of the Act, asked employee Bailey Gardner if he
had yet voted. When Gardner replied in the negative, Lucas directed Gardner
"to vote just like Mr. Steve [Weston] say" and if he did not so vote Gardner would
lose $2 from his pay. Steven Weston is Respondent's president.
Lucas claims that on the morning of March 20 Gardner asked him how Gardner
should vote in the impending election and that Lucas refused to give the advice
sought.
But I credit Gardner's version because, as pointed out elsewhere in this Decision,
I have been unable to accept the testimony of Lucas where it is contradicted by the
General Counsel's witnesses. Accordingly, I find that Lucas instructed Gardner to
vote against the Union or lose $2 from his pay. This violates Section 8(a) (1) of
the Act.
3. Threats of reduction of hours and elimination of overtime
On the day after the Board election held on March 20 Respondent posted a notice
stating that beginning the following Monday the regular daily working hours at the
Cayce quarry would be reduced from 9 to 8, and that overtime had been eliminated
except "for emergencies and then only by permission of the superintendent." The
daily working hours were then reduced from 9 to 8 beginning March 23.
It is not denied that the hours were changed on March 23. And I credit the
General Counsel's evidence (1) that on March 5 Supervisor Lucas told two employ-
ees the quarry would work less hours if the employees voted for the Union, and (2)
that Supervisor Lucas told employee Jackson on March 20 if the Union won the
election "we will go on 8 hours and get overtime only in case of emergency .. .
Whether the actual reduction hours is a violation is discussed elsewhere herein.
However, these two statements by Lucas manifestly constitute threats of reprisals, and
I so find. Accordingly, I find that such threats are proscribed by Section 8(a)(1)
of the Act.
4. Surveillance
a. General Counsel's evidence
At or about 5.45 or 6 p.m. on March 19, following the 5:30 quitting hour, a union
meeting was held for Respondent's employees at the union hall on Center Street in
nearby West Columbia. Employee David Earle observed Supervisor Dom, a quarry
drill foreman, drive by the hall at about 25 miles an hour. Dorn lives on Center
Street
During the time the election was being conducted on March 20 Supervisor Sam
Lucas spoke to employee Jackson. Lucas remarked that most folks who attended
the union meeting the night before had also attended the meeting of employees which
President Weston had addressed. Continuing, Lucas said that he observed employee
Henry Sutton's car at the union meeting but did not see Sutton personally, that Lucas
did not think that some who actually went to that meeting would go to it, and
concluded by saying that "we will see whether we stay on 9 hours or go back to 8
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours . . . if the union wins we will go on 8 hours and get overtime only . . . in
case of emergency [but] if the union lost we would remain on 9." Lucas
,denies he ever discussed the Union with Jackson.
At about 7:45 p.m. on March 19 employee Zeigler saw Supervisors Dorn and
Meetze in a car "facing the entrance of the union hall" approximately 150 feet away.
Meetze was at the wheel. As Zeigler entered the hall Supervisor Lucas drove by in
his car at about 15 or 20 miles an hour.
b. Respondent's evidence
Respondent's evidence concerning surveillance is abridged in the following
paragraphs.
Accompanied by his wife, Lucas drove to visit his wife's cousin who lives in the
vicinity of the union hall. Since the cousin was not home Lucas and his wife then
drove by the union hall to get a Be-pop, or thick milkshake, at Ed's Drive Thru. This
was at about 8 p.m. Lucas noticed some of the employees at the union hall and
observed the parked cars of employees Sutton, Scott, Zeigler, and Austin. A "light,
misty" rain was falling and it was dark.
Quarry Drill Foreman James Dorn on March 19 passed the union hall on his way
home from work because he lives three blocks from it. He recognized some
employee cars, including Austin's and Zeigler's. In addition he passed the hall
three or four times each way on March 19 because (a) he went to and returned
from work, (b) visited his mother, (c) went to the drugstore, and (d) went to a
laundromat. Employee Austin sometimes started a conversation about the Union
with Dom, but Dom never made an antiunion utterance.
Joseph Meetze, plant purchasing agent, denies he was in the vicinity of the union
hall on March 19.
Concluding Findings as to Surveillance
It is my opinion, and I find, that Supervisor Lucas engaged in surveillance even
on his own testimony. Since he testified that he passed the hall about 8 p.m., when
it was dark, and the weather was a light, misty rain, I infer, and find, that he could
not casually have recognized some employees and in addition some employee cars
unless he made it a point to observe what was going on. Hence he was doing more
than merely passing by the hall as a traveler. Moreover, it is more than coincidental
that Lucas was not the only supervisor to pass the hall, for Supervisor Dorn also
passed it at about the same time. Hence I infer and find that Lucas went to the area
of the hall for the purpose of ascertaining what union activity was taking place there
and who was present there. This is strengthened by the finding that on the next day
he mentioned he saw employee cars there and also participated in interrogating some
of the employees who attended the union meeting.
Similarly, I find that Supervisor Dorn engaged in unlawful surveillance by driving
past the hall a few times on the evening of March 19. Not only did he discern
employee cars parked there on a dark, rainy night, but it is more than coincidental
that he and Supervisor Lucas were in the area at about the same time. Hence I
find that Dorn went by to ascertain facts as to which employees were present at the
union meeting. Cf. Aero Corporation, 149 NLRB 1283. Dove Coal Company.
150 NLRB 1142, is distinguishable.
However, I find that the evidence is insufficient to show that Supervisor Meetze
was in the vicinity of the hall on March 19. In this respect I credit Meetze and am
unable to credit Zeigler, especially since I am of the opinion that Zeigler was unable
to identify a man in a car 150 feet away on a dark, rainy night.
5. Informing employees they had been seen attending a union meeting
On the evening of the election of March 20 Supervisor Sam Lucas spoke to
employee Henry Sutton. Among other things Lucas said that there were a lot of
cars "at that meeting last night," and that the first car he noticed there was Sutton's.
Thereupon Sutton admitted he went to that meeting. Then Lucas directed Sutton to
go to the office of Assistant Superintendent Morton, whom I find to be a supervisor
under the Act. I credit Sutton. In my opinion Lucas is not a reliable witness as
pointed out elsewhere herein. Hence I do not credit his denial of the above testimony
of Sutton. Accordingly, I find that Respondent violated Section 8(a)(1) of the
Act by the above statement of Lucas.
THE WESTON AND BROOKER COMPANY 759
6. Interrogation
Then Sutton as directed by Lucas proceeded to Morton' s office where Morton spoke
to him. When Morton told Sutton that he (Sutton) went to a meeting the night
before Sutton replied that this was true. At this point Morton asked Sutton to tell
"in [Sutton 's] own way" what went on at that meeting. Sutton replied " it wasn't
much but just having a little meeting ," and that he opened it with a prayer. Morton
and Lucas also discussed the meeting in some detail , during which Morton asked
Sutton to name those appointed to the committees and what was said to them. How-
ever, Sutton merely gave the names as requested but refused to disclose the instruc-
tions given to the committeemen.
About March 10 Supervisor Lucas, in the presence of Plant Engineer Jamison,
whom I find to be a Supervisor, asked employee Johnnie McKnight if McKnight
had been to a union meeting. When McKnight replied that he had Lucas asked him
if the Union promised any raise. McKnight said no such promise was made. Then
Lucas asked McKnight whether he had joined the Union, only to receive a negative
answer.
About March 20 3 Assistant Superintendent Morton asked employee Leroy Scott
if Scott attended a union meeting , to which Scott replied that he had. Then Morton
asked Scott to disclose what went on there and Scott did. Later that day Supervisor
Lucas asked Scott if Scott had been to the meeting. Scott said that he had. Then
Lucas requested Scott to recite what went on there. Scott complied and did so.
Still later Supervisor Jamison, in the presence of Supervisors Morton and Lucas,
asked Scott as to what went on at the meeting and Scott then related the happenings
there.
Respondent's evidence concerning the above talks with Scott, Sutton, and
McKnight is set forth in the ensuing paragraphs.
Lucas testified that he had two talks with employee Scott on March 20. In the
first, at about 7:30 a.m., Scott came to Lucas and asked to see Lucas later in the day
to ask questions about the Union. Lucas consented. At about 3:30 or 4 p.m. an
assistant foreman drove Scott to Jamison's office. Scott spoke to Lucas in Jamison's
office. Jamison was also present. Scott asked Jamison a few questions concerning
some matters Scott heard at the union meeting the night before, and Jamison and
Lucas tried to answer. Soon Supervisor Morton came into the room. Morton
invited questions and Scott did ask some. This was while the election was being held.
Lucas also testified that he had two conversations with employee Sutton on
March 20, the first at about 7:40 a.m. In this Sutton advised Lucas that Sutton
attended a union meeting the night before and wanted to ask Lucas some questions
about it. Since he was occupied at the time, Lucas suggested that Sutton call him
later in the day and that Supervisor Morton would be present. Sutton did so in the
afternoon. In this second conversation, held while the election was still on, at which
Supervisors Lucas, Jamison, and Morton were present, Sutton mentioned that he
attended a union meeting and referred to "a few things discussed up there" and
stated that he opened the meeting with a prayer. Then Sutton asked some questions
which Morton answered
On the morning of March 20 Lucas twice spoke to employee Johnnie McKnight.
The first time McKnight sought to ask questions about the Union but Lucas asked
him to postpone them until later because Lucas was busy at the time. In the after-
noon McKnight came to Supervisor Morton's office where he found Morton and
Lucas awaiting him. This was before the election had concluded. McKnight then
asked some questions about the Union which Morton answered.
In all three cases Lucas reported the first conversation to Assistant Superintendent
Morton and Morton asked Lucas to bring the employees to Morton's office so that
Morton could talk to them. Later in the day Lucas directed his assistant to pick up
the men in a truck and bring them from the quarry to Morton's office.
Concluding Findings as to Interrogation
In its essential features this aspect of the case presents questions of credibility. I am
unable to credit Lucas, Respondent's supervisor, for several reasons in addition to
observing his demeanor on the stand: (1) Lucas has given contrary evidence on
some crucial matters in his affidavit to the General Counsel, thus confirming some
3 Scott was not sure if it was March 20 or 23. While I find he had a faulty memory
I credit his account of the conversations to which he testified . Scott was definite that
they occurred the day after the union meeting.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the General Counsels' case, (2) it is improbable that three prounion employees
on the day of the election would seek an audience with Lucas to ask him how to vote
in the election, (3) moreover, no reason is shown why Lucas should want his superiors
present when these employees talked to him. But it is reasonable to infer that
Lucas asked these employees to come to him to be interviewed by his superiors to
obtain knowledge of union activity, (4) the foregoing inference is strengthened by
the fact that Lucas had his assistant foreman drive the employees to the office, a
distance of more than a mile, to be sure that they arrived at the office before they
changed their minds. Such solicitude for employees can reasonably be explained by
a desire to seek information from them rather than by a desire to answer alleged
questions of employees, (5) moreover it is reasonable to infer that Lucas could have
answered the alleged questions of the employees on the spot. The fact that he
invited them to a superior's office belies his contention that the employees wanted
him to answer their questions, and (6) finally none of the superiors of Lucas at the
interviews testified to corroborate him. This is significant.
The General Counsel's witnesses impressed me as telling the truth without trying
to exaggerate or to emphasize it. Hence I credit them in this area of the case.
Accordingly, I find that Respondent interrogated employees Scott, Sutton, and
McKnight about their and other employees' union membership, desires, and activity,
and that such interrogation is not shown to be necessary to aid Respondent in pre-
paring for this case or in connection with other lawful objectives. Hence such
conduct contravenes Section 8(a)(1) of the Act. Johnnie's Poultry Co., 146
NLRB 270. Of course the mere asking an employee if he joined a union or to
inquire what benefits he would derive from union membership is not unlawful.
Willard Bronze Co., 146 NLRB 1686.; N.L R B v. Mid-West Towel and Linen
Service, Inc., 339 F. 2d 958, 960-961 (C.A. 7). But as found herein, Respondent's
inquiries amount to interference, restraint, and coercion proscribed by the Act.
7. Informing an employee he was the union ringleader
About 2 weeks before the election of March 20, Supervisor Lucas pointed a finger
at employee A. D. Austin, a welder, and said "there is the ringleader of the Union."
Lucas denied he pointed his finger at and accused Austin as the ringleader of the
Union. Approximately 3 days later Supervisor Dorn said to Austin that it was no
secret that employee Walter Zeigler was one of the first to sign a union card. I
credit Austin's testimony above. Accordingly, I find that the statements of Lucas
and Dorn are coercive and, therefore, violate Section 8 (a) (1) of the Act.
B. Alleged discriminatory acts
1. The discharge of Walter Zeigler
Walter Zeigler was hired about 21/2 years ago as a truckdriver. After performing
this type of work for about a year and a half he became a compressor operator and
a canteen operator. On this latter job he worked 9 or more hours a day. In both
jobs he punched the same timeclock and received the same benefits with respect to
vacations , insurance , and holidays as other employees in the quarry. The air
compressor supplies air to the crushers and jackhammers 4 which are used to drill
in the quarry. It also provides air for the "go to work," "go to lunch," and "knock
off" whistles. Operation of the canteen (a "little" one, as Zeigler described it)
includes the sale (to Respondent's employees and truckdrivers of suppliers) of
cigarettes, candy, sandwiches, milk, pastries, work gloves, and "things of that type."
It took up about 80 percent of Zeigler's working time.
Zeigler belonged to the Union, attended the union meeting of March 19, and
acted as a union observer at the election of March 20.
About 20 percent of his time Zeigler spent on noncanteen work. In addition to
running the air compressor, Zeigler during this time also pumped gasoline into com-
pany vehicles, supplied kerosene and oil when needed, and locked and unlocked the
gasoline pumps. The air compressor was checked every half hour.
In March 1964 Zeigler asked to be transferred to truckdriving but was told that
no such opening existed. On April 1 Superintendent Carson told Zeigler that the
Company was "demolishing" his job and had no further use for him . Assistant
Sunerintendent Morton, who was present at that time, explained that Zeigler was
being laid off because Respondent was "closing the canteen and also closing down the
air compressor." Thereupon Zeigler asked Carson for a truckdriving job, but Carson
4 These employees are in the unit and voted in the election of March 20.
THE WESTON AND BROOKER COMPANY 761
replied that he had no further use for Zeigler . Later that day President Weston
gave Zeigler a written letter of recommendation addressed "TO WHOM IT MAY
CONCERN." (General Counsel's Exhibit No. 9.)
On April 1 Respondent subcontracted the canteen to a vending machine company
which installed coin-vending machines.
At the bargaining session of June 29 Respondent refused to discuss the recall of
Zeigler because the Union had filed charges relating thereto.
Bob Gilliam was hired as a truckdriver 4 or 5 years before the hearing. Then
he became a night watchman a year to 18 months later. He remained such until about
March 21, 1964. Then Gilliam was assigned to front end loading because the night
watchman work was subcontracted to the Pinkerton guards. No one contends this
subcontracting violates the Act. But it is contended that Respondent could have
given a similar job of truckdriving to Zeigler instead of to Robertson or Shivers. In
May 1964, employee David Robertson, who had been working at times as a laborer
and at other times as a jackhammer operator, was put on a Euclid truck. Similarly,
employee Harold Shivers, a laborer, was assigned to a Euclid truck in early May
1964.
Concluding Findings as to the Discharge of Walter Zeigler
Elsewhere in this Decision I have made findings as to the 8(a) (5) aspect regarding
the discontinuance of Walter Zeigler's job. This branch of the case concerns the
question of whether Zeigler was discriminatorily discharged in violation of Section
8(a)(3) of the Act when his lob was abolished. It is my opinion, and I find, that
the discharge of Zeigler was motivated by economic considerations only and that,
therefore, his discharge did not transgress Section 8(a) (3) of the Act. This ultimate
finding is based upon the entire record and the following factors, which I find
as facts:
1. Respondent at no time displayed animosity towards Zeigler because of his
union activity. In fact Respondent is not shown to have made any antiunion
remarks to Zeigler directly or to have mentioned Zeigler's union activity to others.
The General Counsel has stressed that Respondent displayed a general union
animus, some of which violates Section 8(a)(1) of the Act. This is true, but I am
unable to correlate this general attitude with Zeigler's discharge. It is not enough
to find union animus; it must also be established that this animus proximately
generated Zeigler's discharge . Lasko Metal Products, Inc., 148 NLRB 976;
N.L.R.B. v. Park Edge Sheridan Meats, Inc., 341 F. 2d 725 (C.A. 2). I do not
find such a link between the discharge and Respondent's hostility to the Union. "An
employer's conduct is not unlawful, however, merely because it results in the termi-
nation of the employment of a union member." Pioneer Photo Engraving, Inc., 142
NLRB 1099, 1101.
2. Respondent abolished Zeigler's job for economic reasons. But the- General
Counsel argues that the timing of the discharge not long after the election of
March 20, combined with the disparate treatment of Zeigler, overcome this alleged
ground, so that the economic reason is a pretext to mask the real or antiunion motive
behind the discharge. But I do not find pretext. It is true that Zeigler was terminated
a few days after he acted as an observer 5 for the Union at the election of March 20,
but it is also true that (a) Respondent for a considerable time prior to the advent of
the Union had planned this layoff as soon as possible after it substituted drop ball
machines for jackhammers, and (b) no one questions that drop-ball machines do
not utilize compressed air. Hence no need is shown for Zeigler's services on the com-
pressors. Nor do I find pretext because, as contended by the General Counsel, other
employees whose jobs were abolished were given truck work, whereas Zeigler was
denied such work. The short answer to this is that, since Zeigler was lawfully laid
off, his employer may not be penalized for denying him other employment; the
Board does not sit in judgment upon the wisdom of management decisions in operat-
ing business establishments. N.L R.B. v. United Parcel Service, 317 F. 2d 912, 914
(C.A. 1). See Thurston Motor Lines, 149 NLRB 1368. In my opinion Goldblatt
Bros, Inc, 135 NLRB 153, is distinguishable. Further, it is significant that other
employees assumed Zeigler's few remaining minor duties; no one has been hired to
replace him. Finally, the General Counsel urges pretext because Zeigler was not
notified or warned in advance of his impending layoff. I have not overlooked this
argument, but I deem it insufficient to undermine the finding that the asserted reason
that Zeigler was laid off as an economy move is true. Cf. N.L.R.B. V. The Houston
Chronicle Publishing Company, 211 F. 2d 848 (C.A. 5).
s This alone will not support a finding of pretext without more, N.L.R.B. v. Lawson
Milk Company, 317 F. 2d 756 (C.A 6).
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Zeigler's union activity was minimal. Other than acting as an observer at an
election, Zeigler did not actively solicit on behalf of or work for the Union. While it
is true that he attended a union meeting on March 19 to Respondent' s knowledge, it
is equally true that other employees, none of whom was laid off or discharged, were
likewise known by Respondent to have attended that same meeting. Cf. John S.
Barnes Corporation v. N.L.R B., 190 F. 2d 127, 129 (C.A. 7).
4. Nor have I been unmindful of the rule that the "mere existence of valid grounds
for discharge is no defense to a charge that the discharge was unlawful." N.L.R.B. v.
Symons Manufacturing Company, 328 F. 2d 835, 837 (C.A. 7). Accord, Portable
Electric Tools, Inc. v. N L.R.B., 309 F. 2d 423, 426 (C.A. 7). But I am convinced,
and find, that Zeigler's discharge was lawful and that no pretext cloaks the reason
advanced for his release from Respondent's employ.
5. I have not disregarded Supervisor Dorn's statement to employee Austin that
Zeigler was one of the first to join the Union. While this establishes company
knowledge of Zeigler's union membership it is inadequate to prove that Zeigler was
discharged therefor.
2. Reduction in working hours on March 23
It is undisputed that Respondent reduced the working hours from 9 to 8 on
March 23. I credit Respondent's evidence as outlined herein as to why the hours
were so reduced.
By March 23, 1964, Respondent's inventory stock piles were completely full
because it had been working 9 hours a day. In fact it had the highest inventory in
5 years. The 9-hour day had been instituted as the result of (1) a request by the
State Engineering Department to fill one of its demands, (2) the stockpiling of
granite in anticipation of the Columbia Airport job, and (3) an 8,000 ton order
for another lob. But unseasonably heavy rains and the postponement of the airport
job caused inventories to swell abnormally. As a result, the Company's sales depart-
ment, which determines the hours of work, decided to reduce the working day from
9 to 8 hours.
Respondent's sales department is directly responsible for the setting of hours of
company personnel. This department is in charge of B. O. Brooker, assistant vice
president and sales manager. Hours of work are determined by the relationship
between inventory and orders to be shipped out. Hence there are no normal hours of
work. However the workweek is normally 5 days, and the usual work hours are
7.30 a.m. to 4 p m. So in the middle of February Brooker recommended to President
Weston that the hours be cut down because of a rising inventory. But nothing was
done about it until March 23 so as not to interfere with the election.
Hence I find that Respondent reduced the length of the working day on March 23
for economic reasons and without consciously striving to undermine the Union or
enforcing reprisals against employees for designating the Union as their bargaining
representative. While it looks suspicious that such reduction occurred the next work-
ing day following the election, nevertheless I accept the explanation therefor; i.e.,
that although such action was necessary, it was postponed until after the election to
avoid any imputation of attempting to influence the election. In this connection the
warning of Supervisor Lucas that the hours would be reduced and that overtime
would be eliminated if the Union won the election are significant. But I find that
this represented the personal views of Lucas, who was antiunion, that he did not
reflect the attitude or judgment of Respondent in making this remark, that he did not
base his observation on anything told to him by his superiors, and that he did not
have anything to do with the decision to reduce the working hours.
C. The refusal to bargain by unilateral acts and conduct
1. Cessation of the practice of paying longevity pay
On about March 23 a bargaining session was held by Respondent and the Union.
In discussing longevity pay, Respondent's Counsel Smith, in the presence of President
Weston, asserted that this Company had no longevity pay then or in the past and
there never would be any, but that there had been loyalty pay for employees who
performed satisfactory work for "a length of time." Then Smith added that he was
convinced that when a group of men voted a union in they lost their loyalty and,
therefore, the Company would no longer give loyalty pay. Thereupon Sam Scott,
one of those representing the Union, asked President Weston to repeat Smith's state-
ment. Weston then confirmed Smith's above statement by substantially repeating it.
But there is no evidence that loyalty pay was ever stopped or discontinued.
THE WESTON AND BROOKER COMPANY 763
Although I find that the above statement constitutes coercion under Section
8(a)(1) of the Act, I further find that such longevity pay was not in fact stopped.
As noted above I have granted Respondent's motion to dismiss that area of the
complaint alleging the cessation of longevity pay because of a failure to introduce
evidence that such discontinuance occurred.
2. Reduction and later increase in hours of employment
As noted above the Company on or about March 20 posted a notice reducing the
number of regular daily working hours from 9 to 8 beginning on Monday, March 23.
No notice thereof was given to, nor was the matter discussed with, the Union
prior to such posting or prior to the actual reduction of the hours on March 23.
Elsewhere I have found that this procedure by Respondent was not adopted -for
discriminatory reasons and, therefore, did not collide with Section 8()(3) of the
Act. The question now is whether such action, even though made in good faith
for economic reasons, violates Section 8 (a) (5) because it was adopted unilaterally.
It is axiomatic to say that the Act requires collective bargaining by employers on
bargainable matters. See Sections 8(a) (5) and 10(d). A corollary of this principle
is that an employer may not initiate or institute changes in bargainable working con-
ditions without first bargaining thereon. Such unilateral action runs foul of Section
8(a) (5) of the Act regardless of whether the employer acted in good faith. N.L.R.B.
v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736, 743. It
is my opinion and I find, that the length of the working day, as well as overtime, are
comprehended by the words "hours and other terms and conditions of employment"
on which Section 10(d) of the Act requires an employer to bargain. Homer Gregory
Co., Inc., 123 NLRB 1842, 1846, holds that this unilateral action is in derogation of
the Union's statutory rights as bargaining representative. Shelley Gordon, et al.,
d/b/a Lakeland Cement Company, 130 NLRB 1365, 1374-1375 does not compel
a contrary result.
On about June 22 or 29 Respondent increased the number of regular daily hours
foi employees in the unit from 8 to 9. No prior notice thereof was given to the
Union.
I find that this was made in good faith because of economic necessity and not
for the purpose of disparaging the Union's standing. Nevertheless, for the reasons
mentioned above in connection with the reduction in hours, I find that good faith
is no defense, and that an increase in the working hours is a bargainable matter.
Accordingly, I find that the employer's unilateral action in increasing those hours
violates Section 8(a)(5) of the Act.
3. Merit wage increases
As noted above the Union and the Company met at a negotiating session on about
March 23. One of the subjects proposed by the Union related to pay increases. But
the Company replied that it "did not expect to raise any cost whatsoever through
collective bargaining." However, merit increases were not then or any other material
time discussed by the parties at any bargaining session.
Nevertheless, on September 16, employee Eugene Richards, a welder, was informed
that beginning September 17 he would receive an increase of 10 cents an hour as a
"merit raise" for "doing a good job." Richards had not requested this raise although
he had asked for, and received, raises at other times. Employees Vernon Jones,
Robert Summers, and William Douglas on September 16 also were similarly informed
that they would receive a 10-cent an hour increase beginning September 17.
Respondent's evidence shows that these raises were given as a result of a routine
periodic survey of all employee records made approximately every 6 months. But
no evidence was adduced that the raises were automatic; rather, Respondent's evi-
dence shows that a raise would be granted only after review of an employee's record
as disclosed by his file, and then only if his record warranted a raise in Respondent's
discretion. Nor does Respondent's evidence show that such review occurred at
definite, prescribed intervals. In fact, the evidence shows only that the review
occurs about every 6 months. Further, I find that at times raises were not given until
asked for, and that at other times they were rejected even when requested by an
employee.
Accordingly, I find that the increases were not simply automatic increases to which
Respondent had already committed itself to grant pursuant to a long standing practice
antedating the arrival of the Union on the scene. It follows, and I find, that the
increases were merit increases. Under the Act merit increases are subjects of collec-
tive bargaining. N L R.B. v. J. H. Allison & Company, 165 F. 2d 766 (C.A. 6);
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Midwestern Instruments, Inc., 133 NLRB 1132. Hence the failure to bargain thereon
prior to their being put into effect contravenes Section 8(a) (5) of the Act. N.L.R.B.
v. Berme Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736, 746.
4. Discontinuance of the job of canteen -air compressor operator
As noted above Respondent refused to discuss on June 29 the recall of Walter
Zeigler because the Union received no notice prior to the abolition of this job.
Concluding Finding as to the Abolishing of Zeigler's job
Zeigler was employed as an air-compressor operator and was in charge of the
Company's canteen . Initially I find that Zeigler's job is embraced within the produc-
tion and maintenance unit for which the Union was certified . Insofar as the canteen
is involved I find that it is operated principally for the convenience of production
and maintenance employees ( although nonemployees incidentally coming to the
quarry are not prohibited from enjoying its use ), and that this relationship to the
work of those employees is close and intimate . Moreover , I find that Zeigler received
the same benefits as production and maintenance employees . Hence I find that it
is reasonable to include canteen work as part of the certified unit. See Foley
Manufacturing Company, 115 NLRB 1205, 1207; Barber-Colman Company, 130
NLRB 478, 479. And to the extent that Zeigler's job involves air -compressor work,
it is directly and proximately connected with the processes utilized in producing
granite and its by-products . It follows, and I find, that Zeigler's air-compressor work
should be included in the bargaining unit . Citation of authority is supererogatory
upon this latter branch of the case.
Respondent urges that Zeigler's job was not mentioned in the unit description
which was agreed upon by the parties, that his name was omitted from the list of
eligible voters , and that the Board agent challenged Zeigler's vote at the election.
While these factors are persuasive they are not conclusive as to Zeigler 's status.
Cf. Shoreline Enterprises of America , Inc., 262 F. 2d 933 (C .A. 5). The ultimate
conclusion must be derived from the entire record by the Trial Examiner, subject to
review by the Board and the Court . Upon the record before me I am of the opinion,
and find, that the language of the agreed upon unit is broad enough to comprehend
Zeigler's work , that the fact that his job was not specifically mentioned does not
per se mean that it was excluded by the parties , and that the Board agent 's challenge
insufficient to override the specific facts unfolded by the record . Accordingly,
I find that Respondent's arguments to exclude Zeigler from the unit are not well taken.
Further I find that Respondent unilaterally abolished Zeigler's job on April 1;
i.e,, the Company prior to taking such action did not notify the Union thereof or
discuss it with the Union But I find that such unilateral action is not forbidden by
Section 8 ( a) (5) of the Act because such action was taken in good faith for economic
reasons. I find that Respondent is engaged in open pit mining of granite, which
involves drilling , shooting , blasting, crushing , and processing crushed granite. Zeig-
ler operator two air compressors , blew the whistle , and was in charge of the canteen.
The canteen served Respondent 's employees and any one else who happened to come
to the quarry. For a considerable time prior to April 1, 1964, Respondent had begun
a program of modernization which involved , among other things, the elimination of
jackhammer drills requiring compressed air at the quarry and the employees operat-
ing those drills. A machine to serve the same function more efficiently and without
using compressed air is called a drop ball machine . Two drop ball machines were
purchased and, by the end of 1963 or early 1964 , were put into operation. Thus
compressed air to run jackhammer drills was no longer needed after that. One
compressor has been sold and one is under option to be sold. Thus I find that
Respondent expended about $100 ,000 to purchase drop ball machines in order to
replace the jackhammers requiring the use of compressed air. Since this program
was initiated long prior to the advent of the Union , Respondent was not required to
bargain about the final phase of it ; i e., the elimination of the air compressor machines.
This, of course , disposes of only the air compressor aspect of this segment of the case.
But I am further of the opinion , and find, that on the evidence before me
Respondent 's unilateral elimination of the canteen and its operation by a subcon-
tractor who installed coin operated vending machines in its place does not transgress
Section 8 ( a) (5) of the Act . Initially I find that the canteen was "antique " and was
replaced by modernized vending machines . Although generally subcontracting
requires bargaining thereon before it can be accomplished (Fibreboard Paper Prod-
THE WESTON AND BROOKER COMPANY 765
ucts Corp. v. N.L.R.B., 379 U.S. 203, the Board has held that some subcontracting
may be engaged in unilaterally with impunity. Westinghouse Electric Corporation
(Mansfield Plant), 150 NLRB 1574 and cases there cited; Superior Coach Corpora-
tion, 151 NLRB 188; The Fafnir Bearing Company, 151 NLRB 332. I find that the
subcontracting of the canteen was consummated in good faith and that it was moti-
conclude and find that no violation of Section 8(a) (5) has been disclosed under all
the circumstances. General Motors Corporation, Buick-Oldsmobile-Pontiac Assem-
bly Division, 149 NLRB 396; Shell Oil Co., 149 NLRB 283, 149 NLRB 305; Ameri-
can Oil Company, 151 NLRB 421.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent found to constitute unfair labor practices, as set forth
in section III, above, occurring in connection iwth its operations described in section
I, above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor practices
proscribed by Section 8(a)(1) and (5) of the Act, it will be recommended that it
cease and desist therefrom and that it take specific affirmative action, as set forth
below, designed to effectuate the policies of the Act. While such violations do not
go "to the heart of the Act," as in N L R B. v. Entwistle Mfg. Co., 120 F. 2d 532,
536 (C.A. 4), they nevertheless are not sporadic or isolated. Hence I find that it
may reasonably be anticipated that such conduct is likely to recur. Accordingly, I
find an order restraining the same or related conduct in the future is warranted on
the record before me.
Upon the basis of the foregoing findings of fact, and of the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. United Stone and Allied Products Workers of America, AFL-CIO, CLC, is a
labor organization within the meaning of Sections 2(5) and 8(a) of the Act.
2. Respondent is an employer within the meaning of Sections 2(2) and 8(a), and
is engaged in commerce as defined in Section 2(6) and (7) of the Act.
3. All production and maintenance workers at Respondent's Cayce, South Caro-
lina, plant, including weighmasters and screening leadmen, but excluding office
clerical employees , professional employees , guards, and supervisory employees as
defined in the Act, constitute a unit appropriate for purposes of collective bargaining
within the meaning of Section 8(a) (5) and 9(a) of the Act.
4. United Stone and Allied Products Workers of America, AFL-CIO, CLC, was
on March 20, 1964, and at all material times thereafter, the exclusive bargaining
representatives of all the employees in the aforesaid appropriate unit for purposes
of collective bargaining within the meaning of Sections 8(a) (5) and 9(a)of the Act.
5. Respondent has engaged in unfair labor practices within the contemplation of
Section 8(a)(1) of the Act by (a) threatening employees with loss of existing
benefits, reduction of hours, and elimination of overtime, if they designated the
Union as the collective-bargaining representative, (b) threatening to eliminate lon-
gevity or loyalty pay because employees selected the Union as their collective-bargain-
ing agent, (c) instructing an employee to vote against the Union or suffer economic
loss, (d) unlawfully engaging in surveillance of union meetings, (e) coercively
interrogating employees about their and other employees' union membership, sym-
pathies, desires, and activities, and (f) informing employees they are ringleaders of
the Union.
6. By unilaterally (a) decreasing and later increasing the work hours of employees,
and (b) granting merit wage increases to employees, Respondent has refused to
bargain collectively within the meaning of Section 8(a)(5) of the Act.
7. Said unfair labor practices are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
8. Respondent has not engaged in any other unfair labor practices alleged in the
complaint.
[Recommended Order omitted from publication.]