William L. Bonnell Co., Inc.

National Labor Relations Board - Board Decisions

Mar 11, 1968

170 N.L.R.B. 204 (N.L.R.B. 1968)

204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William L. Bonnell Co., Inc. and International
Union of District 50, United Mine Workers of
America. Cases 10-CA-6866 and 10-CA-6926
March 11, 1968
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND ZAGORIA
On November 15, 1967, Trial Examiner Robert
Cohn issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged 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 affirm-
ative action, as set forth in the attached Trial Ex-
aminer's Decision. The Trial Examiner also found
that the Respondent had not engaged in certain
other unfair labor practices. Thereafter, the
Respondent and the General Counsel filed excep-
tions to the Trial Examiner's Decision and support-
ing briefs. The Respondent also filed an answering
brief to the General Counsel's exceptions and brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions, the briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions,' and recommendations only
to the extent they are consistent herewith.
1. We do not agree that Supervisor Robertson's
reference to a 10-cent-per-hour wage increase dur-
ing a meeting with five predrill department em-
ployees constituted a violation of Section 8(a)(1).
At the beginning of the meeting Robertson noted
the existence of union activity and asked what the
employee complaints were. The Trial Examiner ap-
parently relied on the fact that the stated increase
was in excess of that which was previously an-
nounced. There is no support for such a conclusion
in the record. Some two weeks prior to the meeting
in question Respondent posted a notice on its bul-
letin board which stated that, effective March 6,
1967, "practically all job rates will be increased.
These adjustments will be made to the top of the rate
and individual increases will be made on a merit basis
.... To find- out exactly how you will be affected,
check with your immediate supervisor."2 Each of
the predrill employees received a 5-cent increase
on March 6, and an additional 5 cents about a
month later. The General Counsel urged that
Robertson's remarks were a promise of benefit in
the context of an antiunion speech. In view of the
nature of the February 23 announcement of a wage
increase, not itself attacked as a violation of the
statute, and taking into account the circumstances
of the meeting, we do not believe Robertson's
reference to a 10-cent increase reasonably had the
effect of impressing employees that a bargaining
agent was unnecessary as the Trial Examiner found,
and thereby interfered with the employees' freedom
of choice as to their bargaining agent.
2. The Trial Examiner found that Foreman
Hinesley's remark to employee Smith that he had
heard that Smith had turned his name in to the
Union, a fact admitted by Smith, created an impres-
sion of surveillance and carried with it an implied
threat of recrimination and retaliation. We do not
agree. The record shows that knowledge of Smith's
action in turing in Hinesley's name was widespread.
Smith made no effort to hide the truth of 'the matter
when confronted by the foreman and testified that
he had no fear of talking about the Union with
Hinesley and had done so many times before. In-
deed, soon thereafter, Smith requested and
received the return of a letter of withdrawal-from
the Union which he had turned in to the Company.
Moreover, the remark, in its context, appears to be
consistent with a sense of personal pique on the
part of Hinesley and did not carry with it any over-
tones of "employer omniscience" or threat of
reprisal. We therefore reverse the Trial Examiner's
finding with respect to this incident.
3. Contrary to the Trial Examiner, we do not be-
lieve that the unfair labor practices found herein,
considered against the background of the Respon-
dent's prior unfair labor practices, are so ag-
gravated as to warrant unusual remedial action.
Nor is there any evidence that the Union has ex-
perienced any problem of communication or per-
sonal access to the Respondent's employees. Ac-
cordingly, we shall delete from the Trial Examiner's
Recommended Order the provisions requiring that
copies of the Notice be mailed to each employee
and be read to assembled employees in the plant,
I Member Zagoria would find no violation in the statements of super-
visors;McWaters, Williams, and Kee to employees Brown and Richardson
concerning possible replacement in the event of a strike and possible action
which the Union might take
' Respondent's emphasis
WILLIAM L. BONNELL CO., INC. 205
and that the Union be granted access to Respon-
dent's bulletin boards for a 3-month period.
ORDER
United States of his right to full reinstatement upon
application in accordance with the Selective Ser-
vice Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, William L. Bonnell
Co., Inc., Newnan, Georgia, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, as
herein modified:
1. Paragraph 1(e) is deleted and succeeding
paragraphs 1(f), (g), and (h) are renumbered 1(e),
(f), and (g), respectively.
2. Add the following as paragraph 2(b), and
renumber the present paragraph 2(b) as 2(c):
"(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 Ser-
vice Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces."
3. Delete paragraph 2(c) and add the following
paragraph as 2(d): '
"(d) Post at Respondent's Newnan, Georgia,
plant copies of the attached notice marked "Ap-
pendix." Copies of said notice, on forms provided
by the Regional Director for Region 10, after being
duly signed by the Respondent's representative,
shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken to insure that said notices are not al-
tered, defaced, or covered by any other material."
4. Paragraph, 2(d) is deleted.
5. Add the following immediately below the
signature line of the Appendix attached to the Trial
Examiner's Decision:
Note: We will notify the above-named employee
if presently serving in the Armed Forces of the
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT COHN, Trial Examiner: This consolidated
proceeding, brought under Section 10(b) of the
National Labor Relations Act, as amended (herein
the Act), was heard at Newnan, Georgia, on 6 hear-
ing days commencing June 14, 1967,1 and closing
June 22, pursuant to due notice. The complaint in
Case 10-CA-6866 -was issued on May 2, pursuant
to an original charge filed on March 6, as sub-
sequently amended, by International Union of Dis-
trict 50, United Mine Workers of America (herein
the Union), against William L. Bonnell Company,
Inc. (herein the Respondent or Employer). The
complaint in Case 10-CA-6926 was issued May 8,
pursuant to a charge filed by the Union on April 19
(subsequently amended on May 5), against the
Respondent, concurrently with an order consolidat-
ing the two cases for hearing.
The complaints alleged, in substance, that the
Respondent engaged in unfair labor practices
proscribed by Section 8(a)(1) and (3) of the Act,
by various specified acts of interference, restraint,
and coercion, detailed herein, and by discriminat-
ing against three of its employees because of their
union membership and activities. The Respondent's
answer generally admitted the jurisdictional allega-
tions of the complaint, but denied engaging in any
unfair labor practices.
At the hearing, all parties were afforded full op-
portunity to introduce relevant testimony, to ex-
amine and cross-examine witnesses, and to argue
orally on the record. Oral argument was waived.
Helpful posthearing briefs have been received from
counsel for the General Counsel and for the
Respondent, which have been duly considered.
' All dates hereinafter refer to 1967 unless otherwise specified
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case' and from my
observation of the demeanor of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS3
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Setting of the Issues
At its Newnan, Georgia, plant, Respondent is en-
gaged in the manufacture and sale of aluminum ex-
trusions where it employs approximately 1,200 em-
ployees. It appears that in the summer of 1966, the
Union commenced organizational activities among
the employees which were countered by a cam-
paign of the Respondent to disabuse its employees
of the advantages of joining the Union. Pursuant to
charges of unfair labor practices filed by the Union
in August 1966, a hearing was held before a Trial
Examiner of the Board in November 1966. On
January 26, 1967, the Trial Examiner rendered a
decision in which he found that the Respondent
had engaged in conduct which interfered with,
restrained, and coerced the employees in the exer-
cise of their Section 7 rights, thereby violating,Sec-
tion 8(a)(1) of the Act. He also found that the
Respondent violated Section 8(a)(3) of the Act by
discriminating with respect to five of its, employees,
and recommended an appropriate remedial order.
On April 24, 1967, the Board affirmed the Trial Ex;
aminer's Decision and Recommended Order in all
essential respects.'
In an opening statement at the instant
proceedings, counsel for the General Counsel ad-
vised that the Respondent had refused to comply
with the Board's order in the previous case and that
the Board was therefore in the process of preparing
enforcement proceedings in the United States
Court of Appeals. Moreover, he asserted that-the
Respondent had continued to engage in unfair
labor, practices during the late winter and spring of
1967, which practices formed the basis of the
charges and complaints herein. Such conduct asser-
tedly included threats of reprisals against some em-
ployees for engaging in union activities ;arid
promises of benefits for refusing to engage in such
activities, all designed to discourage adherence to
the Union. Also involved are three instances of al-
leged discrimination against employees because of
their , union activities, Such continuing, unlawful
conduct on the part of the Respondent induced the
General Counsel to petition for injunctive relief
under Section 10(j) of the Act, hereinabove
referred to. Such proceeding was pending at the
time of the instant hearing,
The issues herein alleging violations of Section
8(a)(1) and (3) of the Act are almost totally of a
factual nature and almost all involve credibility
resolutions. This always difficult chore of a fact
finder is not rendered less so in the instant case. I
will only observe that in making such resolutions I
have carefully considered the demeanor of the wit-
nesses, "along with the consistency and inherent
probability of testimony" (Universal Camera Cor-
poration v. N.L.R.B., 340 U.S. 474, 496), in the
light of the degree of-interest of such witness in the
outcome of the proceeding.
In such context, I proceed to a consideration of
the evidence in this case as bearing upon:
B. The Alleged Independent Violations of Section
8(a)(1)
It should be noted at the outset that the Respon-
dent does not deny its determined opposition to the
organization of its employees by the Union. It
staunchly maintains, however, that such opposition
has been kept within lawful bounds, i.e., -within the
prescription of Section 8(c) of the Act, and has so
instructed its officers and supervisors. The question
remains, of course, whether such agents have ad-
hered to these directions or, whether they have
stepped over the boundary into unlawful territory,
as contended by the General Counsel.
1. Alleged coercive interrogation and solicitation
of employees to withdraw from the Union
(a) It appears that commencing in January and
February, a number of employees commenced
wearing union buttons upon their clothing while at
work in the plant, and that this evoked certain re-
marks and comments by supervisory personnel.
Thus, employee Samuel Rosser testified that on or
about March 15, he was stopped at the water foun-
tain by Benny Carroll, foreman in the buffing de-
partment, and asked where his button was. When
Rosser inquired what kind of button, Carroll
responded, "you know, the kind of button that your
2 At the close of the hearing, Respondent moved to include in the record
herein, any forthcoming decision of the United States District Court before
whom a petition for injunction against the Respondent, under Section 10(j)
of the Act, was then pending I denied the motion at that time lam advised
by Respondent's brief that the injunction proceeding was not further pur-
sued because of a stipulation reached among the parties on June 28
Moreover, Respondent, in its brief, moved to include the said stipulation in
the record herein, but failed to submit the stipulation In any event, I per-
ceive no useful purpose would be served thereby, accordingly, the motion
is hereby denied
[Errors in the transcript have been noted and corrected I
'There is no issue as to the Board's jurisdiction or the laborcsrganization
The complaint alleges sufficient facts, which are admitted by answer, upon
which I may, and do hereby, find that the Respondent is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act, and that the
Union involved is a labor organization within the meaning of Section 2(5)
of the Act The Board asserted jurisdiction over the same plant as is in-
volved herein in William L Bonnell Co, Inc, 164 NLRB 110, of which offi-
cial notice is taken
' 164 NLRB 110
WILLIAM L. BONNELL CO., INC. 207
buddy, Willie Lynch, wears." Carroll proceeded to
state that -Rosser should tell his friends that if
they signed a union card they were signing away or
giving up their rights and that he should go around
and tell them that they could withdraw. He further
suggested that Rosser could secure a "paper cup
and get them to sign."5
Carroll, recalling the incident, testified that
Rosser stepped out from the water cooler while
Lynch was hopping back to his work station (he
had a foot ailment), and Carroll said, "Ain't that a
shame." Rosser stated, "I'm not messing with
nothing like that," to which Carroll responded, "I
don't blame you. I wouldn't either." Carroll con-
tended that when he stated, "Ain't that a shame,"
he was referring to Willie Lynch's foot condition,
but Carroll was unable to satisfactorily explain his
admitted statement that, "I don't blame you, I
wouldn't either." Under all the circumstances, I
credit Rosser and find the conversation occurred
substantially as he testified.
(b) Isaiah Prather, an employee in the extrusion
department, testified that as he was leaving to go
home one night, the foreman, Ernest Allred, asked
him if he had joined the Union. Upon receiving a
negative reply, Allred told him that he had better
not join. Prather turned and walked away. Allred
recalled a conversation about the Union with
Prather around the first of March, but averred that
it was Prather who first came to him and stated that
he had joined the Union and that he wanted Allred
to be the first to know about it. Further, according
to Allred, Prather wanted to know if he would be
fired for this and Allred replied, "No," that 'that
was his business. After careful consideration, I
credit Prather's version of the conversation. He im-
pressed me as an honest witness, and I find it highly
unlikely in the light of the Company's admitted an-
tiunion policy, which was known throughout the
plant, that an unsophisticated employee like
Prather would voluntarily go to his foreman and ad-
vise him that he had joined the Union in the
manner testified to by Allred.'
(c) Chester McClain, an employee in the com-
mercial fabrication department, testified that some-
time in March, he signed a union card and wore a
union button for a day and a half in the plant.
Shortly thereafter he had a conversation concern-
ing the Union with his supervisor, James Singleton,
in his office at the latter's request. Singleton com-
menced the conversation by talking about unions
and strikes, and about losses which were incurred
as a result . He apparently did not inquire directly-of
McClain whether the latter had signed a card, but
McClain volunteered the information, and told
Singleton how the card appeared, and when and
where he had signed it. McClain then asked
Singleton "... was there any way out of it (the
Union) Singleton said that he did not know but
that he would call someone and let McClain know.
McClain returned to Singleton's office after lunch
that day and Singleton advised that McClain could
"sign an affidavit to withdraw [ his] name from the
union card." However, Singleton further advised
that " it can 't be on your work time. It has to be on
your own time with your own pencil and your own
piece of paper." That night, at his house, McClain
wrote out a withdrawal affidavit but did not turn it
in to anyone, and eventually threw it away.'
(d) On or about March 1, employee Jett Smith
wore a union button to work for the first time. On
that day his foreman, Joe Hinesley, went to Smith's
work station and told him that he had better take
the button off "before the wrong one saw him."
However, Smith did not take it off, and a few
minutes later Hinesley came over and asked to bor-
row the button. Smith removed the button and gave
it to Hinesley.
About a week later, Smith was handing out union
cards to employees in the Respondent's parking lot,
and the next day Hinesley said that he had better
quit doing that "before the wrong one saw him."
On or about April 5, Smith signed a statement in-
dicating his desire to withdraw from the Union
(General Counsel's Exhibit 3). The way this came
about, according to Smith, was that he asked
Hinesley one morning whether the latter had heard
the radio program about the Union. Hinesley,
without answering directly, asked him what he
thought about the Union. Smith responded as fol-
lows:
A. I told him what I thought about it, told
him I thought it was-wasn't a good thing-
didn't think it was a good thing-there were
putting a lot of bull in people's heads, and then
he told me how to get out.
I asked him how, and then he told me-he
laid a pencil up on the desk , and I got the pen-
cil, and then he told me to get a piece of paper
out of the drawer. I got the piece of paper out,
and he told me what to write, and I wrote.
Q. What did you write, Mr. Smith?
A. I wish to withdraw my obligations-my
card from the United Mine Workers of Amer-
ica District 50.
' The record reflects that paper cups are provided at the drinking foun-
tains at the plant
E The Respondent sought to further impeach Prather by bringing out cer-
tain evidence concerning his violent nature in relation to his personal life
However, this does not persuade me that Prather fabricated the subject
matter of his conversation with Allred
' Although Singleton was called as a witness by the Respondent, he was
not interrogated as to the foregoing conversation with McClain, possibly
because the Respondent did not consider McClain's testimony to con-
stitute a violation of Section 8(a)( 1). 1 am inclined to agree, since it ap-
pears on the face of McClain's testimony that Singleton did not directly in-
terrogate him concerning his union activities and it was McClain-not
Singleton-who originated the subject matter of withdrawal from the
Union In that regard, it is clear that Singleton took no part in the process
other than to advise the employee what , in Singleton's opinion, was neces-
sary to effectuate the withdrawal.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith then handed the paper to Hinesley who said
that he had `done the right thing."
Hinesley denied providing the impetus or materi-
al for Smith 's withdrawal from the Union, as well as
the other statements attributed to him by Smith. He
stated that Smith received the information on how
to get out of the Union from a fellow operator,
James Walden; that although Smith thereafter gave
Hinesley the slip of paper, the latter did not read it,
but merely passed it on -to his boss, a Mr. Wil-
lingham.' I do not credit these denials. In addition
to demeanor considerations, I deem it highly un-
likely that Hinesley would have received the
withdrawal slip from Smith without bothering to
read it before he handed it in to his superior.
(Hinesley testified that he knew it was a withdrawal
slip because James Walden had told him; yet, as
previously noted, Walden was not called to cor-
roborate this point, and it therefore stands as
heresay.)
(e) Employee Wiley Pike testified that during
March or the first part of April, his foreman,
Wayne Dingler, came to his work station and said,
"Wiley, what- did y'all do at that meeting last
night?" Pike stated that he did not go to the meet-
ing. Dingier responded in a manner indicating
disbelief, and walked off before Pike could explain
that-he did not get off work in time.
Although there was in fact a union meeting the
previous evening, Pike candidly conceded that Din-
gier did not use the word "union" in his statement,
but that it was Pike's assumption that it was the
union meeting to which Dingier was referring. I am
not persuaded by the General Counsel's argument
that "it is only that meeting to which Dingier could
have been referring,"9 and find that General Coun-
sel did not prove unlawful interrogation concerning
union activities by this question of Dingier.
However, Pike testified that, during this same
period of time, Dingler came to his work station
and started talking to him about withdrawing from
the Union. Dingier said that Pike could withdraw
from the Union, if he wanted to, by putting his
name on a piece of paper saying so. Pike asked
' Neither Walden nor Willingham were called as witnesses.
" General Counsel's brief page 23
"In the previous proceeding involving this Respondent (164 NLRB
110), the Board found that five of the Respondent 's employees had been
discharged in violation of the Act, and issued the usual reinstatement and
backpay order
" The foregoing findings are based upon the credited testimony of Pike
who impressed me as an honest and forthright witness Dingier was nervous
and shifty on the witness stand and did not so impress me, his denials of
statements attributed to him by Pike are not credited
At the hearing, General Counsel elicited testimony from Pike , employee
J. W Counts, and Dingier as to the circumstances surrounding an incident
in June in which Dingier assertedly threatened Pike for making the charges
against him , i e , the testimony of Pike heretofore set forth concerning the
events in March and April At the close of the hearing , General Counsel
moved to amend the complaint to allege Dingler 's threat of physical
violence as a violation of the Act Respondent strenuously objected on the
ground that it was new matter upon which Respondent had no notice or op-
Dingler what effect it would have, and the latter
replied that the Company would then take the
piece of paper and give it , to the ``Relations - Board"
who would' request his, card back -from the Union,
and that, further, if Pike did that, "there- would be
other. people," Pike stated that "there's nobody in
here that can prove that I have signed a card," and
Dingier responded, "I know everybody in this de-
partment that has signed the card." A few minutes
later Dingier came back to Pike and asked him did
he have any names for him; that is, names of people
that wanted to withdraw from the Union. Pike
responded that he did not.
On another occasion during this period, Dingier
called Pike into his office and talked to him for
about 1 hour and 45 minutes concerning the Union.
During this discussion, Dingier advised that the
Company had sought review of the previous Board
proceeding, hereinabove referred to, and that it
might take "2, 3, 4 or 5 years-the Company's not
going to let them boys come back to work." ° Din-1
gler also referred to the union representatives as a
"bunch of crooks" and that they could fine him any
where from "five to several thousand dollars for not
attending a union meeting ." As the discussion was
breaking up, Dingier told Pike that if he saw any=
one who wanted to withdraw from the Union, "to
tell them to put their name ddwn on a white piece
of paper saying they want to, withdraw from the
Union [and that] if you don't know how to do it,
send them to Charles Carmichael. He does."
(Charles Carmichael is referred to as -a "head
racker," a nonsupervisory position with the Com-
pany.)11 -
Concluding Findings as to Interrogation and
Solicitation
On the basis of the foregoing testimony of
General Counsel's- witnesses whom I have credited,
I find, in agreement with the contentions of the
General Counsel, that the Respondent has inter-
fered with, restrained, and coerced its employees in
portunity to defend ; that had Respondent been so advised , it would have
engaged in a more thorough investigation of the incident and attempted to
seek out other witnesses thereto Upon being advised by the General Coun-
sel that he had knowledge of the incident prior to the hearing, I denied the
motion upon the ground that although the matter was litigated to some ek-
tent , the General Counsel should have made the motion reasonably soon
after he learned of the incident and not waited until the close of the hear-
ing, which lasted almost 2 weeks General Counsel , in his brief, renews the
motion and requests the Trial Examiner to reconsider and reverse his rul-
ing I decline to do so Although I'm aware of the rules and of the general
practice of allowing liberality respecting motions to amend complaints, I
believe that it is more in accord with good pleading practice, fair play, and
due process to advise a respondent of the charges against him as reasonably
soon after they are ascertained ( if-ascertained subsequent to the issuance
of a complaint ) as possible Moreover this is a new violation not covered in
the complaints herein (cf. New England Web, Inc , 135 NLRB 1019, 1023 )
In any event , the broad order which I will recommend herein will amply
protect against any recurrence of such threats.
WILLIAM L. BONNELL CO., INC. 209
the rights guaranteed under Section 7 of the Act, in
violation of Section 8(a)(1) of the Act, by coer-
cively interrogating them concernm their union
and concerted activities and by soliciting them to
withdraw from the Union.12 Thus, such questioning
of them concerning their attendance at union
meetings, whether they had joined the Union or
signed a union card, and the like, sometimes in the
sanctum of a supervisor's office, conducted in a
background of employer hostility and intimidation
without legitimate purpose or assurance against
reprisals, has been consistently held to be a viola-
tion of Section 8(a)(1) of the Act.13 Likewise, the
solicitation of withdrawals, sometimes assisted by
supervisors to the extent of supplying paper, pencil,
and language to be utilized, clearly constitutes
more than "mere ministerial aid. "14 Finally, I find
and conclude that Hinesley's statement to em-
ployee Smith that the latter had better cease engag-
ing in union activities "before the wrong one saw
him," constituted, in the circumstances, an implied
threat of reprisal violative of Section 8(a)(1) of the
Act.15
2. The alleged creation of the impression of
surveillance of union activities
It is alleged that Section 8(a)(1) of the Act was
violated by Foreman Dingler's remarks to employee
Pike that the former knew everyone in his depart-
ment who had signed a union card. I agree that
such statement, occurring in the context of the Em-
ployer's conceded antipathy to the Union and the
other unfair labor practices extant, as found herein,
constituted a violation of that section. '6
Employee Jett Smith testified that on the occa-,
Sion when he handed the union withdrawal slip to
Foreman Hinesley, the latter remarked that he was
aware that Smith had reported to the Union the
prior conversations between them relating to
removal of Smith's union button (described in a
previous section of this Decision). Smith also
testified that when Supervisor Willingham sub-
sequently returned the withdrawal notice to Smith,
Willingham also noted that he (Willingham) was
aware that Smith had made a statement concerning
Hinesley.
Hinesley conceded that he had "heard through
the plant" that Smith had turned (his) name in to
the Union, and that on one occasion, in the plant,
during a conversation among himself, employee
James Walden, and Smith, he (Hinesley) advised
Smith that he (Hinesley) had heard that "... some-
body turned my name in [to the Union]," and that
Smith admitted that he had done so.
I find that under the circumstances existing at the
Respondent's plant at that time, regarding the
union activities of its employees, such statements as
above described made by the Employer's super-
visors reasonably tended to impart to the em-
ployees a sense of employer omniscience concern-
ing such activities, and carried with them the im-
plied threat of recrimination and retaliation for so
engaging in such conduct. Thus, a creation of im-
pression of surveillance is made out under law,"
and I so conclude.18
3. Alleged threats of economic reprisal
(a) In addition to the threat of reprisal com-
mitted by Supervisor Hinesley to employee Jett
Smith, adverted to hereinabove, the complaint al-
leges that Press Foreman Powers Witcher so
threatened Respondent's employees on or about
March 11. Employee Roland Turner, a witness for
the General Counsel, testified that on one occasion
in May, Witcher approached him at his job and
stated that he (Witcher) had been talking to other
employees about the Union. Turner responded that
he would like to talk to Witcher about it, so they
had a conversation. As the conversation was draw-
ing to a close, Witcher stated, "Well, you know that
the Ethyl Corporation could just write this plant-
this place here off as a loss, just close it down. "19
Witcher conceded telling Turner that the Ethyl
Corporation would just "write this place off as a
loss," but stated that it came up during the conver-
sation in the context of a strike situation. Thus, he
stated that the question arose as to what would hap-
pen if the Union was in the plant and the plant went
°'- This, of course , excepts those instances where I specifically indicated
that the evidence , at best, did not measure up to a violation
1' Nett French Benzol Cleaners and Laundry , Inc., 139 NLRB 1176,
1177, NL RB v Cainco , 340 F 2d 803 (C A 5), enfg in pertinent part
140 NLRB 361 , cert denied 382 U S 926
11 See Movie Star , Inc, 145 NLRB 319, 320 , enfd 361 F .2d 346 (C.A
5), Southeastern Pipe Line Company , 103 NLRB 341 , 352-353, and cases
there cited The cases relied on in Respondent's brief ( Perkins Machine
Company, 141 NLRB 697 , and Thurston Motor Lines , Inc, 149 NLRB
1368) are factually distinguishable Respondent also relies heavily on the
Second Circuit 's opinion in Federation of Union Representatives v
N.L R B , 339 F 2d 126 However the court reversed the Board 's holding
on this point , and I am under a duty to apply the Board 's views until it in-
dicates an acquiescence in the contrary views of a circuit court of appeals
or until the Supreme Court of the United States has ruled otherwise (lowa
Beef Packers , Inc., 144 NLRB 615, 616).
15 General Counsel urges that I find an additional instance of coercive in-
terrogation and threat based upon the testimony of employee James Vin-
son as to conversations he assertedly had with his supervisor,-James Nelms
However, without detailing these interviews, I may state that I found Vin-
son to be an unreliable witness based upon his demeanor on the stand as
well as contradictions in his testimony, while, on the other hand, Nelms im-
pressed me as a trustworthy witness Accordingly, I credit the testimony of
Nelms and find that no violation of the Act occurred as a result of these
conversations and will recommend that the complaint be dismissed as to
them
iS See, e g , Hendrix Manufacturing Company, Inc v N L R.B , 321 F 2d
100 (C A 5), at fn 7, enfg. 139 NLRB 397, Rosen Sanitary Wiping Cloth
Co, Inc, 154 NLRB 1185, 1188
11 See cases cited in previous footnote
1" No finding of violation is intended as respects the statement of Wil-
lingham since it was not so alleged in either complaint, and, as previously
noted, Willingham was not called as a witness.
19 The Respondent is a subsidiary of the Ethyl Corporation
359-999 0 - 71 - 15
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on strike. Witcher responded that "I answered that
if we had a prolonged strike, couldn't produce the
metals, we'd lose our customers. We'd have no
business as a result of that. I didn't see any other
choice that Ethyl would have but just to write the
Company off if we could not produce. We would be
of no value to the Ethyl Corporation."
Witcher impressed me as a honest and forthright
witness and I credit his testimony. Considering the
qualifications and context in which Witcher uttered
the offensive language, I agree with Respondent
that Witcher's statement constituted merely his
opinion of possible economic consequences which
might ensue from a prolonged strike situation and
therefore was not coercive and was protected by
the provisions of Section 8(c) of the Act.2o
(b) Employee Dudley Hogan testified that dur-
ing a luncheon conversation in April at the plant,
he was sitting at a table with Supervisors Joe
Hinesley, Hudon Smith, and Ed Traylor. The super-
visors were discussing a meeting which they had the
previous night and Traylor opined that he did not
realize how large the Ethyl Corporation was. He
continued, stating that "it was his personal belief
that if the Union came in out there that they would
close the plant down and mark it off as a loss on
their income tax and all." Hogan retorted that "the
Ethyl Corporation is a big outfit, but they didn't get
big by closing $18,000,000 plants down." General
Counsel's witness, Bobby Lee Wilson, an employee,
was also present at the time and testified that
Traylor said, "It's my belief about it-nobody told
me anything-my belief about it, if the Union
comes in, that I believe they'll shut down the
plant."
Traylor, recalling the incident, stated that the
subject of the Union was being discussed when he
sat down; that they were talking about what would
happen if the Union came in, would the plant shut
down if it was struck, and he said, to his knowledge,
it probably would.
As in the previous situation regarding Supervisor
Witcher, it appears that Traylor's statement made
on this occasion reflected his personal opinion as to
the possible or probable consequences of a strike,
and I find this to be noncoercive and protected by
the provisions of Section 8(c) of the Act.
(c) About the middle of April, there was a meet-
ing between employees Edward Brown and Buell
Richardson called by Supervisors Frank McWaters,
Herbie Williams, and Tom Kee in the latter's of-
fice 21 There is no question but that, from a synthe-
sis of all the participants' testimony, the supervisors
sought to give a bad impression of the Union to the
employees. Thus, they told them that if the Union
came into the plant and went on strike, the Com-
pany could hire employees to replace them; that if
they sought to withdraw from the Union, they (the
union leaders) would harass their families and
"beat our wives up," and that the Union could fine
them anywhere from $1,000 to $25,000. The meet-;
ing concluded with the supervisors telling the em-
ployees that they had ". . . better think about it be-
fore [they] went too far."22
I find and conclude, in agreement with the
General Counsel, that the statements made by the
supervisors in the foregoing discussion measured up
to interference, restraint, and coercion within the
meaning of Section 8(a)(1) of the Act. Certainly
their predictions of the dire economic and physical
consequences which would befall the employees if
they chose the Union to represent them, taken with
the implied threat at the close of the meeting that
the employees had ". . . better think about it before
[they] went too far . . . ," constituted interference
with the employees' right of free choice as respects
union representation. The instant situation seems
appropriate to the Board's language in a recent
case23 where it was found that:
... the Respondent intended to instill in the
employees a sense of fear that unionization
would bring on strikes, beatings, and other acts
of violence, possibly towards the employees
personally, by the Union, and a loss of jobs.
The fact that the Employer attributed such
consequences to the Union, rather than to its
own acts, does not make the Respondent's acts
lawful, since it is clear that the dire con-
sequences the Respondent describes could
only be brought to fruition by the employees
themselves in accepting the Union as their
representative.
4. The alleged promise of a wage increase
The complaint alleges that the Respondent, by its
Supervisor Leroy Robertson (inadvertantly mis-
spelled Robinson in the complaint), on or about
March 8, promised its employees a wage increase if
they would reject the Union. It is undisputed that
on February 23 the Respondent posted a notice on
its bulletin board which stated that, effective March
6, "practically all job rates will be increased. These
adjustments will be made to the top of the rate and
individual increases will be made on a merit basis. "24
L' Cf Laar3 Engineers, Inc, 142 NLRB 1341, and Poray, Inc , 143 NLRB
617, 620, affd sub nom Metal Processors Union Local No.l6 v. N L.R B ,
337 F 2d 114 (C A D C.), Mayfair Midirest, Inc., 148 NLRB 1602
21 The meeting was called, according to the testimony of Kee, because
Brown had some questions concerning the Union and wanted to discuss it
22 The foregoing findings are based upon the credited testimony of
Brown which is, in essence , corroborated by Richardson Brown also
testified that the supervisors stated that the Respondent could fire em-
ployees if they went on strike However, the general tenor of all the super-
visors' statements in the record as respects job tenure during a strike
reflects that they adhered pretty carefully to their instructions of dif-
ferentiating between discharging ( employees) and replacing them in a
stoke situation Accordingly, and in the absence of corroboration of this
point by Richardson, I am inclined to believe that Brown did not recognize
this subtle distinction, and that this was not stated in these terms by the su-
pervisors -
13 General Automation Manufacturing, Incorporated, 167 NLRB 502
11 See Respondent's Exhibit 17
WILLIAM L. BONNELL CO., INC.
The General Counsel does not attack the grant-
ing of a wage increase as a violation of the statute.
However, on or about March 3, Supervisor Robert-
son called into his office five employees, two of
whom (Reba Wilson and Geraldine Hogan) were
wearing union buttons. Robertson noted that there
was union activity in the predrill department (from
whence the employees were drawn), and stated that
he wanted to talk and see what the gripes or com-
plaints were and get the matter straightened out if
he could. He asked Wilson if she had any com-
plaints against her foreman or against him per-
sonally. She responded in the negative, ccmmenting
that her complaint was more general than that, and
had to do with the way the Company was treating
the employees. Robertson commenced talking
about improvements that could be made such as
cleaning up the plant and noted that the employees
were being given a 10-cent increase in pay which
would affect everybody in the predrill department.
In fact, the employees did not receive a 10-cent
increase on March 6 (they received only 5 cents)
and, consequently, all five went to see Robertson
about it. He denied stating that he had made such a
promise on an across-the-board basis, but con-
tended that he had put it on a merit basis, referring
to the language in the notice. In any event, the issue
raised by this sequence of events is a narrow one:
that is, whether the reference to the 10-cent-per-
hour wage increase at the first meeting constituted
a violation of the Act.
The Respondent , in its brief, concedes that
"Robertson met with five predrill employees con-
cerning the wage increase notice and told them that
the amount would be 10 cents," but argues that "it
[Respondent] has a right to express its opposition
to unionization of its employees and in doing so to
ascertain what, if any, dissatisfaction employees
may have with their conditions of employment."
General Counsel argues that the supervisor
promised,the employees a 10-cent-an-hour raise "in
the context of an antiunion speech ...."
An employer doubtless has the right, during a
union organizational campaign, to attempt to ascer-
tain, in a, noncoercive manner, any gripes or com-
plaints his employees may have. But it does not fol-
low, of course, that in making such inquiry, he can
make a promise of benefits for the purpose of
deterring union activities. The question, however, is
not one of the employer's motive or whether the al-
leged promise succeeded or failed. "The test is
whether the employer engaged in conduct which, it
may reasonably be said, tends to interfere with the
free exercise of employee rights under the Act."25
^, American Freightways Co , Inc, 124 NLRB 146, 147, see also Hendrix
Manufacturing Company v N L R.B , 321 F 2d 109 (C A 5)
' N L R.B V. Fishman, Morris, and Sons, Inc, 278 F 2d 792, 796 (C A
3). See also, to the same effect, the oft-quoted statement of Judge Learned
Hand in N.L R B v Federbush Company, Inc, 121 F 2d 954, 957 (C A 2)
Words are not pebbles in alien juxtaposition, they have only a commu-
nal existence , and not only does the meaning of each interpenetrate
211
Any determination of this nature can be made
"only with due regard for the context of the state-
ments, the characters and economic positions of
those who heard it, and the relationships existing
between a company and its employees. "2
Applying the foregoing principles to the case at
bar, Robertson's reference to a 10-cent-per-hour
wage increase was made in the context of a meeting
called by him for the conceded purpose of deter-
mining what the employees' gripes were and seeing
what the Company could do about them. It is readi-
ly apparent that such reference, which admittedly
exceeded any increment in wages provided for in
the posted notice, would reasonably and probably
have the natural effect on the employees that the
employer would take care of their wages without
the necessity of intervention by a bargaining agent.
It thereby interfered with, restrained, and coerced
them in their freedom to make this choice, and, ac-
cordingly, constituted a violation of Section
8(a)(1) of the Act.
5. The request to attend and report on union
meetings
Ed Brown , an employee of the Company for ap-
proximately 8 years, worked in the anodizing de-
partment under the supervision of Herbie Williams.
On or about March 1, he was called into the office
by Williams who first inquired what Brown thought
about the Union . Brown responded that he did not
know. Whereupon , Wlliams requested that he "go
down to the meeting; see what you can find out and
come back and tell me ." Brown did not know
where the union meeting was going to be held, and,
consequently , asked Williams . The latter replied
that it was going to be "over in the Negro project
house." Brown complied with Williams' request,
went to the meeting and reported back to him the
following day . Williams inquired how many em-
ployees were there and if anyone was from the trim
division . Brown responded that there were about 30
there but no one from that division.
Williams denied requesting Brown to attend the
meeting and report . He stated that one day_ during
this period Brown stopped , him in the aisle and
volunteered the information that he was going to a
union meeting and he wanted to come down to Wil-
liams' house and talk about it on Sunday. However,
he did not come to the house that day, but abut a
week later , according to Williams, grown brought
up the subject in a conversation . He had some
figures concerning the Ethyl Corporation 's ^rofits
in 1965 and 1966 , which he showed to Williams.,
the other, but all in their aggregate take their pntpott from tie 46ftmg
in which they are used, of which the relation befWebti titespeaker sisd
the hearer is perhaps the most important part. w'iiat )o an out iGizr wilt
be no more than the vigorous presentatioriof a convicfidh, to, ai e&-
ployee may be the manifestation of a determination which it ^not safe
to thwart
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Williams denied further interrogation of Brown as
to who attended the meeting or what transpired
there.
Respondent, in its brief, urging that I discredit
Brown's testimony, argues that it is "inconceivable"
that Williams, who knew Brown was a union sup-
porter, would nevertheless ask him to spy on a
union meeting . I do not agree , for it is by no means
clear on this record that, at the time of the conver-
sation (on or about March 1), Brown was an
acknowledged union supporter. Thus, his undenied
testimony is that he signed a union card on approxi-
mately March 10, and presumably commenced
wearing a union button thereafter.
Moreover, I find it highly unlikely that Brown,
knowing the Company's antipathy toward the
Union, would voluntarily advise Williams of his in-
tention to attend a union meeting. Finally, it also
seems improbable that, as Williams testified,
Brown's only report to him respecting the events of
the meeting had to do with the profits of the Ethyl
Corporation and did not relate to any other occur=
rences at the meeting.
Under all the circumstances, including the fact
that Brown impressed me as an honest and
forthright witness, I credit his testimony that the
conversations with Williams occurred substantially
as he stated. It is well established that such a
request to spy on a union meeting and report back
to management constitutes interference, restraint,
and coercion within the meaning of Section 8(a)(1)
of the Act.27 I so find.
C. The Alleged Violations of Section 8(a)(3)
1. Samuel Ware
The complaint alleges that on or about March
23, the Respondent gave its employee, Samuel
Ware, a 3-day layoff for discriminatory reasons.
The Respondent contends that the 3-day layoff was
meted out for cause. The facts leading up to the
layoff are not substantially in dispute.
Ware had been employed by the Respondent for
approximately 8 years, the last 2 years of which
(until the events immediately preceding the layoff),
he worked in a job classification called "floorman."
The duties of a floorman were generally to take
metal out of the buffing department, after it had
been buffed and finished, into other sections of the
plant such as predrill, anodizing, shipping, etc.
Ware joined the Union about the middle of
February and commenced wearing a union button
in the plant on or about February 27.28 It was on
that day that his foreman, Alfred Banks, returned
from his vacation. Banks noticed the big green but-
ton which Ware was wearing and asked what it
was 29 Ware replied that it was a union button.
Banks, having just returned to the plant from vaca-
tion that day, and averring that he did not know
there was a union in the plant, asked "What kind?"
to which Ware replied "Oh, this is more or less the
grandfather of the Union. This is the United Mine
Workers." Upon inquiry of Banks as to why Ware
was wearing the button, the latter replied that he
hoped it would get him a "little bit more money,
better working conditions, and things like that
there."
On the same date, February 27, Ware received a
warning slip (Respondent's Exhibit 5) for assertedly
"doing too much talking, loafing and wasting time,
off [the] job." This warning was given to him by
Foreman Banks upon the recommendation and ad-
vice of his superior, Trim Division Superintendent
Leroy Robertson, who had advised Banks that
Ware had been spending too much time ' off his job
and not keeping up with his work. Also at Robert-
son's suggestion, Ware was transferred from his
floorman job to the job of board loader. This latter
classification entails the loading of metal on the
boards to be buffed and to unload it on the buggies
to go out after buffing. It is restricted to a small
area in the buffing department. Ware worked at
this position until March 6, when he took a week's
vacation. On March 13, he returned to work and
was reassigned to his former job as floorman , asser-
tedly because there had been a reduction of person-
nel in the department due to lack of work. Ware
worked as a floorman until March 23, when he was
laid off for 3 days.
On March 21, Banks told Ware to gather every-
one in the department together for a meeting,
which he did. Banks spoke at the gathering, relating
a story concerning the Union's attempt to organize
a plant or sawmill in Alabama, and the fact that the
Union had filed charges against that company and
tried "to come in the back door." During the meet-
ing, an employee, John Watson asked of Banks
"What is a Union?" While Banks hesitated in
responding, Ware spoke up and gave what he
thought was the definition. Then Watson asked
another question: "What would happen if the Com-
pany should close down during contract negotia-
tions?" When Ware started to answer that question,
Banks interrupted stating, "Ware, if you know so
much about the Union, why don't you carry on the
rest of the meeting?" Banks then proceeded to
carry on the remainder of the meeting although, at
the end, he allowed Ware to answer Watson's
question.
See, a g.,Ken-Lee,Inc. v NLRB,325F2d435(CA 5),enfg 137
NLRB 1642.
z' There is some testimony by Respondent' s witnesses that Ware in fact
commenced wearing his union button prior to this date However, I do not
deem it necessary to resolve this particular conflict for the purpose of
disposing of the ultimate issue herein
29 Ware wore the green button attached to a red card which, apparently,
made it quite distinctive
' "A bunch of people gathered together for a good cause, more or less "
WILLIAM L. BONNELL CO., INC. 213
Later that day, about 2:30 p.m., Herbie Williams,
the assistant superintendent of the trim division,
testified that he noticed Ware outside of the buffing
department talking to some other employees. How-
ever, he did not mention it to anyone. The follow-
ing day, March 22, Williams testified that he
noticed the same situation occurring, and went into,
Superintendent Robertson's office and called
Foreman Banks. He told Banks that the second-
shift foreman had been complaining that "a lot of
the metal had been left in the department at shift
change. It should have been moved out. And I told
him that Mr. Ware was outside the department
talking and I said would he please put him on the
job." Banks then went to where Ware was standing
and called him back into the buffing department
and gave him a verbal reprimand, and told him to
pull the metal out that was finished.
Ware's version of the incident on March 22 is
slightly different, and I quote it below as he
testified:
A. Mr. Banks came out of the office while I
was talking to this employee, and he jumped
on me about-asked me, didn't I have anything
better to do than talk?
Q. Now, what precisely did he say, if you re-
call, Mr. Ware?
A. He said, "Ware, do you have anything
better to do besides stand around and talk?"
So, he told me to go to No. 4 buffer and take
a buggy of metal out.
TRIAL EXAMINER: Take what?
THE WITNESS: A buggy of metal out, but the
metal wasn't ready. It was not ready.
The following morning, Banks called Ware into
his office and gave him a 3-day layoff, the reason
for which being reduced to writing on an employee
report form (General Counsel's Exhibit 2), which is
set forth below:
THE WILLIAM L. BONNELL CO.
EMPLOYEE REPORT FORM
Date 3/23/67
Names of Employee Samuel Ware Dept. Buff
Clock No. 1077
Reason for Report Unfavorable comment.
Favorable Comment/or Violation of Company Rule
On 2/27/67 Sammie was given a written
warning about wasting time doing his job and
talking to too many people who were on their
job working . This warning stated he would be
given a 3 day lay off. [ sic] on next warning. On
3/22/67 he was out of Dept. 30 minutes before
quitting time talking to employees who were
reporting to work. He was also behind with his
work. He will be given a 3 day lay off and if his
work does not improve and that he stay on the
job [sic] he will be discharged.
Foreman's Signature /s/
A. F. Banks
When Ware returned to work following the 3-day
layoff, he was assigned back to his job as a board
loader in the buffing department.
Analysis and Concluding Findings as to Ware
There is, of course, no question of Ware's
preeminence in the union campaign' and the
Respondent's knowledge of it. Thus, the record is
replete with evidence that Ware wore his union
button prominently and conspicuously while at
work on February 27 until the layoff. The Respon-
dent's antipathy toward the union campaign is also
widely evidenced in the record.
I note that Ware had a relatively long tenure of
employment with the Company, and presumably
was a satisfactory employee. He had `held the job of
floorman for approximately 2 years prior to the
events in question, and, for aught the record shows,
had performed satisfactory service although Banks
did testify that he had given him oral reprimands
from time to time. The February 27 written report
was the first of its kind which Banks had given to
Ware during his tenure as a floorman. It is, of
course, possible that from February 27 until March
23, Ware changed his normal conduct from that of
a reasonably satisfactory employee to one who
started wasting an inordinate amount of time talk-
ing to other employees and neglecting his work.
However, the record does not support such a con-
clusion. The only evidence of such dereliction is
that noticed by Supervisor Williams on March 21,
of which no import was taken or report made to
Ware's supervisors, and, of course, the incident of
March 22. As to the events on that day, I credit
Ware who impressed me as an honest and
forthright witness, and find that the incident which
resulted in his layoff was of a most inconsequential
and innocuous character. Thus, he admittedly
stopped and talked to another employee for no
more than 2 minutes when he was directed by his
supervisor to go take a buggy of metal out of the
buffing department. However, when Ware at-
tempted to comply with this direction, he found
that the metal wasn't ready to be taken out. Ac-
cordingly, the evidence does not substantiate the
contention that Ware was neglecting his duties by
momentarily pausing to talk to a fellow employee.3
On the other hand, it is clear that Ware's conduct
at the antiunion meeting held by Banks on March
11 It is noted that employee Watson was not called as a witness
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
21, was annoying to Banks and resented by him.
Such conduct of Ware on this occasion placed him
prominently on the forefront of the union move-
ment in the buffing department. Considered in the
context of the Respondent's antipathy toward the
Union, I am convinced and find that but for such
prominence, Ware's minute dereliction of the fol-
lowing day would not have brought forth the layoff.
I therefore conclude that such layoff was in retalia-
tion for Ware's union activities and, as such, was
discriminatorily motivated in violation of Section
8(a)(3) of the Act.
2. The alleged discriminatory discharge of Jessie
Evans
This employee was hired by Respondent on
November 29, 1966, in the die repair department,
on the third shift. He was discharged on February
17, 1967, assertedly because of excessive absentee-
ism.
The record reflects that after Evans became em-
ployed, he worked only one night for the Respon-
dent when he became ill with the flu and did not re-
port for work on December 1. However, he re-
ported his illness to the Company and received an
excused absence (Respondent's Exhibit 23). He ap-
parently returned to work on December 2, was off
on the third and fourth of that month due to the
weekend, and failed to work on December 5, 6, and
7, due to a reoccurrence of the flu on those days.
Again, he reported his illness to the Company and
received excused absences for those days. (See
Respondent's Exhibits 24, 25, and 26.) He was ill
again on December 14, for which he also received
an excused absence (Respondent's Exhibit 27). On
January 28, he reported to the Respondent (by
calling the guard house which is normal procedure
under the circumstances), that he was unable to re-
port for work due to a malfunction of his automo-
bile, and stated that he would be in as soon as it
was repaired. His absence on this occasion, as well
as that on January 30, was recorded as unexcused
(Respondent's Exhibits 28 and 29).32
On January 31, Evans' foreman, Billy Burgess, is-
sued a written warning to Evans (Respondent's Ex-
hibit 31) which stated as follows:
I talked to this man about his absentees
tonight. He told me he didn't have a way to
work at the present time but had made ar-
rangements to ride with Grady Jones for, a
week until he could come in his car. This man
is doing good work but needs to improve his
absentee record.
"- General Foreman Hudson Smith explained the reasoning behind this
company policy. "We gave the man a job and it's his responsibility to be at
work on his regular shift "
" Rvans testified that he "passed out" three union cards during his em-
ployment at the Company However, there is no evidence that this conduct
The record reflects that Evans, in fact, rode to
work with Jones for 3 days following which, ap-
parently, he rode in his own, automobile. The, only
absence from work of Evans subsequent to the
aforesaid written warning occurred on February 11,,
at which time he was absent because he had to take
his baby to the doctor. This was recorded by the
Respondent as an excused absence. (Respondent's
Exhibit 30.)
Foreman Burgess testified that on the following
Tuesday, February 14, he conferred with his
general foreman, Hudson Smith, about Evans. He
told Smith that "this boy was having too many
absences and it was interfering with the work on
the third shift." Smith responded that he would
check the record and let Burgess know something.
The following Thursday, according to Burgess'
testimony, Smith told him to pull Evans' timecard.
Smith, corroborating Burgess, testified that after
Burgess spoke to him, he (Smith) talked with Per-
sonnel Director Petty and they checked Evans' per-
sonnel record. They discovered in Evans' personnel
folder reports from two other employers indicating
unsatisfactory attendance while Evans worked for
them. After seeing these reports, and considering
the absenteeism of Evans while working for the
Respondent, Smith testified that he then made the
decision to allow Evans to finish out the week and
then to discharge him. He so advised Burgess, and
the latter separated Evans on Friday, February 17.
With respect to Evans' union activities, he
credibly testified that, around the first of the year
he signed a union card and wore a union "badge,"
to work one night. On that occasion, his foreman,
Burgess, requested that he take the badge off, and
he did. He did not wear it again after that.33 Burgess
denied asking Evans to remove his union button; in-
deed, Burgess testified that he never saw Evans
wearing a union button. Nevertheless, for the pur-
poses of disposing of this issue, I will assume the
veracity of Evans' testimony.34
Analysis and Concluding Findings as to Evans
The burden of proving in any given case that the
motive for a discharge under Section 8(a)(3) of the
Act is to discourage or encourage union member-
ship is, of course, placed upon the General Coun-
sel. In this particular case, although some suspicion
is raised by the character of Respondent's defense
in .the light of its antiunion policies and conduct, I
do not believe, based upon a consideration of the
record as a whole, that the General Counsel has
sustained his burden. Thus, it appears that this em-
came to the attention of any agent of the Respondent
" Respondent produced as witnesses, several employees who had for-
merly worked with Evans, who testified that they never saw him wear a
union button However, this is readily understandable in view of the short
time that Evans admittedly wore the button
WILLIAM L. BONNELL CO., INC.
ployee, who had not completed his 90-day proba-
tionary period with Respondent , was absent for a
total of 8 days during the 78 days which he was on
Respondent's payroll. Although only two of such
absences were unexcused , the fact remains that
these facts, taken with Evans' history of employ-
ment with two other employers, make reasonable
on its face a defense that Respondent did not wish
to become saddled , at the outset of employment,
with one whose regular attendance , for whatever
reason, was uncertain .35 However , at one point in
the record , the Respondent 's position respecting
the reason for the discharge was "because of unex-
cused absences." For a probationary employee, the
Company's policy in this regard, as first explicated
by Superintendent Smith, is that "one unexcused
and not over two unexcused the man will be
separated for poor attendance." Since Evans did
not have but two unexcused absences during his
period of employment, it would seem that he would
be safe under the provisions of this rule. However,
later in his testimony, Smith seemed to qualify the
rule (which was apparently oral since no written
document containing the rule was ever produced),
by stating that in a case of a probationary employee
the number of excused absences was also taken into
consideration. In other words, his whole record of
attendance with the Company was considered.
Had General Counsel's affirmative case respect-
ing Evans been a stronger one, the foregoing vacil-
lations and qualifications of Respondent's defense
would attain greater import. However, Evans' union
activities were minimal, and the only incident
which came to Respondent's attention in this re-
gard was his wearing a union button in the plant on
one occasion. Moreover, this incident took place
approximately a month and a half prior to the
discharge. Furthermore, the record is replete with
evidence-some from General Counsel's wit-
nesses-that many employees wore union buttons
in the plant, with impunity. In short, there is
nothing that Evans did in this respect to make him
outstanding in a plant of some 1,200 employees.
Nor was it shown that a discharge of probationary
employees for absenteeism was unknown at the
Respondent's plant, the evidence indicating that
several employees had suffered that fate in the past.
Accordingly, as previously noted, I find insufficient
the evidence of discriminatory motivation under
"As stated on the record, I allowed into evidence over the objection of
General Counsel the testimony of Superintendent Smith concerning what
he observed in Evans' personnel folder respecting work at prior employers
simply as information which came to his attention upon which he assertedly
based a conclusion, and not for the truth of the matter asserted on the
document (Respondent's Exhibit 14 ) I have given this document little, if
any, weight in reaching a conclusion herein However, the Respondent
produced as a witness the other employer, one A H Richmond, who
testified that he discharged Evans for "laying out, not coming into work "
Evans denied that he was discharged from Richmond Electric Company,
stating that he had quit his employment there He further testified that he
was discharged at the other employer for refusing to work 7 days a week
215
Section 8(a)(3) of the Act and will recommend
that the complaint as to Evans be dismissed.
3. The alleged discriminatory discharge of James
Agan
This employee worked as a welder in the boat
window department. He had been employed by the
Respondent for approximately 4 years when he was
discharged on March 24, assertedly for insubor-
dination and defiance of authority directed toward
his supervisors , Foreman Marion Truitt, General
Foreman James Singleton , and Superintendent
Auston Barrows.
Although not paid on a piece-rate basis, welders
in the Company's employ were required to file daily
production reports. These reports reflected the
kind of materials worked on, and the number of
"welds" completed on such materials during the
workday. Sometimes the material would have
grease on it when it came to the welder, and the
welder would be required to clean the material be-
fore he commenced welding . He would so note this
on the production report . An instance of this nature
respecting Agan occurred on March 23.
On the morning of March 24, Foreman Truitt,
having noted that Agan's production record for the
past 2 days was substantially below normal, called
him into the office for the purpose of discussing the
matter with him.36 There is substantial variance in
the testimony of the two men as to what occurred
in the office that morning, they being the only two
present during the initial stages of the discussion.
Agan concedes that Truitt raised the question of his
production at the commencement of the interview.
However, at that point, according to Agan, he
asked Truitt what the production quotas were.
When Truitt did not answer, Agan stated that it
"must be all you can get," and told Truitt that that
was what he (Agan) was trying to do. Agan then
accused Truitt of being ". . . mad because I'm
union, and Ethel Pitts and Geneva Allen is [sic]
wearing their union badges, union buttons."37 At
that point, according to Agan, Truitt requested his
cooperation to which Agan replied, "No, I can't go
along with you." At this point, General Foreman
Singleton entered the room and stated to Truitt,
"You heared him. He said he was against us." Agan
Again , I will assume the veracity of Evans' testimony for the purpose of
resolving this particular issue
"The production records (Respondent's Exhibit 19) indicate that on
March 22, Agan produced 233 welds, and on March 23, he produced 296
welds For the 5 working days prior to March 22, the production records
reflect that Agan produced in excess of 500 welds daily
17 Agan conceded that he is the first one who mentioned the word Union
during the conversation (Truitt denied that "Union" was mentioned ) He
also conceded that, although he had signed a union card prior to his
discharge, he had never worn a union button in the plant Ethel Pitts and
Geneva Allen were two employees of the Respondent at the time
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conceded that he told Truitt and Singleton at that
point that he_ was in fact "going to work against
you," but the transcript is unclear as to whether he
added, at that point, that this was "because I was a
union man and I signed a card." -
At that juncture, Singleton told Truitt to keep
Agan in his office until he (Singleton) contacted
Personnel Director Petty. A few minutes later,
Singleton returned to the office with Superinten-
dent Barrows, who, according to Agan, advised him
that he would be discharged for not cooperating
with the Company.
Truitt's version of the interview is that after he
called Agan in the office, he pointed out the low
production and asked for an explanation. Agan
replied that he had done all he was able. Truitt
asked if there were any problems, to which Agan
replied that there were no more than usual. Truitt
then referred to another welder, Harris, whose
production was substantially higher than Agan's,
and tried to impress upon Agan the importance of
the work. At that point, according to Truitt, Agan
became angry and abrupt. He raised the question of
Truitt's withholding a raise from him the preced-
ing year and complained that the Company was
"crooked" and working against him. Agan then
stated that he intended to work against the Com-
pany at which time the office door opened and
Singleton came in. Agan, continuing his statement,
pointed to Singleton and stated, ". . . and you and
the whole company as long as I work here."
Singleton then asked Agan if he had heard him
right-that he intended to work against the whole
company as long as he worked there? Agan said,
yes. At that point, Agan, being quite upset, was
standing up and waving his arms about and pointing
his finger alternately at Truitt and Singleton.
Singleton then asked Truitt to keep Agan in the of-
fice and not let him go back to work while
Singleton made a call. Singleton then called Sue
perintendent Barrows who came in shortly
thereafter. Upon Barrows' inquiry as to what the
trouble was, Truitt repeated his version of his con-
versation. Barrows turned to Agan and asked if that
was correct to which Agan replied that if the Com-
pany and the foreman were working against him, he
was going to work against them. Barrows attempted
to explain that no one was working against him-
that Agan was brought in because of his production
and that they were trying to help him. When Agan,
according to Barrows' testimony, asserted that the
Company had no right to question him on his
production, Barrows replied that, with that attitude,
he (Barrows) had no alternative but to dismiss him.
Agan replied that that was all right, he did not have
to work anyway.
With respect to union activities, Agan testified
that he signed a union card around- the end of
January, that he attended union meetings and that
he solicited approximately 10 other employees to
sign union cards. However, there is no evidence
that any of this activity was observed by, or came to
the attention of, any agent or supervisor of Respon-
dent.
Analysis and Concluding Findings as to Agan
It is the General Counsel's theory, as expressed in
his brief, that the Respondent discriminated against
Agan when the latter "was discharged immediately
upon informing his foreman that he was a union
man and that he was going to work against the
Company." Recalling, as previously noted, that the
burden of proof is upon the General Counsel on
this issue, I am not persuaded, after careful con-
sideration of all the evidence, that the General
Counsel sustained his burden in this instance. Thus,
as heretofore pointed out, it was freely conceded by
General Counsel's witnesses that many employees
in this plant of approximately 1,200 employees
evidenced their support of the Union by wearing
union buttons in the plant. Yet there is no charge
or evidence that the Respondent discriminated or
invoked other recriminations against them for
wearing such insignia even though I have no doubt
that, considering its antiunion policy, it did not look
kindly upon such persons. Agan conceded that he
had not worn such a button in the plant and, in-
deed, there is no contention or evidence that any of
his union activities ever came to the attention of
Respondent prior to the date of his discharge. Thus,
there can be no theory that the agents of Respon-
dent "set up" the exit interview for the purpose of
getting rid of Agan because of any union activities.
Thus, General Counsel rests his case, as he must,
upon the theory that Agan's announcement, during
the discussion of his production, that he was a
union man, and was (to that degree) planning to
work against the Company, provoked such an-
tagonism as to cause the Respondent to discharge
him. This seems hardly realistic under the circum-
stances, and I reject it. I am constrained to believe
that Agan was a highly emotional person; that he
was called in by his supervisor in a not unusual
procedure to discuss his poor production during his
last 2 working days; that he became incensed when
his production was compared to another em-
ployee's, and recalled instances of prior occasions
when he felt that the Company had mistreated him
in failing to grant wage increases when he felt he
deserved them; that he became quite angry, ob-
streperous and insubordinate to his- superiors and
made certain statements which he may have later
regretted when his emotions calmed, but neverthe-
less reiterated to his highest supervision.3" In the
" In addition to the supervisors' testimony concerning Agan's language
and threatening gestures during the inters iew, such gestures were observed
by other employees outside the office through the glass window They
testified credibly that they observed Agan talking to Truitt, waving his arms
and pointing his finger in Truitt's tace at the same time that his "mouth was
moving mighty fast -
WILLIAM L. BONNELL CO., INC. 217
light of these circumstances, when considered in
the absence of any significant union activities of
Agan which were shown to have come to the
Respondent's attention, I cannot perceive any
legitimate basis for finding, as contended by
General Counsel, that "Agan's alleged `hot temper'
is clearly a subterfuge for Respondent's pur-
poses."39 Accordingly, I find and conclude that the
General Counsel failed to sustain his burden of
proving that the discharge of Agan was discrimina-
tory within the meaning of Section 8(a)(3) of the
Act and will recommend that the complaint be
dismissed to that extent.
H. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth above,
occurring in connection with the interstate opera-
tions of Respondent, have a close, intimate, and
substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and
the free flow thereof.
III. THE REMEDY
The General Counsel argues that the record
herein clearly establishes that the Respondent is
continuing its illegal antiunion activity previously
found by the Board in Case 10-CA-6639 (164
NLRB 110). He urges the Trial Examiner to
fashion a remedy commensurate with such conduct
as previously ordered by the Board in such cases as
J. P. Stevens and Co., Inc., 157 NLRB 869; Sterling
Aluminum Company, 163 NLRB 302; and H. W.
Elson Bottling Company, 155 NLRB 714.
I have carefully considered the facts of this case
in the light of the cited cases and the remedial
provisions fashioned by the Board therein.40 I agree
that the recent history of this Respondent's labor
relations conduct as reported in the prior cases,
taken with my findings and conclusions in the in-
stant case, reflect a vicious and determined cam-
paign by this Respondent to thwart and to defeat by
illegal means the legitimate efforts of its employees
to determine for themselves the issue of a collec-
tive-bargaining 'representative. Although there is
evidence that the Respondent advised its super-
visors and agents of the limits of the law respecting
communication with employees, and I have found
that in some instances such communications fell
within the protected boundaries of the law in this
regard, the fact remains that in many instances the
means taken exceeded such boundaries. What was
said by the Court of Appeals for the Fifth Circuit in
Hendrix Manufacturing Company, Inc., v. N.L.R.B.,
321 F.2d 100, 104, seems especially applicable to
the situation here:
When, as done here, an employer sets out to
campaign against a union, one of the risks is
that out of zeal, ignorance, or otherwise
foremen, supervisors, and similar representa-
tives in championing the antiunion cause will
overstep the marks.
And, as the Seventh Circuit put it in a recent
case (quoting a Trial Examiner): "one who engages
in `brinksmanshiip' may easily overstep and tumble
into the brink.""
Accordingly, I shall recommend that the Respon-
dent, in addition to posting the notice to employees
on its bulletin boards in its plant, shall mail a copy
of said notice to each of its employees and have the
notice read by responsible officials or a Board
agent to all its employees convened during working
hours in the plant for that purpose. I shall also
recommend that the Respondent, upon the request
of the Union, immediately grant the Union and its
representatives reasonable access, for a 3-month
period, to its bulletin boards and all places where
notices to employees are customarily posted.
Having found that the Respondent has com-
mitted certain unfair 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. The Respondent
having illegally discriminated against Samuel Ware,
it must be ordered to offer him immediate rein-
statement to his former or substantially equivalent
position without prejudice to his seniorty and other
rights and privileges and to make him whole for any
loss of earnings he may have suffered in con-
sequence of the illegal discrimination against him.
Backpay shall be computed in accordance with the
formula prescribed by the Board in Isis Plumbing &
Heating Co., 138 NLRB 716, and F. W. Woolworth
Company, 90 NLRB 289. In view of the nature of
the unfair labor practices committed, the commis-
sion 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 rights guaranteed to its employees by Section
7 of the Act.
Upon the basis of the foregoing findings of fact
and the entire record in the case, I make the follow-
ing:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
"General Counsel's brief, p 39 Broom Works, 159 NLRB 429
See also the later cases involving J P Stevens & Co , Inc , 167 NLRB {' See Wausau Steel Corporation v N L R B, 377 F 2d 369, 372 (C A
266, and 167 NLRB 258, James A Pearson, et at., dlb/a Crystal Lake 7)
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminating against Samuel Ware in
order to discourage union membership among its
employees, Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(3)
and (1) of the Act.
4. By interfering with, restraining, and coercing
employees in the exercise of rights guaranteed in
Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
5. Respondent did not violate the Act by dis-
criminating with respect to the hire and tenure of
employment of Jessie Evans or James Agan.
6. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law and upon the entire record in
the case, it is recommended that the Respondent,
William L. Bonnell Company, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminatorily laying off or otherwise dis-
criminating against employees in regard to hire or
tenure of employment or any term or condition of
employment in order to discourage membership in
International Union of District 50, -United Mine
Workers of America, or any other labor organiza-
tion.
(b) Giving the impression of engaging in surveil-
lance of employees' activities in respect to union
organization.
(c) Interrogating any employee concerning such
union activity by him or other employees in a
manner constituting a violation of Section 8(a)(1)
of the Act.
(d) Requesting employees to spy upon and re-
port to the Respondent the union activities of other
employees.
(e) Announcing or promising wage increases or
other benefits to employees for the purpose of per-
suading them to cease activities on behalf of the
Union and reject the Union.
(f) Soliciting, encouraging, and assisting em-
ployees in withdrawing from the Union.
(g) Threatening employees with adverse
economic conditions, including loss of work on jobs
or plant closure, should they join a union or engage
in activities on its behalf.
(h) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise of their right to self-organization, to form, join,
or assist International Union of District 50, United
Mine Workers of America, or any other labor or-
ganization, to bargain collectively through
representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of
collective bargaining or mutual aid or- protection,
or to refrain from any or all such activities.
2. Take the following affirmative ac:ion which is
designed to effectuate the policies of the Act:
(a) Offer to Samuel Ware reinstatement to his
former position or to a substantially equivalent
position, without prejudice to his seniority or other
rights previously enjoyed; and make him whole for
any loss of pay he may have suffered by reason of
the discrimination against him, in the manner
described in "The Remedy" section of this Deci-
sion.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary and relevant to
analyze the amount of backpay due and the rights
of employment under the terms of this Order.
(c) Inform employees of their rights under the
Act and insure them that Respondent will not en-
gage in,the conduct which it is ordered herein to
cease and desist, and that Respondent will comply
with the affirmative requirements of this Order by
posting at its Newnan, Georgia, plant,copies of the
attached notice marked "Appendix."42 Copies of
said notice, to be provided by the Regional
Director for Region 10, after being duly signed by
its authorized representative, shall be posted by
Respondent 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. Reasonable steps shall be taken to insure
that such notices are not altered, defaced, or
covered by any other material. In addition, a copy
of such notice shall be mailed to each employee of
Respondent, and the notice read to employees in
the plant in the manner described in "The
Remedy" section of this Decision.
(d) Upon request of the Union, immediately
grant the Union and its representatives reasonable
access for a 3-month period to its bulletin boards
and all places where notices to employees are
customarily posted.
(e) Notify the Regional Director for Region 10,
in writing, within 20 days from the receipt of this
Decision, what steps -it has taken to , comply
herewith.43
IT IS FURTHER RECOMMENDED that all allegations
4' In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall he substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith -
WILLIAM L. BONNELL CO., INC.
of the complaint not specifically found to be viola-
tions of the Act be dismissed.
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 Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
After a trial at which all sides had the chance to
give evidence under the National Labor Relations
Act, it has been found that we, William L. Bonnell
Company, Inc., violated the National Labor Rela-
tions Act, and we have been ordered to post this
notice to inform our employees of their rights.
The Act gives all employees these rights:
To organize themselves
To form, join, or help unions
To bargain as a group through a
representative they choose
To act together for collective bargaining
or other mutual aid or protection
To refuse to do any or all of these things
We have also been ordered to assure our em-
ployees that:
WE WILL NOT do anything that interferes
with these rights.
You are free to join the International
Union of District 50, United Mine Work-
ers of America, or any other union, and,
by majority choice, to select any union to
represent you in bargaining with us.
WE WILL NOT lay you off, or punish you or
219
treat you differently in any way because you
join or favor a union.
WE WILL NOT threaten to punish you or treat
you differently in any way if you join or work
for a union, or vote for a union , or talk to
other employees about a union.
WE, WILL NOT make or encourage or offer to
assist you to get out of a union.
WE WILL NOT spy on your union meetings or
union activity.
WE WILL NOT ask you to spy on each other
and report to us who joins the Union or works
for it.
WE WILL NOT in a coercive manner ask you
anything about a union or who-is in the Union
or who favors it.
It has been found that when we laid off Samuel
Ware we did this because he was for the Union. It
was found that this violated the Act.
WE WILL give back to Samuel Ware his job
and seniority and make up any pay he lost, and
also pay him 6 percent interest.
WILLIAM L. BONNELL
COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive 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 provisions, they may
communicate directly with the Board's Regional
Office, 730 Peachtree Street, NE, Room 701, At-
lanta, Georgia 30323, Telephone 526-5760.