Schoenfeld Cordage Co., Inc., 117 (1963)
DECISION AND ORDER
On April 22, 1963, Trial Examiner Robert E. Mullin issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermedi143 NLRB No. 12.
ate Report. Thereafter, the Respondent i filed exceptions to the Intermediate Report and a supporting brief.
The Board 2 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudical error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.
The Board adopts as its Order the Recommended Order of the Trial Examiner.
i The Respondent Employer's request for oral argument before the Board is hereby denied as the record, the exceptions, and brief adequately present the issues and positions of the parties.
2 Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown].
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the Labor Management Relations Act of 1947, as amended, 61 Stat. 136, 73 Stat. 519, herein called the Act, was heard before Trial Examiner Robert E. Mullin in Houston, Texas, on February 5, 1963, pursuant to due notice to all parties The complaint, issued by the General Counsel of the National Labor Relations Board, and based on charges duly filed and served, alleged that the Respondent had engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act. In its answer, duly filed, the Respondent conceded that it was engaged in commerce within the meaning of the Act, but it denied having committed any unfair labor practices.
At the hearing all parties were afforded full opportumty to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, and to argue orally The parties waived oral argument. Subsequent to the hearing, helpful and comprehensive briefs were submitted by both the General Counsel and the Respondent.' Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
THE BUSINESS OF THE RESPONDENT The Respondent is a Texas corporation with its principal office and place of business in the city of Houston, Texas, where it is engaged in the wholesale distribution of cordage, steel, and wire products. During the 12 months preceding the hearing, a representative period, the Respondent purchased and had shipped to its warehouse in Houston, from points outside the State of Texas, goods and materials valued in excess of $50,000. During this same period, the Respondent made sales of goods directly outside the State of Texas valued in excess of $50,000. Upon the foregoing facts, the Respondent concedes, and I find, that Schoenfeld Cordage Co., Inc., is engaged in commerce within the meaning of the Act.
THE CHARGING PARTIES INVOLVED No labor organization is involved in this matter. The charges herein were filed by six individuals, all enumerated in the caption, who were employees of the Re'In addition to its brief, the Respondent also submitted an extensive set of proposed findings of fact and conclusions of law. These have been fully considered They are adopted only to the extent that they are consistent with the findings and conclusions set forth hereinafter in this report.
SCHOENFELD CORDAGE CO., INC. 119 spondent at the time of the events which gave rise to this proceeding . Whether they remained employees within the meaning of the Act is an issue in this case III. THE ALLEGED UNFAIR LABOR PRACTICES The Respondent in the conduct of its business , during the period in question, employed only a small complement of workers. These were divided into two groups. One, the warehouse employees , approximately eight in number, worked in what was known as the steel department and the twine and nail department. The other group of employees, about six in number, was made up of over-the-road drivers in the Respondent's trucking operation . The latter were engaged in longdistance hauling of cordage and steel products to the employer's customers. Ralph Pennington was the foreman in charge of both groups of employees . Harold A.
Hespelt was the general manager for all of the Respondent 's operations. The six individuals who filed the charges in this case were working in the warehouse at the time of the dispute which gave rise to the present proceeding.
Leonard Eythell, one of the aforesaid warehouse employees, testified that after work on the evening of October 3, 1962, he, Curtis C. Meeker, Leo Eythell, James Chappel, Belton Brown, Jr., and Leo Smothermon, all six of whom were coworkers, met and discussed the course of action they should follow in seeking a wage raise.
The same group met again the next evening and at that time decided that on the following morning they would ask Foreman Pennington for a pay increase of 10 cents an hour. Leo Eythell wrote out the wage request as to each of the six men on a piece of paper and Leonard Eythell, his brother, was designated by the group as the spokesman. Prior to reporting for work on October 5, the six employees assembled at a restaurant near the Respondent's premises where they reviewed briefly their plan to demand a wage raise from the foreman and then proceeded to the warehouse where they were scheduled to start work at 8 a.m.
The group arrived at the warehouse at 7:45 a.m. The employees changed into their work clothes and immediately thereafter went out into the warehouse. Leonard Eythell then went to Pennington's office. There he told the foreman that the employees had been discussing a raise and had formulated their request on a slip of paper which Eythell then handed to Pennington. According to the employee, the foreman looked at the paper and then stated, 'This is out of the question, who wrote this?' When Eythell declared that he was the writer, Pennington said, 'Well, let's go out and have a talk with these fellows.' The two thereupon proceeded to the warehouse where Pennington showed the paper to the five other employees and demanded, 'Whose idea was this?' 2 When no one stepped forward to answer his question, the foreman then asked each employee if he would stay with the Company at his current wage. Each, in turn, stated that he would do what the others did. In asking Curtis Meeker this question Pennington suggested that this employee had been the ringleader in the movement. Meeker, however, denied that he was responsible.3 At this point, according to Pennington, he told the employees, 'Well, if that is it, that is it, that is all I can do.' According to the foreman, several in the group then said, 'Let's go,' and thereupon the six men left the warehouse. Leonard Eythell testified, however, that after determining that the employees would stay together, the foreman abruptly ordered them to leave with the statement, 'Well . you fellows just go, go, get out of here.' Eythell's testimony was corroborated by Perry Emberton, a witness called by the Respondent.
Emberton was a truckdriver who was present during the confrontation of the employees by Pennington. According to him, Pennington concluded the meeting with the...
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