Ace Handle Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1952

100 N.L.R.B. 1279 (N.L.R.B. 1952)

ACE , HANDLE CORPORATION 1279
any other labor organization , by discriminatorily discharging any of our em-
ployees, by refusing to employ any person or discriminating in any other
manner in regard to their hire or tenure of employment or any terms or
conditions of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of the rights guaranteed under Section 7 of the Act,
except to the extent that such rights may be affected by an agreement re-
quiring membership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
WE WILL offer Paul Axthelm immediate and suitable employment and make
him whole for any loss of pay or other rights and privileges he may have
suffered as a result of the discrimination.
All employees are free to become, remain , or refrain from becoming members
of the above-named union or any other labor organization except to the extent
that the right to refrain may be affected by lawful agreement requiring member-
ship in a labor organization as a condition of employment . We will not dis-
criminate against any employee or applicant for employment in regard to his
hire or tenure of his employment or any term or condition of employment because
of, or the lack of, membership in or activity on behalf of any such labor organiza-
tion. Nor will we discriminate against any employee because he has filed charges
under the Act.
Dated ----------------
HENRICH LUMBER COMPANY, INC.
Employer.
By -------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof and must not
be altered , defaced, or covered by any other material.
ACE HANDLE CORPORATION and ARVIL PURIFOY. Case No. 15-CA -351.
September 30,1952
Decision and Order
On February 27, 1952, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report, and both the Respondent and
the General Counsel filed supporting briefs. The Respondent's re-
quest for oral argument was denied inasmuch as the record and brief,
in our opinion, adequately reflects the issues and positions of the
parties.
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-mem-
ber panel [Members Houston, Murdock, and Styles].
100 NLRB No. 230.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, the conclusions, and the recom-
mendations of the Trial Examiner with the following additions :
We find, in agreement with the Trial Examiner and for reasons
set forth in the Intermediate Report, that the Respondent discharged
the six below-named employees because they were engaging in con-
certed activities in presenting a grievance over a matter relating to
their working conditions. In so acting, the Respondent violated not
only Section 8 (a) (3) of the Act but also independently'violated
Section 8 (a) (1) by interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the
Act.,, We further find that reinstatement and back pay is appropriate
and necessary to remedy the unfair labor practices involved herein,
without regard to whether the discriminatory discharges be deemed
a violation of Section 8 (a) (1) or of Section 8 (a) (3) of the Act.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Ace Handle Corporation,
Gurdon, Arkansas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from interfering with, restraining, or coercing
it employees, by discharge or otherwise, in the exercise of the right
to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, as guaranteed in Section 7 of
the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer to Arvil Purifoy, A. D. McBride, Kenneth Hughes,
Norman Wells, Bernie Kuhn, and Mary Hazelwood immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights or
privileges.
(b) Make whole Arvil Purifoy, A. D. McBride, Kenneth Hughes,
Norman Wells, Bernie Kuhn, and Mary Hazelwood in the manner
set forth in the section of the Intermediate Report entitled "The
Remedy" for any loss of pay each may have suffered by reason of the
Respondent's discrimination against them.
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
' Modern Motors, incorporated, 96 NLRB 964.
ACE. HANDLE CORPORATION 1281
records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amounts of back pay due and the right
of reinstatement under the terms of this recommended order.
(d) Post at its plant in Gurdon, Arkansas, copies of the notice
attached hereto marked "Appendix A." 2 Copies of said notice, to be
furnished by the Regional Director for the Fifteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof and maintained
by it for a period of sixty (60) consecutive days thereafter in conspicu-
ous places, including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for the Fifteenth Region in writ-
ing within ten (10) days from the date of this Order what steps the
Respondent has taken to comply herewith.
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection.
WE WILL offer to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination.
Arvil Purifoy Norman Wells
A. D. McBride Bernie Kuhn
Kenneth Hughes Mary Hazelwood
ACE HANDLE CORPORATION,
Employer.
Dated -------------------- By -------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
STATEMENT OF THE CASE
Upon a charge, as amended, duly filed by Arvil Purifoy, an individual, the
General Counsel of the National Labor Relations Board,' by the Regional
Director for the Fifteenth Region (New Orleans, Louisiana), issued a complaint
dated September 26, 1951, against Ace Handle Corporation, herein called the
Respondent or the Company, alleging that the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
-and (3) and Section (6) and (7) of the National Labor Relations Act, as amended,
61 Stat. 136, herein called the Act. Copies of the complaint with a copy of the
charge as amended were duly served upon the Respondent and the charging party.
In substance the complaint alleges that on or about March 8, 1951, the
Respondent discharged and refused to reinstate six named employees because
they engaged in concerted activities for the purpose of collective bargaining
and other mutual aid and protection. By reason of these acts-the Respondent
thereby engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) and (3) of the Act. About October 2, 1951, the Respondent
filed its answer in which it denies the commission of any unfair labor practices
and affirmatively asserts that the employees voluntarily left their employment.
Pursuant to notice, a hearing was held at Arkadelphia, Arkansas, on November
7 and 8, 1951, before the undersigned Trial Examiner. The General Counsel
and the Respondent were represented by counsel. At the outset of the hearing
counsel for the Respondent requested that the General Counsel be required to
state the theory of his case, or in the alternative to make the complaint more
specific, which motion was denied by the undersigned. All parties participated
in the hearing and were afforded full opportunity to be heard, to examine and
`cross-examine witnesses, and to introduce evidence pertinent to the issues in-
volved. After the conclusion of the taking of testimony counsel for the Respond-
ent moved to dismiss the complaint for lack of proof, which motion was denied
by the undersigned. At the same time the General Counsel moved to conform
the pleadings to the proof which motion, without objection, was granted by the
undersigned limited to matters of form. The parties waived oral argument
and were advised of their right to file briefs in the matter. Thereafter the
General Counsel and counsel for the Respondent submitted briefs which have
-been duly considered by the undersigned. After the hearing had been closed
counsel for the Respondent, about November 29, 1951, submitted a petition to,
the undersigned requesting permission to tile as part of the record a decision
of the "Board of Review of the Arkansas Employment Securities Division," which
found that Arvil Purifoy, the charging party, was disqualified to draw unemploy-
ment compensation benefits because he voluntarily left "his employment without
good cause. On November 30, 1951, the undersigned duly issued an order reject-
lug the above decision as an exhibit in this proceeding for the reason that it is
not relevant or material to the issues herein.'
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
' The General Counsel and his representative at the hearing are herein referred to as
the General Counsel; the National Labor Relations Board as the Board.
s The petition and decision and a copy of the order issued thereon are included in the-
record and marked Rejected Exhibit No 1.
ACL HANDLE CORPORATION 1283
FINDINGS OF FACT
1. THE BL SINESS OF THE RESPONDENT
The parties stipulated that the Company, an Arkansas corporation, maintains
its office and plant at Gurdon, Arkansas, where it is engaged in the manufacture
of handles for mops, rakes, brushes, and other handle products. The principal
officers and stockholders are Paul Ales and Violet Ales. The Company was
organized for the purpose of supplying handles to A & A Manufacturing Com-
pany, a partnership composed of Paul and Violet Ales, which is located at
Chicago, Illinois, where it is engaged in the manufacture and sale of garden
tools 3 During the period October 1, 1950, to September 30, 1951, the Company
sold and delivered products to A & A Manufacturing Company in the sum of
$24,943, and its sales to other customers amounted to $33,151, of which in excess
of 75 percent was sold and delivered outside the State of Arkansas. The sales
of A & A Manufacturing Company, during the 12 months preceding the hearing,
were in excess of $50,000, of which more than 75 percent was sold and delivered
to customers outside the State of Illinois. The Company neither admits nor
denies that its operations constitute commerce within the meaning of the Act.
The undersigned finds that the Company is engaged in commerce as defined in
the Act.
II. THE UNFAIR LABOR PRACTICES
A. The events preceding the alleged mass discharge
There is little, if any, dispute concerning the events occurring prior to March 8,
1951.' Hubert W. Nelson testified that he served as plant manager or superin-
tendent for about 3 years until March 1 when, due to illness, he was replaced
by Philip Hester. During the period January 1948, to March 8, 1951, Thomas
V. Hazelwood was employed as millwright and plant foreman. Hazelwood stated
his duties included the repair and maintenance of machinery, instructing the
employees in the operations thereof, and, on Nelson's orders, the assignment and
distribution of work among the employees. Admittedly, Hazelwood had no
authority to hire or discharge employees but he did report to Nelson concerning
their work and on several occasions Nelson followed his recommendation to
discharge certain employees. In the same interval Elmer Perrine was employed
as lathe operator and in the absence of Hazelwood performed at least part of
the latter's duties. The undersigned finds that Nelson, Hester, and Hazelwood
were, at all times material, supervisory employees as defined in the Act.' The
undersigned also finds that Hazelwood voluntarily left the employment of the
Company tinder circumstances set forth below.
Hazelwood said Perrine was not a satisfactory employee and that on several
occasions he informed Nelson of his low production. Although Nelson promised
to look into the matter he took no action in this respect and Perrine continued in
the employment of the Company Nelson said that he considered Perrine a satis-
factory worker and knew that there was some "friction" between the two
8 The complaint alleges that the Company is "a wholly-owned subsidiary of A & A Manu-
facturing Company." At the hearing the General Counsel moved to amend his complaint
by striking this allegation therefrom The undersigned, without objection, granted this
motion.
' All dates refer to 1951, unless otherwise stated.
5 Hester, as appears below, consulted and conferred with Nelson subsequent to March 1
for the reason that, as he expressed it, Nelson "was still managing" the plant.
227260-53-vol. 100--82
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men. Hazelwood related that about February 24, Perrine refused to move a
pallett of handles e for one of the women employees. About noon that day
Hazelwood reported the incident to Nelson and stated that Perrine had loafed
too long on the job, so unless the Company discharged him, he, Hazelwood was
quitting. However, he said he would remain at the plant until Hester took
over as superintendent on March 1. Nelson, according to Hazelwood„ said
he would "get rid of" Perrine. At this time Nelson advised Hazelwood that
his rate was being increased 10 cents per hour, beginning March 1, to bring
it equal to that of one nonsupervisory job classification at the plant. Nelson
said he told Hazelwood he "would probably have to let Perrine go," but he did
not say that he "would fire him." Nelson then informed Hazelwood that the
plant would be shut down the following week (February 26) to take inventory,
and to so instruct the employees, which he did. Hazelwood assisted in taking
inventory. On March 5, the plant resumed operations and Nelson announced
to the employees that Hester was assuming his duties as superintendent and
that Hazelwood would remain as foreman. Hester said that Nelson advised
him of the difficulties between Hazelwood and Perrine and that he immediately
laid off Perrine pending investigation of these difficulties including his refusal,
on February 24, to assist in moving the pallett. After an investigation, Hester
stated he believed Perrine to be competent and not entirely at fault in the above
incident. Further, as the Company required the services of a lathe operator
in order to fill an order, and since Hazelwood and Perrine were the only employees
capable of operating the lathe, Hester decided to recall Perrine.
B. The alleged discrtm-matory mass discharge
In accordance with the foregoing decision, Perrine reported for work about
8 o'clock the morning of March 8. (On this date the Company had 9 or 10
employees.) Thereupon, Hazelwood, after getting production started, told Hester
that he was quitting because Nelson had failed to keep his promise to discharge
Perrine. Following his conversation with Hester, Hazelwood told Purifoy, bolt-
ing saw operator, that he had quit and, about- 8: 30, left the plant. Hazelwood
admitted that he would not return to work for the Company as long as Perrine
was in its employ. Later that morning Purifoy told Hazelwood's mother, Mary
Hazelwood, sanding machine operator, that he would see if any arrangements
could be made to have him return to the plant.
During the luncheon hour Purifoy and four other employees, A. D McBride,
Kenneth Hughes, Bernie Kuhn, and Norman Wells discussed the fact that Hazel-
wood had quit the Company while Perrine remained in its employment. McBride
testified that they "figured" Perrine, who was looked upon as the "No. 2 man,"
would take Hazelwood's place and that "we couldn't get along with him." Puri-
foy said the men "got along fine" with Hazelwood but Perrine "was always
showing folks how to" perform work and "nosing around" the employees. He
further stated that he believed Perrine would become foreman but despite his
conviction that Perrine was not fully suited for the job he had no intention of
leaving the Company's employ. Hughes said he was anxious to have Hazelwood
return because he would "get us straightened out on the job quicker than any-
body," and was very careful of the machinery. Kuhn, a new employee, stated
that Hazelwood had trained him in his job and that the men were "concerned"
about Hazelwood's replacement. However, prior to taking any action in the
matter, Purifoy testified that the group decided to have McBride and Wells talk
to Hazelwood and find out whether he was willing to return to the plant. Mc-
s A pallett holds about 1 cord of wood.
ACE HANDLE CORPORATION 1285
Bride said he and Wells immediately went to see Hazelwood at his home and
asked if he was willing to come back to work . Hazelwood replied that he would
return if the Company would "get rid" of Perrine . McBride and Wells returned
to the group and reported their conversation with Hazelwood , and the employees
then decided to discuss the matter with Hester upon his return from lunch. The
men returned to the plant and Hester arrived shortly before 1 o'clock . Purifoy
said that Hester walked passed the group without speaking and turned on the
blower. The employees walked toward him and Purifoy asked why he had let
Hazelwood go and kept Perrine. Hester turned off the blower , came back to the
group, shoved Purifoy, and told them , "Get the damned hell out of here. I don't
care anything about your troubles . Get out and stay out." Purifoy said they
were not leaving the plant until they were paid , whereupon Hester stated he
would see what could be done and went to his office. McBride said Purifoy told
Hester he wished to talk about Hazelwood quitting and Perrine remaining to
which Hester answered , "Don't come here telling me your God damn troubles.
You are all fired as far as I am concerned ." The men then asked for their checks.
Hughes and Kuhn testified to the same effect. Hester returned in about 10
minutes and asked Mrs. Hazelwood and Iva Toombs if they wanted their checks,
and again went back to the office . The group then remained in the front of the
plant waiting for their checks. In a short while, Mrs Nelson , wife of Superin-
tendent Nelson , came to the plant and , on her way to the office , cursed and threat-
ened to strike Kuhn with a wooden handle . About an hour after Mrs . Nelson
arrived , State Trooper Guy J . Downing came to the plant and asked what the
trouble was . McBride told him there was no trouble but the men had been
discharged . McBride further stated that about 3 o'clock Hester called the men
into his office . Purifoy and McBride related that Hester , Downing, Mrs . Nelson,
and the cashier were in the office with their checks and time cards on the counter.
Mrs. Nelson told the men it was necessary to sign their time cards before receiving
their checks. When the men inquired as to the necessity of this procedure, she
cursed them and, as McBride quoted her, declared , "There will never be another
God damned one of you working for Ace Handle Corporation as long as it
stands." Purifoy then asked for a statement of the reasons for leaving the
Company in order to draw unemployment compensation . Mrs. Nelson stated
they could not draw compensation and when Purifoy asked why not, she cursed
him. Downing told the men that unless they signed the time cards they would
not get their checks. The men thereupon signed the time cards and received
their checks . Purifoy inquired of Hester if "we are through " and he said, "You
will never work at Ace Handle again ." The men then left the plant . The testi-
mony of Hughes and Kuhn is to the same effect . Immediately thereafter,
Purifoy, McBride , Hughes, and Wells made appropriate application for unem-
ployment compensation . Kuhn did not apply because he had insufficient employ-
ment to qualify for these benefits. About 1 week later Purifoy, McBride, and
Wells, having obtained referral cards from the unemployment office, applied to
Hester for reemployment . Purifoy stated they presented their referral cards
to Hester who said, "I can't put you back to work ." McBride related that Hester
refused to employ them and said, "We will let the law take its course." ' Hughes
made no application to the Company for reemployment and there is no evidence
indicating that Kuhn ever applied for work after March 8
Mrs. Hazelwood testified that she came back from her lunch about 12:55,
and observed Purifoy and a group of employees standing near her sanding
machine. She remarked it was almost time to commence work and Purifoy
said they were going to talk to Hester in regard to her son . Mrs. Hazelwood
told them not to do as he had quit and she doubted if he would come back.
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The employees answered that he would return and reported that McBride and
Wells had talked to Hazelwood during the luncheon lioui`. At that time Hester
arrived and turned on the blower. Purifoy then approached Hester and told
him they wanted Hazelwood to return to work. Hester declared that Purifoy
was "crazy" if he thought that he could tell him who to hire and stated that
"as far as I am concerned the whole bunch is fired." Hester then went to the
office but returned shortly thereafter and asked Mrs. Hazelwood if she wanted
her check. She said she did not desire her check unless "you are through with
me," and Hester answered she was not through at the plant. He then told
Mrs. Hazelwood and Toombs that they were "loyal" and he was sorry but
the "plant will have to close." Mrs. Hazelwood and Toombs then left the
plant. The same evening Mrs. Hazelwood received her check from the Com-
pany. About April 27, Mrs. Hazelwood telephoned Hester and reminded him
that he had stated she was not "through" at the plant. Hester said he would
have to talk to two individuals, whom she understood to be Nelson and the
president of the Company, and that she had him "in'a spot." Shortly thereafter,
Mrs. Hazelwood, having received no word from Hester, went to the plant and
asked if she would be permitted to work. Hester told her he had no objection
to her working and that "This thing will be settled one of these days." Mrs.
Hazelwood made no further inquiries concerning her job nor did Hester ever
communicate with her,
Hester testified that on March 8 he returned to the plant at 1 :05 and found
only one employee, Perrine, working. Hester believed there was something
wrong with the blower so he went to the back of the plant and turned on the
power. As he was coming back Purifoy approached him and stated, "We are
riot working unless you hire Mr. Hazelwood." Hester made no immediate reply
but went over to the switch and cut the power for the blower. He then re-
turned and told Purifoy and a group of five employees that he could not "re-
employ Hazelwood. He quit this morning." Purifoy again said that the men
would not work without Hazelwood and Hester remarked that he had quit.
The employees then engaged in a brief discussion among themselves and Hester
told them, "Well, if you aren't going to work, fellows, you are going to have to
get out." The men then "blurted out" that they would not work unless Hazel-
wood was rehired. Hester replied that since Hazelwood quit he did not intend
to rehire hire and if they were not going back to work, they would have to
leave the plant. The employees stated they would not get out until they received
their checks and Hester answered he would "see about that." Hester admitted
he was angry with the employees but denied that he cursed them or shoved
Purifoy. Hester left the group and went to the office where he called Nelson
and reported the occurrences to him. Nelson informed Hester that the men
should be given their checks. Hester then returned to the group and, in order
to find out "who was in the deal," asked each of the employees in the group
whether he was going to work and each replied in the negative. In response
to his query, Toombs said she needed a job and was "not in on this," and Mrs.
Hazelwood replied that she desired to work, "if you want me." The group then
remained at the plant waiting for their checks. Hester admitted that the
employees gave no indication of any animosity toward him nor did he have any
fear for his personal safety, nevertheless, he knew that the Company had re-
quested that State police be dispatched to the plant .7 Following this request
when Officer Downing arrived at the plant about 2 :30, Hester told him that the
employees had quit their jobs and had refused to leave the plant. Later in
' Rester said he was fearful for the safety of the plant but offered no reasons or basis for
this opinion other than he was the only person representing the Company.
ACE HANDLE CORPORATION 1287
the afternoon Hester called the employees into the office where he told them
they could have their checks upon signing their time cards . The men refused
to sign the time cards because they failed to show the reason for their discharge
and Hester explained he could state no reason on the cards since the group had
not been discharged but quit. Downing, according to Hester, told the employees
to sign the cards and get their checks, that "It wouldn 't do them any good
anyhow. They were on strike or had quit," and were not entitled to compensa-
tion benefits . The employees were "very much surprised" to hear this and
thereupon signed the cards, received their checks , and left the plant.
Hester closed the plant that afternoon and it remained down the next day.
However , the following day Hester recalled Perrine, Toombs , and White, the
latter a part-time employee , and commenced limited operations . He also began
hiring new and inexperienced employees and in about 3 weeks the Company
had its normal complement of workers . Perrine was promoted to foreman about
1 month after Hazelwood quit.
About 1 or 2 weeks subsequent to March 8 , Hester was at Nelson's home during
the luncheon hour when McBride or Purifoy called Nelson and requested that
he meet with them at a downtown restaurant but he was unable to do so because
of his illness . Hester said he would see them so he drove to the plant and met
the group. Hester could not recall their conversation but he stated the in-
dividuals presented cards which they stated had been given them "at the office."
Hester said he could not read the cards without his glasses , which he could not
find at the time. He further stated that the men did not ask for their jobs,
or even indicate they desired to return to work, and he could not understand
the purpose of their visit to the plant, although he knew it was not a social call.
Hester said the entire discussion took "probably two or three minutes and con-
cluded on friendly terms with his statement , 'Well, I hope you boys get this
thing settled , or something '." Hester conceded he did not call Mrs. Hazelwood
at any time prior to filling her job with a new employee because there was
no opening " in her particular line." Later , in his testimony , Hester said that
while Mrs . Hazelwood was a satisfactory employee she was not reemployed be-
cause of her age and physical condition , plus the fact that her son would be
unavailable to help her at the plant.
Nelson testified that after Hester had informed him a group of employees had
refused to work and quit their jobs , he sent his wife to the plant to pick up the
blank checks and time cards in order to pay them off. After preparing the checks
Nelson told his wife to take them back to the plant and help Hester to distribute
them to the men. Mrs. Nelson had been employed by the Company as a part-time
office worker but had been sick for about 6 weeks prior to March 1 and had per-
formed no duties during this period . Nelson received word there might be
trouble when paying off the men , he "forgot" how he received this information,
so he called the State police.
About 2 weeks later Nelson said one of the group telephoned him and asked
that he meet with them at a cafe, and he advised this individual that the matter
had been turned over to an attorney and any information would have to come'
from him. Shortly thereafter , Perrine called Nelson and informed him that
"the fellows" were at the plant. Nelson was having lunch with Hester, so he
told Hester to go out and see them. Apparently , during one of these conver-
sations, Nelson offered to meet with the group at his home , but they declined
for the reason , as he understood , that the "employment office" had instructed
them not to come to his home . Hester then left and later reported to Nelson
that the men had "some cards" but before he could put on his glasses to read
them, the men "pulled the card back ." Nelson concluded the cards must have
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been referral cards so he called the State employment office and was advised
referral cards had been issued to these individuals. He then told the employ-
ment representative that the Company had no work for these employees at the
present time but would reconsider them for employment.
Officer Downing testified that when he arrived at the plant he met Hester
who informed him that some of the men had left their jobs "on account of
hiring one man and another man had quit." Downing, who was familiar with
the handle business, then went through the plant with Hester. After doing so,
he talked to the group of employees in the course of which he asked if they
quit but he could not recall their reply to his inquiry. Downing was in the office
with Hester and Mrs. Nelson when the men were called in to receive their checks.
He related that Purifoy and another individual in the group wanted to know
why the checks did not show that they were being laid off and Hester said that
they had quit. Downing said there was "a little yow-yowing," on both sides so
he told the men if they had quit they could not draw social security. In re-
sponse to a specific question as to whether the men at that time said they had
quit, Downing answered, "No I don't believe they did. They never did deny
the fact, though, that they wasn't laid off; they was quitting." However,
Downing stated that Purifoy, while in the office, declared that he had quit
his job but gave no reasons or explanation for this action. Downing told the
men that they would have to sign the time cards in order to obtain their checks,
which, presumably they did and then left the plant. In the course of the dis-
cussion Mrs. Nelson advised the employees that they would "never work no
more" for the Company. Downing remained at the plant about 45 minutes
and, apart from "boisterous" talking in the office, there was no disturbance or
trouble of any kind.
Toombs stated that early in the morning Mrs. Hazelwood informed her that
her son had quit because of Perrine and later told her that all the employees
were going to quit unless Hazelwood was rehired. Toombs and Mrs. Haze]-
wood were together during the luncheon hour and Mrs. Hazelwood asked Toombs
if she was "going to stick with the boys." Toombs replied "No," that she needed
her job, but "thought" that Mrs. Hazelwood was going to do so. Toombs said
they returned to the plant about 12: 55 and joined a group of men standing near
the sanding machine. None of the group returned to their jobs at 1 o'clock,
although Perrine was working at that time. Hester came in about 1: 05, "looked
at us," and then went back and turned on the blower. Hester came back to the
group and, in answer to his question, the group said they were not working be-
cause they wanted Hazelwood to be rehired. Hester replied that Hazelwood
had quit. Toombs could not recall precisely what followed but she believed
the men stated they would not work without Hazelwood and that they wanted
their checks. Hester asked each individual "who was in on it," and apparently
each man answered in the affirmative. Toombs, however, shook her head "No"
and Mrs. Hazelwood said nothing. Hester then announced the plant would
be closed. Toombs did not see Hester shove Purifoy, nor did he curse the em-
ployees or engage in any ungentlemanly conduct. Toombs believed she later
told Hester that she was not involved in the incident and several days later was
reemployed and has continued in the employ of the Company.
Perrine testified that he returned from lunch several minutes before 1 o'clock
and went to work running the lathe. About 1: 05 Perrine saw Hester turn on
the blower and as he was coming back through the plant, a group of employees
met him near the lathe. Hester shut off the blower, which was very noisy, and
Purifoy told Hester that they would not work unless Hazelwood was reemployed.
Hester said Hazelwood had quit and "he wasn't fixing to hire him back," where-
ACE HANDLE CORPORATION 1289
upon the group said they would not work until Hazelwood returned. The group
then walked toward the front of the plant. About 10 minutes later Purifoy,
accompanied by Hughes, Kuhn, and Wells, came to Perrine and ordered him
to shut down the lathe, which be did. Later Hester told Perrine the plant was
closed and he then went home.
Testifying in rebuttal, Mrs. Hazelwood denied that she told Toombs the em-
ployees would quit unless her son was reemployed, or that she asked Toombs
if she was going "to stick with the boys." Likewise, Purifoy denied that he made
any statement to Downing that he had quit his job, but may have said that his
foreman quit. He further stated that on the afternoon of March 8, he told
Perrine that the group had been fired because of him, but denied that be ordered
or requested Perrine to cease working. Hughes and McBride testified that they
did not hear Purifoy make any statement to Downing that he had quit his job,
and substantially corroborated Purifoy's version of his conversation with Per-
rine on the afternoon of March 8.
Concluding Findings
As appears from the facts set forth above, as well the briefs submitted by
counsel for the parties, two issues are presented, namely, were the employees
engaged in lawful activities and were they discharged for having engaged in
Such activities.
The undersigned finds that Purifoy, McBride, Hughes, Kuhn, and Wells,
upon learning that Hazelwood quit his job, decided to collectively discuss the
matter with Hester in the hope that they might secure his reemployment with
the Company. In reaching this decision the group was motivated not only
by their high regard for Hazelwood as an individual but also because as foreman
he was responsible for the efficient and safe operation of machinery and equip-
ment, as well as the assignment and distribution of work, all of which were
important factors to the employees in the performance of their daily tasks
at the plant. Unquestionably, the employees were of the opinion that Hazelwood
carried out his duties and responsibilities as a supervisor in a capable and
efficient manner. On the other hand they had little or no confidence in the
ability of Perrine, whom they correctly believed would replace Hazelwood, to
direct and control their work. Consequently, the employees, after being assured
by Hazelwood that he would return as foreman if Perrine was released, resolved
to discuss the matter with Hester. Under the circumstances it seems clear
that the employees banded together for the purpose of presenting a grievance,
or a matter, which plainly related to working conditions at the plant.
In determining this question it is unnecessary to discuss the various types
or phases of "activities" which the courts and the Board have heretofore found
to be legitimate under the terms of the Act,' for the decision in N. L. R. B. v.
Phoenix Life Insurance Company, 167 F. 2d 983 (C. A. 7) certiorari denied,
335 U. S. 845, is dispositive of the issue herein. In that case the company
maintained a branch office where, under a branch manager, it employed 10
Salesmen and a clerical staff under the immediate supervision of a cashier.
The cashier's department was responsible for "servicing" the salesmen, per-
formed many duties affecting their work, and functioned in close cooperation
with the sales group. At the time in question the manager advised the salesmen
8 See for example, N. L. R. B. Y. Peter Cattier Kohler Swiss Chocolates Company, Inc.,
130 F. 2d 503, 505-506 (C. A. 2) ; N. L. R B. v. Hyniie Schwartz, etc, 146 F. 2d 773 (C. A.
5) ; Ozark Hardwood Company, 91 NLRB 1443 ; and The Office Towel Supply Company,
97 NLRB 449.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the cashier had resigned and that the home office was considering the
selection of a successor, who would probably be someone transferred from
another branch office. During the next 2 weeks the salesmen discussed the
matter of the cashier's successor. They also discussed the advisability of
making any recommendation in this respect and although all were in accord
that the assistant cashier was well qualified to fill the vacancy, there was
disagreement as to whether they should recommend the appointment of any
specified person. Accordingly, one of their number, Davis, was designated to
prepare a letter which, if approved and signed by all of the salesmen, was to be
sent to the home office. Davis, with Johnson, prepared a tentative draft of such
a letter, which was discussed by the group. However, before the final draft
was agreed upon, the manager, upon learning of the letter, discharged Davis
and Johnson because of their "actions and involvement in the resignations
and new appointment affecting our Cashier's Department." In sustaining the
Board's findings that the conduct of the employees was within the scope of the
character of concerted activities protected by Section 7 of the Act, the court
stated :
A proper construction [of Section 7] is that the employees shall have the
right to engage in concerted activities for their mutual aid or protection even
though no union activity be involved, or collective bargaining be contem-
plated. Here Davis and Johnson and other salesmen were properly con-
cerned with the identity and capability of the new cashier. Conceding they
had no authority to appoint a new cashier or even recommend anyone for
the appointment, they had a legitimate interest in acting concertedly in
making known their views to management without being discharged for that
interest. The moderate conduct of Davis and Johnson and the others bore
a reasonable relation to conditions of their employment. It was, therefore,
an unfair labor practice for respondent to interfere with the exercise of the
right of Davis and Johnson and the other salesmen to engage in concerted
activities for their mutual aid or protection.
The undersigned concludes that workers in seeking to discuss Hazelwood's
reemployment by the Company were acting in a matter closely related to their
interests as employees and since their method and manner of presenting the
same to Hester was reasonable and temperate their conduct plainly constituted
concerted activities for their mutual aid or protection within the meaning of
Section 7 of the Act.
The next question to be determined is whether the employees were discharged
or voluntarily quit on March 8. In short, the evidence of the General Counsel,
as detailed above, is to the effect that when the group sought to discuss Hazel-
wood's reemployment with Hester they were told it was no concern of theirs
and then summarily discharged. The Company, through Hester, asserts that the
employees demanded that Hazelwood be rehired and when Hester, who con-
ceded he was angry with the group, refused their demand and ordered them to
return to work or leave the plant, they asked for their pay checks. Irrespective
of other circumstances and upon the bare question of credibility in respect to
this conversation, the undersigned would find it extremely difficult to accept
Hester's version of his meeting with the group. Having had the opportunity of
closely observing the employees who appeared as witnesses at the hearing, and
considering that they were completely unorganized and without the benefit of
any leadership experienced in matters of this character, the undersigned is
convinced that they were neither aggressive nor militant to the extent that they
ACE HANDLE CORPORATION 1291
reached the stage of addressing an ultimatum to the Company in respect to the
conditions under which they would continue in its employ. But apart from
these observations and convictions, the testimony of these individuals, which was
neither impaired nor shaken on cross-examination, plainly discloses that they
merely wished to discuss a grievance with Hester and at no time did they ever
agree among themselves to adopt a course of action whereby Hazelwood must be
rehired otherwise they would concertedly cease work. Moreover, the testimony
of these employees refutes any such inference or assumption. Thus, Purifoy,
McBride, and Kuhn stated they had no intention of refusing to work under
Perrine and Hughes said if the Company refused to reemploy Hazelwood there
was "nothing we could do about it." The undersigned therefore credits and
accepts the testimony of the witnesses produced by the General Counsel in
respect to the foregoing incident.
Following their unsuccessful attempt to meet with Hester the employees
remained at or near the front of the plant awaiting the distribution of their
checks. During this interval Officer Downing arrived and, after talking to
Hester, asked the employees if they had quit their jobs, but he was unable to
recall what, if any, reply they made. It is undisputed that Hester and Mrs.
Nelson refused to issue the checks unless the employees signed their time cards,'
which they refused to do since the cards failed to state the reasons for their
leaving the Company. This procedure resulted in a heated argument between
the parties with the employees contending that the cards should show the reasons
for their leaving the Company and with Hester declaring that no such statement
was necessary since the men had quit their jobs. Downing told the employees
that unless they signed their time cards they would not receive their checks, and
if they had quit they were not entitled to unemployment benefits. The
employees thereupon signed the time cards. In the course of this discussion
Downing testified he did not believe the employees said they had quit nor did
they deny that they were being laid off or quitting. However, Downing did
state that Purifoy admitted he had quit, without giving any explanation or
reason therefor. Except for the statement attributed to Purifoy, Downing's
testimony not only fails to corroborate the Company's contention that the
employees left their employment but plainly indicated that at no time did the
group make any declaration which might infer that they did in fact voluntarily
quit. Perhaps Downing misunderstood Purifoy for the latter admitted that
he may have told Downing that his foreman had quit. In any event, in con-
sidering the alleged statement in the light of Downing's entire testimony, plus
the specific denial by Purifoy and corroboration by other witnesses, the under-
signed is not persuaded that Purifoy told Downing that he had quit, hence
Downing's testimony in this respect is rejected.
Further, if there was any question as to whether or not the employees had
been discharged by Hester the statements and actions of Mrs. Nelson, following
closely upon this incident, would quickly dispel any doubt in that respect. Nor,
The time cards of Purifoy , McBride, Hughes, and Kuhn were produced by the Com-
pany and received in evidence . These cards indicate that on March 8 ( Thursday), the
employees "punched out" about 12:58 In the afternoon . The witnesses for the General
Counsel uniformly testified that the cards were not available on that date since it was the
beginning of a new pay week, and denied that they punched cards at any time during that
day. Perrine said he punched his card but he admitted that on many occasions the cards
were not available on Thursday . It cannot be accurately determined from the cards them-
selves whether the employees actually punched out as indicated and, in view of all the
evidence , the undersigned finds that the employees did not punch out as contended by the
Company.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in view of the circumstances , is there any question but that Mrs. Nelson while at
the plant preparing and distributing the checks was acting for and on behalf of
the Company . The evidence is undisputed that she cursed and threatened the
employees and warned them that they would never again work for the Company.
The only reasonable inference to be drawn from this evidence is that Mrs. Nelson
was fully cognizant that the employees had been discharged and unmistakably
emphasized that fact to them when issuing their pay checks . Moreover, her
prediction that the employees would never again work for the Company proved
to be true for Hester subsequently refused to reemploy any of the group although
experienced employees were not available at that time . It may be that Mrs.
Nelson was ill at the time but the undersigned cannot accept her purported
illness as justifying or excusing her disgraceful and reprehensible conduct
toward the employees . The undersigned therefore finds that the employees were
discharged en masse and did not voluntarily quit their employment to
Although counsel for the Company does not raise the issue in his brief, the
record discloses that Mrs. Hazelwood did not consider herself a member or
participant in the group activity . When Hester, after discharging the employees,
asked if she desired her check she replied in the negative , unless "you are
through with me." While Hester stated she was "not through ,"' nevertheless
the same evening the Company delivered her pay check to her home. About
April 27, Mrs. Hazelwood telephoned Hester in regard to her job but he was
evasive and said she had him "in a spot." Again , she went to the plant and
inquired of her job and Hester replied that he had no objection to her working
and that "This thing will be settled one of these days." Hester concededly did
not recall Mrs. Hazelwood when the plant reopened , nor did he attempt to com-
municate with her prior to replacing her with a new employee . In view of the
Company's course of action the undersigned is of the opinion , and finds, that
Hester considered Mrs. Hazelwood as one of the group and in giving Mrs.
Hazelwood her check shortly after the discharge of the other employees clearly
terminated her employment with the Company. His subsequent statement that
"this thing " will be settled sometime plainly warrants the inference that he
was referring to the group activity of the employees and until that dispute had
been resolved Mrs. Hazelwood would not be considered for reemployment.
Hester 's testimony that Mrs. Hazelwood was not rehired because of her age and
physical condition , as well as the fact that her son could not assist her in her
work, is rejected as being without merit or substance.
Finally, the Company argues that, granting the employees were discharged,
the record is devoid of any evidence indicating that its action was motivated by
any desire to avoid negotiating collectively with the group or because the
employees engaged in concerted activity . Even assuming the absence of evidence
of unlawful motivation it is settled law that where, as here, "once it is made to
appear from primary facts that an employer has violated the express provisions
of the Act, then his motives are not relevant." ( The Office Towel Supply Com-
pany, Incorporated , supra, citing , American Shuffleboard Co. v. N. L. R. B., 190
F. 2d 898 ( C. A. 3) ; N . L. R. B. v. Glueck Brewing, et at., 144 F . 2d 847 (C. A. 8).)
The undersigned therefore finds that the Company discharged Purifoy,
McBride, Hughes, Wells, Kuhn , and Mrs. Hazelwood because they engaged in
concerted activities for the purpose of collective bargaining or other mutual
aid or protection in violation of Section 8 (a) (3) of the Act, and thereby
10 Wells did not testify at the hearing but the evidence fully establishes the fact that he
was a member of the group and was discharged under the same circumstances as his
fellow employees.
ACE HANDLE CORPORATION 1293
interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed by Section 7 of the Act, in violation of Section 8 (a) (1)
thereof.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth above, occurring in connection with
the operations of the 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.
IV. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take the following affirmative action designed to effectuate the policies of the
Act : (1) Offer Arvil Purifoy, A. D. McBride, Kenneth Hughes, Norman Wells,
Bernie Kuhn, and Mary Hazelwood immediate and full reinstatement to their
former or substantially equivalent positions," without prejudice to their sen-
iority or other rights and privileges ; (2) make each of the above-named employees
whole for any loss of pay each may have suffered by reason of the Respondent's
unlawful discharge, by payment to each of them a sum of money equal to the
amount each would normally have earned as wages, from the date of discharge
to the date of the Respondent's offer of reinstatement, less the net earnings of
each during said period," (3) the Respondent shall, upon request, make avail-
able to the Board payroll 'and other records to facilitate the checking of the
amount of back pay, which shall be computed in accordance with the Board's
customary formula;" and (4) that the Respondent be ordered to cease and
desist from in any manner interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. The Respondent, Ace Handle Corporation, is engaged in commerce within
the meaning of Section 2 (6) and (7) of the Act.
2. By discharging Arvil Purifoy, A. D. McBride, Kenneth Hughes, Norman
Wells, Bernie Kuhn, and Mary Hazelwood, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
3. By interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
11 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65
NLRB 627.
12 Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation V. N. L. R. B.,
311 U. S. 7.
13 F. W. Woolworth Company, 90 NLRB 289.