Acme Boot Co., Inc.

National Labor Relations Board - Board Decisions

Jul 16, 1963

143 N.L.R.B. 628 (N.L.R.B. 1963)

628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board
and in order to conduct our labor relations as required by the National Labor Rela-
tions Act , we notify our employees that:
WE WILL NOT discharge or take any other action against any employee be-
cause he has given testimony under the National Labor Relations Act or be-
cause he is a member of, or active in, Metal Processors ' Union , Local No. 16,
AFL-CIO.
WE WILL NOT threaten to close our plant permanently if our employees en-
gage in a lawful strike.
WE WILL offer immediately to John Zajac the job he last held , or a job like it,
without loss of any rights or privileges he had in such job.
WE WILL give John Zajac whatever backpay he lost as a result of being dis-
charged, and we will give Stanley Jasinski whatever backpay he lost as a result
of not being recalled in accordance with seniority after his layoff in June 1962.
PORAY, INC.,
Employer.
Dated--- ---------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Midland
Building, 176 West Adams Street, Chicago, Illinois, 60603 , Telephone No. Central
6-9660, if they have any questions concerning this notice or compliance with its
provisions.
Acme Boot Company, Inc. and United Rubber, Cork , Linoleum
and Plastic Workers of America, AFL-CIO. Cases Nos. 26-CA-
1291, 26-CA-1331, 26-CA-1353, 26-CA-1360, 26-CA-1366, 26-
CA-1393, 26-CA-1421, 26-CA-1422, and 26-CA-1427. July 16,
1963
DECISION AND ORDER
On April 17, 1963, Trial Examiner C. W. Whittemore 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 Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.' The General Counsel
filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
1 Respondent 's request for oral argument is hereby denied as, in our opinion , the record,
exceptions, and briefs adequately present the issues and the positions of the parties.
143 NLRB No. 68.
ACME BOOT COMPANY, INC. 629
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prej udicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in these cases, including the
exceptions and briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner?
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.
2 In finding that Respondent had knowledge of employee Richard Hughes ' union activities
and for this reason selected him for layoff , the Trial Examiner predicated this knowledge
on the ground that Hughes openly wore a union button in the plant. The record fails
to disclose that Hughes did wear such a button. However, the record does show that
Hughes was active in obtaining signed authorization cards in the plant, and that he
attended union meetings which Respondent had surveilled. While we concur in the Trial
Examiner's ultimate conclusion that Respondent diseriminatorily laid off Hughes for en-
gaging in union activity in violation of Section 8(a) (3) of the Act, we find that Respond-
ent acquired knowledge of Hughes ' union activity because of his role in procuring signed
authorization cards and his attendance at the union meetings, and we do not rely on
the ground advanced by the Trial Examiner.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The above-named labor organization filed original charges as follows: in Case
No. 26-CA-1291 on June 1, 1962; in Case No. 26-CA-1331 on July 20, 1962; in Case
No. 26-CA-1353 on August 15, 1962; in Case No. 26-CA-1360 on August 22, 1962;
in Case No. 26-CA-1366 on August 31, 1962; and in Case No. 26-CA-1393 on
October 9, 1962. Amended charges were filed by the same labor organization as
follows: in Case No. 26-CA-1291 on July 11, 1962; in Case No. 26-CA-1331 on
August 20, 1962; in Case No. 26-CA-1360 on September 19, 1962; and in Case
No. 26-CA-1366 on October 9, 1962. Upon said charges and amended charges the
General Counsel of the National Labor Relations Board issued the following: an
original complaint and notice of hearing in Case No. 26-CA-1291 on July 20, 1962;
orders consolidating cases, and amended and consolidated complaints on Septem-
ber 7 and 27, 1962; an original complaint in Case No. 26-CA-1360 on October 10,
1962; an original complaint in Case No. 26-CA-1366 on October 10, 1962; an
order consolidating cases on October 10, 1962; an original complaint in Case No.
26-CA-1393 on October 26, 1962, and on the same date an order consolidating cases.
Answers were duly filed by the Respondent. The complaints alleged and the answers
denied that the Respondent had engaged in and was engaging in unfair labor practices
in violation of Section 8(a)(3) and (5) of the National Labor Relations Act, as
amended. Pursuant to notice, a hearing was held in Clarksville, Tennessee, on
November 26, 27, 28, 29, and 30, 1962, before Trial Examiner C. W. Whittemore.
The same labor organization filed as follows: in Case No. 26-CA-1421 an original
charge on December 4, 1962, and an amended charge on December 21, 1962; in Case
No. 26-CA-1422 an original charge on December 4, 1962, and an amended charge
on December 31, 1962; and in Case No. 26-CA-1427 an original charge on Decem-
ber 7, 1962. Upon these charges the General Counsel issued an order consolidating
said cases and a complaint on January 10, 1963.
On January 10, 1963, General Counsel filed with the Trial Examiner a motion to
consolidate Cases Nos. 26-CA-1421, 26-CA-1422, and 26-CA-1427 with the six
cases previously noted. On January 15, 1963, the Trial Examiner issued a show
cause order and on January 28, 1963, an order consolidating the cases and reopen-
ing the hearing. Answers to the latter three cases were duly received from the Re-
spondent. Pursuant to notice the hearing was reopened on February 25, 1963, and
sessions were held on February 25, 26, and 27, 1963.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At all hearings all parties were represented and were afforded full opportunity, to
present evidence pertinent to the issues , to argue orally , and to file briefs . Briefs
have been received from General Counsel and the Respondent.
Upon the record thus made, and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Acme Boot Company, Inc., is a New York corporation, all of its capital stock be-
ing owned by the Philadelphia and Reading Corporation. It operates five plants in
Tennessee: in Clarksville, Springfield, Ashland City, Cookesville, and Waverly. Only
the Clarksville, Springfield, and Ashland City plants are immediately involved in these
,proceedings. Each plant is engaged in the manufacture of boots.
During the year preceding issuance of the original complaint, the Respondent pur-
chased and received directly from points outside Tennessee, materials and supplies
valued at more than $50,000, and during the same period sold and shipped directly
,to points outside Tennessee finished products valued at more than $50,000.
The complaints allege, the answers admit , and it is here found that the Respondent
is engaged in commerce within the meaning of the Act.
H. THE CHARGING UNION
United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, is a
labor organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues
All issues raised by the complaint stem from self-organizational efforts among the
Respondent's Clarksville employees, totaling, in August 1962, about 475. The
organizing campaign began in the late spring of that year and at its inception was led
by employee Henry Self. As the Clarksville activity grew, employees W. B. Reed
and Wayne Gentry at the Ashland City plant initiated, in August, a similar campaign
among their fellow employees, and shortly thereafter employees John Wilson and
Arthur Kempf assumed leadership in a similar movement at the Springfield plant
All of these individuals were dismissed, allegedly unlawfully and to discourage union
membership. Undisputed evidence establishes marked management hostility toward
employees at each of the three plants in their exercise of rights guaranteed by the
Act.
As will be described more fully below , out of this struggle between management
and employees, the one to deny and the other to attain rights guaranteed by the
statute, there developed action claimed by General Counsel, and denied by the
Respondent, to constitute unlawful refusal to bargain at the Clarksville and Ashland
City plants , and the unlawful termination of employment of many employees at
each of the three plants.
B. Events in issue at Clarksville
1. Interference , restraint, and coercion
Uncontradicted testimony establishes , and it is found, that foremen at this plant
unlawfully interfered with the organizational rights of employees as follows:
(a) On numerous occasions in May and thereafter, Supervisor Zarthan Martin and
Foreman Gibbs called employees Albright and Nunn into the office and interrogated
them as to union meetings being held, who was attending, who was distributing
cards, and who was leading the organizing; and further asked them to keep them
informed as to such union activity. Nunn told Martin, after one meeting, that the
only employee he recognized there was Henry Self, whom the supervisor had
previously told him he intended to discharge and to prevent from getting other em-
ployment in Clarksville.
(b) In May, Foreman J. B. Tucker asked employee L. W. Wall if he had "signed
anything" for the Union. When the employee replied in the negative, Tucker warned
him "not to fool with" the Union in any way. On another occasion Tucker asked him
if he had seen anyone "passing out anything" for the Union.
(c) In June, Supervisor Gibbs asked employee James Jones if he was "for" the
Union and why.
(d) Later in June, Supervisor Frank Nixon asked employee J. G. Steiner if anyone
had "approached" him "about organizing."
ACME BOOT COMPANY, INC . 631
2. The discharges
Henry Self: As noted heretofore this employee led the organizational campaign at
this plant. The Respondent offered no evidence to contradict credible testimony which
establishes the following factors clearly sustaining General Counsel's contention that
his discharge was violative of the Act:
(a) At the request of other employees, Self approached a representative of the
Charging Union, obtained authorization cards, and distributed them among em-
ployees in various departments.
(b) In April, Foreman Carl Mullins, who worked under Department Supervisor
Zarthan Martin, was called into the latter's office, where he and Foreman Gibbs were
told that they had a man "in the shipping room that was fooling around with the Un-
ion" and that they "had to get rid of him." Gibbs asked who. Martin replied, "Henry
Self." About this time O. N. Vick, in complete charge of operations at this plant,
entered the conversation. Vick declared, "We'll transfer him [Self] to the cutting
room and let him mess up some work and lay him off for that." Mullins said that he
would have nothing to do with this action because the "boys were my friends."
(Mullins resigned voluntarily shortly after this-the quotations are from his un-
disputed testimony.)
(c) Shortly after this Foreman Tucker of the cutting room tried to persuade Self to
ask for a transfer to his department. Self said he would think it over. Later the same
day Foreman Mullins warned Self not to accept the transfer and told him of the plan
evolved by Vick to discharge him.
(d) Self did not take the transfer. As a stock runner of long experience, he was
deprived of his helper. Foreman Gibbs began complaining about his work, and
accused him of putting shoes in the wrong place. No complaints had been made
about his work during the prior 5 years of employment.
(e) On May 24, Self was given his final paychecks and was discharged, being in-
formed that his work was "unsatisfactory."
(f) As noted above, shortly before his discharge, Supervisor Martin told employee
Nunn that he was going to fire Self and make it hard for him to get work in Clarks-
ville.
The Trial Examiner concludes and finds that Self was discharged on May 24, 1962,
to discourage union membership and activity.
D. H. Bumpus: This employee was also a stock runner in the same department
with Self, and was without previous notice suddenly discharged the same day, by the
same foreman, Frank Gibbs. His testimony is undisputed to the effect that Gibbs
saw him receive from Self a union card, which he signed. As in the case of Self, he
was deprived of his helper after the union campaign began, and then, for the first
time since his employment, Gibbs began to criticize his work. When dismissed, he
was merely told, as was Self, that his work was unsatisfactory.
Also as in the case of Self, the Respondent offered no evidence as to why Bumpus
was fired. Under such circumstances, especially those described by Foreman Mullins
as to top management's instructions to find pretexts to discharge Self, the Trial Ex-
aminer in convinced and finds that Bumpus was unlawfully discharged in order to
discourage union membership and activity.
Ray Bartee: On July 27, a few days after the Union's demand for recognition at
the Clarksville plant-as described more fully in a later section, the same foreman
summarily discharged Bartee, a "picker" in the department. Bartee had actively
assisted in the union organization, passing out cards and wearing a union button
openly. It is clear and is found that Gibbs well knew of his union adherence. When
paid off, he was given a separation notice stating that he had failed to comply with
company rules.
The Respondent called no witness to explain this discharge, or to meet the reason-
able inference to be drawn from General Counsel's prima facie case. The Trial
Examiner concludes and finds that Bartee was discharged to discourage union
membership.
Melvin Bum pus: This employee was also fired on July 27. At the time he had
worked for the Company more than 25 years. Not until he began wearing a union
button openly, shortly before his dismissal, had he ever been seriously criticized
about his work. The day before his discharge, when he went in to work, he found
others inspecting his boots, trying to find faults with them. The assistant foreman,
Graham, bluntly told him, "The union pin you are wearing won't keep you from
getting fired." The next day he was discharged by Foreman Gruzas. Bumpus asked
him if they had "ever had any falling out or complaints." Gruzas replied in the
negative, and only said, "I've got to let you go."
As in the cases noted above, the Respondent offered no management witness to
dispute Bumpus' testimony or to give any reason for the discharge of an employee
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of so long a service . The Trial Examiner concludes and finds that the employee was
discharged to discourage union membership and activity.
3. The layoffs
Nine Clarksville employees are named in the complaints, as amended, as having
been discriminatorily laid off on various dates, as follows:
Elton Austin --------- July 10 John Heaton ---- September 28
William C. Hall ------- July 12 Thelma Haley____September 28
Ray Patterson --------- July 12 Martha Belter___September 28
Richard Hughes ------- July 12 Louise Hall ____-November 13
Mary McCormack ----- July 18
First to be considered will be the July layoffs-all of which, except that of Austin,
took place immediately after the Respondent's receipt of notification from the Union
that it represented a majority of its employees.
Elton Austin: Since this employee was laid off on July 10, the day the union letter
was sent, the Trial Examiner draws no inference that the receipt of that letter could
have prompted his layoff. He was, however, active in the union organization, and
wore his union button openly. On the day of his layoff, it is undisputed that he was
seen by his foreman, Woodrow Mullins, to receive a number of cards from another
employee in the plant. At the time Austin was operating a stapling machine. Later
that day Mullins came to him and summarily laid him off, telling him his machine
was being moved out. The Respondent offered no credible affirmative evidence to
show that his job actually was discontinued on that date or why, if it had been, he
should not have been transferred to other work. As will be noted more fully here-
inafter, many new employees in various departments were hired after this date. And,
apparently disturbed by the lack of any meritorious defense, the Respondent recalled
Austin and gave him other work a few days before the original hearing opened. The
Trial Examiner is convinced and finds that Austin was actually laid off to discourage
union membership and activity.
Hughes, Patterson, and Hall: All three of these employees were, without previous
notice, laid off on July 12 by Foreman Crockrell, being told that their jobs were
being discontinued. All three were active union members, wearing buttons openly.
Company knowledge of their union adherence is reasonably inferred. Crockrell, who
apparently selected these three for layoff, was not a witness. While the record con-
tains some general testimony from the Respondent's president to the effect that about
this time certain operations were being moved to other plants, there is no direct
testimony from management witnesses as to why these three were either laid off out
of seniority or not transferred to other departments. As noted, many new employees
were after this date hired in other departments,' and it is reasonable to believe that
Hughes, Patterson, and Hall were as capable as individuals who had never worked
for the Company in any capacity.
Under the circumstances plainly established as having existed at the Clarksville
plant during this period-management's program of finding pretexts to rid the
premises of known union adherents-the Trial Examiner is convinced and finds that
these three individuals were victims of the same unlawful motive, and that they were
actually laid off on July 12 to discourage union membership and activity.
Mary McCormack: This employee worked under Foreman J. B. Tucker. She
signed a union card, solicited signatures from other employees, and attended union
meetings. Since it has been previously found, on the basis of undisputed evidence,
that management instructed at least two employees to report on union meetings, it
is reasonably inferred that management was well aware of McCormack's union ad-
herence. She was without warning laid off on July 18, being told by her foreman that
her job was being discontinued.
While the Respondent did adduce some evidence to the effect that certain cutbacks
in production were invoked about this time, it offered no credible explanation for
not transferring her to other work. And as previously noted, many new employees
were hired after her layoff.
Heaton, Haley, and Better: All three of these employees were working in the
cutting room at the time of their summary layoff on September 28 by Foreman
Tucker. All three were active union adherents who openly wore their union buttons.
It is undisputed that Tucker warned Heaton to "keep his mouth shut" about the
1 The testimony of several employees, including the three involved, shows plainly that
transfers between departments was not infrequent. And as found heretofore, it is un-
disputed that Vick, in charge of the plant, planned to have Self transferred so he could
be fired.
ACME BOOT COMPANY, INC. 633
Union, and not to speak about it except on the street or at home. It is also undis-
puted that Tucker asked Haley why she was wearing the button, and that she then
told him she had signed a union card. Their credible testimony to the effect that
they had greater seniority than others finds dubious rebuttal in Tucker' s mere claim,
unsupported by documentary evidence, that he chose them for layoff in a seniority
basis. No credible explanation was offered for not transferring them to other work
or not recalling them instead of hiring new employees. The Trial Examiner is con-
vinced and finds that the three were selected for discriminatory layoff to discourage
union membership and activity.
Louise Hall: Hall had been employed by the Respondent for a little less than a
year when she was laid off by Foreman Tucker, being told that her job was being
discontinued. While she did not wear her union button openly, she had signed
a card and attended union meetings. That her foreman was aware of her union
adherence is established by the fact that he asked her when she was going to put
her button on and advised her that "everybody should leave it alone." It is her
credible testimony that at the time of her layoff, at least three employees with lesser
seniority were retained.
The Trial Examiner concludes and finds that Hall, like the others working under
Tucker, were unlawfully laid off to discourage union membership and activity.
4. Summary as to the Clarksville discharges and layoffs
The Trial Examiner concludes and finds that the four discharges and nine layoffs,
described above, not only were violative of Section 8(a) (3) of the Act but also inter-
fered with, restrained, and coerced employees in the exercise of rights guaranteed
by Section 7 of the Act.
5. The refusal to bargain
The complaint alleges that since August 9, 1962, the Respondent has unlawfully
refused to bargain with the Union as the exclusive representative of its Clarksville
employees in an appropriate unit. The answer admits that in a letter to the Union
dated August 15, the Respondent refused to bargain with the Union " unless and
until it was certified by the National Labor Relations Board."
As to the issue of appropriate unit, although the answer denied that the unit set
forth in the complaint was appropriate for the purposes of collective bargaining,
the Respondent offered no claim at the hearing as to what unit, if not the one alleged,
is appropriate.
Testimony elicited from President Turrentine by General Counsel as to the opera-
tions at the Clarksville plant amply support the latter's contention that an appropriate
unit for the purposes of collective bargaining consists of:
All production and maintenance employees employed at the Clarksville, Ten-
nessee, plant, excluding office clerical employees, guards, and supervisors as
defined in the Act.
This is the unit in which the Union claimed majority representation in letters to Tur-
rentine dated July 10 and August 9, only the latter of which was answered, as noted
above. The entire Clarksville operations are under the supervision of one individual,
Vick, and comprise a single, integrated unit. Clarksville payroll and personnel
records are all kept in this city.
The Trial Examiner concludes and finds that the unit alleged by General Counsel
is an appropriate unit for the purposes of collective bargaining.
As to the question of majority representation. A list of employees on the company
payroll during the week ending August 12, 1962, contains a total of 470 names (ex-
cluding 3 watchmen, who under the Act are automatically excluded from the unit);
to this total should be added, of course, the names of the 9 individuals found above
to have been unlawfully discharged or laid off before August 12. The revised total,
then becomes 479. At the hearing General Counsel placed in evidence 242 union
authorization cards signed by employees prior to this date. All such cards were
authenticated either by way of direct testimony of the individual concerned or by
stipulation of the parties.
Since 242 is more than a majority in a total of 479, it is here concluded and found
that on August 15, 1962, the date of the Respondent's admitted refusal to bargain,
the Union held majority status, and as such was the exclusive bargaining representa-
tive of all employees in the above-described appropriate unit.
The Respondent plainly deprived itself of any right it might under other circum-
stances have had to withhold recognition until Board certification, by its overt
flaunting of employee rights in unlawfully discharging and laying off known union
adherents . On this point the Board and the courts have been in agreement since
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Joy Silk, Mills case, Joy Silk Mills, Inc. v. N.L.R.B., 185 F. 2d 732 (C.A.D.C.),
cert. denied 341 U.S. 914.
In summary the Trial Examiner concludes and finds that on and after August 15,
1962, the Respondent refused to bargain collectively with the Union as the exclusive
representative of all employees in an appropriate unit, and thereby interfered with,
restrained, and coerced employees in the exercise of rights guaranteed by Section 7
of the Act.
C. Events in issue at Ashland City
1. Interference, restraint, and coercion
Coincident with the Union's second demand for recognition at the Clarksville
plant on August 9, employees at the Ashland City plant decided to organize there.
As at Clarksville, undisputed testimony establishes that top management-even in-
cluding the president of the company himself-took immediate and unlawful action
to deprive employees of their statutory rights.
William B. Reed, Jr., an employee who had been promised training as a foreman,
arranged early in August for a union representative to conduct an organizing meet-
ing. Apparently then unaware of Reed's initiation of the movement, during the day
of August 10, Superintendent Ray instructed Reed to go to the meeting, after in-
forming him where it was to be held, to make note of those attending, to find out
who the leaders were, and to report such information to him the next morning. To
the extent of going to the meeting, Reed complied with his instructions. He told
the assembled employees, however, of his assignment as a spy, and that evening
obtained about 50 signatures to authorization cards. He failed to report the meeting
to Ray, and within a few days was transferred from his job as trainee to rubbing
boots, and was included in the mass layoff of August 28, described below.
It is also undisputed that a few days after the first union meeting President Tur-
rentine came to this plant, and in a speech to the assembled employees told them
that he knew what was going on at Ashland City, informed them that production
was increasing at this plant and he wanted to keep it increasing, and then warned
them that if they "didn't stop this union nonsense that he would take immediate
action." (The quotations are from employee Gentry's credible and uncontradicted
testimony.)
Shortly before being discharged the last of that month, employee McCoy was
told by Superintendent Ray that he had heard he had been "talking union" and that
it would mean the loss of his job. When he returned to the plant for a separation
slip he was told by Ray, "I've got one of your Union pamphlets in my pocket" and
added that if he found out who had brought the pamphlets into the plant he would
fire them, too.
When Jesse Boyd filed an application for employment as a new employee in Oc-
tober 1962, Superintendent Ray told him bluntly, "They are trying to get a union in
here. If you are going to be for it you will not go to work." Boyd told him he
would not be "for the union," and was permitted to go to work. As he reported for
work he was further warned by Foreman Gregory that if he was going to sign a
union card he might as well not start.
2. The mass layoffs of August 28 and 29
The Ashland City employees failed to heed Turrentine's sharp warning in
mid-August. They continued their Union "nonsense" and within a few days after
the president's speech the Respondent received a demand from the Union for
recognition at that plant.
Turrentine's warning proved not be idle. Within a few days nearly 50 em-
ployees were summarily laid off or discharged.
A list of 45 employees admittedly laid off on August 28 and 29 is attached and
marked "Appendix A."
The testimony of President Turrentine is to the general effect that at this time it
was necessary to cut back production, and so employees were laid off. His testimony
is unconvincing and, as General Counsel notes in his brief, remarkably evasive for
one the head of so large a concern. There can be no doubt that production was re-
duced. Unless the plant had been running with extreme inefficiency it could hardly
be expected that production would be maintained after more than 12 percent of its
working force had been eliminated. General Counsel points out in his brief, also,
other factors which wholly discredit Turrentine's claim. A new plant, making the
same type of boots, was being opened and in production at another Tennessee loca-
tion. It is undisputed that just a few days before the summary layoff he told his
employees that he wanted to keep production up at the Ashland City plant. And, in
ACME BOOT COMPANY, INC. , 635
particular, it is undisputed that shortly after the layoff some of these employees were
recalled and many new employees hired.
The Trial Examiner can place no reliance upon Turrentine's claim of economic
necessity. He had made an open threat to employees.. It is clear that upon receiving
the Union's claim `of majority he took immediate and retaliatory measures to imple-
ment that threat .2
The Trial Examiner concludes and finds that all individuals listed in Appendix A
were unlawfully laid off on August 28 and 29, 1962, to discourage union membership
and activity, and that thereby the Respondent interfered with, restrained, and coerced
employees in the exercise of rights guaranteed by Section 7 of the Act.
3. The discharges
Wayne Gentry: For more than 5 years this employee worked for the Respondent
without complaint having been made of his work, until shortly before his discharge
on the day of the mass layoff, August 29.
Gentry was actively associated with Reed in organizing the Union at this plant,
getting other employee's to sign cards at the first meeting on August 10. He wore a
union button openly when he went to work the next day.
Shortly after this his foreman, Morris, began finding minor faults in his work
and on August 29 took him into Superintendent Ray's office, where he was given a
separation slip marked "Poor Work." Gentry asked Ray why "you all are fighting
us so-it's all on account of the union, ain't it?" It is undisputed that Ray merely
replied, "I'll tell you, I hate the union."
The Respondent called no witness to explain Gentry's discharge.
The Trial Examiner concludes and finds that he was discharged to discourage
union membership and activity.
Charles McCoy: Two days after Gentry's discharge, employee McCoy was sum-
marily dismissed. He, too, actively solicited union membership among his fellow
employees, and wore his button in the plant after the first meeting.
Not until the morning of his discharge had his foreman, Doyle Teasley, ever made
complaint about his work. On that occasion Teasley told him that if he "had to go
to the office one more time" with him he was going to "kick him out the door." It
is undisputed-that Teasley had never taken him to the office. Later that day Super-
intendent Ray came out and in the foreman's presence told McCoy that the "union
wasn't going to get us nothing, just cause us to lose our jobs." He added, "That but-
ton don't mean nothing to you."
The following day was Saturday, a nonworking day. Teasley sent him word,
however, to come to the plant. He did so, and was given a "firing slip," which merely
said he had "failed to comply with fixed company rules."
As noted in a preceding section when he returned to the plant for a slip later the
-next week, Ray told him he would also fire whoever brought union pamphlets in, if
he could identify them.
The Respondent called no witness to explain what, if any, rule McCoy had not
complied with, or to offer any reason for his discharge.
The Trial Examiner concludes and finds that McCoy's summary dismissal was of
the same unlawful pattern described in preceding cases and was designed to discourage
union membership and activity.
Terry Dowlen: Dowlen had been employed by the Respondent for about a year and
a half when discharged on October 19, 1962. -
He assisted in the union organization, passing out union literature and accompany-
ing Reed and Gentry to employees' homes. He wore his button openly in the plant.
Immediately after he started wearing his button his foreman, Head, began making
"personal" notes for Dowlen's personnel file concerning faults he had found-in his
work. The first such "note," introduced into evidence by the Respondent through
Head, bears the date of August 17, 1 week after the first union meeting. It is un-
disputed that at the same time Dowlen was transferred, from a job which he was
doing well and where he was making more than his production quota, to another
job where he did make minor mistakes. That the foreman well knew he was putting
2 The preponderance of evidence amply supports General Counsel's allegation that the
mass layoff was unlawful It appears unnecessary, therefore, to burden this report with an
analysis of the further point of discriminatory selection of individuals laid off. It is
noteworthy, however, that a spot check of authorization cards in evidence show that about
75 percent, if not more, of the 45 employees laid off had become union adherents. And
other evidence shows that many of them wore their buttons openly in the plant just before
their layoff.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dowlen on work where mistakes were likely, is established by the uncontradicted
fact that some months earlier, before the union organization began, Head had trans-
ferred him voluntarily from that troublesome job to the one which he performed well
and satisfactorily.
Head's claim that the transfer back to the old job was necessary because Dowlen's
regular job was falling off is wholly discredited by the fact that about 3 weeks before
Dowlen's discharge, a new employee was hired to do that work.
The Trial Examiner is convinced, and finds, that the transfer made by Head was
designed to create a situation which could be used as a pretext for firing the union
adherent. As noted in the case of Self, at the Clarksville plant, this method of ridding
the plants of known union members were planned by top management.
It is therefore concluded and found that Dowlen was unlawfully discharged to
discourage union membership and activity, and not because of unsatisfactory work.
Ruby Elliott: After 4 years of satisfactory service with the Respondent this em-
ployee was discharged on October 22, 1962, being told that it was because she had
left work "without permission."
That she was a known union adherent is established by the fact that she wore
her union button openly in the plant. The pattern of ridding the plant of known
union adherents whenever a pretext arose has been amply established. That her
dismissal falls within such pattern is made clear by the following facts.
On Monday of the week before her discharge, she told her foreman, B. J. Proctor,
that she wanted to take time off the following Friday afternoon in order to visit her
son, then in service in a neighboring State. She offered to work overtime each day
until Friday, in order to get in most of her 40 hours. Proctor told her he would let
her know. According to her credible testimony, Proctor said nothing throughout that
week to indicate that he would not permit her to have a half day off, and there is no
dispute that she did work overtime during that week. On Friday noon she was un-
able to locate Proctor, but told her floorlady, Hudson, that she was leaving as
planned. Hudson merely said, "Okay."
The Trial Examiner cannot credit Proctor's testimony to the effect that when Elliott
asked him on Monday to leave early the following Friday he told her that he could
not grant such permission, and that she told him flatly, "Well, I'm going anyway."
Had Elliott in fact thus flaunted the foreman's authority, it is reasonable to believe
that, seeking pretexts as management clearly was, he would have fired her on the
spot.
In short, the Trial Examiner is convinced and finds that Elliott was discharged on
October 22, 1962, in orer to discourage union membership and activity.
James Hornburger: Hornburger was, until October 26, one of the two janitors at
this plant. Employed first in the manufacturing department, because of his inability
to read well, he was put on janitor work not long after his employment in July
of the same year. It is undisputed that the other janitor, Harris, had the responsibility
of hauling away trash from the loading platform, and for his work received extra
compensation. Until he began wearing his union button openly in the plant there was
no complaint from management about Hornburger's work. It is undisputed that upon
seeing the employee wearing the button, Superintendent Ray told him that he could
not belong to the Union, and that he then began complaining because he did not
haul the trash from the platform. Although it is undisputed, as noted above, that it
was not Hornburger's responsibility to haul the trash away, he was summarily fired
for not doing so on October 26 by the superintendent. Ray then told Homburger
that he would have to go to Clarksville, some 30 miles away, to get his paycheck,
instead of receiving it at Ashland City, as was the custom. The credible testimony of
Homburger is to the effect that upon being told this, he became angry, and did
threaten to "knock the hell" out of Ray.
The Trial Examiner does not credit Ray's claim that this threat preceded the actual
discharge and that the employee was fired because of the threat. That the threat,
at any time, could have disturbed Ray is unbelievable. Homburger is a tiny man,
weighing about 120. Ray admitted that he weighed at least 160.
The superintendent's part in unlawful threats and discharges has been fully
established heretofore, as well as his openly expressed "hate" of the Union and its
adherent. The Trial Examiner therefore concludes and finds that Ray actually dis-
charged this janitor for his union adherence and that he, himself, precipitated the em-
ployee's angry remark by his own unlawful act.
4. Other layoffs
Walter Adcock: After 2 years of apparently satisfactory service with the Respondent,
this employee was laid off on September 17, 1962.
ACME BOOT COMPANY, INC . 637
Documentary evidence in the record shows that he was laid off out of seniority
in his department. On the date of the layoff his foreman, Head, told him either to
take the layoff or perform three other jobs. Since these three jobs were normally
performed by three individuals, and of the three Adcock was only familiar with one,
Adcock accepted the layoff.
The Trial Examiner concludes that both the offer of three jobs instead of the one
to which his seniority entitled him and the layoff were discriminatory.
Adcock had been wearing his union button openly since mid-August and his union
adherence was plainly well known to Head. The foreman's aptitude in carrying out
management's plan of manipulating union employees from one job to another seeking
pretexts for layoff or discharge has been established above, in the case of the discharge
of Dowlen.
In summary, the Trial Examiner concludes and finds that Adcock was unlawfully
laid off on September 17, to discourage union membership and activity.
Donna Hudgens: Hudgens was employed in April 1962, being told by the foreman,
Proctor, that she was to take the place of an employee on leave, but that upon that
employee's return she would be given permanent work.
Despite the foreman's promise, upon the employee's return, Hudgens was sum-
marily laid off on October 3, 1962. And although new employees were hired shortly
thereafter, she was not recalled.
The Trial Examiner is convinced and finds that Proctor unlawfully laid this em-
ployee off to discourage her union activity. She is the mother-in-law of Reed,
previously found to have been the union leader at this plant. She wrote a union
song which was widely distributed throughout the plant-her name being printed
upon it-and she wore her union button openly.
5. Summary
Having found that the above-described discharges and layoffs at the Ashland
City plant were for the purpose of discouraging union membership and activity, the
Trial Examiner finds that they also unlawfully interfered with, restrained, and coerced
employees in the exercise of rights guaranteed by the Act.
6. The refusal to bargain
On August 20, the Union sent the Respondent a written demand for recognition as
the bargaining agent of production and maintenance employees at the Ashland City
plant, claiming majority status, and offering to prove such majority by card check.
As at the Clarksville plant, the Respondent, after first ignoring the demand, later
(on October 3) refused such recognition unless and until a Board certification issued.
As to the unit, for the reasons set forth above in the Clarksville case, the Trial
Examiner concludes and finds that competent evidence sustains General Counsel's al-
legation as to an appropriate unit:
All production and maintenance employees employed at the Respondent's
Ashland City, Tennessee, plant, excluding office clerical employees , guards, and
supervisors as defined in the Act.
According to Turrentine's testimony, the Ashland City plant is self-contained.
As to the question of majority status, competent documentary evidence establishes
beyond question that at the time of the union demand it represented a clear majority of
the employees in the above-described unit.
The payroll list of the week ending the day before the Union demand contains the
names of some 329 employees in that unit. General Counsel introduced into
evidence, by way of personal identification or signatures or by stipulation of the
parties , more than 190 union authorization cards, signed by employees on the payroll
at the time. It is therefore concluded and found that at all times since August 20,
1962, the Charging Union has been the exclusive representative of all employees,
for the purposes of collective bargaining, in the above-described unit.
It is further concluded and found that since on or about October 3, 1962, the
Respondent has refused to bargain with the Union as required by the Act. In view
of its flagrant disregard for other sections of the Act, as found above, there can be
no merit in its contention that it should not be required to bargain until a Board
certification.
By refusing to bargain, the Respondent has interfered with, restrained, and coerced
employees in the exercise of rights guaranteed by the Act.
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Events in issue at Springfield
1. Interference , restraint, and coercion
Undisputed evidence establishes beyond question the fact that Superintendent
Carney, at the Springfield plant, willingly and immediately implemented the anti-
union program openly voiced by President Turrentine on August 16-to take prompt
action if employees did not cease their union "nonsense."
Organization at the Springfield operations began coincident with the second union
meeting in Ashland City on August 17. Many of the Springfield employees went to
Ashland City that night, signed authorization cards, and the next day began wearing
union buttons at the plant.
On that day Carney told employee Hester that while he would not be fired for
being in the Union, he would eventually work himself out of a job. A few weeks
later, after John Wilson had been unlawfully discharged as found below, and
unfair labor practice charges had been served upon the Respondent, Carney told
Hester that although Wilson might then be on a "long vacation," if he had to be
returned to the job all that would be necessary would be to give him three warnings
and he could fire him again. Carney also warned Hester that if he testified as to
this conversation he, himself, would "get up" and swear "it was a lie." Although
Carney was later a witness, he was not questioned regarding his statement about
Wilson or his intent to lie under oath.
On the day buttons were first worn at this plant, Carney came to employee George
Peach and told him he was ready to put him on the foreman training job which had
been promised him previously. The superintendent further remarked, according
to the employee's uncontradicted testimony, "There is a lot of new buttons this
morning. They are going to have to get their work, production and quality." He
added, "You won't have to, you will be on the floor on average pay." Peach then
confessed that he also had a button, and put it on. Carney promptly told him he
would do nothing for him, and said he might as well have not come in to work that
morning. (A few weeks later Peach was discharged by Carney, under circumstances
described below.)
The Trial Examiner concludes and finds that Carney's above-quoted threats con-
stituted interference, restraint, and coercion.
2. The discharges
John Wilson: This employee was summarily fired by Carney 3 days after he and
other Springfield employees had attended the union meeting in Ashland City. Wilson
and Arthur Kempf, whose discharge a few days later will next be described, were
the leaders of the Springfield campaign, circulating authorization cards among their
fellow workers.
- The day after the Ashland City meeting Wilson wore his union button at work.
Superintendent Carney ordered him not to talk to employees on the parking Iot-
a prohibition never before invoked.
On Monday, the next working day, Carney came to him and told him he would
expect both "production and quality" from him. Later the same day, and within
a period of 20 minutes, Carney called his attention to two minor faults in his
work, and then fired him.
It is undisputed that before his final day he had never before been warned about
poor work.
The Respondent offered no evidence as to why Wilson was discharged
The Trial Examiner concludes and finds that he was dismissed to discourage union
membership and activity at the Springfield plant.
Arthur Kempf: For some 2 years Kempf had worked for the Respondent without
complaint until just before his discharge on August 24. As noted above, Kempf
was coleader with Wilson of the local organizing campaign. Upon his appearing
at the plant wearing a union button, Carney ordered him not to talk to anyone in
the plant except his foreman.
Shortly before closing time on August 24 Carney came to him, showed him a
boot with a minor defect, told him it was his third warning and fired him. Kempf's
testimony is undisputed that in fact this was his first complaint, not his third. In
view of the fact found above that the same superintendent told another employee
that he would lie under oath,, it seems not inconsistent that he should have falsified
the truth to Kempf.
In any event, although Carney was a witness at the hearing, he offered no explana-
tion for the summary treatment of Kempf. The Trial Examiner is convinced and
finds that the employee was discharged to discourage union membership and activity.
ACME BOOT COMPANY, INC. 639
Bobby James: James, an employee of about a year's service, attended the August 17
meeting and began wearing the union button at his work. Promptly upon thus
exhibiting his union adherence, his foreman, Taylor, for the first time complained
about his work, and instructed him to perform his edge setting task in a manner
contrary to long custom. Puzzled by such instructions, James went to the super-
intendent, who told him to follow the practice and not Taylor. James returned to
his work, performing it as Carney had instructed. The foreman then approached
the employee and took him into Carney's office. The foreman and the superin-
tendent conferred briefly outside James' presence, returned, and Carney fired him.
This occurred on August 21.
The Respondent offered no witness to explain this strange action of management
representatives. The explanation is plainly revealed by other undisputed facts
establishing the extreme measures management was prepared to invoke to defeat
union organization at this plant. -
The Trial Examiner concludes and finds that James was discharged to discourage
union membership and activity.
Geraldine Clubbs: This employee is the sister of Bobby James and was summarily
fired by Carney 4 days after her brother was dismissed. She signed a union card
obtained from her brother and began wearing her union button. On August 25, as
was her long-established practice, she left her place of work a few moments before
the lunch break to change her shoes. The nature of her work-in cement and
filling-made the change of shoes necessary. Carney saw her, and promptly dis-
charged her, claiming she had violated a company rule.
Carney, although a witness, offered no explanation for her discharge and made
no claim that any such rule had ever existed. The Trial Examiner concludes and
finds that Clubbs was dismissed, as was her brother, to discourage union membership
and activity.
George Peach: Previously employed at this plant, Peach was rehired in April 1962.
It is undisputed that upon rehire he was promised later training for a foreman's job,
a fact clearly indicating the high estimate then placed upon him by management.
He attended the union meeting on August 17, and, as found above, was told by
Carney the next morning to start his trainee work-until the superintendent dis-
covered that Peach himself had joined the union movement. As noted, on the same
occasion Carney displayed his resentment by telling Peach that he might as well not
have come in that morning.
Immediately after learning of his union adherence Carney began a persistent cam-
paign of complaining about minor mistakes in the employee's work, in an obvious
attempt to force Peach to quit. He did not quit.
Late in September, on succeeding weeks, two garnishments involving Peach ap-
peared at the plant. Peach was promptly discharged by the superintendent.
While it is true that Respondent did have a rule about garnishments, which had on
at least one other occasion brought about an employee's discharge, the Trial Ex-
aminer does not believe that this was the real reason for the discharge of Peach-
chiefly because of the complete untrustworthiness of Carney's testimony on any-
point.
Whether the sudden appearance of a ready pretext for the discharge was pre-
cipitated by Carney or not, the Trial Examiner is convinced and finds that the real,
motive for the superintendent's action had previously been revealed in his expressed-
resentment upon discovering the employee' s union adherence.
It is concluded and found that Peach was unlawfully discharged to discourage,
union membership and activities.
3. The layoffs
The complaint places in issue the allegedly unlawful layoffs of eight employees,
on various dates, at this plant. They will be considered chronologically.
Faylene Hutcherson: This employee had worked for the Respondent for about a
year and a half when she was summarily laid off on August 28, a few days after
she began wearing her union button at work. Two days before her layoff she was
twice handed written warnings about merely breaking a needle, a common occurrence
for which never before had such warnings been issued. She was told when laid off
that it was because of her low efficiency and cut in production.
Carney's unsupported claim that she was laid off for lack of work is not credited.
She was recalled to work in January 1963. It is undisputed that just before the re-
opening of the hearing in this matter, February 25, she was told by her foreman that
"that damn Union button wasn't going to do me any good and (in) two or three days
it would all be over and the company wouldn't have us back."
Paul DeSheles: This employee began wearing his union button a few days after the
campaign in Springfield began. The day before his sudden layoff on September 4,
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his foreman, Carroll, came to him for the first time with a written complaint about
some minor error. Upon being laid off he was told it was because of lack of work.
Superintendent Carney, as a witness, said that lack of work was the reason. There
being no credible evidence supporting Carney's claim, his statement is rejected as
unreliable. In any event, it is DeSheles' credible testimony that another employee
with less seniority was retained.
James Campbell: So far as the record shows this employee had been a satisfactory
worker for about a year when he was suddenly, upon Carney's orders, laid off on
September 14. Shortly before this he had started to wear his union button at work.
Soon after this exhibition of his union adherence Carney took him off his regular
work and assigned him to "pulling tacks." On the day of the layoff, it is uncontra-
dicted, he heard Carney tell his foreman, Williams, to "lay that boy off." Later in
the day Williams did so, telling the employee he was sorry but he had to follow orders.
For reasons already set forth, the Trial Examiner does not credit Carney's un-
supported testimony that Campbell was laid off for lack of work.
Irene Jackson: Jackson had been employed more than 2 years when summarily laid
off on September 24. She also wore a union button in the plant. On the day of her
layoff she was told by her foreman, Taylor, that she would be recalled when work
picked up. More than a dozen employees had lesser seniority than she at the time.
As in other cases at this plant, and for the reasons heretofore noted, the Trial Ex-
aminer does not believe Carney's testimony to the effect that she was laid off for lack
of work.
Everett Sanders: Sanders had been working for the Respondent when suddenly
laid off on September 25. He had never had any complaints about his work until
after he began wearing his union button. He was told that he was being laid off be-
cause of lack of work. A dozen or more employees with lesser seniority, however,
were retained.
Samuel Ogg and Bobby Ogg: These two employees were laid off on the same day,
October 5. Both wore union buttons at work. Both were told that the layoff was
caused because of lack of work.
No credible evidence was offered by the Respondent to show that in fact there was
any lack of work for these two employees.
Charles Reeder: Reeder had been employed for about a year when laid off on
November 21 by Foreman Taylor and being given a separation slip denoting that it
was for "lack of work." It is undisputed that on this occasion his foreman told him
"This is not my idea. If it had been my idea you would have still been over there
working." Reeder was the only employee in his department wearing a union button.
He was laid off despite the fact that he had seniority over at least three of the others.
The unsupported claim of lack of work is not credited.
4. Summary as to the layoffs and discharges
Not only Carney's unreliability as a witness but company records refute the claim
of lack of work as the reason for the above-described layoffs. Such records show
that since August 1962, when the layoffs began, about 60 new employees in various
departments were hired.
The Trial Examiner concludes and finds that the real reason for the described
layoffs, like the discharges, at the Springfield plant was to discourage union member-
ship and activity. By such unlawful action the Respondent interfered with, re-
strained , and coerced employees in the exercise of rights guaranteed by Section 7
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices the Trial
Examiner will recommend that it cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
The record contains statements of counsel and testimony from employees con-
cerned to the effect that some of the individuals, found herein to have been unlaw-
fully discharged or laid off, have since the date of their unlawful dismissal been
offered and have accepted recall. At the close of the hearing there also appeared
ACME BOOT COMPANY, INC. 641
possibilities that others might soon be recalled . In view of current uncertainty it
will be recommended that the Respondent , at each of the three plants herein involved,
offer immediate and full reinstatement to each of the discriminatees named herein,
including those listed in Appendix A, to their former or substantially equivalent
positions, without prejudice to their seniority and other rights and privileges. It will
also be recommended that the Respondent make whole each of said employees for
loss of earnings from the date of the discrimination to the date of offer of reinstate-
ment-or to the date of full reinstatement, as the case may be-by payment to him
or her of a sum of money equal to that which he or she would normally have earned
as wages, absent the discrimination, during said period and in the manner prescribed
by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
In view of the serious and extended nature of the Respondent's unfair labor
practices it will be recommended that it cease and desist from in any manner in-
fringing upon the rights of employees guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of employees,
as described herein, to discourage membership in a labor organization, the Re-
spondent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a)(3) of the Act.
3. At the Respondent's plants at Clarksville and Ashland City, a separate but ap-
propriate unit within the meaning of Section 9(b) of the Act for the purpose of
collective bargaining with respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment consists of the following:
All production and maintenance employees, excluding office clerical employees,
guards, and supervisors as defined in the Act.
4. By virtue of Section 9(a) of the Act, the above-named labor organization has
been since August 12, 1962, at Clarksville, and August 20 at Ashland City, and now
is, the exclusive representative of all employees in the said units for the purpose of
collective bargaining with respect to rates of pay, hours of employment, and other
terms and conditions of employment.
5. By refusing on or about August 15 at Clarksville, and October 3, 1962, at
Ashland City, to bargain collectively with the said labor organization as the exclusive
representative of all employees in the said units, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of
the Act.
6. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed by 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.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon the
entire record in the case, the Trial Examiner recommends that the Respondent,
Acme Boot Company , Inc., its officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO, or in any other labor organization, by discharging,
laying off, or refusing to reinstate any of its employees because of their union
membership or activities, or in any other manner discriminating in regard to hire
or tenure of employment, or any term or condition of employment.
(b) Refusing to bargain collectively with the above-named labor organization
as the exclusive representative of all its employees in the following separate but
appropriate units at its Clarksville and Ashland City plants, and, if an understanding
is reached at either or both such plants, embody such understanding in a signed
agreement:
All production and maintenance employees, excluding office clerical employ-
ees, guards, and supervisors as defined in the Act.
642, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) 'Unlawfully interrogating employees as to their union sympathies, instructing
employees to engage in surveillance of union meetings, or threatening reprisals to
discourage union membership and activities.
(d) In any other manner interfering with, restraining, and coercing employees in
the exercise of the right to self-organization, to form labor organizations, to join or
assist the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other concerted activi-
ties for the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-named labor organization
as the exclusive representative of the employees in each of the above-described ap-
propriate units, and embody any understanding reached in a signed agreement.
. (b) Offer immediate and full reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority or other rights and privileges, and
make them whole for any loss of pay they may have suffered by reason of unlawful
discrimination against them, in the manner set forth in the section above entitled,
"The Remedy," to the following named employees and to all employees listed herein
in Appendix A;
At Clarksville:
Henry Self Richard Hughes
D. H. Bumpus Mary McCormack
Ray Baitee John Heaton
Melvin Bumpus Thelma Haley
Elton Austin Martha Belter
William C. Hall Louise Hall
Ray Patterson
At Ashland City (all employees named in Appendix A) :
Wayne Gentiy James Hornburger
Charles McCoy Walter Adcock
Terry Dowlen Donna Hudgens
Ruby Elliott
At Springfield:
John Wilson Paul DeSheles
Arthur Kempf James Campbell
Bobby James Irene Jackson
Geraldine Clubbs Everett Sanders
George Peach Samuel Ogg
Faylene Hutcherson Bobby Ogg
Charles Reeder
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary for the de-
termination of the amount of backpay due and right of reinstatement under terms
described herein.
(d) Post at its plants in Clarksville, Ashland City, and Springfield, Tennessee,
copies of the attached notice marked "Appendix B." 3 Copies of said notice, to be
furnished by the Regional Director for the Twenty-sixth Region, shall, after being
duly signed by the Respondent, be posted by it immediately upon receipt thereof, and
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 said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for the Twenty-sixth Region, in writing, within
20 days from the date of the service of this Intermediate Report and Recommended
Order, what steps the Respondent has taken to comply herewith.4
3In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommended Order of a Trial
Examiner" in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order"
I In the event that this Recommended Order be 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 the Respondent has taken to comply herewith."
ACME BOOT COMPANY, INC.
APPENDIX A
643
MASS LAYOFFS AT ASHLAND CITY PLANT ON AUGUST 18, 29, 1962
William Owen Laura Story Thomas Wells
Peggy Hudgens Christine Simmons Faye Elliott
William Reed,-Jr.' Charles Jackson Earl Inman
Kate Stewart Allen Swaw Linda Morgan
Opal Forbes Maryetta Williams Mae Dowlin
Fay Jordan T. L. Nicholson Dimple Albrittin
Jean Owens R. R. McCarver Donald Potts
Elbert James Dolly Mae Proctor Ronnie Adkins
V. E. Hudgens Rex Reed Shirley J. Balthrop
Frances Carroll Earl Barnes Stanley Morris
Betty Chandler Nadine Hamilton Billy Hamilton
Eloise Orange H. A. Forbes John Biggs
Linda Binkley Mike Dwyer Patricia Reed
Flossie Harris Buford Glasgow Gayle Heicher
Barbara Tittsworth Marie Potts Jerome Sanders
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to conduct our labor relations in compliance with
the National Labor Relations Act, we notify you that:
WE WILL NOT unlawfully discourage our employees from being members of
United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO,
or any other union.
WE WILL NOT violate any of the rights you have under the National Labor
Relations Act to join a union of your choice or not to engage in any union
activities.
WE WILL bargain collectively with the above-named Union as the exclusive
representative concerning wages, hours, and working conditions of our employees
at the Clarksville and Ashland City plants.
WE WILL offer each of the employees named below and all employees named
on the attached list of layoffs at Ashland City, reinstatement to his or her former
job and will give them backpay for loss of earnings.
At Clarksville:
Henry Self Richard Hughes
D. H. Bumpus Mary McCormack
Ray Bartee John Heaton
Melvil Bumpus Thelma Haley
Elton Austin Martha Belter
William C. Hall Louise Hall
Ray Patterson
At Ashland City:
Wayne Gentry Donna Hudgens
Charles McCoy James Hornburger
Terry Dowlen Walter Adcock
Ruby Elliott
At Springfield:
John Wilson Paul DeSheles
Arthur Kempf James Campbell
Bobby James Irene Jackson
Geraldine Clubbs Everett Sanders
George Peach Samuel Ogg
Faylene Hutcherson Bobby Ogg
Charles Reeder
717-672-64-vol. 143-42
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain members of the Union named
above, and they are also free to refrain from joining any union.
ACME BOOT COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) (Title)
NoTE.-We will notify any of the above -named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica.
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948 , as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office , 714 Falls
Building, 22 North Front Street , Memphis, Tennessee , 38103, Telephone No.
Jackson 7-5451, if they have any questions concerning this notice or compliance with
its provisions.
Allied Grocers Cooperative , Inc. and International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local 677. Case No. 1-RC-6787. July 16, 1963
DECISION AND ORDER CLARIFYING CERTIFICATION
On March 5, 1962, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local 677, was cer-
tified as the representative of the employees of the Employer in the
following unit :
All employees, including part-time employees at the Employer's
wholesale establishment in Torrington, Connecticut, but exclud-
ing office clerical employees, guards, professional employees, and
supervisors as defined in the Act.
On September 19,1962, the Employer filed a motion for clarification
of unit, requesting the Board to clarify the certification by determin-
ing that the individuals occupying the positions of stock supervisor,
dairy and meat department supervisor, and frozen food supervisor are
supervisors as defined by the Act and should be excluded from the
unit. On November 21, 1962, the Board issued a notice directing the
Petitioner to show cause why the Board should not consider and rule
upon the Employer's motion on the basis of the facts stated therein.
Thereafter, on December 3, 1962, the Union filed a response to the
Board's notice, contending that the three employees were not
supervisors.
On December 11, 1962, the Board ordered a hearing held on the
issues raised by the Employer's motion for clarification of unit and
the Union's response to the notice to show cause. Thereafter, a hear-
ing was held before A. Gene Niro, hearing officer. The hearing offi-
143 NLRB No. 67.