Atlas Boot Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Aug 10, 1956

116 N.L.R.B. 565 (N.L.R.B. 1956)

ATLAS BOOT MANUFACTURING CO., INC. 565
WE WILL, upon request, furnish the above-named Union with such record
information or other data as will substantiate our position of inability to
pay any wage increase.
The bargaining unit is:
All production and maintenance employees at our Charleston, South Caro-
Iina, plant , but excluding clerical and office employees, watchmen , profes-
sional employees , and supervisors as defined in the Act.
B. L. MONTAGUE COMPANY,
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.
Atlas Boot Manufacturing Co., Inc. and Boot and Shoe Workers
Union, AFL-CIO. Case No. 10-CA-2309. August 10, 1956
DECISION AND ORDER
On March 9, 1956, Trial Examiner James A. Corcoran 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. The Trial Examiner also recom-
mended that certain complaint allegations be dismissed. Thereafter,
the Respondent filed exceptions to the Intermediate Report and a sup-
porting brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The, Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as hereinafter noted.
We do not adopt the Trial Examiner's finding that Supervisor
Dabbs' statement to Ruth Newman that he would fire employees
Thompson and Dyer "if they did not quit passing out literature and
talking Union on company time" violated Section 8 (a) (1). Dabbs'
remark was merely the expression of the Respondent's right as an em-
ployer to insist that employees devote working time to work.'
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)' of
the National Labor Relations Act, as amended, the National Labor
' See Republic Aviation Corporation v N. L. R. B.; N L. R. B. v. LeTourneau Company
of Georgia, 324 U. S. 793, 803, footnote 10.
116 NLRB No. 78.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that the Respondent, Atlas Boot Manu-
facturing Co., Inc., Cookeville, Tennessee, its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Boot and Shoe Workers Union,
AFL-CIO, or in any other labor organization of its employees, by
discriminatorily discharging employees, or in any other manner dis-
criminating in regard to hire or tenure of employment, or any term
or condition of employment.
(b) Threatening its employees with reprisals because of their
union activities.
(c) Threatening to or engaging in surveillance of union meetings.
(d) Interrogating its employees concerning their membership in,
or activity in behalf of, Boot and Shoe Workers Union, AFL-CIO, or
any other labor organization, in a manner constituting interference,
restraint, or coercion in violation of Section 8 (a) (1) of the Act.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Boot and Shoe Workers Union,
AFL-CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such activ-
ities, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Robert L. Thompson immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to seniority or other rights and privileges previously enjoyed, and
make him whole in the manner set forth in the section of the Inter-
mediate Report entitled "The Remedy" for any loss of pay he may
have suffered because of the discrimination against him.
(b) Upon request make available to the National Labor Relations
Board and its agents, for examination and copying, all payroll rec-
ords, social-security payment records, timecards, personnel records and
reports, and all other records necessary to determine the amount of
back pay due under the terms of this Order.
(c) Post at its plant in Cookeville, Tennessee, copies of the notice
attached hereto marked "Appendix." 2 Copies of such notice, to be
furnished by the Regional Director for the Tenth Region, shall, after
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."
ATLAS BOOT MANUFACTURING CO., INC. 567
being duly signed by the Respondent's authorized representative, be
posted by the Respondent immediately upon receipt thereof and be
maintained by the Respondent for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, as to the steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent has violated the Act otherwise than as herein found,
be, and it hereby is, dismissed.
CHAIRMAN LEEDOM and MEMBER MURDOCK took no part in the con-
sideration of the above Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Boot and Shoe Workers
Union, AFL-CIO, or in any other labor organization of our
employees, by discriminatorily discharging any of our employees,
or in any other manner discriminating in regard to hire or tenure
of employment, or any term or condition of employment.
WE WILL NOT threaten our employees with reprisals because of
their union activities.
WE WILL NOT threaten to or engage in surveillance of union
meetings.
WE WILL NOT interrogate our employees concerning their mem-
bership in, or activity on behalf of, Boot and Shoe Workers
Union, AFL-CIO, or any other labor organization, in a manner
constituting interference, restraint, or coercion in violation of
Section 8 (a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self- organiza-
tion, to form labor organizations , to join or assist Boot and
Shoe Workers Union, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their own
choosing and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Robert L. Thompson immediate and full rein-
statement to his former or substantially equivalent position, with-
out prejudice to seniority or other rights and privileges previously
enjoyed, and make him whole for any loss of pay he may have
suffered as a result of our discrimination against him.
ATLAS BOOT MANUFACTURING Co., INC.,
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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
A charge and amended charges having been filed by the Boot and Shoe Workers
Union, AFL-CIO,' hereinafter called the Union, against Atlas Boot Manufacturing
Co., Inc., herein subsequently referred to as the Respondent, the General Counsel
of the National Labor Relations Board, herein referred to as the General Counsel
and Board, respectively, on August 2, 1955, by the Regional Director for the Tenth
Region (Atlanta, Georgia), issued and served upon the Respondent a complaint to-
gether with notice of hearing thereon. The complaint alleged that the Respondent
had engaged in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1) and (3) and of Section 2 (6) and (7) of the National Labor Re-
lations Act, as amended, herein called the Act.
With respect to the unfair labor practices the complaint alleged in material sub-
stance that the Respondent: (1) On or about April 15, 1955, discharged worker
Robert Thompson because of his membership in and activities on behalf of the Union,
in violation of Section 8 (a) (3) of the Act, and has failed and refused to reinstate
the said worker to employment; (2) on sundry dates, through conduct and acts of
various supervisory officials, interfered with, restrained, and coerced certain of its
employees in restraint of their rights under Section 7 and in violation of Section 8
(a) (1) of the Act.
A motion of the Respondent, made prior to the hearing, to dismiss the complaint
as regards the allegations in paragraph numbered 5 thereof, was denied by Trial
Examiner W. Gerard Ryan on August 30, 1955. The answer of the Respondent denied
generally all material allegations of the complaint, imputing to it the commission of
any unfair labor practices as alleged, and specifically states Robert Thompson was
laid off for lack of available work, and was not discharged.
Pursuant to notice, a hearing was held on January 10, 11, and 12, 1956, at Cooke-
ville, Tennessee, before James A. Corcoran, the Trial Examiner duly designated
to hold such hearing by the Chief Trial Examiner. All parties were represented and
participated in the hearings. Full opportunity to produce and cross-examine wit-
nesses and to introduce evidence bearing on the issues was afforded to all parties.
At the close of the case presented by the General Counsel, separate motions made by
the Respondent to dismiss the complaint in its entirety, to dismiss the complaint rela-
tive to the alleged discharge of Robert Thompson, and to strike out all testimony
presented by the General Counsel as to interference through interrogating and sur-
veillance, coercion, or restraint, were each denied. Similar motions were again pre-
sented by the Respondent at the conclusion of all testimony, and decision was re-
served thereon, with disposition thereof being made directly or through stated findings
and conclusions in this Intermediate Report. A motion made by General Counsel
i Caption and section 3 of the complaint verbally amended at the hearing to reflect title
properly with respect to recent merger of the parent labor organization.
ATLAS BOOT MANUFACTURING CO., INC. 569
to conform the pleadings to the proof with regard to minor variances as to time and
place was granted? Opportunity to present oral argument was waived by all the
parties. The General Counsel and Respondent have filed briefs which have been
read and considered .3
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Atlas Boot Manufacturing Co., Inc., is a Tennessee corporation having its principal
office and place of business in Cookeville, Tennessee, and is engaged in the manu-
facture of cowboy boots for one customer on a cut, trim, and make basis, with the
material being furnished by the customer. In the performance of its work, the Re-
spondent in the previous 12 months had furnished services valued at more than
$100,000 to such customer. The said customer has an annual direct outflow of such
finished product in interstate commerce in excess of $50,000 a year. I find that the
Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Boot and Shoe Workers Union , AFL-CIO, admits persons employed by the Re-
spondent to membership , and is a labor organization within the meaning of the Act.4
III. MOTIONS OF THE RESPONDENT
As previously stated certain motions made by the Respondent were denied at the
close of presentation of evidence by the General Counsel, and decision was reserved
on the same when they were later made at the close of the testimony. The first, to
dismiss the complaint in its entirety on the ground it was not supported by suf-
ficient testimony or substantial evidence on the record considered as a whole, I find
has little merit and is hereby denied for reasons and on findings stated subsequently
in this report.
The second was to dismiss paragraph numbered 4 of the complaint, on the ground
that the record affirmatively shows that Robert Thompson allegedly discriminatorily
discharged therein, was not as alleged a member of and had not engaged in activities
on behalf of the Boot and Shoe Workers Union, A. F. L. The record shows Thomp-
son began organizing activities among his fellow workers about 6 weeks before his
termination of service. It was shown he distributed so-called "union" literature on
at least three occasions, both in the shop and in front of the plant. He also per-
sonally secured the signing of representation cards by many workers, estimated in
number to be around 40. He procured such union representation cards from
Schultz, International representative of the Union,5 and always returned the com-
pleted signed cards to Schultz. The testimony of other workers indicates he was
regarded as the leader or most prominent person working for the acquiring of
a union collective-bargaining representative. Actually, no local of the Union was
ever formed in the vicinity, and apparently Thompson never became a member of
such Union. It is conceded that neither the literature passed out nor the rep-
resentation cards contained any direct reference to or naming of the Boot and Shoe
Workers Union.
The usual type of "authorization for representation" card used and signed up
by workers was placed in evidence It bears the heading "The Shoe Industry Organ-
izing Committee, A. F. L. (and its affiliated Unions, A. F. L.)." 6 Such card au-
thorized the American Federation of Labor and all affiliated organizations to rep-
resent the signer. In addition to work in signing up others, Thompson signed such
card Schultz testified and established that the Shoe Industry Organizing Com-
mittee was an affiliate of the Boot and Shoe Workers Union, A. F. L., and that
2Due to objection of Respondent, it was not made to apply to dates
8 Application of General Counsel for extension of time to February 13, 1956, to file such
briefs was granted by the Chief Trial Examiner
4 Norfolk Southern Bus Corporation, 76 NLRB 488; General Shoe Corporation, 113
NLRB 905.
5 Also some from Quinn, AFL representative.
"The card used was originally drawn for use in General Shoe Corporation organization,
and when used here such firm name was simply crossed out in ink and the Atlas Boot Co.
iianie inserted in place of the former one, and a new town address placed at bottom of
the card.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Boot and Shoe Workers Union was an affiliate union of the American Federa-
tion of Labor. In the General Shoe Corporation case (10-RC-2998) 7 the Boot
and Shoe Workers Union was also involved. The Board decision therein outlined
the composition of the Shoe Industry Organizing Committee, and determined it
was not a labor organization. It is clear from the structure of organization thereby
indicated that a person signing the authorization for representation cards does not
select such loosely organized conference set up as his collective-bargaining representa-
tive, but, as found by the Board in the General Shoe case, actually designates the
affiliated organization to do so. Such organization in this instance without ques-
tion would be the Boot and Shoe Workers Union, A. F. L. I do not *regard as un-
sound carrying such determination and reasoning into the matter of consideration
of an unfair labor practice complaint. The Respondent is not prejudiced in having
to meet the claim advanced in reference to the Boot and Shoe Workers Union,
rather than the Shoe Industry Organizing Committee. The recorded established
activities of Thompson were clearly in final analysis activities for a union organ-
ization, and it is clear that the only recognized AFL union affiliate in the field of boot
and shoe manufacture is the affiliate named, i. e., the Boot and Shoe Workers Union.
The allegation of the complaint as made, as to discrimination, is based not only on
membership in the Union but activity on behalf of the Union. The latter being
established by the record herein, the defect in not establishing membership per se
in the named union is not fatal to the consideration of the discrimination allegation.
I find that the organizing activities of Thompson were clearly such as would re-
dound to the benefit of the Boot and Shoe Workers Union, and that the General
Counsel has sufficiently maintained his burden of proof as to the allegation of the
complaint generally regarding paragraph numbered 4.8 The motion as made is
therefore denied.
The third motion was to strike all testimony dealing with the alleged interroga-
tion, threats, and surveillance, because the Union, with knowledge of the alleged ac-
tivity, waived its right to rely on said charges by proceeding to an election, and by
neglecting at that time to exercise its concomitant right to attempt to set aside the
election result, and further, also, because the charges filed did not support the type
of misconduct alleged in the complaint. The Respondent maintains that by the
Union so proceeding to an election with knowledge of the alleged conduct, the
Union thereby waived and was estopped from bringing charges on any such activity; 9
and further that the actual charges filed by the Union do not support the complaint
allegations or the evidence in regard thereto.
A petition seeking certification was filed by this Union on March 16, 1955; 10
a stipulation for a consent election was signed on March 25; the election held on April
1 (the Union not prevailing); no objections to the election result were filed by
the Union and a certificate of the result was issued by the Regional Director on
April 11, 1955. The original charge signed by a vice president of the Union was
filed April 29; amended charges signed by Schultz, as representative of such Union,
were filed on May 5 and 31, 1955, respectively. The charges embraced allegation
of discriminatory discharge of Thompson and five other named individuals 11 and
each charge filed contained the general concluding paragraph allegation that the
employer by his acts and conduct interfered with, restrained, or coerced its em-
ployees in the exercise of their riehts as guaranteed in Section 7 of the Act.
On the first ground, that the Union with knowledge of the acts of the Respondent
proceeded to an election and has therefore waived and is estopped from alleging
herein such occurrences and facts as unfair labor practices, the Respondent relies
on the decision of the Board in Aiello Dairy Farms, 110 NLRB 1365, and subse-
quent cases based on such authority. It seeks, however, to extend the doctrine of
such ruling to a dissimilar situation. In the Aiello case, the Board affirmed Section
8 (a) (1) and (3) findings, but applied the election of remedy doctrine as against
the union there involved, only as to the allegations regarding refusal to bargain and
violation of Section 8 (a) (5). In such case, the representation question involved
and to be determined in the election, and the assertion of exclusive representation
of the workers presented in the alleged refusal-to-bargain claim, placed the union
7 113 NLRB 905.
8 The question of discriminatory discharge is not considered or disposed of in consider-
ing this motion.
9 With the exception of an allegation as to interrogation and threats on April 4, 1955,
all the complaint allegations referred to a time prior to the date of holding of the election.
1010-RC-3023 ( not reported in printed volumes of Board Decisions and Orders).
21 The complaint only named Thompson.
ATLAS BOOT MANUFACTURING CO., INC. 571
therein in a straddling position, involving a definite choice of decision and requiring
some election by it between inconsistent remedies, based on conflicting underlying
assertions. In such circumstances, election of remedy by the party is required, and
resorting to the election process with knowledge of alleged law violations by the
respondent, precludes later reliance upon the same knowledge and facts in the
refusal-to-bargain charge, in an attempt to establish officially the same result of
determining the union status as the bargaining agent. If allowed, the Board processes
would be abused in the repetitive proceedings concerning the position of the union,
only at unnecessary cost. In the instant case, no refusal-to-bargain charge was al-
leged, consequently the Union here was not obliged, as asserted, to make any elec-
tion between inconsistent remedies, and therefore has not waived any rights or is
not in any way estopped from asserting the other violations alleged. The Board
hearing the complaint as alleged does not engage in any repetitive or unnecessary
hearing. I cannot accept the contention of the Respondent that the extension of the
Aiello case doctrine to the situation presented herein would be sound in theory
or in practice.13
The second ground of this motion, alleging a variance between the charges filed
and the complaint as issued, it appears requires little discussion. The effect and
validity of the general allegation in a charge as to the interference with the rights of
the workers under Section 7, being sufficient to support detailed allegations in a later
complaint, covering instances related to the general tenor of the basic charge filed,
as such instances may be uncovered in Board investigation, has been frequently
affirmed in court decisions (as the Respondent concedes). In fact, the case cited
by the Respondent 13 expressly upheld the validity of complaint allegations based
on an exactly similar wording of the general allegations of the charges. It is clear
from the record that in the instant case the Board has not in any way "instituted a
proceeding on its own motion." The motion is therefore denied.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1. Surveillance
On March 31, 1955, the night preceding the election, the Union held a meeting
in Cookeville at a local hall. The complaint alleges that the conduct of Supervisors
Dabbs and Bean constituted surveillance of the union meeting.14 There can be little
question but that the charge is amply established in the record. The testimony of
Nellie Dyer, Ray Newman, and Ruth Newman shows the presence of Dabbs and
Bean seated in an automobile parked near a corner diagonally across from the meet-
ing hall at a time when those attending the meeting would be leaving it. It is also
established that street lighting was present at such leaving point and it was necessary to
use stairs to go from the hall to the street. It was also observed that Bean resorted
to the use of binoculars to better see and identify any persons who had attended
and were leaving such premises.15 Dabbs in his testimony stated that "after we
found out" regarding the meeting, "Bean and I decided to drive up to see who
was there." They remained parked for 30-45 minutes and "watched the people
when they left the building. Bean watched through binoculars." Bean attributed his
being there to "high curiosity" and Turrentine explained his presence as being "long
on curiosity" and a desire to "know how many were in attendance." All of which
clearly adds up to a sharply defined coercive practice of surveillance by the Respond-
ent, which is not mitigated in any way by any greetings expressed to them by a union
representative while so parked, or any alleged jocular references to it at a meeting in
the plant the following morning of officials of the Respondent and the Union.
The complaint also alleges that Dabbs in his conduct at a meeting on the morning
of March 31, 1955, threatened to engage in surveillance of the union meeting, or
conveyed the impression that surveillance of the meeting would be engaged in. On
22 Valentine Sugars, Inc., and Valite Corporation, 102 NLRB 313, 315-316, footnote 5.
23 N. L. R. B. v. Kohler Co., 220 F. 2d 3 (C. A. 7).
i* Robert Turrentine, assistant to the vice president of Acme Boot Co., Clarksville,
Tennessee, which company furnished all the work to Respondent and whose personal
duties included an assignment "to look after this plant," was also present in the parked
car with Dabbs and Bean.
ss A witness testified he saw the arm of Dabbs moving as in writing, and Mrs. Henry
testified Dabbs told her he had written down the names of those observed.
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such occasion he delivered a prepared speech.18 From all descriptions by witnesses
he apparently alternately read and spoke portions of it, and I am convinced, even
from his own testimony regarding the meeting, verbally interpolated some remarks
not appearing in the typed copy in evidence. At a point in his speech, he referred to
a union meeting he understood was to be held that night. Thompson interrupted
him and told him when and where. Dabbs testified he then expressed a wish to go
but that he was not invited, and added, "I was sure I would know who was there."
Those who listened and have testified have differing versions from that of Dabbs
as to what he said, but in essence they refer to the basic fact that he would have
full information as to what occurred at the meeting. Thompson heard it as "I
will be there and see who comes and goes but I won't be seen." Brown, Dyer,
Farris, and Maddux recalled it as Dabbs saying he would be there but nobody would
see him. Harris stated it as being to the effect that Dabbs said he would "know
who was there," Ruth Newman recalled it as his saying he would be there to see
who did go, and Mrs. Robert Henry, as that he would be there watching in case
they did attend. Nash remembered it as, "I won't be there but I will be nearby. I
will know who goes in." Whatever Dabbs did say was a departure from his written
prepared speech. The variances in the recollection and quotation of it are not un-
expected and really do not deviate too much. All express the same thought and
convey the same impression as it seems must have occurred to them at the time of
delivery, accepting even the Dabbs' version of what he said. I find the expression
of the idea itself by Dabbs contained a coercive threat to his hearers calculated in
some measure to dissuade them from attending the meeting, and as such, gave an
impression of and constituted a threat of surveillance by the Respondent.
On the foregoing evidence and facts, I find the Respondent did interfere with the
rights of the workers under Section 7 in threatening surveillance of their proposed
scheduled meeting, and further also by actually carrying such threat into the fact of
surveillance by the deliberate parking and observing of the exit of workers from such
union meeting, and in each instance thereby violated Section 8 (a) (1) of the Act.
2. Interrogation and interference
The complaint alleges that Superintendents Dabbs and Bean and Foremen Lollar
and Owens , 17 engaged in illegal interrogation of employees on or about seven
stated dates.18 In the testimony presented little definiteness or certainty as to dates of
alleged occurrences was exhibited. Allegations generally referred to the date as
being an asserted time period in relation to the known date of the election held, or
were related to the time of a call inadvertently made by certain workers at the home
of Superintendent Bean, the date of which has not been clearly established in the
conflicting testimony of those present.19 However, the fact of conversations occur-
ring as alleged among the various persons named, is well established by their respec-
tive testimony, the variance being confined largely as to content and statements made
therein.
Considering the record as a whole and all the circumstances involved, with the
nature of the inquiries, I find that the activities of Dabbs and other supervisory
personnel in the following instances constituted interrogation reasonably tending to
interfere with the respective employees in the exercise of their rights under
Section 7: 20
(a) On the morning following the Bean-visit episode, Dabbs admittedly spoke to
Thompson in the shop and (according to credible testimony of Thompson) declared
he could not understand why Thompson was trying to get the Union in the shop.
16 The speech as written falls within the protective provisions of Section 8 (c). It was
not delivered within the 24 hours preceding the election and as a speech is not the subject
of any allegations in the complaint
17 By stipulation, all conceded to be supervisors
18 No particularization as to the individuals so performing on any specific date was
requested prior to the hearing
19 While seeking to call upon a woman worker in behalf of their organizing work,
Thompson, Brown, Nash, and Halfacre mistakenly stopped at the home of Bean. Thompson
estimated the episode took place 2-3 weeks before the election, Bean said 7-8 days, and
Brown made it 1-2 weeks
20 In considering these incidents I have given due weight to the poor impression Dabbs,
made in testifying as to his memory for and recognition of dates , even as affecting his
personal affairs, his clear contradictions in testimony as to knowledge of union activity
of Thompson , and what I consider his assumed guile in relation to knowledge of sur-
veillance and the aspects of it.
ATLAS BOOT MANUFACTURING CO., INC. 573
Dabbs testified he asked Thompson if he belonged to the Union,21 with a reference
to the occurrence of the previous night.
(b) On a day or two following the Bean episode, after a conversation between
Lex Brown and Lillard Maxwell , a foreman , and the latter having reported to Dabbs
regarding the content of it, Brown was asked by Dabbs ( in office of the latter) if
he knew who the leader of the Union was and who was passing out union cards.
Brown allegedly informed him that it was Thompson . Although there are variances
as to time elements in the testimony of Brown, the essentials of his basic story are
largely corroborated in the testimony of Maxwell . The latter visited Dabbs after-
talking with Brown and testified he told Dabbs that Brown would tell who was in,
charge. The meeting of Brown with Dabbs followed . I credit the testimony of
Brown as to the statements of inquiry by Dabbs made in the office meeting.
(c) Dabbs and Bean individually questioned those calling at Bean's house, on
the following day, regarding their "being lost the night before." Such inquiry alone
I would hold harmless . But, Bean coupled with it in questioning Brown and Half-
acre an inquiry as to whether they "were connected up with those guys in any way"
which serves to extend the otherwise not unfriendly inquiries of each of them as to
the night before from the jocular aspect to something with deeper significance and
more searching design. I accept therefore that considered as a whole such inquiries
operated or were intended to operate to affect the thinking and actions of the workers
and to have an effect on their exercise of basic rights.
(d) C. M. Harris related a conversation with Dabbs about l week before the
election . He was told to go to Dabbs' office by his foreman . Dabbs allegedly stated
that it was reported that Harris was the leader of the Union , but Harris allegedly
advised him that he was not . Dabbs then asked him if he knew who was. Upon an
affirmative reply being made by Harris, Dabbs allegedly asked would he tell him
the name, and on the declared refusal of Harris, Dabbs asked him to tell the party
to come in and talk. Dabbs admitted that on March 14, he stated to Harris that he
heard he was in charge of the Union , which was denied by him. Dabbs also recalled
a subsequent conversation with Harris about 10 days before the election , in which he
again stated his belief that Harris was in charge of the Union Dabbs denied, how-
ever, that he inquired further as to who the leader was . I credit the testimony
of Harris.
(e) About 1 week before the election , Harvey Farris stated Dabbs came up to him
at work and asked him, "How do you stand on the Union ?" Dabbs admits he asked
him if he belonged to the Union . When Farris advised him he did not know, Dabbs
replied , "I just wondered."
(f) About a week before the election , Nellie Dyer testified that while she was at
work Dabbs asked her to come into his office , that he would like to talk to her. She
did not inform the forelady of her going . She stated Superintendent Bean was in
the office when she arrived , and was also present during the conversation. Dabbs
assertedly asked her if she was for the Union , and asked her not to lie. She stated
she was for the Union ; and that Dabbs replied asking if she did not know he could
fire her for that. She allegedly disclaimed any such knowledge . Further she al-
leged Dabbs told her "to think it over ." Dabbs claimed she visited his office on this
occasion (day before the election ) of her own accord and volunteered the given
information asserted . He relates she returned the same afternoon with her forelady
in reference to an alleged disturbance resulting from certain declarations she, al=
legedly made in the shop against his management and personal character. Bean
testified regarding the second conversation but was not questioned relative to his
alleged attendance at the first meeting and what conversation ensued then.
I was impressed by the straightforward attitude of the testimony of witness Dyer
and accept and credit her version as to the inquiry in preference to that of Dabbs.22
(g) Dabbs' talks with Mrs. Loy Maddux a few days before the election date
would ordinarily in their context not come under the proscription of the Act, but
his pointing her out as a member of the Union , linked with direct reference as
to how nice the Company had been to her and her family (particularly considered
with similar reference by Foreman Owens to favorable consideration given to her
and her husband in connection with a previous accident to the husband ), contains
such a subtle hint of reprisal if any similar incidents occurred , as to bring it within
the consideration here of interference with the exercise of rights under Section 7.
21The balance of conversation is covered under a portion of this section regarding
threats.
7d The testimony of Forelady Wilkerson as to the time of occurrence of conversations
distinctly supports that of Dyer and not that of Dabbs, and in essentials her story of
conference conversation too.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A similar line of inquiry and expression by Foreman Owens in his previous Mon-
day conversations with her, regardless of who instituted such conversations , likewise
brings such conversations under this classification. The reference he made as to
the consequences to follow if the Union entered into plant activities, would also
be utterances beyond the usual accepted free inquiry allowed, and would violate
Section 8 ( a) (1) in regard to the Section 7 requirements. The fact that this em-
ployee, like all others, was allowed to vote her free convictions in the Board-con-
ducted election, I doubt is something that may inure to the credit of the Respond-
ent, or to be permitted to show that no actions of the Respondent could be deemed
effective in influencing this or any other worker in regard to the right to select
or reject a union as the representative of the workers.
(h) Action of Bean in directing Thompson to leave the premises of Respondent
while distributing union literature, and only do so on the public sidewalk, in absence
of any showing of any valid rule relative to solicitation and distribution of literature,
and any showing it was being done during regular working hours.23
I find in the following instances that there has not been any unlawful interroga-
tion or interference:
(a) Halfacre alleges a conversation with Dabbs in his office on a date 1 or 2 days
after the election, approximately April 4, as alleged in the complaint. In such
conversation he alleged Dabbs asked him if Thompson was the leader of the Union,
and stated he would get rid of Thompson. He was definite and certain the talk
was on a date after the election. Bean allegedly was also present in the office dur-
ing the conversation. Dabbs and Bean unequivocally deny any meeting with him
on the asserted date. Halfacre clearly had a poor memory as to dates, as appears
from his testimony that Dabbs' speech was given 2 weeks before the election, and
that Thompson's announcement at that time was that the union meeting was to be
the next night. His assertion that in the meeting of April 4, Dabbs asked him re-
garding Thompson being the leader of the Union, appears incredible to me, as I am
convinced Dabbs had adequate knowledge of the status of Thompson before such
time, and had no further need for inquiry after the election. Perhaps Halfacre had
such a conversation at some time, but in the light of the complaint allegation and
his positive testimony as to the time of occurrence of it, I cannot indulge in guessing
when it may have occurred. Under all the circumstances, I accept in this instance
the testimony of nonoccurrence of the meeting at the time stated and established
as stated by Dabbs and Bean.
(b) The conversation of Foreman Lollar with Thompson about 2 days before
the election during working hours, in which Lollar inquired of Thompson how the
latter thought the Union would work out. I do not find it necessary to distinguish
credibility between the above persons, in view of the subject matter which even if
asked is not such an inquiry as would be banned without anything further following
up on it.
(c) I do not accept the testimony of Mrs. Robert Henry as to the allegation that
Dabbs told her she was transferred to the piping operation because of her union
activity and in order to place her in a position to be directly affected in any layoff
found necessary. Dabbs denies it, and although I have indicated throughout a
low opinion of his credibility, I believe, in this instance, the facts as to the leaving
date of employment of Mrs. Warden and the credible testimony in this regard of
Forelady Wilkerson relative to the whole situation and her sole responsibility in
effecting the transfer have sufficient emphasis to sustain his position. I likewise
find no violation in the statement of Dabbs to her and others on the morning fol-
lowing the union meeting that he had seen them there and was sorry he did.
3. Threats
(a) On the morning following the Bean visit, in connection with interrogating
Thompson (as previously shown), Dabbs reportedly said to Thompson, "You could
work up to a good job, but you can't the way you are doing now." Although Dabbs
did not testify directly in relation to this alleged passage, he did in his testimony
sustain in the main the other contentions of Thompson as to the conversation con-
tent. I credit the testimony of Thompson in this regard, and find in the conversa-
tion a coercive threat in violation of Section 8 (a) (1).
(b) The day following, Thompson was talking in the shipping department with
employee Waites.24 Thompson alleges Dabbs came up and said, "Thompson I
29 Thompson testified credibly that he did not distribute literature in working hours on
at least two other occasions.
24 Not called to testify.
ATLAS BOOT MANUFACTURING CO., INC. 575
don't know what you are talking about but I bet it is that damn Union. You had
better be sure it is not. If it is, and I catch you talking on Company time, you are
fired then." Dabbs admitted the incident but alleged his only statement was, "If
you are talking on Company time, that will be all." The determination of the ques-
tion here is whether or not any validity promulgated and known rule prohibiting
solicitation in any form in the shop was in effect and operation. No testimony was
presented to establish such. Therefore, I find in the absence of the proven existence
of any such rule, the declaration ascribed to Dabbs by Thompson, which I credit,
would be an implied coercive threat to his employment tenure through discharge
for doing an unprohibited act, and would be violative of Section 8 (a) (1).
(c) The instance of meeting of Brown, Maxwell, and Dabbs has been referred
to previously. It has been accepted that Dabbs inquired as to who was the leader
of the Union and in distribution of union literature. He was advised by Brown
that it was Thompson. Brown alleges that -Dabbs' retort was that "he would get
rid of Thompson and there ain't nobody can do anything about it." 25 I credit the as-
sertion of Brown. It establishes a coercive threat by Dabbs in violation of Section
8 (a) (1).
(d) Ruth Newman testified that 1 week before the election Dabbs spoke to her
at her machine after Dabbs had been summoned by the workers relative to an anti-
union petition being circulated.26 In the course of the conversation with her,
he stated his intention to fire Thompson, and Dyer, if they did not quit passing
out literature and talking Union on company time. Dabbs admitted the tenor of
the remarks as to the action without stating any names. He admitted in his testi-
mony he was referring to Thompson and Nash, as he had seen them distribute litera-
ture. In the absence of any well-established rule prohibiting solicitation, the threat
of discharge action under it becomes a violation of Section 8 (a) (1).
I find that the complaint has not been sustained relative to threats as follows:
(a) Remarks allegedly made by Dabbs to Nellie Dyer on her first visit to him in
the office, in allegedly stating to her that she could be fired for belonging to the
Union; as well as alleged threats made in her second meeting with Dabbs, based
on an alleged criticism of the management.
(b) The alleged statement of Dabbs to Halfacre in the meeting stated to have
been held on April 4, in which allegedly Dabbs when told by Halfacre regarding
the Thompson leadership, remarked there is one man we have got to get rid of and
that is Thompson. Not accepting the fact of the meeting itself, the alleged declara-
tion falls with it.
B. The termination of Thompson
As to the actual termination of service of Thompson, the testimony is in accord.
Nothing was said at the time regarding his union membership or activities, and Dabbs
simply informed him that he had to lay him off for lack of work, at the same time
expressing his regrets at so doing and his hope of possible reemployment in the fall.
The official termination record slip likewise shows lack of work as the assigned
reason . The General Counsel maintains that such assigned and stated reason is
merely a pretext and that from all the facts and circumstances one must conclude
that Thompson was actually discriminatorily and unlawfully discharged for his
union activities, the timing of it being withheld to what was deemed to be a time
sufficiently removed from the election date and result to not warrant suspicion of
its basis.
The original employment of Thompson was somewhat in the nature of a favor
by Dabbs, in view of the prior shipping room employment of Thompson by Irving
Cohen (related to a company official) who was then quitting business. Thomp-
son started work here as a last repairman, followed by work on rubbing boots,
then substituted for about 2 months for the maintenance man (away ill), then was
on ironing boots, followed by a period of "general flunky" work, and was pulling
lasts on the day of termination. I believe the time estimate of periods on such work
as given by Thompson regarding the first two classifications was not accurate.
What he estimated as covering over 2 months must have been performed in about
1 month, in view of my accepting the company records as accurate in regard to the
ffi Maxwell -was not questioned regarding this phase of the meeting. Likewise he has
not been named in the complaint, and no cognizance therefore is taken regarding his own
inquiries to Brown.
2e It appears that such petition emanated from the townspeople, not the Respondent,
and that Dabbs acted promptly to disown it, quieted their fears as to not signing it, and
ordered the removal or disappearance of it from the factory.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period of absence of Alcorn, the maintenance worker he succeeded.27 On the other
hand, I do not accept Dabbs' declaration that Thompson was only on last repair
work for 7-8 days, as lacking in proof, and that he took him off such work because
"he was lousy." Thompson's declaration that his foreman, Bagwell, told him that
he was doing good work while on last repair, is accepted, in view of the lack of any
contradiction of it otherwise and the significant fact that Bagwell, who did not
testify, was essentially the only foreman mentioned who failed to do so Dabbs
has also testified generally that the ineptness of Thompson as a worker figured
somewhat in his resolve to lay him off. Foreman Lollard, who supervised Thompson
on ironing boots, said his work was fair, even though he had to correct him regarding
watching work more closely to avoid burning shoes. Foreman Owens who stated
he arranged to secure the services of Thompson for his work on rubbing boots when-
ever his department work got behind, in order to help catch up on his work, also
stated his recollection of cautioning Thompson regarding his work, but it consisted
of taking work back and showing it to him and the regular boy engaged on such
work, apparently without knowing definitely who was responsible for it. In addi-
tion, nothing was presented to show Thompson did not satisfactorily perform as a
substitute on the general maintenance work in the long period performed.28 Re-
garding removal from the initial last repair work, the testimony of Thompson that
it was not performed from the day he last worked on it until the day of his termi-
nation, due to not having available certain rubber pegs, is not contradicted in the
record 29 There is also no other evidence regarding complaints relative to the work
of Thompson and no showing of any warnings having been given ,to him about his
work quantity or quality and the need of improvement in it being required to retain
his employment. In view of these facts, I assess little credence to the assertions of
Dabbs as to Thompson's work ineptness.
As to the assertion of lack of available work at the time of termination of Thomp-
son, in addition to any possible resumption of last repair work at this time as indi-
cated, the hirings by the Respondent (following the election) in the early part of
April must be closely scrutinized Three people were employed, one each on April
5, 7, and 14, 1955, respectively. It was established that none of these persons had
any prior boot or shoe manufacture experience, had not previously worked for the
Respondent, nor had done any work on the particular type of operations for which
hired, that they did not apply for such particular jobs, and that each was hired on
the day he applied. Although there might be some question as to the ability of
Thompson to do the toe forming or heel seat lasting jobs involved in the first two
hiiings of April 5 and 7 (although it was not specifically raised or demonstrated),
there can be little question asserted as to his ability to do the rubbing boots lob.30
as he had previously done, and apparently had performed well enough in it to war-
rant Foreman Owens' seeking out Dabbs to get the services of Thompson to help
catch up when his work fell behind. These facts cast such great doubt on the ve-
racity of the asserted reason for termination as to easily support an inference that
it was not the correct and underlying basis of the action of the Respondent.
To sustain any allegation of discriminatory discharge it is first necessary to show
the Respondent had knowledge of the union activity of Thompson. I find the Gen-
eral Counsel has sustained the burden of proof in such regard and that the record
is replete with evidence of it. Probably the most convincing proof that Dabbs knew
of it at least in mid-March 1955, shortly after the time it started, can be found and
accepted from his contradictory testimony in regard to such fact of his knowledge
of the union activity of Thompson and his phone conversation and meeting with
counsel of Respondent, as accepted from the testimony of witnesses Martin and
Turrentine 3' It is also shown in the questioning of Thompson and others by Dabbs
and Bean following the night episode at the home of the latter.
27Alcorn stopped work on Jamiarv 29 and returned on March 21, 1955 The in-
accurate estimate of Thompson as to time spent on the first two operations, probably
reflected itself also in his stated belief that Alcorn was not away during February
28 The only intimation of dissatisfaction refers to alleged use of freedom of the premises
inherent in peiforming such maintenance work, permitted Thompson to ream around
allegedly talking to other workers regarding the Union
-" Allegedly these required pegs were delivered to the Respondent on the day of termina-
tion of Thompson with the implication such work would thereafter be available if required.
Fos which an inexperienced man was hired on the day before Thompson was
terminated
11 In a written statement given to a Board examiner on May 9, 1955 , Dabbs also ad-
nutted knowledge of the union activity of Thompson at the time he telephoned counsel
for Respondent in March.
ATLAS BOOT MANUFACTURING CO., INC. 577
The testimony of Thompson and other workers clearly establishes the activities of
Thompson in getting authorization cards signed and distributing literature.32 The
testimony of Lex Brown establishes also that the name of Thompson was given to
Dabbs by him as the leader of the union advocates . That Dabbs was diligently trying
to find out who the leader was as early as March 14, is seen from the testimony of
Dabbs and Harris, and further followed up by Dabbs in his conversations with Thomp-
son previously shown. The selection of Thompson as an observer for the Union
in the election of April 1 also must have carried significance to Dabbs in addition to
what he had been told and allegedly had seen. The reaction of Dabbs to the informa-
tion he was getting, is well indicated in his remarks to Lex Brown to the effect he
would get rid of Thompson , and also to Mrs. Newman that he would fire Thompson
and others if they did not quit distributing literature and talking Union on company
time. If the urge of Dabbs to lay off Thompson had only the legitimate basis of his
general incompetence and there actually being no work available for him in the cir-
cumstances , it appears unlikely that the move would have been delayed almost a
month , even though giving cognizance to the advice given Dabbs by the Company's
attorney of not doing anything to interfere with the pending election. Dabbs states
he did lay off a man a few days before first seeking telephone advice on March 18,
1955, regarding the proposed layoff of Thompson , but had not on such other alleged
occasion sought any legal advice , although it apparently had occurred in the organ-
izing period . I am convinced from the aggregate testimony that Dabbs was in-
fluenced throughout in his desire to get rid of Thompson by his union activities, and
not because of the return to work of Alcorn on March 21, 1955, and the consequent
alleged inability to have further work for Thompson to do. I am convinced that
if it was not for the restraining influence of the advice of company counsel, the as-
serted layoff would have occurred earlier and been more starkly revealed in such
context for what it really amounted to, that is a discriminatory discharge based on
union activities then occurring . The delay in execution of it, particularly in view of
the apparent weakness of the no-work-available statement , in the face of the hiring
of an inexperienced man for the rubbing boots work on the day previous to this lay-
off, does not change the essential nature of the entire act involved . I believe it is a
fair inference to draw that the assigned cause of layoff is mere pretext advanced to
cover up the animating cause, namely reprisal for his union activities . I therefore
find the termination of Thompson by the Respondent on April 15, 1955, was dis-
criminatory , being based on his ' union activities , and was an unfair labor practice
which violated Section 8 (a) (3) of the Act.33
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section IV, 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 thereof.
VI. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8 (a) (1) and ( 3) of the Act , I shall recommend that it cease and desist
therefrom and take certain affirmative, action designed to effectuate the policies of
the Act.
Having found that the Respondent discriminated against Robert L. Thompson in
regard to the hire and tenure of his employment , I shall recommend that the Re-
spondent offer to Robert L. Thompson immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority or other rights
and privileges , and make him whole for any loss of pay suffered by him as a result
of the discrimination , by payment to him of a sum of money equal to the amount he
would have earned from April 15, 1955, the effective date of his discriminatory dis-
charge, to the date of the offer of reinstatement , less his net earnings in the period to
iz Also as shown in the incident wherein Supervisor Bean directed Thompson to get off
company property and distribute the union literature on the sidewalk , and the fact that on
,thet Bean visit Thompson had union cards or literature prominently placed in his shirt
in such a noticeable way that Bean did note them , and the assertions of Dabbs as
to having seen Thompson and Nash distribute literature in the shop.
a3 The facts asserted by Respondent that discriminatory action was not taken by it
against others who had also engaged in some union activity , do not serve to disprove
the apparent intent in this instance
405448-57-vol 116-38
,578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be computed on a quarterly basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289, 294.
As the unfair labor practices committed by the Respondent were of a character
striking at the roots of employee rights safeguarded by the Act, and indicate a danger
that the Respondent may continue , although not necessarily by the same means, to
defeat self-organization of its employees , it will also be recommended that the Re-
spondent cease and desist from infringing in any manner upon the employee rights
guaranteed in Section 7 of the Act.
It will also be recommended that the Respondent make available to the Board,
upon request, payroll and other records to facilitate the checking of any back pay due.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Atlas Boot Manufacturing Co., Inc., is an employer within the meaning of
Section 2 (2) of the Act and is engaged in commerce within the meaning of Section
2 (6) and (7) of the Act.
2. Boot and Shoe Workers Union, AFL-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed by Section 7 of the Act, Respondent has engaged in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
4. By discriminating in regard to the hire and tenure of employment of Robert L.
Thompson , thereby discouraging membership in the aforesaid labor organization,
the Respondent has engaged in unfair labor practices within the meaning of Section
8 (a) (3) and (1) of the Act.
5. The Respondent has not engaged in unfair labor practices in violation of Section
8 (a) (1) in certain other alleged instances in the complaint to the extent as found
and shown previously herein.
[Recommendations omitted from publication.]
Stemar Company and James M. Rogers, Petitioner and Commer-
cial Artists Local Union 1765, B. of P. D. & P. of A., AFL-CIO.
Case No. 13-RD-285. August 10,1956
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before William D. Boetticher, hear-
ing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Union contends that the commerce evidence is hearsay and
therefore is insufficient to support a finding of jurisdiction.
The Employer's manager testified that the Employer is an Illinois
corporation engaged in the manufacture of technical manuals or pub-
lications, that he estimated total sales at approximately $500,000, of
which "somewhere close to $50,000" represented shipments outside
the State of Illinois and $250,000 represented intrastate sales to In-
ternational Harvester Company, a multistate enterprise. The witness
based his estimates on information furnished by the president of the
Employer and on his own observation of work done under his super-
vision; he has supervised the preparation of publications for the
116 NLRB No. 79.