Boot-Ster Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1967

165 N.L.R.B. 318 (N.L.R.B. 1967)

318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boot-Ster Manufacturing Company, Inc. and
United Rubber Workers, affiliated with
United Rubber, Cork, Linoleum & Plastic
Workers of America, AFL-CIO. Case
26-CA-2539
June 12, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On March 14, 1967, Trial Examiner John G. Gregg
issued his Decision 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 Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief, and the
General Counsel filed cross-exceptions and a brief.
The Respondent filed a brief in opposition to the
General Counsel's cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the cross-
exceptions, the briefs, and the entire record in the
case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Boot-Ster
Manufacturing Company, Inc., Clarksville,
Tennessee, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN G. GRESS, Trial Examiner: This matter was heard
before me at Clarksville, Tennessee, on December 19,
1966, upon allegations in the complaint of the General
Counsel issued in Case 26-CA-2539, on November 1,
1966, based upon charges filed on September 13, 1966,
and the duly filed answer of the Respondent to the
aforesaid complaint.
The General Counsel alleges essentially that the
Respondent committed unfair labor practices in that it
interrogated and threatened employees in violation of
Section 8(a)(1) of the Act; discharged employees Roy Lee
Lewis and Gerald Clinard in violation of Section 8(a)(3) of
the Act; and unilaterally changed its existing wage rates
by granting an increase in wages to an employee in
violation of Section 8(a)(5) of the Act.
The Respondent denies the commission of any unfair
labor practices.
Upon the entire record in this case, from my observation
of the witnesses, and after due consideration of the
arguments and briefs herein, I make the following:
FINDINGS OF FACT AND CONCLUSIONS
I. THE RESPONDENT'S BUSINESS
The Respondent is now, and has been at all times
material herein, a Tennessee corporation with its principal
office and place of business located at Clarksville,
Tennessee , where it is engaged in the manufacture of
footwear . During the past 12 months the Respondent, in
the course and conduct of its business operations,
purchased and received at its Clarksville , Tennessee,
location materials and supplies valued in excess of $50,000
directly from points outside the State of Tennessee, and
during the same period of time sold and shipped finished
products valued in excess of $50,000 directly to points
outside the State of Tennessee. The Respondent is now,
and has been at all times material herein , an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION
The Union herein is now, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Interference , Restraint , and Coercion
The General Counsel alleges that the Respondent by J.
Z. Miller, president, early in June 1966 interrogated its
employees concerning their union sympathies, activities,
and desires, and that the Respondent by Jack Miller, Jr.,
vice president, early in June 1966 (a) interrogated its
employees concerning their union sympathies, activities,
and desires, and (b) threatened its employees with
discharge if they engaged in union activities or gave any
assistance or support to the Union.
Roy Lee Lewis, then an employee of the Respondent,
testified that sometime around the first of June he was in
the main office of the plant when President J. Z. Miller
called over and asked him, "What's this I hear about a
union representative being down to your place?"
According to Lewis, a union representative had been to his
house the previous day. Lewis responded that "there had
been one down there," whereupon J. Z. Miller responded,
"Well, this is all." Lewis returned to his work. Later that
day, according to Lewis, J. Z. Miller' s son , Jack Miller, Jr.,
called Lewis to the office where Jack Miller, Jr., said to
Lewis, "What's this I hear of daddy saying that a union
field representative has been down to your house." When
Lewis answered that there had been one there, Miller
165 NLRB No. 47
BOOT-STER MFG. CO., INC.
asked him what they had talked about; Lewis replied that
they had talked about the Union, the benefits of the Union.
According to Lewis, Jack Miller, Jr., then said, "Well, as
long as I'm owner of this plant I won't have no union
coming in here or taking bread out of my children's
mouth." According to Lewis he then also said, "I 'll fire
anyone that tries it." Miller added, "After all what we've
done for you you haven't changed your mind." Lewis told
him he had not. Jack Miller, Jr., then said, "Well, your
head is as hard as a rock." Miller then said, "If you don't
change your mind you're going to be left out on a limb."
Both J.Z. Miller and Jack Miller, Jr., denied making the
statements attributed to them by Lewis. Based on my
observation of the demeanor of the witnesses as they
testified I credit the testimony of Lewis as to the
statements . I find in the statements clear elements of
interrogation and threat in connection with the union
activities of Lewis. Accordingly, I find that J. Z. Miller
interrogated Lewis early in June 1966 and that Jack Miller,
Jr., interrogated and threatened Lewis early in June 1966,
thereby interfering with, restraining, and coercing
employees of the Respondent in the exercise of activity
protected by the Act in violation of Section 8(a)(1) of the
Act.
B. The Discharges
1. The discharge of Roy Lee Lewis
According to J. Z. Miller, president of the Respondent
corporation, Lewis worked in the shipping room and was
dismissed or fired because he had the reputation of "being
the No. 1 goldbrick in the entire company." Miller testified
that while he had seldom reprimanded employees, Lewis
was one individual whom he had reprimanded on many
occasions. "Some of the men that worked more closely
with him have reported to me on numerous, numerous
occasions that he wouldn't do what he was told to do, mess
up jobs, refuse to do jobs that he was asked to do."
According to Lewis, he worked for the Respondent a
little over 3 years, became a union member in 1963, his
union activity including participation in trying to get the
members to sign union cards and participation in union
meetings . Lewis talked to employees on breaks and at
lunchtime , and as he stated it, "talked to practically each
and every one that they hired. At that time in my
department they had about 14 or 15 members, and I talked
to each one of them." Lewis had also testified, at a
previous Board hearing in 1964, that he had signed a union
card and was a member of the Union.
Lewis' account concerning the events leading up to his
discharge was that on July 14 he and other employees
were asked to come into work early by Seymour Goldman,
the Respondent' s sales manager , and by Lewis' foreman,
James Gibbs. When he arrived the next morning , July 15,
1966, about 6:30 a.m., he worked 15 minutes, then Albert
Coke, Goldman 's assistant , came over and told him to get
out of the warehouse, he was not needed that morning.
Lewis asked him about the 15 minutes he had worked,
Coke replied that Lewis was to get out of the warehouse
and he would see about that later. Lewis then checked out.
He checked in again at his normal time, 7:30 a.m. Later,
around 9:30 or 10 a.m. Gibbs came to him, handed him two
checks and a layoff slip, and told him that Coke had fired
him. Lewis then went to Goldman's office where he was
told, "Well, you have your papers and we can get someone
else to do yourjob. We're tired of your foolishness."
319
Lewis then went to Jack Miller, Jr.'s office where Miller
is alleged to have said, "Well, Albert and Mr. Goldman run
this office as much as I do .... If they fired you they must
have their reasons." Lewis stated that he had never been
told that his work was not satisfactory, was never
reprimanded or warned, but on the contrary had been told
by Gibbs, Goldman, and Jack Miller, Jr., at various times
that his work was excellent. He testified that during his
employment he received each and every wage increase
received in his department, and that he was the highest
paid employee in the department at the time he was
discharged. Lewis testified further that he was offered a
job as a stitcher by Jack Miller, Jr., around the end of June
or early July.
Goldman, sales manager for the Respondent
corporation, testified that he made the decision to
discharge Lewis, that he had observed that Lewis had
been loafing for a period of several years prior to the date
of his discharge, and that he had many times cautioned
Lewis about his loafing. Goldman said there were
occasions on which Lewis did good work without loafing;
he could do good work if there was someone supervising
him or watching over him continually. Goldman testified
that on July 14, prior to the discharge of Lewis, the
warehouse had been so hot because of the high
temperatures that he decided it would be easier on the
men to ship out the orders on July 15 early in the morning
before the warehouse heated up. He arranged on July 14 to
have a trailer at the warehouse at 6 a.m. on July 15, and
then proceeded to arrange for a group of men to be on
hand for the shipping at 6 a.m. On July 14 he gathered the
men together. According to Goldman, Lewis was in the
forefront, directly in front of him. Goldman told the men of
his plan and stated that he wanted six men to come in and
work in the morning. "Roy Lee Lewis was always one who
asked me and always asked the foremen for as much
overtime as he could get. So, I singled him out and gave
him an opportunity at that moment and asked him if he
wanted to come in at 6:00 o'clock in the morning. The man
never did answer me. He did not utter a word..I then said
to the whole group, `I want six men tomorrow morning in
the warehouse at 6:00 o'clock,' and asked for volunteers,
whoever would want to come in then." Goldman testified
that he selected six men by a show of hands and Lewis was
not one of the six. Goldman made a list of the men and
turned it over to Albert Coke who was to supervise the
next morning with Gibbs, the foreman. Coke was advised
as to the six men who were to report. Goldman testified
that his estimate of the job indicated that six men were
required for the job, that more than that many men would
get in each other's way, and that the job could be done
easily in a reasonable time by the six men.
According to Goldman, after the shipment was
completed the next morning, Coke came to him and told
him of difficulties with Lewis; that after the time
designated to begin, Lewis had arrived on the scene at
6:30, picked up one carton, and carried it over to the truck.
Coke discussed this with Gibbs and Coke told Lewis to
leave the warehouse, that he was not one of the men
designated to unload. Lewis then, as Goldman understood
it from Coke, gave Coke a "hard time" and wanted to be
paid for the 15 minutes he had been there. Goldman
testified, "At that time I had just gotten my craw full,
because I had had so many problems with Roy Lee Lewis
before, and he had been insubordinate about coming in
when he wasn't instructed to come in ... I said, `I'm going
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to fire him."' Goldman testified that he had no knowledge
of any union activity Lewis had engaged in, that he had
had no connection with the prior union situation at the
Respondent's plant 3 years earlier, that he did not know
Lewis had testified at the earlier proceeding, that he had
nothing to do with industrial relations as his job was sales
and shipping, and that he had no knowledge of which
employees were active in union affairs.
Goldman testified that after he discharged Lewis, within
an hour, Lewis was at his office seeking to know why he
had been discharged. Goldman testified that he told Lewis
he had not been selected for the loading that morning and
that Goldman was tired of his not following instructions
and his loafing. Goldman said they parted with a
handshake. Goldman testified that the reason why Lewis
was discharged was because Lewis was a goldbricker, did
not follow instructions, and was insubordinate.
Q. Had he been insubordinate before?
A. No, sir, not until this particular-not like he had
been this time.
Goldman said he had warned Lewis about goldbricking
before, "Numerous times."
Q. Had you ever given him a written reprimand?
A. No sir.
Q. Had you ever told him he would be discharged?
A. No sir.
Q. When was the last time you caught him
goldbricking?
A. I can't give you a specific time.
Q. Was it in the summer?
A. It was I would say within 30 to 60 days from the
time he was discharged.
Goldman stated he did not know that Lewis was a member
of the Union, although Goldman was employed in 1963, but
he was aware there was union activity at the plant, that
there had been a hearing, and the record indicated that the
union campaign had been discussed by management.
Goldman testified that he had discussed the Union and the
prior hearing with the Millers on numerous occasions.
Under these circumstances and based on my observation
of the witness as he testified, I do not credit Goldman's
statement that he had no knowledge of Lewis' union
activity.
Goldman's account of the events leading to Lewis'
discharge was substantially corroborated by James Gibbs,
foreman of the shipping department.
Jack Miller, Jr., J. Z. Miller's son and vice president of
the Respondent corporation, testified that on the morning
of the discharge Goldman asked his opinion as to the
discharge and Miller concurred with him 100 percent, that
Lewis came to see him to ask whether there was any
chance of his getting his job back, and that he had
responded that there was not because of the situations that
Lewis had been involved in over the past 2 or 3 years and
because of the particular incident that morning. Miller
testified that because he knew Lewis had a family he did
not indicate the reason for the discharge on Lewis'
separation slip but indicated that he was laid off for lack of
work in order to permit Lewis to draw unemployment
compensation. Miller testified further that he did not know
that Lewis was a member of the Union, that while he knew
of the prior hearing he did not remember that Lewis had
' I am not convinced that Lewis understood that he was not to
report for overtime work that morning in view of his past practice
of generally participating in overtime work and do not believe that
testified in 1963 or 1964. Miller stated that he had had
conversations with Lewis concerning his poor work. I
simply do not credit Jack Miller, Jr.'s statement that he
was unaware of Lewis' union membership under the
circumstances herein and in view of the close relationship
between the Millers.
A set of cards kept by Gibbs, who was Lewis' foreman,
indicates such notations from December 1963 through
January 1966 as "doing good work," "have to get on him
every once and a while," "caught Roy standing around,"
"Roy & Birt talking during work hours, have talk to Roy
once before about this, don't seem to do no good," "Roy
will do good work when some one is with him but will loaf
some when not," "Have to tell Roy a lot of times to go to
work, don't seem to mind me any more." One entry stated,
"Albert Coke asked Roy where he had been, and he told
him, it wasn't any of his damn business." There was no
note on the card from January 18, 1966, until Lewis was
discharged.
Albert Coke, assistant sales manager for the
Respondent, testified that he had reprimanded Lewis on
many occasions and that when Lewis was not being
supervised he would "goof off." On the day of the
discharge, Coke arrived at *he warehouse at 6 a.m. with
James Gibbs for the loading. After 6:30 when there were
between 30 and 50 cartons left to load, Lewis showed up.
Coke discussed this with Gibbs, then felt that since they
were so close to being completed Lewis' presence was not
needed and for him to go back and check back in at 7:30.
"He refused. I then told him to go back. At this time he
demanded to be paid for 15 minutes. I agreed to do so. I
had to get the job completed." Later Coke met with
Goldman and told him about the incident. Coke stated that
he did not know Lewis had had anything to do with the
Union.
As indicated hereinabove, based on my observation of
the witnesses as they testified, I credit the statements of
Lewis concerning his discussions with J. Z. Miller, Jack
Miller, Jr., and Goldman. I find also ample testimony of
record indicating the awareness of the Millers concerning
union activity in the plant, of discussions between the
Millers and Goldman relative to union activities and
matters, and find, accordingly, that the Respondent had
knowledge of Lewis' union acitivity.
While I credit Goldman's version' concerning the
incident which led to Lewis' discharge on July 15, I am
convinced that this incident was not the true reason for the
discharge, but that the Respondent discharged Lewis
because of his union activity. While the Respondent
advanced several reasons for Lewis' discharge, I find
these to be pretextual. The long list of notations indicating
minor infractions and incidents of loafing, as noted by his
foreman over the period of years, was obviously not of
sufficient importance previously to warrant discharge and
the Respondent did not discharge him for these
infractions. On the contrary, Lewis was brought along by
the Respondent, advanced and raised with the other
employees in his department, and achieved the status of
enjoying the highest pay in the department at the time he
was discharged. It is not contested that, at a time just
preceding his discharge, the Respondent offered Lewis a
job as a stitcher, which, although perhaps paying less,
Lewis was testifying falsely but rather mistakenly as to whether
he had been requested to report on the morning in question
BOOT-STER MFG. CO., INC.
clearly casts doubt on the Respondent 's claim that Lewis
was its "number one goldbrick ." It is not reasonable to
believe that management would offer its "number one
goldbrick" a job on the production line. While I credit
Goldman 's account of the incident of July 15 leading to
Lewis' discharge , I note that it is also clear from
Goldman 's testimony that prior to this incident Lewis was
never given a written reprimand or warned of impending
discharge . His previous infractions were obviously "not of
sufficient importance to warrant a discharge at the time
they occurred ." N.L.R.B . v. Greensboro Coca Cola Bottling
Company, 180 F . 2d 840 (C.A. 4).
I find , therefore , that the Respondent discharged Lewis
not for the reasons advanced , but because of his union
activity , and that the Respondent thereby discriminatorily
discharged Lewis to discourage union activity in violation
of Section 8(a)(3) and (1) of the Act.
2. The discharge of Gerald Clinard
Clinard testified that as an employee of the Respondent
he worked on the sole machine, was first employed the
latter part of December 1965, worked 2 months and quit,
started again in March, and was discharged August 31,
1966. He stated that he attended union meetings on July 21
before he was discharged and on August 8 subsequent to
his discharge. Clinard said that when he reported for work
the morning of August 3 his foreman brought him a check
and a layoff slip marked "Excessive Absenteeism." The
foreman, Paul Majors, told Clinard that the plant
superintendent had ordered the discharge. According to
Clinard, all this came as a surprise. He testified that
before coming to work on August 3 he had been absent for
2 days, in Nashville, taking a written and physical test for
the Navy, and that he had advised the Respondent of this
through his mother who had called in and talked to
Foreman Majors. Clinard testified that from his return to
work in March 1966 until his discharge he had been absent
3 days in July when he was hit in the side with a rack of
shoes and sent to the doctor by his foreman. The doctor
required him to stay home 3 days before approving his
return to work. Then, in the latter part of July, he missed 2
days going to Nashville. Clinard testified that on the
occasion of his earlier 3-day absence his mother had called
into the Company for him, and that he had never been
questioned or warned because of the absence. Clinard also
testified that he had never been told his work was inferior
but, on the contrary, had been told it was good 3 months
before he was discharged. Clinard added that he missed
another half day when he went to see the Navy recruiter
either June 26 or 27, that he had advised his foreman,
Adkins, at that time, and that Adkins had approved his
absence.
Clinard testified that when he went to the union
meeting, which he believed was in July, at the union hall in
Clarksville, he saw 14 or 15 employees whom he
recognized from around the plant, and that, as far as he
knew, they were all still employed at the plant. Clinard
testified that his foreman knew that if he (Clinard) did not
get into the Navy he would not be going into the Army until
February 1967. Clinard did testify that after his discharge
on August 3 he went into the Army on September 7.
When queried as to the number of days he was absent
during his first employment from December 1965 until he
quit in February 1966, Clinard could not remember. He did
remember that he was absent "some." He testified that he
was absent an unspecified number of times in May, no
321
more than 2 days in June, missed at least 1 day in each of 2
weeks in July, then the first and second day in August. He
reiterated that no one had ever said anything to him about
his absences nor complained about them.
Jack Miller, Jr., testified that he understood that Clinard
was discharged because he had been absent from work to
such a degree over the weeks and months that he did work
for the Company that "the type business such as ours in a
production line that his foreman and the plant
superintendent just could not tolerate this absenteeism
and had to discharge him for that reason." Miller stated
that Plant Superintendent James Bowes had so advised
him. Miller testified that other employees have been
absent from the plant, but that in his opinion Clinard's
absences were excessive; he was absent more than other
employees. He did not know whether some other
employees might have had equally excessive absences.
Miller testified that he did not know whether Clinard
was discharged because he did not ask permission to be
absent or because of the total number of days he was
absent. Miller said the decision to discharge Clinard was
made by Bowes and Majors.
Paul Majors, assistant foreman, testified that Clinard
worked for him, that he was absent about 2 or 3 days in a
row, out sick. His mother called in. Majors stated that he
warned Clinard and others about absenteeism. Later
Clinard was absent a couple of more days; his mother
called in and said he had gone to see about joining the
Army. Majors stated that he again warned Clinard about
production requirements and told him this was his last
chance. About a week later he missed another day or two
and did not call in . Majors talked it over with the plant
manager and they decided to let Clinard go. Majors said he
knew that Clinard was about to go into the Army, that
Clinard told him that he had passed his examination.
Majors denied any knowledge that Clinard had been to a
union meeting.
In testifying relative to the posted company rule on
absenteeism, Jack Miller stated that the rule read
" `Unexcused absenteeism of three continuous scheduled
work days. (When leave of absences are not granted.)'
Penalties for rules under Section 1 are as follows: `First
offense, written reprimand. Second offense, written
reprimand and/or suspension for a period of one to five
days without pay. Third offense, termination of
employment."' Miller testified that written reprimands
had never been given under these rules as far as he knew.
Mrs. Cunard, Clinard's mother, testified that she called
Clinard's foreman, Majors, both days when Clinard was at
Nashville for his examination. Mrs. Clinard testified that
she did not call on the other occasion of Clinard's absence
as she was not aware of his absence. She also testified that
she called Adkins on both, days on the occasion of
Clinard's injury and visit to the doctor.
Based on the testimony of record and my observation of
the witnesses as they testified, I am convinced and find
that the Respondent did not discharge Clinard because of
his union activity. Clinard's record of absences, if not the
worst in the plant, were obviously high. His imminent
entry into the service was a matter of knowledge to the
Respondent. His union activity was minimal, and it does
not appear that the Respondent had knowledge thereof. It
is well settled that the Respondent may discharge an
employee for any reason or for no reason at all if the
discharge is not motivated by the employee's participation
in protected union or other concerted activity. I find that
by the discharge of Clinard the Respondent did not violate
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a)(3) of the Act. Accordingly, I will recommend
dismissal of that portion of the complaint alleging the
discriminatory discharge of Clinard.
C. The Wage Increase
Joe Perry, an employee at Boot-Ster, received a pay
increase the week ending August 12, 1966, from $1 55 per
hour to $1.65 per hour. Perry's job was maintenance
mechanic on general maintenance-the repair of
machines. Perry was one of the employees included in the
appropriate unit represented by the Union.
According to President J. Z. Miller, Perry's boss Suder
came to Miller and said that Perry had a grievance that he
wished to discuss. That afternoon J. Z. Miller, his son Jack
Miller, Jr., Suder, and Perry met to discuss the matter.
According to J. Z. Miller, Perry stated that he took a real
interest in the Company and was doing his job well. J. Z.
Miller said, "I told him yes, I thought he did his job very
well. He is the son of a man that I have known for years
and years, and we are very friendly." Perry then said that
he did not believe that it was right that Levi, another
employee working in the same capacity, should be making
more money than he, claiming that he worked on more
machines than Levi. J. Z. Miller said he agreed with Perry
but said that he would look into the matter. Miller stated
that the foreman agreed that Perry was doing an excellent
job. After about another hour of discussion on the pros and
cons, it was decided to give Perry a raise. "I think
everybody there decided to give him a raise and told him
we could check out the amounts and let him know later,
which was done on that same day." J. Z. Miller testified
that he did not notify the Union he was going to give Perry
a wage increase, and he never discussed it with the Union.
According to J. Z. Miller, after he was given the raise,
Perry said in effect that his grievance had been over his
wages and that he now, having received the raise,
regretted that he had taken the union way.
J. Z. Miller also testified that when Perry received his
raise he was not the most senior employee in the
department, and that the more senior employees did not
receive a wage increase at this time.
Wilson Sims, Esq., lawyer for the Respondent
corporation, testified that he conducted the negotiations
for the Respondent with the Union and that at the time of
the grant of a wage increase to Perry, the week of
August 12, 1966, there had been no negotiations , that there
had been no negotiations prior to that time, and that the
Union had by letter of June 20 indicated that it would like
to enter into negotiations. The parties were then unable to
find a mutually satisfactory meeting date until finally the
first meeting took place on August 26, 1966. According to
Sims, at the time the wage increase was granted to Perry
on August 12, 1966, not only had there been no
negotiations about wages, there had been no negotiations
at all. Sims also indicated that at no time during the
negotiations did the Union object to the Perry increase.
However Sims did state that the Union was not informed at
any time after its letter of June 20 that Perry was to
receive a wage increase.
It is clear from the record that Perry had a grievance
concerning the rate at which he was paid, that this matter
was discussed by management, and a decision made to
adjust the inequity by raising Perry's pay. The Union was
not invited nor requested by the Respondent to participate
in these discussions and negotiations, nor did it. It is clear
though the initial request to bargain had come prior to the
time of the wage increase to Perry, because of repeated
postponements there had been no actual bargaining nor
negotiations initiated at the time of the wage increase, nor
did any take place between the Union and the Respondent
until after the increase had been granted. The Respondent
argues that this is not a violation of Section 8(a)(5) of the
Act, and that, even if it were to be held a technical
violation of the Act, under the circumstances of this case it
does not justify the issuance of a remedial order.
I have given careful consideration to the record and the
briefs of the parties. I have taken into account the posture
of the parties herein as they prepared to negotiate in
accordance with the enforcement order of the United
States Court of Appeals for the Sixth Circuit, N.L.R.B. v.
Boot-Ster Manufacturing Company, Inc., 361 F.2d 325
(1966), requiring the Respondent to bargain with the Union
herein. I find that the Respondent, in view of the above-
mentioned enforcement order, and the Union's letter of
request of June 20, was clearly under a duty to consult
with the Union as the bargaining representative of the
employees in the appropriate unit, that Perry was an
employee of the Respondent in that unit, and that the
Respondent, by failing to fulfill that duty and by granting
the wage increase to Perry unilaterally and without
discussion or consultation with the Union, failed to bargain
in good faith as required by the Act. As the Supreme Court
of the United States indicated in N.L.R.B. v. Benne Katz,
etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736,
the Board may properly conclude that an employer's
unilateral action in granting wage increases during
negotiations with a union amounted to an unlawful refusal
to bargain, without making a finding of subjective bad faith
on the part of the employer. A unilateral change in
conditions of employment under negotiations is
tantamount to a refusal to negotiate on affected conditions
of employment and frustrates the statutory objective of
establishing working conditions through bargaining. While
the Respondent argues that bargaining had not begun at
the time of the wage increase herein, I do not find this
distinction material in view of the flagrant failure of the
Respondent to fulfill its obligation to consult with the
Union under the circumstances herein and in the face of a
court order.
Finally, the Respondent urges that even if this be a
technical violation of the Act, the violation herein is so
isolated as not to justify the issuance of a remedial order,
citing Bob Morgan Motor Company, Inc., 106 NLRB 334.
Aside from the distinguishing fact that in Morgan the
Board had found that the record of the negotiations
between the respondent and the union did not show lack of
good-faith bargaining, I do not agree. While at first blush
the wage increase to one employee herein appears to be an
isolated incident, closer scrutiny of the action against the
posture of the case and its background persuades me that
the action of the Respondent demonstrates a lack of good
faith on the part of the Respondent, and that a remedial
order would effectuate the policies of the Act. In the face
of a court order to bargain with the Union and a clear
request by the Union to commence negotiations, and at a
time when the parties were about to begin negotiations,
the Respondent saw fit to ignore the Union while it
proceeded to deal directly with an employee concerning
wages. In my opinion this action was calculated to affect
the Union adversely, was in derogation of the
Respondent's duty to bargain, and, as clearly indicated by
the testimony of Perry, designed to effectively cool ardor
for concerted activity. Under these circumstances, while
the incident may appear to be isolated, it is by no means de
minimis.
BOOT-STER MFG. CO., INC.
Accordingly, I find the Respondent, by its unilateral
grant of a wage increase to Perry under the circumstances
herein, to have refused to bargain in good faith with the
Union in violation of Section 8(a)(5) of the Act and to have
interfered with, restrained, and coerced its employees in
the exercise of their union and concerted activities
protected by the Act in violation of Section 8(a)(1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The unfair labor practices of the Respondent set forth in
section III, above, occurring in connection 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 commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. Boot-Ster Manufacturing Company, Inc., is, and has
been at all times material to this proceeding, an employer
within the meaning of Section 2(2) of the Act.
2. United Rubber Workers, affiliated with United
Rubber, Cork, Linoleum & Plastic Workers of America,
AFL-CIO, is, and has been at all times material to this
proceeding, a labor organization within the meaning of
Section 2(5) of the Act.
3. At all times since October 10, 1963, the United
Rubber Workers, affiliated with United Rubber, Cork,
Linoleum & Plastic Workers of America, AFL-CIO, has
been the exclusive representative for the purposes of
collective bargaining with respect to rates of pay, wages,
hours of employment, or other terms and conditions of
employment, of the unit consisting of all production and
maintenance employees of Respondent's Clarksville,
Tennessee, plant, excluding all office clerical employees,
guards, and supervisors as defined in the Act.
4. By unilaterally instituting a wage increase without
notice to or consultation with the Union, thereby failing to
bargain in good faith with the Union, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
5. By discriminatorily discharging Roy Lee Lewis,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
6. By interfering with, restraining, and coercing their
employees in the exercise of the rights guaranteed in
Section 7 of the Act, through interrogation and threats,
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 commerce within the meaning of
Section 2(6) and (7) of the Act.
8. The discharge by the Respondent of Gerald Cunard,
for cause, did not constitute an unfair labor practice within
the meaning of Section 8(a)(3) and (1) of the Act and that
portion of the complaint so alleging is dismissed.
THE REMEDY
Having found that the Respondent has engaged in
various unfair labor practices affecting commerce, I shall
recommend that it be ordered to cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
323
Having found that Respondent failed to bargain
collectively with the Union in good faith in violation of
Section 8(a)(5) of the Act, by unilaterally granting a wage
increase without notice to or consultation with the Union, I
shall recommend that the Respondent be ordered to
bargain collectively, upon request, with the Union, and, if
an understanding is reached, embody such understanding
in a signed agreement, and that the Respondent be
ordered to cease and desist from unilateral grants of wage
increases without adequate notice to and consultation with
the Union.
Having also found that Respondent unlawfully
discharged Roy Lee Lewis on July 15, 1966, I shall
recommend that it be ordered to offer him immediate and
full reinstatement to his former or to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any
loss of earnings he may have suffered by reason of the
discrimination against him, by payment to him of a sum of
money equal to that which he normally would have earned
from the aforesaid date of discharge to the date of
Respondent's offer of reinstatement, less his net earnings
during such period. The backpay provided herein shall be
computed on the basis of calendar quarters, in accordance
with the method prescribed in F. W. Woolworth Company,
90 NLRB 289. Interest at the rate of 6 percent per annum
shall be added to such net backpay and shall be computed
in the manner set forth in Isis Plumbing & Heating Co.,
138 NLRB 716.
Because of the Respondent's failure to bargain in good
faith, its unilateral actions, its coercive interrogation and
threats, and its discriminatory discharge of employee
Lewis, it is reasonable to conclude that the Respondent in
the future, unless specifically enjoined, may deny its
employees their statutory rights not only in these, but in
other ways as well. Therefore, I shall also recommend that
the Respondent be ordered to cease and desist from in any
other manner interfering with, restraining, or coercing its
employees in the exercise of their rights guaranteed by
Section 7 of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in the case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I shall recommend that the Respondent, Boot-
Ster Manufacturing Company, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates of
pay, wages, hours of employment, or other terms and
conditions of employment with United Rubber Workers,
affiliated with United Rubber, Cork, Linoleum & Plastic
Workers of America, AFL-CIO, as the exclusive
representative of its employees in the following
appropriate unit:
All production and maintenance employees at
Respondent's Clarksville, Tennessee, plant, excluding
office clerical employees, guards, and supervisors as
defined in the Act.
(b) Unilaterally instituting changes in wages, rates of
pay, or other terms and conditions of employment of its
employees in the above-described appropriate unit without
first notifying and consulting with the Union.
(c) Discouraging membership of any of their employees
in United Rubber Workers, affiliated with United Rubber,
Cork, Linoleum & Plastic Workers of America, AFL-CIO,
or any other labor organization, by discharging or in any
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other manner discriminating against any employee in
regard to his hire, tenure of employment, or any other term
or condition of employment because of his union or other
protected concerted activity.
(d) Coercively interrogating and threatening employees,
thereby interfering with, restraining, and coercing its
employees in the conduct of activities protected by the
Act.
(e) In any other manner, interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, join, or assist any labor organization,
to bargain collectively with representatives of their own
choosing, to engage in concerted activities 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 which will
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 the above-described appropriate unit
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and, if an
understanding is reached, embody such understanding in
a written signed agreement. Nothing herein contained
shall be construed as requiring the Respondent to revoke
any wage increase which it has heretofore granted.
(b) Offer to Roy Lee Lewis 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 in the manner set
forth in the section of this Decision entitled "The
Remedy."
(c) 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, as amended, after discharge
from the Armed Forces.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due to
Roy Lee Lewis.
(e) Post at its plant in Clarksville, Tennessee, copies of
the attached notice marked "Appendix."2 Copies of said
notice, to be furnished by the Regional Director for
Region 26, after being duly signed by the Company's
representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 26, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.-;
' In the event that this Recommended Order is adopted by the
Board, the words "a Decision 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 is 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 "
' In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the
Regional Director for Region 26, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to
comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
Following a trial in which the Company, the Union, and
the General Counsel of the National Labor Relations
Board participated and offered their evidence, a Trial
Examiner of the National Labor Relations Board has found
that we violated the law and has ordered us to post this
notice and to abide by what we say in this notice.
WE WILL NOT refuse to bargain collectively with
United Rubber Workers, affiliated with United
Rubber, Cork, Linoleum & Plastic Workers of
America, AFL-CIO, by unilaterally granting wage
increases or other benefits without notice to and
consultation with your bargaining representative.
WE WILL NOT try to discourage you from becoming
or being a member of the United Rubber Workers,
affiliated with United Rubber, Cork, Linoleum &
Plastic Workers of America, AFL-CIO, by
discharging any employee, or in any other manner
discriminating against our employees in regard to hire
or tenure of employment or any other term or
condition of employment because of their union
membership or activities.
WE WILL NOT threaten any of our employees
because of their union membership or activity.
WE WILL NOT try to discourage you from union
activities or membership by questioning you about
your union or other concerted activities and
sympathies.
WE WILL offer Roy Lee Lewis his former job with
all of his rights, without prejudice to his seniority, and
make him whole for any loss of pay he may have
suffered as a result of our discrimination against him.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of any labor
organization.
BOOT-STER
MANUFACTURING COMPANY,
INC.
(Employer)
Dated By
(Representative ) (Title)
Note: We will notify Roy Lee Lewis 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, 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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board' s Regional Office, 746 Federal
Office Building, 167 North Main Street, Memphis,
Tennessee 38103, Telephone 534-3161.