Boss Manufacturing Co.

National Labor Relations Board - Board Decisions

Jul 28, 1948

78 N.L.R.B. 538 (N.L.R.B. 1948)

In the Matter of Boss MANUFACTURING COMPANY and GLOVE WORKERS'
UNION OF AMERICA, AFL
Case No. 17-C-1479.-Decided July 08, 1948
Mr. Harry L. Browne, for the Board.
Messrs. Cornelius Roach and Fred Howard, of Kansas City, Mo.,
for the Respondent.
Mr. Joseph C. Goodfellow, of Marinette, Wis., and Mr. Lee Cissna,
of Laclede, Mo., for the Union.
DECISION
AND
ORDER
On June 22, 1947, Trial Examiner Mortimer Riemer issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices 1 and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed ex-
ceptions to the Intermediate Report and a supporting brief.
The Board 2 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and brief , and the entire record in the case, and hereby
adopts the findings , conclusions , and recommendations of the Trial
Examiner , only to the extent that they are consistent with our Deci-
sion and Order.
1. The Trial Examiner found that Plant Manager Anderson's re-
marks to employees Bush and Prewitt concerning union solicitation
on company premises were intended to prohibit such activity during
non-working hours. We agree. We find, as did the Trial Examiner,
1 Those provisions of Section 8 (1) and 8 (3) of the National Labor Relations Act which
the Trial Examiner found were violated , are continued in Section 8 (a) (1) and 8 (a) (3)
of the Act as amended by the Labor Management Relations Act of 1947
7 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its pokers in connection with this case to a three -man panel consisting
of the undersigned Board Members [ Chairman Herzog and Members Reynolds and Murdock].
78 N. L. R. B., No. 69.
538
BOSS MANUFACTURING COMPANY 539
that this conduct and Anderson's further remark to Bush that he was
keeping a record of Bush's union activities constituted violations of
Section 8 (1) of the Act.
2. We accept the Trial Examiner's findings as to the statements
made by Plant Manager Anderson and Assistant Plant Manager
Swearingen to employees George Darr, William Bush, Alpha Gil-
lespie, and Lucille Ewing. On the basis of the testimony of these
four employees, detailed in the Intermediate Report, we find that the
Respondent has interfered with, restrained, and coerced its employees
in violation of Section 8 (1) of the Act by threatening to discharge
Darr if he were "instigatiog the union" and stating that other em-
ployees had lost their jobs through attempts to organize a union in
the Respondent's plants ; by the interrogation of employees concern-
ing their union activities; 3 by Anderson and Swearingen's conduct in
accepting Darr's information as to the union activities of other em-
ployees, and by Swearingen's conduct in ordering Darr to keep the
Respondent informed of union matters ; 4 by Anderson's threat that
the Respondent would close the plant if it were organized; 5 and by
Swearingen's promise that the Respondent "would take care of" Bush
if "something" did not happen in the plant .6
We do not agree with the Trial Examiner that Ray Samm was dis-
charged for union activity on October 22, 1947, and that the Respond-
ent thereby violated Section 8 (3) of the Act. The Trial Examiner
rests his finding as to Samm's discharge on two inferences : (1) that
the Respondent knew of Samm's interest in organizing a union on and
before October 22; and (2) that Samm's discharge was motivated by
such knowledge. The first inference is drawn principally from the
testimony of employee George Darr. Darr testified to a conversation
with Plant Manager Anderson and Assistant Plant Manager Swear-
ingen during which Darr spoke of Samm's initial efforts to start a
union. Darr also testified that he later informed Swearingen that
Samm had said "to forget it and we will drop it for a while." The
Trial Examiner found that Darr acted as an informant for the Re-
spondent. Darr, however, did not testify as to any further conver-
sations and, more particularly, did not testify that he informed the
Respondent of Samm's intention to visit a union organizer on the
3 Matter of Sewell Manufacturing Company, 72 N. L. R. B. 85; Matter of Ames Spot
Welder Co, Inc, 75 N. L. R B. 352.
4 Such conduct constitutes unlawful surveillance of organizational activity. See Matter
of Sohio Pipe Line Company, 75 N. L. R. B. 858.
5 See Matter of Wadesboro Full-Fashioned Hosiery Mills, Incorporated, 72 N. L, R. B.
1064; N. L. If. B. v. American Furnace Co., 158 F. (2d) 376 (C. C. A. 7).
5 We interpret this remark as a thinly veiled reference to union organizational activity
and, as such, unlawful interference. See Matter of Union Products Company, 75 N. L. R. B.
591.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
crucial date of October 22. Three other witnesses testified to discrimi-
natory, anti-union statements by both Anderson and Swearingen, but'
in none of their testimony is there any direct reference to Samm.
As indicated in the Intermediate Report, ample cause existed to
discharge Samm for both business and efficiency reasons. His original
job of cutting leather tips by hand was discontinued when machines
replaced the hand process. Thereafter, he was employed as a sub-
stitute stacker, and as a handy man, and finally, at the time of his dis-
charge, was assigned to the task of oiling the production machines.
The record is clear that Samm's work as an oiler was not satisfactory.
Samm, himself, admitted it took him 3 to 4 minutes to oil a machine,
whereas the time consumed by individual operators in oiling their own
machines was 1 to 11/2 minutes. A number of the piece-rate operators
testified that Samm was too slow and too talkative. Several had com-
plained to their supervisors. The Trial Examiner notes that the evi-
dence warrants a finding that Samm's work caused dissatisfaction
which "could no longer be ignored." After his discharge the opera-
tors resumed the practice of oiling their own machines.
On this record, we are not persuaded that the evidence preponderates
in favor of a finding that Samm was discharged because of his union
activities rather than for the valid reasons discussed above. Accord-
ingly, we shall dismiss that portion of the complaint alleging that
Samm was discharged in violation of Section 8 (3) of the Act.
THE REMEDY
In view of the testimony of a number of employees that they were,
not coerced by any of the actions of the Respondent,' the Trial Exam-
iner recommended that the Board issue a cease and desist order limited
to the specific conduct which he found to be violative of Section 8 (1)
and 8 (3) of the Act. We, however, believe that the Respondent's con-
duct, heretofore found to be unlawful, is indicative of its opposition
to the underlying purposes of the Act and the amended Act, and is so
related to other employer unfair labor practices that the threat of
the future commission of any or all of such practices exists. We shall
therefore order that the Respondent cease and desist from in any
manner infringing upon the rights guaranteed in Section 7 of the
amended Act.8
7 Testimony of this nature is immaterial to charges of unfair labor practices Matter
of The Pure Oil Company, 73 N. L. R. B 1; N. L R B. v Winona Textile Mills, 160 F.
(2d) 201
8 See Matter of Federal -Mogul Corporation, Federal-Mogul Service Division, 76 N L. R B.
1, and cases cited therein.
BOSS MANUFACTURING COMPANY
ORDER
541
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Boss Manu-
facturing Company, Chillicothe, Missouri, and its officers, agents,
successors, and assigns, shall:
1. Cease and desist from in any manner interfering with, restrain-
ing, or coercing its employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist Glove Work-
ers' Union of America, AFL, or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities for the purposes of collective bargain-
ing or other mutual aid or protection, as guaranteed in Section 7 of
the Act, as amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act, as amended :
(a) Post immediately at its Chillicothe, Missouri, plant, copies of the
notice attached hereto marked "Appendix A." 9 Copies of said notice,
to be furnished by the Regional Director for the Seventeenth Region,
shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof, and main-
tained by it for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees 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; and
(b) Notify the Regional Director for the Seventeenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
AND IT Is FI RTIIER ORDERED that the complaint, insofar as it alleges
that the Respondent unlawfully discriminated against Ray Samm in
violation of Section 8 (3) of the Act be, and it hereby is, dismissed.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
'In the event that this Order is enforced by a decree of a Circuit Court of Appeals,
there shall be inserted before the words "A DECISION AND ORDER" the words "DECREE
OF THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING."
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist GLOVE WORKERS'
UNION OF AMERICA, AFL, or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection. All our employees
are free to become or remain members of the aforesaid union,
or any other labor organization.
Boss MANUFACTURING COMPANY,
Employer.
Dated ---------------------- By ------------------------------
(Representative) (Title)
This notice must remain posted for sixty (60) days from the date
hereof and must not be altered, defaced, or covered by any other
material.
INTERMEDIATE REPORT
Mr. Harry L. Broome, for the Board.
Messrs. Cornelius Roach and Fred Howard, of Kansas City, Mo., for the
respondent.
Mr. Joseph C. Goodfellow, of Marinette, Wis., and Mr. Lee Cissna, of Laclede,
Mo., for the Union.
STATEMENT OF THE CASE
Upon a first amended charge filed November 8, 1946, by Glove Workers' Union
of America, affiliated with the American Federation of Labor, herein called the
Union, the National Labor Relations Board, herein called the Board, by its
Regional Director for the Seventeenth Region (Kansas City, Missouri), issued
a complaint dated May 28, 1947, against Boss Manufacturing Company, herein
called the respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act.
With respect to the unfair labor practices the complaint alleged in substance
that the respondent: (1) in order to discourage membership in the Union, ex-
pressed disapproval of it; threatened to close down its operations should the
employees organize ; and sought to obtain information about the Union, its
organizers and members; (2) on or about October 22, 1946, discharged Ray Samm
and thereafter refused to reinstate him because he sought to organize and assist
the Union and engaged in other concerted activities; and (3) by reason of the
foregoing acts, interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act.
Copies of the complaint together with notice of hearing thereon were duly
served upon the respondent and the Union. The respondent filed an answer in
which it admitted certain factual allegations of the complaint but denied that it
had engaged in any unfair labor practices.
Pursuant to notice, a hearing was held on June 16 and 17, 1947, at Chillicothe,
Missouri, before Mortimer Riemer, the undersigned Hearing Examiner, duly
BOSS MANUFACTURING COMPANY 543
designated by the Chief Trial Examiner. The Board and the respondent were
represented by counsel who participated in the hearing, and the Union by its
representatives. Full opportunity to be heard, to examine and cross-examine
witnesses and to introduce evidence bearing upon the issues was afforded all the
parties. At the outset of the hearing counsel for the Board moved to strike a
portion of the answer as an inadequate statement of the grounds constituting
the respondent's defense to the alleged discriminatory discharge of Samm. The
motion was denied. At the conclusion of the hearing, a date was fixed for the
filing of briefs and an informal discussion of some of the issues was had upon the
record. Thereafter, counsel for the respondent submitted a brief.
Upon the entire record in the case and from his observation of the witnesses
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Boss Manufacturing Company, the respondent herein, is an Illinois cor-
poration with a place of business at Chillicothe, Missouri. It is there engaged in
the manufacture, sale and distribution of workmen's gloves, mittens, corn huskers
and related products. In the course and conduot of its business, the respondent
has continuously caused quantities of raw material consisting chiefly of thread,
flannel, leather and knit tubing to he purchased and transported in interstate
commerce to its plant at Chillicothe, Missouri, from States other than the State
of Missouri. For the year 1946, the purchases of the said raw material exceeded
$100,000 in value, 90 to 95 percent of which was shipped from sources outside
the State of Missouri. For the same year sales of finished products exceeded
$125,000 in value, 80 percent of which was sold and shipped from the Chillicothe
plant to consignees outside the State of Missouri
The respondent admits'that it is engaged in interstate commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Glove Workers' Union of America, A. F. of L., is a labor organization admitting
to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
The record herein presents the picture of a situation where each major issue
is seriously controverted and findings of fact are dependent in large measure
upon the credibility of witnesses. If the Board's witnesses are to be believed, the
respondent after acquiring knowledge of Ray Samm's interest in organizing the
Union, waited until sure of its knowledge, and then at the moment when his
efforts were likely to succeed in its formation, discharged him giving business
reasons as a pretext to justify the discharge. On the other hand, if the witnesses
for respondent are credited, the respondent hadno forehand knowledge of Samm's
union interest or activity and discharged him because he was an inefficient em-
ployee. Moreover, other witnesses gave testimony .that the advent and presence
of the Union had not been interfered with and membership therein had not been
to the employees' disadvantage.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. The discharge of Ray Samm
Samm was first employed by the respondent in January 1946, as a tip cutter.
This is a simple unskilled hand operation and was performed by three or four
employees in all. About June 10, Samm was transferred to the operation of
staking and stacking cut leathers, to replace a regular operator who was ill.
For this work Samm was paid 68 cents an hour, representing an increase over
the hourly rate paid him as a tip cutter. In late August, on the return to
employment of the regular staker, Samm was transferred to the shipping depart-
ment. Here for the next month or so, Samm performed a number of miscel-
laneous tasks in and out of the shipping department.
Sometime in June, the respondent received orders to discontinue tip cutting
as a hand operation and change over to the mechanical cutting of glove tips by
use of dies on a machine known as a clicker. The changeover required some
time to perfect but the evidence shows that on October 19, the respondent
employed four tip cutters, on October 26, it employed only one, and thereafter
the hand operation was discontinued.
Because tip cutting as a hand operation was coming to an end, the respondent
sought a more permanent post for Samm than his irregular duties in the shipping
department Elsewhere, in the respondent's operations at its other plant, the
system of using an employee £o clean and oil heavy sewing machines was in
effect, whereas at Chillicothe, the sewing machine operators oiled their own_
machines. Using the foregoing system as a precedent, the respondent in early
September decided to adopt the system at Chillicothe and Samm was given the
job of oiler. Thereafter, until his discharge on October 22, but for about 2 weeks
spent in the shipping department and some other miscellaneous work, Samm was
occupied in the task of oiling and cleaning the sewing machines. Samm's rate
of pay remained the same when he became the oiler but Walter Swearingen,
assistant plant manager, told Samm there was a "good opportunity" in the work
if he performed his tasks satisfactorily.
Just about the time Samm was transferred to his new job he made known his
interest in organizing a union to a select few of his friends among the employees.
He asked them what they thought of the idea and volunteered to visit George
Wilcox, his uncle, at Kirksville, Missouri, for the purpose of getting information
and suggestions about the formation of a union. Samm's conversations with
fellow employees were both on and off company property but were secretive and
every effort was made to hide the nature and extent of these early efforts.
Among those told of Samm's intention to visit Kirksville was George Darr, a
machinist employed in the plant.
Darr was called as a witness by the Board. He is not a union member. He
testified that shortly after he learned that Samm was going to Kirksville to secure
union information, he informed G. W. Anderson, the plant manager, and Swear-
ingen of this fact; that Anderson replied that if he believed Darr "was insti-
gating the union", his time was "up"; and that Anderson inquired if Darr had
any further knowledge of union.interest. He testified further that about Octo-
ber 1, Samm told him to "forget" the matter, "and we will drop it a while." In
addition Darr testified that he informed Swearingen of this latest conversation
with Samm, whereupon Swearingen replied that it was Darr's duty to keep him
informed "about the matter," which Darr said he would do.
Darr's testimony if credited would provide the basis for imputing union knowl-
edge to the respondent. However, both Anderson and Swearingen flatly denied
BOSS MANUFACTURING COMPANY 1 545
any knowledge of fact or rumors about Samin and his union interests in Septem-
ber and October Both men placed their first knowledge of Samm's activities
subsequent to his discharge when they received information from the Regional
Office concerning the filing of charges . In addition , Anderson denied Darr's
testimony that the latter acted as an informant on Samm or that he had warned
Darr against participating in union organizational affairs. Swearingen likewise
denied Darr's testimony that he had been informed - of Samm 's proposed trip to
Kirksville ; that the matter was to be dropped ; and that it was Darr's duty to act
as an informant.
Before passing upon the above testimony, certain events which are not in
dispute and which preceded Samm's discharge are now considered.
Samm on his first trip to Kirksville did not see his uncle. He decided there-
after in conversations with his employee friends to make another visit on Sunday,
October 20. On returning that night from Kirksville, he visited William Bush, the
shipping clerk and one of those interested in forming the Union Samni told
Bush that his uncle had counseled getting in touch with a local organizer. Both
men decided to consult employees of a Chillicothe creamery which was organized.
On Monday night, October 21, Bush went to the creamery and was there advised
to contact Lee Cissna, an A. F. of L representative at Laclede, Missouri. Samm
and Bush then made plans to visit Cissna at Laclede the night of October 22.
Bush told Darr on the morning of October 22 , that lie and Samm were going to
Laclede that night Samm likewise told several of his employee friends, including
Darr, during the noon hour of his intentions to visit Cissna . The foregoing find-
ings in this paragraph rest upon credible and uncontradicted testimony.
Alpha Gillespie, the plant janitor, called as a witness by the Board, testified
that about 10 a m. on October 22, Anderson asked him if any one had talked
to him about trying to organize a union. Gillespie replied that no one had
talked to him. Anderson then stated that lie knew "a couple of them" were
going to visit an organizer that night and that lie might "give them more time yet
to look about it " According to Gillespie's further testimony, Anderson then
went on to relate that there had been an "organization" at the respondent's
Leavenworth plant, which did not last long and that its "main instigator" was
no longer employed All of the foregoing testimony Anderson denied.
There is a further hit of disputed testimony According to Bush, on the
morning of October 22, Swearingen told Bush that "something" was going on in
the plant of which the respondent was aware, if it-happened Bush would "just
be a shipping clerk" ; if nothing occurred the respondent would "take care" of
Bush ; but Swearingen could not "mention what it was" and that Bush should
see Anderson. Bush did not see Anderson until October 24, after Samin's dis-
charge He testified Anderson stated they were trying to organize the plant,
there wasn ' t a "damned thing" he could do about it ; that union organizers.
at Leavenworth were no longer employed and the respondent would close the
plant before operating under a closed shop.
With respect to this testimony , Swearingen testified as follows : He denied any
conversation with Bush on October 22, but did acknowledge a conversation on a
previous occasion wherein he told Bush that he could do nothing for him about
a wage raise and this matter should be discussed with Anderson . Anderson,
admitted that he talked to Bush about a wage increase He could-not recall any
conversation about the plant being organized or that union organizers at Leaven-
worth were no longer employed.
Finally on the subject of respondent 's union knowle0ge there is the testimony
of Lucille Ewing She testified that on October 22, the rumor spread in the
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant that a union was being organized, and that all who joined would lose their
jobs. Thereupon at about 5 p. m. she went in to see Anderson to ask if her
job was in jeopardy. Anderson told her not to worry, since he had confidence
in her . She testified further that Anderson said "they" were trying to organize
a union in the plant and that employees had lost their jobs through similar efforts
in the past. Anderson denied all of this testimony
The crucial issue of union knowledge on the respondent's part is dependent upon
a finding that as a result of these alleged conversations, information came to the
respondent concerning Samm's efforts to create a union. It is difficult to believe
that each Board witness fabricated a story out of whole cloth in order to charge
the respondent with the requisite notice. This might be true of one witness but
here we have Gillespie, Bush and Ewing all testifying in substance that the
respondent knew of union activity in the plant and Darr testifying, that he gave
the respondent direct information of Samm's connection with it. Darr was inter-
viewed by the respondent's counsel in a pre-hearing witness conference and failed
to disclose to him at that time, although asked, the facts that he later testified to
concerning conversations with Anderson and Swearingen.
The burden was upon the Board to show by clear and substantial evidence the
facts upon which the ultimate fact in issue could be drawn that the respondent
knew of what was being undertaken to form the Union. There is more than a
strong suspicion of union knowledge in this case, despite the denials of Anderson
and Swearingen. As indicated above, it is difficult to believe that the testimony
of Darr, Gillespie, Bush, and Ewing was conjured up in orcjer to provide the basis
of such a finding. The undersigned is satisfied on reviewing the entire record and
particularly the testimony of the foregoing witnesses that there are here present
substantial bases, in fact, from which the fact in issue can reasonably be inferred-
that respondent did know on October 22, and prior thereto, that Samm was
interested in organizing a union and was playing a leading role in that connection,
It is so found.
More than proof that Samm was at the time of his discharge engaged in con-
certed activity which was known to the respondent is needed, however, in order
to find as a fact that the discharge was discriminatory. Two possible inferences
can arise in the present case : (1) that Samm's discharge was discriminatory ;
and (2) that despite his known occupation with union matters he was discharged
for cause.
The undersigned acknowledges the merit in the respondent's arguments ad-
vanced at the hearing and again in its brief that Samm was the only individual
discharged and had the respondent deliberately sought to deal the Union a death
blow, it might have chosen Bush as the person for this purpose. Samm's union
activities were not particularly distinguished by reason of their character or
quality and Bush no less than Samm, played a leading role in the early efforts
to create a union Bush was by reason of his position as a shipping clerk, his
tenure of service, and his maturity, a more obvious object for discrimination.
When the Union was later formally organized and its activities and officers mat-
ters of public knowledge, no acts of reprisal were lodged against union members
or officers and, except for Samm, there is no showing that any other union member
was the object of discrimination. On- the other hand, it is possible that the
respondent believed for reasons which are hereafter discussed, that Samm was
one employee that it could afford to discharge with least effect on its business
operations, and at the same time with seemingly proper motive, rid itself of an
employee who was one of the two active employees interested in organizing a union.
BOSS MANUFACTURING COMPANY 547
Samm worked as an oiler and the previous history of his employment indi-
cates that the respondent considered him an unskilled employee whose services
could be easily spared. When the tip cutting operations became subject to
change Samm was tried at other tasks. The work of an oiler was an experiment
which proved unsatisfactory. Tip cutting being eliminated as a hand operation
and Samm having no other skills, the respondent could with reason conclude
that no other place was available for Samm. As indicated above, the oiling of
machines had previously been performed by the machine operators. They ob-
jected to Samm doing the work because of the time lost on their piece-work
rates. The undersigned is of the opinion that although the respondent's wit-
nesses gave grossly exaggerated testimony on the length of time taken by Samm
to oil a machine, nevertheless, it appears from the testimony of the Board's own
witnesses that Samm did take longer to do this work than the operators them-
selves Perhaps he did a more thorough job of oiling and cleaning than the
machine operators were accustomed to perform for themselves. But his efforts
were not appreciated and they objected to the work being done at all and com-
plained about the length of time that he took to oil the machines.
At least two sewing machine operators, Helen Moling and Justa Fairchild, com-
plained to their floorlady about Samm. May Dominique on one occasion refused
to let Samm oil her machine. This incident was apparently reported to top
-management by Lena McCarthy, the floorlady. Anderson and Swearingen dis-
cussed the complaints brought to their attention concerning the length of time
Samm spent on his oiling operations The question of his discharge was first
broached about October 1:5, as a result. Thus as heretofore indicated, although
the respondent's witnesses magnified the length of time Samm took to oil a
machine, nevertheless there is a totality of credible evidence sufficient to war-
rant a finding that Samm's work caused a certain amount of dissatisfaction
which could no longer be ignored.
Anderson and Swearingen made the joint decision to discharge Samm on
October 22. It is not without significance that this date coincided with the
proposed visit of Samm and Bush to Cissna later that day. It will be recalled
that Gillespie testified that on the morning of October 22, Anderson asked him
if any one had talked to him about organizing a union and then stated that he
knew that "a couple" of employees were going to visit an organizer that night.
Gillespie testified further that Anderson told him that "an organization" at the
respondent's Leavenworth plant did not last long and that its "main instigator"
was no longer employed. Gillespie stated this conversation occurred at about
10 a. in., on October 22. Both Bush and Samm had informed Darr of their im-
pending visit to Cissna, the former fixing the time of his disclosure in the
"morning" and the latter at noon on October 22. The undersigned is convinced
that Darr acted as an informant. Gillespie's testimony is subject to challenge
because his timing of the conversation does not fit into the sequence of events
with exact nicety. Yet on the whole, the undersigned is of the opinion despite
Anderson's denials that this conversation was held. On this issue Gillespie was
the more impressive and forthright witness. Hence, the undersigned credits
and accepts Gillespie's testimony that on the morning of October 22, Anderson
knew of the proposed visit of two employees to see an organizer'
The question of whether Samm was discriminatorily discharged is a very
close one . The undersigned cannot overlook the persuasive character of Gilles-
1 See N. L. R. B. v. Bird Machine Co., 161 F. (2d) 589 (C. C. A. 1) ; N. L. R B. V.
Link-Belt Co., 311 U. S. 584, 597; N. L. R. B. v. Franks Bros. Co., 137 F. (2d) 989, 991;
N. L. R. B. v. Auburn Foundry Inc., 119 F. (2d) 331, 333.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pie's testimony as to the nature of Anderson's remarks which were followed
thereafter by the discharge of an employee who could with reason be chatacter-
ized a "main instigator" of the Union. Of the two permissive inferences that
might be drawn from the circumstances of the case, the inference that Samm's
union activities were the dominating influence in selecting October 22 as the
date of discharge, is, in the undersigned's opinion, not only as logicll an in-
ference but the more compelling inference under the total circumstances of the
case. The undersigned believes that the testimony of such witnesses as Darr,
Gillespie, and Ewing is not only on the whole accurate but that it placed Samm
in the position before the respondent of being the leading figure and the one
responsible for the concerted activities. On October 23, when Samm saw Ander-
son about a letter of recommendation, Anderson told him that he was discharged
for several reasons but that lie was not obligated to state the reasons. Samm
related that Swearingen had informed him that lie had been discharged because
he was not adapted to his work and hence, he would like to return to a job for
which he was adapted. Anderson told him, however, that lie would not hire
Samm for any position. Anderson did not tell Samm that lie used too much
time in his oiling tasks or that lie engaged in gossip with the machine operators
but he gave Samm a letter of recommendation praising him "as a good employee."
On the record as a whole, the undersigned is of the opinion that Sainm's dis-
charge on October 22 was motivated by the respondent's knowledge of his con-
certed activities and, despite existing causes for non-discriminatory discharge,
the respondent did in fact decide on October 22 to discharge him for his con-
certed activities. It is so found and that thereby the respondent violated Section
8 (3) of the Act.
B. Interference, restraint and coercion
Bush testified that a week or two after Samm's discharge, Anderson, in con-
versation, accused him of neglecting orders and pulled out a pocket note-book,
thrust it in his face and said that he was keeping a record of Bush's union activi-
ties. Anderson testified on the contrary that he reprimanded Bush for some
shipping mistakes that he had made. He acknowledged that he did pull out a
note-book but explained to Bush that he was keeping a record of his mistakes,
in order to have evidence for use in the case of a discharge for that ie.i'4on The
testimony of Bush is credited over that of Anderson's and it is found Anderson
made the remarks as testified to by Bush Such conduct is found to be violative
of Section 8 (1) of the Act as constituting interference, restraint, and coercion.
On another occasion, subsequent to Sanini's discharge, Bush testified that
Anderson warned him not to solicit for the Union on company premises because
it was against the law and that he had proof that Bush was engaged in such
activities. Bush denied any such conduct Anderson acknowledged that he
warned Bush not to solicit but testified his warning was restricted to such activ-
ity on company time. Hazel Prewitt testified that sometime after Samna's dis-
charge, during the noon recess, she was observed in the act of passing some
union material to a co-worker and was thereupon directed to report to Anderson.
On reporting to Anderson she was warned that she could not solicit "for the
Union in here." This testimony of Prewitt is uncontradicted
With respect to the aforementioned conduct of Anderson there i,; no record
evidence of any plant rule prohibiting the solicitation of union membership
or the transaction of incidental union business during non-working hours. The
BOSS MANUFACTURING COMPANY 549
undersigned assumes that the non-discriminatory prohibition by the respondent
of this type of activity on the respondent's time would have been clearly within
the prerogative of management. It seems clear, however, that what Anderson
did was to warn Bush and Prewitt against the use of non-working time to assist
the Union. In N. L R. B. v Republic Aviation Corp., 132 F. (2d) 193, it was
held, the Supreme Court affirming the holding in 324 U S. 793, that Section 7 of
the Act was properly construed by the Board as conferring upon employees the
right to solicit membership on behalf of labor organizations within the plant
in which they worked except during working hours. Curtailment of that right
by an employer, it was held, constituted an unfair labor practice unless the em-
ployer could justify such limitation by showing that to permit solicitation during
non-working hours would result in detriment to plant discipline or efficiency
so substantial as to warrant over-riding the employees' interest involved.
The respondent made no such showing in the instant case. It follows under
the Republic Aviation case that regardless of the factor which motivated Ander-
son's announcement of the rule, its application to the kind of activity Bush and
Prewitt were engaged in during non-working hours was an illegal invasion of
rights which the statute guarantees to employees. The undersigned finds that
the afore-mentioned conduct of Anderson constituted a violation of law within
the meaning of Section 8 (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities 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 com-
merce among the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has violated Section 8 (1) and (3) of the
Act, the undersigned will recommend that it cease and desist therefrom and take
certain affirmative action which the undersigned finds necessary to effectuate the
policies of the Act.
The undersigned found that the respondent discharged Ray Samm because of his
concerted activities and his ettorts to organize the respondent's employees. Ordi-
narily the discharge of an employee for engaging in concerted activities is suffi-
ciently gra,, e to warrant the recommendation that the respondent cease and desist
from in any manner interfering with the rights of employees guaranteed in Sec-
tion 7 of the Act However, in the instant case, there is the testimony of numer-
ous witnesses by both the Board and the respondent that they were neither
influenced nor coerced by anything the respondent did and that they felt perfectly
free to join or not join a union. in view of testimony of this nature, the under-
signed will not recommend that the respondent be ordered to cease and desist from
in any manner infringing upon the rights guaranteed in Section 7 of the Act.
Although the tip-cutting operation has been discontinued and the experiment
of using Sanim as an oiler has on the whole proved unsatisfactory, the under-
signed deems it necessary in order to effectuate the policies of the Act to recom-
mend Samm's reinstatement to a job at the respondent's plant which is conimen-
surate , with his abilities The undersigned will recommend immediate and fu1L
794767-49-vol 78-36
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstatement for Samm to a substantially equivalent position m without preju-
dice to his seniority or other rights and privileges.
The undersigned will also recommend that the respondent make whole Samm
for any loss of pay 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 as wages from the date of the discrimination against him to the date
of the offer of reinstatement, less his net earnings' during such period.
Upon the basis of the above findings of fact and the entire record in the case,
the undersigned makes the following:
CONCLUSIONS OF LAW
1. The Glove Workers' Union of America, A. F. of L., is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Ray
Samm, thereby discouraging membership in Glove Workers' Union of America,
A. F. of L., respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
conimeice within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law the under-
signed recommends that Boss Manufacturing Company, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in the Glove Workers' Union of America,
A. F. of L., or any other labor organization of its employees by the discharge
and refusal to reinstate any of its employees or discriminating in regard to the
hire and tenure of employment or any term or condition of employment;
(b) Discouraging membership in the Glove Workers' Union of America,
A. F. of L, or any other labor organization of its employees, by engaging in
conduct of the nature heretofore found to be a violation of Section 8 (1) and
(3) of the Act, or in any like or related act or conduct which interferes with,
restrains, or coerces employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist Glove Workers' Union of America,
A. F. of L., or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or protection as guaran-
teed in Section 7 of the Acct.
2 In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible and if such position is no longer in existence then to a substantially equivalent
position " See Matter of The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 N. L R. B. , 827.
3 See Matter of Crossett Lumber Co., 8 N. L. R. B 440, 497-498.
BOSS MANUFACTURING COMPANY 551
2. Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the Act :
(a) Offer to Ray Samm immediate and full reinstatement to a substantially
equivalent position without prejudice to his seniority or other rights and
privileges ;
(b) Make whole Ray Samm for any loss of pay he may have suffered by
reason of the respondent' s discrimination against him , by payment to him of a
sum of money equal to the amount which he normally would have earned as
wages from the date of his discriminatory discharge to the date of the respond-
ent's offer of reinstatement less his net earnings during said period ;
(c) Post in conspicuous places throughout its plant in Chillicothe, Missouri,
copies of the notice attached hereto marked "Appendix A." Copies of said notice,
to be furnished by the Regional Director for the Seventeenth Region, after being
signed by the respondent's representative, shall be posted immediately by the
respondent upon receipt thereof and maintained by it for at least sixty (60)
consecutive days thereafter, in conspicuous places, including all places where
notices to employees 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 Seventeenth Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report what
steps the respondent has taken to comply herewith.
It is further recommended that, unless on or before ten (10) days from the dath
of the receipt of this Intermediate Report, the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
As provided in Section 203.39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel
for the Board may, within fifteen (15) days from the date of service of the order
transferring the case to the Board, pursuant to Section 203.38 of said Rules and
Regulations, file with the Board, Rochambeau Building, Washington 25, D. C.,
an original and four copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding
(including rulings upon all motions or objections) as he relies upon, together
with the original and four copies of a brief in support thereof; and any party
or counsel for the Board may, within the same period, file an original and four
copies of a brief in support of the Intermediate Report. Immediately upon the
filing of such statement of exceptions and/or briefs, the party or counsel for the
Board filing the same shall serve a copy thereof upon each of the other parties
and shall file a copy with the Regional Director. Proof of service on the other
parties of all papers filed with the Board shall be promptly made as required by
Section 203 65. As further provided in said Section 203.39, should any party
desire permission to argue orally before the Board, request therefor must be
made in writing to the Board within ten (10) days from the date of service of
the order transferring the case to the Board.
MORTIMER RIEMER,
Hearing Examiner.
D
Dated July 29, 1947.
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WI L nor interfere with, restrain, or coerce our employees in the exer-
cise of their right to self-organization, to form labor organizations , to join-
or assist GLOVE WORKERS ' UNION OF AMERICA, A. F. of L., or any other labor
organization , to bargain collectively through representatives of their own
choosing , and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
WE WILL OFFER to the employee named below immediate and full reinstate-
ment to a substantially equivalent position without prejudice to any senior-
ity or other rights and privileges previously enjoyed, and make him whole
for any loss of pay suffered as a result of the discrimination.
RAY SAMM
All our employees are free to become or remain members of the above-named
union or any other labor organization . We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
aby employee because of membership in or activity on behalf of any such labor
organization.
Loss M_\NUracrui:ico CoIIPANY,
Eni ployer.
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 ipaterial.