Botany Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1968

171 N.L.R.B. 1590 (N.L.R.B. 1968)

1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Botany Industries , Inc. (Baltimore Luggage Co.
Division) and International Leather Goods, Plastic
& Novelty Workers' Union, AFL-CIO. Case
5-CA-3598
June 20, 1968
DECISION AND ORDER
On February 16, 1967, Trial Examiner A. Nor-
man Somers issued his Decision in the above-enti-
tled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion . Thereafter, the Respondent filed exceptions
and a supporting brief.
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 and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as modified herein.
We agree with the Trial Examiner for the reasons
stated by him that the discharge of the lining de-
partment employees violated Section 8(a)(1). We
also agree that the reinstatement and backpay
remedial measures recommended by the Trial Ex-
aminer are appropriate in this case. At the time of
the discharge the employees had not yet decided
what action they would take. They had not struck
when the Respondent had them punched out. For
this reason, i.e., that the employees did not stand in
the position of strikers, we do not think it signifi-
cant that their request for reinstatement added the
condition that they sought backpay. As employees
wrongfully discharged they were in fact entitled to
such backpay. But even were we to hold them
strikers, the Respondent cannot rely on the alleged
condition because it simply refused to answer their
request, and gave no indication that it was basing
the refusal to reinstate on the ground that the rein-
statement demand was coupled with a request for
backpay. See Colecraft Manufacturing Company,
Inc. v. N.L.R.B., 385 F.2d 998 (C.A. 2), and
N.L.R.B. v. Comfort, Inc., 365 F.2d 867, 877-878
(C.A. 8). The Respondent's failure to reply, com-
bined with its earlier precipitate action in discharg-
ing the employees, made it clear that it would be
futile for the employees to reapply for reinstate-
ment under any circumstances.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent,
Botany Industries, Inc. (Baltimore Luggage Co.
Division), Baltimore, Maryland, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as so modified:
1. Add the following as paragraph 2(f), and re-
letter the following paragraph accordingly:
"(f) Notify the above-named employees if
presently serving in the Armed Forces of the
United States of their 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.
2. Add the following immediately below the
signature line of the Appendix attached to the Trial
Examiner's Decision:
Note: We will notify the above-named em-
ployees if presently serving in the Armed
Forces of the United States of their right to full
reinstatement upon application in accordance
with the Selective Service Act and the Univer-
sal Military Training and Service Act, as
amended, after discharge from the Armed
Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A. NORMAN SOMERS, Trial Examiner: This case,
with all parties represented, was heard before me in
Baltimore , Maryland, on November 28 and 29,
1966, on complaint of the General Counsel ( issued
October 17, 1966, on charges filed by the Union on
September 8 and 15, 1966) alleging violations by
Respondent of Section 8(a)(1), (3), and (5) of the
Act. The parties waived oral argument and have
filed well documented briefs, which have been
carefully considered. Upon the entire record' and
my observation of the witnesses, I make the follow-
ing:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Respondent, a Maryland corporation, is engaged
at its plant in Baltimore in making and selling lug-
' As corrected by an Order and Supplemental Order issued on notice to
the parties and added to the record as TX Exhs. 2A and 2B.
171 NLRB No. 191
BOTANY INDUSTRIES, INC. 1591
gage . It annually ships out of the State over
$50,000 worth of its product, and receives at least
$50,000 worth of materials from outside the State.
Respondent does not dispute and I find that it is en-
gaged in interstate commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party, International Leather Goods
& Plastic Novelty Workers' Union, AFL-CIO (the
Union), is a labor organization within the meaning
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
Respondent is accused of having, in violation of
Section 8(a)(5) and (1) of the Act, instituted a
wage change unilaterally in disregard of its obliga-
tion to notify and consult the Union as the em-
ployees' exclusive bargaining representative under
a certification issued to it after winning an election
in a Section 9 representation proceeding. Respon-
dent is further accused of having, in violation of
Section 8(a)(3) and (1), discharged seven em-
ployees who concertedly suspended work in the
course of a protest and a demand for an explana-
tion of the change in wage rate.
B. Unilateral Change in Wage Rates in Disregard of
Union's Exclusive Bar aining Status under its
Certification
The parties agree that in an election held in 1965
in a Section 9 representation proceeding (Case
5-RC-5265), the Union polled a majority of the
votes in an appropriate unit consisting of Respon-
dent's production and maintenance employees; and
that on January 24, 1966, the Board issued to the
Union a certification as exclusive collective-bar-
gaining representative of these employees. It is also
agreed that Respondent, on September 1 effective
September 6, 1966, during the currency of the cer-
tification, without first notifying or consulting with
the certified Union, changed the wage rates of 121
employees in the unit, those of 101 being raised
and those of 20 piecework employees, all in the
Amelia Earhart division, being lowered. (The com-
plaint alleged as the 8(a)(5) and (1) violation the
reduction in the piecework rates of the Earhart
division emloyees. The amplifying datum that this
was part of a general revision of rates throughout
the unit as above described came at the outset of
the case from Samuel J. Holtzman, vice president
of Respondent, whose testimony on that point (as
the opening witness called by the General Counsel)
is not in dispute. The sole basis of the General
Counsel's attack on the reduction of the rates of
the Earhart division employees was that it was
made unilaterally. That infirmity would attach to
the revisions throughout the unit, and the 8(a)(5)
issue as thus refined in the record applies to all the
changes. It is true that the protest over it which cu-
liminated in the discharge of seven employees came
from the ranks of those whose rates were lowered,
but that bears on the other phase of this case.)
In its answer and during the hearing, Respondent
averred that its unilateral action was part of its
general refusal to bargain with the Union to test the
validity of the certification; and that there was
pending before the Board on direct submission by
the parties to it, another unfair labor practice
proceeding (Case 5-CA-3411), which presented
the issue of whether the admitted general refusal on
the part of the Respondent to bargain with the
Union on request since February 7, 1966, was a
violation of Section 8(a)(5) and (1). As to this last,
Respondent disputed that its refusal constituted
such a violation because, as Respondent claimed,
the Board in the certification proceeding had erred
in overruling Respondent's exceptions to the Re-
gional Director's Report on its objections to the
conduct of the election. (The Respondent's objec-
tion was to the effect that the Union's preelection
campaign was tainted by improper appeals to
Respondent's employees on racial grounds.)
Respondent urged that since the matter before me
raised the identical issue concerning the validity of
the certification which was then pending in the
other case on direct submission to the Board, it
would be improvident for me to rule on the 8(a)(5)
issue before the Board decided the case then pend-
ing before it.
Time has now taken care of this plea in abate-
ment. The Board, on January 27, 1967, rendered its
decision in the other case (Baltimore Luggage Co.,
162 NLRB 1230) explicating the basis for its over-
ruling the Respondent in the certification proceed-
ing and reaffirming the certification issued to the
Union. The Board there found the admitted refusal
to bargain with the Union to be a violation of Sec-
tion 8(a)(5) and (1) of the Act and rendered the
usual bargaining order.
The Board's decision controls this phase of the
case. It follows that by changing the wage rates of
the employees in the bargaining unit without notify-
ing or consulting with the certified Union, Respon-
dent breached its duty to bargain collectively with
the Union, thereby violating Section 8(a)(5) and
(1) of the Act. N.L.R.B. v. Benne Katz, 369 U.S.
736.
C. The Announcement of the Change in Wage Rate
and the Discharge of Seven Employees Arising Out
of the Ensuing Protest
1. The "background " of prior litigation involving
this Respondent and Charging Union
The General Counsel asks that I take official
notice of the decided cases in prior litigation in-
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
volving the same Respondent and Charging Union.2
In Baltimore I, supra, fn. 2, Respondent was found
to have used a variety of repressive measures short
of actual discharge to thwart this Union 's efforts to
organize Respondent 's employees . In Baltimore II,
ibid., Respondent was again found to have resorted
to illegal means to thwart the Union's revived effort
in 1965 to organize its employees . (That campaign
culminated in the very certification of the Union in
Case 5-RC-5265, which Respondent has been
seeking to upset here and in Case 5-CA-3411, de-
cided January 27, 1967). In Baltimore II, Respon-
dent 's dominant antagonist against the Union, as
there found , was Vice President Holtzman , the ex-
ecutive who terminated the employment of the
seven employees in this case . Also noted ( though
for reasons later amplified , it does not have quite
the significance the General Counsel and the Union
here claim for it) is that three of the discharged em-
ployees (Sylvia Lee, Gertrude Wilson, and Fannie
Stovall ) were among those mentioned by the Union
in a letter to Holtzman at the outset of the 1965
campaign as comprising its organizing committee,
and two of them (Lee and Wilson) testified at the
hearing in the 1965 case implicating Holtzman in
antiunion activities . (The decision in Baltimore II
indicates that Holtzman specifically pointed out
Lee and another employee ( not here involved) to
their foreman as the "troublemakers " in his depart-
ment.)
2. The sequence on the morning of September 2
from the employees' observation of the notice of
the rate change to the discharge of the seven
employees
The first communication to the employees of the
change in wage rate was a notice which was await-
ing them near the timeclock when they reported for
work on the morning of Friday, September 2, some
time before 8. Over the signature of Samuel J.
Holtzman, it read:
The periodic review of job classification base
rates and piecework rates throughout the plant
have been completed.
Most of the piecework rates have been ad-
justed and the nonpiecework rates to become
effective Tuesday, September 6th have been
posted in each department.
The base rates for all operations have been in-
creased; the increases range from 6 cents to 15
cents per hour.
In the Lady Baltimore Division, these increases
have resulted in higher piecework rates in
every case.
In the Amelia Earhart Division, some
piecework rates are lower due to the fact that
increases in the standard number of cases per
hour (because of operation changes and higher
production) has more than offset the increase
in base rate.
Please see your foreman if you have any
questions after reviewing the new piecework
rates posted in your department.
The Earhart division, whose piecework rates
were reduced by the change, consists of a little over
20 employees. They are divided into several depart-
ments. One of these is the lining department, in
which all the seven employees discharged later that
morning worked.' Sylvia Lee, as the glue machine
operator, performed the first step in the lining de-
partment's work, and her day began somewhat
earlier than the others. After reading the notice,
she went to her work place and set her machine up
with glue. When the others in her lining department
arrived, she called attention to the notice. At Lee's
and Fannie Stovall's suggestion, the lining depart-
ment employees went to where the newly instituted
rates for the Earhart division were posted. The
length of employment of these persons ranged from
2 to 4 years, and this was their first experience with
a posted change that affected them. Some did not
understand the new schedule and its multiple
breakdowns. Others saw in it a sizeable cut in their
pay. And all wondered why the cut was made and
what it meant. They encountered Robert Wissman,
their foreman, and he said the cut was because the
Earhart employees "had been on the gravy train
long enough" and he did not see why they should
make more than the employees in the Lady Bal-
timore division. He said he would give them a fuller
explanation at the end of the day or before the next
working day, when the new rate would go into ef-
fect. At this stage, the 7:55 starting bell rang and
the employees started back toward the working
area. However, some 15 or 20 employees, consist-
ing of the 7 in the lining department here involved
and of employees in the adjoining hardware depart-
ment , continued to discuss the cut in the piecework
rates of the Earhart division.
Sylvia Lee called to Foreman Wissman, who
came by twice, and at 8:05 he responded after
being called a third time. The questions came from
the employees in the lining department. Fannie
Stovall asked Wissman why the piecework rate of
the Earhart employees had been cut. Wissman re-
peated the "gravy train" response, stating that their
rates would be made "standard" with the Lady Bal-
timore division by bringing their rates down and
those of Lady Baltimore up. Wissman added that
the Earhart group would still earn as much overall
' Baltimore Luggage Co, 126 NLRB 1204 (Baltimore 1); 158 NLRB 33
(Baltimore /I).
3 The seven discharged employees are- Sylvia Lee, Gertrude Wilson,
Fannie Stovall , lantha Graves , Dorothy Harper , Shirley Wright , and Mary
Roberts.
BOTANY INDUSTRIES , INC. 1593
as before because they would be given more work.
But, as one of them testified , they did not see why
they should do more work for no more pay. Wiss-
man, stating that he had production to get out that
day, asked the employees to resume work , and said
he would explain the change to them after hours
that day or before hours the next workday,
Tuesday, when the rate would go into effect. The
employees did not deem this practical because they
do not all finish their day's work at the same time
(the variance being usually from 15 to 20 minutes
and sometimes longer ), and in fact there never had
been a meeting between management and em-
ployees after hours before . Also, as one of them put
it, "Mr . Wissman is very hard to find ." Further,
prior meetings had customarily been during work
hours . These had been devoted to production
problems, but in one instance Holtzman, before the
election of 1965, held a meeting during working
hours "telling us [as a reason for not having a
union] that we were more like a family and ... we
should be able to work out things among our-
selves ." So they continued their efforts to receive a
comprehensible explanation from Wissman . He said
it was all done with IBM machines , and the decision
had been made by management.
At this point Vice President Holtzman made his
appearance . He called Wissman aside and spoke to
him privately . Holtzman and Wissman first
proceeded to the hardware department . Holtzman
asked one employee in that department , "Are you
going to work or are you getting out?" She went
back to work. Holtzman then spoke individually to
two other employees in the hardware department.
They too returned to work and the employees in
the hardware department no longer figured in the
day's events . " Holtzman and Wissman then went on
to the lining department . Wissman spoke first to
two of the four employees (i.e., the "liners") whose
task was to pick up the materials glued by Sylvia
Lee and to put them in the cases.' Wissman placed
a case in front of liner Shirley Wright and asked if
she was going to work . She did not reply. He asked
liner Dorothy Harper the same and she did not
reply . ( Harper testified that "we decided that we
would wait until we got an explanation from Bob
Wissman before we started to work .") Wissman
asked the same of Sylvia Lee , and she replied she
had gotten her work out ( i.e., glued and laid out the
material for the liners to pick up , supra , fn. 5).
Wissman then called out to liner Fannie Stovall and
asked her if she would work . Holtzman thereupon
shouted , "Never mind about her , Get her out of
here , punch her out. As a matter of fact , get them
all out of here, punch them all out ." All seven
(supra , fn. 3) then rose and picked up their hand-
bags. As they filed out , Holtzman told Wissman,
"Punch their cards and get them out of here. If
they 're not going to work , get them out of here. Get
them all out of here ." The seven then changed out
of their working clothes . By the time they reached
the end of the hall, Wissman had already punched
them out. This being payday, they were lined up to
receive their pay for the preceding week . Holtzman
approached lantha Graves , the inspector (supra, fn.
5), and asked if she would work . She indicated she
could not work the line herself , to which Holtzman
replied, "Never mind about the others . We can find
something for you to do ." Graves made no reply.
She testified her reason ( apart from the fact that
there was nothing on the floor that yielded her an
equivalent compensation ) was that the cut in the
piecework rate had not been explained to them and
that Holtzman's order to "get them all out of here"
applied to all who insisted on an explanation.6
A week later , on September 9, the group called
for their final week 's pay . Meanwhile one of them,
Mary Roberts, had on September 6 applied in-
dividually for reinstatement . She was told to report
on the 13th , and has been on the job ever since.
The Union , on September 7, wrote Respondent de-
manding reinstatement of all seven with backpay.
Respondent did not reply , nor did it mention the
letter to the discharged employees when they called
for their pay on the 9th. Wissman then handed each
of them a slip with the words in red letters , " Volun-
tarily quit ." When they demurred to this as untrue,
Wissman said they were merely acknowledging pay-
ment . They signed the pay slips and have not been
reinstated since.
3. Respondent 's shift in position
From the time Respondent used the expression
"voluntarily quit" on the pay slips handed the
discharged employees , it persisted in its assertion
that such indeed was the fact . At contested
hearings before the Maryland Department of Em-
ployment Security, Respondent , as it admitted on
the record in this case , resisted the claims of the
' The three in the hardware department included Anne Ford and
Beatrice Kearney . They too had been on the Union 's 1965 organizing com-
mittee , and Kearney had testified in the 1965 case , as had Sylvia Lee and
Gertrude Wilson of the lining department.
' The operating sequence was as follows - Sylvia Lee would run the
materials through the glue machine and lay them out to be picked up and
put into the cases by the four liners ( Shirley Wright , Dorothy Harper, Fan-
nie Stovall , and Mary Roberts) If not picked up within seconds, the glue on
the material would run dry , and in addition, Sylvia Lee would have no place
in which to lay out newly glued material . As to the remaining two, Gertrude
Wilson drove power screws into the tie tapes which bound the lining, and
lantha Graves inspected the work Thus if the four liners did not perform
their jobs, neither could Lee, Wilson, and Graves perform theirs
6 The girls had not yet abandoned their quest for an explanation. One of
them remarked that by enlisting the sympathies of the girls in the cafeteria
(which was in the path from the dressing room to the end of the building),
Holtzman could be induced to give them an explanation Another asked
Foreman Wissman if they could ask Holtzman to come to the cafeteria and
give them an explanation Wissman did not reply Some of the group went
on to the shipping department where the illness of a male employee had at-
tracted other employees Holtzman called for the employees to make room
for an awaited ambulance On seeing the dischargees , he ordered them to
get off the property or he would call the police.
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nonreinstated employees to unemployment com-
pensation on the ground that they had "voluntarily
quit."' In its answer to the complaint in the instant
case (par. 6), Respondent expressly denied that it
had discharged these employees and averred that
"each and every one of such employees voluntarily
quit." At the hearing in this case, Respondent's
cross-examination of the General Counsel's wit-
nesses (the six nonreinstated complainants) was ex-
tensively devoted to seeking admissions which
would support Respondent's defense that they had
not been discharged but had "voluntarily quit." In-
deed, the only exhibit introduced by Respondent
during the hearing was a rough sketch of the lining
department area and of the approximate locations
of its employees, calculated to support the sug-
gestion it was then making that Holtzman's "get
them out of here" was not directed to all seven.
After the General Counsel rested his case,
Respondent, requested that the hearing go over to
the following morning because his then contem-
plated first witness would probably still be on direct
by the regular adjournment time. This was granted
without objection. On resumption the following
morning, Respondent moved to amend its defense
concerning the seven terminated employees (par.
6) as follows:
The Respondent and or its Vice President,
Plant Supervisor, did discharge the employees
on September 2, 1966 because said employees
engaged in unprotected activites.
The motion to amend was granted over the ob-
jections of the General Counsel and the Union.
Respondent thereupon rested without introducing
any testimony or evidence of its own. The evidence
previously summarized thus came (after prelimina-
ry testimony elicited at the outset from Vice Pre-
sident Holtzman by the General Counsel) solely
from the six nonreinstated complainants, i.e., those
other than Mary Roberts.
4. Conclusions concerning the discharges
a. The protected character of the activity from
which the employees were discharged
' The Charging Union has attached to its brief a copy of a decision
rendered on the unemployment compensation claims by the Appeals
Referee of the Maryland Department of Employment Security on
December 23, 1966 (after the hearing in this case ), showing how Respon-
dent 's plea of" voluntarily quit" fared at the initial and appellate adjudica-
tive levels there On January 17, 1967,1 wrote the parties asking why I may
not take official notice of the decision , as requested in the Union's brief.
Respondent 's counsel sent a letter in opposition dated January 23, and
union counsel sent a letter in reply dated January 24 Since I neither rely on
nor make any further reference to that decision , the matter is academic
However , insofar as my opinion concerning the matter may have some per-
tinence on review ( if this case reached such a stage ), I would state that
Respondent 's letter in opposition does not dispute the authenticity of the
decision of which the attachment to the Union's brief is purportedly a copy,
and Respondent's grounds in opposition are not an adequate basis for
denying competency to the decision as a subject of official notice 1 have in-
cluded the three letters ( mine, Respondent 's and the Union's) as TX Exhs.
3A, 3B, and 3C, respectively-the record being hereby reopened for that
limited purpose.
"American Mfg Co , Inc v N L R B , 106 F 2d 61 (C A 2), modified
Dispositive of this issue is that the reduction in
the rates of the protesting employees was made in
disregard of Respondent's obligation to notify and
consult their statutory bargaining representative.
Hence , the discharge of the seven employees for a
temporary stoppage of work in protest against this
illegal step was an invasion of their rights as pro-
tected by Section 7 of the Act.8
The result would be the same even if this issue
were considered on Respondent's premise-that
the certification of the Union was invalid and hence
that Respondent acted within its rights in making
the change unilaterally. In that instance, the em-
ployees correspondingly acted within their rights in
concertedly protesting the change and temporarily
suspending work while demanding a clarifying ex-
planation. In so doing they were engaging in con-
certed activities for their "mutual aid or protec-
tion" within the guarantees of Section 7, and by
discharging them for it Respondent infringed upon
that right, thereby violating Section 8(a)(1) of the
Act. This proposition is so well established that it
would not ordinarily be necessary to cite the rather
formidable array of judicial authority supporting it.9
The reason for citing supporting authority is that
Respondent, relying upon N.L.R.B. v. Condenser
Corp., 128 F.2d 67, 77 (C.A. 3), urges that the
protected character of the employees' stoppage
ended when Foreman Wissman promised that he
would elaborate upon his "gravy train" explanation
at a later time. The court that decided the Con-
denser case later decided N.L.R.B. v. Kennametal,
Inc., supra, fn. 9, which contains a leading and oft
quoted exposition of the interveningly developed
doctrine that a temporary work stoppage in protest
over a grievance is no less protected than an all-out
strike . Judge Goodrich, who wrote the opinion in
both cases, was at pains to limit Condenser to its
facts. There the employees involved stopped work
in the morning to press a grievance to their
foreman over failure to receive a raise, then
resumed work in agreement with the foreman's
proposal that they wait until the end of the day,
when he would have an answer from his superior,
on another ground 309 U.S 16; Carter Carburetor Corp, 140 F 2d 714
(C.A. 8)
9 See, e g , N L R.B v Kennametal, Inc, 182 F.2d 817 (C.A. 3), 19 ALR
2d 560; Time-O-Matic, Inc. v. N L.R.B., 264 F.2d 96 (C.A. 7); Gullett Gin
Company v N.L.R.B , 179 F.2d 499 (C.A. 5) (reversed on another point to
which cert. had been limited on the Board 's own petition , 340 U.S. 361),
Kitty Clover, Inc. v. N.L.R.B., 208 F 2d 212 (C.A. 8); N.L.R.B. v. Southern
Silk Mills, 209 F 2d 155 (C A. 6), cert. denied 347 U.S. 976, N.L.R B. v. J.
I Case Company, 198 F.2d 919 (C A. 8), cert denied 345 U S 917; Mod-
ern Motors, Inc v N.L.R B, 198 F.2d 925 (C.A. 8); N L R.B. v Solo
Cup Company, 237, F 2d 521,525-526 (C.A. 8); N L R.B. v. Globe Wire-
less Ltd., 193 F.2d 748 (C.A. 9); Olin Industries v N L.R B., 191 F 2d
613,615-616 (C.A. 5); N.L.R.B. v. Cowles Publication Company, 214 F.2d
708, 710 (C.A 9), cert. denied 348 U.S. 876; N.L.R.B. v. Greensboro Coca
Cola Bottling Company, 180 F.2d 840, 843 (C.A 4), Summit Mining Cor-
poration v. N.L.R B., 260 F.2d 984, 987 (C.A. 3); N.L.R.B. v. McCatron,
216 F.2d 212, 215 (C.A 9), cert. denied 348 U.S. 943; Cusano v. N.L.R.B.,
190 F.2d 898, 902 (C.A 3); Staub Cleaners, Inc, 148 NLRB 278, enfd. as
to this , but remanded on another point 357 F.2d 1 (C.A. 2).
BOTANY INDUSTRIES , INC. 1595
and then in the middle of the day , changed their
minds and stopped work again to press the same
grievance . This (decided in the period of the
development of that phase of the law which distin-
guished between lawful all-out strikes and unpro-
tected measures such as sit-down strikes and em-
ployees continuing on the jobs on their own terms)
was analogized to what was condemned in the case
cited by the court in Condenser (C.G. Conn, Limited
v. N.L.R.B., 108 F.2d 390, 391 (C.A. 7)) as "a
strike on the installment plan" or , as the Supreme
Court put it in U.A. W. v. Wisconsin E.R.B., 336
U.S. 245, 256 (citing Conn and Condenser on that
point), as "repeated disruptions of production." In
the opinion in Kennametal , Judge Goodrich
stressed the distinction between "recurrent or inter-
mittent unannounced stoppages ," and "a single
spontaneous work stoppage ." As to the latter, he
stated ( p. 819):
The language of the Act does not require and
its purposes would not be served by holding
that dissatisfied workmen may receive its pro-
tection only if they exert the maximum
economic pressure and call a strike . Our con-
clusion that a spontaneous work stoppage like
this one is protected by the Act is in accord
with Gullet Gin Co. v. N.L.R.B., 179 F.2d 499
(C.A. 5); Carter Carburetor Corp. v. N.L.R.B.,
140 F.2d 714, 717-718 (C.A. 8).
And the Seventh Circuit's decision in C. G. Conn,
rendered 1939, is to be compared with its 1959
decision in Time-O-Matic, supra , fn. 9. There, in ex-
press accord with the doctrine enunciated in such
cases as Kennametal , Modern Motors , and J. I. Case,
supra, fn. 9, the Court held that:
... the employees ' protest [in that case] over
treatment accorded a fellow -employee might
properly take the form of a strike. Such a
protest may necessarily be asserted in lesser
form , such as a work stoppage or, as here, the
presentation of a grievance , if the conduct
could not "be declared to be legally un-
reasonable as a matter of particular plant situa-
tion ." [ Emphasis asupplied. ]
For the quoted portion of the above extract, the
Court cited the Eighth Circuit's decision in J. I.
Case, supra , fn. 9, which it summarized in a foot-
note , as follows:
In J. I. Case, three employees were discharged
for leaving their work to protest the discharge
of a fellow employee . The reasons given for
their discharge were that one "walked off [the]
job without the permission of foreman and at-
tempted to incite a walkout ." The Court af-
firmed the Board 's finding that the men were
discharged in violation of § 8(a)(1).
The stoppage here was both single , spontaneous,
and not "unreasonable as a matter of particular
plant situation." The employees' action was in
keeping with the statement in the notice that they
were to "see" their foreman if they had any
questions . If that last was to be other than an empty
phrase, then the employees' effort to achieve
clarification of the suddenly announced change was
not only reasonable ; it was inevitable. A reduction
in pay rate is a traumatic experience which one
would reasonably expect an employer to anticipate
by fully explaining the reduction in advance, or fail-
ing to do so, arranging to answer in full all
questions concerning it when that change is an-
nounced. A response, such as that given by
Foreman Wissman, that the employees sustaining
the cut have until now been on a "gravy train" car-
ries a note opprobrium which by its very nature
raises even more questions. So, since the employer
had not taken the matter up with their statutory
representative and was acting as if none existed, the
complainants , in pressing for an explanation, were
seeking , as best they knew how, to have Respon-
dent take the matter up with them as a group.
Respondent 's assertion that their protected right
concertedly to press for an explanation ended when
Foreman Wissman said he would give it to them
later overlooks the emotional atmosphere created
by Respondent's announcement. The fact that the
new rates were to go into effect the next working
day were hardly calculated to abate the desire for a
fuller explanation then and there. Wissman's state-
ment that he would give them an explanation at a
later time could hardly turn off the sense of urgen-
cy for one now in the manner of a handle applied to
a spigot . And this is rather aside from the practical
consideration that the employees do not always
finish their day's work at the same time (supra, fn.
5) and their natural skepticism induced by the fact
that "Mr. Wissman is very hard to find." Respon-
dent's position , in essence , is that an employer's ac-
tions , regardless of how it affects the employees
and of the questions aroused by the manner in
which the action is taken, can only be protested by
employees consistently with Section 7, if done at a
time that the employer deems convenient. That
position is at odds with the spirit of established doc-
trine as upheld by the courts (supra, fn. 9) and is
specifically negated by the particular facts appear-
ing in a number of the cases exemplifying it. See,
e.g., Gullett Gin (C.A. 5), J. I. Case Company,
Modern Motors, and Solo Cup (C.A. 8), and Time-
O-Matic (C.A. 7). 10
b. Whether assuming the activity of the employees
had any "unprotected" aspect, it was that rather
than its concerted character which motivated the
discharge
10 Respondent also stresses that when Holtzman appeared at the discus-
sion between Foreman Wissman and the inquiring employees , they did not
tell him they wanted a further explanation for the reduction . The record, in
a manner hardly needing elaboration , supports the reply made by those
complainants who were asked whether they told Holtzman the reason for
the stoppage , that he " knew our reason ." The point is in any event a singu-
lar one to urge at this stage of authority bearing upon it. See N L R B v.
Washington Aluminum Company , Inc, 370 U.S 9, 14-16
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The discussion until now has credited Respon-
dent's assertion that it discharged these employees
for that aspect of their activity that it now claims to
be "unprotected." As indicated, even if such had
truly been Respondent's reason, since the conduct
of the employees was in fact protected, their
discharge for engaging in it was a violation of Sec-
tion 8(a)(1). Supra, fn. 9; also N.L.R.B. v.
Washington Aluminum Co., supra, fn. 10; N.L.R.B.
v. Burnup & Sims, 379 U.S. 21.
However, the facts as a whole, including Respon-
dent's shift in position, pose a grave question of
whether what motivated the discharge was the as-
sumedly "unprotected" aspect of the employees'
activity, rather than its concerted character. Such a
distinction was recently made by the Seventh Cir-
cuit in a somewhat different context in Golay &
Company, Inc. v. N.L.R.B., 371 F.2d 259, where it
quoted with approval of the First Circuit's state-
ment in N.L.R.B. v. Thayer Company, 213 F.2d
748, 753 (cert. denied 348 U.S. 883), as follows:
[A] determination that an employee is not en-
gaged in a § 7 activity does not necessarily
mean that, if he is discharged for his participa-
tion in the unprotected action, the discharge is
"for cause." That depends on the surrounding
circumstances. What is cause in one situation
may not be in another.
The point is the rather familiar one that even a
"good" cause is not necessarily the real cause. Had
the "unprotected" aspect of the employees' con-
duct here been the real cause of the employees'
discharge, Respondent, knowing all along that it
had in fact discharged these employees, would can-
didly have acknowledged that fact from the start,
instead of initiating the "voluntarily quit" gambit
when it handed the discharged employees their pay
slips and persisting in it before the State Depart-
ment of Employment Security and before us until
its dramatic shift at the end of the hearing. Such
want of candor betrays a motive to hide the true
reason for one's action and supports an inference
that the true reason is the illegitimate one. See
Local Union No. 2 United Association of Jour-
neymen Plumbers (Astrove Plumbing Corp.), 152
NLRB 1093, 1104, and cases cited in fn. 13
thereof, enfd. as modified 360 F.2d 428 (C.A. 2).
In this instance, the real reason sought to be hidden
by the untruthful denial would be Respondent's
resentment of the employees' acting together in
pressing for an explanation. Confirming it is Holtz-
man's individual overture to lantha Graves after
discharging the group and offering to have her
work at anything else even after she made clear
that she could not perform the lining work without
the rest of her group, and Respondent's action in
taking back Mary Roberts on her individual appli-
cation despite her having been in Respondent's
view a guilty participant in what it terms the "un-
protected" activity of the group," at the same time
that it ignored the overture of the Union on behalf
of the group as a whole. Assuming any aspect of the
employees' conduct lends itself to Res'pondent's
present characterization as "unprotected,' Respon-
dent's action, considered as a whole, indicates "that
its real concern is with the concerted nature of the
activity, and not with its unprotected aspects"
(Brantly Helicopter Corp., 135 NLRB 1412, 1418)
and that the reliance upon its "unprotected" aspect
is an afterthought.
Further confirming the foregoing inference is
Respondent's warfare with this Union since the
Union's first efforts to organize the employees, as
revealed in its prior litigation. Supra, fn. 2. It was
found in Baltimore 11 (ibid.) that, at the outset of the
Union's 1965 campaign (which culminated in the
current certification), Holtzman posted a caveat
against the employees making the "mistake" of
thinking that he had mellowed in his view toward
unions. The Union was but the symbol of the em-
ployees' attaining a concerted voice in manage-
ment's decisions concerning their working terms.
Holtzman's aversion is shown to have extended to
his employees acting concertedly in their mutual in-
terest on any basis. This is manifest from the fact
that he not only would not notify the employees'
statutory representative concerning the contem-
plated change in rates, but he took no other steps
to condition the employees against the shock of
such an announcement by at least calling them
together in advance for a documented explanation
of why the step was being taken. It is further in-
dicated by his descent on his foreman's discussion
with the group, and, without saying a word in
clarification of management's action, short-shoot-
ing the works in the manner already described.
All of the above points to the conclusion that
Respondent's discharge of these employees was in
reprisal against the concerted character of the em-
ployees' activity rather than because of any aspect
of it which it now seeks to taint as "unprotected";
and that reliance upon this last, as previously
stated, is an afterthought.
c. The violation
In sum, the discharge of the seven employees was
a violation of Section 8(a)(1) on two independent
and self-sustaining grounds. First, it was a stoppage
in protest against a change in wage rate illegally in-
stituted because of failure to notify and give the
statutory bargaining agent reasonable opportunity
to consult and negotiate concerning it. Secondly,
without regard to the validity of the certification of
the Union, and assuming Respondent had the right
to make the change unilaterally, the concerted
" Respondent in its brief lists her among the four liners, supra, fn 5,
whose refusal to pick up the glued material held up the work of the remain-
ing three.
BOTANY INDUSTRIES, INC. 1597
protest of the employees adversely affected by the
change and the spontaneous temporary stoppage in
an effort to obtain a satisfactory explanation for the
cut in their piecework rates was likewise protected
by Section 7 of the Act, so that by discharging them
for it, Respondent violated Section 8(a)(1) of the
Act. Additionally, Respondent's conduct as a
whole, including the persistence in its untruthful
denial that it discharged them at all and its ultimate
shift in position , exposes its action as retribution
not for any aspect of their activity which it now as-
serts was "unprotected" but for the concerted
character of the activity.
As to whether the discharge of the employees
discouraged membership in the Union, in violation
of Section 8(a)(3) of the Act, the General Counsel
lays stress on the fact that the discharged group in-
cludes Sylvia Lee, Gertrude Wilson, and Fannie
Stovall, who, in a letter from the Union to Vice
President Holtzman at the outset of its organizing
venture in 1965, were mentioned as being among
the members of the Union's organizing committee,
and that of these Wilson and Lee testified in the
hearing in Baltimore II (held in 1965) concerning
Holtzman 's antiunion activities . However, as previ-
ously indicated, Holtzman's choler, when he
discharged the seven, was toward the concerted na-
ture of their conduct . His "get them all out of here"
directive included persons such as lantha Graves,
who merely belonged to the Union without being
active so far as appears , and also nonmembers Shir-
ley Wright, Dorothy Harper, and (presumably)
Mary Roberts . Also, as earlier mentioned (supra,
fn. 4) of the three employees in the hardware de-
partment who remained on the job when they
resumed work on Holtzman 's individual approach
to each , two had also been named in the Union's
letter of 1965, which informed Respondent of the
composition of the Union 's organizing committee,
and one had likewise testified in the hearing in Bal-
timore II. These three of the hardware department
remained on the job when they abandoned the con-
certed activity persisted in by the seven in the lining
department who pressed for an explanation.
Respondent 's action in discharging the seven
protesters in the lining department was thus an as-
sault upon the employees Section 7 protected ac-
tivity of engaging in a single spontaneous stoppage
in protest over the failure to give clarifying content
to the "gravy train" explanation , rather than an ag-
gression against the Union as such. However, the
sequel to the discharge is that during the following
week , Respondent , despite its resentment of the
group action which prompted the discharge, acted
favorably on Mary Roberts' individual overture to
be taken back , at the same time it totally ignored a
like effort on the part of the group when made
through the Union. The Union asked for their rein-
statement with backpay. In the circumstances, con-
sidering the "unreasonable" nature of Holtzman's
behavior (see, e.g., Gullett Gin, supra, fn. 9) they
were entitled to it. But if that was what lay in the
way of taking the other six back, Respondent could
easily have said so when the discharged employees
were finally paid off on September 9 and were
asked to sign the pay slip with the "voluntarily
quit" notation.
The differentiating factor is that the still nonrein-
stated six sought to be put back to work through
the Union, while Mary Roberts did so individually.
This disparateness of treatement based on the
means used in seeking to be put back to work was
discriminatory within the meaning of Section
8(a)(3) of the Act.
IV. THE REMEDY
Respondent has been found to have engaged in
unfair labor practices within the meaning of Section
8(a)(1), (3), and (5) of the Act. It will be recom-
mended that it cease and desist from engaging in
them. The negative order will include a broad man-
date not to infringe on the rights of employees
under Section 7 of the Act, first because a
discharge for engaging in protected concerted ac-
tivities goes to the heart of the Act, and secondly,
because the facts here, taken in connection with
Respondent's background of demonstrated hostility
to its employees' availing themselves of those
rights, warrant an order coextensive with the rights
guaranteed in Section 7.
It will also be recommended that Respondent
bargain collectively with the Union on request, and
refrain from changing the rates of pay or other con-
ditions of work of the employees in the unit without
first notifying the Union and giving it a reasonable
opportunity to consult and negotiate with Respon-
dent concerning it. It will also be recommended
that Respondent rescind the cut in the piecework
rate of the employees in the Amelia Earhart divi-
sion and reimburse them for any losses in pay
resulting from it. As to the discharged employees, it
will be recommended that Respondent offer the six
nonreinstated employees immediate and full rein-
statement to their former or substantially
equivalent positions (Chase National Bank, 63
NLRB 656) without prejudice to their seniority and
other rights and nvileges, and make whole all
seven (supra, fn. 3) for the losses they sustained by
reason of the discharge, in accordance with the for-
mula of F. W. Woolworth Company, 90 NLRB 289,
with interest as set forth in Isis Plumbing & Heat-
ing Co., 138 NLRB 716.12
On the basis of all the foregoing and the entire
record, I hereby make the following:
'= The notice will omit reference to the right of dischargees who join the
armed forces . I would think the chances of these women being in such a
situation are astronomically remote. Should it nevertheless happen, their
rights will be fully vouchsafed by existing law
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW tional Leather Goods, Plastic & Novelty Workers'
Union, AFL-CIO, as the duly certified exclusive
representative of its employees in the following ap-
propriate unit:
All production and maintenance employees,
including warehousemen and truckdrivers, em-
ployed at the Respondent 's operations located
at 304 N. Smallwood Street , Newkirk and Le-
land Streets , and 1919 Annapolis Road, Bal-
timore, Maryland , and excluding IBM depart-
ment employees , office clerical employees,
professional employees , watchmen , guards,
and supervisors as defined in the Act.
(b) Changing the rates of pay or other condi-
tions of employment of the employees in said unit
without first notifying and giving the Union a
reasonable opportunity to consult and negotiate
with it concerning the same.
(c) Discharging or otherwise discriminating
against employees for exercising any of the rights as
guaranteed by Section 7 of the Act , or discouraging
membership in the Union by discrimination in
respect to hire and tenure of employees.
(d) In any other manner interfering with,
restraining , or coercing its employees in the exer-
cise of their right to self-organization , to join or
assist the International Leather Goods , Plastic &
Novelty Workers' Union , AFL-CIO, or any other
labor organization , to bargain collectively through
representatives of their own choosing, to engage in
other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
2. Take the following affirmative action which it
is found will effectuate the policy of the Act:
(a) Upon request , bargain collectively with Inter-
national Leather Goods, Plastic & Novelty Work-
ers' Union , AFL-CIO , as the representative of its
employees in the above -described appropriate unit,
and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Rescind the reduction in the piecework rate
of the employees in the Amelia Earhart division,
and make whole all of said employees for any losses
in pay sustained by reason thereof.
(c) Offer to the following employees immediate
and full reinstatement to their former or substan-
tially equivalent positions , without prejudice to
their seniority or other rights and privileges, and
make them and Mary Roberts whole for any loss of
earnings they have suffered as a result of their
discharge in the manner provided in the Remedy
section of this Decision:
Sylvia Lee Shirley Wright
lantha Graves Fannie Stovall
Dorothy Harper Gertrude Wilson
(d) Preserve and, upon request, make available
to the Board and its agents , for examination and
copying, all payroll records and social security pay-
ment records, timecards , personnel cards, and re-
ports and all other records needed to determine
1. The following unit of the Respondent's em-
ployees is an appropriate unit for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All production and maintenance employees,
including warehousemen and truckdrivers, em-
ployed at the Respondent's operations located
at 304 N. Smallwood Street , Newkirk and Le-
land Streets, and 1919 Annapolis Road, Bal-
timore , Maryland , and excluding IBM depart-
ment employees, office clerical employees,
professional employees , watchmen , guards,
and supervisors as defined in the Act.
2. At all times since January 24, 1966, Interna-
tional Leather Goods, Plastics & Novelty Workers'
Union, AFL-CIO, has been, and continues to be,
the exclusive bargaining representative of all the
employees in the aforementioned unit for the pur-
poses of collective bargaining within the meaning of
Section 9 (a) of the Act.
3. The Respondent, by refusing to recognize and
bargain with the International Leather Goods,
Plastic & Novelty Workers' Union, AFL-CIO, as
the exclusive representative of its employees in the
aforesaid unit , has violated Section 8(a)(5) and (1)
of the Act.
4. By changing the rate of compensation of the
employees in said unit without notifying or afford-
ing said certified Union an opportunity to consult
or negotiate with Respondent concerning it,
Respondent has violated Section 8 (a)(5) and (1) of
• the Act.
5. By discharging the employees named in foot-
note 3 of this Decision for engaging in concerted
activities for their mutual aid or protection,
Respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, thereby violat-
ing Section 8(a)(1) of the Act.
6. By discriminating in respect to reinstatement
of said employees on the basis of whether they
sought it individually or concertedly through the
Union , Respondent discouraged membership in
said Union, thereby violating Section 8(a)(3) and
(1) of the Act.
7. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
Upon the basis of all of the foregoing and upon
the entire record in this case and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
It is hereby ordered that Botany Industries, Inc.
(Baltimore Luggage Co . Division ), its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Interna-
BOTANY INDUSTRIES, INC. 1599
compliance with subparagraphs (b) and (c) above.
(e) Post at its plant in Baltimore , Maryland, co-
pies of the attached notice marked "Appendix. 1113
Copies of said notice, on forms provided by the Re-
gional Director for Region 5, after being duly
signed by Respondent'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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 5, in
writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.14
" Should the Board adopt the Recommended Order above, the words "a
Decision and Order" shall be substituted for the words "the Recommended
Order of a Trial Examiner " in the notice . Should the Board's Order in turn
be enforced by court decree, there shall be substituted the words "a Decree
of the United States Court of Appeals Enforcing an Order "
" Should this Recommended Order adopted by the Board, the period
shall be 10 days from the order, should the order in turn go to the court en-
forcement , the notification shall be within 10 days from decree.
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 Na-
tional Labor Relations Act, as amended , we hereby
notify our employees that:
After a trial in which both sides had the opportuni-
ty to present their evidence , it was determined that
we violated the law , and we have been directed to
post this notice and to keep our word about what
we say in this notice.
WE WILL bargain collectively , upon request,
with International Leather Goods , Plastic &
Novelty Workers' Union , AFL-CIO, as the ex-
clusive bargaining representative of all our em-
ployees in the appropriate unit described
below with respect to rates of pay, wages,
hours of employment, and other terms and
conditions of employment, and, if an agree-
ment is reached, embody such agreement in a
signed contract . The appropriate unit is:
All production and maintenance em-
ployees, including warehousemen and
truckdrivers , employed at the Respon-
dent 's operations located at 304 N. Small-
wood Street , Newkirk and Leland Streets,
and 1919 Annapolis Road , Baltimore,
Maryland , and excluding IBM department
employees , office clerical employees,
professional employees , watchmen,
guards , and supervisors as defined in the
Act.
WE WILL NOT change the rates of pay or
other terms and conditions of employment of
any of the employees in the above unit without
first notifying the Union and giving it reason-
able opportunity to discuss and negotiate with
us concerning it.
WE WILL NOT discharge or otherwise dis-
criminate against any employees for concert-
edly protesting or seeking an explanation for a
change in rates or conditions made without
prior notification to the Union , or for engaging
in any other activity for their mutual aid or
protection.
WE WILL NOT discriminate against employees
because of membership in said Union or
because of applying for reinstatement through
the Union or because of any effort to take up
or remedy a grievance through the Union
rather than individually.
WE WILL offer the following persons im-
mediate and full reinstatement to their former
or substantially equivalent positions , without
prejudice to their seniority or other rights and
privileges:
Sylvia Lee Shirley Wright
lantha Graves Fannie Stovall
Dorothy Harper Gertrude Wilson
WE WILL make good to the above-named
employees and to Mary Roberts all losses in
pay they sustained by reason of their discharge
on September 2, 1966.
WE WILL rescind the reduction of the
piecework rate of the employees of theAmelia
Earhart division made September 1, effective
September 6, 1966, and we will make good the
losses in pay sustained by any employees by
reason of such reduction.
WE WILL respect the rights of our employees
to self-organization , to join or assist Interna-
tional Leather Goods, Plastic & Novelty Work-
ers' Union , AFL-CIO, or any other labor or-
ganization , or to bargain collectively with
respect to terms or conditions of employment
through the said Union or any representative
of their own choosing , or to refrain from such
activity , and we will not interfere with,
restrain, or coerce our employees in the exer-
cise of these rights, except insofar as these
rights could be affected by any contract with a
labor organization, if validly made in ac-
cordance with the National Labor Relations
Act, whereby membership therein is a condi-
tion of employment after the thirtieth day fol-
lowing the date of such contract or the
beginning of such employment , whichever is
later.
BOTANY INDUSTRIES,
INC. (BALTIMORE
LUGGAGE CO.
DIVISION)
(Employer)
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dated By altered , defaced, or covered by any other material.
If employees have any question concerning this
(Representative ) ( Title ) notice or compliance with its provisions, they may
communicate directly with the Board's Regional
This notice must remain posted for 60 consecu- Office, Sixth Floor , 707 North Calvert Street, Bal-
tive days from the date of posting and must not be timore, Maryland 21202, Telephone 752-2159.