Brookside Industries, Inc.

National Labor Relations Board - Board Decisions

Jan 4, 1962

135 N.L.R.B. 16 (N.L.R.B. 1962)

16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore, that the agreements entered into pursuant to such recogni-
tion remain as bars despite the proviso to Section 8(f).'
The Petitioner also contends that, even if the Board finds that the
agreements here are bars despite the proviso to Section 8 (f) , the Board
should nevertheless find that the Petitioner's "substantial claim" for
recognition prior to the execution of the a greements is sufficient ground
for directing an election here. In advancing this contention, the
Petitioner relies upon Greenpoint Sleep Products, 128 NLRB 548, in
which the Board construed the "substantial claim" rule of Deluxe
Metal Furniture Company, 121 NLRB 995, 998, to cover situations
where a petitioner was lulled into a false sense of security by an em-
ployer who led it to believe that recognition would not be granted or
any contract be entered into with any union until after a Board elec-
tion. In the instant case, in the face of the Petitioner's demand for
recognition and offer to submit to a Board election, Pao, the Em-
ployer's president, indicated only that he would think the matter over
and that a further meeting would have to be held. We believe that
these statements fall short of a commitment by the Employer that no
union would be recognized except pursuant to a Board-directed elec-
tion. Accordingly, we reject this contention of the Petitioner and
grant the motion of the Intervenor and the Employer to dismiss the
petition.6
[The Board dismissed the petition.]
68 S Burford, Inc, 130 NLRB 1641, is distinguishable from the instant ease. In
Burford , the agreement was held not to be a has since it had been entered into as a
prehire contract , that is, at a time when the contracting unions had not and could not
have demonstrated their majority status under Section 9
Since we are dismissing the petition on the above grounds, we find it unnecessary to
consider the contentions of the parties on other issues in the case
Brookside Industries , Inc. and Louise J. Moore . Case No. 11-CA-
1697. January 4, 1962
DECISION AND ORDER
On April 24, 1961, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. He further found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that such allegations be dismissed. There-
135 NLRB No. 4.
BROOKSIDE INDUSTRIES, INC. 17
after the Respondent filed exceptions to the Intermediate Report 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 Interme-
diate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.2
ORDER
Upon the entire record in this 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, Brookside Indus-
tries, Inc., Reidsville, North Carolina, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from interfering with, restraining, or coercing
its nonsupervisory employees in the exercise of their rights guaranteed
in Section 7 of the Act, by discharging any supervisor for failing and
refusing to participate in an antiunion campaign involving conduct
violative of Section 8 (a) (1) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Louise J. Moore immediate and full reinstatement to
her former or to a substantially equivalent position, without prejudice
to her seniority and other rights and privileges, and make her whole
for any loss of pay she may have suffered by reason of her discharge
in the manner set forth in the section of the Intermediate Report
entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all the records necessary to analyze the amount of backpay due
under the terms of this Order.
i The Respondent has requested oral argument This request is hereby denied 'because
the record , the exceptions , and the brief adequately present the issues and the positions
of the parties
9 The Respondent contends that it discharged Louise J . Moore, a supervisor , because
knowledge of union activities which she might acquire from her husband , an active union
member in Respondent ' s employ, might be imputed to Respondent and render It liable In
any future unfair practice litigation Contrary to the Respondent , we find this contention
to be a pretext and, in agreement with the Trial Examiner , find that Respondent violated
Section 8 ( a) (1) of the Act by discharging Moore because she failed to comply with Re-
spondent 's express instructions to report on the union activities engaged in by her husband
and other employees . However, In reaching our decision we find it unnecessary to adopt,
and do not pass upon the Trial Examiner 's further conclusion that even If the Respondent
discharged Moore in good faith in order to protect Itself from future litigation; such a
basis for discharge would constitute a violation of Section 8(a)(1) of the Act.
634449-62-vol . 135-3 i (^,
is DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post in its plant in Reidsville, North Carolina, copies of the
notice attached hereto marked "Appendix." s Copies of said notice,
to be furnished by the Regional Director for the Eleventh Region,
shall, after being signed by the representative of Respondent, be posted
immediately upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Eleventh Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTIIER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleegs that Respondent violated Section 8(a) (1)
of the Act by the conduct of Moe Tanger.
MEMBER LEEDOM took no part in the consideration of the above
Decision and Order.
I In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order"
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interfere with, restrain, or coerce our nonsuper-
visory employees in the exercise of rights guaranteed in Section
7 of the Act, by discharging any supervisor for failing and re-
fusing to participate in an antiunion campaign involving conduct
violative of Section 8 (a) (1) of the Act.
WE WILL offer to Louise J. Moore immediate and full reinstate-
ment to her former or substantially equivalent position, without
prejudice to her seniority and other rights and privileges, and
make her whole for any loss of pay she may have suffered by
reason of her discharge.
BROOKSIDE INDUSTRIES, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
BROOKSIDE INDUSTRIES, INC.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
19
STATEMENT OF THE CASE
Upon charges filed by Louise J. Moore, an individual , the General Counsel of the
National Labor Relations Board, by the Regional Director for the Eleventh Region
(Winston -Salem, North Carolina ), issued his complaint , dated January 11, 1961,
against Brookside Industries , Inc , herein called the Respondent . With respect to
the unfair labor practices , the complaint , as amended at the hearing , alleges that
Respondent engaged in unfair labor practices within the meaning of Section 8(a) (1)
of the Act by discharging Louise J. Moore, a supervisor , within the meaning of the
Act, and by other specified acts of interference , restraint , and coercion . In its duly
filed answer , Respondent admits certain specific allegations , including the fact that
Louise J Moore was discharged, but denies , generally , all unfair labor practice
allegations
Pursuant to due notice, a bearing was held before Louis Libbin , the duly desig-
nated Trial Examiner , at Reidsville , North Carolina, on February 2 and 3, 1961.
All parties were represented at, and participated in, the hearing and were afforded
full opportunity to be heard , to examine and cross-examine witnesses , to present oral
argument , and to file briefs . Respondent 's motion to dismiss the complaint, made
before the close of the hearing and upon which I reserved ruling, is hereby denied in
part, and granted in part, in accordance with the findings and conclusions hereinafter
made. On March 6, 1961, Respondent filed a brief which 1 have fully considered.
Upon the entire record in the case, and from my observations of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent , Brookside Industries , Inc., a North Carolina corporation , operates a
plant at Reidsville, North Carolina, where it is engaged in the production and distri-
bution of men 's shirts. Respondent produces shirts primarily under contract for
Creighton Shirt Corporation , New York , New York. During the 2 months pre-
ceding the issuance of the complaint , which is a representative period, Respondent
manufactured , sold, and shipped from its Reidsville , North Carolina , plant to
points outside the State of North Carolina finished products valued in excess of
$1,000,000
Upon the above-admitted facts, I find , as Respondent admits in its answer, that
Respondent is engaged in commerce within the meaning of the Act.
II. THE CHARGING PARTY
It is not disputed that Louise J. Moore was first employed by Respondent in
December 1958, that she was made a supervisor within the meaning of the Act in
the early spring of 1959, that she had from 40 to 45 girls under her supervision, and
that her immediate superior was the superintendent of the sewing room. Respondent
admits that it requested her resignation on October 17, 1960 , and discharged her 2
days later, on October 19.
Iii. THE UNFAIR LABOR PRACTICES
A. Introduction ; the issues
Louise J. Moore, and her husband , Troy Moore, were first employed by Respond-
ent in December 1958 . In the spring of 1959 Mrs. Moore was made an admitted
supervisor within the meaning of the Act and continued in this position until her
discharge on October 19, 1960 As a supervisor , she had about 40 to 45 girls under
her and reported directly to the superintendent of the sewing room . Respondent
admittedly was satisfied with her work at the time of her discharge . Troy Moore
continued to hold a nonsupervisory job, that of matching up work for the operators
in the sewing room, and was under the direct supervision of Supervisor Dorothy
Breeze
Amalgamated Clothing Workers of America, AFL-CIO,' the Intervenor in this
proceeding and herein called the Union, commenced its organizational efforts among
1 Amalgamated Clothing Workers of America , AFL-CIO, was permitted to Intervene to
the extent of Its Interest . G. H. Biggs, International representative, did not participate
In the examination of witnesses or In the presentation of evidence In support of the
complaint
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's employees in June 1960. Troy Moore joined the Union, attended
union meetings, and solicited union membership among the employees. Respondent
admittedly was aware of Troy Moore's union activities.
On October 11 to 14, 1961, a hearing was held before me on a complaint issued
against Respondent alleging that certain supervisors and agents had engaged in
specified acts of interference, restraint, and coercion violative of Setcion 8(a)(1) of
the Act and that Respondent had discriminatorily discharged eight named employees
in violation of Section 8(a)(3) of the Act.2 On October 17, Respondent requested
the resignation of Louise Moore and discharged her on October 19.
The principal issue litigated in this proceeding is whether the termination of
Louise Moore's employment, under the circumstances hereinafter described, inter-
fered with, restrained, and coerced the employees in the exercise of their rights
guaranteed by Section 7 and thereby violated Section 8(a)(1) of the Act.
B. Events preceding the prior hearing - -
Louise Moore first heard that the Union was attempting to organize Respondent's
employees when S. K. Tanger, an admitted agent of Respondent, asked her on
Friday, June 10, whether she had heard about the union campaign going on. She
knew that the first union meeting which her husband attended was on Thursday
evening, June 16? During that day Sidney Magid, Respondent's vice president,
asked her, while she and employee Dot Thompson were in the office, if she was going
to the union meeting that night. When Mrs. Moore replied in the negative, Magid
asked her why she was not going. She replied that she not interested and did not
have any business attending. Magid then asked Dot Thompson if she was going.
Thompson replied in the affirmative, adding that she was going "to see and be seen
and to hear and be heard." When Magid asked if he could go with her, she replied
that he could 4
In the latter part of June, S. K. Tanger asked Mrs. Moore if she thought she could
get her husband, Troy, to give her a list of the people who had attended the union
meetings, adding that he wanted Troy "on our side." She agreed to ask Troy. She
did ask her husband, who told her to tell S. K. Tanger that he did not want to have
anything to do with it. Mrs. Moore reported Troy's reply to S. K Tanger.5
At one of Respondent's supervisory meetings in July, Moe Tanger, an admitted
agent of Respondent, said to Mrs. Moore, in the presence of the other supervisors,
"I understand your hubby is attending union meetings." Mrs. Moore answered in
the affirmative. A few days later she was called into Moe Tanger's office. Moe
2 In my Intermediate Report, issued on January 12, 1961, I found that Respondent vio-
lated Section 8(a) (1) of the Act by the attendance of Supervisors Hall and Adams at a
union meeting on June 23, by the conduct of Head Floorlady Bessie Oliver in interrogat-
ing an employee in July concerning her attendance at a union meeting and the union
activities of her fellow employees and in asking'her to find out and inform her about
the union membership and activities of other employees, by the conduct of Agent Lee
Head in interrogating an employee on August 19 as to the number in attendance at a
union meeting and in soliciting employees in July or August to withdraw from the Union
and had violated Section 8(a) (3) of the Act by the discharge of two employees on July 15
and one employee on July 28, 1960 See Brookside Indacstries, Inc, 138 NLRB 842
3 This date was established in the prior proceeding as being the meeting attended by
Joe Ann Shelton who is alleged to be an agent of Respondent
4 The findings in this paragraph are based on the credited and undisputed testimony of
Louise Moore Although Magid and S K Tanger were called as witnesses for Respondent,
they did not deny having made the above statements Dot Thompson was not called as
a witness
5 The findings in this paragraph are based on the credited testimony of Louise Moore
and Troy Moore S K Tanger's conduct in this respect was consistent with the undenied
efforts of Lee Head, an admitted agent of Respondent, to get Troy Moore on Respondent's
"side of the fence," as hereinafter found, and his further undenied efforts in interrogating
an employee as to the number in attendance at a union meeting, as found in the previous
case, the undenied conduct of Magid in questioning Louise Moore as to whV she was not
going to attend a union meeting, as previously found, and the undenied efforts of Head
Floorlady Oliver in questioning an employee concerning her attendance at a union meeting
and the union activities of her fellow employees and in a,§king the employee to find out
and report back the names of other employees, who had signed union cards,,as found in
the previous case See footnote 2, supra S. K. Tanger denied having made the request
attributed to him by Mrs Moore. He admitted that he knew Troy was attending union
meetings and that Mrs Moore had stated at supervisors' meetings that her husband was
not telling her anything about the meetings . I do not credit S K Tanger' s denials
BROOKSIDE INDUSTRIES, INC. 21
Tanger stated that he wanted her to talk to her husband to try to get him over to
"our side" and to quit attending union meetings He pointed out to her that "you eat,
sleep and bear his children, and you have more influence over him than anybody
else " She did talk to Troy about it and was told to keep out of it. Thereafter, Troy
continued to solicit employees to join the Unions
Lee Head, an admitted agent of Respondent, was employed by Respondent in the
latter part of July. A few weeks later, Head had Troy Moore summoned to his
office through Louise Moore Head stated that he heard Troy was attending union
meetings 'and wanted to know what steps he could take to get Troy on his "side of the
fence " Head explained that it was his job to straighten out the problems in the
factory rather than have -the Union do it. He also told Troy that he had talked to
Mr. Tanger and had gotten Troy a 5-cent raise. The following week Troy did
receive a 5-cent raise.7
In the latter part of July, Mrs Moore was interviewed at her home by a Board
investigator in connection with the Union's charges then under investigation. Mrs.
Moore gave a signed statement to Investigator Perloff in this connection The next
day she reported this to her immediate superior, Angelo Pelizzari, who was the
superintendent of the sewing room. Shortly thereafter, she was called into Moe
Tanger's office where, in the presence of Lee Head, Moe Tanger questioned her
about the visitor she had the preceding night. She told him that she had been visited
by a Government man and that she had signed a statement for him Tanger asked
if she would give him a statement of what she had told She Government man Mrs
Moore agreed to do so and wrote the statement out in longhand right there in the
office.8
About September 23, Mrs Moore went to the hospital for an operation and did
not return to work until Monday, October 10
C Events during the prior hearing
As previously noted, the prior hearing against Respondent began on Tuesday,
October 11, and lasted 4 days. Louise Moore had been the supervisor of two of the
employees alleged in the complaint to have been discriminatorily discharged.
Although Louise Moore had been subpenaed to testify by the General Counsel and
had also been informed by Respondent's counsel that he might use her as a witness
if it became necessary, she was not called to testify by either side.
During the second and third day of the hearing, Mrs Moore was sitting near
Respondent's counsel, who at times asked her questions about some of the witnesses
who were testifying At the end of the third hearing day, Attorney Douglas asked
Mrs. Moore if her husband, Troy, had been attending union meetings. She replied
,that the Company knew that he was attending union meetings. Attorney Douglas
then asked her if Troy had ever told her about anything that happened at the union
meetings Mrs Moore replied that Troy had told her the names of some of the
employees who were at the union meeting held on June 23 and attended by Super-
visors Adams and Hall. On arriving home after that meeting, Troy had asked Louise
to guess who had attended the union meeting When she replied that she did not
have the'least idea, he told her that it was Merle Adams and Clarence Halle and
volunteered that he might as well tell her the names of others who were there because
she would learn it anyway Attorney Douglas then informed S. K Tanger and
Attorney Gwyn about his conversation with Mrs. Moore Attorney Douglas asked
Mrs Moore to give him a list of the names of employees who, Troy had told her,
" The findings in this paragraph are based on the credited testimony of Louise Moore and
Troy Moore Moo Tanger denied ever talking to Louise Moore shout her trying to get Troy
out of,the Union or over to our side He did not deny having stated to her at one of the
supervigorr' meetings that he understood her "hubbv" is attending onion meetings ITP
admitted being aware of the Union's organizational campaign from the beginning, and
that he had heard Trov was in the Union On cross-examination he frequently disclosed
a lack of memory and even fenced with the General Counsel Tn the previous hearing,
I have found that Moe Tanger was discriminatorily motivated in discharging employee
Bolden on July 28 Under all the circumstances as well as for the reasons indicated
with respect to S K Tanger, I do not credit Moe Tanger' s denials
7 The findings in this section are based on the credited and uncontradicted testimony
of Troy Moore
° The findings in this paragraph are based on the mutually consistent testimony of Louise
Moore and Moe Tanger.
° In my previous Intermediate Report, T found that Respondent violated the Act by
the attendance of these two supervisors at the meeting of June 23
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
went to the meeting She wrote the names down and gave the list to Attorney Gwyn.
Attorney Douglas also told her that he would not use her as a witness the next day
because she might be cross -examined about that 10
D. Evenis after the prior hearing
The hearing concluded on Friday, October 14 The following Monday morning,
October 17 , Louise Moore was summoned to S. K . Tanger's office by Superintendent
Pelizzari . S. K. Tanger told her that he "hated to have to do this ," that he would
rather let any 12' girls in the plant go than her, but that under the circumstances he
was going to have to let her go. Mrs . Moore asked to what circumstances he was
referring. Tanger replied that "if they would have you on the stand last week they
would have chewed you up like a piece of meat " Tanger then explained that he
was surprised to learn last Thursday that Troy had told her the names of some of
the employees who had attended the union meeting and that her continued receipt
of information from Troy about who was attending union meetings would put the
Company in a very embarrassing situation in the event other girls were discharged
in the future . When Mrs. Moore stated that she had never discussed anything of
importance with her husband about the Union because he had never told her any-
thing of importance, S K. Tanger replied that he believed it but queried whether
the Union would believe it . Tanger then told her that it would be best that she
resign, that she would be permitted to work out a 2 weeks' notice , that during that
period she could take time off to look for another position , and that he would give
her a letter of recommendation if she needed one. Mrs Moore then returned to her
work ii
Later that day, S K. Tanger came out to the sleeving section, called Mrs. Moore
to one side, and engaged in the following conversation with her , in the presence of
Superintendent Angelo Pelizzari. Tanger asked Mrs. Moore what she was going to
tell the girls as 4o the reason for her separation . When she replied that she proposed
to tell them the truth , Tanger stated that he did not want her to do that his time.
Mrs. Moore then asked Pelizzari, "Angelo, what are we going to tell them? " Tanger
then stated, "Why not tell them because of union activities getting on your nerves.
You want to quit." Mrs Moore refused to agree , stating that Tanger was "asking
the impossible " With that statement , the conversation ended 12
Louise Moore took Tuesday off to look for another job When she returned to
work on Wednesday , October 19 , she met S K. Tanger in the lobby He asked her
if she had had any luck and she replied in the negative . He then told her to go on
to work and that she still had a job . That day she was transferred to supervise
another section
About 3:30 that afternoon , S. K Tanger told her that he was going to let her go
today. She inquired what he had listed on her separation papers. He told her that
he had found out what to put on her separation papers so that she would not be
penalized with respect to her unemployment compensation claim The papers stated
that her work separation was due to no fault of the employee She was paid for
that week and the following week
The findings in the preceding two paragraphs are not in dispute S K Tanger
testified that the decision to terminate Louise Moore at that time was made because
"during the day Angelo 1Pelizzari] had reported to me that there was a great
deal of confusion out in the plant, with Louise trying to help her old section, and
the girl in her old section trying to help Louise with the new section , in getting thin;.is
10The findings in this paragraph are based on the credited and undisputed testui,ony
of Louise Moore
The findings in this paragraph are based as a composite of the nttitualiv con.islcnt
testimony of Louise Moore, Polizzari, and S K Tanger
i"The findings in this paragraph are based on the credited testimony of Louise Moore
S K Tanner denied ever discussing with Mrs Moore what she should tell the girls con-
cerning hei pending sep a ration Ilowever , Superintendent Pelirzarl who, accordin; to
Mrs Moore , etas present at the time did not deny that sueli a eon creation took pia^e
I have already discredited S K Tanger in other iespects his lack of candor is further
demonstrated by his testimony that lie did not know and give no consideration to what
Mrs Moore could have done to have iemedied the situation and to retain her job, although
the undisputed and admitted evidence shows that he was present at conferences with
Magid and Attorney Douglas where the hope was expressed that Airs Moore would pro-
pose to Tanger that her husband would withdraw from the Union of stop attending union
meetings or even find other employment Under all the circunistauces , I do not credit
S K Tanger ' s denial
BROOKSIDE INDUSTRIES, INC. 23
running smoothly, and he [Angelo] thought it best, as long as Louise had resigned,
that we should terminate her immediately." However, Angelo Pelizzari testified
that the decision to terminate Mrs. Moore was made at that time because she had
told him on Wednesday that she had found out she could draw unemployment
compensation only if she were discharged and not if she merely resigned, so that
"we gave the girl the discharge she was wanting."
Before leaving the plant that day, Louise Moore went into Pelizzari's office and
asked him, "Why didn't you fire Troy, he is the one that signed the union card?
I haven't." Mrs. Moore then stated, "Angelo, I think you can answer that for
yourself." 13
E. Contentions of the parties and concluding findings with respect to
Louise Moore's termination
Respondent's defense to the requested termination of Louise Moore's employment
is substantially as follows: Respondent's officials and agents were aware that Troy
Moore was a union adherent and was attending union meetings. Prior to the third
day of the previous hearing, Louise Moore had always stated that she had never
received any information from her husband about the Union. However, on the
third day of that hearing she disclosed that Troy had told her the names of some
of the employees who had attended a union meeting. This created an embarrassing
legal situation in view of the possibility of future discharges of union employees for
production deficiencies and the possibility of the General Counsel attempting to
impute to the Respondent any knowledge about the Union which Mrs. Moore might
obtain from her husband, in the event unfair labor practice charges were filed and
a complaint issued in connection with such discharges. At the close of the previous
hearing, S. K. Tanger, Magid, and Attorney Douglas discussed this situation and
the possible solutions that the Moores might agree upon to change the situation.
When S. K. Tanger explained the situation to Mrs. Moore on October 17, he expected
and hoped that she would offer to make Troy withdraw from the Union or stop
attending union meetings or even find other employment. When she had no solution
to offer, her resignation was requested.
The General Counsel and counsel for the Charging Party contend that (1)
Respondent's true motive in terminating Louise Moore was based on antiunion
considerations, and (2) even accepting Respondent's asserted motive, its action still
constituted a violation of Section 8(a)(1) of the Act as a matter of law.
1. As to Respondent's true motive in terminating Moore's employment
Respondent's supervisors and agents knew at all times that Mrs. Moore's husband,
Troy, was a union adherent and was attending union meetings. Respondent admits
that its supervisors were instructed not to interrogate employees about the Union
but to keep their eyes and ears open, to listen to any information about the Union
volunteered by employees, and to report what they heard to management
Respondent admittedly was opposed to having the Union selected by the employees
as their collective-bargaining representative. Moreover, Respondent's supervisors
and agents did affirmatively interrogate employees about the Union and tried to
ascertain the names of union adherents. Thus, in July, Head Floorlady Bessie
Oliver interrogated an employee about her union attendance and the union activities
of her fellow employees and attempted to get that employee to ascertain and report
on the union membership and activities of other employees, as found in the previous
case. Despite the fact that Head Floorlady Oliver's conduct was in direct violation
of instructions to supervisors not to interrogate employees or seek information in
that manner, she was not even reprimanded by Respondent, let alone discharged
for it. Nor was any criticism ever raised against Lee Head, an admitted agent
of Respondent, for his conduct in July or August in questioning an employee about
the number in attendance at a union meeting and in interrogating Troy about what
steps could be taken to get him on management's side while at the same time
announcing that he had been instrumental in getting him a 5-cent raise, as previously
found. Indeed, S K. Tanger himself engaged in conduct which violated these
instructions when he asked Mrs Moore to try to get Troy to give her a list of the
names of employees who attended union meetings. The same may also be said
mm The findings In this paragraph are based on the credited end uncontradicted testl-
monv of Louise Moore and Fays Strader Pelizzarl merely testified that he did not
remember "exactly" whether such a conversation took place and admitted that "we may
have had such a conversation "
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about Moe Tanger who wanted Mrs. Moore to use her influence as a wife to try
to get Troy to stop attending union meetings and to get over on "our side." 14
On the other hand, the only time that Mrs. Moore ever asked her husband for any
information about the Union was when she was requested to do so by S. K. Tanger,
as previously found. On the one and only occasion when she was informed about
the names of some of the employees who had attended a union meeting, it was
Troy who had volunteered that information to her on June 23 because of the fact
that Supervisors Hall and Adams had also attended that meeting Mrs. Moore
merely kept her ears open and listened in accordance with the instructions to the
supervisors. In fact, S. K. Tanger admitted that it was not a breach of trust for
a supervisor to listen to information about the Union voluntarily given to her by
an employee. And he also believed Mrs. Moore when she told him in the October 17
interview that she had never discussed anything of importance about the Union
with Troy, as previously found.
In view of the foregoing, I cannot believe that, when Mrs. Moore disclosed during
the previous hearing that Troy had volunteered that information to her on June 23,
Respondent took the drastic action of terminating the employment of an admittedly
valued and highly satisfactory supervisor because of its sudden concern over the
possibility that Louise Moore might continue to acquire information from her hus-
band about the union activities of some of its employees, the further possibility
that it might have to discharge some employees in the future for production deficien-
cies, the further possibility that some of the employees so discharged might be union
members or adherents, the further possibility that the Union might file unfair labor
practice charges in connection with such discharges, the further possibility that
the General Counsel might find such charges to have merit and might issue a com-
plaint, and the further possibility that the General Counsel would then try to
impute to Respondent knowledge of the discharged employee's union membership
or activities because of the information which Mrs. Moore might have received
from her husband.15 My conviction that this was not Respondent's true motive is
further buttressed by S. K. Tanger's admitted failure even to consider offering Mrs.
Moore a nonsupervisory job,16 a position which could have caused no possible legal
embarrassment to Respondent if the combined series of the above-related possibilities
actually occurred, and also by S. K. Tanger's attempt to get Mrs. Moore to tell the
employees that she was quitting her employment because the union activities were
getting on her nerves, a deliberate falsehood, as previously found. Moreover, the
Respondent took no steps to rescind the instructions to supervisors to listen and
to report to management any volunteered information about the Union, the least
that might have been expected of Respondent if it were truly concerned about the
possibility of supervisors' knowledge being imputed to it.
Mrs. Moore had been a very cooperative supervisor in Respondent's efforts to
find out which employees were interested in the Union and to try to win such em-
ployees over to Respondent' s side. Thus, when S. K. Tanger asked her to try to get
Troy to give her a list of the employees who were attending union meetings, she
complied with his request and reported back that Troy did not want to have any-
thing to do with it. At supervisors' meetings she also told S. K. Tanger that Troy
was not giving her any information about the Union. When Moe Tanger asked her
to use the influence of her marital relationship to try to get Troy to quit attending
union meetings and to get him on Respondent's side, she complied with this request
also, albeit unsuccessfully. Also, she immediately informed her superiors after
being visited by a Board investigator to whom she gave a signed statement in con-
nection with the prior case and, at Moe Tanger's request, gave him a similar signed
statement. She thus enjoyed Respondent's complete trust and confidence in these
matters However, all this trust and confidence suddenly evaporated when S. K.
Tanger first learned during the previous hearing that she had been told by Troy the
names of some of the employees who had attended the June 23 union meeting. He
told her that he was surprised by her disclosure and testified that "we just felt she
wasn't fair with us" and that she had committed a breach of trust because she had
14In addition Sidney Magid, Respondent's vice president, asked Mrs Moore on June 16
if she was going to the union meeting that night and wanted to know why she was not
going At the same time he also asked employee Dot Thompson if she was going to
attend, and wanted to know If he could accompany her when she replied in the affirmative,
all as previously found
151 note that the General Counsel made no such attempt in the previous hearing
16 Compare Respondent's admitted treatment of another supervisor who was retained as
a machine operator when she no longer wished to occupy a supervisory position, as was
admitted by Respondent in the previous hearing
BROOKSIDE INDUSTRIES, INC. 25 :
previously,told him that Troy had- not given her any information about the- Union.
I, am convinced and find that it-was Mrs. Moore's failure to comply with-instructions,
to -report such information to Respondent-,which constituted the breach of trust and
made Respondent feel that "she wasn't fair with us." Upon consideration of the
foregoing and the entire record as a whole, I am convinced and find that it was her
breach of trust in this respect. which primarily motivated Respondent in requesting
her resignation and terminating her employment.17
It, is reasonable, to infer that S. K. Tanger's reason for wanting a list of the em-
ployees attending -union meetings as well as the reason for instructions to supervisors,
to report to management any -information about the Union which came to their
attention, was to assist Respondent -in- its campaign against the Union.18 - It is now
well settled that the discharge of a supervisor for refusing to aid in such a campaign
unlawfully interferes with, restrains, and- coerces the nonsupervisory employees in
the exercise of the rights guaranteed by Section 7 of the Act and, therefore, con-
stitutes a violation of Section 8 (a)( 1 ) of the Act.19 - -
Moreover, an employer may not rightfully require its supervisors to reveal all
information they may have regarding union activities, no matter how such infor-
mation had been obtained.20 Mrs. Moore was not her husband's supervisor. The
information in the instant case was not acquired by her in the normal course of her
duties as a supervisor; it was volunteered to her by her husband in the privacy of
their home and in the mutual trust and confidence which arises from the marital
relationship 21 The discharge of a- supervisor for failing to disclose information
acquired in such a private and confidential manner would have even a greater impact
in causing the nonsupervisory employees to fear that Respondent would take similar
action against them for continuing to adhere to and support the Union. -
I find that Respondent's termination of Louise Moore's employment on October 19,
1961, because of her failure to report the information which her husband had volun-
teered concerning the names of some of the employees who had attended the June 23
union meeting, constituted an invasion of the self-organizational rights of the rank-
and-file employees, as guaranteed in Section 7 of the Act, and therefore a violation
of Section 8 (a)( 1 ) of the Act 22
2. As to the legality of Moore's termination on the basis of
Respondent 's asserted motivation
Assuming that Respondent acted in good faith in terminating Mrs. Moore's em-
ployment for the reasons asserted by it, the question still remains whether such a
termination was nevertheless a violation of Section 8 (a)( 1 ) of the Act. The prob-
lem which Respondent felt was created by the fact that Mrs. Moore, a supervisor,
might acquire knowledge of union activity of rank-and-file employees from her
husband , Troy, who was a union member and attended union meetings , admittedly
would have been satisfactorily resolved if Troy Moore withdrew from the Union or
stopped attending union meetings or found other employment . While Respondent
admittedly had hoped and expected that Mrs. Moore would suggest these solutions
herself, Respondent states in its brief that it had no right to order Mrs. Moore to
make her husband withdraw from the Union or to cease attending union meetings.
However, the effect of what S . K. Tanger told Mrs. Moore on October 17 was to put
her in the position of either losing her job or of having her husband withdraw from
the Union or cease attending union meetings or resigning his job. In other words,
11 In view of my disposition of the issue raised by the termination of Louise Moore's
employment , I find it unnecessary to determine whether the evidence adduced in this
hearing is sufficient to warrant a finding that Joe Ann Shelton was an agent of Respondent.
18 In the previous case , I found that Respondent discriminatorily discharged three em-
ployees in violation of Section 8(a) (3) of the Act and engaged in additional acts of inter-
ference, restraint , and coercion violative of Section 8(a) (1) of the Act. See footnote 2,
supra
19 Talladega Cotton Factory, Inc, 106 NLRB 295, enfd 213 F 2d 208 (C A 5) ;
Inter- City Advertising Company of Greensboro , N C, Inc., 89 NLRB 1103 , 1106, reversed
in this respect on other grounds 190 F 2d 420 (C.A 4).
20 Inter-City Advertising Company of Greensboro , N C, Inc , supra, at p. 1107
21 These are privileged communications which neither spouse can be required to disclose
in evidence . See footnote 27, infra.
22'No showing is necessary that Respondent intended , by its action in terminating Louise
Moore's employment , to interfere with the Section 7 rights of its nonsupervisory employees.
See, e g, N L R B. v J E McCatron , et al , d/b/a Price Valley Lumber Co., et at ., 216 F.
2d 212 (CA 9).
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
retention of her job as a supervisor was in effect conditioned upon her husband with-
drawing from the Union or ceasing to attend union meetings . Stated still differently,
Troy Moore was being penalized in the continuance of his union membership and
activities by the loss of his wife's job and earnings . However stated, Respondent's
termination of Louise Moore's employment therefore directly interfered with, re-
strained, and coerced her husband, Troy, in the exercise of his self-organizational
rights guaranteed by Section 7 of the Act 23
But not every interference with such employee rights is a violation of Section
8(a) (1) of the Act. Thus, for example , it is well settled that an employer may law-
fully promulgate and enforce a rule prohibiting union solicitation or distribution of
union literature on company property by employees during working time or even
during their nonworking time where special circumstances make the rule necessary in
order to maintain production or discipline 24 Similarly, the prohibition against
unlawful interrogation does not extend to such interrogation by an employer or his
counsel as is necessary to prepare their defense25 An employer, however, may not
lawfully take any action which interfers with an employees' self-organizational rights
even though it may in good faith believe such action to be necessary to meet a
given situation . First, the nature of the employer's interest must be such that the
need for its protection, on balance, overrides the need for protecting the employees'
interest in the exercise of their Section 7 rights without employer interference, as in
the case of the maintenance of production or discipline, or the preparation of the
employer's defense . Secondly, the action taken, even though it may be in good
faith, must be limited to the necessities of the situation. 26 It is therefore necessary
to scrutinize carefully each case on its own facts.
In the instant case, what was the nature of Respondent's interest and what was so
compelling about the need for its protection to warrant the infringement upon Troy
Moore's self-organizational rights by the discharge of his wife? It was merely a
concern that if the total combination of about six possible events, previously related,
were to occur, then it would make Respondent's defense more difficult and might
cause additional inconvenience and expense.
Louise Moore was a minor supervisor, ranking at the very bottom of the super-
visory hierarchy. She had no authority to hire or discharge employees or to make
the decision to discharge an employee. She did responsibly direct the work of a
number of employees in the sewing room, not including her husband. Discharges
were decided upon and made by the sewing room superintendent or by. management
representatives of equal or higher rank, as was demonstrated in the prior case.
Under these circumstances, I have grave doubts that any knowledge which Mrs.
Moore might acquire about the union activities or interests of a dischargee would
per se be imputed to the person responsible .for the discharge. Moreover, any such
communications between Mr. and Mrs. Moore, which were obviously made in the
confidence of the marital relation, are privileged communications which neither
spouse can be compelled by the General Counsel to disclose27 In any event, mere
knowledge on the part of Respondent about the union membership and activities of
its employees neither compromises its neutrality nor is unlawful in any other respect.
This is not a case where the conduct or activities of a supervisor per se compromise
the employer's neutrality and constitute an unfair labor practice for which the em-
ployer is liable. In the instant case, it is only if Respondent were to put any knowl-
edge acquired by Mrs. Moore to a discriminatory use that the Act would be violated.
And Mrs. Moore would have no control over Respondent's conduct in that respect.
The Board has long held that an employer's knowledge of a dischargee's union ac-
tivity, without more, is insufficient to support an inference of discrimination 28
It must be borne in mind that it was the Respondent who told the supervisors to
listen to and to report to management any information about the Union which was
volunteered by rank-and-file employees. Respondent could have rescinded these
instructions; it could have instructed Mrs. Moore not to listen to any union talk by
n,Such conduct would also reasonably tend to have a similar impingement upon the
self-organization rights of other rank-and-file employees whose spouse might aspire to
promotion to a supervisory position The record does not disclose the employment of
other wives with their husbands by Respondent
24 Walton Manufacturing Company, 126 NLRB 697
25 Joy Silk Mills, Inc., 85 NLRB 1263, 1290-1292, enfd 185 F 2d 732 (C A D.C.)
2Q See, e g , Katz Drug Company, 98 NLRB 867; NLRB v Illinois Tool Works, 153
F. 2d 811, 814 (CA 7)
27 97 Corpus Juris Secundum , § 266, p 762 ; 58 American Jurisprudence, § 375, p. 200.
28 The Great Atlantic & Pacific Tea Company, Inc , 129 NLRB 757; The Efficient Tool &
Die Company, 79 NLRB 170
BROOKSIDE INDUSTRIES, INC. 27
her husband; it could even have instructed Troy Moore not to discuss union activities
with his wife because of her supervisory status; and it could have disciplined them if
they violated such instructions: -
Upon full consideration of the nature and extent of Respondent's interest which it
sought to protect, the low probabilities of the alleged problem ever materializing,
the factors which disclose no great need for protection, the availability of other
remedial measures, and the kind of action which Respondent took, I am convinced
and find that (1) on balance, there is no valid justification in this case for overriding
the right of employees to engage in the exercise of their Section 7 rights free from
employer interference, one of the "dominant purposes" of the Act,29 and (2) Re-
spondent's action in terminating Louise Moore's employment went beyond the neces-`
sities of the situation. I therefore find that by terminating the employment of Louise
Moore and thereby interfering with, restraining, and coercing her husband, Troy
Moore, in the exercise of the rights guaranteed by Section 7 of the Act, the Re-
spondent has violated Section 8(a) (1).
F. Other alleged acts of interference; restraint, and coercion
Paragraph 9 of the complaint alleges as an independent violation of Section'
8 (a) (1) of the Act that Respondent, by its agent Moe Tanger, on or about July 20,
1960, ordered Louise Moore to interrogate employees concerning the union activities
of its Reidsville plant employees and to report information obtained to Respondent.
No evidence was adduced bearing directly on this allegation. The only conduct
involving Moe Tanger is his statement to Louise Moore at one of the supervisors'
meetings in July that he understood her "hubby" was attending union meetings, his
request a few days later that she use her influence as a wife to talk to her husband and
try to get him to quit attending union meetings and to get over on the Company's
side, and his asking her in the latter part of July if she would give him a written
statement similar to the one which she reported she had given to a Board investigator
in connection with the prior proceeding, all as previously found. I find nothing un-
lawful in this conduct, per se. As Moe Tanger was privileged to try to persuade
Troy Moore to stop attending union meetings and to get over on management's side,
in the absence of any threats of reprisals or promises of benefits, it was not unlawful
for him to ask a supervisor to exercise the same privilege. Nor, under the circum-
stances disclosed by the record, was there anything unlawful in asking Mrs. Moore
if she would be willing to give Moe Tanger a written statement similar to the one
she gave to a Board investigator.
I will accordingly recommend that this allegation in the complaint be dismissed.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities set forth in section III, above, occurring in connection with
Respondent's operations described in section 1, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that Respondent has engaged in the unfair labor practices set forth
above, I will recommend that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(1) of the Act by terminating
the employment of Louise Moore, a supervisor, I further find that Louise Moore's
reinstatement with backpay is necessary in order to restore to Respondent's non-
supervisory employees their full freedom to exercise the rights guaranteed them in
Section 7 of the Act, and thus effectuate the policies of the Act 30 I will accordingly
recommend that Respondent offer Louise Moore immediate and full reinstatement to
her former or to a substantially equivalent position, without prejudice to her seniority
and other rights and privileges, and make her whole for any loss of earnings she may
have suffered by reason of such termination, by payment to her of a sum of money
equal to that which she normally would have earned as wages from the date of her
termination on October 19, 1960, to the date of said offer of reinstatement, less her
net earnings during such period, such sums to be computed in accordance with the
formula established by the Board in F. W. Woolworth Company, 90 NLRB 289,
291-294.
='B Republic Aviation Cw poratlon v. N L R B , 324 U S 793, 798
30 Inter-City Advertising and Talladega Cotton Factory cases, supra
28: DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
Upon the basis of the foregoing findings of fact and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. By terminating the employment of Louise Moore , a supervisor , on October 19,
1960, Respondent has interfered with , restrained , and coerced its nonsupervisory
employees in the exercise of rights guaranteed in Section 7 of the Act and thereby
has engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act. . .
2. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
3. Respondent has not engaged in independent unfair labor practices within the
meaning of Section 8(a)(1) of the Act by the conduct of Moe Tanger.
[Recommendations omitted from publication.] i
Wayne W. Wilson Company and Local 247, International Brother-
hood of Teamsters, Chauffeurs , Warehousemen and Helpers
of America, Ind.
Wayne W. Wilson Company and Arthur Shemansky . Cases Nos.
7-CA-2845 and 7-CA-3112. January 4, 1962
DECISION AND ORDER
On October 12, 1961, Trial Examiner John H. Eadie issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. The Trial Examiner also found that the
Respondent did not engage in certain other unfair labor practices al-
leged in the complaint and recommended dismissal of those allega-
tions. Thereafter, the General Counsel and the Respondent filed ex-
ceptions to the Intermediate Report together with supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record, and
hereby adopts the findings,' conclusions, and recommendations of the
Trial Examiner.
1 The General Counsel contends that the October 24, 1960 , layoff of Arthur Shemansky
was violative of Section 8(a) (4) as well as Section 8 (a) (3) Ave have found , herein,
that Shemansky 's October 24 layoff violated Section 8 ( a) (3), and we have ordered his
full reinstatement and backpay for the period of his layoff . Under these circumstances,
and as the policies of the Act will be fully effectuated by our remedial order herein, we
find it unnecessary to determine whether Shemansky ' s layoff was also violative of Sec-
tion 8 ( a)(4) of the Act
135 NLRB No. 5.