Caddell-Burns Mfg. Co., Inc.

National Labor Relations Board - Board Decisions

Jan 20, 1976

222 N.L.R.B. 488 (N.L.R.B. 1976)

488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Caddell-Burns Mfg. Co ., Inc. and Rose Davis. Case
29-CA-4088
January 20, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On July 23, 1975, Administrative Law Judge Sid-
ney J. Barban issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs, and the Charging Party filed a motion for re-
hearing.' The Respondent filed a brief in support of
the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
We agree with the Administrative Law Judge that
the record does not warrant the conclusion that the
Respondent constructively discharged Rose Davis.
Our dissenting colleague relies on what the Adminis-
trative Law Judge labeled "suspicious circum-
stances" for his finding that she was constructively
discharged. The Board will not, however, infer from
"suspicious circumstances" alone that an employer
has unlawfully forced an employee to resign.
While it is, true that Davis was, from time to time,
assigned undesirable jobs, the record shows that such
assignments were made to all employees on a rotat-
ing basis. Thus, Respondent's other employees had at
one time or another performed these tasks. There is
nothing in the record which would show that Davis
was unlawfully singled out.
Nor can we conclude, as does our dissenting col-
league, that Respondent's offer of severance pay to
Davis supports a finding of constructive discharge.
Although he concedes that this offer was motivated
i The Charging Party's motions for a rehearing and for a reopening of the
record "so that all of the facts, and evidence will be stated, clearly, and
without any further prejudice" are hereby denied as lacking in merit.
2 The General Counsel and the Charging Party have excepted to certain
credibility findings made by the Administrative Law Judge It is the Board's
established policy not to overrule an Administrative Law Judge's resolu-
tions with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect . Standard
Dry Wall Products, Inc., 91 NLRB 544 (1960), enfd. 188 F.2d 362 (C A 3,
1951). We have carefully examined the record and find no basis for revers-
ing his findings
by the urging of a union representative, our colleague
nevertheless states that Respondent's willingness to
comply with the union representative's request sug-
gests a discriminatory purpose. We find that such an
inference is unwarranted, particularly in light of evi-
dence that Respondent had legitimate grounds for
disliking Davis which would lawfully prompt an of-
fer of severance pay. Thus, the record shows that
Davis alienated her fellow employees, threatened to
slap one employee's face, offered to fight with a long-
time employee who was sympathetic to management,
and made uncomplimentary remarks about members
of management. Moreover, it is significant that the
offer was made only after the Union suggested that
Davis was unhappy at her job and that it would be in
her best interest to leave Respondent's employ. The
fact that the offer was made in response to union
entreaties adds to the legitimacy of Respondent's
motivation.
In asserting that Respondent "exercised its prerog-
atives to unreasonable excess," our dissenting col-
league merely reiterates his thesis that Respondent's
actions were "highly suspicious" and therefore ipso
facto indicative of an unlawful motivation. We find
that the actions of Respondent which are cited by
our colleague for their "suspicious" nature never rise
to the level of concrete evidence which would estab-
lish a prima facie case of constructive discharge. Ac-
cordingly, we agree with the Administrative Law
Judge that Respondent did not constructively dis-
charge Rose Davis.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Caddell-Burns Mfg. Co.,
Inc., Mineola, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
MEMBER JENKINS, concurring in part and dissenting
in part:
I agree with my colleagues that Respondent violat-
ed Section 8(a)(1) by stating that wage increases were
being withheld because of union activities and by
conditioning wage increases upon an end to the
union organizational drive and conclusion of the un-
fair labor practice proceeding on behalf of employee
Loretta Blandon.
However, unlike my colleagues, I also find compel-
ling evidence that Respondent further retaliated
against its employees' union activities by ridding it-
self of the leading proponent of such protected activ-
222 NLRB No. 74
CADDELL-BURNS MFG. CO. 489
ities, employee Rose Davis, in violation of Section
8(a)(3) of the Act. Thus, it is abundantly clear that
not only did Respondent openly solicit Davis' resig-
nation but also from that moment, on June 3, when
Davis and Blandon (who was discharged the very
next day) made known their union interests until her
forced termination in November, Davis was subject-
ed to harassment and intimidation because, as the
Administrative Law Judge found, Respondent "did
not want her `there.' " Indeed, my colleagues readily
agree that
The circumstances are highly suspicious; that
Davis should have been assigned to ["onerous,"
"oppressive" and generally] undesirable jobs
which she had never been required to do before
just at this time; that Respondent should have
been so unresponsive to her complaints when it
apparently was more sympathetic and helpful to
others; that Respondent should have picked just
that period to upbraid her for tardiness; and
particularly that Respondent should have pro-
voked such a hostile ["embarrassing," "unrea-
sonable"] and somewhat childish confrontation
with Davis in the last week of her employment.
Moreover, neither my colleagues nor I can ignore
that this patent "hostility" towards Davis was accom-
panied by a warning from one of the Respondent's
officers that "maybe you don't belong working
here." And most revealing is Respondent's admission
that when Davis appeared as a prospective witness
for the General Counsel at Blandon's unfair labor
practice hearing in mid-October the Respondent,
through its attorney, offered Davis severance pay if
she quit. While it appears that the union representa-
tive on his own broached the subject, as a possible
alternative to the harassment of Davis, the Respon-
dent was more than willing to participate in a discus-
sion of "what it will take for [Davis] not to go back to
work" because, as found, the Respondent did "not
want, her to continue work." Indeed, although Davis
spurned the offer relayed by Respondent's attorney,
Supervisor Geanetti-in the presence of
Respondent's' president-told Davis that she was not
wanted back at work.
As the Administrative Law Judge found, through-
out this peridd, from June until her termination in
November, Davis was the union "militant" in the
plant. Clearly, Davis' union advocacy, persistence in
the face of both "oppressive" job assignments and
"embarrassing" confrontations, refusal to accept an
attractive offer to "take care" of her if she quit, and,
finally, her announcement to file the instant unfair
labor practice charges in response to the
Respondent's continuing harassment and Burns'
"unreasonable" and "embarrassing" provocation on
November 7, were a continuing source of irritation to
the Respondent, Respondent had, inter alia, threat-
ened anxious employees that as long as "the union is
here no one can get a raise." An across-the-board
increase was implemented on November 20.
In view of the foregoing, I find that the General
Counsel has established a prima facie case of con-
structive discharge . Respondent's union animus is
sufficiently displayed by its threat to deny wage in-
creases while "the union is here"; and that this ani-
mus extended to its termination of Davis is clear
from its offer of severance pay to get her to quit
when she appeared as a prospective witness against
Respondent at Blandon's alleged unlawful discharge
hearing. In my view it is no defense to argue that
Davis was not "immune" from criticism, or that she
was expected to perform work "which needed to be
done." For the record shows that the Respondent
exercised its prerogatives to unreasonable excess-
which even my colleagues find "highly suspicious."
Nor do I believe that they and the Administrative
Law Judge have successfully disentangled those un-
specified "good grounds for disliking Davis" from
the antiunion considerations, especially since the
worst that could be said about her was that she was
"not one of our best employees." Finally, her dis-
charge is hardly made any less unlawful because, af-
ter settlement of the Blandon case, Davis decided to
remain in the Respondent's employ at least until the
Respondent carried out its legal obligation to post
our official notice pursuant to that settlement. For
the issue here is not the reason for Davis' staying, but
rather the reason for the hostility which forced her to
quit.
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This mat-
ter was heard at Brooklyn, New York, on March 19, 20,
and 21 , 1975, upon a complaint issued on January 31, 1975,
as thereafter amended, based on a charge filed by the
above-named Charging Party (herein Davis) on November
7, 1974 (all dates herein are in 1974, unless otherwise stat-
ed). The complaint, as amended, alleges that the above-
named Respondent ( 1) advised employees that it was with-
holding wage increases and benefits because of the organi-
zational activities of International Industrial Production
Employees Union (herein the Union), (2) promised em-
ployees wage increases and other benefits to induce them
to refrain from becoming or remaining members of the
Union or assisting it, (3) granted wage increases and other
benefits to induce employees to refrain from becoming or
remaining members of the Union or assisting it, (4) offered
severance pay and other benefits to employees who had
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
joined or assisted the Union to induce those employees to
terminate their employment with Respondent, all in viola-
tion of Section 8(a)(I) of the Act, (5) assigned employee
Davis to more arduous and less agreeable job tasks and
harassed Davis causing her to quit her employment be-
cause of her union activities , and (6) discharged Davis be-
cause of her union activities.
Respondent's answer denies the commission of the al-
leged unfair labor practices, but admits allegations of the
complaint sufficient to justify the assertion of jurisdiction
under current standards of the Board (Respondent, in the
course of its manufacturing operations , in a recent annual
period shipped products valued in excess of $50 ,000 in in-
terstate commerce from its plant at Mineola, New York),
and to support a finding that the Umon is a labor organiza-
tion within the meaning of the Act.
Upon the entire record in this case, from observation of
the witnesses and their demeanor , and after due consider-
ation of the briefs filed by the General Counsel, and the
Respondent , I make the following:
FINDINGS AND CONCLUSIONS
for fear of losing their jobs. As a result , from June until
Davis' termination of employment in November, employ-
ees tended to have little association with her in the shop,
although she does not seem to have had any arguments
with the employees about the Union during the latter
months of her employment.
B. Alleged Harassment
Davis testified that beginning in June she was assigned
job tasks that she had never had to do before, jobs that
were unpleasant and disagreeable , and put her under ten-
sion and pressure , and that she was not assigned to other
jobs in which she was experienced . She further states that,
after the advent of the Union, Respondent began to crit-
icize her tardiness , which it had never done before. Davis
asserts that because of this harassment , considered in more
detail hereinafter , she was forced to quit her employment
with Respondent. The Respondent contends that the job
assignments given to Davis were normal and were not dis-
criminatory and denies that there was any harassment of
Davis.
The following findings of fact are made upon careful
study of the entire record. I shall not detail each conflict in
the evidence and the reasons for the resolution of each. I
have credited the testimony of Rose Davis for the most
part because she impressed me as a credible witness. Evi-
dence inconsistent with the following findings is not cred-
ited.
1. SUMMARY OF FACTS AND ISSUES
A. Union Activity
Davis, who began her employment with Respondent in
the early part of October 1973, sought the assistance of the
Union to organize Respondent's employees. Union repre-
sentatives appeared in front of Respondent's plant on June
3, distributing leaflets. Respondent observed the prominent
association of Davis and employee Loretta Blandon with
these union representatives. The following day Blandon
was discharged. Davis protested to Respondent that it was
she who had brought the Union in, not Blandon . Employ-
ees who had previously shown interest in the Union began
to withdraw. Davis, feeling deserted by the employees in
whose behalf she had acted, began to unbraid them and
continued as a militant advocate for the Umon. This alien-
ated some of the employees .' Some friends of Davis indi-
cated that they were concerned about associating with her
1 Respondent sought to show that during this period Davis threatened
employees , used profane or abusive language to them, and slapped an em-
ployee. With the exception of Davis' conduct toward Catherine Gianetti (a
longtime employee with special loyalties to Respondent), the alleged threats
were to subpena employees to support Davis ' position , no profane or abu-
sive language was shown (Vincent Burns' testimony to the contrary is not
credited) However , though Davis denied it, I am inclined to believe that,
during an excited discussion on June 4, Davis did offer to slap one
employee's face, but did not do so. Davis did offer to fight with Gianetti.
During this period, she also made certain uncomplimentary remarks about
members of management
C. Alleged Inducement To Quit
In mid-October, Davis attended a hearing before an Ad-
ministrative Law Judge of the Board as a prospective wit-
ness upon a complaint alleging the discriminatory dis-
charge of Loretta Blandon. This complaint was settled
during the course of the hearing. At the point when
Blandon 's case appeared settled , Respondent 's counsel
stated that they might now "take care of Mrs. Davis." At
the suggestion of the Administrative Law Judge the discus-
sion was adjourned to another room. Union Representa-
tive Garber accompanied Davis. There Respondent's
counsel told Davis that Respondent did not want her
"there," and asked, "What will it take for you not to go
back to work." Counsel suggested that Respondent would
give Davis 2 weeks' pay and get her another job. Davis
refused the offer and the discussion broke up. When
Respondent 's counsel and Davis then passed Sidney
Burns, Respondent's president , and Catherine Gianetti
standing together, Gianetti stated that she did not want
Davis back at work ? Counsel stated that he had done all
he could, there was nothing more that he could do, that if
Davis wished to come back to work she should be permit-
ted, and she should not be bothered . The next morning,
counsel asked Davis if she had reconsidered the offer. She
replied , in hest, that she would take a larger offer. This
apparently was not forthcoming.
Respondent's counsel credibly testified that , on two or
three occasions during the hearing on the Blandon matter,
Union Respresentative Garber had spoken to him about
Davis. Garber said that Davis was unhappy in her employ-
ment with Respondent, and that Davis might be better off
out of the plant . He suggested to Respondent's counsel that
Davis be offered 2 weeks' severance pay. Garber was hos-
t There was clearly ill feeling between Davis and Gianetti Davis thought
that Gianetti had improperly influenced the employees against the Union,
and, as noted, had offered to fight her Davis also accused Gianetti of
intimacy with Respondent 's management.
CADDELL-BURNS MFG. CO.
pitalized and unable to testify in the present matter. Davis
asserted that she had not given Garber permission to act
on her behalf and didn't believe that he had done so. How-
ever, she testified that Garber had told her that he did not
think it was wise that she return to work for Respondent,
that he did not think it a good place to work. Davis decid-
ed that she would return for 60 days to see that Respon-
dent carried out its obligation to post the Board's official
notice pursuant to the settlement.
D. Wage Increases
It is also found, in accordance with Davis' testimony,
that in June, after the union activity began, Thomas Burns,
Respondent's secretary, told the employees that Respon-
dent had intended to give the employees a raise, "but now
that the union is here no one can get a raise." Later, in
mid-September, Thomas Bums told the employees that,
though many employees were asking for raises, Respon-
dent could not give them now, but that very shortly, when
the Blandon case was over, the employees would receive
their raises 3 Respondent, in fact, decided toward the end
of October (after the Blandon settlement) to give the em-
ployees an across-the-board increase, but withheld the in-
crease until November 20, on the advice of its counsel that
it should wait at least a month after the Blandon settle-
ment.
E. Davis' Termination
In the first week of November, as set forth in more detail
hereinafter, Respondent was particularly critical of Davis'
performance on a job which she had never done before.
Davis advised Respondent that she was going to file a
charge with the -Board. That weekend, she received an
anonymous obscene telephone call, and on the following
Monday, November 11, she called Respondent, stating
that her nerves could no longer take the strain, and advised
that she was quitting her employment. The next day, Re-
spondent wrote acknowledging her resignation.
II. ALLEGED HARASSMENT OF DAVIS
A. Work Tasks
Assignments are made in Respondent's operations on
the basis of customer requirements, the availability of the
employees;and the skills required. When a job needs to be
done, it is -given to the next available employee with con-
sideration as to whether the task requires skills beyond the
employee's, capability. Thus it appears that the employees
are assigned a variety of tasks as the need arises. When the
employee- has not done the assigned task before, simple
instructions are given at the time of the assignment. Once
assigned, the employee is -normally expected to continue
with the required task until it is completed.
At the advent of the Union at Respondent's operations,
Davis states she became aware of a change in the job -tasks
3 So far as the record shows, two employees had asked for raises in the
time period in question . Management avoided answering these inquiries.
491
to which she was assigned. Some tasks, such as packing
and printing to which she was accustomed were no longer
assigned, or only rarely. She worked on milling machines
and did assembly jobs which she had never done before,
was assigned in the summer time to soldering operations at
a soldering pot in the rear of the plant which generated
very high temperatures, and was directed to perform cer-
tain cleaning operations under disagreeable conditions,
neither of which had occurred previously.
1. The soldering operations
Hand soldering operations are performed toward the
front of the plant. At the times material herein, there was a
soldering pot at the middle of the plant, and another pot at
the rear of the plant. The areas at the front of the, plant and
at the middle were better ventilated than the rear of the
plant. The soldering pot at the rear of the plant generated
the most heat and apparently was- the more efficient of the
soldering pots in the plant. Therefore, some jobs would
normally be done at this location rather than at the pot in
the middle of the plant or by hand soldering. Davis had
performed soldering operations previously but not at the
rear soldering pot.
As stated by Davis, "... in the hottest weather that was
during the months of July and August when the tempera-
ture was at its highest, they were sending me to the rear
... they would give me five hundred or one thousand coils
to solder, which it was about 150°. No exhaust fan, one
little window and I had to sit there with this sweat pouring
off me and inhaling the fumes." Davis estimated that she
was assigned to this work about 3 days a week, sometimes
working 8 hours a day at the soldering pot. Some of the
other employees also worked at this soldering pot in the
rear during the summer time. Charlotte Dippel worked
there for 3 days during this period. However, there is no
credible- evidence that any other employee worked there as
much as Davis that summer. Thomas Burns, secretary of
Respondent and in charge of production, told Davis that
he had taken two employees off that work after half an
hour because they complained that they felt faint from the
heat. Davis states that she complained, but Burns told her
that someone had to do the work. Gianetti, in her testimo-
ny referred to two other employees who had been relieved
of this work upon complaint. It is clear that this operation
is generally considered an undesirable task. However,
Respondent's employee witnesses testified that they did
not complain when assigned to this job.
2. The cleaning operation
In September, Davis was assigned to perform a cleaning
operation in a garage annex to the plant, which, she had
never done before. The process involved the. removal of a
large number of transformers from a 5-gallon-can in which
they were immersed in. a chemical, and cleaning them with
a brush held in Davis' other hand. She performed this op-
eration by sticking her arm into the can and pulling out the
transformers one by one. She did this for 2 days. During
this period she complained to Thomas Burns concerning
the heat from the ovens and the-smell of the chemical. She
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was also concerned that the chemical would be harmful to
her skin. The chemical dissolved some rubber gloves that
she donned for the purpose and did irritate her arm. How-
ever, Burns assured her that the chemical was not harmful.
He apparently did not tell her that there were prongs near-
by that she could use for the purpose. The record is con-
vincing that other employees were also assigned to perform
this same cleaning process. They seem to have used the
prongs. One employee stated that Thomas Burns had in-
structed her to use them.
3. The winding operation
In the last week of Davis' employment, the first week in
November, Thomas Burns assigned Davis the task of
winding wire around 500 coils. This was the first time she
had performed this operation. Burns instructed Davis in
the operation, but she had difficulty with the process be-
cause she is essentially left-handed. When Burns came over
to her to complain that she wasn't doing the task well,
Davis explained her difficulty to him, and told him she had
never done this job before. Because Davis' production was
slow, the next morning, Thomas Burns gave one-half of the
remaining coils to another employees, Mary Rowe, to
wind. The record shows that Rowe was very experienced at
such winding operations. Later in the day, Burns confront-
ed Davis with the coils which had been done by Rowe,
saying, "How come you are not finished yet. How come, is
the work too hard for you? If you cannot do it, maybe you
don't belong working here." Davis again explained her
problems with the operation and said that if Rowe could
do the work faster, he should let her do it. Burns did not
reply but continued to stand over Davis. Davis says that
this made her nervous and she told Burns, in an insubordi-
nate manner, in effect, that he should leave her alone and
go talk to Catherine Gianetti.
Burns' testimony concerning his purpose in creating this
confrontation is something less than persuasive. He con-
tended that it was customary for him to time one employee
against another when it appeared that the first employee
was extraordinarily slow. When asked on cross-examina-
tion whether he had done this to certain named employees,
he replied in the affirmative. However, shortly thereafter,
when asked for clarification, he first testified that he did
not pick one girl to time against another, but then said he
had done so with other employees in situations similar to
that of Davis, but could not remember who these were
without resort to his records. I do not credit Burns' testi-
mony as to his reason for comparison timing of Davis on
this occasion. It is manifest that Respondent does time new
operations by observing several girls performing the task,
to determine how long the task should take, in order to
determine unit costs. This is for Respondent's records, not
for comparison among'the employees. It does not appear
that the task assigned to Davis was a new operation and it
is inferred that Respondent had previously timed the pro-
cess.
Davis asserts that after the advent of the Union, Respon-
dent warned her about her tardiness and threatened to dis-
charge her if she did not come in on time, whereas before
the Union, Respondent condoned lateness and did not rep-
rimand her. Respondent denies that she was reprimanded
because of her Union activities, asserting that Davis had
the worst record of tardiness of any employee from June
until she left their employment in November .5
Respondent's records show, and Davis admits that she was
frequently late during this period. Records were not sub-
mitted for a similar period prior to June, but the records
for May do tend to show that Davis was similarly tardy in
reporting for work before the inception of her Union activ-
ity.
III. ANALYSIS AND CONCLUSIONS
1. The wage increases. After the advent of the Union,
Respondent told the employees that because "the union is
here" wage raises Respondent had intended to grant would
not be given. Later the employees were told that wage rais-
es would not be granted during the pendency of the unfair
labor practice proceeding instituted on behalf of employee
Blandon but that they would be given when that case was
over. After the settlement of the Blandon matter, Respon-
dent, in November, granted an across-the-board increase.
It has long been established that an employer may not
withhold employee benefits merely because there is union
activity at the plant. See McCormick Longmeadow Stone
Co., Inc., 158 NLRB 1237 (1966); Agawam Food Mart, Inc.,
158 NLRB 1294 (1966). It is also clear that employees have
a right to resort to the processes of the Board, and acts of
reprisal against them because employees or their agents
seek the protection of the Act constitutes interference, re-
straint and coercion of the employees in violation of the
Act. See Nelson Manufacturing Company, 167 NLRB 101
(1967); Robertshaw Controls Company, Acro Division, 161
NLRB 103 (1966). For the reasons stated, Respondent's
statements that wage increases were being withheld be-
cause of union activities, and promises that wage raises
would be forthcoming when the union organizational drive
and the unfair labor practice proceeding were disposed of
violated Section 8(a)(1) of the Act. However, I do not find
that Respondent's action in granting the wage increase af-
ter the Blandon proceeding before the Board was conclud-
ed was in violation of the Act. Having found that Respon-
dent intended to grant these increases, but illegally failed
to put them into effect because of the employees' protected
activities, I cannot find that Respondent also violated the
Act by finally doing what it should have done in the first
place. See Stumpf Motor Company, Inc., 208 NLRB 431
(1974); Dan Howard Mfg. Co. and Dan Howard Sportswear,
Inc., 158 NLRB 805. I shall therefore recommend that this
allegation of the complaint be dismissed.
2. Inducement to quit. At the close of the Blandon matter
before the Board, Respondent's counsel offered Davis sev-
4 Vincent Burns testified that Respondent had previously done consider-
able hand winding operations. In fact, Thomas Burns asserted that Davis 5 This is not strictly accurate Respondent had at least two employees who
had done the same job previously had been permitted for some years to be late for work every day
CADDELL-BURNS MFG. CO.
erance pay to terminate her employment with Respondent
and advised Davis that Respondent did not want her to
continue work. However, this offer was tendered at the
behest of the Union's representative, who informed coun-
sel that Davis was unhappy at her work and that it would
be in the best interest of Davis if she quit Respondent's
employ. Under the circumstances, I find that this offer did
not violate the Act and shall recommend that this allega-
tion of the complaint be dismissed.
3. The constructive discharge. This issue which was exten-
sively litigated (and is the only issue briefed by Respon-
dent) has given me much concern. Davis clearly felt har-
assed by Respondent's work assignments and reprimands
for tardiness after the inception of her union activity. She
had some basis for her feelings since she received assign-
ments that she had never done before, to be performed
under conditions that were oppressive, and at the end was
subjected to an embarrassing, and rather unreasonable
confrontation by Respondent in the shop in front of her
fellow workers. In addition she seems to have received
something less than sympathetic treatment from her em-
ployers.
On the other hand, Davis' union activity did not require
Respondent to avoid giving her onerous or oppressive as-
signments so long as these assignments were not so unusual
or abnormal as to indicate that she was being discriminato-
nly treated. Davis, and perhaps none of the other employ-
ees, had a normal or regular job in the plant which they
were usually assigned, so that Davis' assignments cannot
be said to be deviations from the normal pattern.
Respondent's practice was to assign the required tasks to
the available employees. On the present record it cannot be
said that the tasks assigned to her did not need to be done,
or that Respondent discriminatorily chose her to do the
assigned jobs, which Respondent admittedly knew were
not desirable jobs in the plant. Nor was Davis immune
from criticism of her tardiness-which was excessive-
merely because she had not been reprimanded in the past.
The circumstances are highly suspicious that Davis
should have been assigned to these undesirable jobs which
she had never been required to do before just at this time;
that Respondent should have been so unresponsive to her
complaints when it apparently was more sympathetic and
helpful to others; that Respondent should have picked dust
that period to upbraid her for tardiness; and particularly
that Respondent should have provoked such a hostile, and
somewhat childish confrontation with Davis in the last
week of her employment. However, I do not think that
these suspicions are enough to support General Counsel's
complaint. On the basis of this record, I think Respondent
had good grounds for disliking Davis quite apart from her
union activity, which grounds undoubtedly accounted for
much of Respondent's hostility to her, and I cannot fault
Respondent, on the basis of the evidence here, for choosing
Davis to perform the work in question which needed to be
done. I also note that at the time Davis quit Respondent,
she had admittedly decided that she would not continue
her employment much longer in any event.
On the basis of the above, and the record as a whole, I
find that Respondent did not discharge, or cause the con-
structive discharge of Rose Davis in violation of the Act,
493
and shall recommend that this allegation of the complaint
be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By advising its employees that wage increases were
being withheld because of the pendency of the Union's
organizational drive and the pendency of unfair labor
practice proceedings and promising that such wage in-
creases would be forthcoming when those activities were
no longer pending, Respondent violated Section 8(a)(1) of
the Act, which unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4. Respondent did not violate the Act by granting wage
increases after the conclusion of the Union organizing
drive and the settlement of the unfair labor practice pro-
ceedings, or by offering Rose Davis severance pay if she
quit her employment with Respondent.
5. Respondent did not discharge Rose Davis or cause
her to be constructively discharged in violation of the Act.
THE REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices in violation of Section
8(a)(1) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action to ef-
fectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER6
The Respondent, Caddell-Burns Mfg. Co., Inc., its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Withholding increases in wages or other benefits
from employees, or informing employees that such increas-
es or benefits cannot be granted because a labor organiza-
tion is attempting to organize or represent the employees or
because employees or a labor organization has instituted
proceedings before the National Labor Relations Board.
(b) Promising or implying to its employees that they will
receive wage increases or other benefits when attempts by
a labor organization to organize or represent the employees
cease , or when proceedings before the National Labor Re-
lations Board are discontinued or concluded.
(c) In any like or related manner interfering with the
rights of employees guaranteed by Section 7 of the Act.
6 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Post at its operations at Mineola, New York, copies
of the attached notice marked "Appendix." 7 Copies of
said notice, on forms provided by the Regional Director
for Region 29, after being duly signed by Respondent's
7 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
authorized representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or covered
by any material.
(b) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply therewith.
IT IS FURTHER ORDERED that the complaint in this matter
be, and it hereby is dismissed as to any alleged violations
of the Act not found hereinabove in this Decision.