Charm Step Shoes

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1234 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charm Step Shoes, Inc., Div. of Genesco, Inc. and
Judy Gail Maxey. Case 26-CA-7566
September 28, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On July 31, 1979, Administrative Law Judge Elias
C. Rodriguez issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
The General Counsel has 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 resolutions 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 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
I In adopting the Administrative Law Judge's Decision we do not adopt or
rely on his findings that the General Counsel did not prove that the union
activities of Judy Maxey or her husband constituted protected concerted
activity. Also we note that the Administrative Law Judge erroneously found
that Judy Maxey was originally hired by the Respondent on May 29. 1977.
instead of March 29, 1977, as indicated in the record. That error does not, we
find, affect the result reached herein.
DECISION
STATEMENT OF THE CASE
ELIAS C. RODRIGUEZ, Administrative Law Judge: This
case was heard in Tupelo, Mississippi, on April 30 and May
1, 1979, pursuant to a charge filed on January 4, 1979, by
Judy Gail Maxey, hereinafter referred to as the Charging
Party, and to a complaint and notice of hearing which was
issued on February 9, 1979, by the Regional Director for
Region 26. The complaint alleged that Charm Step Shoes,
Inc., a Division of Genesco, Inc., hereinafter referred to as
Respondent, engaged in certain unfair labor practices af-
fecting commerce in violation of Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended. Respon-
dent's answer of February 13, 1979, denied commission of
the alleged unfair labor practices, and advanced an affirma-
tive defense. At the conclusion of the hearing, briefs were
called to be filed on June 1, 1979, and, a motion for an
extension of time having been granted, briefs were filed on
behalf of Respondent, and on behalf of the General Coun-
sel, on June 13 and 14, 1979, respectively.
Issues
A. Whether Respondent violated Section 8(a)(l) of the
Act by interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed in Section 7 of the
Act.
B. Whether Respondent violated Section 8(a)(1) and (3)
of the Act by discriminating in regard to the hire or tenure
of employment or any term or condition of employment,
thereby discouraging membership in a labor organization,
and thereby engaging in unfair labor practices affecting
commerce as defined in Section 2(6) and (7) of the Act.
FINDINGS OF FACT
Upon the entire record of this case and my observation of
the witnesses and their demeanor, I make the following
findings of fact:
I. THE BUSINESS OF THE RESPONDENT
At all times material herein, Respondent, a corporation
doing business in the State of Mississippi, has had an office
and a place of business in Fulton, Mississippi, where it is
engaged in the manufacture of women's shoes. During the
12 months preceding the complaint, a representative period,
Respondent, in the course and conduct of its business op-
erations, purchased and received at its Fulton, Mississippi,
location, products valued in excess of $50,000, directly from
points located outside the State of Mississippi, and during
the same period of time, Respondent sold and shipped from
its Fulton, Mississippi, location, products valued in excess
of $50,000 directly to points located outside the State of
Mississippi.
The complaint alleged, the answer admitted, and I
hereby find that Respondent has been at all times material
herein, an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleged, and I hereby find that United
Steelworkers of America. AFL CIO, hereinafter referred to
as the Union, has been, at all times material herein, a labor
organization within the meaning of Section 2(5) of the Act.'
I Respondent's answer, at par. 5, denied the allegation of par. 5 of the
complaint with regard to the recognition of the United Steelworkers as a
"labor organization" within the definition of the Act. However, dunng the
course of the hearing, Respondent's counsel stipulated that the Steelworkers
are a "labor organization," and amended Respondent's answer to admit that
allegation (see Tr. 134).
245 NLRB No. 156
1234
CHARM STEP SHOES
111. RESPONDENT'S SUPERVISORS HEREIN INVOLVEI)
The complaint alleges, Respondent's answer admits, and
I hereby find that Tommy H. Williamson, plant manager
for Respondent, Ramah Terry Harrell, personnel manager.
and Jerry Wayne Cleveland, fitting department manager,
were, at times material herein, agents of Respondent, and
supervisors within the meaning of Section 2(1 1) of the Act.
IV. THE UNFAIR LABOR PRACTICES
A. Background
The Charging Party, Judy Gail Maxey, began working at
Respondent company, Charm Step Shoes, on May 29, 1977,
and worked there as a "Rub-Tape" operator, filling in occa-
sionally and from time to time in other production tasks,
such as "Skiving" and "Handwork"2 until October 20, 1977,
when she went on pregnancy leave. From 1972 to 1976
Judy Maxey had worked at the Mueller Brass Company,
located in Fulton, Mississippi-a company organized by
the United Steelworkers of America, Local 8420. Maxey
had been a member of the Union while working at Mueller
Brass, a fact apparently known at Charm Step while she
worked there. During the period she worked at Charm
Step, Maxey, while away from the plant and in her home,
engaged in union activities, together with her mother, her
father, and her husband, working with a union that was
seeking to organize Charm Step.
Maxey's pregnancy terminated with the birth of her child
on April 27, 1978. However, Maxey did not return to work
upon her recovery, having decided on her own, and appar-
ently having so indicated to Terry Harrell, Respondent's
personnel manager, during the first week of June 1978, that
it would be better if she "quit and went back after the
children became a bit older." In September 1978, Harrell
inquired of Judy Maxey's mother, Mary Loden, an experi-
enced and trusted employee for some 21 years of Charm
Step, whether Judy Maxey would be coming back to work;
Loden was reported to have said that her daughter was not
returning to work because of her children.3 Harrell had
made this inquiry of Judy's mother as a routine administra-
tive action designed to check the status of personnel on
leave. Having received that response, Harrell filled out an
Exit Interview form dated 9/14/78, on which he checked
blocks indicating "Permanent Separation" and "Resigned,"
and noted that "last day worked" was "10-20-77." In lines
calling for "Details of Separation" he inserted the comment
"Failed to Return from Leave."'
2 "Rub-Tape" consists of sticking a piece of tape on the back seam of
shoes as they are processed on the production line. "Skiving" involves the
thinning or shaving of material so that the part can then be sewn on to a
shoe. "Handwork" covers a variety of jobs. such as buckling and tieing
shoes. These jobs, performed in the fitting department of the plant, fall into
different categories inasfar as hiring, employee qualification, and benefits are
concerned. These other aspects of rub-tape, skiving, and handwork assign-
ments are further discussed below in the analysis section.
Harrell testified about this conversation. Loden was not questioned
about this conversation on direct or on cross. and thus neither affirmed or
denied it. Maxey indicated in her testimony that her mother later told her
about this conversation.
' Resp. Exh. 12.
On November 4, 1978, the employees at Mueller Brass
Company went on strike, and T'Ferry Maxe,. the Charging
Party's husband, who worked at Mueller Brass and was a
union committeeman there, went on strike, picketed line
supervision, and, in addition, worked in the union strike
office in a trailer across the street from Mueller Brass from
the first day of the strike.' November 4. 1978, was a Satur-
day. The president of the United Steelworkers Local, Hu-
bert Coker testified that the picket line began to form late
on Sunday, November 5. and the local television station
and the local radio station publicized the union's strike im-
mediately.
On Monday, November 6. 1978. Judy Maxey visited
Charm Step and met with Terry Harrell to see if she could
come back to her old job of rub-tape operator or to be
employed in handwork.' She was informed that the only job
that was available at that time was sewing, a position she
did not want. Whether that same day or the following.
Maxey filled out an application and it was presented to
Harrell. Maxey was, in fact, not hired at that time.
Wayne Cleveland, fitting department manager, testified
that on November 7 he was told by Loden, Judy's mother,
that Judy wanted to return to work. He told Loden to bring
Judy in the next day and he would put her to work on
"vertical top stitch" (a sewing job). Loden told him that
Judy did not want a sewing job, she wanted a rub-tape job.
Cleveland told her to stay in touch with him and if some-
thing came up on rub-tape, he would talk to her about it.'
The week of November 6, 1978, Loden testified that Terry
Harrell suggested to her that she go speak to Tommy Wil-
liamson, plant manager, about getting Judy a job. As testi-
fied by her, Loden replied, "I don't beg for a living; I work
for it." Apparently, Judy Maxey herself did not come in to
see if a job was open or to check on her application between
November 6, when she met with Terry Harrell, and Janu-
ary 4, 1979,8 when she filed the charge before the National
Labor Relations Board that Respondent had:
... refused to rehire her] because of her membership
and activities in behalf of the Wholesale Retail Clerk's
International, AFL-CIO, a labor organization, and be-
cause of her husband's membership and activities in
behalf of the United Steelworkers of America, AFL
CIO, a labor organization, and at all times since that
date it has and does now refuse to rehire the above
named employee.'
The strike at Mueller Brass ended on January 29, 1979,
when a new contract was ratified, and the Mueller Brass
employees began going back to work. Judy Maxey was re-
hired on February 21, 1979, for a job on handwork, after
Respondent, through its duly authorized agent, uncondi-
SThe picketing itself apparently began on Sunday, November 5.
*The testimony of the various witnesses differs as to precisely what did
take place on November 6. The discrepancies and conflicts are examined in
the analysis section below.
7 Loden also testified that during the week of November 6 she talked to
Cleveland about Judy's wanting to return to work at rub-tape. Ioden stated
that Cleveland's response was only "You know I take orders from higher
up."
I Judy Maxey admitted on cross-examination that she had not contacted
the employer after first filing her application and this was confirmed by
Harrell and Cleveland.
9G.C. Exh. I(a).
1235
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tionally offered her such a job without prejudice to Respon-
dent's position in this proceeding. Between November 6,
1978, when Judy Maxey visited Charm Step to seek em-
ployment, and January 3, 1979, when she signed her unfair
labor practice charge, Respondent hired three persons into
the fitting department to do handwork.'0 In addition to
those three persons hired in November 1978, Respondent
hired 12 other persons in January and in February up until
February 21, 1979, when Judy Maxey was rehired."' At the
time of the hearing on April 30 and May 1, 1979, Judy
Maxey was then currently employed at Charm Step work-
ing in the rub-tape position.
B. Specific Allegations of Unfair Labor Practices
As set forth in the complaint of February 9, 1979, and as
further restated in the oral opening statement by counsel
for the General Counsel at the beginning of the hearing and
in the brief on behalf of the General Counsel, the specific
allegations of unfair labor practices here involved are as
follows: 12
(a) That Respondent violated Section 8(a)(l) and (3) of
the Act by refusing to rehire Judy Gail Maxey on Novem-
ber 6, 1978, and subsequently, in a position she had previ-
ously performed because of her union activities and/or the
union activities of her husband, Terry Maxey.
(b) That Respondent, by its agent and supervisor, Ra-
mah Terry Harrell, violated Section 8(a)(l) of the Act, on
or about November 7, 1978, the exact date unknown, at its
Fulton, Mississippi, plant, threatening and coercing its em-
ployees by telling its employees that Respondent could not
hire anyone connected with Mueller Brass Company, which
was on strike.
These allegations will be analyzed below in light of the
testimony of the witnesses, the exhibits introduced into the
record, and the briefs presented by the parties.
V. ANALYSIS AND CONCLUSIONS
A. Failure to Rehire Judy Maxey
The central and critical factual element in this case is the
solicitation for reemployment made by the Charging Party
to Respondent on November 6, 1978, and the response
made by Charm Step. which Judy Maxey claims was a re-
fusal to rehire for discriminatory reasons. The details of
exactly what happened on November 6 and 7 with respect
to the solicitation have been depicted in varying ways by
the witnesses, and these details need some clarification.
Judy Maxey testified that she first telephoned Terry Harrell
the morning of November 6, and after receiving some en-
couragement that she might be hired to do handwork, she
1' Rhonda Anderson, November 8, 1978 (G.C. Exh. 3); Janice West, No-
vember 20, 1978 (G.C. Exh. 4); and Ruth McKinney, November 27, 1978
(G.C. Exh. 5(a), (b), and (c)).
II Brief on behalf of the General Counsel, at p. 7: Respondent's brief, at p.
II, states that it is undisputed that Respondent did hire in the handwork
position dunng November, 1978, and thereafter.
ui Respondent's brief articulated the two issues differently, in effect elimi-
nating issue 2(b) above and dividing allegation 2(a) above into two issues.
This, however, is not matenal since the issues as set forth above were prop-
erly addressed and litigated in the course of the hearing.
went to the Charm Step plant the same day and met with
Harrell." Maxey recalled that he then told her that the only
position open at that time was "Vertical Top Stitching," a
sewing job, and that she told him she did not want a sewing
job. She further stated that Harrell said "he would try to
call [her] back on Friday, that he thought maybe by then he
could use me." Maxey then left the lant and went home.
As stated earlier, Judy Maxey did not personally return to
the Charm Step plant to follow up on her application nor
did she personally contact Harrell or other Charm Step of-
ficials to check on her application between November 6,
1978, and when she filed her National Labor Relations
Board charge on January 4, 1979.
On Respondent's side, Harrell, testifying on his Novem-
ber 6 conversation with Maxey, recalled in general terms
the same basic dialogue. One point is to be highlighted. In
response to the question "Did you offer Mrs. Maxey a
job?", he replied "The sewing job that I mentioned earlier,
the vertical top stitch job." In other words, he felt that the
net result of the conversation was that he had offered a job
to Maxey regardless of the exact words used. It should be
noted in this respect that Respondent's answer to the com-
plaint had postulated, as an affirmative defense, that Re-
spondent "on or about September 14, 1978, on or about
November 6, 1978, and on or about January 22, 1979,
through its duly authorized agents unconditionally offered
without prejudice to Respondent's position the Charging
Party positions with Respondent known as rub-tape opera-
tor, sewer, and cement bottom operator, respectively, which
all were refused by the Charging Party." At the opening of
the hearing on April 30, 1979, Respondent's attorney
amended that affirmative defense to eliminate the words
"rub-tape operator," explaining that he did not believe "she
was ever offered that job, because it never came open."i5
That amendment to the answer was not objected to, and
was duly accepted.
Despite these not surprising differences in recollecting
that conversation, and particularly despite the disagreement
between the parties as to whether Maxey was formally or
specifically offered a job on Novembe, 6 or 7, it is clear that
the sewing job was mentioned and that the Charging Party
clearly indicated that she did not want that job. If the sew-
ing job had in fact been very explicitly offered, there ap-
pears no doubt that Maxey would have rejected the offer.
1i Respondent called Mary Miles Crane, secretary to Terry Harrell, as a
witness, and brought out in her testimony tha, she had spoken with Maxey
on November 6 while Maxey was waiting for Harrell. Crane stated that she
had told Maxey that the only open job she knew of was sewing, and that
Maxey said she was not interested in sewing. Crane recalled that Maxey
filled out an application at that time, and that the application was logged in.
Maxey testified that she had filled out an application that evening at her
mother's house, and that her mother on November 7 brought the application
in to Harrell's office. Loden's testimony supported Maxey's recollection and
affirmed that she had brought the application in to Harrell's office on No-
vember 7. However, counsel for General Counsel introduced into evidence
an application that Judy Maxey identified as the document she had filled out
(Tr.22). That application bears a time and date of 4:30 p.m., 11 6-78 (G.C.
Exh. 2).
4 G.C. Exh. (e).
" Respondent's attorney, at the same time, added after the words "Charg-
ing Party," that on or about February 19, 1979, Respondent, through its duly
authonzed agent, unconditionally offered, without prejudice to Respondent's
position, to the Charging Party the position of handwork. which was ac-
cepted by the Charging Party on or about February 20.
1236
CHARM STEP SHOES
Clearly, Charging Party means by its allegation of discrimi-
nation that she was entitled to he rehired in her old job, and
not just in some other job that she did not want.
In order to arrive at a decision as to whether these cir-
cumstances mean that Respondent, as alleged, wrongfull
refused to rehire Maxey because of antiunion motives. it is
necessary to consider the circumstances from different
points of view. Specifically, it is necessary to analyze
whether the Charging Party had a rightful claim to be re-
hired in a job acceptable to her, whether the timing of the
developments in this case properly justify inferences in sup-
port of the Charging Party's allegations of discrimination.
and whether the entire record supports a finding of anti-
union animus on the part of Respondent arising from or
directed to the union activities of Maxey or of her husband.
I. The right to be rehired
The allegations in the complaint, and the Brief on behalf
of the General Counsel, speak in terms of Maxey being
rehired. Thus, there is clearly implied in these contentions,
as well as in the testimony of Judy Maxey and of her
mother, that the fact that Maxey had previously worked for
Respondent gave her some special entitlement to consider-
ation additional to that which might properly be accorded
to someone who had never worked for Respondent. It is
well to dispose of this implication.
When Maxey took leave from her job at Charm Step on
October 20, 1977, she was entitled to the protection af-
forded employees on maternity leave by the employer's es-
tablished and published rules. Respondent's rules covering
pregnancy leave, as contained in the General Shoe Em-
ployee Handbook, setting forth "guaranteed policies, prac-
tices and procedures," were introduced into evidence as Re-
spondent's Exhibit 14(a) and (b). The pertinent provisions
of this Handbook read as follows:
An employee on a pregnancy leave who returns to
work within thirteen (13) weeks from the date of birth
will be given her basic job in accordance with plant
seniority and certification.
If she does not hold sufficient plant seniority to claim
her basic job, she will be given rollback rights.
An employee on pregnancy leave unable to return
within the 13 weeks period may submit a certificate
from a licensed medical doctor stating that she is un-
able to return. The 13 week period may then be ex-
tended to a maximum of 18 weeks and the above rules
apply.
An employee who does not return within the 13 or 18
week period qualifies for a year's pregnancy leave. The
year will begin from the original date of leaving.
When an employee returns from the year's leave and
her basic job is not open, she may take whatever job is
available and return to her basic job when there is an
opening.
Now, let us apply this to Maxey's case. Her baby was
born on April 27, 1978. and a 13-week grace period during
which she can claim her basic job with plant seniority and
certification brings us to July 27. Maxey, however, did not
claim her right at this time, but rather indicated to Harrell.
according to her own testimony, that it would be better if
she quit. Under the pregnancy leave rules she could have
up to 18 weeks after the birth of her child in which to
reclaim her job it she submitted a certificate from a doctor.
That would have carried her until August 25. There is no
suggestion that she obtained or submitted such a doctor's
statement. The rules further offer that an employee who
does not return in 13 or 18 weeks, still qualifies for a year's
pregnancy leave from the original date of leaving at which
time the returning employee may take "whatever job is
available." That would have brought Maxey to October 20,
1978. However, Maxey did not return even then, nor did
she communicate with Charm Step about returning. She
claimed that Respondent violated the Act on November 6,
1978, well after the one year's pregnancy leave expired, by
refusing to rehire her because of antiunion motivation. We
will examine below the issue of antiunion motivation, but
aside from that. the implication of a right in the Charging
Party to be rehired has little merit in light of these facts.
In further examination of this issue of the right to be
rehired, it is to be noted that when Judy Maxey went to
seek re-employment on November 6, she was not told by
Harrell or any other Charm Step official, as well she might
have, that she had exhausted her right to re-employment
under the pregnancy leave rules. Instead, in an atmosphere
that is not depicted as being unfriendly or inhospitable, she
was told of what jobs were available then, and was invited
to check back. Assuming for the moment that she still had
re-employment rights under the pregnancy leave rules, why
did Harrell not offer her her old job, rub-tape, and instead
offered her a sewing job that she did not want? Could this
failure to offer her just the job she wanted, and the dangling
of a job she did not want, suggest an underlying animus, or
was there a good reason whS Harrell did not offer her the
rub-tape job?
The answer to that question appears to lie in the various
categories assigned to different jobs in the (Charm Step
plant. which categories, as indicated earlier, connote differ-
ent employee qualifications, different benefits, and different
hiring mechanisms. Basically, jobs in Respondent's fitting
department were characterized as "posted jobs" and "auto-
matic certification jobs." The "automatic certification" jobs
are less skilled jobs not requiring special training or a pe-
riod of experience or "certification," which the department
manager or foreman can fill as need arises b detailing on a
temporary or stop-gap basis employees in the same depart-
ment having some free time in their regular jobs. Because of
these characteristics, when work builds up on automatic
certification jobs. it is handled by intradepartment shifting
of people. arranged solely by the department manager or
floor foreman, and the job is not "posted" or advertised for
outside hiring by the personnel manager. "Handwork."
which Maxev wanted, is such an automatic certification
job. Harrell. therefore, was in no position to know whether
"handwork" jobs were open nor could he hire for such a
job.
The "Posted" jobs on the other hand encompassed more
skilled jobs requiring a period of apprenticeship or certifica-
tion. When these more skilled jobs such as rub-tape and
vertical top stitch are open, they are advertised for competi-
1237
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive bidding, in other words, "Posted," through the person-
nel manager's office. Harrell would have known if a rub-
tape or a sewing position were open, because such a job
would have to be posted or advertised in his office. Maxey
wanted a rub-tape job, but such a position, not being open,
was not posted. and Harrell could not offer it to Maxey.
The rub-tape position was not posted on November 6-
and therefore not available for Harrell to fill-and testi-
mony was presented that the rub-tape position was not
posted at any time after November 6 and up to the date of
the Hearing. The full-time rub-tape position which Maxey
had performed when she was previously with Charm Step
was filled by another employee, a Cindy Hudson, on March
17, 1978, when Maxey was away on pregnancy leave.
Cleveland, the fitting department manager, testified at the
hearing that the job had not been posted because "it never
has run up enough to post it for a full-time job." This situ-
ation, that the rub-tape position was not posted, was not
contradicted in any way at the Hearing.
These are then the factual circumstances relating to the
issue of whether the Charging Party had a legal claim to be
rehired and to be rehired in her previous job or in a job of
her choice. The Charging Party had of her own volition not
taken timely action to exercise the privilege extended her
under Respondent's pregnancy leave rules to claim her old
job; and, moreover, the rub-tape position was not open for
hire. The handwork job, which she also wanted, was not a
posted job and was subject to being filled within the fitting
department by the fitting department manager, Cleveland,
normally on a part-time basis with employees already in the
department. And Maxey never met with Cleveland to make
him aware of her interest in the handwork job, and the
record does not show that Maxey's interest was brought to
Cleveland's attention, except on one or two instances by
Maxey's mother."
In this respect, it is well to recall what the Board and the
courts have held with respect to the employer's right to hire
and fire. In N.L.R.B. v. Walton Manufacturing Company &
Loganville Pants Co., 286 F.2d 16, 25 (5th Cir. 1961), the
court reiterated "As we have so often said: management is
for management. Neither Board nor court can second-guess
it or give it gentle guidance by over-the-shoulder supervi-
sion." (N. L.R.B. v. McGahey, 233 F.2d 413 (5th Cir. 1956)).
The court went on to add, citing the Supreme Court's ruling
in N.L.R.B. v. Jones & Laughlin Steel Corp. (301 U.S. 1, 45
(1936), "The Act does not interfere with the normal exercise
of the right of the employer to select its employees or to
discharge them. The employer may not, under cover of that
right, intimidate or coerce its employees with respect to
their self-organization and representation, and, on the other
hand, the Board is not entitled to make its authority a pre-
text for interference with the right of discharge when that
right is exercised for other reasons than such intimidation
and coercion."
The Board has more recently reaffirmed this general posi-
i" Maxey's mother, Mary Loden, testified that she talked to Cleveland.
apparently during the week of November 6, and told him that Judy Maxey
was interested in coming back to work on rub-tape. It does not appear from
Loden's testimony that she discussed her daughter's interest with Cleveland
in later conversations.
tion. In Elm Hill Meats of Owensboro, Inc. 205 NLRB 285,
292 (1973), the Board stated, "The mere fact that the em-
ployees who were terminated were union adherents and
had engaged in concerted protected activities, and that Re-
spondent knew this, gave them no shield against discharge.
Employees may be dismissed for any reason, or no reason,
as long as union activity is not the basis for the discharge,
and the burden of proving an improper motive for the dis-
charges is upon the General Counsel." These principles ap-
ply, equally, in my opinion, to hiring, as they do to firing,
within the provisions of Section 8(a)(3) of the Act.
These precedents point us directly to the question of
whether Respondent was prompted by antunion sentiment
in not hiring, or rehiring Judy Maxey during the period
November, 1978, to January, 1979. And that is the issue we
must now address.
2. The matter of timing
The argument presented by counsel for General Counsel,
both in her oral statenlent at the opening of the Hearing
and in the post-hearing brief, strongly suggests that the jux-
taposition of events in this case gives circumstantial support
to the theory that Respondent was motivated by antiunion
animus in failing to rehire the Charging Party. And the
timing of events does indeed alert us to the possibility that
the failure to rehire Judy Maxey was grounded on other
than business reasons or management concerns.
And the timing indicators are essentially these: On No-
vember 4, 1978, the strike began at Mueller Brass in which
the Charging Party's husband was deeply involved. On No-
vember 6 the Charging Party seeks work at Respondent's
offices and is informed that the only job available is sewing,
a job in which she is not interested.l She submits her appli-
cation, and is never called back. In the same month of No-
vember, three other applicants-Rhonda Anderson, Janice
West, and Ruth McKinney-were hired by Respondent to
do handwork in the same fitting department. s All three
were interviewed by Harrell. Two had no prior experience
with Charm Step. None of the three had indicated in their
applications that their spouses were currently employed at
Mueller Brass.' Why were they treated differently? Why
did Judy Maxey not get one of those jobs?
The case of Rhonda Anderson is the most difficult one to
explain away. Rhonda Anderson was interviewed by Mr.
17 It is well to note here that Judy Maxey explained in her testimony that
sewing was not desired by her for personal reasons. Sewing was apparently a
bit nerve-wracking, and Maxey testified that she had had a nervous break-
down. Apparently, many of the workers were afraid of sewing jobs because
the machines had knives and needles that could cut their fingers or stick in
them. Indeed, Cleveland, the department manager, testified himself that sew-
ing was "a very difficult job." "It just unnerves them so bad, they just can't
perform the job."
It The applications and employment record cards of these three employees
were introduced into the record by Counsel for General Counsel, as follows:
for Rhonda Anderson, G.C. Exh. 3; for Janice West, G.C. Exh. 4; for Ruth
McKinney, G.C. Exh. 5(a). (b), and (c).
'1 Ruth McKinney was the one person of these three whose husband had
worked for Mueller Brass. She had indicated in her first application, dated
May 13, 1976, that her husband was then employed at Mueller Brass (G.C.
Exh. 5(c)), but her more recent application of November 11, 1978, indicated
that her husband was then working at Mill South, Tupelo, Mississippi (G.C.
Exh. 5(b)).
1238
CHARM STEP SHOES
Harrell on November 7. 1978,2° a day after he interviewed
Judy Maxey. On November 8, 1978, Rhonda Anderson was
hired to do handwork in the fitting department. two days
after Harrell told Maxey that the only job available was
sewing. This is certainly a peculiar discrepancy in treatment
that on its face alerts us to the possibility that there was an
ulterior motive in turning Maxey away.
The explanation given by Mr. Harrell in his testimony
for this discrepancy in treatment was essentially that the
hiring process for posted jobs was different from that for
nonposted or automatic certification jobs. For posted jobs
he would hire an applicant for that particular posted job
and note that on the application. For nonposted jobs. the
interested department manager would just tell Harrell that
he needed a person, and Harrell would then get the appli-
cant and send the person to the department manager for an
interview and for placing. Harrell testified that for such
jobs, he would not know what job the applicant had gotten
until the application came back with an indication inserted
in the margin by the department manager as to the job
assigned to the applicant. However, sometimes the depart-
ment manager would merely inform Harrell what job had
been assigned to the applicant, and Harrell would make the
marginal notation. This general procedure for hiring for
nonposted jobs was used for the three persons hired for
handwork in November, 1978.
Harrel was specifically asked if he had thought of Judy
Maxey when any of the handwork jobs came up. He an-
swered "I suppose I didn't." "I don't know why. She was
looking for a particular job." "At the time she was in the
office, I didn't know handwork was open."
Cleveland. the plant manager, was also asked specifically
why he did not think of Judy Maxey when he began hiring
people for handwork. He replied:
Well, I didn't know she was interested in it, really. Its
like at the time, my assistant had quit: I had only me
out there, and I had a hundred and forty women out
there. It was everytime you go down the aisle, here is
old Jane over here that said, Hey, my daughter wants a
job down here, but doesn't want to sew, she wants on
that handwork or handtaping part. I haven't got time
to keep up with all of who wants what, and this and
that. If I did, I would be carrying a brief case and
pulling a wagon full of notes around all over the place.
I mean, you just can't keep up with stuff like that.
And he continued:
Like I tell them, anybody that has a daughter or any-
thing wanting a job, they'll have to keep back in con-
tact with me, because I can't remember who all's
daughter wanted a job, or cousin, or neighbor, or
niece, and specifically what job they wanted."
So this is the situation with respect to the timing: on the
one hand, a juxtaposition of events that suggests a linkage;
on the other hand, sworn testimony on company hiring pro-
2'The application form of Rhonda Anderson incorrectly states that Har-
rell interviewed Anderson on 1-7-78. Since the application was signed by
Anderson on 1 1-7-78, it is evident that she was not interviewed in January
of that year. Also, Mr. Harrell testified that he had interviewed Anderson on
November 7. 1978.
cedures and management pressures that seem to explain
discrepancies in hiring treatment. In pressing the position
that here the employee's union activities and the activities
of the employee's family were the real reasons for the action
taken against the Charging Party, brief on behalf of the
General Counsel set forth the very pertinent views ex-
pressed by the Ninth Circuit Court of Appeals in Shattuck
Denn Mining Corporation (Iron King Branch) v. N.L.R.B.,
362 F.2d 466, 470 (9th Cir. 1966) in which it said:
Actual motive. a state of mind., being the question, it
is seldom that direct evidence will be available that is
not also self-serving. In such cases, the self-serving dec-
laration is not conclusive: the trier of fact may infer
motive from the total circumstances proved. Otherwise
no person accused of unlawful motive who took the
stand and testified to a lawful motive could be brought
to book. Nor is the trier of fact-here the trial exam-
iner--required to be any more naif than is a judge. If
he finds that the stated motive for a discharge is false,
he certainly can infer that there is another motive.
More than that, he can infer that the motive is one that
the employer desires to conceal-an unlawful mo-
tive-at least where, as in this case, the surrounding
facts tend to reinforce that inference.
That declaration needs to be borne in mind, and its pre-
cepts not ignored. However, those precepts must be care-
fully applied to the circumstances of each case to avoid an
injustice. A reading of Shattuck Mining makes evident that
that was a much more grievous case than the instant one,
involving violent and open hostility, with insubordination
as the stated cause for discharge. Moreover, in Shattuck
Mining the suspicion of motivation is aroused by the em-
ployer's own act of dismissal in the midst of a heated con-
troversy, and not by an exemployee showing up to ask for a
job two days after a strike begins in a different plant. As the
court said in Shattuck Mining, in the portion of the decision
immediately following the above quoted excerpt:
Here was a union, just certified, and quite busy in ad-
vancing grievances:; here was an officer of that union
who was also a shop steward and an active member of
the grievance committee: here was such an employee
presenting a grievance, on his own behalf, against his
supervisor. The inference that his discharge [there the
Charging Party Olvera was discharged summarily on
April 29, 1964, the day after he filed his grievance] was
motivated by a desire to discourage such union activity
is by no means without basis. It seems to us to be a
reasonable one to draw.
The drawing of an inference of cause and effect in a situ-
ation of closely timed events is without doubt a valid and a
useful basis for a conclusion in the proper case, where an
overriding and prevalent air of hostility is evident and the
timing element is created by the employer's own act. But as
stated in N.L.R.B. v. Ace Comb Company and Ace Bowling
Company, Division of Amerace Corportation, 342 F.2d 841,
847(8th Cir. 1965):
It has long been established that for the purpose of
determining whether or not a discharge [or a failure to
hire. as here] is discriminatory in an action such as this,
1239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is necessary that the true, underlying reason for the
discharge be established. That is, the fact that a lawful
cause for discharge is available is no defense where the
employee is actually discharged because of his union
activities. A fortiori, if the discharges is actuallv moti-
vated by a lawful reason, the fact that an employee is
engaged in union activities at the time will not tie the
employer's hands and prevent him from the exercise of
his business judgment to discharge an employee for
cause."
Accordingly, in the present case, it is necessary to con-
tinue on to a more direct examination of those elements
brought forth in the record that can establish whether or
not antiunion animus was the actual reason for failing to
hire the Charging Party.
3. The matter of union animus
The parties in this case adduced into the record a number
of elements that need to be weighed in reaching the key
determination of whether antiunion hostility was prevalent
among Respondent's supervisors here involved, and
whether it prompted. even in part, the failure to rehire Judy
Maxey. One general observation in this respect is that the
union activities discussed in the record involved not only
the Charging Party and her husband, but extended also to
the Charging Party's mother, Mary Loden, and to her fa-
ther, LeRoy Loden. Neither the original charge nor the
Complaint alleged that Respondent had refused to hire
Judy Maxey because of the union activities of her father or
mother. Nevertheless, those activities were brought forth in
testimony presented, undoubtedly to give a fuller context to
the allegations of antiunion feeling by Respondent.
Although union activities by four members of the Loden-
Maxey family were recounted, the testimony on this issue
did not specifically state nor did it indirectly suggest that
this family was particularly notorious in that area for its
union activity, nor whether the family was extensively en-
gaged in union activities, nor whether they were in fact
ringleaders in union activities. Although such information
might have provided more insight into how Respondent's
officials perceived the Loden-Maxey family, the record in
this proceeding doesn't support any assumptions that the
Maxey-Loden family was widely known in the Tupelo-Ful-
ton area for union activism.
(a) The 1977 incident
Counsel for the General Counsel introduced into the rec-
ord, through the testimony of Loden, that Tommy William-
son, Charm Step plant manager, had spoken to the High-
way Department in May 1977, about her husband, LeRoy
Loden, allegedly because of LeRoy's union activities.
Loden, recounting a conversation she had with Williamson
in May 1977, said that Williamson felt that if Loden was
working for the union, then he would try to get Loden'sjob.
21 This declaration of the eighth Circuit Court of Appeals in 1965, was
cited and quoted by the ninth Circuit Court of Appeals in Shattuck Mining.
supra, as being "the applicable legal test."
Williamson, in his testimony affirmed that he had, in
May 1977, spoken to Highway Commissioner Bob Richard-
son, to ask him to speak to LeRoy Loden, then apparently
working for the highway commission, and to tell him to
discontinue his union activities. Mr. Williamson testified
that he had not asked the highway commissioner to fire
LeRoy Loden, and had neither made any threats nor of-
fered any benefits. Williamson also denied that he had had
a conversation with Mrs. Loden about this incident. At the
time of Williamson's talk with the highway Commissioner,
Mary Loden was working at Charm Step and continued to
do so. Shortly after Williamson's talk with the Commis-
sioner, Judy Maxey went to work for Charm Step, and
worked there until she went on pregnancy leave in October
1977. It offends reason to suggest that Williamson's 1977
talk with the highway commissioner is in any way related to
or colors the failure to hire Judy Maxey a year and a half
later in November 1978, particularly when she was in fact
hired by Respondent after that May 1977 conversation and
worked for Respondent in that intervening period.
This 1977 incident was brought out in the hearing as a
means of' showing an antiunion bias on the part of Respon-
dent's management. But the Act does not prohibit an em-
ployer or a supervisor from being opposed to unions, or
even from making his opposition known, so long as the
employer does not threaten or coerce the employees from
the exercise of their rights under Section 7 of the Act. As
the Court said in N.L.R.B. v. South Rambler Company, 324
F.2d 447, 449 (8th Cir. 1963) "an employee's general hostil-
ity to unions, without more, does not supply an unlawful
motive as to a specific discharge."
In sum, the 1977 incident indicated that Mr. Williamson
opposed unions in May 1977, and he probably still does.2
However. it is questionable whether that incident, or that
antiunion feeling of the plant manager, had any nexus with
or any effect on, the fact that the personnel manager over
18 months later failed to hire Judy Maxey. No evidence was
introduced to suggest that the personnel manager knew of
Williamson's conversation with the highway commissioner,
not that he knew of the plant manager's opposition to
unions, or that he shared such views. That Williamson's
views about unions motivated the personnel manager's ac-
tions cannot be assumed or inferred.
(b) The blacklist
Counsel for the General Counsel made a strong effort to
bring into evidence that a blacklist existed in the Tupelo,
Mississippi, area among employers, and that such blacklist
either had something to do with Judy Maxey not being
rehired in 1978, or that it demonstrated union animus on
Respondent's part. Terry Maxey testified to the existence of
such a blacklist in that area. However, on cross-examina-
tion, he admitted that he had not seen the blacklist, had
been told of the blacklist by another employee at Mueller
Brass, and did not know of his personal knowledge whether
a blacklist existed.
2 In fact, he testified that "All I have done is state that we opposed the
union, and that's all."
1240
CHARM STEP SHOES
Williamson. Charm Step plant manager, testified, when
asked whether his company used any blacklists concerning
the hiring of employees, that there was no such list. He
further testified that Respondent did not keep a list or a
record of employees' prounion or antiunion proclivities,
and that no other employer had ever talked to him about a
blacklist.
On the second day of the hearing, counsel for the Gen-
eral Counsel requested a subpoena ad testificandum, a sub-
poena duces tecum, and a recess in the proceeding so that
she could obtain and bring in testimony that a blacklist was
in existence. A three-hour recess was granted. When the
hearing resumed, counsel for General Counsel stated that
she would present no further evidence and no further wit-
nesses, and rested her case. The post-hearing brief on behalf
of the General Counsel made no mention whatsoever of the
blacklist.
In light of this record, I find that the allegations about
the existence of a blacklist have not been established in any
way.
(c) The Nature of the union activity
In advancing the contention that Respondent violated
Section (a) of the Act by failing to re-hire Judy Maxey
because of her union activities and the union activities of
her husband, the Complaint implied that the union activi-
ties of Maxey and of her husband were activities covered by
Section 7 of the Act. In his closing statement at the end of
the hearing, Respondent's attorney, in questioning whether
a prima facie case had been established by the General
Counsel, contended that in the present case the purported
"concerted" activity which would bring this case under the
prescriptions of the Act had not been established. This ar-
gument was further developed in Respondent's post-hear-
ing brief. This argument would appear to have three
prongs: first, that the "employees" here involved, within the
scope of Section 8(a)(1), are Judy Maxey and her mother,
Mary Loden, and that the "concerted activities" of these
two persons have not been established; second, that the
charge that Judy Maxey's nonhiring was caused by pro-
tected "concerted activities" of her husband, Terry Maxey,
had not been established; and that the burden of proof with
respect to animus and knowledge by Respondent of the
"concerted" activities in question had not been met by the
General Counsel. The post-hearing brief on behalf of the
General Counsel did not address the issue of the alleged
protected "concerted" activities.
The matter of knowledge and of animus will be further
dealt with below. But here it is useful to make a few obser-
vations with respect to the issue of concerted activities.
First, as to the Charging Party's own union activities, the
record is not altogether clear and definitive. The original
charge of January 4, 1979, referred to the membership and
activities of Judy Maxey on behalf of the Wholesale Retail
Clerk's International, AFL-CIO, a labor organization.
However, the complaint did not mention this union, nor
was it referred to during the course of the hearing. In her
testimony Maxey stated that the union she had worked
with around May 1977 was "Boot and Shoes." The Boot
and Shoe Workers were also mentioned in the Brief on be-
half of the General Counsel, at page 2, as the union that
had begun an organizing campaign at Charm Step in May
1977. However, no allegation was made anywhere on the
record that Boot and Shoe was a labor organization within
the definition of Section 2(5) of the Act, and Boot and Shoe
was not further identified. Moreover, although it was stated
that Maxey and her mother signed union cards with Boot
and Shoe, Maxey's precise union activities were not further
elucidated, nor was an allegation explicitly made that those
activities were protected, concerted activities."
The union activities of Mary Loden, Charging Party's
mother, were not alleged in the complaint or elsewhere to
have been the alleged cause for Respondent's failure to hire
Judy Maxey in November 1977. Consequently, the details
of Loden's union activities, which were not made a part of
this record, are in any case only of circumstantial interest in
this case. No declaration was ever made that Loden's union
activities were protected, concerted activities.
The union activities of Terry Maxey were more fully de-
fined. The Union in question, United Steelworkers, was
properly identified as a labor organization covered by the
Act, and Terry testified that as a member of that union he
had gone on strike, had done picket line duty, and had
worked in the strike office as picket-line captain and shop
steward. The complaint did not allege, nor was it alleged
during the hearing or in General Counsel's post-hearing
brief that Terry Maxey engaged in protected concerted ac-
tivities, and Respondent questions whether the lack of evi-
dence on this issue does not invalidate, at least in part, the
basic contention of the complaint.
These gaps in the presentation of the case may well rep-
resent a deficiency in establishing the full validity of the
allegations in the Complaint. In Mushroom Transportation
Company, Inc. v. N.L.R.B., 330 F.2d 683, 685 (3d. Cir.
1964), the court said that "in order to prove concerted ac-
tivity under Section 7 of the Act, it is necessary to demon-
strate at least that the activity was for the purpose of induc-
ing or preparing for group action to correct a grievance or a
complaint." The Board itself, in Diagnostic Center Hospital
Corp. of Texas and International Brotherhood of Teamsters,
Chauffers, Warehousemen and Helpers of America, Local
Union No. 988, and Yolanda Garza de Birdwell, 228 NLRB
1215, 1217 (1977), stated that "activity will be deemed con-
certed in nature if it relates to a matter of common concern
and this common concern will be found with respect to
violations of a safety statute which created a general hazard
for employees. "24
Although no effort was made in the present case to estab-
lish that the activities of Judy Maxey or of her husband,
Terry Maxey, were protected concerted activities, and the
burden of proof in this respect has not been met, the more
basic issue nevertheless continues to be whether Respon-
dent's motivation was the purported union activities of
Judy and Terry Maxey, or whether that element played no
part in Respondent's action. Therefore, the challenges
11 Judy Maxey testified that no election was held with respect to Beot and
Shoes representation, and the organizing effort apparently withered away.
21 Indeed, a dissenting view in Diagnostic Center expressed the position
that because "no evidence was given" that Yolanda Garza de Birdwell was
designated by her fellow employees to draft a letter or that she had informed
any employee that she was doing so. Birdwell's action in that case of com-
posing a letter to another employer did not constitute concerted activity
1241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posed by Respondent's attorney as to whether the union
activities in question were protected "concerted" activities
will not be reached in this decision.
(d) Respondent's knowledge of the union activities
A companion argument posed by Respondent's attorney
regarding the alleged union activities of the Charging Party
and of her husband is that it has not been established that
Respondent had knowledge of those activities, so as to
make credible the contention that those activities were the
real motivation for the failure to rehire Judy Maxey. To
support its contention, Respondent's attorney referred to
the Board's decision in Diagnostic Center Hospital Corpora-
tion, supra, where the Board stated:
In order to sustain an 8(a)(1) discharge finding, it is
necessary to establish that at the time of the discharge
the employee had knowledge of the concerted nature
of the activity for which the employee was discharged.
We find no basis in this record to infer such knowledge
and instead conclude that the timing of Birdwell's dis-
charge on the day after Respondent's discovery of her
unauthorized contact with another employer is consis-
tent with Respondent's explanation that the discharge
was prompted by an incurable propensity to meddle in
the affairs of others ....
Brief on behalf of the General Counsel limits itself to
asserting, at page 10, "Respondent had knowledge of the
union activities of Maxey and Loden during the spring of
1977, and even presented evidence of Williamson's attempts
to determine if Loden's husband was involved in union ac-
tivity ... " With respect to Terry Maxey's union activities,
General Counsel's brief recalled, at page 3, testimony in the
record to the effect that the Mueller Brass strike was publi-
cized in the local media-newspapers, television, and ra-
dio-from the day the strike vote was taken. The question
is, therefore, whether this knowledge can be imputed to
Terry Harrell, who was Respondent's key official in the fail-
ure to rehire Judy Maxey.
The testimony presented on this issue is not conclusive.
Maxey testified that no supervisor in Charm Step, specifi-
cally neither Williamson, Cleveland, nor Harrell, had ques-
tioned her or talked to her about union activity. Although
Mr. Loden testified that she had talked to Williamson
about the 1977 incident involving her husband, the record
does not indicate in any way that Mrs. Loden talked with
Williamson, Cleveland, or Harrell about Judy Maxey's
union activities. Neither Williamson, Cleveland, nor Har-
rell, testified that they knew of Judy Maxey's union activi-
ties, or made any admissions in that respect. So the record
is devoid of evidence that Respondent had knowledge of
Judy Maxey's union activities, and that knowledge can only
be imputed by inference that someone in Respondent's
hierarchy must have known, and that such knowledge can
be inferred to have been passed on to Harrell.
As the Board said in Diagnostic Center, supra, p. 1216,
"We cannot subscribe to the finding of a violation here
through a process of piling one inference upon another."
The same lack of evidence as to knowledge on the part of
Respondent is true with respect to Terry Maxey's union
activities at Mueller Brass, and the same conclusion must
be reached with respect to a possible inference that Respon-
dent knew of Terry Maxey's activities and based its action
with respect to Judy Maxey upon that inference. The bur-
den of proof with respect to knowledge has not been met.
(e) Charm Step Shoe's management emploqee relations
Before reaching a conclusion on the Complaint's first al-
legation, it is necessary to consider also the nature of the
relationships that prevailed at Charm Step Shoes between
Respondent's officials and employees. The general impres-
sion to be drawn from the testimony presented and the de-
meanor of the witnesses is that Respondent's policies and
practices towards its employees were substantially benevo-
lent, and there is no indication that day-to-day employer-
employee ralationships were troubled by animosity or sus-
picion. Loden, Charging Party's mother, agreed that the
company had been very cooperative in letting her and her
daughter take time off to attend to medical problems. When
asked if the company was good to its people, she replied,
"Absolutely, about that. I'll agree with you one hundred
percent." When asked if the employees had gone to the
Labor Board to press charges against Respondent. she re-
plied, "we wouldn't press charges. We wouldn't agree to go
to court ... we respected the company that much."
Similarly, the testimony of the Charging Party herself did
not suggest fear or resentment toward the employer. She
agreed that she had worked at Charm Step in her previous
period of employment without any problems related to
Mueller Brass. Maxey further testified that no one at
Charm Step had ever questioned her about union activities.
The record, however, is not lacking in testimony about
Respondent's policy and practice with respect to employees
or applicants who have been members of unions, or whose
spouses elsewhere are members of unions or are engaged in
union activities. Respondent's witnesses were quite explicit
on the subject of discriminatory practices in hiring.
Plant Manager Williamson testified that Charm Step has
no practice of hiring or not hiring employees who are on
strike elsewhere or whose spouses are on strike elsewhere.
He testified that he had had no conversations and had given
no instructions to Cleveland, the department manager, or to
Harrell, the personnel manager, with respect to not hiring
persons whose spouses were on strike at Mueller Brass. He
testified that he did not know in 1978 that Judy Maxey had
sought employment on November 6, and that he had not
discussed that nor instructed his supervisors not to hire her
for any reason.
Cleveland, fitting department manager, testified that
Judy Maxey was a good rub-tape operator, and that he
would have put her back to work in whatever job was open.
He further testified that he had no policy about not hiring
persons whose spouses were out on strike, and that he had
never been directed not to hire peesons whose spouses were
out on strike at Mueller Brass or elsewhere.
Harrell, Respondent's personnel manager, testified that
the company had no policy about not hiring persons whose
spouses were out on strike. He testified that he did not ask
applicants whether they were on strike elsewhere, and sup-
posedly did hire from time to time people whose spouses
were on strike elsewhere. Harrell pointed out in his testi-
mony that Respondent's turnover was 168 percent, based
1242
CHARM STEP SHOES
on 12-month period, and that he did not care if they were
out on strike elsewhere. He said, "I'm looking for bodies."
What is there on this record to contradict that very
strong, even if self-serving, testimony? Loden testified that
Harrell told her during the first part of November 1978 that
he wanted to hire Judy, but "said that he won't let me hire
anybody connected with Mueller Brass."2 Harrell's testi-
mony contradicted that statement. Loden also testified that
when she told Cleveland that Judy was interested in coming
back to work, he replied "You know I take orders from
higher up."26 Cleveland's testimony contradicted that state-
ment of Loden.
In a situation such as this, in which co,npany officials are
making statements that are in conflict with testimony of
other witnesses, it is desirable to seek guidance from court
precedents. That guidance is not lacking, and has been con-
sistent for several decades. Reaching back to the fifth Cir-
cuit Court of Appeals' decision in 1941 in N.L.R.B. v. Tex-
O-Kan Flour Mills Company, 122 F.2d 433, 439 (1941), we
can find a pronouncement, that, in my opinion, serves well
in this case. The court there said:
If no other reason is apparent, union membership may
logically be inferred. Even though the discharger dis-
avows it under oath, if he can assign no other credible
motive or cause, he need not be believed. But it re-
mains true that the discharger knows the real cause of
discharge it is a fact to which he may swear. If he says
it was not union membership or activity, but some-
thing else which in fact existed as a ground, his oath
cannot be disregarded because of suspicion that he
may be lying. There must be impeachment of him, or
substantial contradiction, or if circumstances raise
doubts, they must be inconsistent with the positive
sworn evidence on the exact point.
In the present case, the explicit denials under oath of
Respondent's officials that antiunion motivation was the
cause for the failure to hire Judy Maxey in the fall of 1978,
cannot be deemed to be overcome by the veiled allusions of
one of the Charging Party's witnesses, nor by strained infer-
ences laboriously drawn from timing coincidences.
In light of these many considerations, reviewing the
claimed right of the Charging Party to be rehired, analyzing
the timing coincidences of relevant events to explore
whether inferences of antiunion motivation can properly by
drawn, and examining the various elements in the record
weighing on the existence or absence of union animus in
this case, it is my judgment that the allegation that Respon-
dent violated Section 8(a)(1) and (3) of the Act by refusing
to rehire Judy Gail Maxey in a job she previously per-
formed because of her union or concerted activities or those
of her husband, Terry Maxey, has not met the burden of
proof.
B. Threat or Coercion of Respondent's Employees
The second allegation in this case is that Respondent, by
its supervisor and agent, Ramah Terry Harrell, on or about
U It was never clarified who the "he" was in that statement, and it just
remained a vague and mystenous reference.
2 This also was a vague and mysterious statement that was never clarified.
November 7, 1978, the exact date being unknown, threat-
ened or coerced its employees at the Fulton, Mississippi,
plant by telling them that Respondent could not hire any-
one connected with Mueller Brass Company which was on
strike.
Based on the record in this proceeding, it would appear
that this allegation rests on the testimony of one witness,
Mary Loden. Loden testified that on November 7 or 8,
1978, she had asked Terry Harrell "why he hired the Hen-
drix girl with no experience, instead of hiring Judy." Loden
testified that Harrell said "he wanted to hire Judy, but said
that he won't let me hire anybody connected with Mueller
Brass." 7
Harrell testified that he had never told Loden, Judy
Maxey, or any employee at Charm Step that Charm Step
would not hire anyone connected with Mueller Brass. Judy
Maxey did not testify that she was told by Harrell or any
other Charm Step official that Respondent would not hire
any applicant connected with Mueller Brass. Moreover, no
other witness testified that Harrell had made such state-
ments about not employing Mueller Brass employees or
spouses of Mueller Brass employees. 8 Therefore. with re-
spect to this allegation there is a direct conflict in testimony
between Loden and Harell.
There are other elements in the record bearing on the
question of Charm Step's employment of Mueller Brass em-
ployees, and these uniformly support Harrell's testimony
rather than that of Loden. As related above, Williamson,
plant manager, and Cleveland, fitting department manager,
avowed in their testimony that they had no policy, or prac-
tice, or internal instructions about not hiring Mueller Brass
employees, or spouses of Mueller Brass employees. More-
over, it was evident, and so testified to, that Respondent's
employee turnover was very high. Harrell, therefore, as he
testified, didn't care whether there was a Mueller Brass con-
nection. He was "looking for bodies."
There is an indication in the record that in addition to 15
employees hired by Respondent between November 8,
1978, and February 21, 1979, to do handwork, whose em-
ployment records were put into evidence by the General
Counsel there was an additional applicant, Cathy South,
hired to do cement form, whose application stated that her
spouse was employed at Mueller Brass. This was testified to
by Harrell.2" The record indicates that South was employed
by Charm Step on December 18, 1978. There is no indica-
tion in the record that other applicants whose spouses were
employed at Mueller Brass were denied employment at
Charm Step.
In light of this record, and in consideration of the various
27 The "he" was not identified. Mrs. Loden testified that Harrell said "re-
member I didn't tell you who 'he' was."
" A Marzella Edwards, called as a witness on behalf of General Counsel,
testified that she had been an employee at Mueller Brass, had gone on strike,
and sometime in November, 1978, had worked for 2 days at Charm Step. On
the second day, she claimed, she was discharged because she had not dis-
closed in her application that she had worked for Mueller Brass. However,
on cross-examination. Marzella Edwards admitted that she had been dis-
charged because she had falsified her application. Counsel for the General
Counsel did not pursue the matter on redirect examination and made no
mention of Marzella Edward's testimony in the post-hearing brief.
9 The record indicates that Cathy South's application form was admitted
into evidence as Emp. Exh. 8(a) and (h)
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elements examined in connection with the first allegation
above, it is my conclusion that Harrell's testimony that he
did not inform employees that Respondent could not hire
anyone connected with Mueller Brass must be credited. Ac-
cordingly, the allegation that Harell threatened and coerced
its employees by telling them that Respondent could not
hire anyone connected with Mueller Brass has not been
established.
Upon the foregoing findings of fact and conclusions of
law, the entire record in this proceeding, ° and pursuant to
a0 By letter dated June 25, 1979, addressed to the presiding judge and
served on counsel for the General Counsel, attorney for Respondent pre-
sented a motion to reopen the hearing for the single purpose of admitting
into evidence the application form of Judy Maxey of March 1977. By letter
dated July 2, 1979, counsel for the General Counsel opposed Respondent's
the provisions of Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER3 '
The complaint is dismissed in its entirety.
motion and opposed the introduction of that document into evidence. Hav-
ing reviewed the record, and the nature and content of the document in
question, in light of General Counsel's objection, I hereby deny Respon-
dent's Motion and direct that the application form of Maxey of March 1977
shall be made a part of the rejected exhibits file of this proceeding.
3' 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 recommnended 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.
1244