Cumberland Shoe Co.

National Labor Relations Board - Board Decisions

Sep 23, 1966

160 N.L.R.B. 1256 (N.L.R.B. 1966)

1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ship Builders, Blacksmiths, Forgers and Helpers, Local 204, AFL-
CIO, shall notify the Regional Director for Region 20 or the Resi-
dent Attorney for Subregion 37, in writing, whether or not it will
refrain from forcing or requiring Hawaiian Dredging & Construction
Co., Ltd., by means proscribed by Section 8(b) (4) (D) of the Act,
to assign the work described in paragraph "1," supra, to members of
said Local 204, rather than to employees of Hawaiian Dredging &
Construction Co., Ltd., represented by International Association of
Machinists and Aerospace Workers, Lodge 1245, AFL-CIO.
DETERMINATION OF DISPUTE IN CASE 37-CD-10
Pursuant to Section 10(k) of the National Labor Relations Act,
as amended, and upon the basis of the foregoing findings and the
entire record in this proceeding, the National Labor Relations Board
hereby makes the following determination of this dispute:
1. Employees of Hawaiian Dredging & Construction Co., Ltd.,
represented by International Association of Machinists and Aero-
space Workers, Lodge 1245, AFL-CIO, are entitled to perform the
following work :
All millwright work and rigging work in connection therewith
performed by Hawaiian Dredging & Construction Co., Ltd., in
the State of Hawaii wherever the geographical jurisdictions of
International Association of Machinists and Aerospace Workers,
Lodge 1245, AFL-CIO, and International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and
Helpers, Local 204, AFL-CIO, coincide, excluding all nonmill-
wright rigging work and millwright work on boilers, tanks, or
vessels.
Cumberland Shoe Company and Teamsters, Chauffeurs, Helpers
and Taxicab Drivers Local 327, Affiliated With International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America . Case 26-CA-2208. September 03, 1966
DECISION AND ORDER
On June 14, 1966, Trial Examiner Marion C. Ladwig issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had enga ged in and was engaging in certain unfair labor practices
and recommending that, it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that the Respondent had
160 NLRB No. 97.
CUMBERLAND SHOE COMPANY 1257
not engaged in certain other unfair labor practices alleged in the
complaint and recommended that these allegations be dismissed.
Thereafter, the Respondent and the General Counsel filed exceptions
to the Trial Examiner's Decision with supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, cross-exceptions, briefs, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following
modifications.
Respondent operates shoe manufacturing plants in Franklin and
Chapel Hill, Tennessee. The Charging Party herein began an orga-
nizational drive at the Franklin plant sometime during the month of
September 1965,1 which continued after - the discharge of employee
Osteen on September 30. The Trial Examiner found, and we agree,
that Respondent violated Section 8(a) (3) of the Act by discharging
Osteen for his organizational activities. The Trial Examiner dis-
missed two allegations of the complaint alleging that Respondent
violated- Section 8 (a) (1) of the Act by soliciting and assisting in
employee withdrawal of union designations and by threatening plant
closure. The General Counsel has excepted to- the Trial Examiner's
failure to find these violations, and we find merit in these exceptions
'for the following, reasons:
1. In support of the allegation in the amended complaint 'that
Respondent violated Section 8(a) (1) of the Act by threatening to
close the Franklin plant if the employees selected the Union to` rep-
resent them, employee -Osteen testified that Vice President Bransford
stated on September 24, "that Chapel Hill is a' living example that
we are not going to 'tun under a union." The impact of Bransford's
remark becomes evident upon consideration of a few facts concerning
Respondent's labor policies at Chapel Hill. In October 1963, the
Board issued an order finding that Respondent had, at the Chapel
Hill plant, engaged in widespread violations of Section 8(a);(1) and
refused to bargain with another union in violation of Section 8(a) (5)
of the Act, all in January 1963, and ordered Respondent to bargain
with that union at Chapel Hill.2 The Chapel Hill plant was closed
1 Unless otherwise Indicated , all dates refer to the year 1965.
2144 NLRB 1268 , enfd. 351 F .2d 917 (C.A. 6).
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
down completely on April 1, 1964, and reopened a year later. In
January 1966, the Board found that Respondent violated Section
8(a) (5) of the Act by failing to notify the Chapel Hill union of the
plant's reopening and thereafter refusing to bargain with that union.8
The Chapel Hill plant is some 30 miles from the Franklin plant.
As a result of the 1964 closing of the Chapel Hill plant, about 40 of
those employees were transferred to the Franklin plant. Osteen testi-
fied that he worked at the Chapel Hill plant for several months in
1963, during the period when Respondent was refusing to bargain
with the union there. Bransford had been president of the Chapel
Hillplant as late as August 1964. '
While, the Board did not find that the 1964 closing of the Chapel
Hill plant was unlawful, we consider it plain that Bransford's
remark to Osteen was meant to convey, and did convey, the threat
that Respondent would refuse to bargain with any union selected by
Franklin ,employees and would close down the Franklin plant rather
than bargain. In.light of Respondent's history of unfair labor prac-
tices . at Chapel Hill, particularly well known to Bransford and
Osteen, and Osteen's subsequent unlawful discharge, we disagree with
the Trial Examiner that Bransford's serious threat is too isolated in
nature to warrant a finding that it violated Section 8 (a) (1) of the
Act. We find that Bransford's threat was unlawful.
2. As set forth by the Trial Examiner, Respondent's Vice President
Bransford addressed-Respondent's employees on-September 28, 1965,
in order to state reasons why they should not select the Union as their
representative: Soon thereafter, Bransford followed through by pre-
senting to groups of employees assembled in the plant conference
room his antiunion arguments .' Bransford testified that the following
events. (which he termed a "reaction") then took place in early Octo-
ber with respect to employee withdrawal from the Union. Several
employees and "probably" some supervisors told Bransford that they
had .been told by other employees that these other employees " desired
to get-their union cards back ." In some instances Bransford relayed
instructions to such concerned employees through the intermediary
who had spoken to him to the effect that the employee should write
to the Union., In a number of instances, however, Bransford then
talked to, the concerned employee in his office.5 Bransford had avail-
3156'14LRB 1130.
4 Three employee'witnesses testified that Bransford solicited employees to withdraw their
authorization cards from the Union at these meetings , but this testimony was discredited
by the Trial' Examiner. Accordingly, we do not consider the employee testimony, but only
that of Bransford himself. `
s Bransford ' s testimony does not indicate whose decision it was for employees interested
in withdrawing from the Union to come to his office, and we do not assume that Bransford
instructed such employees to come to his office.
CUMBERLAND SHOE COMPANY 1259
able in his office samples of letters requesting withdrawal from the
Union, and such samples were copied by employees in his office.
Bransford would then photocopy the employee's letter, place a copy
in the employee's personnel folder, and inform the employee of this
fact. Bransford would then have the employee place his withdrawal
letter in an envelope, supply the address for the employee, have the
employee place a stamp on the envelope or do so himself, and then
mail the employee's letter.
The Trial Examiner found' that the General Counsel failed to
establish that the decisions by employees to withdraw from the Union
were not of their own free will or that Bransford's assistance was
more than a mere ministerial act. We accept the former finding
insofar as it relates to the initial expression by the employees
involved of an interest in withdrawing from the Union, as these
expressions flowed, according to. credited testimony, from lawful
antiunion speeches rather than from express solicitations to withdraw
from the Union. Our disagreement with the Trial Examiner is that
we do not view Bransford's assistance to employees in withdrawing
from the Union as "ministerial acts." That term implies that Brans-
lord was legally obligated to do what he did-under the circumstances
and that no judgment,on his part was involved as to the propriety of
the conduct. Quite the contrary is true here. Bransford testified that
when he first learned of employee interest in withdrawing from the
Union, he contacted his counsel who informed him "to stay out of it"
or simply tell people who came to hint to write to the Union. We
think that Respondent violated Section 8(a) (1) when Bransford
went beyond his legal' advice and assisted employees to the consid-
erable extent that he did in attempting to withdraw from the Union.6
Once an employee entered Bransford's office, Bransford literally took
command of the situation and shepherded the employee through the
process of drafting and mailing the withdrawal letter, and then
informing the employee that a copy of the letter would be kept in
his personnel file. Inherent in the situation was, in our view, an influ-
ence exerted by Bransford upon such employees to complete the
process of withdrawing from the ' Union which interfered with the
rights of the employees not to do so if, at any point, they chose not
to complete the process. I
AMENDED CON CLUSIONS OF LAW
Paragraph 2 of the Trial Examiner 's Conclusions of'Law is deleted
and the following conclusions of law is substituted therefor:
6 Really Tar & Chemical Corporation, 151 NLRB 1503, 1507-08, 1510.
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"2. The Company violated Section 8 (a) (1) of the Act by assisting
employees in the withdrawal of union designations and by threaten-
ing to close plant."
THE REMEDY
Having found that Respondent engaged in conduct in violation of
Section 8(a) (1) of the Act by assisting in the withdrawal of union
designations and by threatening to close the plant, we shall order that
it cease and desist from such unlawful conduct and post the usual
notices. We adopt the Trial Examiner's Recommended Order as to
the 8(a)(3) violation.
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Add the following as paragraphs 1(a) and 1(b) and reletter
the subsequent paragraphs in sequence:
["(a) Assisting employee withdrawal from Teamsters, Chauffeurs,
Helpers and Taxicab Drivers Local 327, or any other labor organiza-
tion."
[" (b) Threatening employees with plant closure should they choose
to be represented by Teamsters, Chauffeurs, Helpers and Taxicab
Drivers Local 327, or any other labor organization."
[2. Add the following as the first and second full paragraphs to
the notice attached to the Trial Examiner' s Decision :
[AVE WILL NOT assist our employees in withdrawing their
membership from Teamsters, Chauffeurs, Helpers and Taxicab
Drivers Local 327, or any other labor organization.
[WE WILL NOT threaten our employees with plant closure
should they choose to be represented by Teamsters, Chauffeurs,
Helpers and Taxicab Drivers, Local 327, or any other labor
organization.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This ;proceeding , heard before Trial Examiner Marion C . Ladwig at Franklin,
Tennessee , on February 24 and April 12 and 13 , 1966, pursuant to a charge filed
by the Union (Teamsters , Chauffeurs , Helpers and Taxicab Drivers Local 327) on
October 4 and a complaint issued on November 12, 1965,1 and amended on Jan-
uary 11 , 1966, involves primarily the issues (a) whether the Respondent (also
called the Company) discharged an employee because of a 29 -cent discrepancy in
his production report or because of his union activities ; (b) whether it solicited its
employees to withdraw their designation of the Union and assisted them in doing
so; and (c) whether it threatened an employee with plant closure if the employees
selected the Union.
i Unless otherwise indicated , all dates refer to the year 1965.
CUMBERLAND SHOE COMPANY 1261
Upon the entire record, including my observation of the demeanor of the wit-
nesses, and after due consideration of the briefs filed by the General Counsel and
the Company, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED
The Company is a Tennessee corporation, which is engaged in the manufacture
of shoes in Franklin and Chapel Hill, Tennessee, where it purchases and receives
goods valued in excess of $50,000 directly from points located outside that State.
The Company admits, and I find, that it is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act. The Union is a labor organization within
the meaning of the Act. -
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Discharge of John Ray Osteen
1. Background
On September 7, the Company instituted, at the cost of about $3 ,000 a new
coupon system to account for the individual production of employees working on
incentive jobs. Under the old system, the employees would write on daily production
sheets the separate numbers of the cases of shoes they worked on during the day.
This had been considered a suitable procedure when the Company was small, but
as the Company grew, it suspected large-scale production padding, estimated to be
between $500 and $600 a week during the month of August.
Under the new system, each incentive employee would have to document his
individual production by detaching numbered coupons, and turning them in at the
end of the day. On September 7, the new system was used on all shoes being cut
(in the first operation) from that day on. Shoes already in production continued
to be run under the old system. By, the week of September 29, almost all of these
noncoupon shoes had been finished, and only about 5 percent of the production
was under the old system. The weekly estimates of the production padding had
dropped to $50 or $100.
2. Osteen's union activities
In the meantime, there had been employee complaints about the incentive rates
being paid on a new style shoe. This matter was discussed in departmental meet-
ings held by Executive Vice President John S. Bransford, Jr., early in September.
On Friday, September 24 (as claimed by dischargee Osteen), or Monday, Septem-
ber 27 (as claimed by Bransford), Osteen went on his own to talk to Bransford.
According to Osteen's credited and undenied testimony, he tried to get Bransford
to raise the units (or piece rate) on the new style shoes, telling him "I didn't like
our units being cut, that we couldn't make near as much money as we had been
making." Bransford answered that the Company was paying all it could. Osteen
said, "Well, there is a whole lot of unhappy people up in the sidelasting" (Osteen's
job in the lasting department), and "I'm one of them . . . . I wouldn't be surprised
if there is not a union move put on," or that he had "heard talk that someone has
gone to contact the union." Later in the conversation, Osteen said, "I never have
worked for a union . . . . I worked against it twice ...... Bransford responded,
"I know that . . . . You can help best by talking to people and trying to talk it
down."
Notwithstanding this conversation, on Tuesday morning, September 28, Osteen
began an active campaign on behalf of the Union. He first signed a card himself,
and then, getting 20 or 25 cards from another employee, "I . . . went to the front
end and tried to get everybody to sign one I could"-being sure that he did so
outside the view of any supervisor. He handed out about 15 cards between then
and the time he was discharged on Thursday, 2 days later. He was successful in
getting several cards signed that first day, but not everybody who took a card
signed it. One of his friends, employee Davis Wright, "ripped one up in my face,"
and threw it down. He offered one to employee Douglas Spears, who "refused it
and walked on off toward the back shoe table where [Foreman] Nix was and I seen
them talking and Mr. Nix looked toward me and I just kept a working . . . .
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Spears, who was called by the Company as a rebuttal witness, testified that Osteen
gave him the card, that he refused to sign it, and that he did not tell Foreman Nix
or any other supervisor about the conversation with Osteen. Because of Spears'
demeanor on the stand, and because of some of his other testimony, discussed below,
I find Spears to be an unreliable witness.)
3. Company's actions before the discharge
About 1:30 that Tuesday afternoon, September 28, Vice President Bransford
called a meeting of all the employees on the loading dock. According to Osteen's
credited and undenied testimony: "Mr. Bransford spoke, and he had an application
to the Teamsters union card in his hand, and he held it out, and said, `Perhaps
some of you have been asked to sign these.' " Branford then talked against the
Union for a few minutes, and told the employees to return to work.
What happened between that time and the time of the discharge on the second
morning thereafter, was recounted solely by Vice President Bransford, the only
company supervisor who testified.
According to Bransford, on Wednesday morning, September 29, he instructed
Foreman Nix and one or more other foremen to check on the few old-system
production records turned in that day by employees on certain jobs. Out of the
"500 and something jobs," Bransford instructed Nix to check the records of the
five sidelasters (Osteen's job) in Nix' lasting department, and another foreman or
foremen to check the records of an undisclosed number of employees working on
two or three other jobs in other departments . (The record is not entirely clear about
these other checks, as discussed later. ) That evening , after the employees had gone
home, Bransford was in Plant Superintendent Lee R . Green's office , when Green
and Foreman Nix came in. Nix stated that he had checked the sidelasters ' produc-
tion sheets and had found that Osteen had reported working on a case number
(9250) which had not been in that department that day.
Thereupon , Vice President Bransford began to investigate , to determine whether
or not in fact Osteen had worked on case 9250 that day, and if not, to determine
when that case number had been in production . (According to a remark he later
made to Osteen , Bransford spent 2 or 3 hours that evening doing so.) Bransford
described how he waited for a report from Foreman Yates (or from "foremen," as
Bransford testified at one place ), on whether discrepancies had been found in other
departments . Getting a negative report, he then checked the records in Nix' depart-
ment to verify Nix' findings that that case number had not cleared that department
that day, and ordered an inventory to be taken of the unfinished shoes in the room:
"I had the room staked off, figuratively speaking , everything in that room, and
inventory taken . . . . This inventory was performed and counted twice by Mr.
Charles Nix , the . room . supervisor, and by the utility operator, Sam
White." Not finding shoes with that case number, they then proceeded to check
the reports of the packing room (the last operation in the plant before shipment
of the shoes) throughout the month of September. They found that case 9250 had
been run and packed on September 10. Next, "I started to checking to see when it
had cleared the fitting room. We found it had cleared the fitting room, I believe
on September the 9th, and, then, we proceeded to look back through the sidelasters
records and we found that a Mr. Joe Waddell, who is still a sidelaster in that plant,
had recorded case 9250 as having been run on September the 9th .. .... ThP
Company introduced into evidence the records substantiating these findings.
Between that evening and 9 o'clock the following morning , the Company typed
a one-page document the first part of which was signed by Foreman Nix and Utility
Operator White, and the second part, by Plant Superintendent Green and Personnel
Manager Eve. The second part concluded:
Since this case was packed Sept . 10th and the side lasting was proven to be
performed by another operator other than Ray Osteen, we cannot but claim
that Ray Osteen has falsified his production sheet of Sept. 29th. This was
done for the purpose of receiving undue pay and constitutes stealing.
4. The discharge
About 9 a.m. on September 30, Foreman Nix and Utility Operator White went
to Osteen's machine and told him he was wanted in the office . The three of them
went to the office and met with Plant Superintendent Green and Personnel Manager
Eve. Acording to the credited testimony by Osteen (the only person who testified
CUMBERLAND SHOE COMPANY 1263
about the conference ), Green had the above -mentioned document in his hand and
said, "Ray, you stole some money." Osteen said , "No, sir, I haven't stolen any-
thing." Green responded , "We just can't put up with it, Ray." Osteen repeated, "I
hadn't stole anything , not consciously ." Then Personnel Manager Eve stated , "Well,
we just can't put up with it, Ray." In the discussion that followed , Osteen denied
stealing case 9250 , and said , "Well, Mr. Eve, as far as I am concerned 29 cents
doesn 't mean that much to me . . . Just do away with the number ." Eve again
stated, "No , we can't have it," and picked up and handed him the investigation
report to sign . Osteen read part of it and said he could not sign it; whereupon Eve
stated "that they were going to have to let me go, that they couldn 't have that."
Osteen turned in his pliers and went immediately to Vice President Bransford's
office. Upon getting permission to talk to Bransford , Osteen ( according to his testi-
mony ) "told him , I said, `Boy, you know what they are trying to do to me.' I said,
`Framing up on me,' and he looked at me and he said , `Ray,' he said , `the union
hasn 't got anything to do with it.' He said , `I stayed down here'-I believe two or
three hours-'the night before making sure that he was doing,' and he said , `There is
nothing I can do for you, Ray,' and he said, `I am sorry.' He said , `You have got a
recourse on this if you want it,' and I said `What's that ,' and he says , `You can file
it with the National Labor Board,' . .." (Bransford did not deny mentioning the
Union in this conversation . When he testified earlier, under Rule 43(b) as the first
witness, he admitted telling Osteen after the discharge "that if he felt that he had
not been properly treated that he definitely should go to the Labor Board , because
the Labor Board was there to make sure that everybody was, but that in my opin-
ion he had been more than fairly treated ." I credit both this and Osteen's more
detailed account of the conversation.)
5. Slippers or boots
There was apparently an unexpected development at the hearing. When Osteen
testified that he had in fact run case 9250 , he stated that the shoes he ran were slip-
pers. However, the Company 's records show that case 9250 were boots.
Referring to the slippers , Osteen conceded that he had not run them on Septem-
ber 29, when he reported case 9250 on his daily production sheet. He testified that
2 or 3 days earlier, he had one case of shoes to come through under the old system.
According to him, it was late in the day, after "I already had my time made, so I
wrote the number down on the time pad and left it on my machine." Then on Sep-
tember 29 , another case came through under the old system. After finishing the sec-
ond case, he wrote it down on his daily production sheet for that day, and took the
earlier case number ( 9250 ) off the pad and added it to the sheet . When asked "Why
hadn't you turned the other one in before?", he answered "Because it was worth 29
cents. I had my time made up for the day and I didn 't want to fill out a time sheet
on it and put one time pad here with the other, so I left it on my machine until I
got something to go with it." Later on cross-examination, Osteen explained that
there was only one case under the old system when he ran case 9250 , that he did not
need the number to make his time that day, "and I was ready to go home ." He also
testified that if he had turned in this first case on the day it was run , he would have
been paid 29 cents more for that day 's work. He was positive that he ran the case
of slippers , and that he was not stealing.
One thing is certain . The Company 's records show that he did not run a case of
boots numbered 9250 . However, from his demeanor on the stand , I credit his testi-
mony that he did run the case of slippers . I therefore find that he was in error in
reporting the number on this case which he ran , but that he had no intention of
padding his production record or stealing.
Yet, the issue still remains whether the Company discharged him because of the
discrepancy , or because of his union activities.
6. When foremen instructed to check records
There was much testimony by Vice President Bransford at the hearing about
whether he gave instruction on or about September 7 to the foremen generally
concerning checking for discrepancies thereafter in the employees' production records
under the old system, or whether the instructions were given only to two or more
particular foremen on September 29 (after Bransfords ' antiunion speech on the dock)
to check specifically on the sidelasting ( Osteen 's) job and two or three other jobs.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In his 16-page prehearing affidavit , given in the presence of counsel , Bransford
had stated:
About Sept . 7, the company began a system of running cases under the
coupon system rather than tickets. When we started the changeover , the fore-
men were told to be especially careful of employees putting down fraudulent
case numbers [under the old system]. We have always been aware of this
problem and checked as best we could but the changeover made it easier
because of the limited number of tickets employees were running [ under the
old system].
Early in the hearing , Bransford was asked how many discrepancies had been
reported to him after the September 7 instructions . He answered only Osteen's
discrepancy . Then he explained that "on that particular day," he asked that four
different jobs, including sidelasting , be checked out. Thereupon he was asked:
Q. Wait a minute. Let me see if I have got your testimony right . You are
saying now that in addition to these instructions you gave on September the
7th, you came back on September 29th and told them to be on a special look-
out for side lasting?
A. I must have the wrong date mixed up in there. I am thinking about Sep-
tember the 28th or 29th, whatever date that Osteen was involved.
There was no possibility on September the 7th , absolutely none. It would
have been ridiculous for me to talk about checking all the operations in 500
and something jobs, because it would have taken , in my estimation 75 to 100
full-time personnel to be able to do such a thing .
Q. So, you actually did not instruct people on September the 7th?
A. No, sir, I am sorry. I made a mistake on the date there . [ Emphasis
supplied.]
Late in the hearing, Bransford again stated that about September 7 he told the
foremen that "it would become increasingly relatively easy to spot any rank offend-
ers," and that he expected them to be especially careful of employees putting down
fraudulent case numbers . In so testifying , he appeared to be attempting to reconcile
his testimony with his affidavit , regardless of what actually happened . His credibility
became further dubious when he added ( so testifying for the first time) that "I also
cautioned certain foremen that certain jobs in certain rooms had been regularly out
of balance ," naming the "sidelasting line, . the heel punching and the edge
trimming." I find that if on or about September 7, Bransford had in fact cautioned
Nix or other foremen about the side lasters specifically , Bransford would not have
failed to mention it earlier in the hearing.
Thereafter, Bransford appeared to be reluctant to admit that he gave the check-
ing instructions for only one day:
Q. Now, you have testified that you instructed your foreman on the 28th
or 29th to be especially careful?
A. Yes, and several days after that.
* * 8- F a *
Q. (By Mr . ROBERTSON. ) Now, Mr. Bransford , how long did this check
of the sidelasters and other departments for repeats in numbers , how long did
this continue past September the 28th?
A. It didn't continue at all to speak of . .
Q. You are testifying then , that this check lasted for one day?
A. I am not testifying any such thing. I am telling you that I am not
thoroughly familiar with what days-it has been a good while ago . .
Q. You don 't know whether it lasted for several weeks or months?
A. I don't know how long it continued , or whether it was the day before,
or the day after, or what it happened to be. . . . ( Emphasis supplied.)
The Company's counsel questioned Bransford further about the checking
instructions:
Mr. SMITH: Now , Mr. Bransford , as far as September 27th , or, thereabouts,
instructions to supervisors about checking operators, what , if any, instructions
did you give to what , if any supervisors?
The WrrNESS : Mr. Examiner, at that point there were so very few cases
that did not have the coupons on them , in other words, automatically check-
able types in there. The type that had to be written down , there were very
CUMBERLAND SHOE COMPANY 1265
few of that type. It had become noticeable that there was a scarcity of them
in the plant, and at that point I got with the superintendent and I said, "You
know this would be a good time to check everybody that we can possibly
check in a short period of time. Let's pick some key jobs." I said, "Let's hit
the side lasting, the laster in the Goodyear stitching, in the welt room, the
edge trimmers in the making room," and there may have been something
else, but I know I remember those three, and they checked those three jobs
and at this particular time-
TRIAL EXAMINER: For how many days?
The WITNESS: For one day .. . .
TRIAL EXAMINER: I thought you testified a little earlier that the foremen
checked for several days. Was that your testimony or not?
The WITNESS: If it is, I certainly didn't mean to put it that way. It probably
was an unfortunate choice of words. This was the only day we specifically
checked those jobs. Now, they may have checked some other jobs in other
departments on other days, but no-nothing came up ... .
He appeared to be grasping for a plausible explanation, rather than endeavoring
to make a full disclosure of the facts.
None of the foremen were called to testify.
7. Motivation for giving instructions
The General Counsel stated at the hearing: "We are contending that this check
was conducted solely to get rid of Ray Osteen." Although this question of motiva-
tion for having the selected jobs checked on the particular occasion was repeatedly
raised at the hearing, the Company does not discuss the point in its brief.
Vice President Bransford gave varying accounts of the circumstances. At one
point, he testified (as quoted above) that there were very few old-system shoes
in production, and he commented to the superintendent: "You know that would
be a good time to check everybody that we can possibly check in a short period
of time. Let's pick some key jobs." According this version, he then selected the
sidelasting job, and two other jobs in the welt and making departments, "and
there may have been something else."
Shortly thereafter, he gave different reasons, when asked why he decided to
check on that particular day. The first part of his following answer, about "flagrant
audacity," is apparently mere argumentation and an afterthought (when considered
with his later testimony that he then estimated production padding to amount to
$50 to $100 a week). And from his demeanor on the stand, I find that he was
merely fabricating a defense when he continued his answer, beginning with the
words, "Now, frankly." His answer was.
The WITNESS: .... I believe that we were talking, the foremen, or the
superintendent and myself, and we decided that it was so simple a matter and
anybody who had the flagrant audacity, if you will pardon my opinion there,
to falsify something on a date this late in the game after they had been
warned, would absolutely just be in the whole cloth manufacturing falsely
work that they had produced, and I thought that these particular jobs ought
to be checked.
Now, frankly, the reason that we checked those particular jobs is we had
reason in the past that those particular lines of jobs had not reconciled with
what we knew to have gone through the room.
Now, we couldn't prove before where this had been occurring, because
it would have required, again, a great many more than three girls forty hours
a week to do just one production line.
TRIAL EXAMINER: So you decided not to wait until the new system cor-
rected this situation, but to try to catch those who had been falsifying under
the old system; is that what you were trying to do?
The WITNESS: No, we were just trying to make sure that-we wanted to
find out if our records not being reconciled in the past had been due to some-
thing we didn't understand or whether or not they had been stealing, and if
either case had occurred, we thought it would show up when we had so rela-
tively few cases to check on.
257-551-67-vol. 16 0- 81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Does that answer it?
Tiu.&i. ExAMINER : Were you trying to catch people that you suspected had
been falsifying records?
The WrrNESS : No, sir, we were trying to reconcile our records and find
out why we had not been coming out on our labor costs , which I explained
to all of the employees on production previously.
It is quite difficult for me to reconcile this testimony with Bransford's later
testimony that his estimates of the amount of stealing were $500 or $600 a week
in August, and that the Company had instituted the coupon system at an initial
cost of $3,000 believing that this cost would be offset by the saving on the amount
of stealing.2
Other aspects of Bransford's testimony also give support to the General Coun-
sel's contention that the September 29 check was conducted with Osteen in mind.
There is considerable confusion in Bransford's testimony about the other check-
ing which was purportedly done on September 29. He first testified that on that
date, he "asked the stitching line, the rough rounding line, the edge trimming line,
and the side lasting line be checked out." This testimony indicated four different
type jobs, to be checked by Foreman Nix (side lasters), and by "other foremen"
(the three other type jobs). The next time, Bransford named "those three jobs"
which were checked: (1) "sidelasting" in Nix's lasting department; (2) "the Good-
year stitching, in the welt room"; and (3) "the edge trimmers in the making
room." He added that "there may have been something else, but I know I remem-
ber those three, they checked those three jobs . I presume that . . . they
went out into the rooms and checked these particular jobs . . ." [Emphasis sup-
plied.] Shortly thereafter, he repeated the three departments involved: lasting,
welt, and making.
Later however, he indicated that there were only two foremen who did the
checking: Nix in the lasting department, and William Yates in the two other
departments, welt and making. Bransford further pointed out that Yates "had
posted . a bulletin board going in and out of his two departments" and had
listed "what particular numbers . . . clearing there." Bransford stated that "This
was frankly a hollow bluff, because [Yates] knew that he didn't have the .. .
time . . . to sit down and check every job, but this was only to let the employees
who had been guilty of this particular offense realize that he was checking .. .
I say, somewhat of a bluff, because he did not have the time to, working the
average of 10 and 12 hours, at least during that period." The Company did not
offer any evidence concerning the extent of Yates' check on September 29 .3
Other support of the General Counsel's contention that the Company was
endeavoring to find a justification for discharging Osteen is found in Bransford's
testimony when he was asked to name the foreman or foremen he specifically
remembered talking to about checking records. He named only "Charles Nix,"
the foreman over Osteen and the other four sidelasters . He then gave as the
reason for mentioning it to him on September 29: "we were still coming up with
some . irreconcilable figures, on particular jobs such as sidelasting , edge trim-
ming, heel burnishing and Goodyear stitching." 4 Nowhere does Bransford con-
tend that a check was made of the "heel burnishing."
8. Prior discharges
Whereas the General Counsel argues disparate treatment, the Company con-
tends in its brief that "the Record is replete with evidence that other employees
have been terminated previously for the same offense , and that Osteen was in no
a Because of this admission that the Company estimated such a large amount of pro-
duction padding existed under the old system, I find it unnecessary to rely on the General
Counsel's evidence that company records revealed many duplications in case numbers re-
ported on daily production sheets after September 7, or to comment on the Company's
contention that individual duplications might be explained in various ways.
S The Company's motion was granted to quash the trial subpena issued at the request of
the General Counsel for the production by the Company of the records in these other
departments.
6 This testimony was given near the close of the hearing, shortly after Bransford con-
tended for the first time that about September 7, he cautioned ceitain foremen that cer-
tain jobs (side lasting, heel punching, and edge trimming) had been regularly out of
balance. Bransford gave me the impression on the stand of attempting to build the
Company's defenses as he went , and adjusting the facts accordingly.
CUMBERLAND SHOE COMPANY 1267
way treated differently from others who have been caught in stealing through the
process of padding production records." Similarly, Vice President Bransford con-
tended at the hearing that "there are also other discharges of almost an exact
nature as this one."
A review of the personnel records cited by the Company as showing previous
terminations for the same offense reveal the following:
(a) There had been only one discharge for padding of production records in
more than 3 years preceding Osteen's discharge. That case, described by Bransford
as "extremely flagrant," was one in which the employee was discharged on June 4,
1965, for "duplicating case numbers," after an investigation showed repeated dis-
crepancies. The investigation covered her production records from May 27, 1965,
when she returned to work after an absence of several weeks because of a purported
industrial injury involving a "slipped disc" back injury. Her foreman "began to get
an excessive amount" of work reported in this employee's production line, and made
the detailed check, finding four separate duplications of numbers, two on May 27,
one on June 2, and one on June 3.
(b) The last previous such discharge was on June 28, 1962. The employee's
personnel record stated as the reasons for discharge: "Second time was warned
about claiming case numbers not run-could not get along with fellow workers."
The explanation stated on the employee's separation notice read: "Voluntarily
quit due to working conditions made her nervous. Doctor's orders."
(c) An employee was rehired about 6 months later after being discharged on
February 14, 1961, for the reason, "Claiming piece work pay that she did not
earn. Previously warned by Superintendent."
(d) Another employee was rehired a year later after being "laid off" on
July 30, 1959, for "claiming case numbers he did not run"; and discharged on
January 13, 1961, because he "refused to sign a card which foreman filled out
indicating inaccurate reporting of production. He and another employee were
actually doing work together but this person took credit for entire time, was
warned regarding turning in time not actually earned day before."
(e) Two employees, each of whom was given two warning notices the previous
month about the quality of his work, were both discharged on April 8, 1960,
because each was "putting down duplicate case numbers and claiming case num-
bers he did not run."
None of this documentary evidence indicates that the Company has ever dis-
charged an employee for a single discrepancy.
9. Prior warnings
Vice President Bransford testified that as far as he knew , Osteen had been a
good employee, and that he could not recall Osteen ever being suspected before
of padding production numbers. (Osteen credibly testified that he had never been
approached or questioned about padding his production records.)
However, the Company in its brief contends that the employees had been warned
previously about stealing, and Bransford gave as the only reasons for the dis-
charge, "the flagrancy" of the one falsification "and the fact that everybody had
been warned ." Upon reviewing all the evidence on the matter, I am convinced
that the employees were not told that the Company would be checking the old-
system production records, nor warned of discharge if they padded records sub-
mitted under the old system.
In support of its contention that the employees had been warned about steal-
ing, the Company cites the testimony of Osteen , concerning what the employees
were told in departmental meetings about the time of the changeover to the coupon
system . Osteen testified that the only mention of "being warned as you might
say," was in those meetings when Bransford "just said that this [new coupon system]
would cut down on pilfering, or, in other words, swiping from the company, padding
the time." Osteen related further what Bransford told the employees:
Well, he just explained the new system; in other words, how easy it would
be, and that there was no way for a person to pilfer or swipe time in any
sense . . . . But he said that there was some out there that figured their time
like they wanted to, and . I thought he was talking about a co-worker
that worked on down the line, . . . because this boy was a good friend of
mine, and he was constantly being informed of this on shoes that weren't
heeled. See the numbers on shoes that he didn't even heel, they had been put
down and turned in, and that was a common practice, and the foreman
knew it, . . . because they . . . had stopped him from doing this .. .
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bransford did not specifically deny this testimony, except that he testified that he
did not use the word "pilfer."
Bransford gave varying accounts about what was said at these departmental
meetings, and gave me the impression that he was trying to imply a warning
concerning future padding of old-system records when no such warning was given.
He first testified, when called by the General Counsel:
The WITNESS: . I had called them in and I told them that we had
encountered losses based on labor costs being too high. We felt that it was
impossible for us to check on the old system, absolutely impossible .. .
and, therefore, we were going on the coupons, and that we were going to
serve notice that we were going to be checking and that the coupon system
was going to eliminate any fraudulent or falsification of the records, and we
were sorry we had to do it, but we were going to do it.
When called as a defense witness, Bransford used the words, "we were serving
warning on each and every employee," as follows:
. we called them in and talked to them about the situation of coupons
replacing the daily tally sheet. Now, at that time we explained that we were
fully aware of the fact that there had been undue amounts of wholesale
misrepresentation of case numbers that had been turned in on tally sheets,
and that we did not intend at that time to commence going backwards and
start trying to uncover any such situation that might have existed before, how-
ever that we were serving warning on each and every employee-this . . .
brought forth . . . a great deal of laughter or sniggering, at the very least,
with the mention of having previously misrepresented case numbers being
brought up.
Now, after this we told them that we would not tolerate it, and that we
knew it had gone on, and that this whole system was coming in because of
this situation, . and they were instructed not to have any part of it in
the future, and that we would be checking as this one system came in and
the other one tailed out.
Three other witnesses were questioned about this matter. I cannot credit Gen-
eral Counsel's witness employee Scott, who testified that nothing was said about
turning in false numbers. Neither can I credit two defense witnesses. One of
them was employee Spears, who testified that Bransford told the employees "if
he caught anybody saving the tickets, or anything like that, you know, they would
be fired, or something like that, it was somewhere like that." Spears appeared not
to have any actual recollection of what Bransford said. Also, there is a serious doubt
that Spears was even present at such a meeting. He was not on incentive work,
and therefore would have no reason for attending a meeting which dealt with
incentive pay. Furthermore, Bransford made clear, at three different points in
his testimony, that only production (or incentive) employees attended. I find
Spears' testimony to be unreliable. The other defense witness, employee Joe
Wright, gave conflicting testimony on cross-examination and appeared, when giving
rather confused testimony on this point, to be endeavoring to testify to please the
Company, rather than to confine his testimony to his actual recollections.
10. Concluding findings
In agreement with the General Counsel, I find that the Company ordered the
check to be made on September 29 of the old-system production records submit-
ted by Osteen and four other side lasters, and by employees in perhaps two other
type jobs, for the specific purpose of finding an excuse to discharge Osteen for
his union activities. I also find that the Company made the exhaustive documen-
tation of the 29-cent discrepancy during the evening of September 29, not for
the purpose of determining whether the discrepancy was inadvertent or intentional,
but for the purpose of justifying a discriminatory discharge. I further find that the
Company seized on the small discrepancy as a mere pretext for discharging
Osteen, and that he would not have been discharged in the absence of a dis-
criminatory motivation.
The Company contends in its brief that there is no evidence which indicates
that the Company was "even remotely aware that this man was in any way inter-
ested in the Union." To the contrary, I find for the following reasons, and from
the record as a whole, that the Company had knowledge of his union activities:
(a) Vice President Bransford 's mentioning the Union , stating that "the union
CUMBERLAND SHOE COMPANY 1269
hasn't got anything to do with it," when Osteen complained to him after the dis-
charge that Osteen was being framed; (b) Osteen's solicitation of signatures on
union cards in the plant, beginning on the morning of September 28; (c) the tim-
ing of the events: Bransford 's antiunion speech later that day (when Bransford
held up and showed the employees one of the union cards ), Bransford 's order for
the 1-day check of records the following morning, and Osteen's discharge on the
second morning; (d) the overnight investigation and execution of the document
which stated that Osteen was guilty of stealing, without having afforded him an
opportunity to explain the circumstances and without making any investigation to
determine if there was an inadvertent error in copying the number ; (e) Brans-
ford's shifting and unconvincing explanations for ordering the check of records at
that particular time; (f) Bransford's conflicting testimony and his demeanor on
the stand when testifying about the timing, the reasons for, and the nature and
circumstances of his checking instructions ; (g) employee Spears talking to Fore-
man Nix ( and Nix looking at Osteen ) immediately after Osteen solicited Spears'
signature on a card ; (h) the credibility finding that Spears, who denied telling
Nix about Osteen 's solicitation , was an unreliable witness; ( i) the pretextual nature
of the reasons assigned for making the discharge ; and (j) the disparate treatment
of Osteen, discharging him for a single discrepancy without prior personal warn-
ing or warning of any kind , contrary to its previous practice . Under well-established
Board and court precedent , company knowledge may be shown by circumstantial
evidence. Wiese Plow Welding Co., 123 NLRB 616, 617-618 (1959).
B. Soliciting withdrawals from the Union
Vice President Bransford was the General Counsel's principal witness to prove
that the Company solicited employees to withdraw from the Union and assisted
them in writing and mailing letters asking for the return of their union author-
ization cards.
Bransford admitted that after he held the September 28 meeting with all the
employees on the loading dock, he held a series of small group meetings in the
conference room, at which he gave his reasons for opposing the Union . However,
he denied that anything was said in any of these meetings about the employees
seeking the return of the union cards they h_ ad signed . He contended this matter
arose as a "reaction" a few days later, when certain employees and probably some
supervisors came to him , stating that different employees wanted to know how
to get their union cards back. He thereafter sent word to the employees, and told
some of them in person when they came to his office , that the Company was not
soliciting their withdrawals , and that it must be done absolutely on their own free
will, but if they wanted their cards back, they could write directly to the Union,
requesting them back. When they wanted to know how they could go about writ-
ing such letters, he furnished the writing paper, the Union's address , and sample
letters which they could copy. After the employees wrote the letters , Bransford
would have a photostatic copy made of each, informed the employees that he
was putting the copies in their personnel files where they would be available at
any time, furnished envelopes and also stamps .if the employees did not have any,
and personally mailed the letters himself.
The General Counsel presented three witnesses to discredit Bransford 's testi-
mony, but I find their testimony to be less than satisfactory . Employee Beard
seemed uncertain when he testified that the "best I can remember," Bransford
said in the conference room meeting that if anybody wanted their cards back,
"they could write a letter and he would help them to do so, to get their cards
back, or to annul them ." He could not remember if this statement was made dur-
ing Bransford 's speech, or in answer to a question afterward . Employee Scott
also was uncertain about when the statement was made , testifying that the "best
I can remember," the question came up at the meeting about getting some cards
back. (Scott was the same witness who could not remember anything being said
about employees turning in false numbers in the early September meeting.)
Likewise , employee Sweeney's memory was hazy, not remembering if the com-
ment about union cards was in response to a question . I cannot credit this testi-
mony that Bransford solicited employees at the group meetings to repudiate the
Union.
Although my evaluation of Bransford 's testimony on this matter raises consid-
erable doubt , I find that the General Counsel has failed to establish that the
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees ' decision to withdraw their union designations was not of their own
free will , independent of employer solicitation, and has failed to establish that
the Bransford 's assistance was more than a mere ministerial act.
C. Threat to close the plant
The only evidence of a threat to close the plant was the testimony of dischargee
Osteen that in his conversation with Vice President Bransford on September 24,
after Osteen mentioned the advent of the Union , Bransford said , "Well, Ray, I am
sorry to hear this ," that "Chapel Hill is a living example that we are not going
to run under a union."
Although Bransford denied making the statement, I have no doubt that he did
so. However, I find that this one statement was of such an isolated nature that it
is insufficient to constitute a separate violation of the Act.
CONCLUSIONS OF LAW
1. By discharging John Ray Osteen on September 30, 1965, because of his activ-
ity on behalf of the Union, the Company engaged in an unfair labor practice
affecting commerce within the meaning of Sections 8(a)(3) and (1) and 2(6)
and (7) of the Act.
2. The Company did not violate Section 8(a)(1) by soliciting the withdrawal of
union designations nor by threatening to close the plant.
THE REMEDY
I shall recommend that the Company cease and desist from the unfair labor
practices found and from like or related invasions of its employees' Section 7
rights, that it reinstate Osteen with backpay computed according to the formulae
set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716, and that it post appropriate notices.
Accordingly, on the basis of the foregoing findings and conclusions, and on the
entire record, I recommend pursuant to Section 10(c) of the Act, issuance of the
following:
ORDER
Respondent, Cumberland Shoe Company, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any employee because of
his membership in or his activities on behalf of Teamsters, Chauffeurs, Helpers
and Taxicab Drivers Local 327, or any other labor organization.
(b) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Offer John Ray Osteen full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority and other rights and privi-
leges, and make him whole in the manner set forth in "The Remedy" section of
this Decision.
(b) Notify John Ray Osteen if he is serving in the Armed Forces of the United
States of his right to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board, or its agents, for
examination and copying, all payroll records, social security payment records,
timecards, personnel records and reports, and all records necessary to analyze the
amount of backpay due under the terms of this Recommended Order.
(d) Post at its plant in Franklin, Tennessee, copies of the attached notice marked
"Appendix." 5 Copies of such notice to be furnished by the Regional Director for
5In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for "a Recommended Order of a Trial Examiner"
in the notice In the further event that the Board's Order is enforced by a decree of a
United States Couit of Appeals, the words "a Decree of the United States Court of Appeals
Enfoicing" shall be inserted immediately preceding "a Decision and Order"
MASTERS SPORTING GOODS 1271
Region 26, after being duly signed by an authorized representative of the Respond-
ent, shall be posted immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 26, in writing, within 20 days from
the date of the receipt of this Decision, what steps the Respondent has taken to
comply herewith.6
IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations
of the Act not specifically found herein.
6In the event that this Recommended Order is adopted by the Board, this provision shall
be modified to read : "Notify said Regional Director, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL offer John Ray Osteen his former job and pay him for wages he
lost since September 30, 1965.
WE WILL NOT discharge or discriminate against employees, or interfere with
them in any similar way, because of their union activity.
All our employees have the right to join and assist Teamsters, Chauffeurs, Helpers
and Taxicab Drivers Local 327, or any other union.
CUMBERLAND SHOE COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)-
NoTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military
Training and Service Act, as amended, aftei discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Tele-
phone 534-3161.
Masters Sporting Goods, Division of Wilson and Co., Inc. and
United Packinghouse, Food & Allied Workers , AFL-CIO.
Case 26-CA-2251. September 23, 1966
DECISION AND ORDER
On April 15, 1966, Trial Examiner Horace A. Ruckel issued his
Decision in the above-entitled proceeding, finding that Respondent
had not engaged in the unfair labor practices alleged in the com-
plaint except for a single act of unlawful interrogation,,. and rec-
3 The Trial Examiner concluded that the Incident of unlawful interrogation was iso-
lated and did not require a remedial order.
160 NLRB No. 101.