Cumberland Shoe Corp.

National Labor Relations Board - Board Decisions

Apr 13, 1967

163 N.L.R.B. 1031 (N.L.R.B. 1967)

CUMBERLAND SHOE CORP. 1031
Cumberland Shoe Corporation and Boot and
Shoe Workers' Union , AFL-CIO. Case
26-CA-2418.
April 13,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On December 28, 1966, Trial Examiner David S.
Davidson issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent and the General
Counsel filed exceptions to the Trial Examiner's
Decision and 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.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
Relations Act, as amended, by discharging employee
Glenn Burk on May 3, 1966.' The General Counsel
contends that Burk was discharged because of his union
activities and that Burk's receipt of production tickets
from other employees, advanced as the reason for his
discharge, was a pretext. Respondent's answer denied the
commission of any unfair labor practices,2 and
Respondent contends that the reason given at the time of
Burk's discharge was the true reason for it.
This proceeding was heard in Lewisburg, Tennessee, on
October 11 and 12, 1966. At the close of the hearing, the
parties waived oral argument and were given leave to file
briefs, which the General Counsel and Respondent filed.
Upon the entire record in this case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Tennessee corporation, manufactures,
sells, and distributes shoes at its plant located at Chapel
Hill, Tennessee. During the 12-month period prior to the
issuance of the complaint, Respondent shipped products
valued in excess of $50,000 from its Chapel Hill plant
directly to points outside the State of Tennessee and
purchased and received goods and products valued in
excess of $50,000 at its Chapel Hill plant directly from
points located outside the State of Tennessee. Respondent
admits and I find that it is an employer engaged in
commerce within the meaning of the Act and that
assertion of jurisdiction is warranted.
II. THE LABOR ORGANIZATION INVOLVED
Boot and Shoe Workers' Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that Respondent, Cumberland Shoe
Corporation, Chapel Hill, Tennessee, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Trial Examiner: Upon a charge
filed May 12, 1966, by Boot and Shoe Workers' Union,
AFL-CIO, herein called the Union, the General Counsel
issued a complaint against Respondent , Cumberland Shoe
Corporation. The complaint alleges that Respondent
violated Section 8(a)(1) and (3) of the National Labor
' The complaint was amended at the hearing to delete
allegations that Ronald Lee , another employee, was
discriminatonly discharged on April 12, 1966
' Respondent amended its answer by telegram , prior to the
hearing, to deny allegations in the complaint that Earl Daugherty
is a supervisor and agent of Respondent
163 NLRB No. 139
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Introduction and background
In addition to the Chapel Hill plant, Respondent
operates another plant at Franklin, Tennessee,
approximately 35 miles away. All administrative functions
for both plants are performed at Franklin, and there is a
common personnel director for both plants who is located
at Franklin. A direct telephone line connects the two
plants.
Respondent's operations at these plants have been
before the Board previously in four proceedings. In
Cumberland Shoe Corporation, 144 NLRB 502, the Board
found that in early 1963 Respondent violated Section
8(a)(1) of the Act by threats of economic reprisal and
interrogation involving two supervisors and three
employees at the Franklin plant.' In Cumberland Shoe
Corporation, 144 NLRB 1268, enfd. 351 F.2d 917 (C.A. 6),
the Board found that in early 1963 at the Chapel Hill plant
Respondent threatened employees with reprisal 4
3 These violations occurred soon after the start of an organizing
campaign at the Franklin plant by the Union involved herein
" More specifically the Board found that threats that the plant
would close if the Union came in were made to a number of
employees.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
promised them benefits, coercively interrogated them, and
refused to bargain with the Union, not because of any
good-faith doubt of its majority, but in order to gain time to
destroy its majority. The Board concluded that
Respondent violated section 8(a)(1) and (5) of the Act.
In Cumberland Shoe Corporation, 156 NLRB 1130, the
complaint alleged that the Respondent had violated
Section 8(a)(1), (3), and (5) of the Act by closing the Chapel
Hill plant without notice to or discussion with the Union
and by discharging employees because of their
membership and activities in behalf of the Union. The
Board found that Respondent closed the Chapel Hill plant
on April 1, 1964, and transferred some of its employees
and orders to Franklin because of compelling economic
reasons of which there was strong evidence. Accordingly,
the Board concluded that Respondent's failure to honor
the Board's earlier bargaining order pending court review
and the Board's findings of violations of Section 8(a)(1) at
the two plants in the two earlier cases in the absence of
any recent antiunion activity accompanying the shutdown,
did not "justify a finding of continuing antiunion
motivation so strong as to outweigh the economic
considerations and warrant an inference that the
Respondent, in fact, closed its plant and terminated the
employees because of their union membership and to
avoid bargaining with the Union." The Board also found
that Respondent gave notice to the Union and bargained
concerning the closing with it and did not further violate
its obligation to bargain, although it had not fully complied
with the Board's outstanding bargaining order.
In that case, the Board found further that when
Respondent reopened the Chapel Hill plant in late 1964
and early 1965, after a change in Respondent's stock
ownership, Respondent failed to notify the Union of the
reopening and refused to bargain upon request until the
Union's status was determined by the court of appeals.
The Board concluded that Respondent thereby violated
Section 8(a)(5). However, the Board rejected allegations
that Respondent discriminated against union adherents in
recalling employees to work at the plant where
Respondent did not follow a seniority policy in rehiring
employees, had not done so in the past, and recalled union
adherents in the same ratio as nonadherents. In these
circumstances the Board held: "Some independent
evidence must be presented of unlawful motive; we will
not infer its existence from the fact that the Respondent
elected to maintain its legal position before the court
Finally in Cumberland Shoe Company, 160 NLRB 1256,
involving the Franklin plant and a local of the Teamsters,
the Board found that in the fall of 1965, Respondent's Vice
President Bransford threatened employees that
Respondent would refuse to bargain with any union
selected by the Franklin employees and would close the
Franklin plant rather than bargain,'' that Respondent
discriminatorily discharged an employee at about the
same time, and that Bransford unlawfully assisted
employees to withdraw their union authorization cards.
In this Decision the Board also rejected allegations that
Respondent had discharged three watchmen for engaging in
concerted activity
' The statement found to constitute the threat "that Chapel Hill
is the living example that we are not going to run under a union "
' On the operations involved herein, each ticket turned in by an
employee above his quota was worth between 25 and 30 cents in
incentive earnings
2. The operations and pay system at the Chapel Hill plant
The Chapel Hill plant produces shoes and boots. The
materials from which the shoes and boots are processed
are placed in boxes and moved through the plant from one
operation to the next. Each box contains materials for one
dozen pairs of shoes Most, if not all, employees are
paid on an incentive system based on the number of boxes
on which they perform their assigned operation each
week. For purposes of establishing each employee's
production, numbered cards are attached to each box
containing detachable tickets for each operation. When an
operator completes his assigned operation on each box of
shoes, he detaches the appropriate ticket for that
operation and retains it. At the end of each day, he places
the tickets he has accumulated in a slotted book provided
him for that purpose and turns it in. Whether or not an
employee receives incentive pay depends on whether he
had exceeded the quota for his operation. If he has not met
the quota, he is paid at a flat hourly rate regardless of the
number of tickets he has turned in. If he has exceeded his
quota, he is paid above that rate in proportion to the
number of tickets he has turned in above his quota.7
3. The discharge of Glenn Burk
Glenn Burk started to work at the Chapel Hill plant in
February 1965 when it reopened." Burk operated a
sidelaster machine in the lasting department. At the time
of his discharge, Burk was the most experienced and
efficient sidelaster operator in the department Burk was
able to produce at the rate of approximately 150 percent of
his quota and received substantial incentive pay.
On April 24, 1966, Burk was elected president of the
Union, replacing Ronald Lee who had quit his job shortly
before that. Burk told his foreman of his election, and
there is no question that the company officials had
knowledge of Burk's union office at the time of his
discharge on May 3, 1966.
The immediate circumstances surrounding Burk's
discharge are not disputed in any essential respect. On the
afternoon of May 3, shortly before quitting time, the
sidelaster operators gathered at one side of the plant near
their machines to compute their production for the day.
While so engaged, their foreman, Adrian Phifer, walked
into the department and saw Harvey Hardin, one of the
newer operators, hand some production tickets to Glenn
Burk."
Phifer immediately took Burk and Hardin to the office
of Assistant Superintendent Booker. Booker asked Hardin
if he had given Burk the tickets. Hardin admitted that he
had. Booker then instructed Phifer to call the other
sidelaster operators into his office Ronald Stinnett,
Dwight Puckett, Gary Landers, and Albert Davis came to
the office, and Booker called Superintendent Ellis in Ellis
asked each employee if he had given away, sold, or
received any tickets. All except Stinnett admitted that
they had. Stinnett replied that he would rather not say.
s Previously Burk had worked from 1958 to 1963 at the Franklin
plant
9 Phifer testified that he also saw Burk drop some coins into
Hardin's hand Burk and Hardin testified that Hardin gave the
tickets to Burk and that Burk did not pay for them
CUMBERLAND SHOE CORP. 1033
Booker explained that the ticket swapping cost the
company money and that was hurting their average
earnings . Ellis and Booker then went into Ellis' office and
called the employees in one at a time.
All but Burk were reprimanded and asked to sign a
statement that they would not give away, sell, or receive
coupons again.10 Burk, however, who was the last
employee called into Ellis' office, was told that he was
discharged because he had been employed longer than the
other sidelaster operators and should have known better
than to exchange tickets with the other employees." Burk
protested that the practice had been going on for some
time and that he did not understand why they were
"jumping up all of a sudden." Ellis replied that it could not
just go on like that. 12
4. The history of ticket swapping before May 3
Burk, Stinnett, Hardin, Lee, and Puckett all of whom
are former sidelaster operators no longer employed by
Respondent testified that the practice of exchanging
tickets had been going on for some time among the
sidelaster operators before Burk's discharge. According to
them, at the end of each workday, after completing all
their work for the day, the sidelaster operators gathered at
some boxes against the wall at one side of the department
where they figured up their time for the day. At that time,
almost every day, newer employees who had not made
their quota would ask if anyone could use extra tickets,
and they either gave or sold tickets to employees like Burk
who had met or exceeded their quotas."
According to Burk, Phifer stood nearby each afternoon
waiting for them to finish figuring their time and watched
them as they figured their time and exchanged tickets.
Stinnett testified that Phifer was not always in the same
place when they figured their time, but that Phifer was
often standing within 10 or 15 feet of where they figured
their time. According to Stinnett, Phifer signed their
timecards each evening and was usually waiting nearby to
do that. However, although Stinnett initially testified that
he did not try to hide the ticket swapping from Phifer, he
ultimately testified that he tried not to let Phifer see him
swap tickets and did not know whether the other
sidelasters sought to conceal it. Hardin testified that
Phifer was sometimes nearby but that he did not know
whether Phifer saw the ticket swapping. Although he
stated that he recalled one occasion when Phifer was 3 or 4
feet away, he could not say whether or not Phifer was
watching them. Lee testified that Phifer was usually
standing nearby and questioning the operators as to their
earnings while they were figuring their time. According to
Lee, Phifer was present on several occasions when ticket
swapping took place and observed it. Puckett testified that
Phifer could not have avoided seeing the swapping in the
evenings and that on one occasion, about 3 weeks before
Burk's discharge, Phifer was looking right at him as he
gave some tickets away.
The former sidelaster operators conceded that they
believed it was not right to swap the tickets although they
did it.14 Burk testified that no one ever told him, prior to
his discharge, that ticket swapping was improper and that
he was never warned what its consequences might be. He
testified that Phifer never told him to stop the practice, but
also conceded that he was also never told that it was
permissible to swap tickets.
Stinnett testified that a week or two after he started
work, Phifer told him that if he could not make production,
he could hold back tickets and when he got close to
production he could add the tickets he had withheld to
make production.' Stinnett also testified that about a
week after he started work, Phifer one day asked him how
many cases he had run. Stinnett replied that he did not
know, and Phifer asked what he had done with his tickets.
Stinnett replied that he had given them away to Burk.
According to Stinnett, Phifer replied "Well, at least you
are honest about it," and laughed. Stinnett testified that
Phifer said nothing more about it and never told him not to
swap tickets.
Lee testified that, like Stinnett, when he first started to
work in the sidelasting department, Phifer told him that
there was no sense turning all his tickets in until he started
to make production. According to Lee, Phifer told him to
hold tickets back until he started to make production and
then he could add the tickets he held back to those he
turned in at that time and make more money that way. Lee
testified that neither Phifer nor any other management
representative told him not to swap tickets.
Puckett testified that when he was hired, in April 1966,
he was told not to swap tickets. According to him, Phifer
told him others were doing it but that he should not. He
testified that Phifer told him to turn his tickets in every
evening and not to pay attention to the other boys and not
to get involved in it. Nevertheless, Puckett immediately
started to sell tickets to other operators. Several days after
he started work, Booker came to him and asked why he
was not turning tickets in. Puckett told Booker that he was
giving them away. According to Puckett, Booker said,
"You are not supposed to do that. You are supposed to
turn the tickets in." Puckett testified that Booker said
"Even though a boy does train you, you are not allowed tc
give him tickets or anything.... You are supposed to turn
them in." According to Puckett, Booker talked to him for
10 or 15 minutes at his machine at that time.'6 Despite
this, however, Puckett did not turn in all his tickets every
10 According to Stinnett, after he was called into Ellis' office he
admitted that he had received coupons and sold them He
testified that Ellis told him that he would have to call the Franklin
plant and find out what to do about him and that he would let him
know. Stinnett quit his job the following day before finding out
what further action, if any, Respondent planned to take with
respect to him
11 Before deciding to discharge Burk, Ellis checked with Vice
President Bransford at Franklin
12 Burk also said that the exchanging of tickets did not hurt the
Company half as bad as unnecessary overtime. Ellis replied that
there were a few other things they would have to get straight
13 According to Burk, he paid 10 cents a piece for tickets when
he bought them.
14 The sidelaster operators also testified that Phifer on occasion
both before and after Burk's discharge gave them extra tickets
Although they conceded that on some occasions the tickets were
given them in return for extra work, they testified that on other
occasions there was no apparent explanation for the gifts Phifer
conceded that he sometimes gave them extra tickets but that it
was always to compensate them for the performance of difficult
work, reruns, or extra work The testimony of Lamb, a pull over
operator, supports Phifer's explanation which I credit
15 Stinnett testified he did not know whether Phtfer meant that
he could use the tickets he held back merely to meet his quota in a
later week, which would not increase his earnings, or to exceed it
and increase them
11 Booker was called as a witness by Respondent but was not
questioned about this incident.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
night, but held out a few which he continued to give away
or sell. According to Puckett, he did not tell the other
sidelaster operators of his conversations with Phifer or
Booker.
Ellis, superintendent of the Chapel Hill plant, testified
that he had no definite knowledge of the ticket swapping
before May 3, when the employees were called into his
office and questioned. According to him, he had suspected
that ticket swapping was going on and had discussed the
possibility with Booker before May 3 but they had no
proof. Ellis also testified that he believed that the foremen
had been instructed to tell employees not to swap tickets
and that the problem had been discussed at foremen's
meetings in connection with discussions of production
costs Ellis, however, was not certain as to when these
discussions had taken place. Ellis never told the foremen
to watch employees to see if it was going on. Booker never
reported to him the incident with Puckett to which
Puckett testified.
Phifer testified that he did not stand by and watch the
sidelaster operators figure their time in the evening, but
that after they finished their operations for the day, he
moved on to oversee the remaining operations in his
department while the sidelaster operators figured up their
time. According to Phifer, he did not have to sign each
employee's timecard, but only signed if they worked on
samples or did work for which there were no tickets. At
the time of the events in question he signed such cards at
the end of the day.
According to Phifer on one occasion about a week or 2
before Burk's discharge, he spoke to each operator
individually at his machine, and told them to turn in all
their tickets every day, warning them not to sell or swap
tickets under any circumstances. Phifer denied that he
ever saw employees swap coupons until May 3. Phifer
denied the conversations with Stinnett and Lee to which
they testified.
According to Phifer, the reason he warned the
employees about exchanging coupons was that he had
noticed them gathering in bunches to figure their time,
especially the sidelaster operators. Phifer also testified
that he had checked production records, 3 or 4 weeks
before Burk's discharge, and had noticed that Burk's
production jumped on some days. According to him, at
that point, he started to watch more closely to see if there
was swapping or selling of tickets going on, but that he did
not make a special effort to watch at the end of the day
Phifer testified that he never talked to Booker or Ellis
about the ticket problem before Burk's discharge and that
they never said anything to him about it. According to him,
when he brought Burk and the others to Booker's office on
May 3, it was the first time he talked to Booker or Ellis
about it.
As the summary of the testimony shows, the testimony
of the General Counsel' s witnesses with respect to the
ticket swapping before May 3 was not flawless. All four
witnesses were no longer employed by Respondent, and
two were former presidents of the Union. There were
differences as to details in their testimony. They had
difficulty specifying instances when Phifer observed them
swapping tickets. One witness, Stinnett, conceded that he
Witli respect to Phifer's opportunity to have observed the
swapping, t am satisfied that the truth lies somewhere between
the extremes testified to by Burk and Phifer Thus, there is some
support in the testimony of the General Counsel's witnesses for
Phifer's claim that he followed the work at the end of the day as it
left the sidelasting machines But as Phifer 's activities on May 3
tried not to let Phifer see him when he exchanged tickets.
Yet after carefully considering all of the evidence
including the readiness with which all but Stinnett
admitted their ticket practices when questioned, and the
basic inconsistencies in testimony of Phifer next
discussed, I find the conclusion inescapable that the
former sidelaster operators are to be credited that Phifer
had observed the ticket swapping transactions before
May 3 and did nothing to stop them until that date.
As set forth above, Phifer testified that he had
suspected that ticket swapping was going on and that his
suspicion was based on his observ ation of the sidelaster
operators when they computed
_
their time after they
finished work. He also testified that because of his
suspicion he tried to keep an eye on the, sidelaster
operators. Nevertheless he claimed that he did not try to
watch them at the end of the day when they computed
their time. Thus Phifer, on the one hand, based his
suspicion on what he observed when the operators were
computing their time at the end of the day and on the other
denied watching them at the very time of the day the
suspicions were aroused when it was most likely that the
ticket swapping occurred and when he would have seen it.
Phifer testified that he warned each of the men
individually, a week or two before Burk's discharge, not to
swap tickets. Phifer testified specifically, that a week or
two before Burk's discharge, "[I]n one instance, I went to
each operator and told them they would have to turn in the
tickets.... I warned them that I had better not ever see
them stealing, swapping, selling, whatsoever, each one of
the employees in that room." Yet, when Phifer explained
why he recommended that only Burk be discharged on
May 3, after initially recommending that all the sidelaster
operators be discharged, he testified "They were so young,
you know, and tht fact that maybe they didn't know any
better, they haven't been told, because I had told them to
turn in the tickets, of course, but maybe I should have
talked to the"i further on it, you know, about selling, and
buying, and stealing, and one thing and another, but I
didn't, and we decided to recommend them, and they
signed that they sold or swapped tickets." I cannot
reconcile the latter testimony with Phifer's claim that he
had previously warned the operators.
A further significant lapse in Phifer's testimony
concerning the events of May 3 belies his denial of prior
knowledge. Thus Phifer testified that originally upon
talking to E1L3 and Booker about the ticket swapping he
recommended that all the sidelaster operators be
discharged He testified specifically that he made this
recommendation before the operators were called into
Booker's office. Yet, at that point, if as Phifer testified he
had never previously observed ticket swapping, he had
only observed Burk and Hardin swapping tickets and he
had no basis for his drastic recommendation with respect
to the other sidelaster operators. These inconsistencies in
Phifer's testimony persuade me not only that Phifer's
testimony was untruthful but that his inconsistencies
stemmed from a clumsy attempt to tailor the facts to
conceal his prior knowledge of the ticket swapping
practice.'' I find that Phifer had previously observed the
indicate , this was not an invariable practice , and as the testimony
and the description of the lasting department indicate, Phifer was
in a position to observe the sidelaster operators compute their
time even when standing near the machines where the next
operations on the shoes were performed
CUMBERLAND SHOE CORP. 1035
sidelaster operators swapping tickets. i"
Likewise, although it appears that Puckett was told not
to swap tickets when he was first hired and was
admonished again by Booker when Booker inquired about
his tickets, I find that nothing further was done to stop the
known ticket swapping among the sidelasters. The glaring
inconsistency in Phifer's testimony concerning his
claimed warnings to the sidelaster operators set forth
above disposes of his claim. Despite the fact that Booker
was told by Puckett that he was giving his tickets away,
there is not even a claim that Booker went to the other
sidelasters to put a stop to the practice.
Although Ellis claimed that he and Booker were
concerned about the possibility of ticket swapping but
lacked proof and that it was discussed in foremen's
meetings, he testified that Booker never reported the
incident with Puckett to him. Phifer testified that he never
discussed ticket swapping with Ellis or Booker until
May 3. In the light of the gaps apparent in the above, I am
persuaded that neither Ellis nor Phifer disclosed with
candor the internal communications between the three
supervisory officials in the plant responsible for the lasting
department.
IV. CONCLUSIONS
The question in this case is whether the asserted ground
for Burk's discharge was a pretext advanced in order to
get rid of him because of his union activities, as contended
by the General Counsel, or whether as Respondent
contends, Burk was discharged because he received
production tickets from another employee. The burden is
on the General Counsel to prove the former and not upon
Respondent to prove that the discharge was for cause.
Falsification of pay or time records, particularly when it
results in payment to an errployee for work not performed,
is a serious matter.'" Nonetheless, despite its seriousness
and despite an employees unchallengeable right to
prohibit such practices and to discipline employees who
engage in them, like any other valid basis for discipline it
cannot be used as a cloak to clothe with legality discipline
based on unlawful considerations.
I have found that Phifer and Booker were aware that the
sidelaster operators were swapping production tickets for
some time before May 3, but beyond Phifer's instruction to
Puckett when he was hired and Booker's admonition to
Puckett about 8 weeks before Burk's discharge, nothing
further was done to stop the practice until May 3.
Whether Respondent's inaction amounted to
condonation of the practice or merely a conscious looking
away from a practice that it could not officially sanction,
when Phifer called Burk to Ellis' office on May 3, and
Burk was discharged, Respondent's conduct constituted
an abrupt change in its treatment of the ticket swapping.
Moreover, the change had a more drastic impact on Burk,
the newly elected president of the Union, than upon the
other sidelaster operators all of whom but Stinnett readily
and immediately admitted participation in the swapping.Z°
Ellis explained that Burk was singled out for discharge
because he had been in the department a long time and
should have known better while the other employees were
relatively new and might not have been aware that what
they were doing was improper. Phifer's testimony, quoted
above, was to the same effect. However, at least one other
operator, Davis, was also an experienced employee who
had been in the department approximately 6 months, and
Ellis' explanation does not serve to distinguish the
treatment of Burk from that of Davis.
In its brief, Respondent does not rely on the explanation
given by Ellis and Phifer for the disparate treatment of
Burk but contends that the disparate treatment of Burk
was justified because Burk was the only employee actually
observed by a supervisor receiving tickets. This
explanation was not given at the time of Burk's discharge
or by Ellis when he testified with respect to his decision to
discharge Burk at the hearing. Coming, as it does, for the
first time in Respondent's brief, I cannot conclude that
this was the reason on which Ellis relied in selecting Burk
for discharge at the time. Moreover, as I discredit Phifer's
denial that he had previously observed employees
swapping tickets, the factual premise of this contention is
not supported by the record.21
In the light of the above, I conclude that the
apprehension of Burk by Phifer for doing what he had
done a few times every week over a period of time with
Phifer's knowledge was not the true reason for Burk's
discharge. This is not to say that having failed to put a stop
to ticket swapping in the past, Respondent was powerless
to put an end to the practice. Clearly Respondent had the
right at any time to insist that the swapping be stopped.
But when Respondent, suddenly and without prior
warning, chose not only to stop the practice but to
discharge Burk at the same time for swapping which had
already occurred, I am convinced because of all the
circumstances that the motive was not simply to punish
Burk for the ticket swapping but to find a pretext to
discharge him.
It is undisputed that only 10 days before his discharge
Burk became president of the Union and that his election
was known to Respondent at the time of his discharge. As
set forth above, Respondent has a past history of unfair
labor practices at both the Chapel Hill and Franklin
plants. Although, as set forth above, in the Board's
decision at 156 NLRB 1130, the Board rejected
contentions that the animus found in earlier decisions
pervaded the conduct in question in that case, that
conclusion followed where the evidence otherwise showed
valid economic considerations to support the conduct in
question. However, after that decision, the Board found
that at the Franklin plant, about 7 months before Burk's
18 In view of my assessment of Phifer's testimony , I also credit
the testimony of Stinnett and discredit Phifer' s denial with
respect to Stinnett's response when Phifer asked how many cases
Stinnett had run about a week after Stinnett was hired. Thus
Phifer and Booker had direct notice from Stinnett and Puckett,
respectively , that they were giving tickets to other sidelasters
14 It is beyond dispute that as a result of the exchange of tickets
among the sidelaster operators , Respondent's costs were
increased two ways First the recipient of the tickets directly
received incentive earnings which otherwise would not have been
paid to any operator since those who gave away or sold tickets had
insufficient production to meet their quotas and to receive any
incentive pay Second , other benefits which were based on
earnings were increased as a result of the increase in earnings
which stemmed from submission of the swapped tickets to
Respondent
20 As indicated above, Stinnett at first declined to say whether
or not he swapped tickets, but admitted doing so when separately
questioned
21 Respondent also contends in its brief that it obviously could
not discharge all the sidelasters who admitted swapping tickets
without seriously disrupting its operations As Burk was
concedeoty the best of the sidelaster operators, absent some other
basis for his selection, this reason would support his retention in
preference to other sidelasters rather than his selection for
discharge.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge, Vice President Bransford threatened closing of
the Franklin plant by a statement to an employee that the
Chapel Hill plant was "a living example that we are not
going to run under a union" which the Board found
conveyed a threat that Respondent would refuse to
bargain with any union selected by the Franklin employees
and would close down the plant rather than bargain. The
Loard a'so found that the employee to whom a threat had
been made was subsequently discharged because of his
union activities and that Bransford unlawfully assisted
employees at the Franklin plant to withdraw from the
union seeking to organize them.
In the light of the continuing history of interference with
employee rights at both plants; the statement that the
Franklin plant was an example of the fact that the
Company was not going to have a union found to have
occurred about 7 months before Burk's discharge: the fact
that Bransford, who made that statement, was consulted
by Ellis before he decided to discharge Burk: the fact that
Burk's discharge occurred 10 days after he was elected
union president; and the fact that the asserted reason for
Burk's discharge was not the real reason for it, I conclude
that the evidence is sufficient to sustain the complaint and
find that the true reason for Burk's discharge was his
election to the union presidency. Accordingly,
Respondent's discharge of Burk violated Section 8(a)(3)
and (1) of the Act.22
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
VI. THE REMEDY
Having' found that Respondent violated Section 8(a)(3)
and (1) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
As I have found that Respondent discriminated against
employee Glenn Burk by discharging him on May 3, 1966,
I shall recommend that Respondent be ordered to offer
him immediate and full reinstatement to his former or a
substantially equivalent position, without prejudice to his
2z The General Counsel offered further evidence to support the
contention that the true motive for Burk 's discharge was his union
activity but did not allege any separate violation of the Act based
upon it Thus Burk testified that on April 19 or 20 Earl Daugherty,
alleged to be a supervisor , asked him what he thought about the
Union , whether he thought it would come in , and whether he
thought it would do any good if it did come in Burk testified
further that a few days later Daugherty came to him with a piece
of paper and asked him if he was interested in getting the Union
out When Burk replied that he did not know , according to Burk,
Daugherty invited him to sign a petition and said they would see
what they could do about it, but Burk did not sign Stinnett
testified that at about the same time Daugherty asked him what
he thought about the Union According to Stinnett, he replied that
he thought it would be alright, and Daugherty replied that a union
would be alright but he did not think ,his one was very good
Daugherty denied questioning either man or asking any employee
to sign the petition, although he testified that he signed such a
seniority and other rights and privileges, and to make him
whole for any loss of earnings he may have suffered by
reason of the discrimination against him, by payment to
him of a sum of money equal to the amount he normally
would have earned as wages from May 3, 1966, to the date
of the offer of reinstatement, less his net earnings, to
which shall be added interest at the rate of 6 percent per
annum , in accordance with the formula set forth in F.W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co , 138 NLRB 716.
As I have found that Respondent discriminatorily
discharged Glenn Burk because of his union activities and
as prior decisions of the Board disclose a persistent history
of infringement of employee rights, I am of the opinion that
there exists a danger of commission of other and further
unfair labor practices. Accordingly, I recommend that
Respondent be ordered to cease and desist from
infringing, in any other manner, upon the rights
guaranteed by Section 7 of the Act.
Upon the basis of the above findings of fact and the
entire record in this case, I make the following.
CONCLUSIONS OF LAW
1. Respondent Cumberland Shoe Corporation is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2 Boot and Shoe Workers' Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3 By discriminating in regard to the hire and tenure of
employment of Glenn Burk, thereby discouraging
membership in the Union, as found above, the Respondent
has engaged in and is engaging in unfair labor practices
affecting commerce within the meaning of Sections 8(a)(1)
and (3) and 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
,onclusions of law, and pursuant to Section 10(c) of the
Oct, I hereby recommend that Respondent, Cumberland
Shoe Corporation, Chapel Hill. Tennessee, its officers,
agents, successors, and assigns, shall
1. Cease and desist from-
(a) Discouraging membership in Boot and Shoe
Workers' Union, AFL-CIO, or any other labor
organization by discriminating in regard to the hire and
tenure of employees or any term or condition of their
employment.
(b) In any other manner interfering with, restraining, or
petition The record indicates that there were negotiations with
the Union in progress at the time of Burk's alleged interrogation,
as he testified that he told Phifer after he became union president
that he would have to be absent on Thursdays to attend
negotiations There is no other evidence as to the status of the
Union or the petition in the record before me As there does not
appear to have been a question whether the Union would come in
at the time of Burk 's alleged interrogation , there is reason to
doubt the accuracy of Burk's version of his first conversation % lith
Daugherty , and I credit Daugherty 's denial In these
circumstances and in the absence of any other evidence that
Daugherty or any other supervisor solicited signatures on an
antiunion petition , I also credit Daugherty 's denial that he asked
Burk to sign the petition The conversation with Stinnett , even if it
did occur, adds little or nothing to the evidence of animus which
stems from Respondent 's earlier violations Accordingly , I find it
unnecessary to decide whether Daugherty was a supervisor
PERVEL INDUSTRIES, INC. 1037
coercing its employees in the exercise of their rights to
self-organization, to form labor organizations, to join or
assist Boot and Shoe Workers' Union, AFL-CIO, or any
other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
any other concerted activities for the purpose of collective
bargaining or other mutual aid or protection or to refrain
from any or all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Glenn Burk immediate and full reinstatement
to his former or a substantially equivalent position without
prejudice to his seniority or other rights and privileges
previously enjoyed and make him whole for any loss he
may have suffered by reason of the discrimination against
him in the manner set forth in the section of the above
decision entitled "The Remedy."
(b) Notify the above-named employee if presently
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 other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its Chapel Hill, Tennessee, place of
business, copies of the attached notice marked
"Appendix."':' Copies of said notice, to be furnished by
the Regional Director for Region 26, shall, after being duly
signed by the Respondent's representative, be posted by it
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 said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps
Respondent has taken to comply herewith.24
former or a substantially equivalent position , without
prejudice to his seniority or other rights and
privileges , and we will make him whole for any loss he
may have suffered as a result of his discharge.
WE WILL NOT discourage membership in Boot and
Shoe Workers' Union , AFL-CIO, or any other labor
organization by discriminatorily discharging and
refusing to reinstate any of our employees or by
discriminating in any other, manner in regard to their
hire or tenure of employment , or any term or
condition of employment.
WE WILL NOT in any other manner , interfere with,
restrain , or coerce our employees in the exercise of
their rights to self-organization , to form labor
organizations , to join or assist Boot and Shoe
Workers' Union , AFL-CIO, or any other labor
organization , to bargain collectively through
representatives of their own choosing , and to engage
in other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection , or to refrain from any and all such
activities.
CUMBERLAND SHOE
CORPORATION
(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 application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after 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, Telephone 534-3161.
33 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the 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 Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
24 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read. "Notify the
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL offer to Glenn Burk reinstatement to his
I
Pervel Industries , Inc. and Machine Printers
and Engravers Association of the United
States, Petitioner . Case 1-RC-9216.
April 13, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS
AND ZAGORIA
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Francis V.
Paone of the National Labor Relations Board. The
Hearing Officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
The Employer, the Petitioner, and the Intervenor,
General Teamsters Local Union No. 493,
International Brotherhood of Teamsters,
163 NLRB No. 140