E-Z Mills, Inc.

National Labor Relations Board - Board Decisions

Dec 10, 1952

101 N.L.R.B. 979 (N.L.R.B. 1952)

E-Z MILLS, INC. 979
3. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8
(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
E-Z MILLS, INC. and AMALGAMATED CLOTHING WORKERS OF AMERICA,
CIO. Case No. 1-CA-10X6. December 10, 1952
Decision and Order
On April 14, 1952, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices in
violation of Section 8 (a) (1) and (3) of the Act, and recommend-
ing that it cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.-
The Board 2 has reviewed the rulings made at the hearing and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions, the supporting brief, and the entire record in this case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the following additions and modifications : 3
1. We agree with the Trial Examiner that the Respondent com-
mitted independent violations of Section 8 (a) (1) of the Act by
threatening to shut down the plant rather than deal with the Union,
and in other respects by threatening employees with reprisal because
of their union activities, and by interrogating employees with respect
to their union activities and sympathies. Likewise, we concur in
i On October 28, 1952, the General Counsel filed with the Board a motion to reopen the
record and remand the case to permit the General Counsel to amend the complaint to in-
clude therein further alleged unfair labor practices occurring after the close of the
hearing, and to reopen the hearing to litigate these additional allegations . However, on
November 4, 1952, the General Counsel filed a "withdrawal" of this motion . Accord-
ingly,, we herein grant the General Counsel's request to withdraw his motion to remand.
8 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board had delegated its powers in connection with this case to a three -member panel.
[ Members Houston, Murdock , and Styles].
8 Without affecting our agreement with the Trial Examiner , we note the following
minor correction of the Intermediate Report : Foreman Russell did not testify, as inad-
vertently related by the Trial Examiner ( p. 955 ), that "he was unable to take disciplinary
action [against Riley] . . . because as a foreman he would not know what to do."
Russell 's testimony was that, "As a foreman , I would know what to do."
101 NLRB No. 164.
242305- 53-63
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Trial Examiner's finding that the Respondent's surveillance of
union organizers was unlawful under the Act. As related in the
Intermediate Report, Organizers Langell and Greenberg were inten-
tionally pursued and spied upon by Supervisor Tietjen on their return
to town one morning after they had passed out union leaflets to the
employees outside the plant. Thus, it is clear that the surveillance
was undertaken by the Respondent at a time when Langell and Green-
berg were engaged in organizational activities involving the Respond-
ent's employees. It is not material that none of the Respondent's
employees met or was observed with these union organizers while
they were thus under the Respondent's surveillance. The Respond-
ent's conduct by its very nature constitutes an abuse of its employees'
rights under the Act. For necessarily, during an organizational
campaign, as here, it has the tendency and effect of interfering with
and restraining the employees' free access to and association with
union organizers, which we view as fundamental to their right of
self-organization guaranteed in Section 7 of the Act.
2. The Trial Examiner found, and we agree, that the Respondent
discriminatorily laid off Kirk, Thibodeau, and Marshall, in violation
of Section 8 (a) (3) of the Act. The Trial Examiner held that
the evidence supported the Respondent's contention that it was eco-
nomically, and not discriminatorily, motivated in reducing its force
on September 24, 1951. The General Counsel filed no exceptions
to this holding. But the Trial Examiner concluded, as do we, that
the Respondent did discriminatorily select Kirk, Thibodeau, and
Marshall for the layoff on such date. That the Respondent had knowl-
edge of the union activities and leadership of these complainants and
that its purpose was unlawful in seeking to rid itself of them appears
amply supported by the record.4
In factually determining that Kirk, Thibodeau, and Marshall were
not the junior employees properly subject to layoff on September 24,
1951, the Trial Examiner applied the Respondent's seniority policy
insofar as it related to the principal function performed by these
employees on such date. These specific findings of the Trial Examiner
and the Respondent's unlawful purpose we primarily rely upon for
our holding of discrimination in these cases. However, as generally
indicated but not relied upon in the Intermediate Report, within the
policy standards asserted by the Respondent as the bases for effecting
its reductions in force, further grounds exist for concluding that Kirk,
Thibodeau, and Marshall were discriminatorily chosen for the layoff
4 Among other things, we note that Kirk, Thibodeau , and Marshall were the only em-
ployees laid off by the Respondent between August 10 and October 10, 1951 , and that
within the finishing department having approximately 850 employees , these 3 employees
were the only members of the Union 's working committee ( of 6 employees ) responsible
for carrying out the organizational activities in and out of the plant.
E-Z MILLS, INC. 981
September 24, 1951. We rely, moreover, on such further grounds,
viz: (a) The Respondent considered the additional skills of an em-
ployee as well as the employee's principal skill and classification at the
time of the impending layoff. Thus, Kirk,5 classified as a rib sewer,
was also skilled in the finishing department in tacking, hemming,
button sewing, and folding. Thibodeau s was principally an elastic
sewer but also possessed skills within the finishing department as label
sewer, superlock operator, and in hemming and trimming. Marshall,'
principally a tacker, was also skilled in the finishing department in
folding, trimming, and pressing. The record shows that with respect
to the additional skills of these complainants, junior employees func-
tioning in certain of these skills on September 24, 1951, were continued
in their employment." (b) In the course of their employment within
the finishing department, employees progressed substantially accord-
ing to degree of experience and skill, from the school section to the
conventional section, and finally to work in the "units." 9 When lay-
offs were necessary, the Respondent applied a policy of "bumping"
or transferring girls from a section requiring greater skill to one
requiring lesser skill. As shown in the Intermediate Report, on
September 24, 1951, Kirk and Thibodeau were both employed in
"units," while Marshall was employed in "conventional." Thus, we
find, in any event, Kirk, Thibodeau, and Marshall were entitled to be
retained on September 24, 1951, pursuant to the Respondent's "bump-
ing" practice.
3. With respect to the discharge of Mary Riley, which, like the lay-
off discussed above, was effectuated on September 24, 1951, we believe
with the Trial Examiner, for the reasons stated by him, that she was
discriminated against by the Respondent. We do not, however,
adopt the disposition of the testimony given by Paul Hall,10 which
the Trial Examiner failed to credit essentially on the ground that it
was "confused and contradictory." In view of the simplicity of
Hall's testimony, and the persuasive showing that this witness was un-
0 Kirk had been employed with the Respondent during intermittent periods since 1945,
though her seniority was dated from the beginning of her most recent employment on
July 24, 1950.
6 Thibodeau had been employed intermittently since 1940 but was credited for seniority
purposes from the date of her most recent employment on January 3, 1950.
7 Marshall had been employed intermittently since 1941 but held seniority from June
12, 1951.
& For example, Lillian Jepson, seniority January 15 , 1951 , trimmer ; Irene Hilchey,
seniority December 4, 1950, trimmer , folder , tacker ; Georgianna La Riviere , seniority
April 18 , 1951 , trimmer; Irene Bolton, seniority April 16, 1951, buttonholer , tacker.
'In the school section, employees were trained in various skills ; in the conventional
section, trained employees worked as individuals on separate finishing operations ; in a
"unit," consisting of about eight employees, an assembly -line method was employed, in
which all finishing operations necessary on a particular style of garment were performed
and within the "unit" the garment was completed.
10 Inadvertently referred to in the Intermediate Report as Floyd Hall.
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
biased and disinterested," as well as the Trial Examiner's particular
reason for rejecting his testimony, we are impelled to distinguish
this instance from those in which we apply our general policy of
attaching great weight to the credibility findings of the Trial
Examiner insofar as they are based on demeanor.12
The pertinent testimony of witness Hall in the record does not
appear to us to be "confused and contradictory." Hall, a shipping
room employee, overheard a conversation a few days before Riley's
discharge between Riley's foreman, Russell, and Superintendent
Towslee. At the time, Hall was in the process of transporting a load
of undershirts on a four-wheeled truck to the shipping room and was
moving his truck in the vicinity of Russell's desk. On direct examina-
tion by the General Counsel, Hall's testimony was clear that he had
overheard Russell say to Towslee that "Mary Riley had to go. She
had some connections-passed some papers out between the girls to
join the union." On cross-examination, it was developed that Hall
first revealed that he had overheard such a conversation, to Mary
Riley, whom he chanced to meet in a restaurant after working hours.
Questioned by the Respondent's counsel as to what he said to Riley on
this occasion, Hall testified :
A. I told her that they said she was nothing but a "trouble
maker."
Q. You told her that Mr. Russell and Mr. Towslee said she was
nothing but a "trouble maker?" Is that what you told her?
A. Yes, sir.
Q. And did you tell her how you heard him say that?
A. No, sir, I didn't.
During this cross-examination, no further questions were posed by
Respondent's counsel as to what Hall told Riley; and no questions
at all were asked relating to the actual conversation Hall had over-
heard between Russell and Towslee. It appears that at this point
in the hearing Hall's testimony was considered completed, and he was
dismissed from the stand.
However, at a later point in the hearing, witness Hall was recalled
to the stand by the Trial Examiner for the following reason, as
explained to Hall on the record by the Trial Examiner :
On direct examination . . ., you testified to one version of
that conversation you overheard, and on cross-examination
you testified to a different version. I want to find out which ver-
11 As appears in the record , Hall was not a member of and had no relations with the
Union before the hearing. He was questioned at his home by a union representative
relative to the information he possessed in connection with the present case and was
persuaded to reveal such information only upon the assurance that he would not have
to "appear in court," and that his name would not be mentioned. He was subpenaed to
testify at the Board hearing.
11 See Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F . 2d 362 (C. A. 3).
E-Z MILLS, INC. 983
sion is correct, if either; or if not, what third version may be
correct.
Now, on direct you referred to the fact that in this conversation
Mr. Russell made some reference to Riley passing around union
cards, but on cross-examination you said that what he said was
that she was a "trouble maker." Now, which did he say?
A. Well, that she was nothing but a "trouble maker."
Q. Did he or did he not say that : we are going to have to get
rid of her because she was passing around union cards?
A. That's right.
It was ultimately ascertained from the witness that he had overheard
both statements made, an explanation which we find credible. As
shown above, Hall's original testimony indicates no essential conflict;
nor, indeed, does his testimony upon his recall to the witness stand,
which, in our opinion, was not required, and reasonably could be re-
garded as tending to confuse the witness 13 Consequently, in consider-
ing the substance of Hall's disinterested testimony (i. e., that he over-
heard Foreman Russell say a few days before her discharge that Riley
had to go because she passed out papers to the girls to join the Union),
as against the denials of Russell and Towslee, both of whom had been
discredited by the Trial Examiner in regard to testimony on other
questions, we are disposed in these circumstances to credit the version
related by witness Hall. Accordingly, we have accorded weight to
such evidence 14 in reaching the conclusion that Mary Riley was dis-
charged in violation of Section 8 (a) (3) of the Act.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that E-Z Mills, Inc., Bennington, Vermont, its
officers, agents, successors, and assigns , shall :
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Clothing Workers
of America, CIO, or in any other labor organization of its employees,
by discriminatorily discharging, laying off, or refusing to reinstate any
of its employees, or by discriminating in any other manner in regard
to their hire or tenure of employment or any term or condition of
employment.
'e We do not consider Hall ' s credibility affected by his testimony on cross-examination,
adduced essentially after he was recalled to the stand , in which he was apparently unable
to fix accurately or clearly the distance he was from Russell 's desk when he overheard
the conversation , already described . There is no showing that Hall did not clearly hear
what was said ; the showing is to the contrary . And the fact was, as has been noted,
that Hall was moving at the time he overhead such conversation.
14 We would reach the same result , however, even absent such evidence , as did the Trial
Examiner.
_J
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Interrogating employees concerning their union views, member-
ship, and activities; keeping under surveillance representatives of
the Union engaged in union activities; threating to close the plant and
to deprive employees of existing privileges if the Union should become
their collective bargaining representative; and threatening employees
with trouble and with loss of existing working conditions for engaging
in union activities.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist Amalgamated Clothing Workers
of America, CIO; or any other labor organization, to bargain col-
lectively through representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities,
except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Mary E. Riley, Frances A. Kirk, Suzanne M. Marshall,
and Lucy Thibodeau immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their senior-
ity or other rights and privileges, and make them whole in the manner
set forth in the section of the Intermediate Report entitled "The
Remedy."
(b) Upon request, make available to the Board or its agents for
examination or copying all payroll and other record necessary to ana-
lyze the amounts of back pay due.
(c) Post at its plant at Bennington, Vermont, copies of the notice
attached to the Intermediate Report and marked "Appendix A." 15
Copies of said notice, to be furnished by the Regional Director for
the First Region, shall, after being signed by Respondent's represent-
ative, be posted by Respondent immediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or covered by any
other material.
15 This notice shall be amended by substituting for the words "The Recommendations
of a Trial Examiner" in the caption thereof, the words "A Decision and Order." If this
Order Is enforced by a decree of the United States Court of Appeals , the notice shall be
further amended by inserting before the words "A Decision and Order ," the words "A
Decree of the United States Court of Appeals Enforcing , an Order."
E-Z MILLS, INC. 985
(d) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Order, what steps Respond-
ent has taken to comply herewith.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the National Labor Rela-
tions Act, as amended (61 Stat. 136), was heard in Bennington, Vermont, on
February 18, 19, and 20, 1952, pursuant to due notice to all parties. The com-
plaint, issued on January 7, 1952, by the General Counsel of the National Labor
Relations Board,' and based' on a charge duly filed and served, alleged in sub-
stance that Respondent had engaged in unfair labor practices prescribed by
Section 8 (a) (1) and (3) of the Act by (a) discharging discriminatorily
Frances A. Kirk, Suzanne M. Marshall, Lucy Thibodeau, and Mary E. Riley on
September 24, 1951,2 and thereafter refusing to reinstate them; and (b) engag-
ing in other specified acts of interference, restraint, and coercion since January
18, 1951.
Respondent's motion for a bill of particulars, granted in part by Trial Exam-
iner C. W. Whittemore, was complied with by the General Counsel on January
22, 1952. Respondent, by its answer filed February 4, 1952, admitted the
separation of the four employees in question, but denied the commission of
unfair labor practices as alleged.
All parties were represented at the hearing by counsel or by representatives
and were afforded full opportunity to be heard, to examine and cross-examine
witnesses, to introduce relevant evidence, to argue orally, and to file briefs and
proposed findings and conclusions. Various motions were made and were dis-
posed of during the hearing, including the granting of Respondent's motion at
the conclusion of the General Counsel's case to strike limited portions of the
complaint. Oral argument was waived. Briefs have been filed by the General
Counsel and the Respondent.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Vermont corporation, with plants at Bennington, Vermont, and
Cartersville, Georgia, and an office in New York City, is engaged in the manu-
facture of men's underwear. Only the Bennington plant is here involved. Raw
materials consisting of cotton and wool yarns, equipment, and supplies are
purchased at an annual cost in excess of $500,000, mostly from points outside
the State of Vermont. Annual sales exceed $1,000,000, the majority of which
are to out-of-State points. Respondent is engaged in defense work for the United
States Government. Respondent admits, and it is hereby found, that it is
engaged in interstate commerce within the meaning of the Act.
i The General Counsel and his representative at the hearing are referred to herein as
the General Counsel and the National Labor Relations Board as the Board . The above-
named Company is referred to as Respondent and the charging union, above named, as the
Union.
2 All acts herein occurred in 1951, except where otherwise stated.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2 (5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction: synopsis of nu in events and issues
Respondent normally employs around 600 employees in its plant at Bennington,
which is a town of approximately 10,000 people. Its managerial and super-
visory staff consists of Sherman P. Haight, Jr., vice president, H. C. Gates, gen-
eral manager, Harold Towslee, production manager, Percey S. Russell, Vincent
Hoy, William Thomson, Harry Tietjen, Richard Ralph, and George Getty.
The Union began an open organizational campaign on June 22, 1951, and
Respondent immediately countered with speeches by Haight and Gates. As
the campaign progressed, Respondent engaged in other acts alleged by the
General Counsel to constitute unlawful interference therewith. On September
24, Respondent laid off and/or discharged the four employees mentioned in
the complaint, who had shortly before been named by the Union as members
of its working committee. The General Counsel offered evidence to support
his contention that Respondent was aware of the union activities of the four
employees and that it discharged or laid them off on account thereof.
Respondent offered evidence in denial of most of the alleged incidents of
interference, restraint, and coercion. It also denied knowledge of the union
membership or activities of the four alleged dischargees, and denied separating
them on account thereof. It offered evidence that during a reduction in force,
necessitated by a curtailment of its civilian business, it had laid off Kirk,
Marshall, and Thibodeau in line with its seniority policy, and that Riley was
selected contemporaneously for outright discharge because of various factors
which had rendered her an unsatisfactory employee.
Most of the incidents of alleged interference, restraint, and coercion occurred
prior to the layoffs, and the evidence concerning them will therefore be first
summarized.
B. Interference, restaint, and coercion
The first indication of union activity occurred on June 22, when a union or-
ganizer named Herman Greenberg passed out leaflets or fliers at the plant.
Respondent acted immediately to combat the organizational campaign. Haight
and Gates prepared drafts of speeches which they made later that day on all
five floors of the plant and to all employees. Haight and Gates testified that
although they did not read the speeches they adhered to the texts, which charged,
among other things, that Greenberg had been investigated for subversive activ-
ities and which stated Respondent's intention to fight any attempt by "any
Russian born like Greenberg" to "step between us." The General Counsel con-
ceded that the written texts of the speeches contained nothing which constituted
interference, restraint, and coercion, but contended that Haight and Gates in
fact departed from those texts and made statements of a coercive nature.
Thus Frances Kirk testified that Gates referred to Greenberg as a Russian
Jew, stated that he had been investigated for Communist activities, and added
that before he (Gates) would let a "kike" from New York tell him how to run
his business he would shut the doors. Lucy Thibodeau and Suzanne Marshall
testified to substantially the same effect. Dorothy Dupee was unable to recall
specific statements contained in the speeches until her memory was refreshed
from a prior affidavit given during the investigation of the charges. She then
E-Z MILLS, INC. 987
testified that Gates had said during his speech that "they'd rather close the
doors than to have the Union get in."
Towslee testified that he heard the speeches twice, and that neither Gates
or Haight made any threat of, or reference to, closing the plant or shutting the
doors.
As is seen , 4 employees testified to one version of the speeches, while 3 of Re-
spondent 's top management officials testified in direct contradiction insofar as
coercive content was attributed to the speeches. Antipathy to the Union, to
its organizers , and to the attempt to organize Respondent ' s employees was plain,
however, from the versions which Gates and Haight admitted giving. In re-
solving the issue of credibility what is of striking significance is that though the
speeches were given on all floors and to some 700-odd employees, Respondent
did not call a single employee witness to corroborate the testimony of Gates and
Haight. Such failure justifies the inference that their testimony would have
been adverse or unfavorable. Cf. Interstate Circuit, Inc. v. United States, 306
U. S. 208, 225-226. Under these circumstances and in view of the mutually cor-
roborative testimony of the General Counsel's witnesses , their version is
credited.'
Shirley Maguire, who was not a union member, testified that sometime in
July she and three other employees had encountered Joseph P. Langell, an in-
ternational representative of the Union, at the Village Nook during the noon
dinner hour and that Langell had walked back toward the plant with them.
She testified that shortly after work was resumed at 1 p. in., she and Lorraine
Cross were called into Respondent's office and questioned by Gates in Haight's
presence. Gates stated that he had been informed that the two girls had walked
back with a union man, and they verified the fact. Gates requested that they
tell him what the Union had to offer if it got in, and they explained what they
knew of the Union's promises and representations. Gates also asked them what
they thought about the Union, and they replied that they did not know enough
about it to express an opinion. Gates admitted the incident substantially as
testified to by Maguire.
Langell had begun to participate in the campaign around July 15. Langell
testified that approximately a week and a half later and after he and Green-
berg had passed out fliers at the plant one morning, Harold Tietjen trailed them
in his car from the plant and during a somewhat circuitous route in downtown
Bennington , Langell and Greenberg finally parked in front of the Village Nook
and went inside for coffee. They then observed Tietjen standing across the
street, but Langell did not see where Tietjen had left his car. Tietjen did not
testify in denial of the incident.
Mary Riley testified to a number of conversations between employees in her
department to which her foreman, Russell, had listened and in some of which
be had joined, but with one exception Russell 's comments did not appear to be
of a coercive nature. That exception involved a conversation in August be-
tween Blanch Hoyt, Pat O'Toole, and Russell. O'Toole had commented that a
"Union man" had informed her that she would not have to pay union dues until
after she had received a raise, and Russell replied, "Well you will find out that
after the Union gets in, things will be hard and you won't have privileges and
8 This resolution of the credibility issue is supported most persuasively by the testimony
of Charles Bartlett , an employee of a local garage patronized by Towslee , that during
the month of September he overheard a conversation at the garage between Towslee and
other persons in which Towslee stated that if the Union kept making trouble, Haight
and Gates would close the doors . This testimony by a disinterested witness goes far
to establish the true attitude of the Respondent toward the organizational efforts of its
employees.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you won't be running out to smoke like you do now." Russell denied making
that remark and also denied joining in or listening to the other conversations
which Riley had testified to. Indeed, Russell went so far as to testify that he
had no knowledge of, and had seen no indication of, any union activities at any
time prior to September 25. In view of the acknowledged distribution of union
fliers on and after June 22, the Gates-Haight speeches, and the widespread pub-
licity given to the union dinner, that testimony is incredible. Riley's testimony
is, therefore, credited.
Hilda Stroffoleno testified that on September 19, the day she was quitting Re-
spondent's employ, Towslee questioned her about the Union's chances of "get-
ting in," about her intention of attending the union dinner (to be held on
September 27), and stated that "there was a certain group of girls who were
heading for trouble, and he hated to see them get into trouble." Towslee ad-
mitted the questioning, and made no express denial of the other statements
which Stroffoleno attributed to him. In apparent justification of his actions, he
explained that at the time he talked with Stroffoleno, she had already severed
her employment.
Dupee testified that on September 21 she questioned William Thomson about
whether the plant would close if the Union came in and that he replied that he
could not say as to that. He added, however, that he understood that union
meetings were being held at Marshall's home and that Marshall "had better
watch her step or she would be getting into trouble." 4
Eli Frazier testified that on September 27, Towslee questioned him about the
intention of the machinists to attend the union dinner to be held that night.
Towslee stated he understood they were going to attend and that "We are not
trying to tell you fellows what you can do and what you can't do, especially on
your own time, but I'd like to have you see how it looks. If you fellows all go
down there in a bunch, people from the mill are going to see you, and they are
going to start a lot of talk ; and it will be just that much harder to handle the
girls." When Frazier replied that the machinists just wanted to see what the
union representatives had to say and what the other side of the picture was like,
Towslee continued, "Well, there is nothing we can do to stop you or anything, but
I think this has been a pretty good place for you boys to work in, and if the Union
did get in, I don't know what would happen." (Emphasis supplied.)
Frazier repeated the conversation to some of the other machinists, and as a
result they decided that they would be "looking for trouble" and "sticking their
necks out," and that they should "leave it to the girls." Accordingly, although
they had planned to attend, they did not do so.
The preponderance of the evidence refutes the General Counsel's contentions
that shortly thereafter the machinists were rewarded for their abstinence by the
restoration of "oiling time ," for which they were paid at overtime rates. Re-
spondent's evidence establishes that oiling time (normally done during overtime
hours) was first included within the regular 40-hour workweek at the time the
plant operations were cut to 3 days a week, and that it was later put back into
overtime hours when operations were increased to 4 days a week.
Kirk and Audna Parker testified to conversations with Towslee concerning
his alleged surveillance of the union dinner on September 27, but the General
Counsel relies on neither in his brief . Both conversations were of a jocular or
bantering nature, apparently initiated by the employees themselves, and neither
was sufficient to establish that Towslee's replies were coercive or that he had
engaged in surveillance.
4 Thomson's denial is not credited.
E-Z MILLS, INC. 989
The General Counsel also contends that various remarks attributed to head
machinist James Maclay constituted interference, restraint, and coercion.
Maclay did not testify and there is no denial of record that the alleged remarks
were made . Though some of them at least were of a coercive character, if
responsibility therefor is imputable to Respondent, what is at issue is whether
Maclay was a supervisor within the meaning of the Act. A preponderance of the
evidence establishes that he was not. Though Maclay was head machinist and
foreman, he spent practically his entire time in manual labor, fixing machines,
1. e., doing exactly the same work as the other eight machinists. He wore work
clothes, as did the other machinists, punched the time clock as they did (and as
none of Respondent 's supervisors did), and was paid on an hourly basis as they
were, though at a slightly higher rate. Respondent's supervisors were all paid
on a weekly salary basis.
Though there is evidence that Maclay sometimes exercised authority to assign
other machinists to the repair of particular machines , that they reported to him
for sick or other leave, and that he sometimes made recommendations concern-
ing the machinists, the evidence in its entirety establishes that the exercise of
such authority was of a merely routine nature and did not require the exercise
of independent judgment. Maclay's status resembled that of the unit captains
(admittedly not supervisors ), who exercised some direction and authority over
the employees in their units , but who , like Maclay, did manual work , punched
the time clock , and were paid on a basis similar to the other employees. It is
therefore concluded and found that the evidence does not establish that
Respondent was responsible for Maclay 's acts and statements.
The General Counsel also offered evidence that in July Respondent announced
the granting for the first time of five paid holidays, and that on January 8, 1952,
Respondent granted a general wage increase of 5 percent . There was no direct
evidence that Respondent had granted the holiday benefits to interfere with the
organizational campaign or to restrain the employees from joining the Union.
As to the wage increase , Haight testified that the decision to make it had been
reached by the board of directors at its regular December meeting in New York
City, and that the increase, when announced, was already effective. Haight's
formal announcement referred only to economic and business factors; it con-
tained no reference to the Union and nothing which indicated an intention to
interfere with the organizational campaign . Respondent did not receive until
January 9 the Union 's letter of January 8, in which the Union for the first time
claimed a majority representation , and there is no evidence to support the
General Counsel's contention that Respondent announced the increase in antici-
pation of the Union's request for recognition.
Concluding Findings
The threats to close the plant , made during the Gates-Haight speeches on
June 22, were plainly coercive and violative of the Act . Similarly coercive were
the warnings and threats by Towslee and Thomson to Stroffoleno and Dupee,
respectively, directed at certain employees in relation to their union activities.
Nor was Towslee's successful procural of the absentation of the machinists
from the union dinner the result of mere persuasion on his part . Cf. Section
8 (c). Obviously implied and intended ( and so interpreted by the machinists)
was the warning that the advent of the Union would entail the risking of the
existing favorable conditions under which the machinists worked, and to which
Towslee pointedly referred . Coercive also was Russell's threat, testified to
by Riley, that advent of the Union would mean the loss of existing privileges.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tietjen's trailing of Langell and Greenberg during working hours through
downtown Bennington must be considered in the light of the fact that it was
not explained , in the light of Respondent's inquisition of Maguire and Cross
concerning their meeting with Langell, and in the light of Respondent's alertness
generally to the progress of the organizing campaign. The inference is plainly
justified, and it is found, that Respondent, through Tietjen, was engaged in
surveillance of union activities.
Also violative of the Act was the detailed interrogation of Maguire and Cross
by Gates and Haight concerning their association with Langell, concerning the
Union's promises and representation, and concerning their own union views,
and the later interrogation of Stroffoleno by Towslee concerning the Union
and its activities.5 Such interrogation did not occur in a vacuum, nor did it
constitute a part of perfunctory or isolated remarks ; it occurred, instead, in
a setting of antiunion bias and background and as part of a pattern or course
of conduct hostile to and avowedly committed to the defeat of the unionization
of its employees. Furthermore, Towslee's interrogation of Stroffoleno was
coupled with warnings and threats directed against employees in reference to
their union activities.
It is, therefore, concluded and found that by the foregoing acts and statements
Respondent engaged in unfair labor practices proscribed by Section 8 (a) (1).
The evidence does not, however, sustain the General Counsel's contention
that the granting of the holiday benefits and the wage increase constituted
unlawful interference in the organization campaign. The Act does not, of
course, preclude an employer from introducing benefits during an organizational
period. What is prohibited is the employer's use of proposed benefits as an
inducement to employees not to join the union. Joy Silk Mills v. N. L. R. B.,
185 F. 2d 732 (modifying and enforcing 85 NLRB 1263), cert. den. 341 U. S.
914. There is no evidence here, as in the Joy case, that the benefits were
announced in a context of speeches or statements relating to unionization or
to Respondent's opposition thereto. Nor is there other evidence from which
it can properly be inferred that the benefits were granted for the purpose of
affecting the employees' decision to join or not to join. To the contrary, the
announcement of the wage increase was based on the continued inflationary
trend in the national economy, a fact of so common knowledge that it can be
noted judicially. It is therefore concluded and found that Respondent did
not, by the granting of said benefits, violate the Act.
C. Discrimination
On September 24 Respondent laid off Kirk, Thibodeau, and Marshall and
discharged Riley outright. Riley had been employed since January 1946 in
the box department under Russell's supervision. The other three had served
through various separate periods of employment. During their last employ-
ment they were employed in the finishing operations on civilian goods. Mar-
shall worked under Thomson's supervision on the second floor in the "school" or
"convention" section, in which newer girls were usually trained before being
transferred to the unit system a Kirk and Thibodeau worked in units on the
third floor under Hoy's supervision.
E The questioning concerning Stroffoleno 's intention to attend the union dinner plainly
disclosed Towslee's recognition that Stroffoleno had not severed her ties with her fellow
employees and that his coercive remarks would or might well be repeated among them.
6In the convention section the employees worked as individuals in performing various
finishing operations, whereas the units operated on a production or assembly-line basis.
E-Z MILLS, INC.
1. Union membership and activity ; Respondent's knowledge thereof
991
Kirk, Thibodeau, Marshall, and Riley joined the Union in August, were shortly
thereafter appointed to the Union's working committee of six members, and
represented the Union in their respective departments. During the latter
part of August and during September, they openly passed out application cards
and engaged in other organizational activities both in and out of the plant.
Those activities included, the week before September 24, the passing out in the
plant of invitation cards to the union dinner scheduled for September 27.
Beginning late in August, union meetings were held in the home of Thibodeau
and Marshall, who were sisters.
Respondent denied that it had knowledge of the union membership and activi-
ties of any of the four employees. The evidence establishes the contrary. It is
true that the Union made no announcement of the appointment of the four to its
working committee and that Respondent was not otherwise advised of their ap-
pointment thereto, but the evidence summarized under section B, supra, shows
that Respondent was fully aware of the progress of the Union's campaign and
of the identity of its active workers. The more salient circumstances will be
briefly referred to without restating the evidence in complete detail.
Respondent's alertness to, and its intention to combat, the organizational move-
ment were fully demonstrated by the immediate delivery of the Haight-Gates
speeches on the very day that organizational activities began, by its immediate
questioning of Maguire and Cross concerning their chance meeting with Langell,
by Tietjen's surveillance of Langell and Greenberg, and by Towslee's successful
prevention of the attendance of the machinists at the union dinner. With
specific reference to the activities of the four alleged discriminatees, Respondent's
knowledge was not only inferable from the fact that they openly distributed
union cards and invitations within the plant, but was affirmatively established
by Thomson's remarks to Dupee as to union meetings at the Marshall-Thibodeau
home and his warning that Marshall was courting trouble, and by Towslee's
conversation with Stroffoleno concerning the Union's campaign, in which he
similarly predicted trouble for "a certain group of girls." In Riley's case, Re-
spondent's knowledge was also specifically established by the several conversa-
tions in Russell's presence concerning union activities about which Riley testified.
2. Evidence of a discriminatory motivation
The evidence summarized under section B, and recapitulated above, is also
relevant on the issue whether the Respondent's action was motivated by its
knowledge of the union activities of the four employees and by its desire to
defeat the organizational drive. Of particular pertinence were its expressions
of bitter antipathy to the Union and its representatives and its threats to close
the doors rather than to deal with them. Of greater significance were Thomson's
warning of trouble for Marshall because of the holding of union meetings in her
home, and Towslee's similar warning to Stroffoleno, in a conversation concerning
the progress of the Union's campaign, of impending trouble for a certain group of
girls. Those warnings clearly reflected not only Respondent's awareness of the
identity of the union leadership within the plant, but its intention not to counte-
nance active and open union activities by its employees ; they were obviously a
part of Respondent's course of antiunion conduct and were in obvious implementa-
tion of its avowed policy to defeat the organization of its employees. In context,
content, and timing, and in the light of Respondent's course of conduct, those
warnings (almost on the eve of the separations), plainly made out a prima facie
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case that Respondent was discriminatorily motivated in its selection of the four
employees for layoff and discharge on September 24.'
Were there no further evidence, the report might well end here. However,
Respondent offered evidence in support of its contention that its action was not
discriminatorily motivated but was taken under a reduction in force necessitated
by a curtailment of its civilian business and made pursuant to its standing policy,
which is elsewhere referred to. Attention is accordingly turned to that evidence.
3. Evidence supporting the Respondent' s defenses
There is no doubt under the evidence that Respondent was justified in effecting
a reduction in force when it did because of a continuing diminution of civilian
orders' Thus Respondent's records disclosed a sharply diminishing proportion of
civilian orders from June through September in comparison with corresponding
business for the same months of the preceding year, and a corresponding diminu-
tion even when Government orders are also included. Respondent's records sim-
ilarly reflected a sharp drop in the total number of employees (mainly through
voluntary separations), from a high of approximately 717 at the end of June, to
approximately 645 on September 22, and continuing to a low of approximately
580 on November 24.
The question remains whether the Respondent's selection of the four em-
ployees was made on the basis asserted by it or whether, acting through antiunion
motives, Respondent simply took advantage of curtailed operations to rid itself
of four of the Union's most active backers. The evidence offered to support Re-
spondent's position on the layoffs will be first considered, since the discharge of
Riley admittedly constituted an exception to Respondent's alleged policy.
a. The layoffs
Respondent's policy governing layoffs, as explicated by its counsel at the hear-
ing, was that seniority prevailed except in cases where there might exist a marked
difference in skill, in which cases a junior employee might be selected for reten-
tion. But it was conceded by counsel, and admitted by Haight in his testimony,
that only seniority was controlling in the layoff of Kirk, Thibodeau, and Marshall,
and it was stipulated that they were in fact fully competent.
The above statement of Respondent's policy was supported, by and large, by the
testimony of Respondent's witnesses, who also agreed in the main that seniority
' Rejected Is Floyd Hall 's testimony that he overheard a conversation between Russell
and Towslee a few days before Riley 's discharge in which Russell told Towslee that Riley
was a troublemaker, that she was passing out union cards, and that she had to go.
Russell and Towslee denied the conversation , and their denials are credited in view of
Hall 's confused and contradictory testimony as to the circumstances under which he
claimed to have overheard the conversation.
Rejected also, because unsupported by a preponderance of the evidence , are the General
Counsel's contentions that the precipitate nature of Respondent 's action was a departure
from its normal practice and that its cancellation of the group insurance established that
Respondent had in fact discharged Kirk, Thibodeau , and Marshall.
s Though Haight 's announcement on September 24 that operations were shortly to be
increased to 4 days a week was a suspicious circumstance , Gates explained that lack of
orders had left Respondent with surplus employees and that Respondent decided that
it was preferable to operate 4 days with a smaller force than to continue operations
for 3 days with a larger force. Though this is contrary to management policy generally,
which is usually to retain employees by spreading employment through a reduction of
working hours, Respondent 's adoption of a different policy was of course a managerial
function and within Respondent 's sole discretion. Cf. Pepsi Cola Bottling Company of
Montgomery, 72 NLRB 601.
E-Z MILLS, INC. 993
was computed by the job classification of the employee. From that point on-
ward, however, Respondent' s witnesses differed widely as to the details of the
"system" and as to how it was applied so as to reach Kirk, Thibodeau, and Mar-
shall. According to Gates, where an employee had more than one job classifica-
tion, seniority was computed by the principally used skill . Towslee testified am-
biguously that if an employee had skills in more than one job "the job that she
has the skill in is classified ." Thomson testified that seniority within the job
classification was on a plant-wide basis, but that if an employee could do more
than one job, "we'd take them all into consideration." Russell, though insisting
that there was a "definite seniority policy," admitted that there were times when
Respondent did not use it, and that it did not follow the policy on occasions when
it did not wish to do so.
Thomson also testified that preference was given to girls working in the units,
because they were faster and more experienced, and that when layoffs became
necessary, girls were transferred from the units back to the conventional depart-
ment, thereby "bumping" the newer and less skilled employees. Towslee, in
turn, agreed that the "bumping" process would be continued down through the
school, and that Marshall, for example, would replace a trainee who had less
seniority than she. Respondent's brief accepts the Thomson-Towslee version of
the "bumping" process , stating that, "when production is curtailed or work is
slack for the third floor units, the Conventional Section is used to absorb some
of the employees working in the units, on a seniority basis by classification. In
this event it is also Respondent's normal practice to lay off employees in the
Conventional Department where there is not sufficient work available."
But the evidence surrounding the layoff can be squared neither with that nor
with any of the other versions of the policy. Only a few of the more glaring
inconsistencies need be mentioned.
Kirk's job classification was rib sewer, and Respondent's records show her
seniority as beginning on July 24, 1950. Kirk was selected for layoff, though
Respondent retained Janet Baker as a rib sewer and though Baker's seniority,
according to Respondent's records, began on June 18, 1951.
Thibodeau's job classification was elastic sewer and label sewer and her
seniority began, according to Respondent's records, on January 3, 1950. Gates
admitted that the elastic machine was a specialized operation requiring special
skill. Hazel O'Brien, who replaced Thibodeau in the unit on September 24, was
transferred there from the conventional department. She had been employed
from 4 to 5 years and had spent from 3 to 4 years running a superlock machine.
While a new employee in the school, she had been taught the fundamentals of
elastic work, but she had not, except for short intervals, operated the elastic
machine thereafter. Yet though Gates contended that seniority was computed
by the principally used skill, Thibodeau, whose principal skill was on the elastic
machine, was replaced by O'Brien, whose principal skill was that of a
superlock operator. The anomalies presented by Gates' testimony were em-
phasized by his answer to a hypothetical question which posed the Thibodeau-
O'Brien situation, in which Gates denied that a person with O'Brien's experience
on the superlock machine would have been retained over Thibodeau in view of
the latter's experience on the elastic machine.
Towslee admitted that Marshall would have been entitled to replace any
trainee in the school with less seniority than she. According to Respondent's
records, Marshall's seniority, dating from June 12, 1951, exceeded Barbara Matti-
son's, a trainee, who was first hired on June 18, 1951, and who was rehired on
August 29, 1951. Furthermore, Thomson testified that he was training girls for
tacking (Marshall's job classification) all the time, including September.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Though Kirk and Thibodeau were working In units, they were not transferred
to or offered transfers to conventional. Hazel O'Brien and Fabiola Hall, who
replaced them, respectively, were transferred for that purpose from the con-
ventional department, where they were working, and O'Brien was permitted to
transfer back to the superlock machine some 2 or 3 weeks later when the Thibo-
dean unit was finally broken up.
Respondent dated the seniority of Kirk, Thibodeau, and Marshall from the date
of their last employment, but in other cases recognized seniority from the date
of the employee's first employment. Thus Kirk worked for various periods and
on various jobs since 1945, but her seniority was counted for the purposes of the
layoff as dating from July 1950. Thibodeau was first employed in 1940 and
served through three different periods of employment, but her seniority was
fixed as beginning in January 1950. By way of contrast, for example, though
Shirley Maguire had been out of Respondent's employ for 15 months and had
not applied for a leave of absence, Respondent counted her seniority as beginning
in 1947, with her original employment.
Further telling refutation of Respondent's contentions concerning its layoff
policy was supplied by the fact that an earlier and far more drastic layoff had
occurred in November 1950, without reaching Kirk, who then had less than 3
months' seniority, and Thibodeau, who had only 10 months' seniority according to
Respondent's count. Though that layoff affected between 30 to 40 employees and
was therefore roughly 10 times as drastic as that of September 24, Respondent
offered no explanation as to how Kirk and Thibodeau escaped despite their scant
seniority and lesser experience, skill, and value to Respondent at the time"
Respondent's showing above summarized was plainly inadequate to overcome
the prima facie case made out by the General Counsel that Respondent, in se-
lecting the three girls for layoffs, was motivated by discriminatory considera-
tions. Thus the evidence shows that under Respondent's version of its seniority
policy the girls would not have been reached at all, or if reached, would have
been entitled to transfer to the conventional or school sections and there to
"bump" junior employees. Indeed, the evidence in its entirety, including the
unexplained failure to reach two of the girls during the mass layoff the preceding
November, justifies the conclusion (supported also by Russell's frank appraisal)
that Respondent followed its seniority policy only when it wanted to.
The evidence therefore fails to support Respondent's contention that it selected
the three girls under its seniority or layoff policy. Cf. N. L. R. B. v. Bird Machine
Company, 161 F. 2d 589, 592 (C. A. 1) ; Deena Products Company, 93 NLRB 549,
552-3, enfd. as modified, 195 F. 2d 330 (C. A. 7) ; Carolina Mills, Inc., 92 NLRB
1141, enfd. 190 F. 2d 675 (C. A. 4) ; W. C. Nabors Company, 89 NLRB 538, 543
and cases cited. Nor does the Respondent's showing otherwise rebut the
General Counsel's prima facie case above summarized that it was Respondent's
disapproval of the union activities of the three employees and its desire to
discourage the organizational trend which motivated the layoff. It is there-
fore concluded and found that Respondent discriminated against said employees
and thereby engaged in unfair labor practices proscribed by Section 8 (a) (3)
and (1).
Y The foregoing resume has proceeded with acceptance of Respondent's contention that
seniority was measured by the employee's principally used skill . Kirk, Thibodeau, and
Marshall each testified to having skills in other operations and to having seniority over
a number of employees in such other operations . Their testimony as to their other skills
was unrefuted, and their testimony as to seniority therein received substantial corrobora-
tion from summaries of Respondent's records. Dowever, the point is immaterial in view
of the finding herein that the three employees were not reachable under a nondiscrimina-
tory application of Respondent's claimed policy.
E-Z MILLS, INC.
b. The discharge of Mary Riley
995
Riley had been employed for over 5 years on various jobs in the box depart-
ment, under Russell's supervision, and stood third in line of seniority. She was
not reachable under any version of Respondent's layoff policy in the limited
reduction in force which Respondent found it necessary to invoke on Septem-
ber 24. Respondent's position as stated at the hearing was that Riley was
selected for separation "on the basis of rather marked comparison of perform-
ance and other factors between her and the junior employee who normally
would have gone under this curtailment." Respondent's brief states that Riley
"was discharged as an unsatisfactory employee after accumulating a record
of excessive absenteeism, absence without leave, faulty work, inability to get
along with other employees, fighting and cursing at other employees while at
work," and that her absence without notice on the morning of September 24
"was the final culmination of a series of incidents and derelictions."
Riley did not report for work on the morning of September 24, and did not
call in.10 Russell reported that fact to Towslee and was directed to report
further when Riley came in. Riley arrived after the noon recess and Towslee,
in Russell's presence, thereupon discharged Riley. The testimony of the three
as to Towslee's statements on the occasion is in conflict, but under all three
of the versions Towslee referred to different phases of Riley's performance and
attitude, and under none of them was her morning's absence assigned as the
only or even as the chief reason for the discharge. Further reconciliation of
the conflicting versions is unnecessary in view of the conclusions herein reached.
Respondent's charges against Riley were based principally on Russell 's testi-
mony, which was characterized by many inconsistencies and contradictions.
Thus, according to Russell, Riley had been engaged in the types of misconduct
referred in Respondent's brief during the entire 5 years of her employment.
During most of that period Russell himself had the power to discharge without
prior recommendation. Russell testified he had repeatedly warned Riley," but
he had not previously disciplined her or discharged her. And though Russell
admitted that Riley's discharge "could have happened last year just as easy
as it did this year," he contended at another point in his testimony that he was
unable to take disciplinary action, because of her absenteeism for example,
because as a foreman he would not know what to do.
As against Russell's characterization of Riley as a girl of undesirable traits,
habits, conduct, and workmanship throughout the 5 years of her employment,
Russell admitted on cross-examination that he got along well with Riley, liked her
all right as an employee, that she was quick to learn, was a fast worker, and gave
good production.
Russell asserted that Riley's profanity was one of the faults about which he had
frequently reprimanded her, that he had in fact discharged two other employees
for similar misconduct during the period of Riley's employment, but he advanced
no explanation of his earlier failure to discharge a chronic violator like Riley.
Russell also testified that in January 1951 he had gone so far as to prepare a
formal written recommendation for Riley's discharge, but that as a result of an
accident he did not turn the recommendation in to Towslee, and that after his
recovery and return to the plant, he did not follow the matter up but simply tore
up the recommendation. Russell testified, however, that he had complained to
10 After reduction of the workweek to 3 days, Riley had taken part-time employment
as a waitress , and according to Russell that employment had accounted for an increase
in Riley's absenteeism.
11 Riley's denials are not credited.
242305-53-64
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Towslee orally "many times" about Riley over a 2-year period . He fixed one such
complaint as having been made 2 months before his written recommendation in
January 1951 , and testified that he then told Towslee that "sooner or later we
simply had to do something about [Riley]" Though Russell 's complaints to
Towslee had then continued over a period of more than a year , and though the
last mentioned repetition was contemporary with the drastic November 1950
layoff, Respondent made no explanation of its failure to rid itself of Riley at
that time.
Russell also emphasized an incident shortly before Riley 's discharge when
Riley 's time card had been punched out by another employee at her request.
Though Russell contended that this was contrary to Respondent 's rules, he ad-
mitted that it had long been a common practice for employees to disregard the
rule and that such was "the general attitude throughout the whole mill."
Russell also testified to Riley's record of tardiness and absenteeism , particularly
after May 1. He testified further that on the 1st of August he warned Riley
about her absenteeism and about some trouble she had had with another employee
and that he also then recommended to Towslee that Riley be discharged . Russell
testified further that as a result of his conversation with Towslee, he understood
that Riley would be released on the next occasion of her absenteeism, misconduct,
or breach of the rule prohibiting the punching of time cards by other employees.
Yet Russell testified that thereafter Riley was absent on August 10 for 3 hours,
on August 27 for 3 hours and on September 12 for 3 hours , and that a week or
10 days before her final discharge she had had another employee punch out her
time card. Furthermore, Russell had made a further recommendation for Riley's
discharge on September 1.
Other inconsistencies developed from evidence other than Russell 's testimony.
Haight, contrary to Russell, took the position that Riley's production was unsat-
isfactory. Haight admitted that under State laws an employee separated be-
cause of misconduct is penalized with respect to unemployment benefits ; that
when Respondent wished to object to a separated employee receiving such bene-
fits, it does so by a protest to the effect that the employee was discharged for
misconduct ; and that no such protest was made in Riley's case . To the contrary,
Respondent in reporting Riley's separation to the State Unemployment Compensa-
tion Commission , assigned as the sole reason therefor that she "was not coopera-
tive with associates."
Certainly it is clear from the evidence that Respondent, had it wished, might
have discharged Riley for any one of various reasons at any time during her
5-plus years of employment . Certainly, too, continuing causes existed on Sep-
tember 24 which would have justified the discharge if they constituted the
motive for Respondent's action. N. L. R. B. v. Tennessee Coach Co., 191 F. 2d
546 (C. A. 6) and cases cited. The question is whether Respondent's evidence
overcame the General Counsel's showing that Respondent acted from a discrimi-
natory motive. Plainly it did not.
Under Russell's testimony Riley's performance and attitude had been con-
tinuously unsatisfactory for over 5 years. Haight had been aware of her short-
comings for 2 years. Repeated complaints had been made to Towslee for 2
years. It strains credulity to believe that Respondent would have long con-
tinued in its employ an employee whose performance and attitude were so
consistently unsatisfactory. It is altogether incredible that it would have done
so in the face of the drastic reduction of force in November 1950, which was
contemporaneous with one of Russell's specific complaints to Towslee. The
simple clear fact that emerges is that Respondent was content with Riley as
an employee , in spite of her transgressions , until she became an active partici-
E-Z MILLS, INC. 997
pant and leader in the organizational activities which Respondent was com-
mitted to defeat.
It matters not, of course, that for reasons apart from union activity an
employee deserves summary discharge if in fact the reason was union activities.
N. L. R. B. v. Electric City Dyeing Company, 178 F. 2d 980 (C. A. 3) ; Budd
Manufacturing Company v. N. L. R. B., 138 F. 2d 86, 90-1 (C. A. 3), cert. den.
321 U. S. 773; N. L. R. B. v. Vail Manufacturing Company, 158 F. 2d 664, 666
(C. A. 7) ; N. L. R. B. v. Wells, Ino., 162 F. 2d 457, 460 (C. A. 9), and cases cited.
Respondent's bias against unionization and its intention to discourage and to dis-
cipline the employee group who were sponsoring organization within the plant
were plainly established. Cf. N. L. R. B. v. Robbins Tire and Rubber Company,
161 F. 2d 798, 801 (C. A. 5). It was that bias and antipathy to union member-
ship and activities which constituted the causa causans, the real cause of the
discharge. Ibid.
It is therefore concluded and found that Respondent discriminated against
Riley because of her union membership and activities and thereby engaged in
unfair labor practices proscribed by Section 8 (a) (3) and (1).
IV. 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 operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
V. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor
practices, it will be recommended that it cease and desist therefrom and that
it take certain affirmative action designed to effectuate the policies of the
Act. It having been found that Respondent engaged in certain acts of inter-
ference, restraint, and coercion, it will be recommended that Respondent cease
and desist therefrom.
It has been found that Respondent discriminatorily discharged Mary E. Riley
and that it discriminatorily laid off Frances A. Kirk, Lucy Thibodeau, and
Suzanne M . Marshall and thereafter failed and refused to reinstate them, The
framing of an appropriate remedy requires that attention be given to subse-
quent personnel actions. It has been found that Respondent effected the reduc-
tion in force on September 24, 1951, for legitimate business reasons. The evi-
dence also establishes that further reductions in force were made thereafter and
as late as February 1, 1952, including one on or about October 9 or 10, 1951, when
the units in which Kirk and Thibodeau had been employed were abolished. The
evidence does not establish, however, that the discontinuance of those units led
to the layoff of all the employees therein, since Respondent's records reflect that
only 3 employees were laid off around that time although the units included some
9 or 10 employees each. Furthermore Hazel O'Brien and Fabiola Hall, who had
replaced Thibodeau and Kirk, respectively, were not laid off but were transferred
to other work. Such transfer to other employment was also a privilege to which
Kirk, Thibodeau, and Marshall would have been entitled, absent Respondent's
discriminatory treatment of them, Under these circumstances there is no
warrant for limiting their back pay only to the period of the continued existence
of their units.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is possible , of course , that Kirk , Thibodeau , Marshall , and Riley , might have
been affected by the subsequent reductions of operations, even absent Respond-
ent's unfair labor practices , but the record furnishes no basis for determining
that question. Cf. Carolina Mills, Inc., supra; Deena Products Company, supra.
Under these circumstances it will be recommended that Respondent offer to Riley,
Kirk, Thibodeau, and Marshall immediate and full reinstatement to their former
or substantially equivalent positions (see The Chase National Bank of the City
of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827), without prejudice
to their seniority and other rights and privileges, and, in the event that there is
insufficient work for them, to dismiss, if necessary, all persons newly hired after
the Respondent's discrimination. If there is not then sufficient work available
for the remaining employees and those to be offiered reinstatement, all available
positions shall be distributed among them without discrimination against any
employee because of union membership or activity, and in accordance with the
system of seniority or other nondiscriminatory practice heretofore applied by
Respondent in the conduct of its business. Cf. Carolina Mills, Inc., supra; Deena
Products Company, supra. Respondent shall place those employees, if any, for
whom no employment is available after such distribution, on a preferential list,
with priority in accordance with such system of seniority or other nondiscrimi-
natory practice heretofore applied by Respondent in the conduct of its business,
and thereafter offer them reinstatement as such employment becomes available
and before other employees are hired for such work. Ibid.
It is also recommended that Respondent make whole Riley, Kirk, Thibodeau,
and Marshall for any losses they may have suffered because of Respondent's
discrimination, by payment to each of them of a sum of money equal to the
amount that she normally would have earned as wages from the date of such
discrimination to the date of the offer of reinstatement, or placement on such
preferential list, as the case may be, less her net earnings during said period
(Crossett Lumber Company, 8 NLRB 440, 497-98), the back pay to be computed
on a quarterly basis in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289. Earnings in one particular quarter shall have no effect
upon the back-pay liability for any other such period. As it is possible, however,
that one or more said employees might have been laid off in subsequent reductions
of the work force even if Respondent's selection had been on a nondiscriminatory
basis, this possibility shall be taken into consideration in determining the amount
of back pay due to said employees. Carolina Mills, Inc., supra; Deena Products
Company, supra. In order to insure compliance with the foregoing back pay
and reinstatement provisions, it will be recommended that Respondent be required
upon reasonable request to make all pertinent records available to the Board and
its agents. F. W. Woolworth Company, supra.
In view of the nature of the unfair labor practices committed, the commission,
by Respondent of similar and of other unfair labor practices is' to be anticipated.
In order, therefore, that the recommended order be coextensive with the threat,
it is recommended that Respondent cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the Act. Carolina Mills, Inc.,
supra.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of the
Act.
E-Z MILLS, INC. 999
2. By interfering with , restraining , and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
3. By discriminating in regard to the hire and tenure of employment of Riley,
Kirk , Thibodeau , and Marshall, thereby discouraging membership in the Union,
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 ( a) (3) and ( 1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and ( 7) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning their union views,
membership , or activities ; keep under surveillance our employees or repre-
sentatives of the Union engaged in union activities ; threaten to close our
plant or to deprive employees of existing privileges if the Union should
become their collective bargaining representative , or threaten our employees
with trouble or with loss of existing working conditions for engaging in
union activities.
WE WILL NOT discourage membership in AMALGAMATED CLOTHING WORKERS
OF AMERICA, CIO, or in any other labor organization of our employees, by
discharging , laying off, or refusing to reinstate any of our employees, or in
any other manner discriminating against them in regard to 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 right to self-organization , to form labor
organizations , to join or assist AMALGAMATED CLOTHING WORKERS OF AMER-
ICA, CIO, or any other labor organization , to bargain collectively through
representatives of their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities except to the extent that such rights
may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3) of
the Act.
WE WILL offer to Mary E. Riley, Frances A. Kirk, Lucy Thibodeau, and
Suzanne M. Marshall immediate and full reinstatement to their former or
substantially equivalent positions , without prejudice to their seniority or
other rights and privileges previously enjoyed, and make them whole for
any loss of pay they may have suffered as a result of the discrimination
against them.
All our employees are free to become or refrain from becoming members of
the above -named union or any other labor organization , except to the extent
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the right to refrain may be affected by a lawful agreement requiring mem-
bership in a labor organization as a condition of employment.
E-Z MILLS, INC.,
Employer.
Dated-------------------------------- By------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must
not be altered , defaced, or covered by any other material.
CONSOLIDATED WESTERN STEEL DIVISION, UNITED STATES STEEL COM-
PANY 1 and LOCAL UNION No. 390, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL, PETITIONER
CONSOLIDATED WESTERN STEEL DIVISION, UNITED STATES STEEL COM-
PANY 2 and SHOPMEN'S LOCAL No. 630, OF THE INTERNATIONAL AS-
SOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS,
AFL and LODGE No. 1457, INTERNATIONAL ASSOCIATION OF MACHIN-
ISTS, AFL, PETITIONERS
CONSOLIDATED WESTERN STEEL DIVISION, UNITED STATES STEEL COM-
PANY and INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL
No. 450, AFL, PETITIONER. Cases Nos. 39-RC-19d, 39 RC-.4,93,
and 39-RC-495. December 10, 1952
Decision, Order, and Direction of Elections
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a consolidated hearing was held before Clifford W.
Potter, hearing officer. The hearing officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Members Houston, Murdock, and
Styles].
Upon the entire, record of these cases, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
1 The name of the Employer appears as amended at the hearing.
9 The International Association of Machinists , Lodge 1457, AFL, herein called the
Machinists, filed two petitions on July 8, 1952 , seeking to carve out all employees in the
machine shop department in Case No. 39-RC-496, and all employees in the maintenance
department except electricians in Case No . 39-RC-497. These petitions were consolidated
by the Regional Director with Cases Nos. 39-RC-492, 493, and 495 on July 25, 1952. At
the hearing , the Machinists requested that its petitions in Cases Nos . 39-RC-496 and
39-RC-497 be withdrawn , and that it appear on the ballot as a joint petitioner with the
International Association of Bridge , Structural , and Ornamental Iron Workers, Shop-
men's Local 630 AFL, herein called the Iron Workers . The request to withdraw the
petitions in Cases Nos. 39-RC-496 and 39-RC-497 is granted . As the Iron Workers has
no objection , the request of the Machinists to be a joint petitioner with the Iron Workers
in Case No . 39-RC-493 is granted.
101 NLRB No. 162.