Ely & Walker

National Labor Relations Board - Board Decisions

Mar 12, 1965

151 N.L.R.B. 636 (N.L.R.B. 1965)

636 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
plant and utilization of manpower, as well as the superior skills of
the Company's employees represented by Local 8, ITU, we shall
determine the dispute before us by awarding all offset preparatory
work, including offset camera operation and all of the steps and
processes involved in offset platemaking, to those employees repre-
sented by Local 8, ITU, but not to the Union or its members. This
determination is limited to the particular controversy giving rise
to this dispute.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings, and upon the entire
record in this proceeding, the Board makes the following Determi-
nation of Dispute, pursuant to Section 10(k) of the Act:
1. Printers employed by the Nordmann Printing Company, who
are represented by the St. Louis Typographical Union No. 8, affili-
ated with International Typographical Union, AFL-CIO, are en-
titled to perform all offset preparatory work, other than in connec-
tion with the multilith press, including offset camera operation and
all of the steps and processes involved in offset platemaking, at the
Company's plant in St. Louis, Missouri.
2. St. Louis Printing Pressmen and Assistants Union No. 6, Inc.,
affiliated with International Printing Pressmen & Assistants Union
of North America, AFL-CIO, is not entitled to force or require the
Nordmann Printing Company, its successors or assigns, to assign
any of the above work to employees represented by such Union.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, St. Louis Printing Pressmen and Assistants Union
No. 6, Inc., affiliated with International Printing Pressmen & Assist-
ants Union of North America, AFL-CIO, shall notify the Regional
Director for Region 14, in writing, whether it will or will not
refrain from forcing or requiring the Nordmann Printing Company,
its successors or assigns, by means proscribed by Section 8(b) (4)
(D) of the Act, to assign the above-described work to employees
of such Company represented by such Union.
Ely & Walker and Amalgamated Clothing Workers of America,
AFL-CIO . Cases Nos. 26-CA-1688 and 26-RC-2075. March 12,
1965
DECISION AND ORDER
On August 4, 1964, Trial Examiner Thomas N. Kessel issued his
Decision and Report on Challenges and Objections in the above-
entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint in Case No.
151 NLRB No. 72.
ELY & WALKER 637
26-CA-1688 and recommending that it cease and desist therefrom,
and take certain affirmative action. The Trial Examiner further
found that the Respondent had not engaged in certain other unfair
labor practices alleged in the complaint. It was also determined
by the 'T'rial Examiner that the six employees of the Employer
whose ballots were challenged at the Board election held on Decem-
ber 12, 1963, were eligible voters, and it was recommended that their
ballots be opened and counted. In addition, the Trial Examiner
found certain conduct engaged in by the Respondent prior to the
said election to have been objectionable as alleged in the objections
to the election filed by the Petitioner in Case No. 26-RC-2075, and
recommended that, should the tally of ballots, as revised upon the
counting of the challenged ballots, demonstrate that the Petitioner
has not received a majority of the votes cast, the said election be
set aside and that a new election be directed, all of the foregoing
being set forth in the attached Trial Examiner's Decision and
Report on Challenges and Objections. The Respondent filed excep-
tions to the Trial Examiner's Decision and Report on Challenges
and Objections insofar as Respondent was found to have violated
the National Labor Relations Act, as amended, and to have en-
gaged in objectionable conduct and filed a brief in support thereof.
The Charging Party filed exceptions insofar as the Respondent was
found by the Trial Examiner not to have violated the Act and inso-
far as the employees challenged at the said election by the Petitioner
were found to be eligible voters. A brief was filed in support
thereof. No exceptions were filed by the General Counsel.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the National Labor Relations Board has delegated its
powers in connection with these cases to a three-member panel
[Members Fanning, Brown, and Jenkins].
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
entire record in these cases, including the Trial Examiner's Decision
and Report on Challenges and Objections, the exceptions, and the
briefs, and hereby adopts the Trial Examiner's findings,' conclu-
sions, and recommendations.
Case No. 26-CA-1688
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as
IIn finding that the Employer engaged in objectionable conduct which affected the
results of the election , we do not rely upon its request to a local nightclub owner to
attempt to influence employee Gilmore to vote against the Petitioner.
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its Order, the Recommended Order of the Trial Examiner, and
orders that the Respondent, Ely & Walker, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, with the following modifications
and additions.
1. Paragraph 1(a) shall be modified to read:
"(a) Discouraging membership in Amalgamated Clothing Work-
ers of America, AFL-CIO, or any other labor organization, by dis-
criminating in regard to the hire and tenure of employment of its
employees."
2. The following shall be added to paragraph 2(a)
"Notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstate-
ment upon application in accordance with the Selective Service Act
and the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces."
3. The following is substituted for the last sentence of the first
indented paragraph beginning "AVE WILL NOT . . ." in the Appendix
attached to the Trial Examiner's Decision and Report on Challenges
and Objections:
Promising and granting benefits to employees to induce them
not to support a union.
4. The following is substituted for the third indented paragraph
beginning "AVE WILL . . ." in the said Appendix :
WE WILL offer immediate and full reinstatement to Clara
Scott and Odelia Shelton to their former or substantially equiv-
alent positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of
earnings resulting from the discrimination against them.
IT IS HEREBY FURTHER ORDERED that the complaint herein be, and
it hereby is, dismissed insofar as it alleges violations not found
herein.
[The Board directed, Case No. 26-RC-2075, that the Regional
Director for Region 26 shall, within 10 days from the date of this
Decision, open and count the ballots of Clara Scott, Odeha Shelton,
Patricia Heflin, Robbye Blane, Barbara Wallace, and Lofton Ford,
the challenges to which have been overruled herein, and serve upon
the parties a revised tally of ballots. If the revised tally discloses
that a majority of valid votes has been cast for the Petitioner, the
Regional Director shall issue a certification of representative.]
ELY & WALKER 639
[The Board further directed that, if the revised tally shows that
the Petitioner has not received a majority of the valid votes cast,
a Direction of Second Election shall become applicable.]
[The Board set aside the election held on December 12, 1963.]
[The Board further directed that the Regional Director conduct
a second election among the employees in the unit found ap-
propriate. Eligible to vote are those in the unit who were employed
during the payroll period immediately preceding the date of is-
suance of the notice of Second Election, including employees who
did not work during that period because they were ill, on vacation,
temporarily laid off, or had not been offered reinstatement in ac-
cordance with the Order in Case No. 26-CA-1688. Also eligible
are employees engaged in an economic strike which commenced less
than 12 months before the election date and who retained their
status as such during the eligibility period and their replacements.
Those in the military services of the United States may vote if they
appear in person at the polls. Ineligible to vote are employees who
have quit or been discharged for cause since the designated payroll
period, and employees engaged in a strike who have been discharged
for cause since the commencement thereof, and who have not been
rehired or reinstated before the election date, and employees en-
gaged in an economic strike which commenced more than 12 months
before the election date and who have been permanently replaced.
Those eligible shall vote whether or not they desire to be represented
for collective-bargaining purposes by Amalgamated Clothing Work-
ers of America, AFL-CIO.]
TRIAL EXAMINER'S DECISION
AND
REPORT ON CHALLENGES AND OBJECTIONS
STATEMENT OF THE CASE
Upon a charge dated November 18, 1963, filed by Amalgamated Clothing Work-
ers of America, AFL-CIO, herein called the Union, against Ely & Walker, herein
called the Respondent, the General Counsel of the National Labor Relations Board,
herein called the Board, issued a complaint dated January 17, 1964, alleging that
the Respondent had engaged in conduct violative of Sections 8(a)(1) and (3) and
2(6) and (7) of the National Labor Relations Act, herein called the Act. On
January 14, 1964, the Board issued an order directing a hearing to be held by a
Trial Examiner in Case No. 26-RC-2075 to determine the eligibility of ballots
challenged at the representation election in that case and also to make determinations
concerning various objections to conduct affecting the results of that election filed
by the Petitioner (the Union in Case No. 26-CA-1688), and to prepare and to
serve on the parties a report containing resolutions of fact and recommendations to
the Board for the disposition of the issues. The hearing thus directed was con-
solidated by the Regional Director in the foregoing complaint with the hearing in
Case No. 26-CA-1688. The Respondent's answer to the complaint denies com-
mission of the unlawful conduct ascribed to it therein. Pursuant to notice, a hearing
was held before Trial Examiner Thomas S. Kessel at Dover, Tennessee, on Febru-
ary 25 and 26, 1964. All parties were represented by counsel who were afforded full
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opportunity to be heard , to examine and cross -examine witnesses , and to present evi-
dence. After the close of the hearing briefs were received from all parties which
have been duly considered.
U,jon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. PERTINENT COMMERCE FACTS
The complaint alleges and the answer admits that the Respondent is a Tennessee
corporation with its principal office and place of business at Dover, Tennessee, where
it manufactures men's pants and related products , that during the year preceding
issuance of the complaint the Respondent , in the course of its business operations
manufactured , sold, and shipped finished products valued in excess of $50,000
directly to customers located outside the State of Tennessee . From the foregoing I
find that the Respondent is engaged in interstate commerce within the meaning of
the Act and that it will effectuate the purposes of the Act for the Board to assert
jurisdiction over its business in these proceedings.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership the Respondent's
employees.
III. THE OBJECTIONS TO CONDUCT AND CHALLENGED BALLOTS IN CASE NO. 26-RC-2075
AND THE UNFAIR LABOR PRACTICES ALLEGED IN CASE NO. 26-CA-1688
On December 12, 1963, pursuant to a Stipulation for Certification upon Consent
Election , a secret-ballot election was held among the Respondent 's employees at its
Dover, Tennessee , plant , to determine whether they desired to be represented in
collective bargaining by the Union . Of the 154 eligible voters , 151 cast ballots, of
which 71 were for the Union, 74 against , and 6 were challenged . Thereafter the
Union filed timely objections to the Respondent 's conduct before the election which
assertedly affected its results . About the same time, the Union filed a charge in
Case No. 26-CA-1688 claiming , in substance, that the Respondent 's conduct affect-
ing the election also violated Section 8 ( a)( I) and ( 3) of the Act
Generally, the complained of conduct consists of threats to employees of reprisal
for supporting the Union , promises and grants of benefit to encourage union dis-
affection , interrogation of employees concerning their union activities , institution of
an unlawful rule against solicitation for the Union , threats of discipline to union
adherents for violating the foregoing rule while permitting employees opposed to
the Union openly to campaign in the plant , creating the impression of surveillance
of employee union activity , threats to employees that the Respondent would not
bargain with the Union even if it were selected as bargaining representative , sponsor-
ing the circulation of a petition calling for employees openly to declare their opposi-
tion to the Union , the discharge of two employees for engaging in union activities,
the harassment and denial of employment to another employee for her union activ-
ities, and various other acts of interference with, restraint , and coercion of employ-
ees in the exercise of their union activities
Of the six ballots challenged , three were challenged by the Board 's agent at the
election because their names did not appear on the voting eligibility list furnished by
the Respondent , and three were challenged by the Union on the grounds that one
was cast by a supervisor and two by clerical employees excluded from the appro-
priate unit . The Regional Director recommended in his report on objections and
challenged ballots that the status of all the challenged ballots be determined after
a hearing.
As noted, the objectionable preelection conduct is substantially the same as that
charged to be violative of the Act Accordingly , except where necessary , the fol-
lowing recitation of the evidence does not differentiate between conduct which is
merely objectionable and conduct which may also be violative of the Act.
Prefatorily , it should further be stated that the complaint alleges and the answer
admits that the following persons are supervisors within the meaning of the Act:
an official referred to by witnesses as "Woody" Hoffman , Plant Manager Robert
Rhodes, Assistant Plant Manager Don Rhodes , Foreman George Poland , and Floor-
ladies Mabel Hester, Betty McKinney and Mae Wallace. As admitted supervisors
they are the Respondent 's agents for whose conduct in these proceedings it is
responsible. -
ELY & WALKER 641
A. Coercive comments and interrogation
Employee Carolyn Shepherd testified that in late October or early November 1963
Foreman Poland came to her machine and asked her what she would gain by wear-
ing the Union's pin. As she argued the question with him, Plant Manager Robert
Rhodes with his assistant, Don Rhodes, approached and joined the discussion.
Poland remarked that if the Union came in "they would close the plant down, not
because of the union but because they couldn't financially afford it " Robert Rhodes
added "they would never deal with the union because they had never had a union
in any of their factories." He commented, "If the Union don't come in, I guess you
know where you'll go "
Employee Frankie Gilmore related that in the latter part of November 1963 Plant
Manager Rhodes spoke to her at her machine and asked how she thought the Union
would be beneficial to the employees After discussing the matter for about 20
minutes he remarked, "It was their company, their factory, and they paid us girls,
and they could pack up and leave any time they got ready to." She retorted this
was their privilege.
Don Odom last worked for the Respondent on December 12, 1963. He recalled
that near the end of November or beginning of December 1963 he heard Plant
Manager Rhodes state in his presence that "anyone giving a signed statement to a
Labor Relations Board man would be in court." George Poland and employee
Louis Shepherd were also present when this was said. Shepherd, formerly employed
by the Respondent, confirmed the foregoing testimony by Odom.
Employee Patsy Shelton testified that in October or November 1963 her super-
visor, Betty McKinney, had directed her to "keep [her] mouth shut." The same
directive was delivered to another employee, Dorothy Walker, to whom Shelton had
been speaking about a matter pertaining to their work. Although Shelton explained
to McKinney the nature of her conversation with Walker, she was told it did not
matter Shortly afterward, Shelton sought out Assistant Manager Don Rhodes and
reported the instruction from McKinney about keeping her mouth shut Rhodes
confirmed the order. Shelton also testified that in October 1963 she and several
other employees were present in Plant Manager Rhodes' office when he read to them
from a typewritten sheet, in effect, that "the factory would never need a union and
we would never have to have a union under any circumstances." She remembered
this sheet was later posted on the bulletin board.
Employee Shirley Thompson testified that in October 1963 her supervisor, Betty
McKinney, told her, "We wasn't supposed to sign no card or talk about the union
during working hours." She related that on December 11 McKinney said to her,
"If the union came in we probably wouldn't be there any longer.
Employee Frieda Wilson is also supervised by McKinney who, according to the
former, asked her in October 1963 what she thought of the rumors going around.
Wilson asked what she meant, and McKinney replied "about the union " Wilson
insisted she knew nothing about the Union, but McKinney pointed out she had
signed a union card Wilson further testified about an incident in December 1963
when Plant Manager Rhodes had summoned McKinney and directed her, in Wilson's
presence, to tell all her girls "that anyone who gave sworn testimony and didn't want
their name involved would be involved, because Burlington would subpoena them."
She understood that the Respondent is a branch or division of Burlington Industries.
Employee Ann Manners, formerly supervised by Mabel Hester, testified that in
October 1963 Hester questioned her about a conversation with another employee.
According to Manners, Hester remarked, "Well, I'll ask you the same thing I asked
her. What do you think about all that's going on?" Manners disclaimed knowing
what she meant. Hester asked, "Well, did you sign a union card?" Manners made
no admission. She related that in December 1963 Hester asked what decision she
had reached concerning the Union, in view of her attendance at all the union meet-
ings and the fact that she had heard the speeches of the Respondent's representative
concerning the Union. Manners pointed out that her decision was inconsequential,
particularly as employee Reva Gray had informed her the Respondent already knew
which employees would be discharged if the Union were to come into the plant.
She also told Hester that Gray had secured the signatures of various employees on a
sheet of paper but that she, Manners, was not permitted to sign because Gray knew
she would not change her mind. Hester thereupon told Manners she had not
thought the paper was a good idea but had nevertheless taken it to the office for Gray.
Manners acknowledged that, apart from the signatures on the paper, she did not
know what else appeared on it.
783-133-66-vol. 151-42
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Birdie Elliott, previously mentioned , testified that in the first week of December
1963 she heard Plant Manager Rhodes tell Floorlady Hester to "make it plain to
these girls that are going out to Earhart's Motel and giving sworn statements to the
Board man, Labor Board man, that they are going to be brought to Court for it.
Burlington 's going to see to that."
Barbara Westerman, employed by the Respondent until October 28, 1963, testified
that on that date her supervisor, Floorlady Mae Wallace, had said to her, "Barbara,
I have been hearing you have been going to the union meetings ." Westerman
acknowledged this was so, whereupon Wallace remarked, "Well, if the union comes
in you know the plant is going to close." Westerman disagreed. Wallace com-
mented, "I think you need to work just like myself."
Dixie Thomas last worked for the Respondent on January 1, 1964. She related
that in November 1963 she had called Plant Manager Rhodes to her machine and
asked whether the plant would close if the Union came in, and that he had answered,
"Yes, but I'll deny it if anyone else asks me " She testified that later in the same
week she had gone to Rhodes' office to pick up her check and that in the presence
of two office employees, one of them named Fay Sykes, she was told by Rhodes he
had heard she had been at a recent union meeting. Admitting this was true she
asked for the name of his informant which Rhodes would not reveal. She remarked,
"You'd better not." He replied, "Oh, hell, you all don't have any sense." She
retorted, "That don't make any difference, you won't fire us." He said, "I thought
the other day when I was at your machine that you told me you was for the com-
pany." She reminded him she had merely inquired whether the plant would close if
the Union came in and that he had answered in the affirmative, adding he would
deny it if anyone else were to ask him. She pointed out that he would find out on
election day whom she favored. Rhodes replied her vote would be secret. She
maintained she had never declared whether she was for the Union or the Company.
Sykes admonished that she could not be in between. Thomas further testified that
she heard the speech by aforementioned Company Official Hoffman to employees
about a week or two before the election. She recalled that Hoffman referred to a
board containing pictures and other matters about plants which had closed because
of the advent of unions and had said, concerning a plant in Chattanooga, "If we
got a union in this plant, that Ely & Walker Company would be like the one in
Chattanooga. It would look like a ghost town." On one occasion Hoffman spoke
to Thomas at her machine. He placed his arm about her shoulder, professed his
love for all the employees, and asked for the union pin she was wearing. He
explained he wished to take it to St. Louis, ostensibly to the home offices of Burling-
ton Industries. He remarked to Thomas, "I just want to show you how silly the
people are by wearing these little pins." She gave him the pin.
Mahalia Norfleet was discharged by the Respondent on November 6 or 7, 1963.
She attended the Union's first meeting in October. She testified that a couple of
weeks later her supervisor, Floorlady Hester, asked what was wrong and why she
had changed. Norfleet in turn asked Hester what she meant and particularly whether
she had found out about her attendance at the union meeting. Hester acknowledged
she had found out. Norfleet claimed that she and Hester conversed almost daily
about the Union or about persons who had joined the Union. In one of these con-
versations, about a week before Norfleet's discharge, Hester said to her "they tell
me that if the union comes in they're going to close the doors and walk out." Nor-
fleet further related that about November 1, 1963, Viola Wafford, who I find is a
supervisor within the Act's meaning,i came to her machine and asked why she had
changed. Norfleet inquired whether Wafford was speaking about the Union and
was informed this was so. Wafford asked whether she had been attending the
Union's meetings. Norfleet revealed she had, and explained that one of her reasons
for so doing was to keep her job. Wafford advised that had she not gone to the
meetings she would not have been fired.
Broaxie Myers, last employed by the Respondent in January 1964, testified that
in October 1963 Plant Manager Rhodes, in the presence of his assistant, told her he
had received a complaint that she had been talking about "outside activities" on the
job. Her defense that she did an honest day's work led to his inquiry about the
complaints of the other employees. Myers replied she had no knowledge of them.
Rhodes remarked he had done her a favor when he recalled her to work and that
she was evidently dissatisfied with her job or she would not have been "talking up
i Wafford is the Respondent's personnel supervisor She interviews applicants for
jobs and makes reports, including recommendations as to their hire. She is one of a
group which decides whom to hire She tests trainees and evaluates their test scores.
Her evaluation is a basis for their retention and promotion.
ELY & WALKER 643
the union" as she had done. He added that the Respondent would not operate under
a union; that it did not have to negotiate with the Union ; and that the Union could
compel negotiation only by a strike in which the employees would be the losers.
Myers also recalled that in November 1963, shortly before the December 27 repre-
sentation election , her foreman at the time , Johnny Landis, read to her from a
paper advice to the effect that she was not to sign any cards passed to her during
the lunch hour, and that if there were to be an election, she would have the chance
then to voice her opinion. He then inquired whether she "got the message."
Bonnie Heaton , formerly employed by the Respondent , testified that on October 21,
1963 , she and several other employees were in Plant Manager Rhodes' office
where they received certain cards preparatory to starting work. Before they left he
read to them a statement to the effect that the plant did not need a union and
"wasn't going to have a union." He expressed the view that a union would be
harmful to the employees and warned that anyone "caught talking union on the
job, by passing out union cards, will be subject to dismissal." Employee Clara Scott
testified she also listened to a speech by Rhodes in which he told employees "if you're
caught talking union in this factory, you'll be fired."
The Dover, Tennessee, Chamber of Commerce had committed itself to the
Respondent to help prevent its employees from becoming unionized . The building
occupied by the Respondent is owned by the city of Dover which floated a bond
issue for construction of the building . For some time after the building 's erection
a group of chamber members sought unsuccessfully to persuade employers to come
to Dover and provide local employment. Always the first question asked was about
the union picture in Dover. When the Respondent finally agreed to come there,
it was with the explicit promise of these chamber members to do what they could
to keep a union out From the beginning the Respondent adopted a hiring practice
whereby all applicants for jobs were required to obtain references from three cham-
ber members. Dover's mayor, W. H. Tippett, called as a witness by the General
Counsel, acknowledged these facts. He had been one of the group which gave the
Respondent the foregoing commitment.
Mayor Tippett is also an officer of Dover's only bank from which a number of the
Respondent's employees borrowed mortgage funds to purchase their homes. The
mayor testified that to combat unionization of the employees he was to exert his
influence with them. In the course of the Union's election campaign there were
several discussions among chamber members in which the mayor participated to devise
means of persuading the Respondent's employees to reject the Union. A mailing
list had been provided by the Respondent and from it chamber members chose
groups of employees to contact personally. In addition, the chamber sent a letter
to all employees to discourage their selection of the Union. At a dinner meeting of
the chamber an official of the Respondent, Mr. McFadden, informed its members the
Respondent "would not work with the union."
It is clear from the foregoing facts that the Dover Chamber of Commerce was the
Respondent's agent for the purpose of accomplishing the defeat of the Union in the
December 12, 1963, election. Accordingly, the Respondent is responsible for the
conduct of the chamber members in furtherance of that purpose.
The aforementioned Clara Scott testified that on October 22, 1963, Ted Sills, owner
of a Dover insurance business and a chamber of commerce member, had been in the
plant with Mayor Tippett and two other chamber members. Later that afternoon
Scott and aforementioned employee Bonnie Heaton, both ardent union supporters,
visited Sills in his office. Scott related that they asked Sills how he felt about the
Union. He replied the employees had proceeded in the wrong way, and that if they
had wanted a union they should have gone to "these townspeople" who would have
corrected matters He remarked, "I can tell you right now that they ain't going to
have no union over there." Sills emphasized that the Respondent would "rather pay
a lawyer $1,000 a day than have a union in there." He revealed that McFadden, the
aforementioned company official, had recently told him the Respondent was not
earning enough and was operating its plant in Dover just "for the good of the people."
Scott argued the point, and he retorted, "What good will it do if you get a union con-
tract in there. They won't do nothing but sweat it out." She invited him to come to
the plant to see conditions and to attend a union meeing to hear its side, but he
declined with the explanation that the chamber of commerce was committed to fight
the Union. Heaton's account of the incident, while not as detailed as Scott's, was
substantially the same.
On Saturday, October 26, 1963, Scott, Heaton, and several other women employees,
all adherents of the Union, engaged Mayor Tippett on a Dover street in a conversation
which they initiated to seek his views about unionization of the plant. The mayor
told them the chamber of commerce would hopor its obligation to oppose a union. He
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated his view that the employees did not need a union and , according to Bonnie
Heaton, "they wasn't going to have one " Mayor Tippett conceded in his testimony
that he told the group he did not think "Ely & Walker would work with the union "
B. Promises and grants of benefits
It is undisputed that before the December 12, 1963, representation election the
Respondent had not paid its employees for any holidays during which they did not
work, and that the first holiday for which the employees were paid was Christmas
Day 1963. Employee Annie Yarbrough testified that a notice was posted on the
plant bulletin board in the latter part of October apprising employees they were to
receive the Christmas holiday payment. Employee Birdie Elliott recalled that she
first learned of this holiday payment when it was mentioned by Hoffman in a speech
to a group of employees near the end of October or beginning of November. Then
she saw the notice on the bulletin board. Employee Broaxie Myers first heard of
this benefit in a speech by Plant Manager Rhodes to assembled employees in October
or November. She also noticed the information on the bulletin board. Employee
Clara Scott saw the bulletin board notice in November Employee Bonnie Heaton saw
the notice on the board before the election but could not fix the exact date
Admittedly, the Respondent increased the hourly base rate for its band setting
employees from $1.25 to $1.30 before the election. Birdie Elliott testified she was
informed by Plant Manager Rhodes of the change in the first week of December 1963.
Employee Ann Manners was not certain whether she received her rate increase before
or after the December 12 election. but believes she was told by Rhodes of the increase
before the election. Employee Odelia Shelton testified that Rhodes informed her
about a week or two before her discharge on November 4, 1963, of the rate increase.
Employee Louis Shepherd testified that the aforementioned "Woody" Hoffman, the
Respondent's official , had made a speech in November 1963 to a group of employees
who had been assembled to hear him and included in his remarks the statement that
the employees would get an evening break and did not need the Union to get it for
them. Employee Annie Yarbrough and Birdie Elliott heard the same speech and
recalled Hoffman's promise of a 10-minute afternoon break which the employees
subsequently received.
C. The rule against solicitation and the Respondent's
disparate enforcement of the rule
The Respondent has issued to all its employees a booklet entitled "Employees
Manual Dover Plant." Included therein is the following provision.
(6) Outside business: Solicitations, collection of funds, pledges, subscriptions,
circulation of petitions , solicitation of memberships or similar activities are not
allowed on Company property.
The General Counsel contends the foregoing restrictions unlawfully prohibit union
solicitation and distribution of literature by employees during their nonworking time
in nonworking plant areas. Moreover, says the General Counsel, the Respondent
applied the rule to limit activity within the plant by employees favoring the Union
while simultaneously permitting and even instigating and encouraging such activity by
employees opposed to the Union. Testimony has already been delineated by employ-
ees that they were warned by the Respondent's agents not to discuss the Union, sign
or hand out union cards on the job or during working hours, and that they would be
subject to discharge for infraction of these directives. Their testimony has been
recited that supervisors nevertheless interrogated them at their machines about their
union sympathies and sought to discourage their support for the Union At the same
time, according to the General Counsel's witnesses, employees opposing the Union
openly solicited in the plant during working time, for which they were paid and with
supervisor knowledge, for employee signatures to a petition denoting their non-
adherence to the Union.
Carolyn Shepherd related that on December 12, the day of the representation elec-
tion , employees Reva Gray and Jean Crocker circulated a petition among employees
in the presence of Floorladies McKinney and Hester Shepherd did not see what was
on the document. She was certain that Gray and Crocker had not clocked out in the
course of their activity. Ruby Wyatt recalled that on the day of the election Reva
Gray, in the presence of Hester, handed her a paper and asked her to sign. She did
not remember exactly what was written on it except that it meant its signers had to
vote for the Respondent. After the election Hester came to her and admonished
that if she had not voted "like [she] signed the paper [she] just lied." Frankie Gilmore
was handed the petition on election day by another employee . No one else was.
ELY & WALKER 645
present . Gilmore later observed the petition handed to another employee who in
turn gave it to her supervisor, Betty Stimson. Gilmore observed that the petition con-
tained a preamble to the effect that the employees signed voluntarily and agreed to
serve the Respondent faithfully and that if they appreciated their jobs they would
vote against the Union . Don Odom testified that on election day he saw a petition
on the desk in the office of the cutting room used by Supervisors Poland and Wallace.
He saw employees sign the petition while Poland was in his office. Odom read the
petition which contained a statement to the effect that those who signed enjoyed their
jobs, expressed their appreciation for the Respondent, and pledged to vote against the
Union. Shirley Thompson also saw the petition passed around on election day by an
employee in the presence of Floorlady McKinney. Freida Wilson testified this same
employee solicited her signature that day to the petition . Ann Manners said she
observed Jean Crocker take the document, referred to by the previous witnesses as
the cardboard petition, to Reva Gray's machine and heard her remark she already
had signed up all the girls on her side and that Gray had to work fast to get the signa-
tures from the girls on her side. Floorlady Hester , who was present , then marked
Gray's "gum sheets" so she would be paid her average rate during her soliciting
activity . Margie Wallace testified she saw Jean Crocker soliciting signatures to the
petition on election day and that Plant Manager Rhodes and McFadden, the
Respondent 's officer, were present at the time.
D. The election day photographs and other conduct by the Respondent
alleged to have affected the December 12 election
Before the election Personnel Supervisor Viola Wafford, found above to be a
supervisor , took pictures of groups of employees in the plant who wore distinctive hats
and other insignia denoting their opposition to the Union. As related by Freida
Wilson, the developed photographs were later enclosed in a glass frame hung on a wall
of the plant. Annie Yarbrough testified that when she observed the pictures being
taken the aforementioned official, Hoffman, called to one of the employees who
favored the Union and asked her to be photographed. Floorlady Hester acknowledged
that Wafford photographed "quite a few" employees on the day of the election and
that although the employees' work was interrupted, no pay was deducted for their
lost time. Evidence concerning the foregoing activities was adduced by the Union
to show that the conditions requisite to a proper election atmosphere did not prevail
on December 12,, 1963. Other evidence was adduced for the same purpose. Two
employees and a supervisor were sent by the Respondent, at its expense, to another
of its plants in Missouri , ostensibly to show that wages and conditions in that allegedly
unionized plant were not better than those in the Dover plant. Newspaper clippings
were posted on a plant bulletin board concerning strikes, violence, and plant closings.
Employee Frankie Gilmore was approached by the owner of a local nightclub which
she patronized and was informed by him that Plant Manager Rhodes had requested
him to influence her to voie against the Union. The foregoing items were presented
by the Union for consideration in the context of the other conduct adverted to above.
E. The alleged discharges of Clara Scott and Odelia Shelton and the
harassment of Bonnie Heaton
1 Clara Scott
Scott was hired by the Respondent on May 20, 1963, as a seat seamer. She and
employees Shirley Boyd and Linda Bryant were the seat seamers supervised by Floor-
lady Hester. Scott was discharged on November 1, 1963. She testified she was told
at the time by Plant Manager Rhodes this action was taken because of her low
productivity and the poor quality of her work. Scott had been openly for the Union
and wore a union pin at work as did other employees . She attended all the union
meetings from the beginning, spoke to other employees in behalf of the Union at
every opportunity and, as recited, was the spokeswoman for the group of employees
who had encountered Mayor Tippett on October 26 and discussed the union issue
with him. She had also, as related on October 22, gone with employee Heaton to
the office of Ted Sills and argued the union point of view in an effort to persuade
him to be sympathetic.
Scott denied that she had ever been reprimanded before her discharge because of
the amount or quality of work she did. Admitting she did not ever reach her produc-
tion quota, she maintained that neither did the other seat seamers. Notwithstanding
her failure to make quotas, Scott insisted that her productivity steadily increased
during her employment although there were days when she produced less than at
previous times. As to quality, she testified that from the time she signed a union card
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the first meeting of the Union on October 11, the number of pants returned to her
daily for repairs mounted but still did not exceed 5 to 10 pairs daily. Scott claimed
that Shirley Boyd had the same amount of repair work and that Linda Bryant had
even more. The latter concededly was a better producer . Scott furthermore testified
that the only time Hester mentioned her repairs was on the day of the discharge. On
that occasion Hester brought her a bundle of pants and remarked she did not know
"what we are going to do with these seamers getting back so many repairs ." Scott
thereupon pointed out to Hester she had received only one pair of pants that day for
repair.
Scott additionally testified that from the time she entered her training near the end
of July or beginning of August 1963, she received an average of 15 dozen samples
weekly on which she worked , and that at the time, of her discharge she was the only
seat seamer who received such samples. Samples, she said, required greater skill.
Scott knew she was the only seat seamer who was to get this work as she had over-
heard Hester direct the two employees who worked behind her as markers to give
her all the samples . Bonnie Heaton , one of these markers, corroborated this testimony.
2. Odelia Shelton
Shelton had worked for the Respondent from August 1962 to January 1963 when
she voluntarily left because of her child 's illness. She was rehired in July 1963 by
Plant Manager Rhodes and worked until she was discharged on November 4, 1963.
In her last employment , as in her first period of employment , she had sewed waist-
bands on pants.
Shelton had attended all union meetings but one. She had signed a union card and
started wearing her union pin a week before her discharge . This was the same type
pin which many other employees wore to work.
Shelton testified that she had been informed a week before her discharge by Mabel
Hester, her supervisor , that if she were to get back more than two or three pairs of
pants a day for repair she would be terminated . This assertedly "shocked" her
because never before had she been criticized or reprimanded about her repairs or
production . On the other hand, her supervisors had complimented her and had told
her she had been doing better work . Later that same week Hester told her that
everyone was getting back so many repairs that day that they were going to let her
continue working for only another day or two . Shelton claimed she had not received
any repairs that day.
She further testified that during her last week of employment , after Hester had
warned her of discharge for excessive repairs, she checked to see whether the other
band setters got back repairs . Shelton observed that on the last day of her employ-
ment, Mary Williams got back three bundles containing two or more dozen pants in
each, that Ohne Dowdy got back two bundles , and Rheba Hicks got back one bundle.
She also noticed that she got out as much work daily as some of the other band
setters. This she determined by checking the production cards kept by the employees
at their machines . Admitting that she never reached her production quota in any
day, Shelton maintained that with the exception one band setter , Ann Manners, none
of the others reached her quota. She knew of only one band setter , Opal Williams,
who was laid off, but did not know the reason therefor.
3. Bonnie Heaton
Heaton was hired by the Respondent on August 26, 1963, and worked at inspecting
and marking . She signed a card for the Union at its first meeting on October 21 and
thereafter spoke to employees in the Union 's behalf and encouraged them to sign
cards. She wore the Union 's pin at work from October 25. As related , she had
accompanied employee Clara Scott on the visit to chamber of commerce member Sills'
office where they had argued in favor of the Union . Heaton had also been one of
the employees in the group which stopped Mayor Tippett on the sidewalk on Octo-
ber 26 and discussed the Union with him.
On October 11 Heaton was required to absent herself from work because of her
father-in - law's death . She sent word to her supervisor , Mabel Hester, on October 16
that she was ready to return . On October 17 she spoke to Hester by telephone and
asked whether she would be permitted to work the next day. Hester replied there
was no work for her. On October 21 she spoke to Plant Manager Rhodes about
resuming work . On that occasion two other employees were with her in Rhodes'
office when he read to them from a paper the Respondent 's position relative to the
Union and the instruction to employees not to engage in union activities while at
work. He thereupon directed his assistant , Don Rhodes , to inquire from Hester
ELY & WALKER 647
whether she had work for Heaton. Subsequently Heaton was instructed to return that
afternoon to find out whether she should report the next day. She was informed by
Hester that afternoon there would be work for her the following day.
When Heaton started her work on October 22 she resumed her former inspect and
mark duties, but after 45 minutes was directed by Hester to iron seat seams. She did
this for another 45 minutes. Then Hester ordered her to return to inspect and mark.
Ten minutes later Hester brought her two bundles of pants and stated they were
wrongly marked. Examination of the marking tickets revealed Heaton had not been
responsible for the error. Hester nevertheless required her to remark the pants,
adding that when this was done she would be assigned to "repairs." Heaton then did
"repairs" until 10:45 a.m. when Hester informed her she was to go home. Heaton
protested that she had been transported to the plant by Clara Scott who was still at
work. Hester directed her to perform the same packing duties in which Scott was
engaged for Foreman Poland. She did this work until 2 p.m. when Poland sent her
and Scott back to Hester. The latter sent them home. Although before this day
Heaton had done some ironing of seat seams, she had never before worked at packing.
Heaton was given no work from October 23 through October 25. On each of
these days she called Hester or the Respondent's office to request work but was told
none was available. On October 28 she was given 6 hours' work to inspect and mark
and then was sent home by Hester. She received no work from October 29 through
November 4. On November she was recalled by Hester and was assigned by Don
Rhodes to seat seaming duties which she thereafter regularly performed until she
voluntarily quit her job on January 9, 1964.
Apart from testimony by employees Clara Scott and Carolyn Shepherd that in
Heaton's absence from October 11 to 21 employee Edna Manners was transferred
from another department to work at inspect and mark, there is no evidence that in
the ensuing period Heaton was replaced by any other employee either when she had
no work or when she was assigned to other duties.
F. Evidence supporting the defense
1. As to interference, restraint, and coercion
Only Floorlady Hester and Plant Manager Rhodes were called by the Respondent
to refute conduct ascribed by the foregoing witnesses to its agents. Conduct attributed
by the General Counsel's witnesses to all other supervisors thus remains
uncontradicted.
Hester denied Mahalia Norfleet's claim that she had in effect, told her the Respond-
ent would close the plant if it were to be unionized. She did not deny the rest of
Norfleet's testimony concerning interrogation by Hester of her attendance at union
meetings and her changed attitude. The latter was a clear reference to Norfleet's
sympathy for the Union. Hester denied making the remarks to Ruby Wyatt and
Ann Manners attributed by them to her concerning the election day petition. She did
not, however, deny Manner's testimony that she had questioned her concerning her
union activities and sympathies. Hester moreover conceded discussing the union
issue with employees in the plant. Some, she said, brought up the matter themselves.
Some she herself asked why they felt a union was needed. In the course of these
discussions she expressed her opposition to the Union and sought to impress the
employees with the lack of need for a union.
Hester denied she had seen the petition being passed around on the day of the
election. She testified that about 3 p.m. that day, after the petition had already been
circulated among the employees and "after it was all over", she heard about it and
wanted to see it. Her attention had been drawn to the petition by the remark of one
of the employees whose name she could not recall. She had heard that some of the
girls had prepared a paper which they took around for employee signatures and she
just wanted to see what it was. At this point an employee on the plant floor held
the petition in her hand. She asked the employee, Reva Gray, to show her the peti-
tion. She looked at it but did not read it. She thereupon directed the employee to
go back to her machine. Hester was impelled to look at the petition merely by
curiosity. Notwithstanding her curiosity, she did not read the petition because when
she started to do so she decided it was not very important. Hester acknowledged
that Gray had not checked out and was paid for her time while she was engaged in
her activity with the petition.
Plant Manager Rhodes denied he had said to employee Dixie Thomas, or to any
other employee, that the Respondent would close its doors if the plant were unionized.
He claimed he first learned about the Union's oganizational activities about the middle
of October 1963. He admitted asking employees whether they knew anything about
the foregoing activities. He conceded speaking about the Union to a number of
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees . He claimed that employees usually asked questions about the Union to
which he responded . Inquiries were made by them about what would happen if the
Union were to come into the plant. He expressed the Respondent 's preference for
dealing directly with them without a union . He insisted he did not tell the employees
the plant would close, but pointed out to them that like any other business the
Respondent would have to close its operation if it could not make a profit and he did
not believe that the Union would help the Respondent 's profit situation . He noted
that the Respondent was then operating at a loss.
Concerning the testimony of those witnesses who claimed he had read to employees
from a paper a statement to the effect that the Respondent would not in any circum-
stance have a union in its plant and that employees would be disciplined for engaging
in union activities while at work, Rhodes testified that he had read verbatim to all
the employees , in groups or individually , from a document which was later posted on
the plant bulletin board. The document , dated October 18, 1963, contains the
following:
TO ALL EMPLOYEES
Since the Union is putting on a campaign to get in here , some of you have
been asking questions in regard to the following matters. We have decided to
state the Company's position on these subjects as clearly as we can for everybody
alike.
(1) This matter is, of course , one of concern to the Company. It is, how-
ever, also a matter of serious concern to you and our sincere belief is that
if this Union were to come in here, it would not be to your best interest.
(2) It is our positive intention to oppose this Union and by every proper
means try to prevent it from getting in here.
(3) We would like to make it clear that it is not necessary, and it is not
ever going to be necessary , for anybody to belong to any Union in order to
work at this factory.
(4) Those who might join or belong to this Union are not going to get any
advantages or any preferred treatment of any sort over those who do not
join or belong to any Union.
(5) If anybody causes you any trouble at your work or puts you under
any sort of pressure to join the Union, you should let the Company know,
and we will undertake to see that this is stopped.
(6) No person will be allowed to carry on Union organizing activities on
the job. Anybody who does so and who thereby neglects his or her own
work or interferes with the work of others will be subject to discharge.
Anybody who tells you anything contrary to the foregoing is not telling you the
truth.
(S) Robert E. Rhodes
ELY & DOVER
Dover, Factory
Rhodes testified that the change in the hourly base rate from $1.25 to $1.30 was
instituted at a time when the employees were unable to work consistently on a single
style garment so that they were unable to reach their production quotas and thus be
compensated at the $1 .35 rate paid at quota levels . The difficulties resulting from
having to switch from one style to another were compounded , said Rhodes, by a
problem relating to the cutting of pants. In these circumstances he temporarily
raised the minimum rate of $1.30 as a matter of fairness to the employees. As to the
granting of the paid Christmas holiday, Rhodes explained that the Respondent's policy
is to grant holiday pay and other fringe benefits gradually to employees in new plants
after they have become established. He claimed that the announcement of the
Christmas holiday pay was first made to the employees early in October 1963 before
he had any knowledge of union activity.
2. Concerning the alleged discrimination
Hester attributed Scott's discharge solely to hei poor production and quality of
work. She testified that when she recommended this action to Plant Manager Rhodes
she mentioned to him that , despite having several times called to Scott's attention
her shortcomings , she had not improved . On the day Scott was discharged, accord-
ing to Hester, her "repairs just got completely out of hand, her quality was so bad."
She herself would hand Scott her repairs after they were returned by the inspectors
and at times her work was so bad the pants could not be repaired but had to be
classified as irregulars . On one occasion she returned two complete bundles to Scott.
ELY & WALKER 649
At other times she returned just pairs of pants. Concededly , the other seamers, Boyd
and Bryant , had repair work every day and she had even spoken to Rhodes about
Boyd but without recommending her discharge because her work "wasn 't that bad."
Admittedly , Boyd never made her production quotas and Bryant never made it for a
full week so she could receive the $ 1.35 hourly rate paid for work done at quota levels.
Hester maintained no records either as to productivity or quality of Scott's work
and had to rely on her memory concerning these matters while testifying. She
acknowledged her poor memory of dates and could not recall when she first spoke to
Scott about the quality of her work . It was revealed late in her testimony that she
records her reprimands to employees under her on special forms provided by the
Respondent . There are four reprimand forms for Scott prepared by Hester during the
former's employment under her. The first is dated July 22, 1963 , and mentions Scott's
poor quality and low production . Hester therein noted she had "reached a standstill
at this point ." An August 20 reprimand record states that Scott had completed her
training and Hester still complained of her poor quality and low production which
"had to be improved very much." The remaining two reprimand records for Scott
are dated October 18 and 25, 1963 . In neither is there any mention by Hester of
complaint about Scott's productivity or quality . One record complains about her
leaving her machine to go home before the bell rang and the other about removal
of her timecard from the office clerk without the knowledge of the personnel super-
visor. Acknowledging that she completed reprimand forms whenever she repri-
manded employees about productivity or quality , Hester was asked to account for the
absence of such records for Scott after August, particularly in view of her earlier
testimony that Scott 's shortcomings in the period before her discharge had become so
serious that Hester was compelled to reprimand her for these reasons . Her only
explanation for the absence of such records was, "It seems that I just didn 't do the job
I should have done."
Plant Manager Rhodes testified that he discharged Scott on the day Hester recom-
mended this action because of her low production and poor quality. He claimed he
checked her production records and determined she was not making satisfactory
progress . By that he meant he examined the payroll to determine her weekly average
earnings by comparison with those of other employees doing the same work. He did
not recall what her earnings had been.
Hester denied knowledge that Shelton had worn a union button before her dis-
charge. She testified she had recommended Shelton 's discharge to Plant Manager
Rhodes about a month before her termination . At the time it was decided that she
be given 2 weeks in which to improve. Hester spoke again to Rhodes about Shelton's
failure to improve, and about 2 or 3 days before the discharge she informed Shelton
that she would be discharged if she were to get back three bundles of repairs in I day.
Hester conceded that all the band setters get back repairs each day, but that they run
from one to four pairs of pants daily and not bundles as in Shelton 's case. She
recalled a day when Shelton got back eight bundles containing two to four dozen pants
in each. Shelton's quality of work, as reflected by the daily returns of repairs, satisfied
Hester she was not improving and when , after the final warning , Shelton got back
three bundles of repairs in 1 day she was discharged.
Hester revealed that she had completed reprimand records for Shelton on occasions
before her discharge in which she registered complaints about her production and
quality shortcomings . The first of these records is dated October 10, 1963 , the second
October 16, and the last October 28. This last form contains a notation that eight
bundles had been returned to her for repairs on that date and she had been warned of
discharge if in the future she were to receive three bundles in 1 day. None of the
written reprimands prepared by Hester had ever been shown by her to Shelton.
Rhodes testified that when he rehired Shelton in July 1963 he reviewed her record
during her previous employment and noted she had not been a satisfactory producer.
He nevertheless hired her because he felt that she had not had a fair opportunity to
show her worth under the cramped physical conditions which had obtained during
her earlier work period . He related that other employees who had been discharged
for poor production had been rehired and given a second chance. In September
1963 , at a time when the Respondent 's Dover operation was sustaining losses, he had
received orders to weed out low producers and decided to start eliminating employees
with longer service who had failed to reach acceptable production levels. Shelton, he
said, was discharged because she was one of the lowest producers in her section. He
took this action on the very day when Hester recommended Shelton's discharge. A
few days before , he had discharged another employee in Shelton 's section for the
same reason . Although Rhodes first testified that the Respondent has no policy and
had provided no guidelines requiring supervisors to complete reprimand forms, he
later conceded that supervisors have these forms in their possession and that instruc-
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions have been issued to them "that anytime that they feel that a girl needs reprimand-
ing for low production, when its excessive, for repairs or any other items, to fill one
out."
Rhodes testified that from October 15 through November 10 the plant operated on
a 2- or 3-day week and that during this period other employees besides Heaton were
sent home early, or, like her, had layoff periods lasting several days. Sales and orders
had fallen off at this time and the plant was operating at a 40 percent level. Heaton's
transfer from job to job, he explained, was necessitated by the plant system which
limited production of various items by quota. To maintain a proper production
balance and to provide all employees with a certain amount of work, it was necessary
to switch operators from one production job to another and other employees, whom he
named, were transferred just like Heaton. Furthermore, the plant had a small group
of employees called "switch operators" who were able to perform several functions
and Heaton, though not told this was being done, was in training for such a job.
Because Heaton had said she needed a full-time job, she was finally transferred to
the seat seaming operation at which she worked steadily until she quit.
G. Findings and conclusions
1. Conduct violative of Section 8(a)( I)
I find from uncontradicted and credited testimony that the following conduct, com-
mitted by the Respondent's agents, interfered with, restrained, and coerced employees
in the exercise of their rights guaranteed by Section 7 of the Act, particularly their
right to support the Union and to participate in its campaign for selection in the
December 12, 1963, election as the bargaining representative of the Respondent's
employees:
1. The admitted interrogation of employees by Floorlady Hester and Plant Manager
Rhodes concerning their union activities and views coupled with expressions of opposi-
tion to the Union; the similar interrogation of employees Wilson and Westerman by
Floorladies McKinney and Wallace; the interrogation by Personnel Supervisor
Wafford of employee Norfieet coupled with her remark that Norfleet would not have
been discharged had she not attended union meetings.
2. The statement by Floorlady Wallace to employee Westerman that the plant
would be closed if it were to be unionized; the remarks by the Respondent's official,
Hoffman, in his speech to the assembled employees, as related by employee Thomas,
plainly implying that the Respondent's Dover plant, like the Chattanooga plant, would
be closed if it were to become unionized.2
3. The remarks to employees by chamber of commerce members Tippett and Sills,
in effect, that the employees would not have a union because the Respondent was
opposed to it, that the Respondent would pay a lawyer $1,000 a day to keep the
Union out, and that it would do the employees no good to get a contract because the
Respondent would merely "sweat it out." These remarks implied that the Respondent
would not recognize and bargain with the Union in good faith and were calculated
to instill in the minds of employees the futility of selecting the Union as their
collective -bargaining representative .3 In like manner Plant Manager Rhodes inter-
fered with the Section 7 rights of employees by his remark to employee Carolyn
Shepherd that the Respondent would never deal with the Union, coupled with his
threat of job loss if the Union did not prevail, and by his statement to employee
Myers that the Respondent would not operate under a union, did not have to negotiate
with the Union, and that the Union could compel negotiation with the Respondent
only by a strike in which the employees would be the losers, coupled with his re-
minder to Myers that he had done her a favor by rehiring her.
21 am satisfied that those employees who testified that Plant Manager Rhodes said
to them as he read from a paper the Respondent would close its plant if unionized mis-
apprehended his words The contents of the document in evidence do not contain this
threat. I find, however, from the credited testimony of employee Gilmore that Rhodes
had said to her, in the course of a conversation he initiated about the Union , that the
Respondent could "pack up and leave anytime they got ready to" which I construe as
an implied threat of plant closure if it were to be unionized ( Byrds Manufacturing
Corp., 140 NLRB 147, 155, enfg. 324 F. 2d 329 (CA 8).) I believe Gilmore's positive
account of her conversation with Rhodes rather than his general denial that he had
threatened any employees with plant closing . I further credit employee Norfleet's testi-
mony that Floorlady Hester had said to her the plant would be closed if the Union
were to come in, and reject Hester's denial.
3 Inglewood Park Cemetery Association , 147 NLRB 803 ; Remington Rand Corporation,
141 NLRB 1052.
ELY & WALKER 651
4. The threat by Floorlady McKinney to employee Thompson that if the plant
were unionized employees would lose their jobs.
5. The remarks by Plant Manager Rhodes to employees Odom, Wilson , and Elliott
that employees who gave affidavits to the Board's agents in the course of an investiga-
tion would be involved in court proceedings , said remarks being deliberately calcu-
lated to inhibit employee cooperation with the Board's processes , thereby interfering
with the exercise of their right to seek vindication of statutory rights.
6. The establishment and maintenance by the Respondent of rule 6 in its manual
to employees forbidding them unqualifiedly to engage in union activities on plant
property , thereby too broadly restricting employees in the exercise of such activities.4
7. The remark by Plant Manager Rhodes to employee Thomas that he had heard
she had attended a union meeting and the similar remark by Floorlady Wallace to
employee Westerman which created the impression that the Respondent was keeping
the union activities of its employees under surveillance.
I further find that the Respondent in violation of Section 8(a)(1) of the Act,
promised and granted material benefits to its employees to induce them to reject the
Union. The uncontradicted testimony , which I credit, of employees Louis Shepherd,
Annie Yarbrough , and Birdie Elliott shows that the Respondent 's official , Hoffman,
'in a speech to employees , promised them a break period which they were thereafter
granted. His accompanying remark that the employees did not need the Union to
enable them to obtain this benefit conclusively shows that it was promised and granted
to induce their rejection of the Union . It is undenied that the promise of a paid
Christmas holiday by Plant Manager Rhodes and his announcement of the hourly
base rate increase to $1.30 occurred after the Union 's organizational campaign began.
I find this is so from the credited testimony of the General Counsel 's witnesses.
Rhodes' testimony that he had not learned about union activity before announcing
the paid Christmas holiday does not alter this fact . I am not convinced by Rhodes'
explanation for the promise of these benefits that they were not intended to influence
the employees to withhold support for the Union . Granted that employees were
encountering special production problems which made it more difficult for them to
reach their production quotas and thus to be compensated at the higher hourly rate
of $1.35, the fact is that the employees had not been able to reach and sustain their
quotas in the past and would not have earned a higher rate even if there had been
no increased production problems. In the circumstances , the elevation of the base
rate was tantamount to a gratuity which is explainable only as an inducement to
reject the Union , particularly when it was granted in the course of the Respondent's
other numerous unlawful acts designed to defeat the Union 's campaign. Similarly,
the explanation that the Christmas holiday was granted in accordance with the
Respondent 's normal policy of giving holiday pay to employees after new plants are
established and on their feet , is not convincing in the light of Rhodes' emphasis
throughout his testimony that the Respondent was then losing money. I am satis-
fied that he knew of the union activities going on at the time in view of his admitted
inquisitiveness and his determination to frustrate these activities by employees, and
that he timed the announcement of this, the very first holiday pay granted by the
Respondent , as another benefit to induce union rejection.
I additionally find that the petition circulated by employees hostile to the Union
on the day of the December 12 representation election was conducted with the knowl-
edge and approval of Floorlady Hester, whose testimony that she did not learn about
this activity until it was all over I do not credit . In the face of the uncontradicted
and credited testimony of employees that the solicitation of signatures was openly
conducted in the plant , it is highly unlikely that Hester could have failed to observe
this widespread activity . I moreover credit the testimony of these witnesses that the
solicitation was conducted in Hester 's presence and actually with her participation.
I particularly do not believe Hester's claim that after hearing about the petition she
was impelled to see it, sought out the employee who had it in hand, and then merely
looked at it without ascertaining what it contained . This is too inconsistent with
normal behavior to accept and convinces me Hester was not a truthful witness. I am
persuaded that she knew that employees were engaged in their solicitation of signa-
tures pledging loyalty to the Respondent and that they did so in the plant on time for
which they were paid . I further find from the uncontradicted evidence that Foreman
Poland and Floorlady McKinney were aware of these activities . The failure of all
4 Absent a showing of necessity against distribution of union literature on nonworking
time in nonworking plant areas to maintain production or discipline , a rule forbidding
such activities has been declared by the Board in Stoddard -Quirk Manufacturing Co., 138
NLRB 615 , to be violative of Section 8(a) (1) of the Act. The Respondent made no
such showing of necessity in this case.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these supervisors to halt these activities must be regarded as their approval and
adoption of them, especially in view of the numerous threats by supervisors to
employees favoring the Union of discipline for activities in the plant in behalf of
the Union.
2. Conduct violative of Section 8(a) (3 )
I am convinced that Clara Scott was discharged because of her union leadership.
In so concluding I have been influenced by the inadequacy of the Respondent' s expla-
nation for her discharge. Scott's credible insistence that neither her productivity nor
quality of work had before the day of discharge been unfavorably mentioned by her
supervisor, Hester, is supported by Hester's written record of reprimands revealing
that no complaint concerning these subjects was registered by her concerning Scott
after August 20, 1963, when she appears to have ended her job training. In view of
Hester's testimony that such complaints to employees were sufficiently serious to
warrant written entries, it is fair to assume that in fact Hester had not had reason
for complaint. Her testimony that she had recommended Scott's discharge for poor
production and quality is therefore rejected as untrue. I am instead persuaded that
this testimony was improvised to cloak the real reason for the discharge. Scott, as
her history of union activities shows, was a vigorous, outspoken advocate of the
Union. The timing of this leader's discharge during the mounting pace of the cam-
paign, the Respondent's extreme hostility to the unionization of its plant and its
numerous unlawful threats of reprisal and other actions taken to prevent this result,
and the false reason assigned by it for the action against Scott satisfy me that the
motivation therefor was a desire to get rid of this strong proponent of the Union and
thereby to discourage the activities of other employees who might also have been
tempted to support the Union. The Respondent's discharge of Scott violated Section
8(a)(3) of the Act.
I am convinced that Odelia Shelton, too, was discharged because she supported the
Union. This conclusion is premised on my disbelief that the reprimand records for
Shelton produced by the Respondent genuinely reflect what they purport to show,
namely, that Shelton was a low producer whose work was of poor quality. I have
already indicated that Hester did not testify credibly concerning other matters. I also
do not believe that the records she claimed to have completed are a truthful account
of Shelton's job performance. In view of Hester's insistence that Shelton's perform-
ance had been bad all the time she had worked under her, it is exceedingly strange
that the reprimand records in evidence appeared for the very first time when organi-
zational activities began, and that there is no record of reprimand for the entire
period of Shelton's employment from its beginning in July 1963 until October 10.
Giving face value to Hester's testimony that she prepared a written record each time
she reprimanded an employee about low production and low quality, it must be con-
cluded that she had not found cause to reprimand Shelton for these reasons before
October 10, else she would have completed a reprimand form on such occasion.
I must, therefore, find that, contrary to Hester's testimony, she had not been dis-
satisfied with Shelton's work all the time she had worked under her. This raises the
question as to why, beginning with October 10, Hester should have become so seri-
ously critical of Shelton that on each succeeding week she prepared a reprimand
record for her. I am not persuaded that, in fact, Hester did complete these forms on
the dates which they bear for I wholly distrust her testimony, but even if they had
been completed on these dates I would regard them as manufactured evidence to
provide a pretext for Shelton's discharge These misgivings are particularly height-
ened by Hester's admission that at no time had she ever shown these written repri-
mands to Shelton. Not only were they not shown to her, but there is no indication
she was aware of their existence. This was highly irregular. In the many years in
which I have heard testimony from employer witnesses in cases involving the prepa-
ration of written reprimands for employee derelictions, it was uniformly shown that
the employee was provided with a copy of the reprimand or was at least informed
that the record had been made and what it contained. Generally, the employee is
required to sign or initial the filed copy to avoid a possible claim that he had not been
informed of the complaint against him. Written reprimands are more seriously
received by employees than mere verbal complaints or warnings. They aie regarded
as a basis for denial of promotions, wage increases, and for severe disciplinary action.
The underlying purpose of the written reprimand is to let the offending employee
emphatically know that his derelictions or shortcomings have not been lightly regarded
and have been permanently recorded as a basis for future action if he does not mend
his ways or improve his performance. This purpose would plainly be defeated if
the reprimand were to be prepared and filed without the knowledge of the employee
concerned. The palpable impracticality of Hester's failure to inform Shelton of the
ELY & WALKER 653
written reprimands suggests that these documents were not prepared for their ordi-
nary purpose , but were intended for a different reason, namely , to be used as a justi-
fication in this proceeding , if necessary , for her discharge
In view of the general lack of credit accorded Hester 's testimony , I do not regard
her privately prepared reprimand records to be sufficiently reliable to support her
claim that she had recommended Shelton 's discharge merely because of dissatisfac-
tion with her job performance . I find there was no basis for dissatisfaction with
Shelton, and nothing was said to her by Hester which indicated ussatisfaction before
the week prior to the discharge . I credit Shelton 's testimony that she was "shocked"
by Hester 's warning that she would be discharged if she received two or three pairs
of pants in I day for repair , and her denial that she had received any repairs on the
day when she was notified of her termination . Furthermore , I credit her uncontra-
dicted testimony that from her observations during her final week she had less repairs
returned than other band setters and produced as much as some of the other employ-
ees with whom she worked . Plant Manager Rhodes' claim that Shelton was one of
the lowest producers in her section is accorded no weight as his testimony assertedly
was based only upon inspection of employee earnings. As it appears that none of
the employees in Shelton 's section ever reached and sustained production quotas for
which they would have been paid at higher levels, all these employees , including Shel-
ton, were necessarily compensated at the base hourly rate . Their earnings could not,
therefore, reveal how much they produced as they all received the base rate irrespc-
tive of productivity short of quota levels.
I infer that the union sympathies of employees who attended meetings were
known to the Respondent 's supervisors as evidenced by the remarks of supervisors,
hereinabove found to have been made, indicating such knowledge . This inference is
strengthened by the admitted interest in the union activities and sympathies of
employees reflected by the interrogations of employees by Hester , Rhodes , and other
supervisors . I find that whether or not Hester had observed the wearing of the union
button by Shelton in the week before her discharge , she knew that she had attended
the union 's meetings and was sympathetic to it.
The Respondent 's intense hostility to the unionization of its plant has been amply
shown . Likewise , the record abundantly demonstrates the application of unlawful
measures including threats of reprisal to employees to prevent their support of the
Union . The hostility and unlawful conduct of Hester and Plant Manager Rhodes,
the two persons who were responsible for Shelton 's discharge , have been found. In
these circumstances , the rejection of the explanation for the discharge of Shelton, a
known union adherent , compels the conclusion that she, like Scott, was discharged
to provide an object lesson for other like-minded union supporters that continuation
of their activities would imperil their jobs . This finding is not affected by the fact
that other employees , including those in Shelton's section , who openly revealed their
sympathy for the Union were not discharged . A discriminatory motive otherwise
established is not disproved by an employer's showing that he did not weed out every
adherent of the union . N.L R.B . v. W. C. Nabors , d/b/a W C. Nabors Company, 196
F. 2d 272, 275-276 (C .A. 5), cert. denied 344 U .S. 865. By Shelton 's discharge, for
the reasons stated, the Respondent violated Section 8(a)(3) of the Act.
I do not find that the Respondent in violation of Section 8(a)(3) of the Act har-
assed employee Bonnie Heaton by transferring her from job to job or by denying her
employment . I regard Rhodes ' explanation as reasonable , that the necessities of
plant production and scarcity of work were responsible for Heaton 's various assign-
ments and periods of layoff. I am particularly impressed with the absence of unlawful
motivation for these actions by the fact that , as related by Rhodes , Heaton was given
a new and steady assignment when she revealed the personal need for full -time work.
This consideration is inconsistent with Heaton's alleged discriminatory treatment.
3. Conduct affecting the results of the December 12 election
The numerous instances of conduct by the Respondent 's supervisors and agents,
hereinabove found violative of Section 8(a)(1) and (3) of the Act, prevented the
free and uncoerced choice by employees in the December 12 representation election
of the Union as their collective- bargaining representative . In view of the abundant
evidence supporting the foregoing conclusion , there is no necessity for reliance upon
other evidence of conduct adduced by counsel for the Union in this proceeding to
show that the employees were denied the opportunity for a valid election. I shall
not advert to this other evidence except for the following items which I believe merit
consideration so that in the future the conduct referred to will not be repeated in
another election which may be held among the Respondent 's employees.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The taking of pictures by a supervisor in the plant of employees wearing distinctive
insignia revealing their opposition to the Union and the subsequent display of these
pictures on the plant wall had the effect permanently of classifying employees on
the basis of their sentiments for or against the Union . Such open identification by
the Respondent of its employees necessarily had an inhibiting effect upon them in
the exercise of their right to support or to refrain from supporting the Union. In the
established circumstances of this case , employees who were photographed with a
group opposing the Union could fairly reason that they might incur the Respondent's
resentment and be subjected to reprisals for their failure to be included with the
loyalists who were photographed.
Plant Manager Rhodes' request to the local nightclub owner to use his influence
to persuade employee Gilmore to vote against the Union was carried out in circum-
stances making it evident to Gilmore that Rhodes was responsible for the exertion
of the club owner's influence and tended to inhibit the free exercise of Gilmore's
right to support the Union. Not only was Gilmore made aware that Rhodes had
learned of her union activities , but her refusal to respond favorably to the request
could reasonably have been regarded by her as inviting Rhodes' reprisal.
H. The challenged ballots
The Regional Director's report states that the Board 's agent challenged the ballots
of Clara Scott , Odelia Shelton , and Patricia Heflin because their names did not appear
on the eligibility list for the December 12 election . Ostensibly , Scott's and Shelton's
names had been excluded because they had been discharged . Having found that
their discharges were unlawful , I now find that they were eligible to vote in the
election. Heflin's name appears to have been excluded because her last day of
employment was December 12. It was stipulated that Heflin had been employed by
the Respondent in the appropriate unit during the payroll period ending Novem-
ber 15, 1963, and that voting eligibility was determined on the basis of employment in
the payroll period ending on that date . The Board determines voting eligibility in
a representation election by the status of employees on the eligibility date decided
for the election and on the date of the election . Employees who are employed on
both these dates are eligible to vote notwithstanding that they may, before the election,
have given notice of an intention to quit and do so immediately after the election
See Personal Products Corporation , 114 NLRB 959. Accordingly , as Heflin was
employed on both the eligibility date and the date of the election , she was eligible to
vote.
The Union challenged the ballots of employees Robbye Blane and Barbara Wallace
on the ground they are clerical employees and therefore excludable from the appro-
priate unit of production and maintenance employees which specifically excludes
office clerical employees . The Respondent maintains they are includable as plant
clerical or as dual-function employees performing unit work and hence were eligible
to vote in the election
Blane works in the shipping department from 7:30 a.m. to 12:30 p.m. From then
until 4 p.m. she works in the Respondent 's main office posting payrolls. In the ship-
ping department Blanc prepares bills of lading and labels which are attached to
cartons in which products are packed by the shipping department employees. She,
like the other employees of this department , also packs garments in boxes. In the
shipping department Blane is supervised by Foreman Poland who is also over the
cutting room . It was stipulated that other shipping department employees voted
without challenge in the election . Blane is hourly paid.
Wallace is classified as a production clerk in the cutting department . It is unques-
tioned that this is a production department whose employees are included in the
unit. Half her time is spent making piece-rate coupons, size tickets , keeping produc-
tion records of the number of pants cut in her department , and marking on cutting
tickets the number of yards of material used. This work is performed at a desk in
her department . Next to her desk is a machine in which she sets type and which she
then uses to stamp tickets with desired markings . She alone in her department
performs the foregoing duties. The other half of her time is spent at work which
other cutting department employees also perform , consisting of bundling garments,
making markers , and putting tickets on pants. Wallace is hourly paid, punches a
timeclock , and, along with the other cutting department employees, is supervised
by Foreman Poland.
I find that Blane is a dual -function employee who works half her time as a plant
clerical in the shipping department . In Berea Publishing Company, 140 NLRB 516,
the Board reestablished the rule that dual-function employees who spent less than
ELY & WALKER 655
51 percent of their time at unit work may be included in the appropriate unit provided
they do a sufficient amount of unit work to demonstrate that they have a substantial
community of interest in the unit 's wages, hours, and conditions of employment.
In the Berea case employees who regularly worked 40 percent of their time in the
unit were deemed to have a sufficient interest for inclusion . As Blane regularly
spends approximately 50 percent of her time at unit work, she is includable in the
appropriate unit as a plant clerical .5 Accordingly she was eligible to vote in the
election.
Wallace is a full-time plant clerical and production employee whose work is
included in the appropriate unit , and was also an eligible voter.
The Union challenged the ballot of employee Lofton Ford on the ground that he
was a supervisor excluded from the appropriate unit. The Respondent contends
he is an includable rank-and-file employee. Ford is a skilled sewing machine
mechanic who repairs the plant sewing machines and builds work aids . He is assisted
by another mechanic named Kenneth Owens. Occasionally they work together but
usually they work separately on different machines. Their work is apportioned on
a rotation basis and Ford does not give Owens his assignments . When Owens started
he was sufficiently skilled to need no training from Ford. The latter exercises no
authority over any employees and has never been told by his direct superior, Plant
Manager Rhodes, that he has such authority. He has never hired or discharged or
recommended the hire or discharge of any other employee. The closest he comes
to any action affecting the status of employees is on those occasions when Rhodes
may consult him before granting Owens a raise . But Rhodes also consults his
assistant , Don Rhodes , and his other line supervisors concerning this matter. Ford
is occasionally summoned to management meetings where he is questioned about the
plant machines . He discusses nothing else at these meetings . Owens is not called
to such meetings. Although he had never been granted authority to park his auto-
mobile in spaces reserved for the Respondent's supervisors, Ford, on his own, has
appropriated a space for himself. He is hourly paid but does not punch a timeclock.
He keeps his own time which he turns over to Plant Manager Rhodes. From the
foregoing facts I find that Ford is not a supervisor but a rank -and-file maintenance
employee includable in the appropriate unit and an eligible voter in the election.
IV. RECOMMENDATIONS CONCERNING CHALLENGED BALLOTS AND CONDUCT AFFECTING
RESULTS OF THE DECEMBER 12, 1963, ELECTION
I have determined that the six employees hereinabove named were eligible to vote
in the December 12 election . As their ballots may be determinative of the results
of the election, I recommend that they be opened and counted. If, after they are
counted and a revised tally of ballots is issued , it appears that the Union has secured
a majority of the votes cast in the election , it is further recommended that the Union
be declared the winner in the election and be issued a certificate as the exclusive
collective -bargaining representative of the Respondent 's employees in the appropriate
unit. If, on the other hand, the revised tally shows that the Union has not secured
the required majority to establish it as the winner of the election , I recommend that
because of the Respondent's conduct found to have impaired the freedom of choice
of the employees in the election, the results be set aside and a new election ordered
at the earliest date consistent with administrative convenience.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection 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 the free
flow thereof.
VI. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of 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.
I shall further recommend that the Respondent be ordered to offer immediate and
full reinstatement to Clara Scott and Odelia Shelton to their former or substantially
equivalent positions without prejudice to their seniority or other rights and privileges
as employees. I shall further recommend that the Respondent make Scott and Shelton
6 General Electric Company ( River Works ), 107 NLRB 70.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whole for any losses they may have suffered because of the discrimination against
them, by payment to them of such sums of money as they normally would have earned
as wages absent the discrimination. Backpay for Scott shall be computed from
November 1 and for Shelton from November 4, 1963, until the date of offers of rein-
statement to them. Deductions shall be made from backpay payments to these
employees of interim earnings on a quarterly basis in the manner provided by the
Board in F. W. Woolworth Company, 90 NLRB 289, to which shall be added interest
at the rate of 6 percent per annum.
Because the Respondent by its conduct violated fundamental employee rights
guaranteed by Section 7 of the Act, and because there appears from the manner of
commission of this conduct a disposition to commit other unfair labor practices, it
will therefore be recommended that the Respondent cease and desist in any manner
from infringing the rights guaranteed employees by Section 7 of the Act. I do not
recommend the other safeguards requested by the Union as I am not convinced of
their necessity.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Ely & Walker is an employer within the meaning of Section 2(2) of the Act
and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. Amalgamated Clothing Workers of America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act in the manner hereinabove found, the
Respondent has engaged in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By discriminating with respect to the hire and tenure of employment of employ-
ees Clara Scott and Odelia Shelton, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(3 and (I).
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6 The allegations of the complaint that the Respondent has discriminated against
Bonnie Heaton in violation of Section 8(a)(3) of the Act have not been sustained.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this proceeding , and pursuant to Section 10(c) of the National
Labor Relations Act , as amended , I recommend that Ely & Walker , Dover , Tennessee,
its officers , agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Discourgaing membership in Amalgamated Clothing Workers of America,
AFL-CIO, or any other labor organization of its employees by discriminating in
regard to the hire and tenure of employment of its employees.
(b) Coercively interrogating employees concerning their union activities and sym-
pathies, telling employees its plant would be closed if it were to become unionized,
telling its employees that it would be futile for them to select the Union as their
collective-bargaining representative as the Respondent would not recognize and bar-
gain with the Union in good faith and would spend large sums of money to prevent
its plant from becoming unionized , threatening employees that they would lose their
jobs if the plant were to be unionized , threatening employees with harassment if they
cooperate with the Board in the course of an investigation of its conduct , maintaining
and enforcing a rule forbidding employees to solicit for the Union and to distribute
union literature on plant property during nonworking time in nonworking areas, and
threatening to discipline employees favoring the Union who violate such rule while
permitting employees opposing the Union to disregard the rule, creating the impres-
sion among employees that their union activities are under surveillance, promising and
granting material benefits to employees to induce them to reject the Union , approving
and adopting the solicitation of signatures by employees to a written pledge of loyalty
to the Respondent and of opposition to the Union.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization , to form, join, or assist Amalgamated
Clothing Workers of America , AFL-CIO, or any other labor organization , to bargain
collectively through representatives of their own choosing , and to engage in concerted
activity for the purpose of collective bargaining or other mutual aid or protection
or to refrain from engaging in such activities.
ELY & WALKER 657
2. Take the following affirmative action which it is found will effectuate the policies
of the Act:
(a) Offer to Clara Scott and Odelia Shelton full reinstatement to their former or
substantially equivalent positions, and make them whole for any loss of earnings
suffered as a result of the discrimination against them in the manner described in
the section above-entitled "The Remedy."
(b) Post at its plant in Dover, Tennessee, copies of the attached notice marked
"Appendix." 6 Copies of said notice to be furnished by the Regional Director for
Region 26, shall, after being duly signed by an authorized representative of the
Respondent, be posted by it immediately upon receipt thereof, and be maintained
by it for a period of 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.
(c) Preserve and, upon request, make available to the Board or its agent, for
examination or copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to determine
the amount of backpay due under the terms of this Recommended Order.
(d) Notify the Regional Director for Region 26, in writing, within 20 days from
the receipt of this Decision and Recommended Order what steps it has taken to
comply herewith.?
o In the event that this Recommended Order be 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 be en-
forced by 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."
7In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director for Region 26, in writing,
within 10 days from the date of receipt of this Order, what steps the 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 Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT interefere with , restrain , or coerce our employees in the
exercise of their right to support Amalgamated Clothing Workers of America,
AFL-CIO, or any other labor organization as their collective -bargaining repre-
sentative by-
Coercively interrogating them concerning their union activities and
sympathies.
Telling them our plant will be closed if it becomes unionized.
Telling them it would be useless to select a union to represent them as
we would not work with a union and would pay a lawyer $1 ,000 a day to
keep a union out of our plant.
Threatening them with loss of their jobs if our plant were to be
unionized.
Telling them they would be subpoenaed or involved in court proceedings
if they were to give affidavits to the National Labor Relations Board in the
course of an investigation of our conduct.
Maintaining the rule in our manual to employees forbidding them to
solicit for a union or to distribute union literature in the plant on non-
working time in nonworking areas, and enforcing the rule against employ-
ees opposing the union, and in particular we will not permit employees
opposed to the union with the knowledge and participation of our super-
visors to solicit the signatures of employees to a written pledge of loyalty
to us in the course of a union 's campaign for selection as collective-
bargaining representative.
Creating the impression that we are keeping the union activities of our
employees under surveillance.
Promising benefits to employees to induce them not to support a union.
783-133-66-vol. 151-43
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in Amalgamated Clothing Workers
of America, AFL-CIO, or any other labor organization of our employees, by
discriminating in any manner with regard to hire, tenure, or any term or
condition of employment.
WE WILL offer immediate and full reinstatement to Clara Scott and Odelia
Shelton to their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and make them whole for any
loss of earnings resulting from our discrimination against them as provided in
the Decision issued by the Trial Examiner of the National Labor Relations
Board.
WE WILL NOT in any manner interfere with, restrain, or coerce our employ-
ees in the exercise of the right to self-organization, to form labor organizations,
to join or assist the above-named 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 mutual
aid or protection, or to refrain from engaging in any or all such activities.
All of our employees are free to become, remain, or to refrain from becoming
or remaining members of any labor organization.
ELY & WALKER,
Employer.
Dated------------------- By-------------- -------------------(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, 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.
Employees may communicate directly with the Board's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone
No. 534-3161, if they have any questions concerning this notice or compliance
with its provisions.
Midwest Towing Co., Inc . and District No. 2, Marine Engineers
Beneficial Association , AFL-CIO, Petitioner . Case No. 14-RC-
4761. March 12, 1965
DECISION AND ORDER
On April 29, 1964, the National Labor Relations Board issued its
Decision and Order 1 in the above-entitled proceeding wherein it
found that a unit of chief and assistant marine engineers was inap-
propriate because the employees petitioned for are supervisors
within the meaning of the National Labor Relations Act, as
amended. On May 28, 1964, the Petitioner moved for reconsidera-
tion of the Board's decision, alleging that newly discovered evidence
materially affects the basic issue involved. On August 14, 1964, the
Board granted reconsideration upon the Petitioner's motion and
remanded the case to the Regional Director for further hearing on
the matters raised. Hearing on remand was held on October 6,
1964, before Hearing Officer Eugene L. Rosenfeld. The Hearing
1 Not published In NLRB volumes.
151 NLRB No. 73.