Empire Manufacturing Corp.

National Labor Relations Board - Board Decisions

Jun 5, 1958

120 N.L.R.B. 1300 (N.L.R.B. 1958)

1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find that the Petitioner's objections do not raise
substantial and material issues with respect to the conduct or results
of the election and they are hereby overruled in their entirety. As the
Petitioner has failed to secure a majority of the valid ballots cast, we
shall certify the results of the election.
[The Board certified that a majority of the valid ballots was not
cast for United Bakery, Confectionery, Cannery, Packing and Food
Service Workers Union of New Jersey, Local 262, RWDSU, AFT,
CIO, and that said labor organization is not the exclusive bargaining
representative of the employees of the Harrison, New Jersey, plant of
Chock Full 0' Nuts, in the unit heretofore found appropriate.]
Empire Manufacturing Corporation and Willie Bernice Beaver,
Louise Crawford , Effie V. Harmon , Rachel Lamberth , Lorene
Wallace, Myrtle Miller. Cases Nos. 11-CA-1008, 11-CA-1009,
11-CA-1010, 11-CA-1011, 11-CA-1018, and 11-CA-1077. June
511958
DECISION AND ORDER
On October 8, 1957, Trial Examiner James A. Corcoran issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it be required to cease and
desist therefrom and to take certain affirmative action, as set forth
in the copy of the Intermediate Report attached hereto. He also
found that the Respondent had not engaged in certain other unfair
labor practices, and recommended that the complaint be dismissed
insofar as it alleged such unfair labor practices. Thereafter, the
Respondent and the General Counsel filed exceptions to the Interme-
diate Report with supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Jenkins, and
Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the Respondent's and the General Counsel's
exceptions and briefs, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
'Examiner, except as hereinafter noted.
Contrary to the recommendations of the Trial Examiner, we find
that the General Counsel failed to prove the allegation of the com-
120 NLRB No. 175.
EMPIRE MANUFACTURING CORPORATION 1301
plaint that the Respondent discharged Myrtle Miller on October 2,
1956, because of her membership in and activities on behalf of the
Union in violation of Section 8 (a) (3) and (1) of the Act.
Miller's only connection with the Union dates back to March 15,
1956, when she signed a letter addressed to the Respondent informing
it of her membership on the union committee. According to Miller's
testimony, the Union's organizational activities in the plant continued
only for about 2 weeks, and by the end of March, the Union withdrew
from the plant. Miller, however, 'continued in the Respondent's
employ for 6 months thereafter, when she was informed by her super-
visor Anderson that she would be laid off temporarily for lack of
work. Miller inquired why it was she rather than somebody else
who had been selected for the layoff. Anderson referred her to Vice
President Rodriguez for an explanation. Miller testified that in her
interview with Rodriguez she was unable to obtain a satisfactory
explanation for the layoff and that she then remarked, "It seems to
me you are more interested in straightening your desk than in what
I was saying," and then abruptly left his office. Rodriguez testified
that after Miller left his office, he decided to make the scheduled
layoff permanent because of Miller's impatience and abrupt departure
before he could complete his explanation. Miller was laid off perma-
nently on October 2, 1956.
On these facts we are not convinced that, as found by the Trial
Examiner, Miller's activities on behalf of the Union were the real
reason for her discharge or that her insubordinate conduct in the
presence of Rodriguez was merely seized on by the Respondent as a
pretext for the discharge. Under the circumstances surrounding her
discharge and particularly considering the facts that (1) she con-
tinued in the Respondent's employ for 6 months after her limited
activities in behalf of the Union had ceased; (2) no proof was adduced
at the hearing that the scheduled temporary layoff of Miller was
discriminatorily motivated; and (3) Miller admittedly terminated
her conversation with Rodriguez with a statement which could be
reasonably construed by him as insubordinate or at least critical and
disrespectful, we find that the General Counsel has not sustained the
burden of proof that Miller was discharged for discriminatory
reasons.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that Empire Manufacturing Corporation , States-
ville, North Carolina , its officers , agents, successors , and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in and activities on behalf of the
Textile Workers Union of America , AFL-CIO, or any other labor or-
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ganization, by discharging employees or in any other manner dis-
criminating against its employees in regard to their hire or tenure of
employment.
(b) Interrogating in a manner constituting interference, restraint,
and coercion in violation of Section 8 (a) (1) any employees concern-
ing their membership in, affiliation or sympathy with, the above-named
or any other union, and threatening employees with economic reprisals
to discourage their affiliation with or support of Textile Workers
Union of America, AFL-CIO, or any other labor organization.
(c) In any-other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist the Textile Workers Union of
America, AFL-CIO, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other
mutual aid and protection, or to refrain from engaging in such activi-
ties, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Willie Bernice Beaver, Effie V. Harmon, and Lorene
Wallace, and each of them, immediate and full reinstatement to her
former or substantially equivalent position, without prejudice to the
seniority or other rights and privileges each of them may have enjoyed,
and make each one whole for any loss of pay suffered as a result of the
discrimination against her, in the manner set forth in the section herein
entitled "The Remedy."
(b) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amounts of back pay due and
the rights of employment under the terms of this Order.
(c) Post at its.plant at Statesville, North Carolina, copies of the
notice attached hereto, marked "Appendix A."' Copies of said notice,
to be furnished by the Regional Director for the Eleventh Region
shall, after being duly signed by the Respondent's official representa-
tive, be posted by the Respondent immediately upon receipt thereof in
conspicuous places, including all places where notices to employees, are
customarily posted, and shall be maintained by the Respondent fora
period of at least sixty (60) consecutive days thereafter. Reasonable
steps shall be taken by the Respondent to insure that said notice shall
not be altered, defaced, or covered by any other material.
-'In the event that this Order is enforced by a decree of a United States Court of
Appeals, there ' shall be , substituted for the words "Pursuant to a Decision and Order," the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
EMPIRE MANUFACTURING CORPORATION 1303
(d) Notify the Regional Director for the Eleventh Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply therewith.
IT IS ALSO ORDERED that the complaint be, and it hereby is, dismissed
insofar as it alleges that the Respondent discriminated in regard to
the hire and tenure of employment of Louise Crawford, Rachel Lam-
berth, and Myrtle Miller in violation of Section 8 (a) (3) and (1) of
the Act.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discharge or otherwise discriminate against any
employee for the purpose of discouraging membership in Textile
Workers Union of America, AFL-CIO, or any other labor
organization.
WE WILL NOT interrogate in a manner constituting interference,
restraint, or coercion in violation of Section 8 (a) (1) any em-
ployees concerning their membership, affiliation, or sympathy
with the above or any other union or threaten them with eco-
nomic reprisals because of their affiliation with, or support of,
the above union or any other labor organization.
VVE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organi-
zation, to form, join, or assist any labor organization, to bargain
collectively through representatives of their own choosing and
to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, and to refrain
from any or all of such activities, except to the extent that such
right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized
in Section 8 (a) (3) of the Act.
117E WILL offer Willie Bernice Beaver, Effie V. Harmon, and
Lorene Wallace, and each of them, immediate and full reinstate-
ment to her former or substantially equivalent position, without
prejudice to her seniority or other rights and privileges as
previously enjoyed and make each one whole for any loss of pay
suffered as a result of the discrimination against her.
All our employees are free to become, remain, or to refrain from
becoming or remaining members in good standing in the above-named
Union or any other labor organization, except to the extent that this
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
EMPIRE MANUFACTURING CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representati ve) (Title)
This notice must remain posted for 60 days froln the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon individual charges filed by Bernice Beaver, Louise Crawford, Effie V.
Harmon, Rachel Lamberth, Lorene Wallace, and Myrtle Miller, and amended
charges filed by Rachel Lamberth and Lorene Wallace (hereinafter each directly
referred to by name or as a Chargee), the General Counsel of the National Labor
Relations Board (hereinafter referred to as General Counsel and Board respectively)
through the Regional Director for the Eleventh Region, on October 3, 1956, issued
and served a complaint against Empire Manufacturing Corporation (hereinafter
referred to as the Respondent) and an amended complaint on May 13, 1957,1 alleg-
ing that the Respondent had engaged in unfair, labor practices affecting commerce
within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act_
Copies of the charges and amended charges, complaint and amended complaint,
and notice of hearing were duly served upon the parties.
With respect to unfair labor practices, the complaint alleged that the Respondent
by its agents and supervisors in specified instances interrogated and threatened its
employees relative to their membership in or engaging in activities of a labor organ-
ization; that it had discharged or laid off and thereafter refused to reinstate Chargees
Harmon, Wallace, Crawford, Beaver, and Miller and had refused to reemploy or
reinstate Chargee Lamberth because of similar reasons as above stated, and also
because they engaged in concerted activities with other employees for the purpose
of collective bargaining and mutual aid and protection. The Respondent in an
answer and amended answer duly served and filed denied all material allegations
of the complaint as to the unfair labor practices alleged, admitting only the fact of
discharges and layoffs of the various Chargees on the specified dates.
Pursuant to notice a hearing was held on May 22 to 24, 1957, at Statesville, North,
Carolina, before James A. Corcoran, the duly designated Trial Examiner. All parties
were represented at the hearing, and were afforded full opportunity to be heard,
examine and cross-examine witnesses. A motion by the General Counsel to conform
the pleadings to the proof in nonsubstantial matters was granted.2 The parties
waived presentation of oral argument. Opportunity was afforded for filing of briefs.
The General Counsel filed a brief which has been read and considered.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is, and at all times mentioned herein has been, a corporation
maintaining its principal office and place of business at Statesville, North Carolina,
engaged in the manufacture and sale of canvas products. In the past year Respondent
manufactured, sold, and distributed directly to customers outside the State of North
1 The Regional Director by order dated October 3, 1956, consolidated the then pending
cases for hearing, and similarly on May 13, 1956, issued a further order of consolidation
to include also the case of Myrtle Miller.
2A misstating or misspelling of the name Rodriguez in the complaint and amended
complaint was orally corrected without objection during the course of the hearing.
EMPIRE MANUFACTURING CORPORATION 1305
Carolina finished products valued in excess of $100,000. I find that the Respondent
is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America, AFL-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. General
This Company employed 175 to 225 workers, with approximately three-fourths
thereof being engaged in various canvas manufacturing activities, principally in the
production of hunting clothes and awnings. Each kind of work was seasonal in
nature. The type of work and the flow of production under a fluctuating business
required the imposing of frequent short layoffs to many of the workers. Production
labor figures for 1956 put in evidence by the Respondent showed a slight upturn in
business volume beginning in March 1956, becoming noticeably so in May and
continuing through September, dropping considerably in October and remaining
slack until after Christmas.3
Union handbills and leaflets were distributed to the workers as they left their cars
on two occasions, stated as being in late February and early March 1956. Knowledge
of such procedure and fact and the contents of such handbills by the Respondent is
clearly established in the testimony of Chandler and Rodriguez, each a vice president
of Respondent. It was stipulated that the Respondent on March 6, 1956, received a
letter signed by 10 workers advising the Respondent that such undersigned employees
were serving as a committee for the Textile Workers Union,4 and a similar letter
on March 16, 1956, containing signatures of 3 employees.5 Although denying that
the Respondent also passed out any antiunion leaflets, Rodriguez did admit that some-
time early in March 1956 the Respondent, allegedly as a joke, did set up in the plant
for distribution without actually passing them out, so-called jokester books titled
"This is What the Union Will Do For You" and containing blank pages. There is,
however, no history of prior Respondent union animus presented.
B. Discharges and layoffs
Mrs. Effie Harmon
This worker was employed as a sewing machine operator, working on various
operations as required. After being out ill, she returned to work on Friday, March
2, at the request of Mrs. Sowers, supervisor in charge of all sewing work. On part
of March 6 and 7, she was performing pocket beading work, and at 11:30 a. in.
on such latter date was assigned to the operation of setting sleeves in coats. This
necessitated her shifting to another machine stated as being across an aisle. It
appears that although she had done such sleeve work previously, considerable time
had elapsed since her last work at it. Her completed work (and that of other sleeve
setters) would go next to the raise stitching operation, being performed by Mrs.
Kay Edwards, a skilled operator. The latter in her testimony indicates that at no
time while Harmon was on sleeve setting work was she able to produce enough to
keep Edwards busy On occasions therefore Edwards would go back to a machine
beside Harmon and also set sleeves. The record presented is not conclusive as to
whether any so-called bundle girl was then in use to take completed work from one
operator to the next operator. Edwards maintains that to get work she either had
to get up and go back to the machine of Harmon for it, or she had to turn around
in her seat and reach to get it from her. From general evidence presented I conclude
that machines were spaced 4 or 5 feet apart., .
Harmon was discharged about 3:30 p: in: on March 7, without direct explanation
at the time, but allegedly for bothering and, annoying Edwards and interfering with
her work in violation of a plant rule, although the layoff slip given to Harmon on
3 According to testimony of Rodriguez, vice president, it was conceded also that similar
'figures for the year 1955 would be slightly lower. A tabulation of the number of layoffs
in 1956 (excluding clearly short temporary layoffs and not including the Chargees herein)
indicated a rather high turnover rate of employment, with the rate of monthly actions
,relative to discharge and layoff increasing thereon subsequent to March 1956.
• Rachel Lamberth and Louise Crawford of the Chargees herein were included in such
signers.
5 Two of these were Chargees, Bernice Beaver and Myrtle Miller.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the following day stated the cause assigned by Mrs. Sowers as "discharged for
participating in union activities during work hours. Do not rehire." According
to testimony of Rodriguez and Sowers, the latter had sought his approval of her
discharge action regarding Harmon before-taking it, and Rodriguez confirmed it when
she assured him she "had sufficient evidence" regarding Harmon interfering with
the work of Edwards by continually engaging in conversation with her. Rodriguez
testified that he could not remember if he was told that Edwards and Harmon were
talking about and that "we let her go" only for violation of the rule against disturb-
ing others by unnecessary talk.6 I am not inclined after observing and listening
to his testimony in general, evasiveness, and the unconvincing verbosity relative to
his so-called investigation of this incident to place any great reliance on it. Harmon
was not a signer of the union committee letters, and testified under cross-examination
that on March 7, she was undecided as to whether she was in favor of a union or
not, had "not [done] a thing in the world" on behalf of the union, and that she had
given no intimation to any supervisor that she was working for a union, except for
an alleged and disputed conversation with Mrs. Sowers on the morning of the day
of discharge.
Almost one-third of this record consists of testimony offered relating to this claim.
The testimony of Harmon must be evaluated against the entire balance presented
in opposition thereto. Distinct conflicts of that of Harmon with that of Sowers and
also with that of Edwards are revealed and the resolution of such will largely de-
termine the confused credibility issue presented in this claim.
Much loose testimony was given as to the plant rule being a rule against talking,
but in clarification it appears from testimony of all witnesses that in fact talking
while working, between adjacent or nearby operators, was a common and apparently
unobjectionable practice, and the rule only applied to such type of talking as inter-
fered with production and precluded carrying on of work. Edwards stated it as
"you can talk if you continue work," and it is significant that she indicated that
when Harmon, leaning over her machine, spoke to her, the work of Harmon was
partly proceeding through her machine.? Mrs. Harmon admits she was talking on
,and off for not more than a minute or two at a time to Edwards on this day, but
insists that Edwards spoke to her first, and that they discussed various different
things other than the Union, stated to be involved in the alleged first statement made
by Mrs Edwards to her.8 Harmon alleges that in such first approach, Edwards
stated she was "glad that her mind was all made up" and that Harmon replied
"that's nice," and after further undescribed talk Edwards related she "talked to her
husband and he told me not to sign anything" and Harmon allegedly replied "now
I wish somebody would make up my mind like that." Harmon maintains that was
all that was said relative to the Union. Also, that Edwards got beside her again
and talk was as to the family, baby, and different conversations all during the day.
Mrs. Edwards contends that Harmon began to bother her by discussing union
matters while working and asking her if she did not intend to come along with her,
beginning shortly after noon (12:30 p. m.) and continuing until time of discharge
of Harmon at the close of the workday. Edwards alleges she objected and told
Harmon she did not want to hear it. She admits her statement as alleged by
Harmon, as to her mind being now made up. Edwards states she had to go back
to the machine of Harmon to get work, and on other occasions she would turn
around in her seat to get work from her, and on all occasions Harmon would con-
tinue to talk to her.9 She states, however, that as Harmon continued to talk, "I
e The plant rule reads as follows :
9 Leaving employees regular working place or visiting around the plant without per-
mission of supervisor, on either during or outside of regular working hours ; bothering
other employees while they are at work.
Rodriguez stated the supervisor decides if it is disturbing somebody.
7 Harmon testified that neither got up and visited the machine of the other, and any
talk between them, aside from when Edwards sat beside her, was while each sat at her
machine and worked Further, that as between them, natural voice tone could be heard
and understood despite the machine noises That it was not necessary for Edwards to
turn around to talk, and that. Edwards worked right on as she talked.
8 Harmon stated they did not talk as much on this day as on certain others, and that
she did not tell Edwaids on this day that she was for the Union, but had done so previ-
ously and Edwards therefore knew she was for it.
9 Edwards alleges whenever she turned around, "Harmon [machine] was stopped, and I
had to do same." "You cannot hear Harmon from where I was sitting and operate machine
at the same time." Sowers also testified her belief that Edwards could not hear Harmon
because of machine noise.
EMPIRE MANUFACTURING CORPORATION 1307
went about my work." Edwards alleges she left her work place and sought out
Mrs. Sowers about 1:30 p. in. and complained to her of being bothered and interfered
with in her work by Harmon. Edwards also asserts she was instructed by Sowers
to report any continuance of the talking to her forelady, Clodfelter. She did so
about 3 p. in., according to Clodfelter, who in turn allegedly reported to Sowers, who
determined and effected the discharge of Harmon, bringing "her time" to her just
before the usual quitting time.
Gill, a worker, sitting in back of and to the left of Harmon, testified she observed
talking (which she could not hear) from lunch until quitting time, off and on. She
alleges Edwards would have to get up often and go to get work, and that Harmon
would say something as Edwards reached down for the work. She admitted she
could only see the back of the head of Harmon, and could not hear any conversation,
but knew they were talking "by seeing Mrs. Edwards' mouth move." Hayes, sitting
next to Gill, and directly behind Harmon, alleges she heard Harmon call Edwards,
who turned around to ask what she wanted and to hear what was said, but Hayes did
not hear the conversation. On a later occasion (reputedly after the Sowers' visit to
Harmon) Hayes alleged Harmon again talked to Edwards "calling her names" but at
the same time Hayes admits she did not hear what was said. I was not impressed by
either of these coworker witnesses in regard to such above testimony. It seemed "too
pat." It is significant though in view of the allegations of Edwards and Gill, that
Hayes stated she only saw Harmon and Edwards talk once in the 12:30 to 1:30 p. in.
interval, and although alleging that they also talked after the Sowers' visit, she could
not recall any particular time she saw Harmon talk to Edwards. Clodfelter, the
immediate supervisor of these workers also testified. Allegedly, on several occasions
she saw Harmon talk to Edwards, when the latter went back to her for her work
bundle. Although she could see Edwards did not have enough work, she made no
effort to provide her with any other stop gap work. Allegedly, she observed them
talking off and on whenever she went by, but she said nothing to them. She wasalso
very vague as to when she first saw it, as to whether it was before Edwards spoke to
her, allegedly under instruction from Sowers to do so. She states that under instruc-
tions from Sowers she watched them during the afternoon, but did not tell them to
stop. She wavered back and forth so much in her testimony that I give little credence
to it.
On the issue of accepting and crediting the testimony of Harmon in preference to
that of Edwards, I find no difficulty. I do so. Rarely have I observed a less im-
pressive witness than Edwards. A mere reading of a cold record will show her
evasiveness under examination, but not show the petty, vindictive attitude and man-
ner, nor almost snarling and changing facial expressions which marked her demeanor.
I would therefore place little reliance on her testimony. Harmon, I regarded as frank,
consistent and nonevasive in her testimony as to this feature of the case. As to the
asserted violation of a plant rule by Harmon, I find in the absence of any specific rule
against solicitation, and on the credited testimony of all as to the seeming understand-
ing of what such existing rule 9 really covers, that Harmon did not violate it as alleged.
A sharper conflict is presented in the Harmon-Sowers testimony. Harmon alleges
that Sowers spoke to her three times on March 7. There appears to be no question
regarding the time of two of these occasions, namely approximately 1:30 p. in. and
3:30 p. m., although the testimony varies greatly as to what was said on these occa-
sions. Harmon alleged the other and first meeting at around 9:30 a. in. Sowers
denied it occurred, and specifically stated she did not talk to Harmon regarding the
Union on the day of the discharge.10 At such time Harmon was working at beading
pockets at an undefined location, presumably in the same section of the plant, but no
other witnesses were produced by either party on the questions as to the occurrence of
the 9:30 a. in. conversation, as alleged, or as to having heard what was said. In view
of its importance, this seems strange. Harmon alleged that while working on pockets,
Sowers came to her machine and stated "they tell me you like the union " Harmon
allegedly replied that everyone was entitled to their opinion, with which statement
Sowers agreed. Harmon further states that Sowers told her to stop work and she
would tell her what it would be like if they got a union. Allegedly, Sowers outlined
that the workers would not get regular work, would have a little bit of work at a
time and then be laid off. There would be strikes and people killed. The Company
would not spend any money for insurance on-them and would only pay wages of $1
per hour in accordance with law, and "would do as up North, hire niggers and put
10 Sowers qualified the denial by saying that she did not discuss union with her, " unless
she asked me ; if she did, I told her what I thought about it, but I don't recall her asking."
Sowers also stated generally that "here and there I might have" talked to some, that she
"couldn't say that I talked to anybody about the union and if I did they asked me." She
could not recall how many people asked her questions about the Union.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them on machines with you." Harmon alleges Sowers asked her if she ever worked
under a union and when she advised Sowers that her husband had and liked it, and
it helped him, that Sowers then inquired if he still belonged. She advised Sowers
that he did not, as there was none where he now worked. The talk allegedly was
ended by the bell announcing a 10-minute work break and Harmon went to the
lunchroom with other girls.
All testimony shows that there was a meeting of Sowers and Harmon at the latter's
work place at about 1 :30 p. m. Harmon states Sowers did all the talking telling me
"to watch my step" and what I talked about in the mill. Harmon claims she asked
what she supposedly talked about, but Sowers would not let her say anything and
stated I "was talking to her girls about the union" and I "had better watch my step."
Allegedly, Harmon replied telling her that she would talk about what she pleased in
the lunchroom.
Sowers testified she went to talk to Harmon soon after lunch as she accompanied
Edwards back to work, after the latter had allegedly complained to her regarding
being bothered by Harmon discussing the Union with her. Sowers states she told
Harmon not to be bothering Edwards anymore, not mentioning anything relating to
the Union, and Harmon replied she would not, and that was all the conversation.
Sowers in testifying as to her conversations with Harmon, alleged she did not raise
her voice over the ordinary tone she used in her testimony as witness. Sowers
alleges she then told Clodfelter of the complaint of Edwards. Gill testified she
saw Sowers come over to Harmon and allegedly heard the conversation. She states
Sowers stood right over the machine of Harmon, bending over talking directly to
Harmon, but that her back was not toward Gill. She alleges Sowers told Harmon
she wanted her to quit bothering Edwards and also that she wasn't going to tell her
again or warn her anymore, and saying further she was going to give her another
chance, walked off. She also claims she heard the "yes" reply of Harmon. She
alleged both spoke in raised voices. Hayes also testified to noting the visit of Sowers
to Harmon. She states Sowers was standing directly in front of her machine, talking
to Harmon and standing sideways showing about three-fourths profile. Allegedly
Harmon turned around to talk to Sowers. All machines in the vicinity were running
but that Harmon stopped her machine to listen to Sowers. She states she only heard
Sowers ask Harmon not to say anymore to Edwards in working hours and reply
of "allright" by Harmon. One might easily be skeptical of the ability of these two
to hear the alleged conversation with the machine noise present and their own
machines presumably operating, particularly in view of their inability to hear in the
alleged exchanges between Edwards and Harmon, at almost the same point.
Admittedly in the testimony of all witnesses, there was a visit of Sowers to
Harmon at about 3:30 p. in. at which time she discharged Harmon, telling her "here
is your time." Hayes who states Sowers stood in practically the same position as
on the former occasion, allegedly also heard this conversation and also only heard
her tell Harmon "here is your time," and nothing else. Hayes alleges Harmon
jumped up, saying "I don't give a damn, I can work for union all I want to now."
Gill testified to similar effect as to wording used, and also alleged that Sowers talked
loud and that Harmon raised her voice." Harmon in her version of the visit, in
addition to being told as to her time, alleged Sowers remarked as to Harmon not
liking to work for them anymore, to which Harmon allegedly replied "she did not
say that" and Sowers allegedly retorted to the effect "you acted like that when you
tried to turn girls over to the union." Harmon states she then replied "if that is the
way you feel I will work eight hours a day for the union now."
I am crediting the testimony of Harmon over that of Sowers. A "chink in the
armor" may be small but very revealing, and it is here, and is largely my basis
for resolving credibility as between these two. In regard to the basic allegation
of the Harmon-Edwards episode, Sowers testified as the first witness at the outset
of presentation of case by the Respondent, that she noticed or observed Harmon
talking to Mrs. Edwards off and on all morning, and that she did not say anything
to Harmon, thinking she would quit, but that she did not notice it after lunch. Yet
the record shows conclusively that Harmon did not start working on setting sleeves
until 11:30 a. in. and only worked to 12 before going to lunch, and that all testimony
of others produced by Respondent only relates the so-called talking and conversations
as occurring in the period after lunch. Her testimony as to such morning observation
I consider is therefore patently false and with the distinct conflict presented to me
destroys her credibility in the entire matter. I do not consider the Gill-Hayes
supporting testimony as sufficiently credible or persuasive under the circumstances
to offset such glaring defect-12
"As previously pointed out Sowers maintained she only spoke in a normal voice tone.
" Harmon alleges that the next day Sowers called her (at her request ) and she asked
Sowers why she really fired her, and was told by her it was for turning her girls over to
EMPIRE MANUFACTURING CORPORATION 1309
Mrs Weaver (a Chargee) and Mrs. Clodfelter (supervisor) have testified as to
a conversation they had when the latter visited Mrs. Weaver in the hospital about
7 p. in. on the evening of Wednesday, March 7, 1956. It is clear from the testimony
of each that in their talking Clodfelter told Weaver about a "mess" they were
having with the Union and that Harmon had been fired that day because of it.
Considering all the evidence, I find that the reason assigned for the discharge of
Harmon as to her bothering and interfering with the production of Edwards (which
incidentally was not clearly demonstrated in any objective manner) was mere
pretext and that the Respondent discriminatorily discharged Harmon in violation
of Section 8 (a) (3) for her actual or assumed membership in, and activities in
relation to, the Union.
Lorene Wallace
This employee had worked for the Respondent 3 years. She was laid off at
quitting time on March 7, which date was the end of a pay period. In the year
prior to termination she had worked in the stockroom, packing hardware and
doing when directed occasional trimming and inspection work on awnings (and
sometimes on coats). On March 6, she was assigned work of packing awnings,
which she stated she understood from Mrs. Sowers was "to be my job from now on "
As the awning season was then about over, she qualified her statement by saying
she guessed what Mrs. Sowers meant "was as long as she had work," or until "I
was moved again." She alleged she thought she would be put on some other work.
Wallace alleged that at that time of taking her from the stockroom work on
March 6, there was still plenty of orders to be filled, and trimming work to start
on the next day.13 It seems clear though that there was little work ahead in the
awning packing at this time. Wallace alleges she was laid off by Mrs. Elliott, the
awning work supervisor, who told her that there was little work to be done, but
that Elliott would call her back in a few days and arrangements were made how
she would notify Wallace to return. Wallace alleges she inquired at the time of
layoff if it "was over the union" and Elliott said "No." Wallace never heard
further from her. Successive layoff slips (not in evidence) issued to Wallace, she
declared stated she was laid off for lack of work. The assigned reason could
easily be accepted, except for the questions raised by the testimony of Rodriguez
as to the reason for and circumstances of her termination , and the testimony of
Wallace as to alleged conversations on March 7 with Elliott and Sowers regarding
the Union.14
Rodriguez , called by the General Counsel as a witness under Section 43 (b)
(Rules of Federal Court Procedure) at the very beginning of testimony and before
any detailed testimony as to any of the Chargees was presented, flatly declared her
discharge on March 7 was for some allegedly poor trimming work done on
several awnings, which he had discovered some 5 days before (Friday) while
making a cursory inspection checkup with the buyer of a customer. He also
alleged he had previous similar complaints regarding her from her supervisors.
Wallace continued at her usual work until the following Wednesday, March 7.
Rodriguez states he told Sowers to let her go on Wednesday, March 7, and believed
he told her about the buyer episode on that same day.15 On the other hand,
Sowers testified Rodriguez told her of the poor work 1 or 2 days before her layoff,
enjoining her to be sure and correct the girl about it. Sowers said "they" did, but
there is no other evidence to such effect. Sowers alleged Rodriguez did not say
to fire her then, but did so say after the layoff, and gave her the instructions not
to rehire her 1 or 2 days after the layoff. In some confusing testimony, Sowers
alleges she secured his approval of the layoff, but he did not say anything then
the Union ; that they were not going to have a union at the mill and that it would never
do me any good if they got a union at the mill because Harmon had broken a rule of
Empire in talking union while working Sowers testified that on such call she only told
Harmon to come in and get her layoff slip. I do not find it necessary for this decision to
resolve any issue of credibility in this matter
>s No detailed figures on volume were stated by any witness.
14 Wallace did not sign the letter notifying Respondent of the union committee, and no
other testimony as to any union activity by her before March 7 is presented.
15 After noon recess, he corrected his testimony after allegedly talking with Sowers and
Elliott, to the effect that he told Sowers after she told him she was laying her off for lack
of work, and he thereby changed his previously assigned cause for her termination to agree
with the cause assigned by Sowers . At such time he asserts he told Sowers not to rehire
her because of her poor work.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regarding not rehiring, and does not know about any occasion for him to so state
later, as she had previously testified.'6
Wallace alleged that on the morning of March 7, Mrs. Elliott, her supervisor,
spoke to her regarding the Union, asking me how I liked it. Assertedly, Wallace
replied that she thought it "would be just fine." She declares that Elliott then
warned her to "think twice" before I signed a card, and that when she left her,
Elliott went to talk to Mrs. Sowers in the coat department.17 Wallace also relates
an alleged conversion with Mrs. Sowers about 11:30 a. m. on March 7. She stated
that no other person was present at such time. She claims Mrs. Sowers stated "I
hear you like the union" to which she replied "yes." She was then asked what she
liked about it, and claims she replied wages, a regular job and better working condi-
tions . She states Sowers then said you haven't heard the bad points, specifically
naming that they "will hire niggers and put them right beside you," and then
solicitously inquired "we feel better than that don't we Lorene7" Wallace said
she agreed with such latter point, but she would work beside one for enough money.
Sowers allegedly then asked if she heard about strikes, and "how would you live"
if the Union went on strike. Sowers then is declared to have said that Wallace was
the strongest for the Union that she had seen and then enjoined her that I "had
better think twice before I signed." Wallace alleges Sowers then told her of the
Union "joining fee" $25 to $50, and stated that "they would close the mill down
and move it North before they would let the union come in ." Wallace declares
Sowers then called out to Elliott that "I was willing to work beside niggers and
that I was the strongest one she had seen for the union " Wallace declares Sowers
also told the same to E. M. Austin, supervisor of tarpaulins.18
Sowers admits that she did talk to Wallace regarding the Union just before the
noon bell. She had gone back to see her, and Wallace was then discussing the
Union with other unnamed and unidentified girl workers, and "I listened." Sowers
states she reproved Wallace, and asked her how she was going to manage, going
20 miles daily to work for probably 2 to 3 hours' work. Allegedly, Wallace replied
they would have to pay her enough. Sowers denies making any statement or
warning to her as to not signing the card Sowers states the conversation of
Wallace with the other girls was at noon tune. She was unable to recall who the
other girls were.19 Sowers declared she laughed at Wallace's statements, she said
nothing further and left, and they all went back to work, as it was time for the
bell. I was more impressed with the manner and demeanor and testimony of
Wallace as to details of the conversation regarding the Union than with that
offered by Sowers, and so credit accordingly.
The conversation of Weaver and Clodfelter at the hospital on the evening of
March 7 has been previously described, and I accept that Clodfelter stated that two
had been fired that day because of the Union, naming Harmon and Wallace, and
do not accept the disclaimer of Clodfelter that she did not know Wallace or that
she had been terminated, in view of other testimony she gave to the effect that
Wallace had worked for her off and on over a 3-year period at trimming and
inspecting whenever there was no work for Wallace in her own department, which
was given ostensibly to support her statement she had warned her regarding poor
work, although she was unable to state when she had done so or the number of
times.
In view of all the foregoing, I am convinced and find that the asserted poor work
performance of Wallace was not the cause for her service termination , and also
that the assigned cause of her layoff for lack of work was a mere pretext, and in
fact that the Respondent in violation of Section 8 (a) (3) discriminatorily dis-
charged Wallace from work because of her union support, membership or activities
in behalf of the Union.
18 In connection with allegations of prior performance of poor work by Wallace and
asserted warnings given to her regarding it, the evidence does not convince me that such
was established as alleged.
17 Wallace also alleges a conversation with Elliott about 3 weeks before in the stockroom.
She says Elliott asked her if she heard men talking regarding the Union, and that Elliott
hoped they would drop it Wallace at such time did not say she was for it, and never did
definitely tell her so until the talk of March 7 Mrs. Elliott did not testify and no state-
ment was offered as to her absence or nonavailability
18 Austin was not called to testify and no reason was assigned for her absence or
nonavailability.
19 None were produced to testify.
EMPIRE MANUFACTURING CORPORATION 1311
Louise Crawford
This worker was employed by the Respondent for 21/2 years as a utility girl doing
various machine stitching jobs. She was discharged on March 16, 1956, for doing
poor work while working on a pocket beading operation. She started doing such
work on March 15, but apparently had performed the same work at some previous
but unestablished time in her employment. In such beading operation the operator
puts the cloth in the machine and controls how much of the cloth is to be folded
over. The machine folder had turned up too much at the ends, but Crawford admitted
that having too much or too little fold is the fault of the machine operator. The
pocket material worked on has been notched to enable an operator to control and
govern how to put it on the machine, and also to govern how they will be placed
on the coat later. If the beading operator does not observe and respect such notch-
ing, the net result is the pocket on the coat will be either too low or too high. The
lot being worked on was a special in hunting coats and matching pockets properly
is very important in the final appearance of the coat, if the difference being too
glaring requiring disposing of such coats as seconds, rather than as a regular garment.
It is alleged that the poor work of Crawford 20 on March 15 and 16, resulted in
12 to 15 dozen coats having unsatisfactory pockets on them.21 About 10 dozen
coats were allegedly passed through as first line goods (although considered defec-
tive), and in 3 dozen the pocket blanks for use in making the completed pockets had
to be cut over again, and finally it is claimed that 2 dozen coats had to be disposed
of as seconds.22 The defective work performed by Crawford was noticed by the
next succeeding pocket operator on March 16, and also by the inspector in charge
of looking over the work after joining of coat sides and completion of pockets, and
each called it to the attention of the supervisor, Clodfelter. In refreshingly honest
and frank testimony, Crawford admitted that she knew she was supposed to fold
over the proper amount,23 should have seen the notch markings but apparently did
not, and that she had always done some bad work before, but had not been warned
regarding it. Crawford stated that Mrs. Sowers came to her on March 16, requesting
that she fix five pockets which she did, nothing else being said, and stating to her
that she hated to do it but when she got the pockets fixed, she would have to let
her go for the poor work performed.24 Crawford allegedly protested to Sowers that
such was not the real reason for the act, asked to have witnesses hear the conversation
but allegedly Sowers replied "she did not have to" and walked off. Reason for
termination assigned on the layoff slip filed by Sowers was "discharged, made a lot
of seconds attaching corduroy to muff pockets, don't rehire." 25
Crawford was a signer of the letter received by the Respondent on March 6, con-
taining signatures of 10 workers and advising the Company that they were serving
on a committee for the Union. Crawford alleges several conversations with Sowers
relative to the Union. The first she asserts occurred in the period between the passing
out of handbills (described elsewhere herein as late February or early March) and
March 1, when she signed the letter to the Respondent,26 while Sowers was looking
over her machine relative to her complaint that it was skipping. It related to what
Sowers said regarding what some other employee had allegedly said regarding the
Union, and the allegation of Crawford that she replied thereto that the "Union I
don't know much about " Allegedly, Sowers told her what it was, to the effect "you
pay some white collar man who sits behind a desk." Next, Crawford alleges that
on March 6, while she was sitting with other girl employees, and K. Edwards had
an article clipped from a paper, Mrs. Sowers came along and talked to them regarding
the Union 27 On the following day, March 7 (identified as the day she had been
20 She acknowledged that the pockets shown her were made wrong and that she had
done them
21 Crawford alleged that her production of such pockets on March 15 was 10 dozen and
5 dozen on March 16
22 Rodriguez stated such coats had to be disposed of at a price of $2 25 to $3 each, while
the price of the regular first coats was $8
22 Allegation that the machine was not pioperly working does not appear important as it
did not affect the particular work involved here -
24 Crawford also said that after the layoff , Sowers came to her machine about 9 a in and
informed her that she had already punched her out, and to wait in the lunchroom for her
check , which she did.
25 Crawford said that on the layoff slip given her the reason assigned was bad work
25 Such letter was dated March 5 and it was stipulated it was ieceived by Respondent
on March 6.
27 Mrs Sowers denied the incident , as did K Edwards , and Hayes , also alleged to be
present , did not remember anything about it.
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
placed on taping sleeves), Crawford alleges Sowers said to her, "I may not fire you
for talking union but watch your step. And I mean watch your step. I am going
to get as mean as a snake from now on." Sowers denied talking to her regarding the
Union as alleged. Crawford also claims that on the day the letter from the employees
arrived, Sowers inspected her work, and that had not been done previously. Sowers
stated she inspected work at times, not in consecutive order or as per any schedule
but when time permitted her to do so, and without regard to when she would get back
to any particular worker again. Crawford also alleged that for 21/2 days following
the receipt of the said letter, Sowers followed her every place she went (restroom,
sitting with girls, cafeteria) and stood by.28
I do not consider it necessary to resolve any credibility questions in regard to the
above testimony, as I do not regard it, even if true as alleged, partly because of the
time element involved, as substantial enough to warrant drawing any inference that
the discharge of Crawford was based actually on her union activities, rather than
the assigned reason of poor work performance. The latter as a fact cannot be denied,
and it was clearly a serious disservice to the Respondent, resulting in delay in pro-
duction, and some financial loss to it. The company rules (rule 11) specifically
provided that "failure of an employee to perform her work in an efficient manner,"
may be cause for summary dismissal or layoff. When an employee carelessly or
otherwise presents the employer with a sound and legitimate reason for exercising
his right of discharge as herein, the fact that he (or she) was active in union activities,
cannot alone operate to convert such a basic reason into being considered as a mere
pretext to cover up what can only be an assumed intention of the employer. Very
convincing evidence to offset the clearly demonstrated delinquency of the worker
used as the basis for the company action, must be presented to destroy the asserted
reason for such company action, and to establish any claimed other basis motivating
the action taken. Mere suspicion of what could have been an underlying motive
and reason of the Respondent will not suffice, in the face of a clearly established basis
as herein for the action taken. I find that the Respondent did not discriminatorily
discharge Louise Crawford on March 16, as alleged in the complaint and will recom-
mend dismissal of the complaint to such extent.
Rachel Lamberth
The allegation of the complaint relative to this employee is that the Respondent
refused to reemploy or reinstate her on and after March 6, 1956, because of her
membership in, and activity for, a labor organiation or because she had engaged in
other concerted activities, which the Respondent denies.29 Lamberth had been
employed by Respondent on 3 or 4 different occasions during the past 14 years, the
current employment being for 41/2 years, the last 31/2 years of which she has been
engaged in the filling sleeve operation. She was told on March 1, 1956, by Clodfelter,
her immediate supervisor,' that she was being being laid off for a few days because
of lack of work. At such time Lamberth was the only person doing such work
operation, although several others in the plant were capable of doing it. The de-
cision to lay her off was made by Clodfelter and Sowers, after Clodfelter had
informed Sowers her work on this operation was getting "thin" and Sowers had
conferred with Rodriguez as to possible future order cuttings to be made, and had
secured his approval, under the circumstances, of the proposed layoff of this worker.
Lamberth strongly disputed the fact of insufficient work being available for her,
saying in protesting to all her superiors, that she "knew she had plenty" and was
the only one doing it. From the testimony, I take it that at such time some 30 to 40
dozen coats had been cut and were in factory process, with some 15 dozen being
"in the line," and none in the cutting process, and with no future cutting being
immediately in prospect. I accept the estimate of Sowers as to an operator being
able to do 65 dozen daily. I am convinced that very little work was then available
to Lamberth and that she was then well enough "up" in her work to justify the
position of her supervisors in determining that a layoff (clearly not an unusual
procedure in this plant in all work operations during "slack" working conditions)
for a temporary period was required.so
28 Although Sowers was apparently not questioned regarding those allegations, Clodfelter
stated she did not see Sowers follow Crawford, and no other testimony, regarding what
should have been a very noticeable act as described, has been presented.
29 I do not find any merit to the contention of General Counsel that answer of Respond-
ent admits discharge of Lamberth on March 6.
80 A substitute, Reavis, was put on her job the next day, being a worker from the awning
department whose job there allegedly did not require her full time then. She testified she
EMPIRE MANUFACTURING CORPORATION 1313
When informed by Clodfelter of her layoff and the assigned reason , Lamberth
told her that such reason was a lie, to which Clodfelter allegedly replied, "That is
what they told me to tell you," and also told her to go talk to Mrs . Sowers. Lamberth
claims she then asked Sowers regarding the reason for her layoff, and in being
told no work , reiterated her own allegation of plenty of work being available. She
also inquired who was going to do the sleeves if she was laid off, and claims Sowers
replied , "I guess I will ." She alleges she was then told by Sowers , " If we don't
need you, we will let you sign up" (referring to application for Unemployment
Insurance benefits ). With permission of Sowers , Lamberth then went to Rodriguez,
who 'answering her inquiry also told her of the lack of work reason for her layoff,
and'also regarding her "sign up." Lamberth alleges she walked out then. Rodriguez
confirms generally her assertions , but adds that she also declared that, "There is
another reason for [and you are] letting me go and I want to know what it is.
Mrs. Sowers let me go for another reason and I want to know what it is." When
he again stated the reason to her, he alleges Lamberth insisted "That isn 't it and
somebody is going to pay for this." Rodriguez states he then determined that
people talking like that could not continue to work at Empire, and that he personally
instructed Mrs. Sowers on the next day not to rehire Lamberth and she was to be
discharged because of insubordination . 31 Lamberth denies making the statement
regarding "Somebody is going to pay for this," to Rodriguez, but admits she did
make it to Clodfelter while going back to her machine after her meeting with
Rodriguez , and that Rodriguez did not hear it as he was not present or following
her at the time, as she noticed he was going in the other direction to talk to
Sowers.32 Lamberth was issued a layoff slip in the following week and four more
subsequently . 33 It does not appear that Lamberth was directly told or received
any termination slip showing she was discharged for insubordination or any such
notation made upon plant records.
Lamberth was a signer of the union committee letter , admittedly received by the
Respondent on March 6 (5 days after her layoff ) and there is no evidence regarding
any prior union activities by her . She alleges that on February 27,34 Sowers came
to her machine and started talking to her about the Union . There had been no
prior union discussions between them . Allegedly in the talk, Sowers introduced
the subject by a declaration to the effect , that if the "union gets here you will really
have to put out," and Lamberth stated she replied , "We will ." Sowers is stated to
have then quoted what someone named Adams said as to results of strikes up North
being "loss of homes and everything they had." Lamberth testified that she did
not know regarding unions, but referred to her sister having been in a local com-
munity strike of telephone workers and the help she received from the Union.
Allegedly Sowers replied it would not occur here, and she is alleged to have quoted
Rodriguez as saying that before unions could come in they would close the plant
down and send all the stuff up North. Lamberth testified that she had not told
Sowers of having any union affiliation or of being on the committee at that time or
prior to the layoff . Sowers denied having any discussion involving the Union as
alleged by Lamberth . She stated she had heard while working regarding the sister
of Lamberth being in the union at the local telephone company, but did not learn
of it from Lamberth, although unable to recall how or when she did hear it and
stating she did not know a thing about the Lamberth family or know anyone who did.
Lamberth stated that accompanied by Beaver ( also discharged ) she sought work
at the plant in May and June, and speaking with Blackwelder (personnel) she was
told "not hiring anybody then ," and "they didn't need us." She also relates calling
was trained on this filling sleeve work which she had not done previously , and completed
the 30 to 40 dozen coats in 3 or 4 days , while working each one -half day in her learning
and performing this sleeve operation Clodfelter testified that Reavis was put on the
sleeve filling work the next day after layoff, when some were ready, after about 11/ hours
of factory operation
31 Sowers testified that the next day Rodriguez told her that "if and when I needed to
replace her to go ahead and do it ." This is stated to have been said after I had reported
to him "the expression she had made to the supervisor ." ( Without any clarification in
record to show whether she was referring to Lamberth terming the reason a lie or to her
claimed saying to Clodfelter , " Somebody to pay for ")
12 Clodfelter was not questioned regarding this allegation.
33 Sowers filed her slip with personnel office dated March 2 saying, "laid off No work
for this girl."
311n answering a question on cross -examination , stating the date to be March 1, she-
accepted such date.
483142--53-vol 120- 84
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sowers on the phone at the plant in July and her request for work was refused.
Allegedly, Lamberth remarked regarding the Respondent hiring new people with
me laid off, and was told by Sowers, "It wasn't that. It was the way you talked
the day he laid you off, that we haven't hired you back . . . if not for that you
would have been back. You told Grace, Rodriguez and me somebody is going
to pay for this."
Lamberth admits being "mad" at the time of layoff conversations, and Sowers
expressed it as she was "upset" and spoke harshly to her. The use of the expression
"somebody's going to pay for this" admittedly used by Lamberth, and it does not
make much difference if it was uttered to offend the personal dignity of Rodriguez,
or merely to her immediate supervisor Clodfelter, as it is equally offensive in either
case.35 It clearly expressed a defiant attitude, was insulting and insolent behavior,
clearly of her own making, towards a supervisor, and contained threats of undefined
nature to whomever it was made to.36 I do not regard the isolated alleged conversa-
tion of a few days previous to March 1, with Sowers regarding the Union, as the basis
for her temporary layoff, and the day later change of her status to that of a perma-
nent layoff. The cause for the subsequent change I accept is based on the events of
her own making, and does not have a discriminatory basis, and I so find. I find that
the General Counsel has not sustained the allegations of the complaint as to the basis
of the Respondent not restoring this chargee to work on her subsequent applications
made in May, June and July.37
Willie Bernice Beaver
This worker was discharged on Monday, March 19, for not appearing for work
at the regular scheduled time after an absence for illness, and allegedly not being
able to state with certainty when she would be able to report.38 The testimony of
Beaver, however, is that she had stated to Mrs. Sowers her expectation of being able
to report for work by Wednesday of that same week. Her reason for being unable
to appear promptly on March 19 was the sudden leaving without any prior notice
on the evening before of her regular baby sitter and the need of waiting until Wednes-
day for her own sister, who was giving up her job, to take over the work of caring
for her baby. Sowers, however, advised her, acting allegedly on information given
her that Beaver was unable to say definitely when she could come in, that they were
awfully busy up there; therefore, she needed and had already hired someone for her
work, and that she need not come back. To her inquiry to Sowers regarding her
coming in if she got someone to care for her child, Beaver testified that Sowers told
her "No. We won't need you ever again." From the testimony of Sowers, Black-
welder, and Clodfelter it is clear that no additional person was hired then or subse-
quently to take the place of Beaver, but that certain adjustments in the current work-
ing force were made to provide for doing the work Beaver ordinarily would perform.
Blackwelder stated workers not coming in are supposed to call in before work starts,39
and that a night phone connection to her office was always left up on telephone
switchboard. When Beaver had not appeared for work, she was directed by Sowers
to phone Beaver to ascertain the cause, and did so around 8 a. in. Beaver, who had
not called in, stated she intended to do so but waited to be sure the telephone board
was in use and for Blackwelder to be in (and that she was unaware of the special
connection to Blackwelder), alleges Blackwelder called her at about 7:30 a. in., and
that she then advised her of the reason for her nonappearance and her expectation
of having a substitute sitter and of being able to be in by Wednesday. Rodriguez
stated that it was usual to allow a few days grace period in the case of those late in
33 Rule 7 provided discharge as penalty tor insubordination, in use of "abusive or
threatening language to fellow employees or officials of the company."
36 Coats & Claik, Inc., 113 NLRB 237, affd 39 LRRM 2405 (2409) (C A. 5) (reversed
on other grounds) ; Tropix-Togs, 111 NLRB 989.
37 In this connection I have considered the uncontradicted testimony of Beaver as to
Clodtelter's assertions made about 5 days after the decision of the Respondent as to making
the layoff permanent that when things are over the girls who signed letters "will get
theirs "
33 Although there is some conflict in testimony of Beaver and Blackwelder and Sowers on
dates of certain telephone calls, it is clear that Beaver had informed Respondent of her
ability to return to work on March 19, and had been subsequently directed to report on
such date.
39 Respondent's rule 8 provided for summary action for "absence from duty without per-
mission, except in case of sickness or cause beyond control of a character that prevented
giving notice."
EMPIRE MANUFACTURING CORPORATION 1315
reporting back to work, dependent , however, on the particular circumstances of each
instance and the question of how long the position had been open and would be open.
Beaver had worked for the Respondent as a machine operator over 12 years,
"off and on." She was a signer of the letter received by Respondent on March 16,
stating she was acting on a committee for the Union . Beaver also testified with-
out contradiction (no cross-examination on, and no questioning of, Clodfelter rele-
vant to) that in the talk she had with Clodfelter in the hospital on the night of
March 7 (previously set forth in discussion under Chargees Harmon and Wallace)
Clodfelter warned her not to "bother with the union if you know what is good
for you, and not to sign any letters or cards when you come back ." That those
girls who did so were being watched, and that "when things are over they will
get theirs ." After returning home from such hospital treatment , Beaver did sign
while at home , the letter above referred to, dated March 15, informing the Respon-
dent of her union position.
In view of the timing of the matters herein, the sufficient departure from the usual
practice observed in such situations as stated by Rodriguez , the clear implications
of the noncontradicted testimony of Beaver as to the statements of Clodfelter to
her as to future company action , the lack of any recognition of the prior work-
service record of Beaver, and of the ease with which shop adjustments were ef-
fected without any additional hiring of a substitute to handle work during what
was sharply indicated would be a brief further absence , I credit the contention of
the General Counsel herein that the reason for the summary action of discharge of
Beaver for the stated cause was a mere convenient pretext used to conceal the real
reason underlying her termination from service , which I find was discrimination in
violation of Section 8 (a) (3) of the Act and was punitive action by the Respondent
resulting from and based upon her freshly and concurrently revealed union activities.
Myrtle Miller
The service of this employee was terminated by discharge on October 2, 1956.
The layoff slip given to her by Blackwelder gave as the reason for termination "ad-
verse attitude , lack of cooperation and insubordination ," which reasons allegedly
were assigned by Rodriguez . The complaint charges that her termination was due to
her union activities and not the causes above assigned . The testimony of Miller
and Rodriguez as presented raises a distinct question of credibility to be resolved.
No substantial evidence was offered by the Respondent as to her "adverse attitude
and lack of cooperation" on which to base any findings.40 Although Rodriguez
claimed Miller was the slowest shade marker based on certain time studies made
about 3 years before, it was conceded by him that such element was not a factor
in her discharge , which he delimited to alleged insubordination , but was considered
in the matter of her layoff.
Miller alleged she was the most experienced shade marker with 31/2 years ' service.
She declared it had been the practice in 1953, 1954 , and 1955 in the so-called heavy
work season, for all shade markers to work 48 hours per week, and that in slack
periods an equal distribution of work rotation was followed. Otherwise the regular
workweek was 40 hours. She alleges that the heavy season in 1956 was from June
to early September , 41 but that during such time all the others worked 48 hours
per week receiving overtime pay , while she and Parks were strictly limited to the
40 hours working base.42 In the last 2 weeks of September , she declares she only
worked 3 days while the others received 5 days' work. She then inquired why for
the second straight week she received less work, and allegedly was informed by
Anderson that all were not needed and that he had orders from Rodriguez that
Miller was to be off, although he did not know the reason why , and advised her to
speak to Chandler ( general manager ) or Rodriguez . She visited the latter in his
office saying to him that she understood it was on his "say so " she was to be off
again , to which he replied that was correct . To her further inquiry as to why she
had to be the one to be off all the time, she alleges he replied , "They always try to
favor the ones who were more cooperative with the Company ." She states she
inquired how she had failed and the reply was "no particular instance, just in gen-
eral," and to a further question of hers, he admitted she did her work satisfactorily.
Rodriguez said nothing further and she waited, but no more explanation was forth-
4° Anderson , her supervisor , did not testify and no statement was made as to his
nonavallability.
41 The level of production figures, supplied by Rodriguez , sustained this statement
42 Miller signed the March 15 letter to the Respondent advising of serving on the union
committee and Parks was a signer of the similar letter of March 5.
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coming. She alleges Rodriguez then asking her pardon , informed her he had things.
to straighten up on his desk and proceeded to pick things off his desk and place
them in the drawer. Miller declares she said to him that "It seems to me you are
more interested in straightening your desk than in what I was saying ," and left the
office. Miller states she did not work the next 2 succeeding days (Thursday and
Friday ) but did work the following Monday and Tuesday. At the end of such
latter day , Anderson advised her to stop off at the office and get her check as she
"would not be needed any longer." This statement by Anderson she relates fol-
lowed her inquiring if she was to be off from work Wednesday and Thursday, the
same as the other three girls , but he advised her as above that she "would not be
coming back."
Rodriguez testified that Miller had been laid off initially for lack of work, but
had been fired by him after she came to his office questioning the reason for her
layoff. After he had attempted to explain to her the reason for her layoff being
lack of work , he alleged she did not have the patience or take the time to listen
to his explanation , and while "I was talking , she just takes a Gromyko ," or that she
walked out before he was able to explain to her what had happened He was hazy
and ambiguous as to when he actually fired her by telling Foreman Anderson to
discharge her, but in his own mind he decided it right then and there as he con-
sidered her conduct insubordinate . "If ... you just don 't wait until the man is
through talking to you, and dash out of his office and leave him like somebody
hangs up the phone in your ear, that is not the best manners to use." It apparently
was a couple of days before he told Anderson , and the only explanation for the
delay was "It skipped my mind for the moment or something to that effect. Those
things do happen."
Insofar as the versions of this meeting do not concur , after seeing and hearing
and observing both witnesses , I credit the testimony of Miller. What is insub-
ordinate may easily vary with the viewpoint of each individual and the personal
vanity involved, but clearly neither version offered here indicates that Miller
approached either Anderson or Rodriguez in any defiant or insolent manner or
attitude . No insulting or vituperative language was used by her or any threats of
any nature uttered , her obedience to any particular rule, direction or command was
not involved , and none of the usual attributes of insubordination were markedly
present. In fact, accepting the testimony of Miller, one can discern an over import-
ance and impatience in the attitude of Rodriguez and reluctance to be pinned down
on what appeared to Miller to have been discriminatory handling of the overtime
and short work time assignments relative to herself ( and the testimony indicates
that coworker Parks was present seeking a chance to talk to Rodriguez for explana-
tion of similar problem affecting him). I would not deem or find her conduct
under these circumstances to be insubordinate . Still, the employer may discharge
for any fanciful or no cause, unless the real reason and attempted to be concealed
cause is action based on the union membership or activities of the employee . After
considering all angles of this claim , I am convinced that the latter is the situation
here. I regard the assigned insubordination cause of discharge as mere pretext
covering up what appears to be a more well founded cause. Miller had been
discriminated against in her working time assignments for several months prior
hereto, and no evidence of her alleged noncooperation was adduced . Some signifi-
cance must be given to the expression attributed to Rodriguez that the Company
took care of those who cooperated . The only evidence that can be gleaned from
this record of her deemed lack of cooperation was her becoming a committee
member of the Union and so formally and frankly advising the Respondent in the
letter of March 16. The lapse of time to this action and the significance of the
action itself , must be considered in the light of the uncontradicted testimony of
Beaver as to her being informed by Clodfelter that those who signed cards or letters,
when this thing is over "will get theirs ." The indecisiveness and some little mystery
of Rodriguez as to the time of his determining and applying the discharge for
the asserted cause, when considered also with his futile attempt to interject the issue
of her being a slow worker warranting discharge for such reason for a long time,
also operates to convince me that the real reason for her termination was based
on her known previous union membership , sympathies , and activities . I so find that
her discharge was a discriminatory and punitive action by the Respondent based on
her previous union membership and activities and a carrying into action of the
threat expressed by Clodfelter as what appeared to be an appropriate occasion arose,
and as being in violation of Section 8 (a) (3) of the Act.
EMPIRE MANUFACTURING CORPORATION 1317
C. Interrogation and threats
Paragraphs 4 to 9 of the complaint allege various acts of named supervisors as
being in violation of Section 8 (a) (1). The Respondent denies all such allegations.
It is alleged that Supervisor Clodfelter on March 7, threatened employees by
stating that other employees had been discriminated against by Respondent because
of union activities. This refers to the uncontradicted conversation at the hospital
with Beaver, previously outlined herein. After telling her of the two discharges
of that day for such cause, she advised Beaver, if she knew what was good for her,
not to bother with the Union or sign any letters or cards. Those who did so were
being watched and when things are over they will get theirs. I find the credible
evidence sustains the allegation, and a violation of Section 8 (a) (1), even though
the warning may have been uttered in a friendly spirit and atmosphere, and Beaver
chose to ignore it and subsequently signed the union letter of March 15.
The complaint states Rodriguez on March 7, threatened employees with discharge
if they engaged in union activities. I find no credible or substantial evidence to
sustain such allegation.
Supervisor Sowers allegedly on February 27, and March 7, threatened that Respon-
dent would close this plant if employees selected a labor organization as their bar-
gaining agent. Lamberth testifying as to the February 27 allegation detailed a
conversation with Sowers on such date and attributed to her a statement to the
effect that there would be no Union here, as Rodriguez said they would close the
plant down and send all stuff back up North before permitting it to come in. Sowers
denied having any such discussion with her regarding the Union. Due to not being
impressed by the uncertain testimony of Sowers as to the basis of her knowledge
of the union affiliations of the sister of Lamberth, I am inclined to and do credit
the testimony of Lamberth as to the contents of such conversation. Regardless
of the fact as to whether the alleged statement by Rodriguez had been made, the
use of it by a supervisor served the same purpose as if it was true and binds the
Respondent, by the act of this agent, as to the attitude and threat expressed therein.
I find this allegation of the complaint sustained. The March 7 allegation is apparently
based upon a conversation with Sowers on such date testified to by Wallace, in which
Sowers is alleged to have stated (without quoting any other official as authority
for the statement) that "They would close down the mill before they would let the
union come in They would move it North." The issue of credibility generally
between Sowers and Wallace as to this conversation and the contents has been
previously resolved in considering the discharge claim of Wallace. I also credit
the testimony of Wallace as to this particular assertion and find this allegation of
the complaint also sustained.
The complaint also alleged that Sowers on the same February 27 and March 7
dates threatened that the Respondent would impose more severe and onerous working
conditions, if a union became the bargaining agent. I find no credible evidence to
sustain the allegation in reference to the February 27 date.43 Harmon alleged that
in their first conversation of March 7, Sowers stated that if the Union came in "They
will do like they do up North, they will hire niggers and put them on all these machines
with you all." Sowers denied having this particular conversation. I credit the
testimony of Wallace in relation to it. Considering the locality of the plant, I con-
sider the statement should be accepted as a threat to impose more onerous working
conditions and a violation of Section 8 (a) (1) as alleged. Wallace alleged conversa-
tion of the same date with Sowers, with reference to "hiring niggers" being made by
Sowers, and Sowers admitted that in a talk with Wallace she had intimated that if the
Union came in there would only be 2 to 3 hours' work per day. These statements I
find also sustain the complaint allegations.
The complaint also sets up that Sowers and Johnsie Elliott, a supervisor, on March
7, threatened employees with discharge or other economic consequences if they en-
gaged in union activities. Wallace states a conversation with Elliott on such date,
but I do not find any threat by her in the contents stated. Crawford alleged Sowers
on March 7 warned her to the effect, "I may not fire you for talking union but watch
your step and I mean watch your step. I am going to be mean as a snake from now
on." Harmon related that on March 7, Sowers came to her machine (after Harmon
was talking to other girls at lunch) and suddenly warned her "to watch my step and
what I talked about in that mill." I consider these incidents and statements, the
testimony as to which I credit, as threats relative to job security as alleged in this por-
tion of the complaint, and so find in them a violation of Section 8 (a) (1) as alleged.
43 The statement attributed to Sowers on such date by Lamberth to the effect, "Boy, if
get union in here you will really have to put out," I do not consider as supporting the
allegation.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Interrogation of employees by Sowers and Elliott concerning their union member-
ship or activities is alleged on or about March 7 also. I find the allegation sustained
in the inquiry by Sowers to Harmon, "They tell me you like the union," and further
as to whether Harmon ever belonged to a union, and how her husband liked the
Union and if he still belonged to it; the inquiry of Elliott to Wallace as to how she
liked the Union; the statement of Sewers to Wallace, "I hear you like the union," and
the'inquiry as to what she liked about it.
. IV. 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 described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8 (a) (1) and (3) 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.
Having found that the Respondent discriminated against Willie Bernice Beaver,
Effie V. Harmon, Lorene Wallace, and Myrtle Miller in regard to the hire and tenure
of the employment of each of them and has since failed to reinstate any of them, I
shall recommend that the Respondent be ordered to offer to the said Willie Bernice
Beaver, Effie V. Harmon, Lorene Wallace, and Myrtle Miller respectively, immediate
and full reinstatement to the former or substantially equivalent position held by each
of them respectively, without prejudice to the seniority or other rights and privileges
of each of them, and make each one whole for any loss of pay suffered by her as a
result of the discrimination, by payment to each one of a sum of money equal to the
amount each one would have earned from the date of discrimination against and dis-
charge of each one respectively as heretofore etsablished herein, to the date of the
offer of reinstatement, less her net earnings in the period, to be computed on a
quarterly basis in the manner established by the Board in F. W. Woolworth & Co.
(90 NLRB 289-294).
It will also be recommended that the Respondent make available to the Board,
upon request, payroll and other records to facilitate the checking of any back pay due.
As the unfair labor practices committed by the Respondent were of a character
striking at the root of employee rights safeguarded by the Act, and indicate a danger
that the Respondent may continue, although not necessarily by the same means, to
defeat self-organization of its employees, it will also be recommended that the
Respondent cease and desist from infringing in any manner upon the employee rights
guaranteed in Section 7 of the Act
Having found also, that the Respondent did not commit any unfair labor practice
or discriminate against Louise Crawford and Rachel Lamberth in terminating their
work services, I shall recommend dismissal of the complaint to the extent of the
allegations made therein as to such persons.
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. Empire Manufacturing Corporation is an employer within the meaning of
Section 2 (2) of the Act and is engaged in interstate commerce within the meaning
of Section 2 (6) and (7) of the Act.
2. Textile Workers Union 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 its employees in the exercise of
rights guaranteed by Section 7 of the Act, Respondent has engaged in unfair labor
practices within the meaning of Section 8 ( a) (1) of the Act.
4 By discriminating in regard to the hire and tenure of employment of Willie
Bernice Beaver, Effie V Harmon, Lorene Wallace and Myrtle Miller, thereby dis-
couraging membership in the aforesaid labor organzation , the Respondent has en-
gaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of
the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting coin-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]