Farber Brothers, Inc.

National Labor Relations Board - Board Decisions

May 21, 1951

94 N.L.R.B. 748 (N.L.R.B. 1951)

748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operator , janitor, janitress , watchmen , and supervisory employees , constitute
a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
3. Local No. 948, International Union of Operating Engineers. was on June 1,
1950, and at all times since then has been the exclusive representative of all
employees in said unit for the purposes of collective bargaining within the
meaning of Section 9 (a) of the Act.
4. By failing and refusing to bargain collectively with the Union as the
exclusive representative of its employees in the appropriate unit the Respondent
has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (5) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act. °
[Recommended Order omitted from publication in this volume.]
FARBER BROTHERS , INC. and INTERNATIONAL UNION, UNITED AUTO-
MOBILE, AIRCRAl r AND AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, UAW-CIO. Case No. 32-C-4-1P20. May L1, 1951
Decision and Order
On January 17, 1951, Trial Examiner Louis Plost issued his Inter-
mediate 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 cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices alleged in the complaint, and recommended dismissal of
those allegations. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief. In addition, the Re-
spondent requested oral argument. However, because the record and
brief, in our opinion, adequately present the issues and positions of
the parties, the request for oral argument is hereby denied.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Houston, Murdock, and Styles].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
94 NLRB No. 111.
FARBER BROTHERS, INC. 749
rulings are hereby affirmed.' The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and finds merit in the Respondent's exceptions for the reasons
hereinifter set forth .2
The Trial Examiner found that the Respondent unlawfully dis-
charged Betty Bilderback, Ledell Haney, and Irene Alsup, and thereby
violated Section 8 (a) (1) and 8 (a) (3) of the Act. For the reasons
set forth below, we find that the preponderance of the evidence does
not support the Trial Examiner's conclusion.
Early in 1950, the Respondent considered the advisability of dis-
carding the individual bonus system which had been in effect since
1949, and returning to an earlier bonus system. Under the projected
change, all employees, supervisors and maintenance employees in-
cluded, were to share a bonus given when production was in excess of
a fixed quota. The Respondent first discussed this idea with individual
employees. Thereafter, on March 6, it called its employees together
and asked them to express their preference in the matter. Except for
Bilderback and Haney, all the 65 of 70 employees present on this
occasion voted in favor of reestablishing the plant-wide bonus system.
It is apparent that both Ruby Creel, the complainants' supervisor,
and Maurice Melvin, the Respondent's machinist,3 were to participate
in the plant-wide bonus system, and that they recognized that it would
be advantageous to them to have the Respondent fix a minimum pro-
duction quota under the proposed new plan which the employees could
easily exceed. Toward that end, about a week before March 6, Creel
and Melvin urged Bilderback and Haney to produce no more than their
individual minimum quota which was then operative.' At about the
same time, Creel also asked Alsup to slacken her production efforts.
Thereupon, Bilderback and Haney, who, up to that time, had con-
sistently exceeded their quotas, and Alsup, who had "quite often"
exceeded her quota, deliberately slowed up their work.
On March 7, Maurice Farber, the Respondent's general manager,
met with Bilderback and Haney in his oice.5 On this occasion Farber
' At the close of the hearing, the General Counsel requested the Trial Examiner to
"make oral findings and recommendations here on the record and issue his report later "
The Trial Examiner denied this request on ground that he had no authority to act in
the manner suggested As such a motion is addressed to the Trial Examiner's discretion,
we shall affirm his denial without adopting the reasoning on which he based his ruling
i Unless otherwise indicated, we do not adopt any of the conclusions of the Trial
Examiner.
We have carefully examined the record and find nothing therein to support the Re-
spondent's charge that the Trial Examiner was biased against it Accordingly, we
overrule the exception taken on that ground
3 We agree with the Trial Examiner's finding, to which no exception has been taken,
that Melvin was not a supervisor within the meaning of the Act
' It is not contended , itor does it appear, that in this action Creel or Melvin acted pur-
suant to any instructions by the Respondent.
5Although there is some testimony which indicates that this meeting was held on
March 8 or 9, we find, on the basis of all the evidence in the record, that it took place
on March 7.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accused the complainants of talking too much and of staying in the
rest room too long, and expressed concern about the effect of their
conduct on other employees.' In addition, having noted that their
"operation was exactly on a 100 percent or just a little below,"Farber'
also charged them with failing on production. Bilderback and
Haney then admitted to Farber that they had been deliberately
holding back production.7 Farber testified that he decided to dis-
charge both of them at that time.
On March 8, Farber met with the complainant Alsup and the other
finishers to discuss the fixing of their new. production quotas. In
the course of this meeting Farber called Alsup's attention to the fact
that her work output had dropped considerably. Alsnp's reply was,
"Yes, I know, Mr. Maurice. I was asked to hold it back." When
asked by Farber to name the person who made this request, Alsup
declined to do so." Farber testified that he then and there decided
to discharge Alsup.9
On March 8, too, agitation for the formation of a union began
in Respondent's plant. Bilderback talked "with the whole bunch
of the girls," telling them that with a union representing them the
Respondent "couldn't cut out their individual bonuses and put it
plant-wide." A meeting at Bilderback's home was scheduled for
the following night. Five employees, including the three complain-
ants, attended that meeting, and were there given cards by the Union's
representative to distribute in the plant.
On March 9, Farber met with five or six of the two-needle operators,
including Bilderback and Haney, for the purpose of fixing their pro-
duction quotas under the new bonus plan. During the discussion on
this subject, Farber called on each of the employees present to state
what she thought her quota should be. Bilderback and Haney ex-
pressed satisfaction with their quota then in effect.
8 The record contains uncontradicted testimony by Farber that he had received "quite
a number of complaints from difterent people saying `How do they [ Bilderback and Haney]
get by and do those kind of things ' "7
Bllderback admitted telling Farber that she "would not make over the minimum
until [she] got an individual bonus " Farber testified that Haney made virtually
the same admission. Haney, however, testified that she told Farber that "I didn't want
to work that hard and make a bonus and not get it at all " According to Haney, she was
referring to a bonus she earned in December 1949 which had not been paid to her in
full The Trial Examiner did not resolve this conflict in the testimony On the basis
of all the evidence in the record , including the fact that Haney did not begin to hold
back on production until the period under discussion, we credit Farber s testimony in
this connection
8 Alsup testified that she refused to name Creel "because it was my floorlady and she
told me she would get fired and I thought it would be far better if I got fired than to
do that "
IIn addition to his testimony that lie decided to discharge the complainants on the
occasions described above, Farber also testified that on March '8 or 9 he communicated
his decision regarding the complainants to other management officials. His testimony
in this connection received substantial corroboration from those officials
FARBER BROTHERS, INC. 751
On Friday morning, March 10, Farber gave orders for the prepara-
tion of the complainants' separation slips.10 During this same morn-
ing, the complainants showed, for the first time in the plant, their
interest in the charging Union. Thus, Bllderback passed out several
cards in the rest room and in the production area. Haney passed
out some cards in the rest room, and talked "quite a bit" about the
Union. And Alsup told two employees that she had signed a card for
the Union. The record does not disclose whether the afore-mentioned
activity of the complainants took place before, or after, the issuance
of instructions for the preparation of their separation slips. Later
the same day, the complainants received their final pay checks and
separation notices. The reasons assigned for the discharge of Bilder-
back and Haney in their separation notice were "talking too much
and creating a hazard and disturbing other operators."" Alsup's
termination notice read, "holding back work."
On the basis of the facts outlined above, which we consider the
operative facts in this case, we are not convinced that the complain-
ants were discharged "because of their membership in, and activities
on behalf of, the Union," as the Trial Examiner found. The Bilder-
back and Haney cases are, of course, not entirely free from doubt.
-Thus, the reasons for their discharge contained in their termination
notices are rendered suspect because, except for their slowdown,
Bilderback's and Harvey's work habits, at the time of the Respondent's
decision to discharge them, were in no way different from what they
had been during their entire period of employment with the Re-
spondent. And the additional reason advanced by Farber at the
hearing, namely, that Bilderback and Haney had been holding back on
production, is rendered suspect by the fact that it was not assigned
at the time of the terminations. NotAvithstancling these circumstances,
however, we are unable to infer, as the Trial Examiner has clone, that
the real reason for the discharges in question was the complainants'
membership in, or activity on behalf of, the Union. For the record is
singularly lacking in evidence that the Respondent was hostile to the
Union or to the organizational efforts of its employees.', Moreover,
assuming, but not deciding, that the evidence warrants an inference
that the Respondent was aware of the union activities of Haney and
'0 Farber testified without contnidiction that it is the Respondent's policy to issue
separation notices on Fridays According to his testimony , If we decide to discharge
somebody even on a Monday we still wait until Friday before we discharge "
"At the hearing, Farber also gave as a reason for their termination the fact that they
bad failed to produce all that they could
"Like the Trial Examiner , we cannot charge the Respondent with the interrogation
and threats by Melvin on March 10, as Melvin was a rank-and-file employee not authorized
by the Respondent to engage in such activity.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bilderback'13 we perceive no basis for inferring further, on this record,
that awareness of such union activity is tantamount to antiunion
hostility. We therefore conclude, and find, that the preponderance
of the evidence fails to establish that Bilderback and Haney were dis-
criminatorily discharged.
As to Alsup, we are satisfied that she was discharged for cause. In
our opinion, Alsup was discharged, as Alsup herself expected she
would be, for admittedly "holding back work." However, even were
we to agree with the Trial Examiner that Alsup was not discharged
for "holding back work," substantially the same considerations which
we deemed controlling in the Bilderback and Haney cases impel us
to disagree with his ultimate conclusion that the motivating reason
for her discharge was a discriminatory one.
On the basis of the foregoing, and the entire record, we shall ac-
cordingly dismiss the complaint as to Bilderback, Haney, and Alsup.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint issued herein against
the Respondent, Farber Brothers, Inc., be, and it hereby is, dismissed.
Intermediate Report
Andrew P. Carter, Esq., for the General Counsel.
Snowden, Davis, McCloy, Doneison & Afyar, by W. Stuart McCloy, Esq., of
Memphis, Tenn , for the Respondent.
Mr. Garvin Crawford, of Memphis, Tenn., for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed March 1.5, 1950, by International Union, United
Automobile, Aircraft and Agricultural Implement Workers of America, UAW-CIO
hereinafter called the Union, the General Counsel of the National Labor Relations
Board, herein called the Board, by the Regional Director for the Fifteenth Region
(New Orleans, Louisiana), as agent for the Board, issued a complaint dated
August 9, 1950, against Farber Brothers, Inc., Memphis, Tennessee, herein
called the Respondent, alleging that the Respondent had engaged in and was
engaging in unfair labor practices within the meaning of Section S (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 complaint and the charge
13 Because of the small size of the Respondent ' s plant , and the fact that the sewing
room where Bilderback and Haney were employed was visible from General Manager
Farber's office and was "at all times" presided over by Supervisor Creel, a permissible
inference is that Bilderback ' s agitation for a union on March 8 and Haney's and her
prounion manifestation at the plant on March 10 , came to the attention of the Respondent.
Quest -Shon Mark Brasssem e Co , Inc , 80 NLRB 1149 . However, we are unable to agree
with the Trial Examiner that the record warrants the inference that any knowledge
Melvin may have acquired of the complainants' union activity was "carried to the
Respondent"
FARBER BROTHERS, INC. 753
together with a notice of hearing were duly served on the Respondent and the
Union.
With respect to the unfair labor practices, the complaint alleged in sub-
stance that (a) from and after March 8, 1950, the Respondent engaged in con-
duct violative of the Act by inquiring, questioning, and interrogating its employees
with respect to their union membership and activities, and threatening employees
with discharge if they joined the Union; (b) discharging certain named em-
ployees because they joined the Union and engaged in concerted activities on its
behalf; (c) that the above-named conduct is in violation of Section S (a) (1)
and (3 ) of the Act.
On August 14, 1950, the Respondent filed an answer and on October 6, an
amended answer, in which it denied that it had engaged in any of the unfair
labor practices alleged and further averred that the employees alleged to have
been discriminatorily discharged were in fact discharged for cause
Pursuant to notice a hearing was held before Louis Plost, the undersigned
Trial Exariiiner, at Memphis, Tennessee, on October 10 to 13, inclusive. The
General Counsel and the Respondent were represented by counsel, the Union by
a lay representative, all being hereinafter referred to in the names of their
principals. The parties participated in the hearing, were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, to introduce evi-
dence hearing on the issues, to argue orally on the record, and to file briefs,
proposed findings of fact, and conclusions of law with the undersigned
At the conclusion of the evidence in the General Counsel's case-in-chief and
again at the close of the hearing the Respondent moved to dismiss the complaint.
The undersigned denied the motions
Likewise at the close of the hearing the General Counsel moved that the
undersigned "make oral findings and recommendations on the record in the
nature of a directed verdict " The motion was denied In ruling the under-
signed stated that his powers and duties were defined and controlled by the
Administrative Procedure Act, the Rules and Regulations of the National Labor
Relations Board, and the Act, none of which in the opinion of the undersigned
grant such authority to a Trial Examiner.
The undersigned granted an unopposed motion by the General Counsel to
conform the pleadings to the proof with respect to spellings, names, dates, and
similar matters.
The parties waived oral argument. Permission was granted to file briefs,
findings of fact, and/or conclusions of law, with the undersigned. A brief has
been received from the Respondent.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, Farber Brothers, Inc., is a Tennessee corporation having its
principal office and plant in Memphis, Tennessee, where it is engaged in the
manufacture and sale of automobile seat covers. During the year immediately
preceding this hearing the Respondent in the course and conduct of its business
used raw materials valued in excess of $500,000, consisting principally of cotton,
rayon, plastic, and vinyl coated cloth. Ninety-five percent' of these raw inate-
rials was purchased outside the State of Tennessee and was shipped to the
Respondent in interstate commerce. During the same period the Respondent
953841-52-vol 94--49
754 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
sold finished products valued in excess of $700,000. Seventy-five percent of these
materials so sold by the Respondent were distributed outside the • State of
Tennessee.
II. THE ORGANIZATION INVOLVED
International Union, United Automobile, Aircraft and Agricultural Implement
'Workers of America, UAW-CIO, is a labor organization affiliated with the
Congress of Industrial Organizations, which admits employees of the Respondent
to membership.
III. THE UNFAIR LABOR PRACTICES
A. The discriminatory discharges of Betty Bilderback, Ledell Haney, and
Irene Alsup
The Respondent manufactures automobile seat covers, its manufacturing
process being an integrated operation in which the work passes from' one
machine to another. The work is seasonal with some fluctuation in employment.
At all times material herein some 40 to 45 employees were engaged in production.
Maurice Farber is general manager of the plant, Jack O'Keefe is assistant
general manager, and Ruby Creel is in charge of the sewing room operators.
There is no dispute as to the above-recited facts.
The General Counsel contends that Maurice Melvin is a supervisor, however
the record does not conclusively prove him to have supervisory authority
although at times he pretended to such status. Melvin is employed as a mechanic
and maintenance man, is undoubtedly a highly trusted employee, draws higher
pay than Supervisor Creel but inasmuch as the contention that he is a supervisor
was not clearly proven the undersigned finds on all the evidence that Maurice
Melvin was not at the time material herein a supervisor in the Respondent's
plant.
The record shows that the Respondent's plant- was not operated according to
any rigid rules of discipline. Employees sang while at work, engaged in con-
versation, and indulged in "horseplay."
Plant Manager Maurice Farber testified that he joked and "kidded" with
employees while they were at work.
The Respondent while permitting informalities maintained a set standard of
production for the various operations and paid a bonus for production above the
standard. Prior to 1949 bonus payments were made on a plant-wide basis,
meaning that the entire plant participated in the bonus as a unit. In 1949 the
bonus plan was changed and a bonus was paid directly to individual operators
who exceeded the set quota. In March 1950, the bonus was again changed to
group participation.
Beginning Monday, March 6, 1950, the Respondent held a series of meetings
with various groups of employees and discussed the contemplated change in the
bonus payments, from individual to group participation, together with the work
quotas to be set under the new system. Farber testified, with corroboration of
Betty Bilderback and others, that all the employees except two voted to change
to the group plan The two in opposition being Bilderback and Ledell Haney.
Farber testified that the quotas to be set were determined by asking the em-
ployees, "just to set a quota for themselves," and that "we set the quotas after
this discussion."
There is no dispute as to the above facts which the undersigned finds on
mutually corroborative testimony
FARBER BROTHERS, INC. 755
Mrs. Betty Bilderback testified that she was employed by the Respondent in
1946 and discharged March 10, 1950. Bilderback operated a "two needle"
sewing machine, but was skilled in operating every type of sewing machine in
the plant. Apparently her skill was valued by the Respondent. Bilderback
testified without contradiction :
I was off sick and I was in the hospital for about a month and they
kept on calling and calling and wanting me to come back, and they told me
if I would just come back, I wouldn't have to work hard, and I told them I
wasn't able, and they says just to come on back... .
She also testified, credibly, that at another time she was off work'because of
her husband's illness, for "maybe two months or two and a half" and upon her
return found another operator assigned to the machine she had used. The fore-
lady refused to return her to this machine but after Bilderback spoke to Boris
Farber, one of the Respondent's officials, he ordered that the machine be made
available for her.
Apparently there was ample reason for valuing Bilderback's services. The
Respondent admitted that Bilderback not only customarily made her quota but
that at times she could and did exceed it by as much as 50 percent. Farber
testified that only three operators consistently earned individual bonuses :
Bilderback, Haney, and Betty Bates
Bilderback further testified that she was accustomed to sing at her work, that
she talked to Haney who worked beside her, and, that she, as well as others,
"cut up" during the working day. She testified that this conduct was known to
the management, and that "Mr. Boris and Mr Abe Farber would come to my
machine and stop me from work and they talked to me as much as about 15
or 20 minutes." She testified that she was never reprimanded but on the contrary,
"If I wasn't singing, Mr. Maurice [Farber] would say `What's wrong Betty?
You are not singing today.'"
Farber testified "If they want to sing that is perfectly all right. We don't
encourage or ask them to sing."
It is clear from the record that Bilderback's known talking, singing, and lively
disposition did not interfere with her work. The undersigned on all the evidence
considered as a whole credits her following, undenied, testimony:
I never sat down to my machine a day as long as I worked at Farber Brothers.
that I didn't give them production, if they had work for me, and it wa,%
very seldom they didn't have work.
There was no denial that in all her employment with the Respondent Bilder-
back had no accidents, having suflei ed only two minor scissor cuts during the
entire period.
With respect to the change in the quotas, Bilderback testified :
Q Betty, did you hear anything about a new rate being put into effect
in the plant sometime in the spring of 1950, around the early part of March?
A No, sir, I didn't hear anything about it, except until about three clays
before we were discharged. Mr. Maurice asked me, he told us we could come
in by the office to talk to him about some figures. So when Mrs. Haney and I
went in, he told us that we talked too much, and that was the first time he
had ever said a void to us about talking too much, and we told him, "Mr.
Maurice, we could give you production regardless of how much we talk-
Everybody talks like that "
And he says, "No, you haven't been giving me production."
I said, "Mr Maurice, every day I gave you production since I came back.
I gave you 230 a day "
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Is that your production quota?
A. That was my production quota. And he said, "Yes but it is 250."
* * * * * *
A. And I says, " Well, Mr Maurice , we sure didn ' t know anything about it."
And he says , "Well, you should have known it."
And I says , "If we had known it, we sure would have given you production."
And he says, "Boris should have told you about it."
And I says , "We didn' t know anything about it at all." And I told him
that we could have given him even 150 per cent , because we had.
And so then we went back the next day and we gave him 250, and that
was the new production.
She also testified that during this conversation Farber remarked that he knew
that Bilderback and Haney "could make 120 or 130 or even 150 per cent produc-
tion" and that she replied, "Mr Maurice, we don't mind giving you over produc-
tion, if we get it, but we don't feel it is fair for us to sit back there and work
ourselves to death and give you 120 or 150 per cent and then just get $35 a week."
She further testified :
Q. Now, when the question came tip about talking and carrying on in the
plant, do you recall any comment that Mr. Maurice Farber made to you
comparing you and Mrs. Haney to the other girls?
A. Yes, sir, I do.
Q. Will you tell us about that?
A. He said that he knew-we told hun we knew Nye talked and cut up,
laughed, and so on, but we could give him production and talk all we
wanted to.
He said, "I know you can. You can give me production and talk and get
up and leave your machines and go to the rest room and stay but," he says,
"It makes a bad impression on the other girls that can't make production.
It makes them think they should do the same thing you are doing."
Farber gave substantially the same account of the meeting above referred to.
The undersigned therefore finds that Bilderback's account of the meeting be-
tween herself, Haney, and Farber as above described in Bilderback's testimony
represents the accurate lersion thereof.
Farber admitted that both Bilderback and Haney while on the individual bonus
exceeded 250 pieces (the new rate) "three weeks out of every month" by "an
average of 20 to 25 percent," however Farber further testified that the 250 pieces
production quota set for Bilderback and Haney represented a standard thought
to be fair and designed to keep production flowing through the plant and could
not be increased by as much as 10 percent because ;
Because they just couldn't-first of all, no individual would have a chance
on the bonus, no individual or group would have a chance
Bilderback testified that also on Thursday, the day preceding her discharge,
she attend..d a meeting of all the "two needle machine" operators in Maurice
Farber's office, and at this meeting the quotas for the other operators was cut
but hers was left at 250 pieces daily.
Bilderback testified that she changed her demeanor in the plant following the
first meeting with Farber, she testified:
Well the last three days . . . that was the only three days I was quiet at
Farber Brothers for three and a half years, off and on, that I worked for
them.
because we knew . . . they would fire us, anything ; we was trying to give
them no ground whatsoever to fire us.
FARBER BROTHERS, INC. 757
According to Pilderback's testimony another element, calculated to change
the informal relationship between the employees and the management, came
into the picture on March 8, for on that day the Respondent's employees began
actively to agitate the formation of a union. Bilderback testified:
I discussed it with the whole bunch of the girls and told them if we could
get a union in there, that they couldn't cut out their individual bonus and
put it plant-wide where we wouldn't anybody make anything, and we sort
of discussed it and decided to have a meeting at my house, I believe it was
Thursday night. And then we had this meeting and the next morning there
were about four of us, I believe, brought union cards back in there and gave
them out to several of the girls
On Thursday night, March 9, a meeting was held at Bilderback's home; at-
tended by employees Haney, Irene Alsup, Josephine McNemar, Bessie Bates,
and Bilderback, as well as Charles Garvin Crawford, a representative of the
Union Cards for distribution to fellow employees were taken by those attending.
Bilderback's testimony with respect to the meeting was corroborated by all those
named as being in attendance.
Bilderback testified that on the day following the meeting she passed out union
application cards to "six or seven" fellow employees.
Josephine McNemar testified that she heard "a lot" of employees discussing
"a union" during the week of Bilderback's discharge.
Employee Bessie Bates testified as follows :
Q. Before these girls were discharged, had you ever made any statements
about the union, before Irene Alsup and Betty Bilderback and Ledell Haney
were discharged?
A. We all did, at the time that day when Mr Maurice got up and raised
our production so high, everybody, and I would say there wasn't 10 who
wasn't involved in it, everybody was doing this union talk at that time and
then the Snuff Company was on strike. Everybody was mad and in an
uproar. Everybody talked union when these girls were discharged and it
was hushed tip after that right like that.
Q. When was that?
A. It was-he raised our production on Wednesday, I believe, and Thursday
the union-Wednesday the union talk started. Thursday morning the first
thing he began to call us in the office and to let us set our quotas as we
wanted to set them and he raised it just the day before and the next day
he lowered it And the next day the girls were discharged.
Bates also testified that a group of the employees met in the rest room after
the quotas had been set, she testified "there weren't 10 that wasn't in on that."
She testified :
. . . There were so many in there that I can't personally say just who it
was and who said that, you know, but somebody said what we needed down
there was a union and Betty Bilderback turned and said to Irene Alsup,
"Bring out the union cards." And somebody said, "We have got to have a
leader," and so one of the girls spoke up, I just can't say which one it was,
and she said, "Nobody could make a better one than Betty Bilderback."
The undersigned, on the entire record, credits the above-recited testimony of
McNemar and Bates.
Bilderback further testified that about 11 a. m. on Friday, March 10, the day
shhe was discharged, Maurice Melvin came to her machine and asked of her and
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mrs. Haney , who worked at a machine beside her if they had heard anything
about a union being organized Bilderback told Melvin "It 's our business if we
do," whereupon he remarked "Well, that is all right . I just want to tell you
the ones that is starting it, when I find out who it is, is sure going out of here."
Haney corroborated Bilderback.
Apparently Melvin did not confine his curiosity to this single inquiry ; employee
Lucille Henley testified that "pretty close " to the time that Bilderback was dis-
charged Melvin asked her if she knew anything about the Union. Henley replied
that she "just heard rumors " and was then asked by Melvin how she "would like
to go to Farber Brothers and tell them what I knew." Henley then replied that
she "knew nothing" and Melvin then said to her that "if he found anybody in
there with union cards , that they would be dismissed."
Melvin did not deny the above -recited testimony . The undersigned on the
entire record credits the testimony of Bilderback , Haney, and Henley and finds
that shortly before Bilderback 's discharge Maurice Melvin inquired into the
union membership of the Respondent 's employees.
The undersigned has found that Melvin was not a supervisor.
Farber testified that at sometime prior to March 1950, after the Respondent
had decided to change its bonus payments from individual to group participation
he arranged with Melvin that the latter obtain certain bonus and production
figures from a competitor where Melvin had once been employed and that Melvin
obtained this information for the Respondent
Melvin flatly denied that Maurice Farber or any one else had asked him to
-obtain the figures above referred to and further testified that he obtained the
information "a month or so" before the new bonus plan was established.
Melvin testified as a witness for the Respondent.
The witnesses had been separated.
The undersigned was not favorably impressed by Melvin 's testimony or his
demeanor on the stand . On cross-examination Melvin evaded answering directly,
;pretended not to understand the clear meaning of questions, made flippant re-
plies, denied that he recognized his own handwriting , and gave the undersigned
the impression that any truthful statement he made on cross -examination, if
not wrung from him, was accidental . The undersigned does not consider Melvin
a credible witness and therefore finds that he obtained certain operating statistics
from a competitor of the Respondent 's at the Respondent 's request.
Melvin further testified that Maurice Farber did not say anything to him
about the Union and further that he had no conversation with Farber about
the Union until the Monday following Bilderback 's discharge at which time he
was shown a letter received by the Respondent from the Union in which the
Union complained of Melvin 's alleged activities in questioning employees with
respect to their union activities.
Farber testified that the Respondent had no knowledge of any union activity
among its employees until after the discharges and the Union 's complaint regard-
ing them.
Melvin's inquiries regarding the Union cannot be charged to the Respondent
as an unfair labor practice unless it is inferred that such inquiries were made
on the Respondent 's orders. This was not shown However , considering the
manner in which the Respondent trusted Melvin as shown by his assignment to
gather information from a competitor , the salary paid him, and his assumption
of authority , the undersigned believes that it is a fair inference that any
knowledge Melvin may have acquired of the union activity of the employees, or
,any suspicion he may have had regarding such activity would undoubtedly.be
carried to the Respondent . The undersigned makes such inference. This,
FARBER BROTHERS, INC. 759
coupled with the undenied and credited testimony that practically all the
employees were "talking union" together with the meeting in the rest room as
described in the testimony of Bessie Bates, persuades the undersigned that the
Respondent had knowledge of the union activities of its employees and the
leading personalities involved therein prior to the time Bilderback was discharged.
The undersigned therefore does not credit the testimony of Maurice Melvin to
the effect that lie had no conversation with the Respondent's officials prior to
Monday, Mardi 13, 1950, regarding the Union .and does not credit the testimony
of Maurice Farber to the effect that the Respondent had no knowledge of the
union activities of its employees until sometime after Bilderback's discharge.
Bilderback testified that Friday, March 10, was payday but that when the
employees were paid that day she did not receive her check and found her time
card removed from the rack. She was called to the office by O'Keefe who told
her "Betty, I am going to have to let you go " Bilderback asked the reason for
her discharge and was told "Look on your separation slip and you will find out."
The slip read "Talking too much and creating a hazard and disturbing other
operators." Bilderback then accused O'Keefe of discharging her for no reason
"except you knew we was putting out these union cards down here trying to
get a union "
Abe Farber, one of the Respondent's officials who was present then said "No,
that wasn't it," upon which Bilderback replied "We can work somewhere else"
and according to her was told by Abe Farber, "\Vhat is on that release might
change your mind for you."
Ledell Haney and Irene Alsup were discharged together with Bilderback.
Respondent's Contention With Respect to the Discharge of Mrs. Betty Bilderback
In its brief the Respondent repeats the language of its answer in giving its
reasons for Bilderback's discharge, namely-she "talked too much and distracted
other employees creating hazards in working operations in disregard of the
welfare of fellow employees and adversely affecting production."
Farber testified that he decided to discharge Bilderback on the day that
Bilderback told him she objected to a plant-wide bonus and did not think it
fair that she produce more than the quota without individual compensation,
and further that she had no intention of doing so, he testified :
Q. What were the reasons you discharged Irene Alsup, what was the
reason?
A. For holding back production through her own admission.
Q. And what was the reason for the discharge of Betty Bilderback and
Ledell Haney9
A. Failing to produce all their quotas, which they could, and spending all
their time in which they could be producing talking and going to the rest
room and creating a disturbance around the plant.
Q. Had you ever cautioned those two women about that?
A. I certainly had. When I saw them carrying on conversations, going
to the rest room-we don't have any written rules about going to the rest
room. I don't know how anybody could have a written rule on that, but we
just more or less depend on the people's own discretion and good sense not
going in there for 20 minutes or 30 minutes at a time, spending most of their
time in the rest room and sitting around talking, their talk disturbs other
people, and I stopped by that week and several times I was right by there
listening when perhaps they didn't see me, they were leaning over from one
to the other and continually talking, so I would come up and say, "Girls,
you will have to cut it out."
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Aren't we producing quotas?" That is the answer that I got.
I said, "You are producing, but you can do a lot better. You are disturbing
other people. They are watching you And somebody will sew through a
finger. Somebody will get hurt "
In analyzing Farber's above-quoted testimony the undersigned is persuaded
that it does not represent fact but is no more than an ingenious self-serving
statement.
Farber speaks of "going there pthe rest room] for 20 or 30 minutes at a time,"
but lie does not testify that Bilderback did so, he also testifies that lie "stopped
by" and listened to Bilderback and Haney talking "several times . . when
perhaps they didn t see me," and that he expressed his concern that "somebody
will sew through a finger."
Faiber testified, (a) that "sewing through a finger" was "a common industrial
accident," (b) that during the past year there were "around 10 or 15" such
accidents, (c) that the Respondent's plant had a "good record" on such accidents
because the girls were warned and "on account of keeping an eye on the production
and on the work."
The Respondent under date of May 2, 1950, furnished the General Counsel with
P. list of accidents occurring in its plant during the preceding 6 months The
document was introduced in evidence, and lists nine accidents
The first under date of September 15, 1949. The last two dated March 14, 1950,
and April 22, 1950. As these occurred after Bilderback's discharge they clearly
have no bearing on the issues herein.
The remaining seven are :
September 15,1949-stuckk nail in left leg
October 7, 1949-cut left hand
November 23, 1949-stuck nail in left finger.
December 12, 1949-stuck needle in right hand
February 7, 1950-injured right hand
February 11, 1050-lacerated left hand
February 16, 1:)50-lacerated right hand
The only accident which resembles the Respondent 's description is that of De-
cember 12. "Stuck needle in right hand." This accident was to Ruby Creel, a
forelady, not a sewing machine operator. The other injuries to hands were ob-
viously injuries to men , not sewing machine girls.
However, as it is not contended that any complaint whatever was made on any
score regarding Bilderback prior to the workweek of March 6 , and moreover as
the record discloses no injuries during that week the undersigned is persuaded
that the Respondent's fears were groundless. _
In this respect the undersigned notes the following in the Respondent 's brief,
It is also undenied and undisputed on the record that a painful industrial
injury described as "sewing a finger" may result from careless operation of
high speed machines in the plant.
The undersigned quite agrees with the statement but he cannot stop with the
statement alone as does the Respondent's brief, he must and does find that such
plant accidents did not occur in the Respondent's plant during the week of March
6, and that the record does not disclose that any of Bilderback's acts or conduct
ever caused any such accident in the Respondent's plant.
Mrs. Jewel Streebeck, employed as a finisher, whose work on the seat covers
followed that done by Bilderback and operators like her, called by the Respond-
ent, testified, that she had been without work during "several days" because of
FARBER BROTHERS, INC. 761
Bilderback's failure to produce her quota. She further testified that Bilderback
and Haney were "frequently" gone from their machines for periods of "45 minutes
to an hour," that they were "in the rest room smoking" ; and that when she had no
worjr during these periods, which Streebeck testified "happened quite a long time
before the discharge, happened all along," she complained to Supervisor Creel.
Streebeck further testified that Bilderback disturbed other employees by sing-
ing and talking, but did not identify such employees nor was she asked to give
the source of her knowledge.
On cross-examination Streebeck testified that she never complained about the
alleged disturbing conduct because "they didn't bother me, I enjoyed it, and I
thought if the company didn't care, I didn't."
The undersigned is mindful that the Respondent in large part examined Stree-
beck by the use of leading questions, however without objection by the General
Counsel.
Inasmuch as the Respondent did not contend that Bilderback failed to make the
established quota, it is hard to understand how she could have held up the work
of others inasmuch as it is admitted that the quotas were set for an integrated
operation. Bilderback was admittedly one of the fastest operators. Streebeck
admitted that she had never made an individual bonus as a sewer.
Streebeck also testified that she did not join the Union and asked Bilderback
and others for union cards "just in fun "
Upon the entire record considered as a whole including Streebeck's demeanor
on the witness stand the undersigned does not credit her testimony.
Mrs Willie Nicastro, testified that she was working as a finisher during the
period material herein. She testified that her machine was in the line in front
of Bilderback and on the opposite side of the room. Nicastro testified that dur-
ing March 1950 she was without work for "15 or 20 minutes, maybe, at a time"
because Bilderback was away from her machine.
On cross-examination Nicastro admitted that she received work at the time
from other operators-
... because at that time I was on the production line and they made
only what was called the jump seat, and there were only two pieces in
a set and usually we made from four to five pieces in a set.
As the record reveals that in the Respondent's manufacturing process work
was passed from one operator to the one directly in front of her for completion
of the next step, it is not clear how Nicastro could depend on Bilderback for
work considering the location of their respective machines.
Considering the location of the machines and the testimony that Nicastro
received work from others beside Bilderback (and Haney) the undersigned
is not persuaded that Nicastro was idle for periods of time because Bilderback
(and Haney) were absent from their machines.
Maurice Farber testified that on either Wednesday or Thursday he told his
brothers and Assistant Manager O'Keefe that Bilderback together with Haney
and Irene Alsup should be discharged, telling them :
It looks like these operators will not be able to stay with us because
they refuse to cooperate. Irene says she is holding back production and
somebody else tells her to, and Betty Bilderback and Ledell Haney say
they refuse to meet all the quotas, they don't want to make over the quotas,
and if everybody stays right on the quota there won't be any bonus.
Farber did not notify the affected employees and testified that the reason
that the employees were not discharged immediately was because it was cus-
tomary to permit an employee being discharged to work until payday, which
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was Friday, although the pay period ended on Wednesday. The dischargees
in fact received no notice of their impending discharges until a few minutes
before being paid off.
O'Keefe testified that on Wednesday Maurice Farber told him that "There are
three we are going to have to let go" and then gave the reasons, "Two of them
have failed on refusing to cooperate, and the third one is holding back her
work.'
Apparently Farber did not name the employees at this time.
On Friday O'Keefe was instructed to have the separation slips and checks
ready.
Conclusions on Discharge of Betty Bilderback
The Respondent conceded that Bilderback was among its best operators, being
one of three in all its force who "consistently" made individual bonuses.
Until the week that the bonus system was changed from individual to group
participation no complaint was ever made because she talked, sang at her
work, and generally showed a lively disposition, however when the change
in the bonus was made and the new quotas set she was no longer a valued,
aven favored employee but one whom it was determined to discharge the first
time that Maurice Farber noted that "her operation was exactly on 100 percent."
It was admitted by the Respondent that the quotas were set for an integrated
operation and could not have been set higher, and keep the plant operating
efficiently. Human nature being what it is Maurice Farber's testimony with
respect to the size of the quotas set serves only to confirm common understanding.
O'Keefe testified that it took from 6 to 10 weeks to train an operator. The
Respondent in March was at the beginning of its season. Few employees were
ever discharged and the labor turnover was not excessive.
Again, human nature being what it is, the undersigned understands that an
employee accustomed to excelling under one system to her financial benefit would
resent a change whereby she would be, according to her thinking, sharing the
fruits of her labor with others less capable.
The Respondent having set or agreed on the quotas of production, could
reasonably expect that its employees would strive to earn all they could in
bonuses but could not reasonably require them to produce more than the quota,
on pain of discharge.
If Bilderback did not find it necessary to work every minute of the day in
order to meet her quota the Respondent could either raise the quotas for the
entire plant, or even for Bilderback alone, or must remain silent, unless, if as
contended, Bilderback's acts caused accidents or tended to do so. It is clear
that this was not the case.
Had the Respondent honestly been of the opinion that Bilderback's newly
assumed attitude would disrupt the plant, he could at least, considering her
service and her record, have waited a reasonable time to ascertain if her attitude
would continue or would change. It is incredible to believe that under these
circumstances alone, a valued and valuable employee should be discharged out
of hand. The undersigned is therefore persuaded that the Respondent did not
discharge Betty Bilderback on March 10, 1950, because she talked too much,
distracted other employees creating hazards in working operations in disregard
of the welfare of fellow employees and adversely effecting production.
The undersigned finds that the Respondent discharged Betty Bilderback for
reasons other than those advanced by the Respondent.
Mrs. Ledell Haney was first employed by the Respondent in 1947 and was dis-
charged March 10, 1950.
FARBER BROTHERS, INC. 763.
Haney and Bilderback worked side by side and timed their work so that both
turned in equal production each day. Haney testified that while at her work
she talked to Bilderback ; maintained that she could "sew and talk" ; but ad-
mitted that sometimes she would stop her machine. After the new quotas were
set, Haney according to her testimony, did not attempt to exceed the quota
although she never actually shut down her machine to retard her production.
Farber admitted that Haney was one of the three employees in the plant who
consistently made a bonus "three weeks out of every month" and was "always
making some 40 to 50 percent above quota," under the individual system.
Haney together with Bilderback met with Maurice Farber, when the new
bonus system and quotas were discussed, she corroborated Bilderback's testimony
with respect to this meeting.
Haney attended the union organization meeting in Bilderback's home and on
the following clay distributed application cards for the Union, in the plant.
Likewise she was interrogated with respect to the Union by Melvin together
with Bilderback. Haney testified that she never had an accident while in the
Respondent's employ.
Haney was discharged together with Bilderback and corroborated Bilderback's
testimony with respect to the incidents immediately surrounding their discharges.
The respondent advances the same reasons for Haney's discharge as given for
the discharge for Bilderback.
Conclusions as to the Discharge of Ledell Haney
It is clear that, Haney's ease is exactly as that of Bilderbaek, they worked to-
gether and kept their production equal by their own arrangement, their activities
and action in the plant were the same, no complaint was ever made regarding
Haney's work or conduct prior to the week of March 6, 1950, and likewise the
Respondent's contentions as to Haney are exactly as, and coupled to, its con-
tentions with respect to Bilderback.
The undersigned has found that the Respondent did not discharge Bilderback
for the reasons it advanced on all the evidence considered as a whole and
on all the circumstances in the case the undersigned is not persuaded that the Re-
spondent discharged Haney on March 10, 1950, because she "talked too much
and distracted other employees creating hazards in working operations in disre-
gard of the welfare of fellow workers and adversely affecting production."
The undersigned finds that the Respondent did not discharge Ledell Haney for
the reasons advanced by the Respondent but for other and different reasons not
stated by the Respondent.
Mrs. Irene Alsup testified without contradiction that she started to work for
the Respondent in 1946, and was discharged together with Bilderback and Haney
on March 10, 1950: that she was a "single needle machine" operator who finished
work following the operation performed by the "two needle machine" operator ;
that none of the eight "single needle" finishers who did the same work as she
produced as much work as Alsup ; that only one of these operators had greater
seniority in the Respondent's plant ; that prior to the last week of her employment
no complaint had ever been made regarding her work. The undersigned credits
Alsup.
Farber testified that under the individual bonus systm Alsup earned the bonus
"quite often "
Alsup testified that on Wednesday, March 8, she attended a meeting of finishers
in Maurice Farber's office at which the new bonus system and quotas were dis-
cussed During the course of the meeting Farber told Alsup that whereas her
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production had always been considerably higher than the set quota recently it
had fallen Alsup told Farber that she had been asked to "hold it back," but
refused to tell who had asked her to do so. She testified that Ruby Creel, her
forelady, had made the request.'
Alsup's testimony with respect to the above meeting was corroborated by Mable
Bayne and is credited by the undersigned.
Alsup attended the Union's organization meeting in Bilderback's home and
took cards to distribute in the plant the following day.
Farber testified that he determined to discharge Alsup at the time of the meet-
ing in which she made the statement that she had curtailed her production because
she had been asked to do so. Farber testified that be did not so inform Alsup,
"because I never tell anybody I will discharge them in front of any one else," and
further testified that employees were customarily permitted to finish the week to
Friday although the pay period ended on Wednesday.
Alsup received no notice of her discharge until the afternoon of Friday,
March 10.
She testified :
Q. And how were you paid off on Friday, March 10, 1950?
A. Well, we went into the office and saw our cards was pulled and they
was paying off Betty and Ledell, I saw them and I knew it had happened,
and I though my time would be next, and I looked for my card and I couldn't
find it; my card wasn't there. When I got up to where it should be, it was
gone. And after he got through paying them off, we got ours. Jack-is
that it? He told us to go in Mr Maurice's ollice and he would give us our
checks, and he gave us our checks, two checks apiece.
Q. Who gave you your checks?
A. Jack O'Keefe.
Q. Jack O'Keefe?
A.. Yes.
Q All right. Do you know what was in your termination slip?
A. It said: "Holding back work "
Concluding Findings on the Dischai ge of Irene Alsup
Manager Farber admitted that Alsup "always produced that much" (the set
quota) and according to Farber she often "went to 119 percent" of the set stand-
ard. Her testimony that she had the greatest production in her division, and
with one exception was also the employee of greatest seniority, among the fin-
ishers, and that her work had never been criticized, was not denied.
Farber testified that under the individual payment system Alsup made the
bonus "quite often."
It is clear that it takes from 6 to S weeks to train a finisher, who then would
not be Alsup's equal yet. Farber contends that he determined to discharge
Alsup at the time she admitted, during a discussion in his office, that she was
"holding back production `on orders.' "
At the time the Respondent was making a change in its operations, a change
which clearly required cooperation and discipline, Farbers resolution to discharge
Alsup could be based on either the fact that she was not producing her quota or
that her attitude would destroy the plant discipline. The alleged di op in Alsup's
production could only have occurred during the few preceding days, and could
not have been considered serious in itself inasmuch as her superior record cov-
ered a matter of years ; the matter of discipline and example was clearly more
3 Ruby Creel's testimony is discussed later herein.
FARBER BROTHERS, INC. 765
serious yet the Respondent contends that in the face of this critical offense it
failed to discharge the employee disrupting its organization because of Farber's
concern for employees' sensibilities as evidenced by his testimony , "I never tell
anybody I will discharge them in front of anybody else," and also the Respondents
alleged custom of permitting employees that were to be discharged to work
through to Friday.
The respondent's consideration for its employees feelings is touching indeed
but no realist can be persuaded that manufacturing plants are operated in this
fashion.
The undersigned finds that the Respondent did not discharge Irene Alsup
"because she publicly stated she Was holding back production" but that she was
discharged by the Respondent on March 10, 1950, for reasons not pleaded or
offered by the Respondent.
Concluding Findings on the Discharge of Bilderbacli, Haney, and Alsup
The undersigned having found that the Respondent did not discharge Bilder-
back, Haney, and Alsup for the reasons it advanced it becomes necessary to
examine the sole remaining cause advanced for the discharges by the General
Counsel, to wit the union membership and activities of the dischargees.
It has been found that activity in behalf of the Union began in Respondent's
plant on or about Thursday, March 9, immediately preceding a meeting for the
purpose of organization held in Bilderback's home. The meeting was attended
by five employees, three of whom were the dischargees.
It has been found that the Respondent had knowledge of the union activities
of its employees In the opinion of the undersigned the Respondent obtained
knowledge through the activities of Maurice Melvin, as found herein. The
undersigned is persuaded and finds that the Respondent also obtained knowledge
of the union activity by reason of the "lot of union talk" ; from the well
attended meeting in the rest room ; and from the very fact that such unusual
activity could not be hidden in a plant as small and as closely supervised as
is the Respondent's. The Respondent adduced testimony to the effect that all
the three Farber brothers as well as Assistant Manager O'Keefe were often on
the working floor.
The abrupt discharge of three operators, admittedly among the very best in
the plant, immediately after the Respondent obtained knowledge of the union
activities, as evidenced by Melvin's questions and statements, and immediately
after a union organizational meeting in the home of one of the three, points to
the real cause.
In response to questions by the Respondent's attorney, Farber testified as
follows :
Q. I Will ask you this question • What is your company policy with respect
to union activities of the employees?
A. We have no objection to any union or any activities. We have had
notices posted there that we were required on the previous case that came
up, we had them posted, and they stayed on,there thirty days, something
like that, after the date of expiration, I think, before we took them down.
We told all the girls at all times that it is their privilege, the law, they can
do whatever they want about a union.
The posted notice reads :
NOTICE TO ALL EMPLOYEES
Pursuant to Settlement Agreement Approved by the Regional Director of
the Fifteenth Region of the National Labor Relations Board, and in order
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to effectuate the policies of the National Labor Relations Act, we hereby
notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form,
join or assist the International Union, United Automobile, Aircraft and
Agricultural Implement Workers of America (UAW-010), or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection.
WE HAVE OFFERED to Irene Jones immediate and full reinstatement to
her former or substantially equivalent position without prejudice to any
seniority or other rights and privileges previously enjoyed, and made her
whole for any loss of pay suffered as a result of any discrimination.
All our employees are free to become or remain members of the above-
named union or any other labor organization. We will not discriminate in
regard to hire or tenure of employment or any term or condition of employ-
ment against any employee because of membership or activity on behalf of
any such labor organization.
FARBER BROTHERS, INCORPORATED,
Employer.
Dated-------------------- By------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date thereof, and
must not be altered, defaced, or covered by any other material.
It is quite apparent that the posting of this notice was not entirely voluntary.
The undersigned is convinced and finds on the entire record in the case, includ-
ing the fact that the Respondent failed to establish its contentions with respect
to the reasons for the discharge of Bilderback, Haney, and Alsup that the reasons
advanced by the General Counsel for the discharges is well supported by the
record in the case, and therefore finds on all the evidence considered as a whole
that the Respondent discharged Betty Bilderback, Ledell Haney, and Irene
Alsup on March 10, 1950, because of their membership in and activities on behalf
of the Union and has thereby discriminated in regard to their hire and tenure
of employment, discouraged membership in a labor organization, and has inter-
fered with, restrained, and coerced their employees in the exercise of rights
guaranteed in Section 7 of the Act.
B. The testimony of Walter Thurmond
On rebuttal the General Counsel called Walter Thurmond for the stated
purpose of impeaching the testimony of Maurice Farber, and also "for the
purpose" of showing that as Thurmond was a foreman in the Respondent's
plant and was replaced by Melvin." The General Counsel stated on the record
this is purely an impeachment witness. I want to show through this wit-
ness that certain statements made by Mr. Maurice Farber are inaccurate,
that is all. I make no recommendations and I urge nothing, and I contend
nothing beyond the realm of the charge of the complaint in this case.
The General Counsel contended that from this fact it must be inferred that
Melvin was also a foreman.'
Thurmond is Melvin's brother-in-law. It is admitted that he was a foreman,
that he was dischai ged, that Melvin replaced him, however the record does
not warrant any inference that Melvin became a foreman. The undersigned
had found the contrary.
FARBER BROTHERS, INC. 767
Considering Thurmond's status while in the Respondent's employ the Re-
spondent would be well within its legal rights in discussing any union activity
or any union organization of rank-and-file employees with Thurmond but Thur-
niond's testimony was of such nature, that in the opinion of the undersigned
it should be discussed herein.
In his testimony Thurmond, both on direct and cross-examination, made
few direct or unqualified statements He attempted by inuendo and "double
talk" to create one impression while at the same time leaving the way open
to escape from any fact testified to by giving a different meaning to his words.
It became perfectly clear that Thurmond's sole purpose on the stand was to
attempt to create an unfavoi able impression of the Respondent and not to
shed any light on the issues by a plain statement of fact.
It also became quite apparent that Thurmond had evidently deceived the
General Counsel with respect to any actual knowledge bearing on the issues
which he might have had.
Thurmond testified that sometime in 1949 Maurice Farber ordered him to
discharge two employees because of their union affiliations. He could name
only one of these. With respect to the dischargee he named, Thurmond testi-
fled:
We had a couple of meetings, me and Mr. Maurice and the foreman in the
cutting room, to be sure we got our stories right to this lawyer to make
our affidavit, so he laid her off, and that was the story I was supposed to
stick to when I made the affidavit.
The undersigned was of the impression that Thurmond was here seeking to
create the impression that the Respondent was guilty of subornation of perjury.
On cross-examination the witness testified that be made such an affidavit but
did not remember to whom he gave it, nor what he swore to, testified that "I
didn't tell the lawyer, whoever he was, this is what we decided to tell him, no.
I was talking to him' and he was writing it down." Ile further qualified his
testimony by stating "I imagine" Farber wanted the discharge because of the
employees' union activity, and finally testified that all he remembered was
"telling him I laid the girl off "
When cross-examined Thurmond also at first clearly sought to create the
impression that the Respondent sought to influence his testimony in a dis-
cussion before the healing, however his testimony when further developed was
quite different
Thurmond is also engaged in the manufacture of seat covers and buys his
raw material from Farber.
Thurmond testified that sometime before the hearing O'Keefe called on him;
that the subject of the coming hearing and Thurmond's being called to testify
"for the Union" came up. Ile testified :
He (O'Keefe) connected it in with the Union on the price list if I would
help them it would get our prices up.
The testimony not being clear to the undersigned he examined the witness
as follows :
Trial Examiner Prosr. Is it your testimony Mr. O'Keefe intimated to you
they would cut the prices of your materials they sold to you if you would
testify in a certain way?
The WITNESS No, sir.
Trial Examiner Pr.osr. Then how did that come up?
The WrrNESs Like I said, we were standing on the sidewalk there talking
about the prices and things, that you could get one thing for one price mind
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the next time another price, and he, of course, didn't have any control over
that, and the union was brought in, about this coming up October 10th,
and he just somehow combined them together
Trial Examiner ProsT. How did he combine them?
Tne WITNESS. I don't know how he combined them. He said, "What
good would it do if you went up and testified for the union?" He said,
"How much closer would you get to the blue sheet?" That is the cheapest
sheet, I realize.
O'Keefe and Farber were called to rebut Thurmond's testimony.
According to O'Keefe about 3 weeks before the hearing he passed Thurmond's
place of business and Thurmond called him in. He testified :
So I waited and after that he and I engaged in a conversation of a general
nature and then he brought up the matter of this case again. He said,
"I have been asked,"-he didn't say by who-"to testify in the case." He
said, "I don't much want to do it, though "
And I said, "Well, of course that is your own business What do you
want to do?"
And he said, "If I did testify that would kind of be blackmail
And then he went on and be said, "I am trying to get a better price on my
seat covers over there."
Those are the exact words of the conversation.
Maurice Farber, denied Thurmond's testimony with respect to the 1949 dis-
charges and further testified that sometime in August 1950, Thurmond phoned
him and requested that the Respondent grant him a cheaper price on material he
bought from the Respondent; that Farber refused to do so, that Thurmond then
said to him, "If I could get a little cooperation in getting my orders a little
faster I might be able to help you when this trouble comes up for you "
The undersigned believes that Thurmond offered his testimony solely for the
purpose of besmirching the Respondent, for reasons of his own, and did not
testify in order to shed light upon the issues. If a witness imputes subornation
of perjury to another the party calling him should be certain of the facts and
prepared to follow through, however the undersigned believes that Thurmond
mislead the General Counsel as to the nature of his offered testimony The fact
that the undersigned has found that the Respondent engaged in conduct consti-
tuting an unfair labor practice, and this largely on the conduct of Maurice Farber,
does not mean that the undersigned considers Farber guilty of perjury or has
any intention of casting any reflection on his honor The undersigned strongly
resents Thurmond's oblique and patently irresponsible testimony to the effect
that Farber suborned perjury in another case. The undersigned's observation
of Maurice Farber on the stand fully convinced him that he is not an individual
capable of such conduct, likewise his observation of O'Keefe on the stand con-
vinced the undersigned that O'Keefe was not such an individual as would seek
to improperly influence a witness or suborn perjury, therefore, from his observa-
tion of the witnesses and on the entire record the undersigned credits the testi-
mony of Maurice Farber and Jack O'Keefe with respect to their denials of the
testimony of Walter Thurmond as hereinabove found and finds that the testimony
of Farber and O'Keefe represent the accurate versions of the incidents and matters
related in the testimony above referred to.
The undersigned does not credit the testimony of Walter Thurmond for the,
reason that from his observation of the witness Thurmond, and from the nature
of his testimony, the undersigned is convinced that Thurmond's testimony
is no more than whole cloth woven on a loom of malice.
FARBER BROTHERS, INC.
C. The testimony of Ruby Creel
769,
Ruby Creel, the Respondent's forelady in charge of the sewing room was called
by the General Counsel. Creel admitted that she did not wish to testify but that
she did so in fear of the subpoena. The undersigned permitted the General
Counsel to treat her as a hostile witness. Creel's examination was largely with
respect to a sworn statement she had previously given a field examiner for the
Board. She identified the document In the opinion of the undersigned her
entire testimony was given under such emotional strain as to render it of little
probative value Creel was so nervous that some of her language was incoherent.
The undersigned believes that her condition was due to lack of control and not
conscious desire to deceive, however her condition destroyed her oral testimony
and make her former statement i alueless as evidence of a recorded past recollec-
tion as it was obviously impossible for her to adopt it, verify it, or to clearly
assert that the statement was true at the time it was made The undersigned
therefore does not in any manner rely on the testimony of Ruby Creel in making
any of the findings or conclusions in this report.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in Section III, above, occurring in
connection with its 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 comerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
undersigned will recommend that it cease and desist therefrom and take certain
affirmative action which will effectuate the policies of the Act.
It has been found that the Respondent has discriminated in regard to the hire
and tenure of employment of Betty Bilderback, Ledell Haney, and Irene Alsup
by discharging them on March 10, 1950, because of their membership in and
activities on behalf of the Union it will be recommended that the Respondent
offer each of them full reinstatement to her former or substantially equivalent
position z and make each whole for any loss of pay she may have suffered by
reason of Respondent's discrimination against her by payment to each of them
a sum of money equal to that which she normally would have earned as wages
from the date of her discharge to the date of Respondent's offer of reinstatement,
less her net earnings during said period. Loss of pay shall be computed on the
basis of each separate calendar quarter or poftion thereof during the period
from the Respondent's discriminatory action to the date of a proper offer of
reinstatement. The quarterly periods, herein called quarters, shall begin with
the first clay of January, April, July, and October. Loss of'pay shall be de-
termined by deducting from a sum equal to that, which each employee would
normally have earned for each such quarter or portion thereof, his net earnings,
if any, in any other employment during that period. Earnings in one particular
quarter shall have no effect upon the back-pay liability for any other quarter.
It will also be recommended that Respondent, upon reasonable request, make
available to the Board and its agents all payroll and other records pertinent to
an analysis of the amounts due as back pay.
2Phe Chase National Bank of the City of New Yom Ii, San Juan, Puerto Rico Branch,
65 NLRB 827
953841-52--vol 04-l0
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The unfair labor practices found reveal on the part of the Respondent such
a fundamental antipathy to the objectives of the Act as to justify an inference
that the commission of other unfair labor practices may be anticipated. The
preventive purposes of the Act may be frustrated unless the Respondent is re-
quired to take some affirmative action to dispel the threat. It will be recom-
mended, therefore, that the Respondent cease and desist from in any manner
interfering with, restraining, or coercing its employees in the exercise of rights
guaranteed by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS or. LAW
1. The Respondent, Farber Brothers, Inc., Dleniphis, Tennessee, is engaged in
commerce within the meaning of Section 2 (6) and (7) of the Act.
2. International Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America, UAW-CIO, is a labor organization within the mean-
ing of Section 2 (5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Betty
Bilderback, Ledell Haney, and Irene Alsup the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of
the Act.
4. By such discrimination and by interfering with, restraining, and coercing
employees in the exercise of the rights guaranteed in Section 7 of the Act, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair lfroor practices affecting
commerce within the meaning of Section 2 (6) and (7) )f the Act.
The record does not show that the Respondent has engaged in unfair labor
practices by inquiring, questioning, and interrogating its employees with respect
to their union activities, threatening its employees with discharge if they joined
the Union, or made statements and held conversations interfering with its em-
ployees' union activities.
[Recommended Order omitted from publication in this volume.]
SUNSHINE BISCUITS , INC. a 'iid INTEI1NATIONAL AssocfA'i'LON or
MACHINISTS , LOCAL LODGE No. 92, PErIi' IONi,,tt. Cases Nos. 17-IR0-
917 and 17 RC-9;21. Ilf ay 21, 1911
Decision and Order
Upon petitions duly filed, a consolidated hearing was held before
William J. Scott, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby allirmed.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers ill connection with
'After the close of the hearing, the Intervenor filed a motion to amend Its name on
the formal papers in this proceeding. The notion is granted. The Intervenor's name
appears herein as amended.
94 NLRB No. 92.