Greeneville Cabinet Co., Inc.

National Labor Relations Board - Board Decisions

Feb 27, 1953

102 N.L.R.B. 1677 (N.L.R.B. 1953)

GREENEVILLE CABINET CO., INCORPORATED 1677
The Board, in its decision and direction of election in this matter,
found that a unit of program personnel including scriptwriters was
appropriate for the purposes of collective bargaining with the Em-
ployer. Announcers and control operators at the Employer's radio
station are represented in a separate unit. Employee Margarita
Nazario voted under challenge in the election directed herein and the
Petitioner contends that her duties are those of a scriptwriter included
in the unit. The Employer contends that employee Nazario is a
clerical employee not properly included in the bargaining group
specified by the Board.
The record shows that employee Nazario's work, prior to Septem-
ber 1952, consisted of script continuity writing as well as other duties
in the station music library. Since that date, however, she has been
employed as a music librarian and her duties consist of maintaining
the record files and forwarding lists of records to be used in programs
to the control room. In the latter assignment she apparently exercises
some discretion as to the choice of music to be played. For a minor
portion of each day, she also performs secretarial work for the station
production manager. Her hours of employment vary from those of
the regular secretarial staff.
On the entire record, the Board finds that employee Nazario, while
not within the classification of scriptwriter, has duties, interests, and
conditions of employment closely allied to those of employees in the
unit found appropriate and is properly included in such unit.
Order
IT IS HEREBY ORDERED that the Decision and Certification of Repre-
sentatives in this proceeding be, and it hereby is, amended specifically
to include the music librarian in the unit therein found appropriate
for purposes of collective bargaining.
GREENEVILLE CABINET Co., INCORPORATED 1 and CONGRESS OF INDUS-
TRIAL ORGANIZATIONS . Case No. 10-CA-1037. February 27, 1953
Decision and Order
On September 5, 1952, Trial Examiner Sydney S. Asher, Jr., 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 cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
2It appears from certain papers filed in this case that, subsequent to the hearing, the
Employer 's name was changed to The Magnavox Company of Tennessee.
102 NLRB No. 174.
1678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report attached hereto. Thereafter the Respondent
filed exceptions to the Intermediate Report and a supporting brief.2
The Union filed exceptions to the Intermediate Report.
The Board 3 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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner.
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Greeneville Cabi-
net Co., Incorporated, Greeneville, Tennessee, its officers, agents, suc-
cessors, and assigns, shall :
(1) Cease and desist from:
(a) Keeping under surveillance the meeting places and concerted
activities of its employees.
(b) Interrogating its employees concerning their union membership
or activities.
(c) Threatening or warning its employees to refrain from engaging
in concerted activities.
(d) Discouraging membership in Congress of Industrial Organi-
zations, or any other labor organization of its employees, by discharg-
ing or refusing to reinstate any of its employees because they have
joined or assisted any labor organization, or by discriminating in any
other manner in regard to the hire and tenure of employment or any
term or condition of employment of any of its employees.
'The Respondent' s request for oral argument is denied because in our opinion the record,
including the exceptions and brief, adequately presents the issues and the positions of the
parties.
8 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 [Chairman Herzog and
Members Styles and Peterson].
A In view of the Trial Examiner 's findings in section 2d of the Intermediate Report,
it is evident that the Trial Examiner intended to find, and it is hereby found, that Fore-
man Wellington 's conduct set forth in section 2c of the Intermediate Report did not vio-
late Section 8 (a) (1) of the Act.
In section 2e of the Intermediate Report the Trial Examiner found that Foreman Hen-
derson interrogated employees Burroughs and Heezell with respect to the union activities
of their fellow employees, threatened that if the Union succeeded in organizing the
employees the Respondent would move its plant , and directed them to report to him any-
thing they heard about the Union . However , the Trial Examiner found that these events
occurred at the Respondent 's plant, and not, as described in the bill of particulars, on the
streets of Greeneville , Tennessee . Because of this variance between the bill of particu-
lars and the evidence presented by the General Counsel , the Trial Examiner did not find
the aforesaid acts of Foreman Henderson to be a violation of Section 8 (a) (1) of the Act.
In the absence of exceptions being filed thereto, we adopt the Trial Examiner 's refusal to
find that Henderson 's conduct violated Section 8 (a) (1) of the Act.
GREENEVILLE CABINET CO., INCORPORATED 1679
(e) 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 Congress of Industrial Organiza-
tions, or any other labor organization of its employees, to bargain col-
lectively through representatives of their own choosing, to engage in
concerted activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any and all such activities
except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of employ-
ment 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 Estel Hensley, Naomi Bowman Hensley, and J. C. Ward
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges previously enjoyed, and make them whole in
the manner set forth in the section of the Intermediate Report entitled
"Recommendations" for any loss of pay they may have suffered by
reason of the Respondent's discrimination against them.
(b) Upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all payroll records,
social-security payment records, timecards, personnel records and
reports, and all other records necessary to analyze and compute the
amount of back pay due and the right of reinstatement under the terms
of this Order.
(c) Post at its plant at Greeneville, Tennessee, copies of the notice
attached to the Intermediate Report and marked "Appendix A." 5
Copies of said notice, to be furnished by the Regional Director for the
Tenth Region, shall, after being duly signed by the Respondent's repre-
sentative, be posted by it immediately upon receipt thereof and main-
tained by it for a period of at least sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Tenth Region, in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges the
discriminatory discharge of Ellis Whitson and Harvey Waddell, be,
and it hereby is, dismissed.
' This notice is hereby amended by substituting the words "A Decision and Order" for
the words "The recommendations of a Trial Examiner ." In the event that this Order Is
enforced by 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."
1680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
This proceeding involves allegations that Greeneville Cabinet Co., Incorpo-
rated, Greeneville, Tennessee, herein called the Respondent, interfered with,
restrained, and coerced its employees in certain specified respects, and dis-
charged six named employees,' and has refused or failed to reinstate them, in
order to discourage membership in Congress of Industrial Organizations, the
charging party, herein called the Union, and because they joined or assisted the
Union or engaged in concerted activities 2 It is alleged that this conduct vio-
lated Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended
(61 Stat. 136), herein called the Act. After the issuance of a complaint by the
General Counsel' and the filing of an answer by the Respondent, a hearing was
held before the undersigned Trial Examiner on various dates between December
17, 1951, and January 24, 1952, at Greeneville, Tennessee. All parties were repre-
sented and participated fully in the hearing.' No party took advantage of the
opportunity to file a brief or proposed findings of fact and conclusions of law.
Upon the entire record in the case, and from my observation of the witness, I
make the following :
FINDINGS OF FACT
It is found , and there is no dispute, that (1) the Respondent was engaged
in commerce within the meaning of the Act at all material times,5 and (2) the
Union is a labor organization within the meaning of the Act. The only disputed
1 The employees and the dates on which they were alleged to have been discharged were
as follows : Estel Hensley , April 17, 1950; Naomi Bowman ( now Naomi Bowman Hensley),
April 20, 1950; Katherine B. Smith (now Katherine Smith Gibbs), April 24, 1950; J. C.
Ward, April 25, 1950; Harvey Waddell, May 15, 1950; and Ellis Whitson, May 15, 1950.
2 Messrs. Coleman and Maupin moved that Mrs. Gibbs be excused from testifying in
response to a subpena served upon her at the request of the General Counsel . During the
course of the hearing , the General Counsel released Mrs. Gibbs from the subpena. Accord.
ingly, it was not necessary to rule upon this motion.
8 The designation General Counsel is intended to include the General Counsel of the
National Labor Relations Board and his representative at the hearing.
4 The original charge, which was filed May 8, 1950, and served on the Respondent May
15, 1950, does not contain the names of Waddell and Whitson. Indeed, Waddell had not
left the Respondent's employ at that time . The first amended charge, filed March 2,
1951 , likewise does not contain the names of either Waddell or Whitson. The second
amended charge , which was filed April 30, 1951, alleges that Waddell and Whitson were
discharged on or about May 15, 1950 . In its answer , the Respondent moved that the
names of Waddell and Whitson be stricken from the complaint , on the ground that the
charge naming them had not been served within 6 months of their alleged discharges, as
required by Section 10 (b) of the Act. This motion was renewed at the start of the
hearing, and was denied . N. L. R. B. v. Kobritz, 193 F. 2d 814, 816 (C. A. 1) ; N. L. R. B.
v. Gaynor News Company, Inc ., 197 F. 2d 719 ( C. A. 2) ; Cu8ano v. N. L. R. B., 190 F. 2d
898, 904 ( C. A. 3) ; Cathey Lumber Co . v. N. L. R. B., 185 F. 2d 102 ( C. A. 5), enforcing
86 NLRB 157 , 162 (vacated on other grounds , 189 F. 2d 428) ; Stokely Foods, Inc. v.
X. L. R. B., 193 F. 2d 736 ( C. A. 5) ; N. L. R. B. v . Westea Boot & Shoe Co., 190 F. 2d
12, 13-14 (C. A. 5), rehearing denied August 14, 1951; Kansas Milling Company v.
N. L. R. B., 185 F. 2d 413 , 415 (C. A. 10 ) ; Nina Die Works, 95 NLRB 824, set aside on
other grounds , 198 F. 2d 362 (C. A. 3) : and Dinion Coil Company, 96 NLRB 1435 (foot-
note 2 ). Contra: Joanna Cotton Mills Company v . N. L. R. B., 176 F. 2d 749 (C. A. 4) ;
and Superior Engraving Company v . N. L. R. B., 183 F. 2d 783 ( C. A. 7), rehearing denied
August 31 , 1950, certiorari denied 340 U. S. 930.
6 The Respondent is a Tennessee corporation engaged in the manufacture of radios, tele-
vision sets , and cabinets , with its principal place of business at Greeneville , Tennessee.
In the normal course of its business , the Respondent uses raw materials valued in excess
of $100,000 annually , of which more than 75 percent is received from points outside the
State of Tennessee . The Respondent distributes finished products valued in excess of
$500,000 annually , of which more than 90 percent is delivered to points outside the State
of Tennessee.
GREENEVILLE CABINET CO., INCORPORATED 1681
issues are whether or not the Respondent has interfered with, coerced, and
restrained its employees in certain specified respects, and whether or not five
employees named in the complaint were discriminatorily discharged or denied
reinstatement e
1. Sequence of events
The Respondent began operations in May or June 1947. Starting with a
smaller work force, it increased the number of its employees to 425 by the fall of
1949. The principal departments of the Respondent's plant were the mill room,
the cabinet assembly department, the finishing department, and the console
assembly department. Some departments operated on a single shift, while
others ran on two shifts.
The Respondent's upper managerial hierarchy in the spring of 1950 consisted
of L. B. Kinney, factory manager ; John Parsons, plant and time-study engineer ;
and Clifford S. Hendry, personnel director. Under them were various foremen
who were given substantial autonomy in directing the affairs of their respective
departments. Indeed, Hendry testified that he could not recall any situation
in which an employee who was satisfactory to his foreman had been discharged.
From mid-April until September 1950, Kinney was in ill health, and Parsons
was in charge of the Respondent's plant during this period.
In 1948 or 1949, membership application cards for an unnamed union were
circulated in the Respondent's plant. Apparently, this attempt to organize the
employees proved unsuccessful. In March 1950, employee Robert Olin King, while
in Knoxville, Tennessee, contacted an official of the Union. King obtained mem-
bership application cards and circulated them among the Respondent's em-
ployees, aided in this effort by employees E'stel Hensley, Ellis Whitson, Harvey
Waddell, and J. C. Ward. Altogether, King and others interested in organizing
the employees were successful in obtaining signed membership applications from
at least 130 employees, each of whom paid a $1 fee at the time he signed the
application. The Union held weekly meetings during parts of March and April
1950. The fact that Union activities were being carried on among the employees
was known to the Respondent's management.
King was discharged April 5, 1950, for circulating a punchboard in the plant
during working hours in violation of the Respondent's rules. It is not contended
that his discharge violated the Act. Shortly after his discharge, King was re-
instated. Between April 17 and May 8, 1950, the Respondent discharged em-
ployees Hensley, Ward, Whitson, and Naomi Bowman. On May 25, 1950, Waddell
left the Respondent's employ. The circumstances surrounding these separations
will be described in more detail below.
In July 1950, the Respondent added a television chassis assembly department.
During the months of April through September 1950, it hired a total of 355 new
employees.
2. Interference, restraint, and coercion
The complaint alleges numerous incidents of interference, restraint, and
coercion on the part of various supervisors. The Respondent's answer denies
all of them. The allegations regarding surveillance will be discussed first,
followed by a description of other conduct engaged in by each individual super-
visor, discussed seriatim.
4 During the course of the hearing, the General Counsel moved to amend the complaint
by striking therefrom the allegation that Katherine B Smith (now Katherine Smith Gibbs)
was discriminatorily discharged. In the absence of objection, the motion was granted.
Accordingly, there is no longer any issue with respect to Smith' s discharge.
1682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a. Surveillance
The complaint alleges that the Respondent, through Hendry, Parsons, and
Foremen Basil Bright, E L. Jeffries, Benjamin G. Masincupp, and Joseph F.
Wellington, on or about April 7, 14, and 20, 1950, spied upon and watched union
meeting places while meetings there were being attended by employees. A
statement of particulars, supplied orally by the General Counsel during the
course of the hearing at the direction of the Trial Examiner, describes these
violations as occurring on Depot Street and near Rubin Cutshaw's Garage, in
Greeneville.
During part of March and April 1950, the Union held weekly meetings on
Friday evenings. The place at which the next meeting was to be held was
generally announced at the end of each meeting. Most of the meetings took
place in the Union's hall on Depot Street, which is near the main intersection
of Greeneville's business section.
Wellington, foreman of the finishing department,? a witness for the General
Counsel, testified that in mid-April 1950 he took a ride with Foreman Jeffries
in Jeffries' car. They drove around town for a while, then at about 7 p. in.
parked on Depot Street. Jeffries pointed out a building across the street and
stated that it was a union hall and that a union meeting was planned for that
evening. He suggested that it would be a good idea "if we recognized any of
the men." The car was parked in such a way that the 2 men could see people
going in and out of the hall, with slight interference from other cars parked
directly in front of the hall. While they were parked in that spot, Wellington
saw employees of the Respondent on the street and entering the hall. After
approximately an hour a car came by, and Jeffries told Wellington that the
driver was an organizer for the Union. The person in the other car identified
by Jeffries as a union organizer called out to Jeffries : "The party's over boys,
you may go home now." Employee Blaine Harrison,' a witness for the General
Counsel, testified that on one occasion as he came out of the meeting hall he saw
Jeffries' car parked nearby in a spot where he could observe the union hall
entrance "very clearly" ; and that at another meeting at the union hall he saw
Jeffries and Wellington together in the vicinity of the union hall. J. C. Ward,
1 of the employees whose discharge is here in question, was a witness for the
General counsel. He testified that as he came out of the union hall between 7
and 8 p. m. after attending a meeting he saw Jeffries sitting in his parked car
approximately 150 to 200 feet from the entrance. Ward "walked right by"
Jeffries' car and stood watching him for a while. According to Ward, Jeffries
"was stretching his neck like an old goose reaching over a fence for corn,
watching who was going in and out of the union." Jeffries, foreman of the
mill room, testified as a witness for the Respondent. He admitted that he took
Wellington for a ride and that, after driving around town, they parked on Depot
Street. He further admitted that he knew that a union meeting was scheduled
for that evening, but denied that he knew where it was to be held, or that he
had engaged in any spying. Upon questioning by the Trial Examiner, Jeffries
testified that, between 7 : 30 and 8 p. in., while they were parked on Depot Street,
a car pulled up beside his. Jeffries recognized the car as being "the one that
was out in front of the plant." The driver of this car yelled out : "You can go
home now boys, the party is over," or words to that effect. In view of the
testimony of Wellington, Harrison, and Ward, and the admission of Jeffries
that he knew a union meeting was going to be held that evening, there can be
7 Wellington left the Respondent's employ in August 1950.
11 At the time of the hearing, Harrison was no longer in the employ of the Respondent.
GREENEVILLE CABINET CO., INCORPORATED 1683
little doubt that Foremen Wellington and Jeffries, during late March or early
April 1950, deliberately spied upon a union meeting which was taking place
in the union hall.
Harvey Waddell, one of the employees whose discharge is here in question,
was a witness for the General Counsel. He testified that late in March or early
April 1950 he saw Foreman Masincupp sitting in his parked car about 8 p. in.
near the union hall on an evening when a union meeting was in progress.
According to Waddell, Masincupp was parked immediately behind a car in
which Hendry and his wife were sitting . Although Masincupp testified, he did
not deny his presence in a parked car near the union hall on a night when a union
meeting was in progress, or attempt to explain it. In view of the spying activi-
ties of Wellington and Jeffries found above, the fact that Masincupp was parked
in the vicinity of the union hall on an evening when a union meeting was being
held there, and his failure to deny or explain his presence, it is reasonable to
infer that Masincupp deliberately parked in the vicinity of the union hall in
order to spy on the union meeting.
In addition to the incident described immediately above, in which Hendry and
his wife were parked in a car near the union hall when a union meeting was in
progress, Waddell testified that he saw Hendry on a second occasion in the
vicinity of the union hall while a union meeting was going on. Harrison likewise
testified that he saw Hendry near the union hall on two evenings when the union
was holding meetings there, once parked behind Jeffries' car. Ward testified
that he saw Hendry driving slowly past the union hall on an evening when the
Union was holding a meeting there, and that there was a lady in the car with him.
Hendry denied spying on any union meeting. He testified that he had often
parked on Depot Street, but denied that he had ever parked there behind Jeffries.
In view of the finding that Wellington, Jeffries, and Masincupp engaged in sur-
veillance of union meetings at the union hall, Waddell's testimony that Hendry
was parked near Masincupp, and Harrison's testimony that Hendry was sitting
in a parked automobile behind Jeffries' car, I am convinced that Hendry engaged
in surveillance of meetings held at the union hall e
The Respondent maintains that its representatives had a right to be on public
streets, and that it was not unusual for them to be parked near the main inter-
section of the business center of a town the size of Greeneville.3° Unquestionably,
the public highways are open to legitimate usage by all. However, as clearly
demonstrated by Wellington's testimony, the motives of Wellington, Jeffries, and
other representatives of the Respondent in parking and driving on public streets
were not innocent. It is therefore found that Wellington, Jeffries, Masincupp,
and Hendry, during March and April 1950, illegally kept the union hall under
surveillance."
The union hall was on the second floor, reached by a stairway. At the top of
the stairs to the right was the entrance to the union hall, and to the left was the
entrance to a poolroom. Waddell testified that on one occasion as he came out
of the union hall be saw Foremen Bright and Jeffries standing in the entrance
to the poolroom, and that Bright was "trying to see who all came out of the union
hall." According to Waddell, he did not see Bright and Jeffries very long, because
when he came out of the union hall he went down the stairway and out to the
° The General Counsel contends that Hendry was a supervisor within the meaning of
the Act , the Respondent maintains that he was not Hendry testified that he had author-
ity to hire employees . It is therefore found that he was a supervisor
"I take official notice that the population of Greeneville in 1950 was 8,721. U. S.
Census of Population : 1950 , Vol. I, Number of Inhabitants , Chapter 42 : Tennessee, Table
7, Page 19 (U S. Bureau of the Census).
" International Furniture Company , 98 NLRB 674.
1684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
street. On the other hand, Harrison testified that, although he attended every
union meeting, he had never seen Jeffries in the door of the poolroom as he
came out. Other than Waddell, none of the General Counsel's witnesses testified
to having seen either Jeffries or Bright at the head of the stairs standing in the
doorway to the poolroom. Jeffries denied that he had ever been in any poolroom.
Bright testified that, in April 1950, he had been working late at the plant. He
and Masincupp, who was new in town at the time,13 decided to bowl but were
unable to do so. By chance, they met Parsons, and the three men then played
pool from about 8 until 11 p. m 13 Bright further testified that they took a table
toward the rear, that they never left the table, and that during the course of the
evening he saw several of the Respondent's employees in the poolroom ; indeed,
Waddell came back to where they were playing and spoke to them at approxi-
mately 9 p. in. Bright denied that he knew the union hall was across the stairs
from the poolroom, or that a union meeting was then in progress. He further
denied that he had ever played pool with Jeffries. Although both Masincupp and
Parsons testified as witnesses for the Respondent, neither mentioned playing
pool with Bright. Inconsistencies in Bright's testimony," plus the silence of
Masincupp and Parsons on the subject, render Bright's testimony unpersuasive.
Nevertheless, in view of Jeffries' denial that he had ever been in a pool hall,
Harrison's testimony that he did not recall seeing Jeffries in the poolroom door,
and the fact that Waddell was the only witness who testified that either Jeffries
or Bright was at the poolroom although the union meetings were well attended,
Waddell's testimony in this respect is rejected as inaccurate. As no witness for
the General Counsel testified that he saw Parsons in or around any union meeting,
I conclude that the General Counsel has failed to prove by a preponderance of the
evidence that either Bright or Parsons engaged in surveillance of union meetings.
One of the April meetings of the Union was originally scheduled to have been
held at the Sunnyside Church on Jones Bridge Road. At the last minute,
however, the place of the meeting was changed ; it was held instead in Rubin
Cutshaw's garage on West Irish Street 16 Waddell testified that he saw Hendry
drive slowly by Cutshaw' s garage 3 times that evening, the last time about
8: 30 p. in. According to Waddell, Hendry was alone and was driving a green
Chevrolet, and Waddell was inside the garage looking through the front glass
when he saw Hendry go by. Harrison testified that he also saw Hendry's car
pass the garage 3 times, the last time after the meeting was over. He estimated
that Hendry was driving between 10 and 20 miles per hour the first 2 times
and "a little faster" the third time. He further testified that , although it was
dark and Hendry's car was about 30 feet away, he could see Hendry from inside
the garage through the window because of the light thrown upon the street
'- There was testimony indicating that Masincupp had been in town 9 months or a year
prior to this time, which was denied by Masincupp and Bright . I deem it unnecessary to
resolve this conflict.
"During the time in question , Parsons was acting manager of the factory and Bright
was acting foreman in Jeffries' absence
14 For example , Bright testified on direct examination that the bowling alley was filled,
and on cross-examination that it was closed. He further testified that he did not play
pool with Parsons and Masincupp again because he was unable to compete with them,
but later stated that the reason was not necessarily their proficiency, but the fact that
he now has two children and finds it difficult to leave home at night.
13 Employee Estel Hensley testified that an average of between 25 and 30 people attended
union meetings.
1e The General Counsel sought to prove that this last-minute change of meeting place
was inspired by fear that the meetings were being spied upon by representatives of the
Respondent , and was an attempt to evade such spying. In my opinion , however , the reason
for changing the meeting place is immaterial to the issues herein.
GREENEVILLE CABINET CO., INCORPORATED 1685
through the garage window and the reflection of the headlights of Hendry's car.
Although employees Hensley and Ward both attended the meeting at Cutshaw's
garage, neither testified that he had seen Hendry drive by . Hendry testified
that his father lived on the outskirts of Greeneville, that he often went to visit
his father in the evenings , and that his normal route from his home to that of
his father passed Cutshaw's garage. He admitted that there were other routes
he could have taken from his home to that of his father. He further testified
that at that time he was driving a gray Chevrolet. In the absence of any
explanation of how Hendry could have learned of the last-minute change of
meeting place, and in view of Hendry's reasonable explanation for driving past
Cutshaw's garage, it is found that the General Counsel has failed to prove by
a preponderance of the evidence that Hendry spied on the union meeting held
in Rubin Cutshaw's garage.
b. 1,. B. Kinney
L. B. Kinney was, during all material times, factory manager of the Re-
spondent's plant. It is conceded that he was a supervisor within the meaning
of the Act. During most of the events described herein, Kinney was in ill health.
The complaint alleges that Kinney, on or about March 15, 1950, interrogated
employees as to their activities in behalf of the Union. The statement of par-
ticulars describes this interrogation as having occurred in the Respondent's
plant.
Waddell testified that, about March 1, 1950, he and employees Robert Olin
King and W. E. King were called to Kinney's office. Kinney told Robert Olin
King that he had heard that he had gone to Knoxville to contact a representative
of the Union in order to have the Respondent's employees organized. Robert Olin
King denied this, stating that he had gone to Knoxville but only to take his wife
to a doctor there. Kinney laughed and said that someone had come into his
office and told him that Waddell was the person who was organizing the Union.
Waddell asked Kinney who this person was. Kinney replied that it was a
man in a striped jacket who had refused to give his name. Waddell remarked
that he imagined it was "somebody in the plant." Kinney then asked Waddell :
"What would you do if it was?" Waddell answered: "If you will tell me who
it was, I'll go get him." After that, the 3 employees remained in Kinney's
office laughing and chatting. According to Waddell, the total time they spent
in Kinney's office was approximately 30 minutes. About a week later, Robert
Olin King asked Waddell and W. E. King to accompany him to Kinney' s office,
because he was going to ask Kinney if his (King's) work was satisfactory and
he wanted witnesses to hear Kinney's reply. Accordingly, the 3 employees went
to Kinney's office and Robert Olin King asked Kinney if his work was satis-
factory. Kinney replied that it was, and Robert Olin King said : "That is all
I want to know." The 3 employees then left.
Robert Olin King, a witness for the General Counsel, testified that, in March
1950, he was talking to W. E. King about going to Knoxville when Kinney
"walked right around the corner on us." Kinney said that "some old gray-
headed fellow" came to him and told him that Waddell or one of the Kings
was going to Knoxville supposedly to see a doctor, but actually to contact a
union representative. Robert Olin King further testified that he attempted to
ascertain from Kinney the name of the man who had made this statement, but
Kinney replied that he did not get the man's name. He further testified that
he got together with Waddell and W. E. King and went to Kinney' s office. He
asked Kinney whether he (Kinney) was satisfied with his (King's) work.
He also asked Kinney what he thought about a union coming into the plant.
250983-vol. 102-53-107
1686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kinney replied that if the majority wanted a union it was perfectly all right
with him.
W. E. King was not called as a witness by any of the parties, nor did any party
suggest that he was unavailable. Kinney did not testify. However. the Re-
spondent produced a physician's certificate indicating that Kinney's condition
prevented him, without grave danger, from giving testimony as a witness.
Under the circumstances, I deem this an appropriate case for the application
of the rule that the Board is not precluded from considering as evidence state-
ments attributed to persons too ill to testify, but that such testimony will be
subjected to the closest scrutiny before determining the weight to be given it"
Waddell impressed me as a sincere and forthright witness. His testimony on
this subject was substantially corroborated by that of Robert Olin King, and is
credited. In the first of these conversations, Kinney was obviously attempting
to elicit information regarding the identity of the employees responsible for
starting the union activities. Accordingly, it found that Kinney, on this oc-
casion, illegally interrogated employees Robert Olin King, W. E. King, and Wad-
dell with respect to their union activities.38 On the other hand, the statements
attributed to Kinney by Waddell on the second occasion contained no intimida-
tion, threat of reprisal, of promise of benefit, and are therefore privileged under
Section 8 (c) of the Act.
The complaint further alleges that Kinney, on about May 12, 1950, induced
an employee to withdraw from activity in support of the Union and to urge
other employees to cease their interest in and support of the Union. The state-
ment of particulars describes this as having taken place in a hospital in Greene-
ville, Tennessee, in which Kinney was then a patient.
As has been previously mentioned, Robert Olin King was discharged April 5,
1950, for circulating a punchboard in the plant during business hours. King
testified that, 2 weeks after his discharge, he went to see Kinney in a hotel room
where Kinney was staying at that time. On the following day, King returned
to his job. Two or 3 weeks later, King heard rumors that Kinney would not
trust him "on a stack of Bibles." King therefore went to visit Kinney who was
then a patient in a hospital in Greeneville. King suggested that he would post a
notice on the plant bulletin board telling the employees he was sorry that he
misled them into the Union, and asked Kinney if Kinney would then trust him.
Kinney replied that he was not asking King to do anything, he could do as he
pleased about it. King then returned to the plant, prepared a notice, and posted
it on the bulletin board's The record indicates that only Hendry and Kinney
had authority to post notices.
The General Counsel contends that the conversation between King and Kinney
followed by King's posting of the notice constituted restraint, interference, and
li West Texas Utilities Company, Inc., 94 NLRB 1638; and Wallick and Schwalm Com-
pany, 95 NLRB 1262, enforced 198 F. 2d 477 (C. A. 3.).
11 Standard-Coosa-Thatcher Company, 85 NLRB 1358, 1363; Sohio Pipe Line Company,
75 NLRB 858, 859, and Gransteville Company, Sibley Division, 96 NLRB 456 (interroga-
tion of employee Edgar Johnson by Assistant Superintendent S. N McKeown).
Although Kinney may have stated that if the majority wanted a union, it was all right
with him, as testified by Robert Olin King, this fact alone is insufficient to offset the
coercive effects of Kinney's Interrogation. Empire Pencil Company, Division of Ha8senfeld
Bros., Inc., 86 NLRB 1187, 1208, enforced 187 F 2d 334 (C. A 6) : and The Chesapeake
and Potomac Telephone Company of West Virginia, 98 NLRB 1122.
19 King testified orally as to the contents of the notice. He further testified that he did
not know what had happened to the notice after he posted it on the bulletin board. How-
ever, there was no evidence that the General Counsel had attempted to subpena the docu-
ment from the Respondent or had otherwise made a search for it. I therefore do not con-
sider the notice unavailable Accordingly, in the absence of the notice itself, no finding
will be made with respect to its contents.
GREENEV ILLE CABINET CO., INCORPORATED 1687
coercion . However , it is clear from King 's testimony that Kinney neither
suggested nor urged that King post such a notice . On the contrary, the idea was
entirely that of King, and the notice was prepared and posted on the bulletin
board by King, albeit with the tacit approval of Kinney . Kinney's statement
that King could do as he wanted about the matter falls far short of inducement
or encouragement . Accordingly , I find nothing in Kinney ' s conduct on this
occasion violative of the Act.
c. Joseph F. Wellington
Joseph F. Wellington, at all material times, was foreman of the Respondent's
finishing department. The parties stipulated that he was a supervisor within
the meaning of the Act. The complaint alleges that Wellington, on or about
April 15, 1950, warned and threatened an employee against supporting the Union.
The statement of particulars describes this incident as having occurred in the
Respondent's plant.
Estel Hensley, one of the employees whose discharge is here in question, was
a witness for the General Counsel. He testified that on April 15 or 16, 1950,
Wellington, his foreman, came to him and said that two of the foremen in the
plant had reported to him that Hensley had been seen talking to men in their
departments and had requested Wellington to keep Hensley out. Wellington
added : "Hensley, you know what this is all about don't you?" Hensley replied :
"Yes, the Union," to which Wellington responded: "It sure is." Wellington
then instructed Hensley to stay at his bench, and Hensley agreed to do so.
Although Wellington testified as a witness for the General Counsel, he made no
reference to this conversation. It is therefore found that the incident took
place substantially as described by Hensley.
In substance, Wellington was merely reporting to Hensley that he had had
complaints from other foremen that Hensley had been talking to men in their
departments, where he had no right to be. This conversation, which took place
during working hours, obviously referred to working hours; to construe it
otherwise would be highly unrealistic. In view of the Respondent's valid rule
against any solicitation during working hours, as found below, and the absence
of any evidence that the Respondent permitted employees to leave their de-
partments to solicit other employees during working hours without reprimand-
ing them for such conduct it is found that Wellington's conduct did violate
Section 8 (a) (1) of the Act 20
d. Whitey McDonald
Whitey McDonald was, during all material times, assistant foreman of the
Respondent's finishing department. It was stipulated by the parties that he
i% as a supervisor within the meaning of the Act. The complaint alleges that
McDonald, on or about April 15, 1950, warned an employee against talking on
behalf of the Union. The statement of particulars describes this incident as
having taken place in the Respondent's plant.
Ellis Whitson, 1 of the employees whose discharge is here in question, a witness
for the General Counsel, worked in the finishing department under McDonald.
He testified that about a week or 10 days prior to his discharge, while he was
on his job, McDonald told him that if he was soliciting on the Respondent's time
20 The Pure Oil Company (Heath Refinery) 75 NLRB 539, and General Motors Corpora-
tion, Allison Division, 51 NLRB 1116. Compare Graniteville Company, Ssbley Division,
supra, (Overseer Gay's interrogation of employees Monday and Kimberly) ; and Dixie
Mercerizing Company, 86 NLRB 285, 302-303, in both of which no valid rule against
solicitation was found to exist.
1688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he had better stop. According to Whitson, when he asked McDonald if it would
be permissible for him to collect for flowers or a present for some of the em-
ployees, McDonald walked off without answering. McDonald did not testify.'
Accordingly , it is found that the incident occurred substantially as related by
Whitson.
What McDonald did, in effect , was to warn Whitson not to solicit for the
Union. And Whitson's testimony makes it clear that McDonald's warning was
specifically aimed against such solicitation during working hours. As in the
case of Wellington's warning to Hensley, and for the same reasons , it is found
that McDonald 's conduct was not violative of the Act.
e. George H. Henderson
George H. Henderson was, at all material times, the Respondent' s radio and
television superintendent. It was stipulated that he was a supervisor within
the meaning of the Act. The complaint alleges that Henderson, on or about
April 24, 1950, interrogated an employee concerning her union interest and
activity and pointed out that another employee had been discharged by the Re-
spondent because of activity on behalf of the Union. The statement of particu-
lars describes this incident as having occured "on a street or streets in the
downtown section of Greeneville, Tennessee."
Montie Burroughs, a solderer in Henderson's department, was a witness for
the General Counsel ' She testified that, in the spring of 1950, Henderson called
her to his office and inquired if anybody had asked her to join the Union. When
Burroughs responded that she had been asked to join, Henderson inquired by
whom. Burroughs replied that it was another employee, Sammie K. Hawk.
Henderson said that Hawk was no longer in the Respondent's employ, and added
that if the Union got in the Respondent would move its plant. He then in-
structed Burroughs to let him know if anyone said anything to her about the
Union. According to Burroughs, this conversation took place in the presence of
Robert Evans, who was not further identified on the record. Neither Evans nor
Henderson testified.22
Anna Heezell, the matron in charge of the women's restroom at the Respond-
ent's plant , was a witness for the General Counsel." She testified that late in
April 1950 Henderson , her immediate supervisor, asked her in the plant if anyone
had shown her any union cards and if she knew anything about the Union. She
replied that she had not heard anything. Henderson then told her to watch
the girls in the washroom and not to allow them to "bunch up ;" that if they
gathered to see if their conversation concerned the Union, and if she heard any-
thing, to report it to him. Henderson added: "We don't want the Union here.
If they get it in here they will move the plant and you all won't have any work."
As mentioned above, Henderson did not testify.
Based upon the above credited and undenied testimony of Burroughs and
Heezell, it is found that Henderson interrogated Burroughs and Heezell with
respect to the union activities of their fellow employees, threatened that if the
Union succeeded in organizing the employees the Respondent would move its
a Parsons testified that McDonald left the employ of the Respondent about September
1950. However, there was no testimony that the Respondent did not know his present
whereabouts, or that he was otherwise unavailable as a witness.
22 Burroughs was no longer in the employ of the Respondent at the time of the hearing,
having been laid off in April 1951.
m There was testimony that Henderson had left the Respondent 's employ and had perma-
nently moved to California. There was no indication that Henderson's present where-
abouts was unknown, and the Respondent made no motion to take his deposition.
11 Heezell left the Respondent's employ in May 1951.
GREENEVILLE CABINET CO.) INCORPORATED 1689
plant , and directed them to report to him anything they heard about the Union"
It is also found that these events occurred at the Respondent's plant, and not,
as described in the statement of particulars, on the streets of Greeneville. In
view of the fact that there is a material variance between the statement of par-
ticulars and the evidence produced by the General Counsel," no finding of an
independent violation of Section 8 (a) (1) of the Act will be based upon this
testimony." However, these incidents will be considered in evaluating the
character of other conduct involved herein"
f. John Parsons
As previously noted, Parsons was the Respondent's plant and time-study
engineer and was in charge of the Respondent's plant during the period of
Kinney's illness. It was stipulated that he was a supervisor within the meaning
of the Act while he was acting in this capacity. The complaint alleges that
Parsons, on or about May 24, 1950, warned an employee against activity on
behalf of the Union. The statement of particulars describes this event as having
occurred in the Respondent's plant.
The only evidence produced by the General Counsel with respect to this alle-
gation of the complaint concerned a statement made by Parsons to employee Ellis
Whitson at the time of Whitson's discharge. However, during oral argument
before the Trial Examiner, the General Counsel stated that he was not contend-
ing that this conduct, by itself, constituted an independent violation of Section
8 (a) (1) of the Act. Accordingly, I deem it unnecessary to discuss the state-
ment in question at this point in the Intermediate Report.
g. Robert Minturn
At all material times, Robert Minturn was chief inspector of the Respondent's
plant. It was stipulated that he was a supervisor within the meaning of the
Act. The complaint alleges that Minturn, in the latter part of May 1950, warned
an employee against remaining a member of and supporting the Union. The
statement of particulars indicates that this occurred in the Respondent' s plant.
Waddell testified that a few days before he left the Respondent's employ
Minturn approached him while he was working and said: "There has been some-
thing I've been wanting to ask you for a long time and I didn't know how to go
ss It is true that the Respondent cannot he restrained from lawfully administering , polic-
ing, regulating , and observing the use of its washrooms. The Chesapeake and Potomac
Telephone Company of West Virginia, 98 NLRB 1122 . However, Henderson 's instructions
to Heezell to report any discussion of the Union that she overheard went far beyond this
lawful right of the Respondent.
"At the close of the hearing, the General Counsel moved "to conform the formal papers
to the proof insofar as informal matters are concerned , such as dates, spelling , names,
places and so on , not having to do with the substantive issues of the case." This motion
was granted . I do not deem the granting of this motion sufficient , in itself, to cure a
substantial variance between the place where Henderson 's acts were alleged to have taken
place and proof that they occurred elsewhere.
17 In Premier Worsted Mills , 85 NLRB 985 (footnote 2), enforced 183 F . 2d 256 (C. A.
4), it was held that Respondent was not prejudiced by the fact that the issues litigated
involved places, dates, and persons not referred to in the bill of particulars , because "all
the facts and issues introduced by the General Counsel were fully litigated by the Respond-
ent." This is not true in the instant case, however. Here, the Respondent did not offer
the evidence of either Evans or Henderson to rebut the testimony of the General Counsel's
witnesses . And in his closing argument before the Trial Examiner , the Respondent's
attorney stated : "Mr. Henderson is now a resident of California , you remember , so I have
not attempted to rebut . Also, because I feel that testimony by those girls can be wholly
disregarded." Accordingly , the doctrine enunciated in the Premier case is not applicable
here.
" El Mundo, Inc ., 92 NLRB 724.
1690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about it." Waddell replied : "Don't be scared, tell me what you want to know."
Minturn responded : "It is about this union business. You know they turn cars
over and everything, you don't want to be messed up in that." Waddell an-
swered: "Well, I ain't done anymore than several others has. I signed a union
card." Minturn said : "Mr. Kinney knows you're in this thing and you're ear-
marked and you're going to have to prove to him that you are not in it." Wad-
dell retorted : "I don't care if Mr. Kinney had it photographed and had the card
and hanged it up in his office." Minturn then walked away in anger. Minturn,
a witness for the Respondent, denied that he knew whether or not Waddell was
a member of any union, or that he had ever discussed the Union with Waddell,
specifically denying that he told Waddell that he (Waddell) had been "ear-
marked" because of his union activities or that he would have to clear himself
with Kinney. He testified that he discussed with Waddell a coal strike which
was then in progress. On cross-examination, however, Minturn admitted that he
had heard "plant gossip" that Waddell was supporting the Union, and that these
rumors had not yet reached him at the time he discussed the coal strike with
Waddell.
As previously noted, I consider Waddell a sincere and forthright witness.
Minturn, on the other hand, impressed me as evasive and inconsistent. Ac-
cordingly, I credit Waddell's account of this conversation, and reject Minturn's
denial that such a conversation took place. By stating to Waddell that he was
"ear-marked" and that he would have to prove to Kinney that he was not sup-
porting the Union, Minturn in effect warned Waddel against remaining a mem-
ber of or supporting the Union. Such conduct constitutes illegal interference,
restraint, and coercion.
h. Conclusions
It is found that the Respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed by Section 7 of the Act, in
violation of Section 8 (a) (1) of the Act. This finding is based solely upon
the following incidents :
(1) Surveillance of union meetings held in the union hall on Depot Street in
March and April 1950 , by Wellington , Jeffries, Masincupp , and Hendry.
(2) Kinney's interrogation of employees Waddell, W. E. King, and Robert
Olin King in Kinney ' s office in March 1950.
(3) Minturn 's warning to Waddell , in the plant in May 1950 , against re-
maining a member of and supporting the Union.
I turn now to a consideration of evidence tending to indicate the Respondent's
union animus in the spring of 1950. Heezell testified that within a week before
or after Bowman's discharge Hendry called her to his office and asked her if
she had heard anything said about the Union by any of the girls in the wash-
room. Heezell responded that none of the girls had ever talked to her about the
Union . Although Hendry testified , he did not deny Heezell's testimony re-
garding this incident . It is therefore found that the conversation occurred sub-
stantially as described by Heezell. Thus, Hendry illegally interrogated Heezell
respecting the union activities of other employees 2' In view of the violations of
Section 8 (a) (1) of the Act committed by Wellington , Jeffries , Masincupp,
Hendry, Kinney, and Minturn ; Henderson 's coercive remarks to Burroughs and
Heezell ; and Hendry's interrogation of Heezell , I find that in March , April, and
May 1950, the Respondent showed a definite union animus . The contention of
29 As the complaint does not allege that Hendry interrogated any employees , no inde-
pendent finding of a violation of Section 8 (a) (1) of the Act will be based upon this
incident.
GREENEVILLE CABINET CO., INCORPORATED 1691
Respondent that these were isolated incidents Is without merit. The conduct
involved herein affected a number of employees, and constituted much more
than a single act of interference, restraint, or coercion. Moreover, it was en-
gaged in by two high-ranking officials and several foremen. It cannot there-
fore be said that such conduct was in fact isolated 30
3. The discharge of Estel Hensley
a. Facts
Estes Hensley began to work for the Respondent in the fall of 1947, at an
hourly rate of 65 cents. At the time of his discharge on April 17, 1950, he was
a finish patcher in the finishing department under Foreman Wellington, and was
earning 90 cents per hour. According to Wellington, Hensley was a "very good"
worker. Hensley joined the Union on March 23, 1950. Thereafter, and before
his discharge , he talked to between 40 and 50 of the Respondent's employees
with respect to joining the Union, and succeeded in persuading "almost all of
them" to join. He attended all union meetings held after he became a union
member.
There were 2 smoke breaks each day, 1 at 9 a. in. and the other at 2 p. in.,
during which the employees could smoke outside the plant for 7 minutes. In
the spring of 1950 there was no bell, buzzer, or other signal indicating the start
or end of these smoke breaks ; each employee watched the time and regulated
the length of his smoke break accordingly.
Hensley testified that on April 17, 1950, he saw Hendry "spying" on him at
the afternoon smoke break. Shortly after this, Wellington came to him and
told him to get his hat and coat, "this was it." Hensley laughed and asked :
"Do you really mean it?" Wellington replied : "Yes." Hensley then followed
Wellington to Hendry's office, where he found Jeffries, Masincupp, Wellington,
and Hendry assembled. Hendry accused Hensley of laying down on the job.
Hensley denied that he had been loafing. Hendry then accused Hensley of
being 2 minutes late returning from smoke break that day. Hensley replied :
"No, I don't think I was." Hendry then discharged Hensley. Approximately
a week after his discharge, Hensley returned to the plant and asked Hendry
to reinstate him. Hendry replied that he did not have any opening. Within
a week after this conversation with Hendry, Hensley and employee W. E. King
visited Kinney in the hospital. Kinney suggested that Hensley should "gather
up all the people that had been laid off because of the Union" and he would put
them back to work if they would sign a contract agreeing to abandon the Union.
Hensley told Kinney that he would not sign such a contract, although he would
bring the others there to talk to Kinney 31 On the following day, Hensley con-
tacted the people named by Kinney and took them to the hospital. However,
Hensley remained outside while the others went into the hospital.
Wellington testified that on April 17, 1950, Hendry called him to the office and
stated that Hensley had disobeyed company rules, having been 2 or 3 minutes
late returning from smoke break that day. Hendry said that he was going to
discharge Hensley, and instructed Wellington to bring him to the office. Acting
30 The Chesapeake and Potomac Telephone Company of West Virginia, supra.
13 The others mentioned were Katherine Smith , Naomi Bowman , Sammie K. Hawk,
J C Ward, and Paul Davis. The record shows that Smith and Hawk had joined the
Union , and that Smith was discharged April 24, 1950 . The exact date of Hawk 's discharge
is not definitely shown According to Hensley , there was some discussion as to whether
Davis should be included , Kinney maintaining that Davis had engaged in an argument
with his foreman , and Hensley contending that Davis was strongly in favor of the Union.
However , Kinney finally agreed to include Davis.
1692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on these orders, Wellington told Hensley to get his hat and coat, and accompanied
him to Hendry's office, where Hendry discharged him. Wellington testified that
he had nothing to do with the decision to discharge Hensley, that he acted en-
tirely on Hendry's orders, and that if it had been left to him he would not have
discharged Hensley.
Hendry testified that he had had complaints from Wellington that Hensley
had left the factory early without permission, that Henslev had not "been too
industrious by any means," and one described only as "this instance of horse-
play." Hendry further testified that he and Wellington had discussed the
discharge of Hensley on the day of his discharge, prior to his being brought to
the office, but Hendry could not recall who made the decision to discharge
Hensley. Hendry also testified that at the time Hensley was discharged Hendry
and Wellington told Hensley that he had been warned before, particularly on
that morning, that he had been loafing, that Wellington had complained about
it, and that it made a bad impression on other einplo} ees. According to Hendry,
Hensley was discharged for horseplay, about which he had been warned, and
for leaving the plant early without permission, about which he had also been
warned.
The separation slip prepared by the Respondent indicates that Hensley was
discharged for "breaking company rules."
Jeffries and Masincupp testified as witnesses for the Respondent, but neither
mentioned the conversation between Hendry and Hensley related by Hensley as
having taken place at the time of his discharge. Hensley and Wellington im-
pressed me as sincere and forthright witnesses. The testimony of Hendry, on
the other hand, was vague, and his memory at times was not dependable. More-
over, neither Jeffries nor Masincupp denied Hensley 's testimony. Accordingly,
I find that Hensley's discharge occurred substantially as related by Hensley
and Wellington. With respect to the conversation between Hensley and Kinney
at the hospital, neither W. E. King nor Kinney testified. However, as previously
noted, there was evidence indicating that Kinney was too ill to testify. No
party explained its failure to call W. E. King as a witness. Because of the illness
of Kinney, Hensley's testimony regarding this incident has been subjected to
careful scrutiny. Hensley's description of his conversation with Kinney indicates
the same mental attitude on the part of Kinney as did the testimony of Waddell
and Robert Olin King, previously described. Moreover, Hensley told his story
in a clear and convincing manner. Accordingly, it is found that the discussion
with Kinney in the hospital occurred substantially as described by Hensley.
b. Contentions and conclusions
The General Counsel maintains that Hensley was discharged because of his
known union activities, and that the reasons assigned by the Respondent for
Hensley's discharge are mere pretexts. The Respondent, on the other hand,
maintains that Hensley was discharged for loafing, horseplay, leaving the
plant early without permission, and returning late from a smoke break.
At the outset, it is necessary to determine whether or not the Respondent was
aware of Hensley's support of the Union and activities on behalf of the Union.
Several days before Hensley's discharge, as previously described, Wellington
came to Hensley while he was at work and said that two foremen in the plant
had complained that Hensley had been seen talking to men in their departments
and had requested Wellington to keep Hensley out. Wellington added : "Hensley,
you know what this is all about, don't you?" Hensley replied : "Yes, the Union."
Wellington said : "It sure is." Wellington added that he wanted Hensley to
stay at his bench, and Hensley agreed to do so. In view of this conversation, and
GREENEVILLE CABINET CO., INCORPORATED 1693
the fact that officials and supervisors of the Respondent spied upon union meet-
ings which Hensley attended, it is found that the Respondent knew of Hensley's
support of and activities on behalf of the Union.
I now turn to an examination of the reasons advanced by the Respondent
to justify Hensley's discharge . So far as loafing is concerned , there is no
credible evidence that he was ever warned about or apprehended loafing, except
for the one discussion between Hensley and Wellington a few days before
Hensley 's discharge . The substance of that conversation was that Hensley
should not talk to men in other departments about the Union during working
hours, but should remain at his bench. Hensley denied that he had ever talked
to any employees about the Union during working hours because , in his opinion,
that would have violated the law. As for Hendry's testimony that Wellington
had complained about Hensley 's loafing and that Hensley had been warned
about it, this was not substantiated by Wellington , and was specifically denied
by Hensley . Hendry's testimony that Hensley had not "been too industrious
by any means" is much too general . In the absence of any specific testimony
that Hensley had loafed , or had been warned against loafing, I find no merit
in the contention of the Respondent that Hensley was not industrious . Indeed,
on the contrary, his foremen testified that he was "a very good" worker.
As for the alleged horseplay , the evidence shows that Kinney had posted a
notice reading : "In the future anyone caught horseplaying in this plant will be
dismissed immediately ." While it is not clear exactly when this notice was
posted , it will be assumed that horseplay was contrary to the Respondent 's rules
prior to Hensley 's discharge . Other than Hendry's testimony that "there was
this incident of horseplay," there is no evidence to support the contention of
the Respondent that Hensley had engaged in any horseplay , or had been warned
against such conduct. I therefore conclude that Hensley had neither been
warned against horseplay , nor had engaged in any such conduct.
With regard to leaving the plant early, it appears that Hensley wanted to
leave approximately 15 minutes before quitting time on a Saturday , but was
unable to find Wellington, his foreman. He then asked James Dearstone, the
assistant foreman, for permission to leave, and Dearstone granted it. When
Hensley returned to the plant on Monday, Hendry told him that he had left
early the previous Saturday without permission. Hensley replied that he had
obtained permission from Dearstone, and Hendry then told Hensley not to let
it happen again. This occurred after Hensley had been working at the Respond-
ent's plant approximately a year and a half. It is not likely that Hendry
considered this a serious infraction of the rules at the time it occurred, for
other than a rather mild warning he took no further steps to discipline Hensley.
Moreover, this incident occurred approximately a year before Hensley's final
discharge. Accordingly, I conclude that it was not, in reality, one of the
reasons for discharging Hensley.
With respect to the Respondent 's contention that Hensley was late returning
from smoke break the day of his discharge, Hensley denied that he had been
tardy returning from either of the two breaks that day. He testified that he
had not been the last employee to return to work after either of the two breaks
that day. Hendry could recall no incident in which he had ever warned an
employee about being late returning from a break , and further testified that he
had never disciplined any employee in any way for such an offense. He had
no recollection of any conversation with Hensley concerning Hensley 's return-
ing late from a break . Wellington testified that he had occasion to reprimand
a few employees for tardiness in returning from breaks but could not recall
ever having warned Hensley in this respect . Harrison testified that he had
1694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been reprimanded for returning late from breaks several times. Robert Olin
King testified that he knew of no employee discharged for tardiness in returning
from a break during the 4 years he had worked at the Respondent's plant,
other than Hensley. Bright testified that he had never reprimanded any
employee for returning late from break, even when they had been a minute
or a minute and a half late Jeffries testified that if employees come back into
the plant within 9 or 10 minutes he never reprimanded them but indicated
that he might reprimand them if they stayed out as long as 15 ,minutes. Masin-
cupp testified that none of the announcements on the bulletin board regarding
the conduct of employees mentioned the subject of returning late from break.
Under all the circumstances, I conclude that Hensley had not been late return-
ing from break on the day of his discharge, even 2 or 3 minutes ; and that even
if he had been 2 or 3 minutes late returning from break, that fact would not
have been sufficient to cause his discharge.
In sum, the only breach of the rules committed by Hensley during his 2% years
of employment was the 1 instance when he left the plant 15 minutes early under
the mistaken belief that permission from his assistant foreman made such con-
duct permissible. As that occurred approximately a year before his discharge,
and as the other alleged violations of company rules have not been shown to have
occurred, it is clear, and I find, that the reasons given by the Respondent for dis-
charging Hensley are mere pretexts. This conclusion is strengthened by the
fact that, although it was the policy of the Respondent not to discharge an
employee who was satisfactory to his foreman, Hensley's foreman testified that he
would not have discharged him. In view of Hensley's known union activities, the
Respondent's antipathy to the Union, the false pretexts used as an excuse to
discharge Hensley, Wellington's testimony that he would not have discharged
Hensley, the timing of the discharge only a few weeks after Hensley joined the
Union and at the height of the union campaign, and Kinney's offer to reemploy
Hensley if he would abandon the Union, I am convinced and find that Hensley
was discharged and refused reinstatement because of his known union member-
ship and activities.
4. The discharge of Naomi Bowman
a. Facts
Naomi Bowman began to work for the Respondent in April 1948 in the radio
and television department under Foreman Henderson. During the first 6 months
of her employment she wired radios on the assembly line. After that she per-
formed various tests, including audio tests, discriminator tests, and frequency
modulation tests. At some point during her employment Bowman decided to
quit, but Hendry persuaded her to take a leave of absence instead. Bowman
could not recall any instance in which her work had been criticized. She joined
the Union on April 15, 1950, and thereafter attended one union meeting.
Bowman testified that on the morning of April 24, 1950, Henderson called her to
his office and told her that he had received a report that she had signed a union
card, and that if he got another such report he would discharge her. At about
3: 30 p. in. that same afternoon, Henderson again called Bowman to his office.
In the presence of Robert Evans, Henderson asked Bowman if it were true that
she had signed a "CIO card." Bowman replied that she would like Henderson to
get her card and show it to her, and that if he wanted to take somebody else's
word, there was nothing she could do about it. Henderson then informed Bow-
man that she was discharged, and banded her a check which had been lying on his
desk during the interview. He added that he hated to take this step, but he was
GREENEVILLE CABINET CO., INCORPORATED 1695
acting under orders. About 2 days later, Bowman returned to the plant and went
to Hendry's office with former employees Katherine Smith and Sammie H. Hawk.
Smith asked Hendry if he would take them back to work Hendry answered that
he could not do so "until the Union sort of died down."
Hendry testified that on the day Bowman was discharged or the next day Hen-
derson informed him that he had discharged Bowman because she had been away
from her position on the line and had been soliciting and interrupting production.
Hendry could not recall whether Henderson had stated what Bowman had been
soliciting for. Hendry recalled that Bowman had come to see him shortly after
her discharge, but did not testify as to the conversation on that occasion. Hen-
derson, Smith, Hawk, and Evans did not testify." Bowman's separation slip,
dated 3 days after her discharge, indicates that she was discharged for "union
soliciting during working hours."
On cross-examination, Bowman testified that she had been injured in an auto-
mobile accident on December 31, 1950. As a result she had been hospitalized
for 11 days and had been under a physician's care for 6 months. She further
testified that since that accident she has been unable to remember events as well
as she previously could and that "there are some things that haven't come back
to me." On the basis of this testimony, the Respondent moved that her entire
testimony be stricken. The motion was denied. Under the circumstances, her
testimony has been scrutinized with care, and is found credible. Accord-
ingly, it is found that the events of April 24, 1950, and thereafter occurred sub-
stantially as related by Bowman.
b. Contentions and conclusions
The General Counsel contends that Bowman was discharged because of her
union membership. The Respondent, conversely, maintains that Bowman was
discharged for engaging in solicitation on behalf of the Union during working
hours, in violation of the Respondent's rules.
In view of the Respondent's surveillance of union meetings, Bowman's attend-
ance at a union meeting, and Henderson's statement that he had received a report
that Bowman had signed a union card, it is found that the Respondent-and Hen-
derson in particular-knew that Bowman was a union member.
The Respondent contends that it was justified in discharging Bowman because
she engaged in union solicitation of other employees during working hours.
Bowman testified, on direct examination , that she "probably" talked to employee
Julia Johnson about the Union during working hours, but denied that she had
solicited on behalf of the Union at any time prior to her discharge. On cross-
examination, Bowman testified that she could not recall whether she had dis-
cussed the Union during any of her conversations with Johnson, but denied that
she had ever asked Johnson to join the Union. On this latter point, however, she
was not sure. She further testified that she had talked to employee Harold Hum-
bard about the Union during working hours, but could not recall what she had
said. Finally, she testified that she could not remember having talked to any-
one about the Union. In view of the uncertainty of Bowman's testimony on the
subject, the failure of the Respondent to produce Johnson or Humbard as wit-
nesses with respect to Bowman's solicitation of them, and the failure of the
record to show that any supervisor had received a report from any employee
that Bowman had been soliciting, I reject the Respondent's contention that Bow-
man was discharged because she solicited on behalf of the Union during working
hours.
"There is evidence tending to indicate that Smith was too ill to testify.
1696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
What, then , was the real reason for Bowman 's discharge and the Respondent's
refusal to reinstate her? The answer can be found in the events of April 24,
when Henderson first warned her that he had received a report that she had
signed a union card , and would discharge her if he got another such a report,
and finally discharged her asserting that he had received a second such report.
It is clear that Bowman was discharged and was refused reinstatement solely
because of her membership in the Union . This conclusion is bolstered by the
fact that the discharge occurred a relatively short time after Bowman joined the
Union , and at a time when the campaign was at is height ; the antiunion attitude
of the Respondent , and particularly of Henderson , as shown by the testimony of
Burroughs and Heezell , described above ; and the undenied testimony of Bowman
that Hendry had told Bowman , Smith , and Hawk that he could not reinstate
them until the Union "died down."
5. The discharge of J. C. Ward
a. Facts
J. C. Ward began to work for the Respondent in September 1947 , at a rate of
65 cents per hour. At first, Ward was working on the fill line and doing cleaning
in the finishing department under Foreman Wellington. After approximately 3
or 4 weeks , he became a spray operator . On one occasion , the time of which is not
shown in the record, Wellington reprimanded Ward for throwing a wad of masking
tape. At the time of his discharge , Ward was earning 90 cents per hour. Well-
ington described Ward as a "very good" employee. Ward joined the Union on
March 29, 1950. He attended union meetings and talked to between 30 and 40
employees , attempting to get them to join the Union . He succeeded in obtaining
approximately 10 membership applications.
Ward testified that on April 25, 1950, while he was working, Wellington called
him into his office and told him : "I've got orders from the higher up to let you
go because you've been union soliciting during working hours." Ward replied
that he had been working for the Union and intended to continue doing so. Well-
ington then repeated that he had orders to let him go, adding that Ward was a
good hand and that it would be difficult to replace him, and that if there was
anything he could do for Ward, he would be glad to do so. He then handed Ward
his check. Approximately a week later, Ward returned to the plant and re-
quested Hendry to reinstate him. Hendry replied that there were no openings
at that time , that there might be a job open within a few days , and that he would
let Ward know. [Ward asked Hendry how his work had been. Hendry replied
that it had been excellent.] Approximately a week later, Ward again returned to
the plant and requested Hendry to give him his separation slip . Hendry complied.
About 2 weeks after his discharge, Ward went to visit Kinney in the hospital in
which Kinney was then a patient. Ward was taken there in Hensley 's car, and
was accompanied by Bowman , Hawk, Smith , and Davis . All but Hensley went
into Kinney's hospital room , Hensley remaining outside. According to Ward,
Kinney told Ward that he would not be able to reinstate him for 4 or 5 months,
because he had received a letter from the Board , and would have to wait until he
could find out what the Board was going to do.
Ward testified that he had never been warned against talking to his fellow
employees with respect to the Union. He admitted that he had talked to Assistant
Foreman Anderson Livesay and employee Red Cornwell about the Union during
working hours.
Wellington testified that a considerable time before Ward's discharge either
Hendry, Parsons, or Kinney instructed all foremen that if any employee solicited
GREENEVILLE CABINET CO.) INCORPORATED 1697
during working hours, the foreman was to get a signed statement from the person
solicited, and the person doing the soliciting was to be discharged. Within a
week before Ward's discharge, Wellington told his assistant, Livesay, that any
solicitation during working hours should be reported to Wellington immediately.
On April 25, 1950, Livesay informed Wellington that he had been solicited by
Ward to join the Union, during working hours. Wellington and Hendry urged
Livesay to sign a statement describing the incident. Livesay reluctantly com-
plied. Thereupon, Wellington discharged Ward for soliciting during working
hours. Wellington further testified that this was in accord with a previous
mutual agreement between Wellington and Hendry that if a foreman obtained
a signed statement that an employee had solicited a fellow employee during work-
ing hours, the employee doing the soliciting was to be discharged.
Hendry testified that prior to Ward's discharge Wellington reported to him
that Ward did not stay in his booth, but wandered around talking to other em-
ployees, and that he was going to discharge Ward for soliciting for the Union
on company time and interrupting production. Hendry did not mention any
statement signed by Livesay.
The separation slip prepared by the Respondent shows that Ward was dis-
charged for "union soliciting during working hours." Cornwell, Livesay, Davis,
Hawk, Kinney, and Smith did not testify, nor was the statement alleged to have
been signed by Livesay introduced into evidenceas Under all the circumstances,
it is found that Ward had never been warned against infractions of the no-
solicitation rule; that Livesay" reported to Wellington that Ward had, during
working hours, solicited him to join the Union ; that in view of this report and
Ward's failure to deny it when Wellington confronted him with the accusation,
Wellington had reason to believe that it was true; and that Wellington and
Hendry thereupon decided to discharge Ward. It is further found that Ward's
interview with Kinney in the hospital occurred substantially as related by Ward.
b. Contentions and conclusions
The General Counsel contends that, although the Respondent was disinclined
to have its employees solicit during working hours, no clear-cut rule to that
effect was made known to the employees. He further maintains that, even if
such a rule existed, it was discriminatorily applied. Conversely, the Respondent
argues that there was in effect at all material times a specific rule prohibiting
any kind of solicitation in the plant during working hours, that this rule was
made known to the employees and enforced without discrimination, and that it
was violated by Ward, thus justifying his discharge.
As Ward attended union meetings spied upon by the Respondent, and as Live•
say reported to Wellington and Hendry, Ward's solicitation on behalf of thb
Union, there can be no doubt, and I find, that the Respondent was aware of
Ward's union activities.
The Respondent had developed a so-called "day-a-year" plan under which
employees voluntarily donated 1 day's pay each year to a welfare fund. This
fund was used to purchase flowers for funerals, gifts for sick employees, and
for similar purposes. This plan was explained to each employee at the time of
hiring. Numerous witnesses testified that, prior to the spring of 1950, the Re-
spondent had a rule against solicitation in the plant, and that such a rule had
been posted in the form of a notice on the plant bulletin board. There was also
"As the statement was not produced in evidence and there was no indication that it
was unavailable, I make no finding as to its contents.
84 No finding is made as to whether or not Livesay was a supervisor within the meaning
of the Act.
1698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony indicating that this notice had disappeared, and that the Respond-
ent's officials had searched for it but had been unable to find it. Accordingly, the
Respondent was permitted to prove its contents through oral testimony. While
there is some confusion as to the details of this notice, I find that in 1948 the
Respondent posted upon its bulletin board a notice which, in effect, prohibited
solicitation of any kind in the plant during working hours.` It is not clear
how long this notice remained posted on the bulletin board. It is found, how-
ever, that the rule itself was still in existence in the spring of 1950, and that the
Respondent had made reasonable attempts to notify the employees of the exist-
ence of this rule." Since the rule did not prohibit solicitation on the employees'
own time, it was valid "
Was this valid rule properly or improperly applied to Ward? Whitson testi-
fied that a collection was taken up in the plant during working hours to buy a
watch for Kinney as a Christmas present. Robert Olin King testified that in
March 1950 an employee named Ramsey took up a collection for a sick employee
during working time, but later gave King his money back explaining that he was
not allowed to take up such a collection. He further testified that at Christmas
1950-after the discharge of Ward-the employees were not permitted to take up
a collection for Christmas gifts for their supervisors, but that this was the first
time that such a collection had been prohibited. Jeffries testified that whenever
he found an employee soliciting during working hours, he told the employee to
stop collecting, and to take the matter up with the "day-a-year" plan. He further
testified that he always gave an offending employee at least two such warnings.
When some of his employees took up a collection for flowers for a funeral in
January 1951, he asked them to stop, but did not report the incident to any
superior. He further testified that, in November or December 1951, he refused
to permit his employees to take up a collection to buy him a Christmas present.
Masincupp testified that on one occasion he granted his employees permission
to take up a collection for flowers because he considered it "a worthy cause."
Kinney heard of this, and reprimanded Masincupp for permitting his employees
to take up such a collection during working hours.
Summing up, it is apparent that infractions of the rule against solicitation dur-
ing working time were punished more severely if the solicitation was for union
membership, than if the solicitation was for some charitable or semicharitable
purpose. Indeed, had Ward solicited for some purpose unconnected with union-
ization it is clear that he would not have been discharged. On this ground, the
General Counsel contends that the rule was discriminatorily applied in such a
manner as deliberately to forestall union activities. In Standard-Coosa-Thatcher
Company,8° the employer promulgated a rule prohibiting solicitation during
working hours. Despite this rule, employees were permitted to solicit for various
31 There was some testimony that the notice stated that violation of the rule would
result in automatic discharge . Such testimony was unconvincing and is rejected.
so This finding is based primarily upon the testimony of Wellington that either Hendry,
Parsons, or Kinney instructed the foremen to enforce the rule, and that he thereupon
instructed Livesay, his assistant , to pass this information on to the employees ; and the
testimony of Jeffries that he had explained the rule against solicitation to the employees
under him approximately once each month. Robert Olin King , Bright, Hendry , Masincupp,
and Parsons also testified as to the rule 's existence . Although Whitson, Harrison, Hens-
ley, Ward, Heezell, and Burroughs testified that they had never seen the notice or heard
of the rule, I am nevertheless convinced that such a rule did, in fact, exist.
37 Peyton Packing Company, Inc , 49 NLRB 828, 843. There is no credible evidence
that the rule applied by the Respondent herein recited that solicitation during nonworking
hours was prohibited, nor is there any evidence that the rule was ever invoked against
soliciting during nonworking hours.
as 85 NLRB 1358.
GREENEVILLE CABINET CO ., INCORPORATED 1699
social and charitable purposes . However, an employee who solicited for a union
during working hours was discharged . The Board found the rule had been
discriminatorily applied in order to discourage self -organization , and that the dis-
charge therefore violated the Act. In so deciding , the Board specifically rejected
the view that an employer may legitimately distinguish between union solicita-
tion and other types of solicitation , or that there can be no discriminatory appli-
cation unless the rule is applied discriminatorily as between different unions.
Those principles must be applied to the instant case. Accordingly , although
there is here no evidence that the Respondent permitted any antiorganization
group or rival union to solicit during working time, I find that the severe penalty
of discharge visited upon Ward without prior warning, as contrasted with mere
reprimands administered to employees who solicited for other projects constituted
an illegal discriminatory application of the no-solicitation rule. In view of the
Respondent 's union animus, Ward 's known union activities , the timing of Ward's
discharge during the Union's campaign , the failure to warn Ward concerning
the no-solicitation rule, the disparity of treatment accorded other violators of
the rule, and Kinney 's intimation that Ward 's reinstatement would depend upon
action by the Board , I am convinced and find that the Respondent was not actually
concerned with any possible interruption to production which Ward's solicitation
might have caused , but instead was intent upon ridding its plant of a known
union adherent . It follows that the Respondent 's discharge of Ward and its
refusal to reinstate him were violative of the Act.
6. The discharge of Ellis Whitson
a. Facts
Ellis Whitson was first employed by the Respondent in September 1948 on
the day shift. In February 1949 he was laid off. In November 1949 Whitson
was reemployed on the night shift as an off-bearer in the finishing department
under Assistant Foreman McDonald. His duties were to roll cabinets from
one place to another , and he sometimes spent time spraying or finishing cabinets.
Approximately 3 or 4 weeks before his discharge, Whitson learned about the
Union. Thereafter, he talked to approximately 12 or 15 employees, and en-
deavored to get them to join the Union. According to Whitson, most of these
conversations took place on the streets of Greeneville , in the homes of the
employees , or at the plant during smoke break or lunch hour.
As previously related, a week or 10 days before Whitson's discharge, Mc-
Donald told him that if he was soliciting on the Respondent's time he had
better stop. Whitson asked McDonald if it would be permissible for him to
collect for flowers or a present for some of the employees . McDonald walked
off without answering.
Whitson testified that on May 3, 1950 , he was summoned to the office, where
he found Parsons and McDonald . Parsons said that he had two sworn state-
ments that Whitson was soliciting on company time, and he would have to dis-
charge him . When Whitson requested to see the statements , Parsons replied
that he would produce them if Whitson "stood him a trial." Parsons further
remarked that "there wasn 't no need to try to get a union there. The Company
was too big, we could never do it ." A few days later , when Whitson returned
to the plant to get his pay, he asked Hendry for his separation slip . Hendry
promised to send it. A week later, Whitson again returned to the plant and
asked Hendry for his separation slip, and Hendry again promised to send it.
However, Whitson testified that he never received such a slip. With regard to
1700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
solicitation, Whitson admitted that a week before his discharge he had held a
discussion regarding the Union with employees Charles Fanning and Billie
Shaw, which lasted "about a minute." This was during working hours. Whitson
testified that he possibly had some union cards with him at the time, but denied
that he handed a card to either Fanning or Shaw, or that he had asked them to
sign such an application. In addition, approximately a week or a week and a
half before his discharge, during working hours, Whitson was rolling cabinets
to another employee, Rice, who was finishing the cabinets. Whitson talked to
Rice about the Union. According to Whitson, the conversation took about half
a minute; "just a couple of words and I turned and walked out." Whitson testi-
fied that it was possible that he had also spoken to Rice on the night of his dis-
charge, but had no recollection of such a conversation.
Parsons testified that at about 9 p. in. on May 3, 1950, after he had left the
plant, he received a telephone call at his home from McDonald stating that he
was having trouble at the plant with one of the employees, who was disturbing
several others and had had a quarrel with one; and that it appeared that it
might lead to a fight. Upon receiving this report, Parsons went to the plant
where he talked with McDonald. McDonald reported that Whitson had
quarreled with Rice or some other employee on the rub line (adjacent to Whit-
son's place of work) and had also disturbed another employee. Parsons asked
McDonald if the employees had stated what the trouble was about. McDonald
replied that Whitson was trying to force them to sign a union card and they
were reluctant to do so. Parsons inquired if the employees would make a state-
ment to that effect, and McDonald said that employee Billy Shaw was willing
to do so. Parsons then talked to Shaw and was told by Shaw that he had been
disturbed by Whitson "several times" although his place of work was 150 feet
away from that of Whitson, and that he did not want "any part of this union
activity." Parsons then drew up and Shaw signed a statement which read as
follows :
May 4, 1950
I, Billy Lee Shaw, #504, was approached by Ellis Whitson to sign a Union
Card during Working Hours of 5/4/50 at Greeneville Cabinet Company.
After this, Parsons observed Whitson, and noted that he was absent from his
place of work as long as 10 minutes at a time at on at least 2 occasions. Parsons
then summoned Whitson to the office, and told him that he had observed him
for several minutes during the evening and that he had left his job, and that he
had statements to prove that he was disturbing others by soliciting for the
Union during working time, and that this was contrary to the Respondent's rules.
He asked Whitson if he denied it. Whitson replied : "Well, no, I don't deny it "
Then, in the presence of McDonald, Parsons discharged Whitson. Parsons
denied telling Whitson that it was hopeless to try to get a union in a plant, as the
Respondent was too large. His denial in this respect is not credited.
Hendry testified that the day after Whitson was discharged Parsons informed
him that Whitson had had "trouble" with the boys in the department the night
before, arguing and so forth, and had not been attending to his work, and that
Parsons had discharged him. Hendry did not recall any incident in which
Whitson had requested a separation slip.
The Respondent's copy of Whitson's separation slip indicates that he was
discharged "for union soliciting during working hours." McDonald, Rice, Shaw,
and Fanning did not testify. There was evidence indicating that Rice was dead
and Shaw was in the Armed Forces. It is found that McDonald warned Whitson
about violating the no-solicitation rule approximately a week or 10 days before
GREENEVILLE CABINET CO., INCORPORATED 1701
his discharge ; that because of the reports of Shaw 89 and McDonald and the
failure of Whitson to deny the accusations, Parsons had reason to believe that
Whitson had solicited employees to join the Union during working hours on the
night of his discharge and thus interefered with their work ; and that Parsons
thereupon discharged Whitson.
b. Contentions and conclusions
As in the case of Ward, discussed above, the General Counsel maintains that
there was no clear-cut rule against solicitation during working time, and that
even if such a rule existed it was enforced in a discriminatory manner. Con-
versely, the Respondent contends that the rule existed, that it was properly ap-
plied, and that Whitson was properly discharged for violating the rule.
It is clear that Whitson's interest in the Union was known to McDonald.
This was shown by McDonald's warning to Whitson that if he was soliciting on
the Respondent's time, he had better stop. It is accordingly found that the Re-
spondent had knowledge of Whitson's union activities.
The issue involved in Whitson's discharge is simply whether or not the Re-
spondent applied its no-solicitation rule in a discriminatory manner against
Whitson. There are certain factors which indicate that the Respondent's moti-
vation was discriminatory. These are Whitson's known union activities ; the
Respondent's union animus ; the timing of the discharge during the Union's cam-
paign ; and Parsons' remarks to Whitson at the time of the discharge. On the
other hand, whether the General Counsel has proved disparity of treatment and
discriminatory application of the no-solicitation rule against Whitson is doubtful.
For Whitson-unlike Ward-had been previously warned against violations and
Parsons had good reason to believe that, despite this warning, Whitson had per-
sisted in the forbidden conduct. Moreover, Parsons also had cause to believe
that this most recent violation had disturbed other employees and actually inter-
fered with production Under these circumstances, it can hardly be confidently
claimed that Whitson would have received a lesser penalty had his solicitation
been unconnected with the Union. Parsons' reactions to the reports he received
concerning Ward were consistent with a genuine desire to eliminate obstructions
to production, and were not indicative of disparate treatment towards other vio-
lators of the rule. Although the case is not without difficulty, it is found that the
General Counsel has failed to prove by a preponderance of the evidence that the
discharge and failure to reinstate Whitson were violative of the Act.
7. The transfer and resignation of Harvey Waddell
a. Facts
Harvey Waddell began to work for the Respondent in June 1947 at a rate of
60 or 65 cents per hour. After 3 or 4 weeks, he was transferred to patching in
the finishing department. At the end of 11 months, Waddell was assigned to
inspecting at the end of the console assembly line and his pay was increased 5
cents per hour . This was the final inspection immediately prior to packing, and
it was his duty to see that the finished cabinet was in condition to be shipped.
Waddell continued in this job until he left the Respondent's employ on May 25,
1950, at which time he was earning 90 cents per hour. He was under the super-
$9 Whitson's discharge occurred on May 3, 1950, and Shaw's statement is dated May 4,
1950. In the absence of any explanation, I reject Parsons' testimony that Shaw signed
the statement prior to Whitson's discharge. Instead, it is found that, prior to the dis-
charge, Parsons had only a verbal report from Shaw, and that he did not obtain a written
statement from Shaw until the following day.
250988-voL 102-53-108
1702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vision of both Wellington and Minturn. When asked what kind of a worker
Waddell had been Wellington testified : "He did his job." Minturn described
Waddell as a "very good worker." Waddell joined the Union on March 23,
1950. He spoke to approximately 40 employees with respect to joining the Union,
and succeeded in persuading about 10 of them to join. He also attended 3 or 4
union meetings.
Waddell testified that on May 25, 1950, he came to work as usual at about
7 a. in. Just before 8 a. in., Wellington came to him and said: "I have orders
to put you in repairs this morning." At first, Waddell did not pay any attention
to Wellington, but allowed him to move off 5 or 6 steps. Waddell then hollered
to Wellington : "Hey, what do you mean?" to which Wellington retorted : "You
understood me the first time. I got orders to put you in repairs this morning."
Waddell replied: "I've got orders to punch the clock." Waddell then punched
out on the time clock at exactly 8 a. in., went to the personnel office, and told
Hendry what had happened. Hendry said: "You ought to reconsider this,"
but Waddell refused, remarking that "everybody in the plant couldn't be my boss.
I was leaving." Waddell thereupon left the plant. A few days later, in re-
sponse to a request from Kinney, Waddell went to visit Kinney in the hospital.
Kinney said: "The boys tell me that they carried my orders out to a T up at
the plant." Waddell replied : "Well, I don't know what your orders are, but I
can tell you what they done. Wellington came down and told me he had orders
to put me up in repair and I didn't figure he was my foreman and I didn't take it,
I punched out." Kinney replied: "I don't blame you a damn bit, be [Welling-
ton] didn't have any business down there. Minturn didn't do a damn thing I
told him to do." Waddell offered to return to work in the morning, but Kinney
said that he thought he (Kinney) would be well enough to return to the plant in
a few days, and advised Waddell to wait. Accordingly, a few days later, Waddell
went to see Kinney at the plant but Kinney said that he had more men than he
could use, that he was going to have to lay off some, and that he could not
reinstate Waddell. Waddell also saw Hendry with respect to the possibility of
reinstatement, but Hendry merely referred him to Kinney.
Wellington testified that he very seldom had occasion to give Waddell in-
structions as Waddell worked principally under Minturn. On the morning of
May 25, 1950, Hendry called Wellington to his office and said that Kinney's
orders were to place Waddell "up with the other patchers at the end of the
finishing room, or the end of the rub line, which is the same thing" or else
to get rid of him. Wellington then told Waddell that he had been ordered to
transfer him from "inspection and touch-up down below there at the end of the
radio line to the end of the rub line or the end of the finishing line, but still on
a patch job." Waddell replied that his feet would not permit his standing on
them all day and that he could not do the job. Wellington retorted : "It is
that or else." According to Wellington, Waddell then checked out and went to
Hendry's office.
Minturn testified that in the spring of 1950, Minturn and Parsons decided to
move Waddell to "the head of the production line" where he would inspect
empty cabinets rather than completed units. This decision was made after
consulting Wellington, in accordance with a program of rotating the inspectors
which had existed for some time. According to Minturn, other inspectors had
been rotated and "it had come around to (Waddell's) turn." He further testi-
fied that Wellington wanted to transfer one of his touchup men to another
position. This left an opening and Parsons, Wellington, and Minturn decided
that Waddell would be the most likely candidate to fill the opening. According
to Minturn, the contemplated transfer would not have involved any change in
GREENEVILLE CABINET CO., INCORPORATED 1703
compensation nor required greater physical exertion than the job then being
performed by Waddell, indeed , the work was substantially similar . Minturn
did not know who was going to take Waddell's place at the end of the console
assembly line. Minturn testified that he told Waddell that it had been decided
to move him to the head of the line and that his duties would be the same.
Waddell replied, in effect, that this was the end as far as he was concerned, and
walked away towards the personnel office . Minturn further testified that he
was "quite stunned" by Waddell's reaction.
Hendry denied that he had given any orders to Wellington with respect to
shifting Waddell, and testified that he knew nothing about the contemplated
change. At 8 a. in. on May 25, 1950, as Hendry came to work, he saw Waddell
near the time clock, and Waddell informed him that he was quitting. Hendry
asked Waddell to reconsider, but Waddell refused to do so. Hendry then
checked with Minturn who said that Waddell had left because he was going
to move Waddell to another inspection position at the head of the line. Accord-
ing to Hendry, Waddell returned to the plant several times ; his main concern
seemed to be to see Kinney. Hendry further testified that he had nothing to
do with transfers within a department, that no reduction in pay would have
resulted from any transfer, and that it was the Respondent's fixed policy that
employees who had quit or been discharged could not be reinstated without
clearance from Kinney.
Parsons testified that the console assembly line was in the shape of an in-
verted "Y" with an inspector at the head and two inspectors at the end and
that Waddell was one of the two inspectors at the end. Shortly before Waddell
left the Respondent's employ, a bottleneck bad been created on the console
assembly line because too many finished cabinets were being rejected at the
end of the line, and had to be sent back for repair. In many instances, this
required that the component parts inside the cabinet be taken out. Accord-
ingly, production was suffering. Parsons testified that he held a conference
or conferences with Minturn, Wellington, and Foreman Taylor on the subject.
Although no final decision was made and no definite instructions were given,
Parsons recommended that Waddell be transferred. Parsons testified that al-
though Waddell's work was apparently satisfactory, the purpose of the proposed
change was to acquaint Waddell with the operations of the inspector at the
head of the line so that corrections could be made before the cabinet went
through the console assembly line. He also testified that the inspector at the
head of the line was not unsatisfactory but that he thought the problem of too
many rejects might be solved by switching Waddell to the head of the line
and the inspector at the head of the line to the end. He further testified that
he did not know if the inspector at the head of the line was ever moved, but
that the bottleneck was never corrected and that he could not recall if he ever
discussed the matter further with any of the foremen after Waddell left the
Respondent 's employ.
Taylor did not testify. The separation slip supplied by the Respondent indi-
cates that Waddell resigned.
Minturn 's testimony contains several inconsistencies . For example, Minturn
testified on direct examination that it was decided to move Waddell in accord-
ance with a preexisting program of rotating the inspectors. On cross-examina-
tion, however, he described the decision as having been made because Wellington
wanted to shift one of his touchup men to another position, leaving an opening
which it was decided Waddell should fill. Thus, Minturn gave two separate
and inconsistent explanations for changing Waddell's job, neither of which was
substantiated by any other witness. Furthermore, on direct examination Min-
1704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
turn testified that he alone informed Waddell of the decision. On cross-exam-
ination, however, when asked by the General Counsel: "Don't you know that Mr.
Wellington told him?", he replied that he and Wellington had together notified
Waddell." It is therefore found that Minturn's testimony with regard to the
transfer of Waddell is unsatisfactory and unreliable. Parsons told an entirely
different story. In effect, Parsons testified to a "bottleneck" which no other
witness mentioned. According to Parsons, the transfer of Waddell was the
result of his recommendation as to how to remove the bottleneck, but his ex-
planation as to how the transfer of Waddell would help to break the bottleneck
was fuzzy and confused. And if Parsons' story is to be credited, he did nothing
further about the bottleneck after Waddell's resignation, although the bottleneck
continued. Moreover, Parsons' testimony contained several inconsistencies.
For example, he testified that there was no discussion of who was to take Wad-
dell's place, and that this was left up to Minturn and Wellington. On the other
hand, however, he also testified that his suggestion was that Waddell be moved
from the end of the line to the head of the line and that the inspector at the
head of the line be moved to the end. Furthermore, Parsons testified that
there were several employees available who could have taken Waddell's place
with a little training, but also testified that he did not know whether there were
any employees who could have been shifted into Waddell's place other than the
inspector at the head of the console assembly line. On cross-examination, when
asked if there had been more than one discussion between Wellington, Minturn,
Taylor, and Parsons regarding the alleged bottleneck, Parsons answered that
it had been discussed "two or three times," but later, on questioning by the
Trial Examiner, he testified that there had been only one such conference.
Altogether, Parsons' testimony, like that of Minturn, contained many Incon-
sistencies, and was unconvincing. It is therefore rejected. Turning to the
testimony of Wellington, it conflicts with that of Hendry on one point, namely, as
to whether or not Hendry had given any instructions to Wellington with re-
spect to the transfer of Waddell.
Wellington was a more forthright and convincing witness than Hendry.
Wellington's testimony is therefore credited. I likewise credit Waddell's testi-
mony except for his version of his Interview with Kinney in the hospital. As
Kinney was too ill to testify, and no other person was present during this con-
versation, Waddell's testimony with respect thereto must be carefully scrutinized.
If Waddell's testimony is to be believed, it would appear that Kinney contra-
dicted himself, for he bragged that his orders had been carried out "to a T"
but in the same conversation complained that Minturn had not followed his
instructions. Furthermore, as Wellington certainly had the right to give orders
to any employees in his department, I cannot conceive of Kinney remarking
that Wellington had "no damn business" giving instructions to Waddell. I
therefore reject Waddell's testimony with regard to this interview with Kinney
as inaccurate. Under all the circumstances it is found that, on the morning of
May 25, 1950, Hendry instructed Wellington to change Waddell's position,"
that Wellington notified Waddell that the change was to be made, and that Wad-
dell-mainly because he resented receiving orders through Wellington-there-
upon resigned. During the course of the conversation, there was no discussion
40 A further discrepancy in Minturn's testimony : At first he denied that he had discussed
with Hendry the fact that Waddell had returned to the plant seeking reinstatement.
Later, however, he described what Hendry had told him about Waddell's attempt to seek
reinstatement, and related his own reply to Hendry.
41 I find that, whether Waddell was to have been moved to the head of the console
assembly line or to a position on the rub line, in either case, his duties would have remained
substantially the same as they had been.
GREENEVILLE CABINET CO., INCORPORATED 1705
as to whether or not Waddell's pay would be reduced ; in fact, it would not have
been. After having punched out, Waddell told Hendry what he had done.
Hendry urged Waddell to reconsider, but Waddell refused to do so. Thereafter,
Waddell made several unsuccessful attempts to secure reinstatement, including
a visit to Kinney at the hospital. No finding is made as to what occurred during
this visit.
b. Contentions and conclusions
The General Counsel contends that Waddell's union activities were well known
to the Respondent , and that because of these activities the Respondent decided
to punish Waddell by demoting him to a job he had held years before, and that
Waddell 's resignation under those conditions constituted a constructive dis-
charge . The Respondent , on the other hand , maintains that it had no knowledge
of Waddell's union activities , that the proposed transfer was not a demotion, that
it had been decided upon for legitimate business reasons, and that Waddell quit
his job voluntarily.
With regard to the Respondent' s knowledge of Waddell's union activities, it
will be recalled that, during March 1950 , Kinney called Waddell, Robert Olin
King, and W. E. King to his office . During the course of that conference Kin-
ney stated that he had been told that Waddell was the one who started the
Union. Moreover, as discussed above, Minturn told Waddell a few days before
Waddell left the Respondent' s employ that Kinney knew he was In the Union,
that he was ear-marked, and that he was going to have to prove to Kinney that
he was not in the Union. In view of these two incidents, Waddell's attendance
at union meetings which were spied upon by representatives of the Respondent,
and Minturn 's admission that he had heard "plant gossip" to the effect that
Waddell was "interested" in the Union, it is clear, and I find, that Waddell's
support of and interest in the Union was well known to the Respondent.
Did the Respondent, as alleged by the General Counsel, deliberately decide
upon Waddell's transfer in order to punish him for his known union activities?
As noted above, the explanations given by Mintern and Parsons for Waddell's
transfer have been rejected as unlikely. In view of the known union activities
of Waddell, the antipathy toward the Union, and the timing of the transfer
while the Union's campaign was at its height, it might be argued that the transfer
was designed as a punishment. On the other hand, it was not shown that the
transfer would have caused a reduction in pay, or would have resulted in working
conditions inferior to those already enjoyed by Waddell" In view of these
facts, the General Counsel has not proved that the transfer would have been
detrimental to Waddell in any way. Indeed, Waddell resigned principally in
pique-not against the fact of the transfer itself-but because he felt that the
individual who gave him the orders was not the proper person to do so. It is
clear that the transfer itself was secondary in Waddell's mind at the time of
his resignation. In addition, if the transfer was intended as a punishment, it
is difficult to explain why Hendry would have urged Waddell to reconsider.
While the case is not free from doubt, it is concluded that the General Counsel
has failed to prove by a preponderance of the evidence that the proposed transfer
of Waddell was a punishment intended to have been visited upon him because
of his known union activities. Consequently, no constructive discharge has been
shown.
Upon the basis of the above findings of f&ct and upon the entire record in the
case, I make the following: •
u Despite some intimation to the contrary in a remark attributed by Wellington to
Waddell , the record shows that the Job then held by Waddell required him to stand
constantly.
1706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Congress of Industrial Organizations is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Estel
Hensley, Naomi Bowman Hensley," and J. C. Ward, thereby discouraging
membership in Congress of Industrial Organizations, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(a) (3) of the Act.
3. By such conduct, and by keeping under surveillance the meeting places and
concerted activities of its employees, interrogating its employees concerning their
union membership and activities, and threatening and warning its employees to
refrain from engaging in concerted activities, thereby interfering with, restrain-
ing, and coercing them 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.
4. The aforesaid unfair labor practices tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce and are unfair labor
practices affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
5. The Respondent has not discriminated with respect to the hire and tenure
of employment of Ellis Whitson and Harvey Waddell.
Upon the basis of the above findings of fact and conclusions of law and upon
the entire record in the case, I make the following:
Recommendations
It has been found that the Respondent illegally kept under surveillance the
meeting places and concerted activities of its employees, interrogated its em-
ployees concerning their union membership and activities, threatened and warned
its employees to refrain from engaging in concerted activities, and discouraged
membership in the Union by discriminatorily discharging and refusing to rein-
state Estel Hensley, Naomi Bowman Hensley, and J. C. Ward. Because of the
underlying purpose and tendency of this unlawful conduct, it is concluded that
there exists danger that the Respondent will in the future commit similar and
other unfair labor practices. Accordingly, it will be recommended that the
Respondent cease and desist from the unfair labor practices found and from
in any other manner infringing upon the rights of its employees guaranteed in
Section 7 of the Act"
It will also be recommended that the Respondent offer to Estel Hensley, Naomi
Bowman Hensley, and J. C. Ward immediate and full reinstatement to their
former or substantially equivalent positions," without prejudice to their seniority
or other rights and privileges previously enjoyed, and make them whole for any
loss of pay they may have suffered by reason of the discrimination practiced
against them, by paying to each of them a sum of money equivalent to that which
he normally would have earned as wages from the date of the discrimination
against him to the date of offer of full reinstatement, less his net earnings, if
" Although heretofore referred to by her maiden name, Naomi Bowman , she will here-
after be referred to as Naomi Bowman Hensley, her married name.
"N. L. R. B. v. Express Publishing Com any, 312 U. S. 426.
"The Chase Natsonal Bank of the Ci / of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827, 829.
GREENEVILLE CABINET CO., INCORPORATED 1707
any,-during the said period ' Loss of pay shall -be computed in the usual manner
established by the Board."
In order to insure expeditious compliance with the recommended back-pay and
reinstatement order, it will be recommended that the Respondent, upon reason-
able request, make any pertinent records available to the Board and its agents °B
It will also be recommended that the Respondent post the usual notices.
It has further been found that the Respondent has not discriminated with
respect to the hire and tenure of employment of Ellis Whitson and Harvey Wad-
dell. It will therefore be recommended that these allegations of the complaint
be dismissed.
[That portion of the Recommendations contained in the Intermediate Report
which is the same as the Board's Order has been omitted from publication in
this volume. I
46 Crossett Lumber Company, 8 NLRB 440, 497-98.
47F. W. Woolworth Company, 90 NLRB 289. In N. L. R. B. v. The Seven-Up Bottling
Company of Miami, Inc., 196 F. 2d 424 (C. A. 5), the Court of Appeals for the Fifth Cir-
cuit disapproved the so-called "Woolworth" formula. This decision was issued on April
29, 1952. Since that date, the Board has continued to apply the "Woolworth" formula
in remedying illegal discharges. See for example Pierce Brothers Mortuaries , 99 NLRB
1; Technical Porcelain and Chinaware Company, 99 NLRB 21; Robinson Aviation, Inc.,
99 NLRB 244; and Semet-Solvay Division, Allied Chemical and Die Corporation, 99 NLRB
222. The U S. Supreme Court has not yet spoken on the point. Accordingly, with all
due respect for the court which decided the Seven-Up case, I shall follow the Board's
"Woolworth" formula.
48 F. W. Woolworth Company, supra.
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their union member-
ship or activities, keep under surveillance their meeting places or concerted
activities, or threaten or warn them to refrain from engaging in concerted
activities.
WE WILL NOT discourage membership in CONGRESS OF INDUSTRIAL ORGAN-
IZATIONS, or any other labor organization of our employees, by discharging,
or refusing to reinstate them, or in any other manner discriminating in
regard to their hire, tenure of employment, or any term or condition of
employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist CONGRESS OF INDUSTRIAL ORGANIZATIONS, or
any other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the purposes
of collective 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
National Labor Relations Act, as amended October 22, 1951.
WE WILL offer the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions, and make them
whole for any loss of pay suffered as a result of the discrimination against
them :
Estel Hensley Naomi Bowman Hensley J. C. Ward
1708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, remain, or refrain from becoming mem-
bers of the above-named union or any other labor organization, except to the
extent that this right may be affected by agreements in conformity with Section
8 (a) (3) of the National Labor Relations Act, as amended October 22, 1951.
GREENEVILLE CABINET CO., INCORPORATED,
Employer.
By --------------------------------------------
(Representative ) (Title)
Dated --------------------------------------
This notice must remain posted for 60 days from the date hereof , and must
not be altered , defaced, or covered by any other material,
D. GOTTLIEB & Co. and DIE AND TOOL MAKERS LODGE No. 113, INTER-
NATIONAL ASSOCIATION OF MACHINISTS, AFL. Case No. 13-CA-848.
February 27, 1953
Decision and Order
On September 11, 1952, Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of the Act, and recommending that it cease and
desist therefrom, and take certain affirmative action as set forth in
the copy of the Intermediate Report attached hereto. Thereafter,
the Respondent and the General Counsel filed exceptions to the Inter-
mediate Report and 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 proceeding to a three-member panel [Chairman Herzog and
Members Murdock and Peterson].
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby
affirmed.,
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in this case, and hereby adopts the
1 At the hearing , the General Counsel moved to interrogate the Respondent 's plant
superintendent under rule 43 (b) of the Rules of Civil Procedure . This motion was denied
by the Trial Examiner , his reasons therefor being fully set forth in the Intermediate
Report. As the General Counsel made no exception to this ruling, the Board hereby
adopts such ruling without further comment.
The Board does not disagree with the Trial Examiner 's action in this case in not using
statements in the affidavits of Romano , Schmidt, and Jerard in support of the General
Counsel's case -in-chief. However, we note that Trafford Coach Lines, 97 NLRB 938, cited
by the Trial Examiner as a basis for so ruling , was subsequently modified by the Board in
Trafford Coach Lines, 99 NLRB 399, where the Board indicated that a party's previously
sworn statement may, under certain circumstances , have some probative value.
102 NLRB No. 173.