Hassenfeld Bros., Inc.

National Labor Relations Board - Board Decisions

Nov 2, 1949

86 N.L.R.B. 1187 (N.L.R.B. 1949)

In the Matter of EDII'IRE PENCIL COMPANY, DIVISION OF HASSENFELD
BROS., INC., and INTERNATIONAL WOODWORKERS OF AMERICA, CIO
Case No. 10-C=249.-Decided November 2, 1949
DECISION
AND
ORDER
On January 31, 1949, Trial Examiner Martin S. Bennett 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 Inter-
mediate Report attached hereto.' He also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint and recommended dismissal of these allegations. There-
after the Respondent and the General Counsel filed exceptions to the
Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this proceeding to the under-
signed three-member panel [Members Houston, Reynolds, and
Murdock].
The Respondent's request for oral argument is hereby denied, as the
record and briefs, in our opinion, adequately present the issues and the
positions of the parties.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs filed by the Respondent
and the General Counsel, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, except. insofar as they are inconsistent with this Decision
and Order.2
I Section 8 (1) and (3) of the National Labor Relations Act, which the Trial Examiner
found was violated , is continued in Section 8 (a) (1) and ( a) (3) of the Act, as amended
by the Labor Management Relations Act, 1.947.
2 The Trial Examiner , in his Intermediate Report , inadvertently stated the date of the
Board election in Case No. 10-R-2606 as both April 27, 1.947, and April 24, 1947. We
find the date of April 24, 1947, to be the correct one.
86 N. L. R. B., No. 118. 1187
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. We agree with and adopt the findings of the Trial Examiner that
Plassie Wheeler, Milton Overcast, Louise McBride, and Louise Chock-
ley were supervisors within the meaning of Section 2 (11) of the
Act. In addition to the facts relied upon by the Trial Examiner to
support these findings, we rely upon employee Allen's uncontradicted
testimony that Wheeler and Overcast requested him to work on a
Saturday (ordinarily not a working day) and that Wheeler trans-
ferred him from the pointing machines to the tipping machines; and
McBride's admissions during cross-examination that, when she "wasn't
doing anything else," she watched over the work to see that the girls
in her department were kept busy, and that she would report to her
supervisor any girl who wasn't performing her work properly.
2. The Trial Examiner' found that the remarks of T. B. Moon,
manager of the local office of the Tennessee State Unemployment
Service, fall within the realm of protected opinion. We cannot agree.
Employee Hayworth testified without contradiction that Moon told
him that if the employees "struck and were out of work, he couldn't
recommend us for any job or compensation," and that it would then
be difficult for them to obtain employment in the town. Not only
was such a remark beyond the purview of his official duties as a public
servant and State agent in the unemployment field, but we believe
it was tantamount to a threat of reprisal falling outside the scope of
protected free speech. While we deplore such misuse of State-con-
ferred authority, the record does not contain sufficient evidence to
support a finding that the Respondent authorized or ratified Moon's
statements and thereby made Moon its agent as alleged in the com-
plaint.3 As the Respondent was not bound by Moon's conduct, and
as Moon is not a party respondent herein, we shall adopt the Trial
Examiner's recommendation that this allegation of the complaint be
dismissed.
3. The Trial Examiner found that the Respondent authorized and
ratified the address made by State Senator James Bomar to some of
the Respondent's employees on April 23, 1947. The Respondent has
excepted to this finding. We find merit in this exception. Bomar
spoke after working hours, at the request of the employees. Moreover,
in introducing Bomar to those employees who attended, Kingree, the
Respondent's attorney, emphasized the "hands-off" policy of the Re-
spondent and specifically stated that "any opinion voiced by Mr.
Bomar is his opinion." Accordingly, we find that Bomar was not act-
ing as an agent of the Respondent while speaking to the Respondent's
employees.
3 Compare Matter of Amory Garment Company, Dic., SO N. L. R. B. 182.
EMPIRE PENCIL COMPANY 1189
4. The Trial Examiner found that the Respondent violated Section
8 (1)' of the Act by questioning its employees, as detailed in the Inter-
mediate Report, concerning their views on the Union, whether they
favored it, what they knew about the Union, whether they had joined,
if a family member of one had joined, where union meetings were
being held, and if they had attended union meetings.4 In excepting
to the Trial Examiner's findings in these respects, the Respondent
characterizes the incidents relied on by the Trial Examiner as "but
casual conversations against a normal background of friendly associa-
tion over a long period of years which robs the testimony of any indi-
cation of interference, restraint or coercion within the intent of Sec-
tion 7 of the Act." The Respondent further maintains that the inci-
dents of interrogation found by the Trial Examiner fall within
the Area of free speech protected by Section 8 (c) of the Act. We
find no merit in the Respondent's exception.
We predicate our decision in this respect upon the same reasoning,
fully explicated in Matter of Standard-Coosa-Thatcher Company,5
that has always been the basis of our findings that interrogation of the
character engaged in by the Respondent constitutes conduct violative
of Section 8 (1) of the Act. As we there pointed out, such interroga-
tion is not only an unwarranted invasion of the employees' right of
privacy, but it also leads an employee reasonably to believe that his
employer contemplates some form of reprisal, once the desired infor-
mation is obtained. Thus, it constitutes interference, restraint, and
coercion of the employees in the exercise of the rights guaranteed them
in Section 7 of the Act.
In this case, as revealed in the Intermediate Report, during the
period of the Union's campaign and continuing to the eve of the repre-
sentation election of April. 24, 1947, the Respondent's supervisors, in-
cluding Secretary-Treasurer Henry Hassenfeld, General Manager
Harold Hassenfeld, Superintendent Harris, Foreman Smotherman,
and Foreladies McBride and Chockley, accosted certain individual
employees in the plant and engaged them in conversations concerning
the Union, during which questions were put to the employees which
were calcuated to cause them to disclose their union affiliations, sym-
pathies, and activities. In a number of instances, employees were in-
dividually directed by their respective supervisors to report to the
plant office, where they were interrogated by one of the Respondent's
officials. Some employees were questioned more than once. In addi-
" The Trial Examiner ' s findings in this respect are based upon the credible testimony
of employee witnesses . In only a few instances (lid any of the management representatives
found to have engaged in such acts of interrogation deny making the statements attributed
to him.
5 85 N . L. It. P, .. No. 224.
867351-50-vol. 86-76
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, Foreman Overcast threatened employee Ray that if she withdrew
from the Union , Superintendent Harris would let her keep her job,
and if not , he would fire her.
The reasons which impel us to consider interrogation per se violative
of the Act , as outlined in the Standard -Coosa-Thatcher case, are even
more cogent here . Where interrogation takes place in a context
which includes such events as Harris ' threat to Ray of the loss of her
job unless she withdrew from the Union and the discriminatory dis-
charge of Redd , employees are more than ever led to believe , and right-
fully so, that the questioning is linked with contemplated reprisals by
the employer.
Accordingly, we find that the widespread interrogation of employees
and the threat of economic reprisal made to employee Ray constitute
indepedent violations of Section 8 (a) (1).6 Nor, as we have re-
peatedly found , is such conduct permissive as the expression of "views,
arguments , or opinion ," within the meaning of Section 8 (c).7
5. The Trial Examiner found that the Respondent violated Section
8 (1) of the Act by urging and directing employees Ray, King, and
Wright to go to Bomar's office for the purpose of withdrawing from
the Union. At the same time , Ray and King were instructed to supply
the Respondent with copies of their union resignations. In addition,
Superintendent Harris directed Wright a nd several other employees
to circulate around the plant during working hours and persuade the
employees to withdraw from the Union." We agree with and adopt
the Trial Examiner 's finding that this conduct was violative of the Act.'
6 In so holding, however, we do not rely upon Superintendent Harris' request that
Foreman Phelps supply him with the names of employees favoring the Union, as Phelps
did not carry out this request. Matter of J. A. Booker d/b/a Atlantic Stages, 78 N. L.
R, B. 553. Nor do we adopt the Trial Examiner's finding that General Manager Harold
Hassenfeld's statement to employee Wright "that if the Company was going to give a
raise, it would rather give it to the workers than the Union" was violative of Section 8 (1)
of the Act. We do not find this statement of the Respondent's preference to be coercive
or otherwise violative of the Act.
7Matter of Minnesota Mining c(; Manufacturing Coni.pany, 81 N. L. R. B. 557; Matter
of Waynline, Inc., 81 N. I,. R. B. 511 ; and Matter of Ames Spot Welder Co., Inc., 75
N. L. R. B. 352, footnote 6.
1In this connection, we note Superintendent Harris' undenied testimony that, after the
advent of the Union, the Respondent had trouble keeping employees at their machines, and
that he issued instructions that the employees should be kept working on their jobs "as_
much as they possibly could." Moreover, Wright had been previously reprimanded by
Barris for having placed a note concerning the Union on the machine of employee Ander-
son. Harris followed the oral complaint with it note to Wright on the subject, although
he had never before directed a written reprimand to any employee. It thus appears that
Harris' direction to Wright and others to circulate during working hours contravened his
own orders.
Matter of National Biscuit CoinpaniJ, 83 N. L. R. B. 79.
We do not adopt the finding of the Trial Examiner that the submission of the with-
drawal letters to the Union was chargeable to the Respondent, or that such submission,
in itself, constituted an additional violation of Section 8 (1). The Trial Examiner based
this finding, in part, on the fact that the Respondent had appointed James Bomar as its
agent on one occasion £o address its employees. However, we have found that Bomar was
EMPIRE PENCIL COMPANY 1191
. 6. The Trial Examiner found that the Respondent discriminatorily
discharged employee James Redd on April 4, 1947, in violation of
Section 8 (3) of the Act. Redd was an experienced hand,"' who had
been given three wage increases, and whose work had never been criti-
cized. On the contrary, his firing of the boiler had been complimented,
and Harris had told him that he could have the job in the boiler room
as long as he wanted. At the time of the Union's advent in the Re-
spondent's plant, Redd was operating the boiler on the day shift.
On the night shift, the boiler was run by employee Deason, an elderly
man of slight build. When the union campaign commenced in the
Respondent's plant, Recld immediately became one of the most active
adherents of the Union. He was the first person spoken to by the
union organizer. He also distributed and turned in signed application
cards for the Union. In addition, he arranged for the holding of a
union meeting at his mother's home. Furthermore, when Moon
appeared at a union meeting and sought to speak, Redd protested his
presence and was instrumental in having him excluded. Redd's union
sympathies were admittedly known to the Respondent.',.
The union campaign commenced on Wednesday, March 12, 1947.
Harold Hassenfeld was then in New York conferring with the Re-
spondent's_ofcials. He was informed of the union activity by long
distance telephone.12 Hassenfeld returned to the plant on March 15
and discussed the union campaign with Harris and others. At the
same time, Hassenfeld told Harris that the Respondent's officials in
New York had decided to curtail the carpentry crew.13 On the fol-
lowing day, a Sunday, Hassenfeld called a meeting at the plant of
supervisors and "key personnel." At this meeting, activities of the
Union were discussed. Approximately a week later, it became un-
necessary to operate the boiler at night. Accordingly, Deason, the
night fireman, was transferred to the shaping department and Redd
remained on duty during the day as the only fireman. As pointed
not the Respondent ' s agent when he made the speech, and there is no other persuasive
evidence of his agency at any other time . Moreover , there is insufficient evidence to war-
rant a finding that the Respondent caused the withdrawal letters to be sent to the Union.
10 Before working for the Respondent . Redd had worked in the dry kiln of another
pencil factory , and had also operated a box -making machine , a tipping machine, and a
header . While in the Respondent ' s employ he ran a tipping machine and a header, worked
on the carpentry , crew , and fired the boiler.
U About 3 weeks before Redd 's discharge (which would be approximately 2 days after
the Union ' s organizer appeared at the plant ), Redd informed Harris that he had joined
the Union and didn 't think anyone could talk him out of it. Harold Hassenfeld admitted
that he learned that Redd was active in behalf of the Union "a week or 2" after Hassen-
feld's return from New York-which would be between March 22 and 29, 1947.
'z The informant was either Harris or A. H. Ray, assistant secretary of the Respondent.
" While Hassenfeld testified that this decision was made in New York, he did not state
whether it was made before or after the Respondent became aware of the Union ' s advent
in the plant.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out by the Trial Examiner, Deason was the logical man for transfer,
because he was physically unable to perform the heavy work on the
day shift in the boiler room,14 he wished to be relieved on his duties
as fireman, he worked before in the shaping department, and it was
Redd who had received instructions on the operation of the newly
acquired boiler from the mechanic who installed it. On or about
March 29, shortly after the Union had filed a representation petition,15
Harris told Redd that help was needed on the carpenter crew, and.
asked Redd "to go back out there and help him." Redd agreed, and
was accordingly assigned to carpentry work. Deason simultaneously
was transferred from the shaping department to the boiler room day
shift.
In examining the facts surrounding the transfers of March 29, we
detect evidence of Harris' bad faith. That Redd was better able to
handle the fireman's job than the elderly Deason cannot be seriously
questioned. After Deason replaced Redd as day fireman, it was neces-
sary for Allen to bring in the coal for Deason.16 Moreover, it must
be recalled that Deason, only a week earlier, had been relieved of the
boiler room work at his own request. Harris obtained Deason's con-
sent to returning to firing the boiler by confronting Deason with a.
"Hobson's choice" of the boiler room job or no job at all.17 It is there-
fore not surprising that Deason agreed. Deason was, according to
Harris, "able to do most any kind of work." Yet at the same time he.
told Deason that there was no work available for him to do other than
firing the boiler, Harris informed Redd that the carpenter crew needed
additional help. Furthermore, in view of the fact that Harris knew
at this time that the carpentry crew would soon be laid off, his state-
ment to Redd that the crew needed help was definitely and intention-
ally misleading.18 As Redd was the only fireman, and as the boiler
room was essential to the plant's operations, it obviously would be
14 while Redd was on the clay shift in the boiler room, he brought coal in a wheelbarrow
from a pile approximately 50 feet away. He made about 15 or 20 such trips daily with a
load weighing in the neighborhood of 200 pounds per load, and brought in "enough coal
to keep from hauling it in the evening." In addition, Redd also made several trips each day
for the purpose of removing ashes to a nearby pile.
11 Case No. 1.0-R-2606 , filed March 21, 1947.
16 Further evidence of Deason's physical inability to handle the fireman's job is found in
the fact that, during the summers of 1947 and 1948, Deason found it necessary to obtain
a leave of absence for several months because of the heat, and a younger man had to be
assigned to firing the boiler during these periods.
17 Harris testified "I talked to him at the end-sometime during this week and asked
him if he wanted the boiler in the daytime job on the boiler and told him that it was-
it looked like the only thing that was loose at the time for him to do-was either put him
back on the boiler or let him off and he said he would like to have the boiler job back."
(Emphasis supplied.)
11 Because of this fact , we consider Redd ' s consent to the transfer immaterial.
Harris further misled Redd by intimating that Deason desired to return to the boiler-
room. Actually , as shown above , Deason ' s "request" for the boiler assignment was the-
only avenue left open to him other than the loss of his job.
EMPIRE PENCIL COMPANY 1193
difficult for the Respondent to find an excuse for laying off Redd so
long as he retained the boiler room job. No such impediment, how-
ever, existed with respect to the workers on the carpentry crew. The
conclusion is inescapable that the transfer of Redd to carpentry work
on or about March 29 was motivated by his known union activities,
and was accomplished in order to make it simpler for the Respondent
to get rid of him. We so find.19
Having effected the transfer of Redd to the carpenter crew, in order
to lay him off, the Respondent soon carried out the remainder of its
plan by laying off Red and four other union members of the crew on
April 4, 1947, reducing the carpentry personel to Hittson (head of
the crew) and a part-time driver.20 At the time, the Respondent was
planning to have the carpentry crew lay some hardwood flooring and,
in fact, had material on hand for this project.21 The record also
reveals that, after the reduction of the carpenter crew, employees
Allen, Wells, and Alexander worked at nights insulating a wall-a
type of work previously performed by the carpentry crew-and that,
during the last week of May 1947, Sanford McGowen (an employee
hired approximately 6 weeks previously) was assigned to the car-
pentry crew for a week. Moreover, at least three new employees were
hired during the next few months and assigned to the carpentry crew.22
Under all the circumstance, including the Respondent's anti-union
bias, we are convinced and find, as did the Trial Examiner, that the
Respondent's discharge of Redd was discriminatory.
7. The Trial Examiner found, and we agree, that the Respondent
did not discriminate with respect to the hire and tenure of employ-
ment of employee Juanita Harrell. Harrell quit the Respondent's
employ on April 7, 1947, rather than accept a transfer from the tipping
department to the packing department. The Respondent maintains
that Harrell voluntarily terminated her employment, while the Gen-
eral Counsel insists that she was constructively discharged. The
General Counsel's position rests on the theory that the proposed trans-
fer was discriminatory and was motivated by Harrell's union activi-
10 We do not adopt the Trial Examiner ' s finding that this discriminatory transfer of
Redd on or about March 29 , 1947, in itself , constituted a violation of Section 8 (1) of the
Act, as it was not alleged as such in the complaint.
20 Although one union member of the crew , employee Allen , was retained in the Respond-
ent's employ, we do not think that fact alone disproves the Respondent 's discriminatory
motive in laying off Redd.
21 According to Harris ' undenied testimony , the flooring plans were abandoned , but the
decision to drop the project was not made until after the reduction of the carpentry crew.
22 Herman D, Coffey was employed from May 22 to August 16, 1947, and Thomas F.
Martin was employed on March 10 , 1947. Martin is apparently still in the Respondent's
employ. The Respondent maintains they were hired solely because of their ball playing
ability, in order to strengthen the Respondent 's soft ball team.
Harry Lee Stem was hired from July 7 to 31, 1947 . The Respondent asserts that he
was a schoolboy on summer vacation.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ties. However, the transfer was necessitated by the return of Allen
to the tipping department at his own request-and Allen was also a
known union sympathizer. Moreover, the record supports the Trial
Examiner's findings that Harrell was not told that the transfer would
.mean a reduction in her wages, that she had previously refused to
perform some of her duties without proper justification, that she
refused to transfer because of her personal distaste for Forelady Mc-
Bride regardless of the wage she would have been paid, and that
this dislike for McBride was not known to the Respondent.
The General Counsel argues that the Trial Examiner erred in not
resolving the conflict between the testimony of employees Hayworth
and Allen on the one hand and Harris and Foreman Wheeler on the
other hand, concerning certain conversations alleged to have taken
place after Harrell's discharge. We find no merit in this contention 23
If credited, the most that Hayworth's testimony would support would
be a finding that, during the Union's campaign, Harris stated that
Harrell and two other employees were devoting too much time to
union activities, that they weren't performing their work properly
and consequently Were in danger of losing their jobs.24 Allen's testi-
mony, if believed, would merely establish that, immediately after the
election (about 16 days after Harrell quit) Foreman Wheeler stated
that he had to get Harrell out of the tipping department because "she
was hell" and her union activities were interfering with the depart-
ment's operations;25 and that a similar statement was made by Wheeler
23 Board Member Houston believes that the Trial Examiner erred in not resolving this
conflicting testimony. Ile would credit the testimony of Hayworth and Allen, which, in
his opinion, unquestionably demonstrates the discriminatory motive behind Harrell's trans-
fer. Based on this testimony, he would reverse the Trial Examiner's finding that Juanita
Harrell' was not discriminatorily discharged and would order the 'Re§pondent to reinstate
her with appropriate reimbursement.
24 With respect to this conversation, Hayworth testified
Trial Examiner BENNETT. Tell us what he said as he told it to you.
A. * * * he said there is a lot of slowing up of work here and some were being
shifted around and some could lose their jobs.
Q. Did he mention any specific names?
A. Yes.
Q. Who did he mention?
A. Tames Redd was one, and Willie Frank Thomas, and Juanita Harrell.
Trial Examiner BENNETT. How did he happen to mention their names?
The WITNASS. He just mentioned these who weren't doing the work and would'
lose their jobs and would be transferred out. That was brought in to it. That it
would work hardships on them.
Q. Did lie snake any reference to the union activities of those you mentioned?
A. Yes.
s s s s s s s
Q. * * * What did he say about the activities of James Redd, and Willie Frank
Thomas and Juanita Harrell?
A. He seemed to believe that they were devoting too much time to the organization
and the working of it.
22 Allen testified, as to this first conversation, as follows :
Q. What did he say about it?
EMPIRE PENCIL COMPANY 1195
4 or 5 months later.26 It seems to us that Wheeler and Harris were
motivated primarily by a desire to improve efficiency, rather than to
punish Harrell or discriminate against her. Accordingly, we agree
with the Trial Examiner's conclusion that, even if the testimony of
Hayworth and Allen is credited, the preponderance of evidence re-
quires a finding that Harrell. quit her job rather than accept a transfer
which was not discriminatory. We so find.
THE REMEDY
The record reveals that Redd accepted a permanent position ap-
proximately 3 months before the hearing,17 and at that time deter-
mined that he no longer desired reinstatement with the Respondent.
Accordingly, We adopt the recommendation of the Trial Examiner
that the Respondent should not be required to reinstate Redd.
However, Redd testified that, within a few days after his discrim-
inatory discharge, he became ill and physically incapacitated to per-
form his work. This illness lasted for several months. We are of
the opinion that the Respondent should not be required to make Redd
whole for any loss of pay attributable to his illness. Accordingly,
we shall order the Respondent to make Redd whole for any loss of
Footnote 25-Continued
A. He said he had to do something with her to get her out of there_ and he said'
he could never get the tipping department to turn over, and he said she was hell, and
that was all. (continued)
a 4 P a 4 a
By Mr. WisE.
a
Q. Well, did he say what he meant when he said he would never get the tipping.
room to turn over?
A. He didn't say what he meant.
Q. Did he say anything about Juanita Harrell's union activities?
A. He just saidshe was in the Union, is all.
21 As to the second conversation. Allen testified :
Trial examiner BENNETT. Give us that conversation as hest you can.
A. He was just talking about the Union when Juanita Harrell's name came up,.
and he got to talking about Juanita, about sending her upstairs.
By Mr. WisE.
Q. What did he say about her?
A. He said he got her out of there, and he knew he could do something with her,.
and I said "Mr. Wheeler, I don't like that-"
a a a o a a s
By Mr. WisE.
Q. Mr. Allen, did he say, or make any explanation as to what he meant when he
said he had to get her out of there?
A. No, sir, he didn't do that, then.
Q. Well, did he do it any time?
A. I just couldn't recall.
Q. Well, state whether or not he made any statement that he had to get her out
of there due to her activities in the Union.
A. He told me that on the first occasion.
Q. He told you that on the first occasion when he talked to you about getting
Juanita Harrell out of the tipping room?
A. Yes, sir.
"Redd testified on September 16, 1948. Thus, the approximate date of his obtaining
permanent employment elsewhere would be June 15, 1948.
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay suffered by reason of the Respondent's discrimination, by pay-
ment to him of a sum of money equal to that which he would have
earned from April 5-, 1947, the date of the discrimination against him,
to the date on which he abandoned any desire to return to the Re-
spondent's employ, less his net earnings during said period, and also
less any period during which he was physically incapacitated for work
by reason of illness.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Empire Pencil
Company, Division of Hassenfeld Bros., Inc., Shelbyville, Tennessee,
its officers, agents, successors, and assigns shall
1. Cease and desist from :
(a) Discouraging membership in International Woodworkers of
America, CIO, or any other labor organization of its employees by
discriminatorily discharging or refusing to reinstate any employee,
or by discriminating in any other manner with regard to hire and
tenure of employment or any term or condition of employment;
(b) Interrogating or questioning its employees concerning their
union affiliation, activities, or sympathies;
(c) Threatening its employees with economic discrimination be-
cause of their union affiliation and activities;
(d) Coercing its employees to -withdraw from membership in a
labor organization or instigating or sponsoring withdrawals from
membership in a labor organization;
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Woodworkers of
America, CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining, or other
mutual aid or protection, or to refrain from any and all of such ac-
tivities except to the extent that such rights may be affected by agree-
ment requiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act, as guaran-
teed in Section 7 thereof.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make James Redd whole for any loss of pay suffered by reason
of the Respondent's discrimination against him, in the manner set
forth in "The Remedy," herein ;
EMPIRE PENCIL COMPANY 1197
(h) Post at its plant at Shelbyville, Tennessee, on all bulletin
boards, or such places as notices are customarily posted, copies of the
notice attached hereto and marked "Appendix A." 28 Copies of said
notice, to be furnished by the Regional Director for the Tenth Re-.
gion, shall, after being duly signed by the Respondent's representa-
tive, be posted by the Respondent immediately upon receipt thereof
and maintained by it for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material;
(c) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed, insofar as it alleges that the Respondent discriminated with
regard to the hire and tenure of employment of Juanita Harrell and
Fred Harrell, Jr.; engaged in surveillance of union meeting places ;
threatened to blacklist employees for union activities; threatened to
cut the workweek to 2 or 3 days if the employees selected the Union as
their bargaining agent; promised employees wage increases and im-
proved working conditions if the Union were defeated; warned em-
ployees that the plant would be closed down or moved away if the
Union received a majority in the pending election; refused to grant
plant privileges to union adherents while allowing freedom of action
to anti-union employees; threatened employees with racial equality if
the Union won the pending election; warned employees that the Re-
spondent was fighting.the. Union with everything. at its command;
incited and assisted local merchants and citizens to engage in discrimi-
nation and coercion of union members and sympathizers; interfered
with the conduct of an election conducted by the Board; or offered
financial inducement and assistance to employees and local citizens to
assist in defeating the Union.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
28 In the event that this Order is enforced by decree of a United States Court of
Appeals , there shall be inserted in the notice , before the words : "A DECISION AND
ORDER ," the words : "A DECREE OF THE UNITED STATES COURT OF APPEALS
ENFORCING."
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT interrogate our employees concerning their unioll
affiliation, activities, or sympathies.
WE WILL NOT threaten our employees with economic discrimina-
tion because of their union affiliation and activities.
WE WILL NOT coerce our employees to withdraw from member-
ship in a labor organization or instigate or sponsor withdrawals
from membership in a labor organization.
WE WILL NOT in any other manner interfere with, restrain or
coerce our employees in the exercise of their right to self -organiza-
tion, to form labor organizations, to join or assist INTERNATIONAL
WOODWORKERS OF AMERICA, CIO, or any other labor organization,
to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purposes of col-
lective bargaining through mutual aid or protection, or to refrain
from any and all of such activities except to the extent that such
right may be affected by an agreement requiring membership in
a labor organization as a condition of employment as authorized
in Section 8 (a) (3) of the Act, as granted by Section 7 thereof.
WE WILL NOT discriminate in regard to hire or tenure of employ-
nient or any term or condition of employment against any of our
employees because of membership in or activity on behalf of any
labor organization.
WE WILL MAKE WHOLE employee James Redd for any loss of pay
suffered as a result of the discrimination against him.
ALL our employees are free to become or remain members of the
above-named Union or any other labor organization.
EMPIRE PENCIL COMPANY,
DIVISION OF HASSENFELD BROS., INC.,
Employer
Dated--------------------- By--------------------------------
(Representative ) ( Title)
This notice must remain posted for sixty (60) days from the date
thereof, and must not be altered, defaced, or covered by any other
material.
INTERDIEDIATE REPORT
Mr. Shally 0. Wise , for the General Counsel.
Mr. Horace Brooks , of Nashville , Tenn., for the Union.
Messrs. Cecil Sims, of Nashville , Tenn., and James C . Burns , of Shelbyville,
Tenn., for Respondent.
STATEMENT OF THE CASE
Upon charges duly filed by International Woodworkers of America, CIO, herein
called the Union, the General Counsel of the National Labor Relations Board,
by the Regional Director for the Tenth Region (Atlanta, Georgia), issued his
EMPIRE PENCIL COMPANY 1199
complaint on August 9, 1948, against Empire Pencil Company, Division of
Hassenfeld Bros., Inc., herein called Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, and Section 8 (a) (1) and (3) and Section 2
(6) and (7) of the Labor Management Relations Act, 1947, 61 Stat. 136, both
herein called the Act. Copies of the complaint and charges, together with notice
-of hearing thereon, were duly served upon Respondent and the Union.
With respect to the unfair labor practices, the complaint alleged, in substance,
that Respondent (1) discharged three employees' because of their union and
concerted activities; and (2) since on or about March 1947 engaged- in certain
acts of interference, restraint and coercion. Respondent's answer, filed August
16, 1948, denied the commission of any unfair labor practices and alleged
affirmatively that James Redd and Fred Harrell, Jr., were released by Respondent
because of lack of work and that Juanita Harrell voluntarily quit Respondent's
employ.
- Pursuant to notice, a hearing was held on various dates between September 13
and 24, 194S, at Shelbyville, Tennessee, before the undersigned Trial Examiner,
Martin S. Bennett, duly designated by the Chief Trial Examiner. The General
Counsel and Respondent were represented by counsel, and the Union by its
'representative. All parties participated in the hearing and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing upon the issues. At the outset of the hearing, Respondent
moved to dismiss the complaint on the ground that it had been issued contrary
to the provisions of Section 10 (b) of the Act, claiming that the alleged unfair
labor practices had taken place more than 6 months prior to the filing of the
charge and its service upon Respondent. The motion was denied? Respondent
further moved that the complaint be dismissed on the ground that the General
Counsel had not introduced in evidence affirmative proof that the Union had com-
plied with the prerequisites of Sections 9 (f) and (h) of the Act with respect to
the filing of certain information and affidavits with the United States Department
of Labor and the Board. The motion was denied.' At the close of the hearing,
the undersigned granted a motion by the General Counsel to conform the plead-
ings to the proof with respect to purely formal matters. The parties were then
afforded an opportunity to argue the issues orally upon the record and to submit
briefs, proposed findings of fact, and conclusions of law. Oral argument was
1 Their names and respective dates of discharge are
James Redd April 4, 1947
Juanita Harrell April 7,1947
Fred Harrell , Jr. April 11, 1947
2 The original charge was filed on April 22, 1947, alleging interference , restraint and
coercion and the discriminatory discharges of undesignated employees . A first amended
charge , filed on July 14, 1947, and duly served , was similar in content but named the three
individuals whose names appear in the complaint herein . The allegations of the complaint
are substantially comparable to those contained in the first amended charge. As less than
6 months elapsed between the conduct complained of and the filing and service of the
charge, Respondent's motion lacks merit. In any event, the amended Act does not operate
retrospectively with respect to charges filed and served before or within 6 months after
its effective date of August 22, 1947. Matter of Vanette Hosiery Mills, 80 N. L. it. B.
1116; Matter of Hillsboro Cotton Mills, 80 N. L. it. B. 1107; and Matter of Itasca Cotton
Manufacturing Company , 79 N. L. it. B. 1442.
3 The ground stated for the ruling was that the question whether the various prerequi-
sites to issuance of a complaint have been met was one solely for administrative deter-
mination by the General Counsel.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
waived by all parties and a brief has been received from Respondent. Subse-
quent to the close of the hearing, the undersigned on his own motion ordered
certain corrections of errors in the transcript of testimony.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Hassenfeld Bros., Inc., is a Rhode Island corporation, which is engaged in
the manufacture of pencils at plants in the States of Rhode Island and Tennessee.
The instant proceeding is concerned only with its plant at Shelbyville, Tennessee,
which it operates under the trade name of Empire Pencil Company, Division of
Hassenfeld Bros., Inc. During the 12-month period ending in August 194S,
Respondent purchased for its Shelbyville plant raw materials consisting of wood,
lacquer, ferrules, erasers, and other materials, valued in excess of $500,000, of
which value approximately 95 percent was shipped to the plant from points out-
side the State of Tennessee. During the same period, Respondent manufactured
at its Shelbyville plant pencils valued in excess of $1,000,000, of which value
approximately 90 percent was shipped to points outside the State of Tennessee.
The undersigned finds that Respondent is engaged in commerce within the
meaning of the Act.
II. THE ORGANIZATION INVOLVED
International Woodworkers of America, CIO, is a labor organization admitting
to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
1. Respondent's plant and supervisory personnel
Respondent's Shelbyville plant, which is engaged in the manufacture of pen-
cils, employed slightly in excess of 200 production workers at all times material
herein. Harold Hassenfeld, who is a vice president of the parent corporation,
is general manager, of the Shelbyville plant. Henry Hassenfeld, his father, is
secretary and treasurer of the parent corporation, and customarily supervises
operations in the State of Rhode-Island. As appears below, he was present at
the Shelbyville plant on various occasions during the period herein pertinent.
Beneath Harold Hassenfeld in the supervisory hierarchy in the Shelbyville plant
is Plant Superintendent Lester Harris, who has over-all charge of all matters
relating to production, maintenance , and personnel.' Respondent admits that
beneath Lester Harris, there were four foremen who were supervisors. They are :
Name : Departments
Grady Smotherman °____________ Banding, counting,' packing, tipping,
pointing, shipping
Richard Naron------------------ Painting
Calvin Phelps___________________ Shaping
Hooper Campbell________________ Machine shop
4 A. M. Ray, whose authority stems directly from Harold Hassenfeld is in charge of all
administrative work of the company and is assistant secretary of the corporation. She
is not involved in any of the incidents herein set forth.
Also appearing in the record as "Smutherman."
6It appears that banding and counting may be considered as one department . Whether
they are one or two departments would not affect the findings herein.
EMPIRE PENCIL COMPANY 1201
As is apparent, Smotherman is the only supervisor who had more than one de-
partment under his supervision. There is, however, a conflict as to the status of
several individuals employed in various of the five or six departments beneath
him. The General Counsel contends that these individuals, some of whom are
named below, were in fact supervisors, whereas Respondent claims that they
were merely employees of long tenure with some administrative duties. Inas-
much as the resolution of some of the issues in this proceeding turns upon this
finding, the subject will be treated at this point.
Plassie Wheeler and i1filton Overcast' worked in the tipping department under
Smotherman and were referred to by General Manager Hassenfeld as the men
Smotherman expected to run the department properly. Unlike the foremen who
were on a salary, they were hourly paid, but received wage rates in excess of
those paid all other employees in the department. Admittedly, they kept some
production records and were responsible to the foreman Smotherman ; these
factors, plus their long tenure, were responsible for their higher wage rates,
according to Respondent.
There were approximately 20 rank and file employees then in the department
who operated the various machines and, according to Wheeler, he and Overcast,
fixed the machines, repaired them, and made out daily reports. Wheeler denied,
however, that he had any authority to hire or fire employees. In essence, the
positions of Wheeler and Overcast, if their testimony be accepted, were those of
mechanics or repairmen, whose sole function it was to see that the machines
kept running.
An analysis of the record indicates, on the contrary, that Wheeler and Overcast
occupied positions of considerable more responsibility than their above testimony
would indicate. It will be recalled that Smothernian, admittedly a foreman, was
in charge of five or six departments and presumably divided his time among all.
In addition, he occupied a desk in the office of Plant Superintendent Harris and
at least some of his time was spent there. If Respondent's position herein were
to be credited, the picture would be one of a number of plant departments under
the sole supervision of one foreman who divided his time among all of them, as
well as his office duties. That management could operate a plant on such a basis
with such limited supervision is very much open to question.'
But there is affirmative evidence which sheds considerable light on the true
nature of the duties of Wheeler and Overcast. Superintendent Harris admitted
that they, as well as Louise McBride whose case is discussed below, reported to
him violations of working rules by employees. Harris claimed that he person-
ally made an independent decision as to what action would be taken, although,
when asked elsewhere if he relied on their recommendations, he replied "not
entirely." He testified that Wheeler and Overcast would report directly to him
and give their opinions of the particular incident.' Harris elsewhere admitted
that Wheeler watched the operators in his department to see that they were per-
forming properly and, conceding, in effect, that Smotherman had extensive
absences from the department, admitted that in each department he had someone
with whom he consulted in Smotherman's absence-in this case Wheeler or Over-
cast. Thus, Harris admitted that in the case of Juanita Harrell, whose discharge
7 Also appearing in the record as "Overcase" and by his nickname of "Jabbo."
8 Cf. Matter of Allen-Morrison Sign Company, 79 N. L. R. B. 903.
8 Just why these alleged "mechanics" reported directly to Harris, thereby by-passing
the foreman, Smotherman, is not clear. This situation does, however, strengthen the
belief of the undersigned that they were supervisory officials who responsibly directed their
subordinates.
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is discussed below, he consulted Wheeler and asked him for his recommendation.
concerning changes in the department ; that Wheeler recommended the transfer
of Harrell; and that he, Harris, accepted and acted upon the recommendation.
Significantly, although Harris elsewhere claimed that he received recommenda-
tions from other employees not in this particular category, and that he then made
an independent investigation, herein he went further and placed some reliance
upon Wheeler's recommendation. Specifically, he asked Wheeler for a recom-
mendation, accepted it in its entirety, and made his decision "at that time" to
transfer Harrell as Wheeler had recommended.
There is independent testimony that Wheeler and Overcast were more than
the "key men" that Harris admitted them to be. They assigned work in the-
department and received and passed upon requests for time off, although on occa-
sion they would refer the employee to the office and presumably Harris.' 0 Even
Wheeler, who at times tried to avoid giving testimony which shed light on his par--
ticular duties, admitted that lie did direct the employees and transfer them to.
other operations when they ran out of work. Wheeler testified that he on occa-
sion complained to Harris that a particular employee was incompetent or other-
wise undesirable, stating that he did not want him in the department, and the-
employee would either be transferred, discharged, or no action would be taken.
In the final analysis, Wheeler admitted that both he and Overcast had.
authority to go to Harris and recommend a discharge and that discharges had
been effected after such recommendations ; Wheeler conceded, as did Harris,
supra, that Harris did rely on his or Overcast's judgment. In view of the fore-
going findings, the undersigned rejects Respondent's position that Wheeler and
Overcast are not supervisors, and further rejects the testimony of the latter
two to that effect. It is found that they are supervisory employees within the
meaning of Section 2 (11) of the Act with authority to effectively recommend
the transfer, lay-off, assignment and discipline of employees , as well as inde-
pendently to responsibly direct employees"
Louise McBride, according to General Manager Hassenfeld, was"'assistant or-
straw boss" of the packing department which was also known as the boxing
department. It was Respondent's position that she did not have "full charge"
of the department, which had approximately 31 employees, in the absence of
Smotherman ; that she kept production records ; and that she assigned work
according to instructions given her by Smotherman. As in the case of Overcast
and Wheeler, it was contended that she received a wage rate higher than anyone-
else in the department because of her long tenure and administrative duties.
McBride gave considerable testimony concerning her duties which was of a
conflicting and inconsistent nature, and in places was incredible. For example,
she claimed that she worked at the tables "just like they [the employees] did"
save for her production report in the evening, but later testified that she did
the same work as the girls did "if I wasn't busy with other things." Elsewhere,
although insisting that she was just a rank and file worker, she broke down
her workday as follows : She allegedly spent 2 to 3 hours at ordinary production
work, 30 minutes sweeping the floor, and 30 minutes making out reports in the
evening. Although this totalled but 3 or 4 hours of the normal 8-hour work-
day, she made no explanation concerning the larger part of the day consisting of
'0 The credited testimony of Kathaleen Ray.
11 See N. L. R. B. v. Budd Manufacturing Co.. 169 F. (2d) 571 (C.,A. 6) ; Matter of The
Ohio Power Company ( amended decision ), 80 N. L. R. B. 1334; Matter of Carolina Power
and Light Co., 80 N. L. R. B. 1321 : Matter of Aragon-Baldwin Mills, Inc., Aragon Plant,-
80 N. L. R. B. 1042; and Matter of General Electric Company, 80 N. L. R. B. 174.
EMPIRE PENCIL COMPANY 1203
4 to 5 hours. Although she contended that Foreman Smotherman did transfer
employees without discussing the matter with her, she later testified that he
did sometimes consult her at such times concerning the employees' work.
In striking contrast to McBride's attempt to portray herself as a rank and
file worker, Superintendent Harris placed her on a par with Wheeler and Over-
cast as the person in her department that he relied on and went to in the
absence of Smotherman and who would come directly to him for the answer to
problems. It must also be borne in mind that McBride, as in the ease of
Wheeler and Overcast, was in another of the numerous departments under the
supervision of one foreman, Smotherman. Harris testified that he did not rely
entirely on the recommendations made by McBride, thus admitting, in effect,
that some reliance was placed upon the recommendation given. Harris also
claimed that McBride did not have "full charge" in Smotherman's absence,
although he did not elaborate upon this description. Several employees, Dorothy
Wright, Emmie King, and Pauline Bayne, testified credibly that McBride in-
structed them in their work. Thus, Emmie King stated that McBride was the
only person who assigned work in the department, that requests for time off were
made to McBride who would immediately pass upon the request, and that
McBride would criticize work she deemed unsatisfactory. In fact, King claimed
that she did not know Smotherman and was not aware that he even came to the
department, although she did know that there was such a person. Obviously,
in view of the above, and the findings in the cases of Wheeler and Overcast with
whom McBride was admittedly on a par, it is clear that McBride was consid-
erably more than an employee of long tenure who had some administrative
duties. This is the only logical inference in view of the absence of any other
supervisors in the department. The undersigned finds that McBride possessed
authority to responsibly direct the group of employees in her department and
that she is, therefore, a supervisor within the meaning of Section 2 (11) of the
Act.
Louise Choclo7ey, who did not testify herein, "looked after" the banding depart-
ment in the absence of Foreman Smotherman just as McBride took charge of
the packing department. Like McBride, she was the highest paid employee in
the department which included 10 in addition to her and had no other employee
considered by Respondent to be a supervisor save Foreman Smotherman. Plant
Manager Hassenfeld admitted that Chockley had administrative duties and
assigned work as did McBride, Wheeler, and Overcast, and that the duties of all
4 were on a par. In view of the findings hereinabove, plus the fact that this
department was one of the many allegedly under the sole supervision of Foreman
Smotherman, the undersigned find that Chockley possessed authority to respon-
sibly direct the employees in her department and that she is a supervisor within
the meaning of Section 2 (11) of the Act.12
2. The union campaign
There is no evidence of organizational activities among Respondent 's employees
prior to the campaign instituted by the Union which lasted approximately fi
weeks. This commenced on or about IN-larch 12, 1947, when Horace Brock, an
organizer for the CIO, came to Shelbyville together with other organizers and
commenced organizational activities among the employees of Respondent in
behalf of the Union. He spoke to several employees, and on or about March 12,
"Other individuals, particularly Odis Hittson, and Kenneth Hastings, are also alleged
to be supervisory employees . Their cases are taken up infra.
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distributed leaflets. This distribution was repeated and a meeting of Re-
spondent's employees was arranged for March 14 or 15. The meeting was held
as scheduled and attended by 45 to 50 employees. Approximately 6 or 8 meet-
ings were held during the following weeks and union adherents were active in
procuring the signatures of employees on union designation cards in and about
the plant. The Union encountered considerable difficulty in finding meeting
places because after permission was granted to use meeting places, permission
was later withdrawn, as was the case with the local American Legion Hall and
the Town Hall of the nearby community of Bell Buckle. The Union filed a
petition for an election on March 21, 1948, in Case No. 10-R-2606, and during
the period preceding the election, approximately 130 employees signed designa-
tion cards. There was considerable antiunion activity on the part of Respondent
during this period which appears below in more detail. The preelection cam-
paign apparently engendered considerable feeling in the community ; this was
translated into action by local business men who formed a group which printed
and distributed circulars urging the employees to vote against the Union. There
was certain activity against the Union by a local attorney, James Bomar, as
well as by T. B. Moon, the manager of the local office of the Tennessee State
Unemployment Service. The election was held on April 27, 1947, and the results
were 51 votes for the Union and 134 against. There is no evidence of any
subsequent union activity.
The conduct alleged to constitute interference, restraint, and coercion, as well
as the three discharges alleged to be discriminatory, took place in this relatively
brief period between the advent of the Union on March 12, 1947, and the election
which the Union lost on April 24,1947.
B. Interference, Restraint , and Coercion
1. Threats to and interrogation of employees
By Secretary -Treasurer Henry Hassenfeld
Henry Hassenfeld, secretary and treasurer of Respondent, was present at the
Shelbyville plant on one or more occasions during the organizing campaign.
During this period he engaged in the following conduct.
About a week or 10 days before the election, employee William Preston was
summoned to the plant office where he found Henry Hassenfeld ; they had not
previously met. Hassenfeld, in the course of the conversation, asked Preston,
as the latter testified what he "thought of the Union . . . if I was for the
Union and why I thought it would help at the plant." IIassenfeld also asked
Preston what he knew about the Union.13
Frank Hill, who still is in Respondent's employ, was interrogated by Henry
Hassenfeld on several occasions shortly before the election on April 24. On the
first occasion, Hassenfeld asked Hill, as the latter testified, how he "stood on
the Union." On the following day Hassenfeld pursued the same line, asking
Hill what he "thought about the Union." Hill replied that he was in favor of it.
IIassenfeld further asked Hill if Hill's son was in favor of the Union and Hill
opined that he might be. On a later occasion, just before the election, Hassenfeld
questioned Hill as to whether he "had signed up with the Union or believed in
the Union." At the same time, he also told Hill that it was his personal business
whether he joined the Union or not.
is The uncontroverted testimony of Preston which the undersigned credits. Hassenfeld
did not testify in this proceeding and all conduct attributed to him is uncontroverted.
EMPIRE PENCIL COMPANY 1205
Approximately 1 week before the election, employee Raymond Allen was
engaged in a conversation concerning the Union by Plant Superintendent Lester
Harris, the details of which appear later in this report. Allen was then taken
to the plant office by Harris where Henry Hassenfeld spoke to him in the presence
of General Manager Harold Hassenfeld, Superintendent Harris, and Merrill
Iassenfeld, who is the brother of Harold Hassenfeld and Manager of a plant of
Respondent in the State of Rhode Island. Henry Hassenfeld, in the presence of
the others, asked Allen as the latter testified, how he "felt about this organization
they had out there." Allen replied that he favored it.. During this conversation,
Hassenfeld stated that Allen had the right to joint the Union or not as he
pleased 14
Several days before the election, Plant Manager Harold Hassenfeld informed
employee Dorothy Wright that his father wanted to talk to her. The following
clay, Superintendent Harris informed Wright that Henry Hassenfeld desired to
see her. Harris took her to the plant office, introduced her to Hassenfeld, and
left her alone with him. Hassenfeld opened the conversation by stating that the
employees had a right to belong or not belong to the Union as they chose. Then,
after questioning the merits of membership in a union , he closed the interview
by asking, according to Wright, "Are you for it or against it?" Wright replied
that she was for the Union.
At about the same time , Foreman Smotherman instructed Pauline Bayne to
report to the plant office. Bayne testified that she met Henry Hassenfeld there
and that lie in the course of a conversation concerning the Union ". . . asked
me if I had joined the Union, and I told him I had." Bayne further alleged, on
cross-examination, that he did not tell her she was free to vote for or against
the Union as she chose.
By General Manager Harold Hassenfeld
Dorothy Wright, who, as found above, was questioned several days before the
election by Henry Hassenfeld concerning her union adherence, was also ques-
tioned by Harold Hassenfeld on the previous day. On that occasion, Hassenfeld
sent for Wright and asked her why she had joined the Union. Wright replied
that she, as well as others, could not get by on their earnings. Hassenfeld
replied that some changes would be made and that "if the Company was going to
give a raise [it] would rather give it to the workers than the Union." '5
Approximately 5 days before the election Kathaleen Ray, who is still em-
ployed by Respondent, was sent to the office by Plassie Wheeler, her supervisor.
There she encountered Harold Hassenfeld who spoke to her in the presence of
his brother , Merill. Ray uncontrovertedly testified that Hassenfeld asked her
whether she was "for the Union or against it." She replied that she had not made
up her mind and Hassenfeld then asked her if she believed in the Union. Ray
replied that she did.
14 Some time thereafter , Allen was again spoken to by Henry Hassenfeld in the presence
of the same group . The conversation was directed largely to Allen's complaints con-
cerning working conditions, although Allen gave some testimony concerning a reference
by Hassenfeld to the Union which is not clear . No finding adverse to Respondent is based
upon this later incident.
l This finding is based upon the testimony of Wright , previously credited, who im-
pressed the undersigned as an honest and forthright witness, and more favorably than
Hassenfeld . Hassenfeld denied that he told Wright he would rather give a raise to the
workers than to the Union. He was not questioned concerning Wright's allegation that
he asked her why she joined the Union.
867351-50-vol. 86-77
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By Plant Superintendent Lester Harris
Approximately 1 week before the election Foreman Smotherman informed
Raymond Allen that 'Superintendent Harris desired to talk to him and brought
Allen to Harris' office. Harris asked Allen "how [he] felt about" the Union,
and Allen told him that he was in favor of it. As found above, Harris then took
Allen to the main office where Allen was questioned by Henry Hassenfeld con-
cerning his preference for the Union 1°
The day before the election, Superintendent Harris approached employee
Dorothy Wright and asked 'her "where the Union meeting would be that night." 17
About 3 weeks after the union organizational campaign commenced, Superin-
tendent Harris came over to Charles Hayworth in the plant and asked him how
he felt about the Union. Hayworth, who shortly thereafter left Respondent's em-
ploy on his own volition, replied that he was in favor of unions that were run with-
out strikes. Harris in his turn asked Hayworth, as the latter testified, if he
"wouldn't come over on their side and fight against it" and work with him against
the union. Hayworth replied that he would not work for either side 18
There is testimony by Juanita Harrell, whose discharge is discussed below,
that on one occasion she asked Superintendent Harris what lie thought about
the Union. Harris' version herein substantially corresponded to that of Har-
rell who claimed that Harris then replied that he and Harold Hassenfeld were
opposed to the Union. In view of both the circumstances and nature of this
statement which was a solicited opinion, no findings adverse to Respondent are
based thereupon in the findings which follow.
By Louise McBride
During the period preceding the election, Louise McBride, who has previously
been found to be a supervisory employee during this period also participated
in the antiunion campaign. Thus, 1 week before the election, she went over
to Dorothy Wright, while the latter was at work, and stated, according to
Wright, that "she didn't think we wanted a Union out there and she wanted to
know what I [Wright] thought about it." Wright replied that she was in favor
of the Union as it was the only'means by which the employees could get higher
wages'9
McBride also approached Pauline Bayne while the latter was at work, and
opened a discussion about the Union during which McBride stated that the
employees . . . "didn't have good sense" because "people who join the Union
would probably be walking the streets without a job." 20
Charles Hayworth testified that McBride told him that he should work against
the Union. Elsewhere he changed his testimony and stated that he was not sure
whether McBride or Louise LaPaglia, an alleged supervisor made the statement.
11 This finding Is based upon the uncontroverted and credited testimony of Allen.
Harris, who did not deny this incident, admitted that he had heard rumors that Allen
was "very active" in the Union.
11 The credited testimony of Wright, who has previously been found a reliable witness.
Harris denied this statement but his testimony is rejected herein as in other incidents
involving Wright set forth below where he gave incredible testimony.
is The credited testimony of Hayworth whom the undersigned considered to be an
honest witness. Harris had no recollection of ever discussing the Union with Hayworth.
19 Tho credited testimony of Wright. The testimony of McBride, who has previously
been found an unreliable witness, it rejected herein as elsewhere. McBride testified that
she never discussed the Union with Wright but later admitted that she had.
2° The credited testimony of Bayne. McBride ' s testimony that she did not make this
statement is not credited.
EMPIRE PENCIL COMPANY 1207
Because of his vagueness on this matter , the undersigned is of the belief and
finds that the evidence is insufficient to support a finding as to what actually
transpired.
One week before the election , Kathaleen Ray was sent by Foreman Plassie
Wheeler to' see Louise Chockley , hereinabove found to be a supervisor. Ray
reported to Chockley who asked her what she thought about the Union and
whether she was for or against it. Ray replied that she had not made up her
mind and Chockley then informed Ray that if she withdrew from the Union she
"would have a better chance of holding " her job ; that the foreman would "like
[her] better" if she "withdrew from the Union "; and that if she "didn 't, they
wouldn 't have any use for her." 21
By others
There was testimony by William Preston, who worked in the box department;
that his superior , John Crowell, questioned him as to when the second union
meeting would take place. Other witnesses testified that Crowell , who did not
testify herein , was a supervisor in the plant . The record indicates , however, that
Crowell was in the nature of a stock clerk , who, but for Preston , his assistant,
was the only employee in this particular section and that he was not a supervisory
employee. It is therefore , found that this statement is not attributable to
Respondent.
Just before the election Foreman Richard Naron of the paint department
approached employee Frank Hill and asked him, as the latter uncontrovertedly
testified , if he wasn 't "just about ready to pull out of the Union."
Hill also testified that Kenneth Hastings , whose supervisory status at that
time is in dispute, questioned him as to what he thought about the Union.
Hastings , at that time a general handyman in the paint department and not a
supervisor , was temporarily taking the place of Foreman Naron. The record
indicates , however, that Hastings took over only part of the supervisory duties
of Naron and that Superintendent Harris handled the remainder of Naron's
duties. In the opinion of the undersigned , there is insufficient evidence to sup-
port a finding that Hastings was acting in the capacity of a supervisor at the
time and it is therefore found that this statement is not attributable to Re-
spondent.
Evidence was also adduced that Odis Hittson questioned employees concerning
their union activities . Hittson was a maintenance and repairman who generally
had a crew of five to six seen beneath him although the number of men would
vary , and occasionally he worked alone. The men who worked with him were
usually pulled out of the plant and put on a special repair or construction detail
when and as needed, and would then be returned to the plant . The undersigned
finds that there is insufficient evidence to support a finding that Hittson was a
supervisory employee at the time , and hence no findings adverse to Respondent
are based upon this testimony.
Approximately 1 week after the first union meeting, Foreman Grady Smother-
man asked Pauline Bayne if she had been "at the Union meeting ." Bayne ad-
"The uncontroverted and credited testimony of Ray ; Chockley did not testify. As
found below Ray proceeded to take steps to withdraw from the Union in accordance with
specific instructions from Chockley to report to the office of an attorney in Shelbyville,
Karnes Bomar.
In this conversation Chockley also told Ray that if the Union organized the employees
of Respondent , it would seek to have Negroes work beside Ray. No finding adverse to
Respondent is made on the basis of this statement which the undersigned finds to be an
expression of opinion.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mitted that she had attended. Smotherman then asked Bayne if she had joined
the Union and Bayne replied that she had 22
Conclusions
It is clear that Respondent 's representatives from top management down,
including Henry Hassenfeld , Harold Hassenfeld , Superintendent Harris, Louise
McBride, Louise Ch,ockley, and Grady Smotherman, singled out employees for
private conversations in the course of which the management representatives
brought up the subject of the Union. On these occasions, the particular em-
ployees whose names appear above, were questioned concerning their views on
the Union, whether they favored it, what they knew about the Union, whether
they had joined, if a family member of one had joined, where union meetings
were being held, and if they had attended the union meetings." In a similar
category is the request of employee Hill by Foreman Naron if he were ready to
withdraw from the Union, and the asking of Hayworth by Superintendent Harris
if he were ready to come over to Respondent's side and help fight the Union.
Respondent apparently assigns as a partial defense the fact that in some of
these instances the management representative told the particular employee that
he or she was free to join the Union or not, and vote in the impending election
as he or she chose. The undersigned is of the belief, and finds, that such
statements occurring in the very same conversation with improper interrogation,
do not and cannot serve as a defense to such conduct, and this contention is
accordingly rejected. It is therefore found that, unlike a situation where an
employer expresses an opinion on the merits or demerits of union organization,
that the interrogation herein of employees, as detailed in the preceding sections
of this report,2' was calculated to cause the employees to disclose their union
affiliations, sympathies, and activity. It is well established, and the undersigned
so finds, that such interrogation constitutes interference with, and restraint of
the rights guaranteed in Section 7 of the Act:' It is further found that other
conversations as set forth above, are also violative of the Act. Thus„Louise
McBride warned Pauline Bayne that the union members would be "probably
walking the streets without a job," Harold Hassenfeld told Dorothy Wright that
he would give the employees a raise but not the Union; and Louise Chockley
warned Kathaleen Ray that she had a better chance of retaining her job if she
withdrew from the Union. Such statements, containing the threat of economic
loss because of union activities, are clearly coercive and the undersigned finds
that Respondent has thereby further interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed by Section 7 of the Act.
2. Other incidents ; withdrawals from the Union
During the period prior to the election, Respondent communicated to the em-
ployees its opposition to the Union, but also informed them that they were free
22 The credited testimony of Bayne, whom the undersigned finds to be a reliable wit-
ness. Smotherman , who denied that other portions of the conversation not herein
material had taken place , did not deny this portion of the conversation.
22 This finding does not include , of course , those instances indicated above where it
has been found that no finding adverse to Respondent is being made for reasons therein
,assigned.
24 See Footnote 23.
25 Matter of Morristown Knitting Mills, 80 N. L . R. B. 731 ; Matter of Reeves -Ely Lab-
oratories, 76 N. L . R. B. 728 ; Matter of Sohio Pipe Line Co ., 75 N. L. R . B. 838 ; Matter
of Ames Spot Welder Co ., Inc., 75 N . L. R B. 352 ; and Matter of Sewell Manufacturing Co.
72 N. L . R. B. 85.
EMPIRE PENCIL COMPANY 1209
to vote as they chose. Respondent distributed and mailed pamphlets which
are in evidence, setting forth its position on the question of the Union, the ,details
of which it is not necessary to set out herein because they fall within the realm
of protected free speech. In addition, there is evidence that Respondent was
billed by the local newspaper for the printing of pamphlets expressing opposition
to the Union which conveyed the impression that they had been issued by local
merchants. Testimony of a dubious nature was offered by Harold Hassenfeld
that this item was erroneously billed to Respondent and that upon discovery of
the error after payment had been made by Respondent, a refund was made.
Evidence was also introduced that such a refund had been made. It is
unnecessary to resolve this conflict because even assuming that Respondent
did order and distribute these circulars, they too fall within the realm of pro-
tected free speech. In the same category is a group of signs saying "VOTE
NO," which were posted in and remained in the plant for 3 or 4 days until the
night before the election when Harold Hassenfeld ordered them taken down.
Superintendent Harris was aware of them and permitted them to remain, al-
though he, as well as Hassenfeld, disclaimed knowledge of their genesis. The
same dubious testimony was offered with respect to them as was offered concern-
ing the merchants' handbills, namely, that they had been erroneously billed to
Respondent, paid for, and a refund made to Respondent upon discovery of the
error. Here too, no resolution of the conflict is required because, assuming that
the signs were ordered by Respondent, or, as was the case, Superintendent Harris
ratified their presence in the plant, they still remain, in the view of the under-
signed no more than an expression of opinion, and are therefore protected free
speech.
On April 21, Plant Manager Hassenfeld received a petition whose genesis is
not clear, which was signed by a number of employees including Floorlady Louise
McBride and Foreman Grady Smotherman. The petition stated:
We the undersigned suggest and request that you have some reliable
citizen who is well informed on labor laws and true facts on unions to re-
late these facts at a meeting for your employees. Due to the fact that so
much misinformation concerning this matter has been given out, we think
this necessary so that the people will know the truth.
s * * * * a
It has been suggested that James Bomar, a local lawyer, would be a
very good person. He should be well informed on these matters and is a very
reputable person in this community.
Hassenfeld exhibited this petition to his attorney, Ben Kingree, of Shelbyville,
who was then on an annual retainer basis with Respondent. Shortly there-
after, Bomar and some employees asked for permission to hold a meeting at the
plant and this permission was granted by Hassenfeld. The meeting was held
at the plant the night before the election and Bomar was introduced to the em-
ployees by Kingree and by an employee, Sanford McGowan. In addition to the
above, there is substantial evidence in the record that Superintendent Harris
urged various employees to attend that meeting and hear the statements of the
speakers. In view of the participation of Harold Hassenfeld and his attorney
Ben Kingree in arranging for this meeting, the appearance of Kingree at the
meeting and his introduction of Bomar, plus the solicitation of employees by
Superintendent Harris to attend the meeting, it is found that Respondent au-
thorized and ratified that meeting as well as the address to its employees by
Bomar on this occasion, and that Bomar, at least on this occasion, was acting
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as an agent of the Respondent within the meaning of Section 2 (2) of the Act.
At the meeting, Bomar was introduced to the audience and made a speech in
the course of which he stated, that the Union was communistic and that he was
opposed to them. He displayed a picture of a man whose throat had allegedly
been.cut by a CIO picket, as well as a picture of two Negroes beside a white
woman and stated that if the CIO organized the employees "that will probably
he the way it will be down here," and that the Union would put white persons
to work with Negroes!'` He did' not state that this mingling of the races
would be instituted by the Respondent as a retaliatory measure to the advent
of the Union and it is apparent that he referred to this as a union objective. It
may be true that statements of this sort in an area where segregation is more
common than in others are calculated to inflame the prejudices of the listeners
and justly merit criticism, but, on the other hand, it is questionable whether the
statements herein attributed to Bomar can be said to contain a threat of re-
prisal by management. It is therefore found that on this record they fall within
the purview of Section 8 (c) of the Act, and are protected.
Certain other activity engaged in by the supervisors of Respondent falls within
a different category. On April 23, Horace Brock, the union representative, re-
ceived, at his Nashville office, 22 registered letters mailed the day before in
Shelbyville. Each was addressed to Brock and signed by an employee who pre-
viously had applied for ,membership in the Union. The content of all was sub-
stantially similar and to the effect that the signer desired that his or her name
be withdrawn from the list of union members. Twenty of the 22 registered let-
ters were notarized by a Shelbyville attorney, James L. Bomar, Jr., and 2 by
another notary. In addition, 2 similar letters, not notarized were received by
Brock at a later date. 2T
Evidence was adduced by the General Counsel showing 'how some of these
withdrawals from the Union were procured. Kathaleen Ray was the object of
attention by several of Respondent's supervisors who attempted to bring about
her withdrawal from the Union and finally succeeded in so doing. Thus, Fore-
lady Louise Chockley, about 1 week before the election, after telling Ray,
as set forth above, that she would have a better chance of holding her job if
she withdrew from the union, told Ray to report to "Lawyer Bomar" at his of-
fice .in a Shelbyville office building. At about the same time Foreman Plassie
Wheeler approached Ray and told her, "If I was you, I would get out of it now
while I can." Wheeler also told Ray that when she got her paper, "to bring it
to him and he would take it to the office." Finally, Foreman Overcast on the
following day, as found above, told Ray that if she withdrew from the Union,
Superintendent Harris would let her keep her job and if not, he would fire her.
He also told Ray to go to Bomar's office to withdraw. Overcast offered to drive
Ray to Bomar's office at noon on the Friday preceding the election, and did so
in his automobile. Ray, on entering Bomar's office, discovered that Bomar was
not in and was driven back to the plant by Overcast shortly afterwards. She
informed Overcast that Bomar was out and he offered to drive her back later in
the afternoon. Ray stated that she would return the following day, Saturday,
but as she actually worked all day on Saturday, she did not report to Bomar's
office until Monday. Bomar who had not met Ray previously, called her by
Im A similar statement was also made to James Redd by Plant Manager Harold
Hassenfeld.
27 Bomar did not testify herein . The record indicates that he is a State Senator of the
State of Tennessee and has sponsored anti-closed -shop legislation in the Legislature of
that State.
EMPIRE PENCIL COMPANY 1211
name as she entered and said , "I guess you are here to sign them papers."
Bomar produced from his desk two copies of a previously prepared letter which
Ray signed and Bomar immediately notarized . He gave one copy to Ray and
told her to return it to Superintendent Harris, and stated that by signing this
letter she had done the Company a big favor . Ray returned to the plant and
gave the letter to Foreman Plassie Wheeler saying that it was her paper and
that she was withdrawing from the Union . Wheeler took the paper and said
that he would bring it to the office , as he had told Ray several days earlier. As
noted above, either this letter or its copy retained by Bomar was received in
the mail by union representative Brock on April 23, although Ray had nothing
to do with its mailing.-
Wheeler, whose testimony has been previously rejected , denied that he had
told Ray to withdraw from the Union , but admitted that Ray brought him
the letter . He claimed that Ray said to him only, "Here is a paper " and that
he, ignorant of its content , took it to the office and placed it upon the desk of
Superintendent Harris, as he usually did with his reports . The undersigned
finds it difficult to believe that Wheeler would have taken the letter without any
explanation from Ray and brought it to Superintendent Harris had he not known
what it was . This is particularly so, in the view of the undersigned , because
Wheeler, who testified that the letter was the only one he ever saw of its kind,
was Ray's supervisor at the time . The undersigned accordingly rejects Wheel-
er's testimony herein. Overcast denied the statements attributed to him by Ray
but admitted that he had driven her downtown , although he did ' not know where
she was going. His testimony , as elsewhere , is rejected herein . Harris ad-
mitted that he had seen one resignation letter on his desk but that it later dis-
appeared . He testified that he made no inquiry as to how it found its way to
his desk . The testimony of Ray, who was a forthright and impressive witness,
is credited herein as elsewhere.
The record further reveals that Floorlady Louise McBride was active in pro-
curing the resignation of employee Emmie King , and in attempting to procure the
resignation of Dorothy Wright from the Union . Thus, about a week before the
election, McBride spoke to King who worked in her department and said, accord-
ing to King, "If she were me, she would pull my name out , and to go to the
office of Bomar, the location of which McBride supplied her. King replied that
"If that was the best [she] would," and McBride instructed her to bring back a
copy of the resignation letter. On the following day, King reported to Bomar's
office and told him that she wanted to withdraw her name from the Union.
Bomar presented her with a previously prepared letter in duplicate which King
signed. King, as she had been instructed by McBride , returned to the plant with
her copy and gave it without comment to McBride who took it also without com-
ment. As in the case of Ray, King had nothing to do with the mailing of the
letter, which , duly notarized by Bomar, was included among the registered letters
received by Brock in Nashville on April 23.
Here as elsewhere , McBride gave testimony of an inconsistent and evasive
nature. McBride, who admitted her opposition to the Union , denied that she had
instructed King to withdraw from the Union and to see Bomar for that purpose;
she admitted however , that she had told King that the Union was "not a good
idea" and that she had discussed the Union with King, but neither pro nor con.
She claimed that someone , probably King, had brought her a paper, had said
merely, "Here 's a paper," , and had asked her to bring it to the office . McBride
claimed that she did not look at the paper but merely brought it to the office as
she usually did her own reports . Elsewhere she admitted that she "had an idea
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what it was" because she had seen others. She then claimed that others she
saw were folded up and upon being asked how she knew that the letter Ray, gave
her was similar to those others she was unable to explain her statement ; she
merely repeated that she "assumed" King 's letter was.similar to the withdrawals
signed by other workers. As elsewhere, and in addition, as in the incident directly
below, McBride's testimony was evasive, inconsistent, and unimpressive, and is
accordingly rejected. The testimony of King herein is credited as elsewhere.
McBride also attempted to procure the resignation from the Union of Dorothy
Wright. Thus, the day before the election, she informed Wright that "it would
be better to go sign and have our names taken out of it," and to report to Bomar's
office for that purpose. Wright, however, unlike Ray and King, did not report
to Bomar's office.28
Respondent took other steps on the day preceding the election to induce the
withdrawal of its employees from the Union. On that day, Dorothy Wright was
told by employee Milton Tucker, that Superintendent Harris wanted to see her.
On reporting to the office, she found six other employees there. Harris informed
the group that there was a "mess . . . in the mill . . . from the Union and he
said maybe we could go around and talk to the people about it . . . He wanted
us to try and talk [to],them to withdraw from the Union." Wright claimed that
Harris informed them,that their respective supervisors would be notified. Wright
did circulate about the plant that day as directed by Harris and also on the fol-
lowing day, as did the others in the group, although according to Wright, she
actually spoke in favor of the Union. On the following day, election day, Harris
stopped Wright shortly before noon as she circulated among the employees and
told her that they "were supposed to go back and work now."
Harris' testimony differed from that of Wright. He claimed that Milton
Tucker informed him that a group of employees desired to see him . . in
essence the same group named by Wright ; that he saw the group which asked him
"if it was all right for them to talk to people about the Union through the
factory" ; and that lie granted then this permission . He admitted that he knew
Tucker was opposed to the Union; that he did not ask the group what they
wanted to say concerning the Union; and that they did not tell him whether
they were for or against the Union. He insisted that he did not give them per-
mission to circulate during working hours but admitted that they did not need
his permission to talk to the employees during nonworking hours and that per-
mission was required only for discussions during working hours. It is note-
worthy herein that Harris had previously expressed considerable interest as to
the identity of those of his employees who were interested in the Union. Thus,
Calvin Phelps, at the time admittedly a foreman in the shaping department,
uncontrovertedly testified that just before he left Respondent's employ Harris
told him that he would like to know the names of those employees who were in
favor of the Union. In view of the above, and particularly the strained and
illogical story told by Harris herein, his testimony is rejected and that of Wright
is credited 29
24 The testimony of Wright is credited herein as elsewhere . 'McBride at first denied
Wright's testimony on this incident but further testified that she noticed Wright crying
one afternoon at work and upon inquiring as to the cause was told by Wright that she
wanted to get out of the Union . McBride admitted that she then told Wright "she just
could see somebody and maybe get out of it." McBride 's testimony is rejected.
20 The record reveals that Wright, some weeks earlier , had been reprimanded for sending
another employee a note. This note, according to Harris . related to the Union, although
Respondent ' s letter of reprimand to Wright is silent as to its content . In any event, this
incident , in.view of the testimony given herein by Harris sheds little light on the incident
EMPIRE PENCIL COMPANY
Conclusions
1213
It is clear from the above that Respondent, by its supervisory employees
Chockley , Overcast , Wheeler, and McBride, induced , urged, and directed its
employees to withdraw from the Union , and that some of them did so. By so
doing, Respondent has utilized its superior economic power to coerce its em-
ployees in their right to join a labor organization , and has thereby interfered
with, and restrained them in the exercise of the rights guaranteed by Section 7
of the Act . In the same category, as set forth above, is the procurement by
Plant Superintendent Harris of employees to solicit withdrawal of other em-
ployees from the Union . This too is found to be interference with the rights
.guaranteed by Section 7 of the Act.30
In view of the appointment of James Bomar as Respondent 's agent, on one
occasion, the address by Bomar to employees of Respondent on the question of
union organization , the direction of employees to Bomar ' s office by Respondent's
supervisors for the purpose of withdrawal from the Union , and the subsequent
receipt by the Union of withdrawal letters notarized by Bomar , the undersigned
further finds that these letters were undoubtedly sent to the Union by Respondent
or through its agent Bomar . It is further found that in addition to the instiga-
tion , procurement , and direction of the withdrawals from the Union, the sub-
mission' of the withdrawal letters to the Union constitutes additional interference
with the exercise by Respondent ' s employees of the rights guaranteed by Section
7 of the Act.
3. Alleged surveillance
Considerable testimony was adduced by witnesses for the General Counsel in
support of the allegation of the complaint that Respondent "spied upon Union
meetings and activities ." This testimony related primarily to four meetings
held at the home of union members or sympathizers , all of which were apparently
located in sections of the community outside the downtown area of Shelbyville.
Most of the testimony related to a meeting held at the home of one Skurlock,
outside the town and located on a new and well traveled highway between Shelby-
ville and the neighboring community of Tulahoma . There was evidence that
Harold Hassenfeld parked his car across the street from the Skurlock home in
the evening and shone his car lights on the home while a union meeting was in
progress . Other testimony by a witness for the General Counsel, Frank Hill,
was to the effect that he saw Hassenfeld 's car emerge from a dirt road which
intersects the highway near or at the Skurlock home ; that Hassenfeld's car
stopped at the intersection at which time his lights shone on the Skurlock home ;
and that Hassenfeld then drove down the highway. The other testimony con-
cerning this meeting was to the effect that various supervisors , including Superin-
tendent Harris and Plassie Wheeler, independently drove by the home two or
three times during the evening.
Likewise , with respect to a meeting at the home of Fred Harrell , there was
testimony that Hassenfeld , Foreman Grady Smotherman , Plant Superintendent
Harris, and Milton Overcast each passed the home one or more times during the
set forth above. Furthermore, even on the testimony of Harris, he permitted an employee
whom he had previously disciplined for writing another employee a note concerning the
Union, to circulate among the employees at large and discuss the Union. This too is
deemed illogical by the undersigned.
3° Matter of Magnolia Cotton Mill Co., 79 N. L. It. B. 91; Matter of West Ohio Gas Co.,
76 N. L. R. B. 179 ; Matter of Bluefield Garment Manufacturers, 75 N. L. R. B. 448, and
Matter of Harvey Chalmers and Sons, Inc., 75 N. L. It. B. 344.
1214 DECISIONS OF ,NATIONAL LABOR RELATIONS BOARD
evening while the meeting was in progress. There was testimony that Superin-
tendent Harris drove by more than once when the meeting was in progress at the
home of the mother of James Redd. In the view of the undersigned, the mere
number of supervisors seen in the vicinity of homes while meetings were in
progress is indeed highly suspicious. However, in view of the location of the
meeting places along main highway's, and considering the vague nature of some
of the testimony given by the witnesses of the General Counsel herein, plus the
fact that there was no showing that the presence of Respondent's supervisory
personnel along these highways was something out of the ordinary, the under-
signed is of the belief and finds, that the evidence is insufficient to support a
finding that Respondent spied upon the meeting places of the Union and thereby
engaged in surveillance of its employees. It is therefore recommended that this
allegation of the complaint be dismissed.
4. Alleged interference, restraint, and coercion
Considerable testimony was adduced concerning the frequent presence at
Respondent's plant of T. B. Moon, the manager of the local office of the Tennessee
State Unemployment Service. Moon, who did not testify herein, apparently spent
considerable time at the plant during the preelection period circulating among
employees in the course of which he expressed his opposition to the Union. He
also attempted to address employees at a union meeting and was asked to
leave. There is nothing in the record to show that Respondent authorized Moon
to discuss the Union with its employees and there is further evidence that Moon
was accustomed, on occasion to appear at the plant and visit employees. Finally,
although Moon in his talks with employees explained the undesirability of the
Union, as he viewed it, his remarks do not appear to have been anything more
than protected opinions. Despite the fact that Moon apparently spent much more
time at one plant than his duties as manager of the local unemployment office
would appear to warrant, and that his speaking to Respondent's employees
about the demerits of membership in the Union appears to be beyond the purview
of his official duties as a public servant and State employee in the unemployment
field, it is recommended, in view of the above findings that this allegation of the
complaint be dismissed.
There was also testimony by employee Charles Hayworth that he overheard a
conversation between employee Evans Paschal and either Superintendent Harris
or Harold Hassenfeld in which Paschal stated that he was opposed to the Union
and either Harris or Hassenfeld then offered to take him around to the various
departments to. talk to the employees concerning ,the Union. Harris denied all
knowledge of the incident. Hassenfeld stated that Paschal had offered to cir-
culate about the plant and discuss the Union with the employees and that he,
Hassenfeld, informed him that he had a right to tell anyone what he pleased
concerning the Union but that he could not do it during working hours. There
is no evidence that Paschal ever was taken around the plant by any supervisory
personnel for this purpose. Hayworth's testimony was vague herein but cor-
responded in some aspects to that.of Hassenfeld. It is deemed unnecessary to
resolve this conflict because on either version of the incident it does not in the
opinion of the undersigned constitute interference, restraint, and coercion.
Pauline Bayne testified that on one occasion prior to the election Foreman
Smotherman informed her that employee Alice Thompson desired to talk to
her in the ladies' room ; that she went there and met Thompson ; and that the
latter asked her to withdraw from the Union. Smotherman had no recollection
EMPIRE PENCIL COMPANY 1215
of the incident and alleged that he did not know an Alice Thompson. Since there
is insufficient evidence to support a finding that Thompson, if she did exist, was
acting as Respondent 's agent or subagent , the resolution of this conflict is deemed
unnecessary and no findings adverse to Respondent are made with respect thereto.
C. The discharges
1. James Redd 91
James Redd, who was 25 years of age at the time of the instant hearing,
entered Respondent's employ in January 1946. He was then a recently dis-
charged veteran and had worked prior to his military service at a rival pencil
factory in Shelbyville, as a result of which he was experienced in substantially
all departments of a pencil factory. He worked in a number of departments at
Respondent's plants during the months that followed and received several wage
increases. Although Respondent, in its answer alleges that Redd was unsatis-
factory at various jobs on which he was employed at Respondent's plant, the
record is completely silent as to any criticism of his work ; on the contrary, his
retention in Respondent's employ, plus the several wage increases he received,
is evidence that his work was, in fact, satisfactory. After Redd had been in
Respondent's employ for some months, Vernon Caldwell, the predecessor of Odis
Hittson, and then in charge of the maintenance or carpenter crew, requested
Superintendent Harris to transfer Redd to his crew because he considered him
a capable worker 2
Several months before his discharge, on April 4, 1947, Redd was transferred
from the maintenance crew to the boiler room as fireman on the day shift. This
position, which Respondent was having difficulty in filling because of the quan-
tities of pencil dust which permeated the boiler room, was offered to Redd by
Superintendent Harris who stated that "he wanted" Redd to "operate it because
he couldn't get anyone to operate it because of the dust." Respondent contends
that Redd asked for the job but the testimony of Odis Hittson reveals that Redd
told him he would like the job and that shortly thereafter Superintendent Harris
offered him the position in the manner indicated above. Redd continued to oper-
ate the boiler and its replacement boiler which was then in the process of being
installed, for several months.
Approximately 1 week before March 29, 1947, Respondent discontinued some
of its night operations and it no longer became necessary to operate the boiler
at night. At this time, the night fireman, Deason, was assigned to day work
in the shaping department and Redd remained on duty days as the only fireman.
On or about March 29, Redd was transferred back to the carpenter crew under
Hittson for reasons given hereinafter, and Deason was brought back to the boiler
room in place of Redd as day fireman ; on April 4, 1947, when five members of
the carpenter crew were laid off for lack of work, Redd was included. These
five constituted the entire maintenance crew save for Raymond Allen who, as.
appears below in the discussion of the case of Juanita Harrell, was transferred to
the latter's job. Redd's separation notice as well as those of the other four
ai Also appearing in the transcript as Red.
s2 This crew consisted of Caldwell or Hittson who was assisted by several employees in
performing odd construction jobs in and about the plant. The record indicates that pro-
duction employees would be detailed to the maintenance crew when needed and- that when
the job was complete, they would be returned to their customary duties. The number of
the crew varied from 1 to 12, although on occasion , Hittson would work -alone due to
the lack of projects at hand.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated "Lack of Work, Job Filled" and the record reveals that the project then
being handled by the maintenance crew was complete.
Redd was outstanding in his union activities in the plant which were admittedly
known to Respondent's supervisory personnel including Plant Manager Hassen-
feld, and Plant Superintendent Harris, who later directed the transfer of Redd
to the maintenance crew at a time when Harris knew that the crew would he
laid off approximately. one week later. Even as far back as March 12, 1947,
when union representative Brock appeared at the plant, Redd was the first per
son he spoke to ; Redd was then in the boiler room together with Odis Hittson
and Redd stated at that time, in Hittson's presence, that he was in favor of the
Union. Redd distributed and turned in signed designation cards for the Union
and in addition arranged for the holding of a union meeting at the home of his
mother. Furthermore, when T. B. Moon, Manager of the Tennessee State Un-
employment Service, who was actively campaigning against the Union, appeared
at a union meeting and desired to address it, it was Redd who openly protested
his presence and brought about a decision by the body to request Moon to leave.
The position of the General Counsel herein appears to be that Redd was trans-
ferred to the carpenter crew from the boiler room at a time when Respondent
knew that its carpenter crew would be laid off within a matter of days and that
Respondent made the transfer with the discriminatory purpose of removing
Redd from the plant. It has been found that Respondent at the time of Redd's
transfer knew that the carpenter crew would be terminated in approximately
one week and as Respondent's Plant Superintendent Harris, who effected his
transfer, had knowledge of Redd's union activities, the undersigned will now
consider the history of Redd and others in the boiler room upon which a reso-
lution of this issue turns.
Redd, an employee with an exemplary work record, was offered and accepted
the position of day fireman in the boiler room. The night fireman was an
elderly man, Deason, approximately 75 years of age, of slight build and weighing
approximately 120 to 125 pounds .a The boiler was then in the process of being
replaced by a new one and for a period of time both boilers were operated,
although in approximately 2 weeks the old one was discontinued. Redd, who
had helped in the installation of the new boiler, continued to operate the new
boiler on the day shift and Deason continued on as night fireman. It is
significant that the major part of the work in connection with the operation of
this boiler was performed by Redd during the day. Thus, it was necessary for
him to bring coal in a wheelbarrow from a coal pile located approximately 50
feet distant across the road. He made at least 15 to 20 trips daily with a
.wheelbarrow load weighing approximately 200 pounds per load, and saw to it
that he brought in "enough coal to keep from hauling it in the evening." In
addition, Redd also made a number of trips daily during which he removed
ashes by a wheelbarrow to a lot nearby where the ashes were piled. It is
apparent, therefore, that when it became no longer necessary, several weeks
before Redd's lay-off, to operate the boiler at night, Deason was the logical man
for transfer to another department of the plant. Not only was he qualified, as
Superintendent Harris testified, to do "most anything" in the plant, but rather
inconsistent to Respondent's first contention herein, Deason was not able to
perform the heavy work on the day shift which Redd customarily performed.
Thus, Odis Hittson testified that at a later date when Deason had replaced
. 33Deason did not testify herein. At the request of the General Counsel, the undersigned
took notice of the physical appearance of Deason, who was in the hearing room. There is,
in addition, testimony by other witnesses concerning the physique and age of Deason.
EMPIRE PENCIL COMPANY 1217
Redd as day fireman it was necessary for someone to bring in the coal for
Deason, and presumably to remove the ashes as well. There is also evidence
that Denson was dissatisfied with working as a fireman and had requested that
he be taken out of the boiler room because the'sawdust bothered him. Thus, at
that time, not only was it logical for Deason to be transferred, but the transfer
was made and Redd continued on for about one week as day fireman.
Significant of the esteem in which Redd was held by Respondent is the fact
that upon installation of the new boiler several months before his termination,
Harris told him that if he wanted the job he could have it as long as be desired.
Harris also told Redd thta he feared that Deason would not be qualified to
operate a certain mechanism attached to the pump on the new boiler, although
Harris testified that he had instructed the mechanic who installed the boiler
to acquaint Deason with its operation. Not only is there no evidence that this;
alleged i?istruction was carried out but the record further shows that it was:
Redd who received instructions from the mechanic as to the operation of this
piece of equipment 34 It is thus clear that at this stage, several weeks before his
termination, and as the union campaign was getting started, the only logical
choice for transfer when it became necessary to eliminate one fireman was
Deason. The transfer was made even though it meant assigning Deason tQ
the day shift in the shaping department.
After Redd had been the only fireman on duty for approximately 1 week,
and as the union campaign was being stepped up, Superintendent Harris told
Redd that Respondent needed help on the carpenter crew and asked him if he
"would go back out there and help him [Harris]." Redd agreed and Harris
answered that he was putting Deason back in the boiler room as fireman.
According to Harris, the job in the shaping department to which Deason had
been assigned, had not materialized, and as he had found no other vacancy in
the plant for him, he therefore decided to place him in Redd's job as clay fireman.
Red went to the carpenter crew and about 11/2 weeks later was laid off with the
others on the crew.
The picture thus is one where a competent day fireman whose work was satis-
factory and, as the record reveals, was told by Harris when assigned to the
new boiler, that he could keep the job as long as he wanted it, was replaced
by a former night fireman who was not physically capable of moving the quan-
tities of coal and ashes required of the position. Not only is this cause for
question, but in addition, it is conceded that Redd, whose union activities were
outstanding and known to Respondent, was given the transfer at a time when
it was known that he would be laid off in a matter of days. True, the others
on the carpenter crew, save one, were also laid off, but they were not deliberately,
as the undersigned believes, placed on the crew at the propitious moment 3"
Finally, at no time did Respondent ever make an attempt to recall Redd to
its employ, although his termination was apparently treated as a lay-off rather
than a discharge,36 and the record reveals that thereafter Respondent did hire
some new employees for various positions.
"Findings herein are based largely on the testimony of Redd who impressed the under-
signed very favorably with his demeanor and forthright testimony. His testimony is
supported by that of Hittson and in large measure by that of Harris. Harris' testimony
in some aspects, however, was contrary to that of Redd and is there rejected.
m It appears that the others laid off were also union members.
m The separation notice form used by Respondent has three boxes for indicating the.
particular reason for separation. They are marked as follows: (A) Lack of Work, (P),
Voluntarily Quit, and (C) Discharged. Box A only was checked and the statement was
made below of "Lack of Work. Job Finished."
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent attempted to show that it either had to place Deason in Redd's
job or let him go; that no other opening was available ; that it so informed
Deason; and that the latter then said that he would take the job. However,
as appears below, the efforts made by Respondent in behalf of Raymond Allen
within a week or so thereafter , are in conspicuous contrast. Thus, Respondent
did not discharge Juanita Harrell when Allen replaced her, but assigned her
to another department temporarily. In addition, the record shows that another
department in the plant, the ferrule decorating department, was opened up
-shortly thereafter and that vacancies did appear therein. The telling of Deason
that he could have Redd 's job as fireman or none, despite Respondent 's unsup-
ported claim that Deason was well qualified on almost all operations in the
'plant, is to the undersigned indicative of an intent to place Deason on that
and that job alone. Finally, despite the opportunities which did materialize
later in the plant, Respondent never did recall Redd to its employe' o
In the final analysis, any doubt of Respondent's motivation herein is dispelled
by the testimony of Redd, which the undersigned credits, that Harris told him
1 week before his termination that he was placing Deason back in the boiler
room as day fireman because he needed Redd 's help on the carpenter crew, and
-then proceeded to ask Redd whether he would help out there. Harris was then
absolutely silent as to Redd's future on the carpenter crew although he ad-
mittedly knew that Redd would be laid off in a matter of days. This is buttressed
by the fact that the job which the crew was then performing was then in the
clean-up stages and no urgent need for Redd 's presence on the crew is indicated.
In view of the above, the undersigned is of the belief, and finds, that Respondent
deliberately assigned Redd to the carpenter crew with the intent to include him
within the scope of the reduction of staff planned for the near future and that
this assignment was discriminatorily motivated because of Redd's outstanding
union activities. It is therefore found that by terminating Redd's employment
on April 4, 1.947, Respondent has discriminated with respect to the hire and
tenure of his employment, thereby interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed by Section 7 of the Act.
It is further found that by assigning Redd to a department with the discrim-
inatory intent of including him in a group to be laid off , such assignment being
discriminatorily motivated , Respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed by Section 7
of the Act.
2. Juanita Harrell
Juanita Harrell entered Respondent 's employ in January 1946 and was assigned
to washing pencils in the packing department under floorlady Louise McBride at
40 cents an hour. After 3 days she was transferred to the ferrule department
where she worked until approximately November when she was transferred to
the tipping department under Plassie Wheeler where she remained until her
employment was terminated on April 7, 1947. During the last 5 months of her
employ she worked as a boxer for 3 months and then upon her request, as operator
of a pointing machine for the last 2 months.38 Upon her transfer to the pointing
31 Respondent attempted to show that Redd had been seriously Ill for sometime there-
after. Although Redd was ill , and this fact may have been known to Respondent , it still
made no attempt to contact him for reemployment purposes.
38 The operator of the pointing machine actually operated four machines ; two girls were
:assigned to the operator and each boxed the production of two machines . Thus, Harrell
was a boxer and then upon her request was transferred to the position of operator.
EMPIRE PENCIL COMPANY 1219
machine Harrell, who had previously received several wage increases, was given
a raise to 55 cents an hour. She was extremely active in the organizational ac-
tivities of the Union and according to union representative Brock, Harrell turned
in more signed cards than any other employee. As previously noted, the car-
penter crew, with the exception of Raymond Allen was laid off on April 4. Al-
though Allen was himself very active in the Union and in fact was a member
of the union committee in the plant, he was called in on April 4 by Superintendent
'Harris, who admittedly knew of Allen's union activities, and told that Respondent
wanted to retain him in its employ. Harris then gave Allen a choice of re-
turning to the operation of a tipping machine or to the operation of a pointing
machine. Allen, who had trouble with his feet because of the concrete floor in
.the tipping department and had been transferred at his own request to the car-
penter crew after 21/2 years in the tipping department, expressed a preference for
the pointing machine. Allen selected this machine, then being operated by
Juanita Harrell, because, as he testified, he could move about more while on the
pointing machines and thus put less strain on his feet. His request was granted
and on April 7 he reported to the pointing machine as instructed by Harris 89
On Saturday, April 5, Superintendent Harris conferred with Plassie Wheeler
because the reassignment of Allen to the tipping department necessitated the
release or transfer of an employee in the department. Wheeler recommended
that Juanita Harrell be the one selected for transfer because, as appears below,
he was satisfied with the work of the two girls who were doing the boxing opera-
tions off of the pointing machine operated by Harrell, and more particularly be-
cause Wheeler had experienced difficulty with Harrell who had refused to handle
and move certain boxes of pencils in the department. Harris accepted Wheeler's
recommendation and decided to transfer Harrell. There was at the moment no
particular opening for Harrell in any of the departments. Harris, who testified
that he anticipated an opening in the near future in the ferrule decorating de-
partment, which did in fact materialize shortly thereafter, decided to assign Har-
rell temporarily to the packing department to wash pencils, under the direction
of Louise McBride. The record also indicates that temporary assignments of this
nature were occasionally made by Respondent in order to avoid laying off an
employee.
When Harrell reported for work on the morning of April 7, she discovered that
Allen was preparing to operate her machine. She testified that she asked
Wheeler for an explanation and he replied that she was being transferred up-
stairs "to wash pencils under Louise McBride, and all my raises were being taken
away from me." 10 Harrell alleged that she then requested her next previous
position of boxing at 50 cents per hour; that Wheeler "refused her this assign-
inent and stated she was being transferred on the order of Superintendent Har-
ris"; and that when she protested that she could not get by on 40 cents an
hour, he replied that she would either "go upstairs and wash pencils or get
out." Wheeler denied that he said anything to Harrell other than she was being
transferred to the packing department and that Harrell became angry and used
obscene language.' The undersigned believes that Wheeler's testimony that
he merely directed Harrell to report to the packing department without any
"The testimony of Allen and Superintendent Harris is in substantial agreement on
this transfer.
4° This statement allegedly meant to Harrell that her wage rate was being reduced from
55 cents to 40 cents an hour.
41 The usage of this alleged obscenity, which appears in the transcript, was denied by
Harrell.
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
comment as to a reduction in wage more accurately reflects what actually took
place. This view is supported by the fact that Respondent did not reduce wage
rates on temporary transfers of this type, although the record discloses that if
the transfer were later made permanent, the rate would itself be reduced or
increased to that prevalent in the department of transfer. Furthermore, the
testimony of Raymond Allen who was present part of the time before Harrell left
the scene , confirms that she was incensed at the time. Accordingly, the under-
signed credits the testimony of Wheeler herein that he merely directed Harrell.
to report to the packing department.42 Harrell did not report to the packing
department as instructed but immediately punched out her time card and went
to the office in search of Superintendent Harris. There she was informed that
Harris would not be in for an hour or an hour and a half whereupon she put her
time card on his desk and left the plant. She never returned and has not been
recalled. Respondent contends that Harrell quit its employ and it is the con-
tention of the General Counsel that Harrell was constructively discharged in that
she refused to accept a discriminatory transfer which was imposed because of
her union activity.
Considerable testimony was adduced concerning the question of whether
Harrell did or did not refuse to perform part of the work required of an operator
of a pointing machine which was the reason assigned by Respondent for select-
ing her for transfer when it was decided to assign Raymond Allen to her job.
In the opinion of the undersigned, the record supports the contention of Respond-
ent and it is found that Harrell did refuse to perform some of her duties without
proper justification therefor.
The record reveals that Harrell was assigned to the pointing machine and
given a wage increase to 55 cents per hour. At that time, the pointing machine
operator was required to walk 6 or 7 feet from the machine, pick up from the
floor boxes of pencils weighing approximately 25 pounds, and carry them to the
machine for insertion of the pencils for pointing. Harrell apparently had no
objection to doing this at a wage rate of 55 cents per hour, although the previ-
ous operator, Sheppard, had been paid 60. At the time, however, Respondent
was in the process of installing a conveyor belt on which the boxes of pencils
were placed on the floor above and sent down to the department, thus obviating,
as had been the case up to then, the physical carrying of boxes of pencils to
the department and dumping them 6 or 7 feet from the pointing machines.
Within several weeks, work on the conveyor belt was complete and boxes were
sent down the conveyor, the foot of which was the same distance of 6 or 7 feet
from the place where Harrell worked.
Harrell, who made no objection to walking 6 or 7 feet and picking up boxes
from the floor, refused to handle and lift boxes from the conveyor which was
several feet off the ground, testifying "when I took over the pointing machine,
I did not agree in any way to take the . .. boxes off of the chute (conveyor).
I did not know at the time it was my job." This was her position despite the
fact that she was aware, at the time of her transfer, that the conveyor was being
installed. It appears that Wheeler attempted to get her a 5 cent raise when
she said that she would handle the boxes off of the conveyor if she received such
an increase. The raise was refused by Harris and as recently as one week
before Respondent's attempted transfer of Harrell she again refused to handle
the boxes. It is accordingly found that Respondent did have valid cause in
42 Whether Harrell used obscene language at the time is immaterial to the issues herein
and accordingly it is deemed unnecessary to resolve the conflict.
EMPIRE PENCIL COMPANY 1221
selecting Harrell for transfer. Finally, she was replaced by a long-term employee
whose union activities had been open and outstanding, Raymond Allen, and who
was in fact, on the union committee in the plant. This transfer too was brought
about by Allen's own selection of Harrell's position as the-one hq preferred."
The General Counsel claims, however, that the transfer was discriminatorily
motivated because Respondent knew that Harrell would not work in the packing
department under Louise McBride. Thus, Harrell testified that in the previous
January, approximately 3 months earlier, she had volunteered to Wheeler the
information that she would not work under McBride under any circumstances
because she had "heard" that McBride had a bad disposition. It is contended
that Respondent was aware of this dislike of Harrell for McBride and that it
therefore decided to assign her to a position which it knew she would not accept.
Harrell, in- effect, admitted, however, that her distaste .for the transfer was her
assignment to McBride's division regardless of the wage she would have been
paid. This too sheds light on her claim that Wheeler stated that all her wage
increases were being removed. Both Wheeler and Harris denied any knowledge
of Harrell's dislike for McBride and the undersigned credits their denials of this
rather strained position.
Other testimony offered by the General Counsel to show discriminatory moti-
vation was the testimony of employee Charles Hayworth that Superintendent
Harris had told him that Harrell, as well as James Redd, was devoting too much
time in the plant to union activities. Furthermore, Raymond Allen testified
that after the election on April 24, approximately 3 weeks after Harrell had
left Respondent's employ, Wheeler told him that he had to eliminate Harrell
from the plant because of her union activities, and- that 4 or 5 months later
Wheeler remarked to him in the midst of a discussion concerning the Union, that
he had removed Harrell from the department. Both Harris and Wheeler denied
ever having made these statements.
Although, in view of the statements attributed to Harris and Wheeler herein-
above, the matter is not free from doubt, the undersigned finds it unnecessary
to resolve this conflict because, even if credited it is believed that a preponderance
of the evidence requires a finding that Harrell quit her job rather than accept a
transfer which was not discriminatory. Harrell, as her testimony makes clear,
took it upon herself to impose conditions upon her job of pointer operator. It
was and is management's prerogative to place whatever duties it chooses upon
an employee and Harrell specifically rejected a task assigned to her which in no
sense can be considered an unjustified imposition, especially when compared
with her then existing duties. Thus, when her coworker in the Union was
given a choice of jobs and selected hers it became indeed logical to reassign Har-
rell. Having found that the proposed transfer was not a discriminatory one, and
not at a reduction in pay, and in any event that Harrell would not have accepted
such a transfer to the supervision of Floorlady McBride regardless of whether
her wages were reduced or not, the undersigned is of the belief, and finds, that
a preponderance of the evidence does not support the position herein of the
General Counsel. It is accordingly recommended that the case of Juanita Harrell
be dismissed."
93 Although the transfer of Allen bears a suspicious resemblance to the technique used
in the replacement of James Redd by Deason , there is one significant difference in that
herein Allen did make the selection of the pointing machine as the job he wanted.
44 Cf . N. L. If. B. V. Scullin Steel Co ., 161 F. ( 2d) 143 ( C. A. 8) ; N. L . R. B. v. Kopman-
Woraeek Co., 158 F. (2d) 103 (C. A. 8); Matter of Pioneer Electric Co., 75 N. L. R. B.
117, and Matter of Fairmount Creamery Co., 73 N. L . R. B. 1380.
867351-50-vol. 86-78
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Fred Harrell, Jr.
Fred Harrell, Jr., a cousin of Juanita Harrell, entered Respondent 's employ
in December 1946, and operated a pointing machine in the painting department
where he remained until his employment was terminated on April 11, 1947.
He became interested in the Union at the outset of the organizing campaign and
applied for membership at the first meeting on March 14 or 15. He distributed
membership application cards to some employees and did obtain a signed card
from one employee. In addition, at least one union meeting was held at his
home. On April 11, Harrell and three other employees McGilliard, Darnell, and
Carl Hill, were summoned to the office just before quitting time and told, accord-
ing to Harrell, that they were being laid off because work was slack and that
they would be recalled when work picked up. Each was given a separation
notice and although the separation notice bore three boxes in which the reason
for separation was to be indicated, (A) Lack of Work, (B) Voluntarily Quit,
(C) Discharged, only Box (A) "Lack of Work" was checked and Box (C) was
left blank. None of the four was ever recalled to Respondent's employ.
The record indicates that prior to the union campaign Respondent had under-
taken to rearrange the machines in the painting department so that one employee
could operate two machines instead of one as had been the case. According to
Kenneth Hastings, who had temporarily replaced Foreman Naron, this doubling
up of machines resulted in surplus personnel and when it became necessary to
release the unneeded personnel he suggested the names of these four to Super-
intendent Harris who did release them. These four were allegedly newer em-
ployees and also less desirable. Some of the extra personnel resulting from
the change in operations were women who were transferred to the packing
department and in fact this was the type of transfer that Juanita Harrell refused
4 days earlier. There seems to be no question but that the reduction was a
legitimate one and Harrell was selected because of prior incidents. Thus, Hast-
ings claimed that Harrell was wont to throw rubber erasers at other employees
and that one one occasion he found him at the window at a time when he should
have been at his machine some yards distant. Harris claimed that he found
Harrell away from his machine several times and cautioned him not to leave his
machine. On one specific occasion, he found Harrell at the window with his
machine jammed up by pencils and directed him to return to the machine.
According to Harrell, on this occasion he merely went to the window for a
breath of air. The above conduct, is, in essence , the Respondent's reason for
selection of Harrell for a lay-off when a reduction became necessary, because,
according to Hastings, he was willing to tolerate Harrell only as long as he was
needed in the department.
Although the reasons assigned by Respondent in the selection of Harrell are
somewhat on the trivial side, nevertheless, Harrell was one of a group of four
laid off apparently for legitimate cause on April 11. There is no evidence of
the employment records, other than tenure, of the three others and it is true
that the separation notice indicated that the termination was in the nature of a
lay-off rather than a discharge. Although Hastings claimed that Respondent
may recall some help after lay-offs, but not necessarily so, Respondent has never
recalled any of the four to its employ. Upon a consideration of the entire record
and the fact that insofar as this record is concerned, the reduction in force was
legitimate as was the selection of the other three, the undersigned is of the belief
and finds that a preponderance of the evidence does not support this allegation
of the complaint. It is accordingly recommended that the case of Fred Harrell,
Jr., be dismissed.
EMPIRE PENCIL COMPANY
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
1223
The activities of Respondent set forth in Section III, above, occurring in con-
nection with its operations described in Section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States
and such of them as have been found to be unfair labor practices tend to lead to
labor disputes burdening and obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices affecting
commerce, it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It has been found that Respondent has discriminated with respect to the hire
and tenure of employment of James Redd because of his union and concerted
activities. The record indicates that Redd accepted a position several months
prior to the instant hearing and at that time decided that he no longer desired
reinstatement with Respondent, and it will therefore not be recommended that
Redd be offered reinstatement to his former or substantially equivalent posi-
tion. It will be recommended, however, that he be made whole for any loss
of pay suffered by reason of Respondent's discrimination, by payment to him of
a sum of money equal to that which he would have earned from the date of the
discrimination against him to the date that he abandoned any desire to return
to Respondent's employ, less his net earnings 4' during that period.
Respondent, by its discharge of James Redd, as well as its other conduct set
forth hereinabove found to be violative of the Act, resorted to the most effective
means at its disposal to defeat what the Supreme Court has termed "the principal
purpose of the Act," namely, its guarantee to employees of "full freedom of asso-
ciation and self-organization."" Concurrently with such discriminatory treat-
ment Respondent made threats to discriminate against the employment of its
employees because of their union membership and organized a mass withdrawal
of its employees from the Union. The undersigned is convinced that the unfair
labor practices found herein reflect on the part of Respondent "an attitude of
opposition to the purposes of the Act to protect the rights of employees gener-
ally,"" and the consequent likelihood of Respondent resorting to other acts of
restraint, and coercion, in violation of the Act. The undersigned will, therefore,
recommend that Respondent be ordered to cease and desist from in any manner
infringing upon the rights of employees as guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. International Woodworkers of America, affiliated with the Congress of In-
dustrial Organizations, is a labor organization within the meaning of Section
2 (5) of the Act.
2. By discriminating with regard to the hire and tenure of employment of
James Redd, thereby discouraging membership in a labor organization,
Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (3) and Section 8 (a) (3) of the Act.
95 See Matter of Crossett Lumber Co., 8 N. L. R. B. 440, 497-98.
45 Wallace Corp. v. N. L. R. B., 323 U. S. 248, 251.
41 May Department Stores v. N . L. R. 8., 326 U. S. 376.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (1) and
Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. Respondent has not discriminated with respect to the hire and tenure of
employment of Juanita Harrell and Fred Harrell, Jr.
RECOMMENDATIONS
On the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that Respondent, Empire Pencil Company, Division
of Hassenfeld Bros., Inc., its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in International Woodworkers of America, CIO,
or any other labor organization of its employees, by discriminatorily discharg-
ing or refusing to reinstate any employee, or by discriminating in any other
manner with regard to hire and tenure of employment or any term or condition
of employment ;
(b) Interrogating or questioning its employees concerning their union
affiliation, activities, or sympathies ;
(c) Threatening its employees with economic discrimination because of their
union affiliation and activites ;
(d) Coercing its employees to withdraw from membership in a labor organiza-
tion or instigating or sponsoring withdrawals from membership in a labor
organization ;
(e) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form labor organizations, to
join or assist International Woodworkers of America, CIO, or any other labor
organization, to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Make James Redd whole for any loss of pay suffered by reason of
Respondent's discrimination against him in the manner outlined in the section
hereinabove entitled "The Remedy" ;
(b) Post at its plant at Shelbyville, Tennessee, on all bulletin boards, or such
places as notices are customarily posted, copies of the notice attached hereto and
marked "Appendix A." Copies of said notice, to be furnished by the Regional
Director for the Tenth Region, shall, after being duly signed by Respondent's
representative, be posted by Respondent immediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material ;
(c) Notify the Regional Director for the Tenth Region in writing, within
twenty (20) days from the receipt of this Intermediate Report, what steps
Respondent has taken to comply herewith.
It is recommended that unless on or before twenty (20) days from the date
of the receipt of this Intermediate Report, Respondent notify said Regional
Director in writing, that it will comply with the foregoing recommendations, the
EMPIRE PENCIL COMPANY 1225
National Labor Relations Board issue an order requiring Respondent to take the
aforesaid action.
It is further recommended that the complaint be dismissed insofar as it alleges
that Respondent discriminated with regard to the hire and tenure of employment
of Juanita Harrell and Fred Harrell , Jr. It is further recommended that the
complaint be dismissed insofar as it alleges the Respondent engaged in
surveillance of union meeting places.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty ( 20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations,
file with the Board, Rochambeau Building, Washington 25, D. C., an original
and six copies of a statement in writing setting forth such exceptions to the
Intermediate Report and Recommended Order or to any other part of the record
or proceeding ( including rulings upon all motions or objections ) as he relies
upon , together with the original and six copies of a brief in support thereof ;
and any party may, within the same period , file an original and six copies of a
brief in support of the Intermediate Report and Recommended Order. Immedi-
ately upon the filing of such statement of exceptions and/or briefs , the party filing
the same shall serve a copy thereof upon each of the other parties. Statements
of exceptions and briefs - shall designate by precise citation the portions of the
record relied upon and shall be legibly printed or mimeographed , and if mimeo-
graphed shall be double spaced. Proof of service on the other parties of all
papers filed with the Board shall be promptly made as required by Section 203.85.
As further provided in said Section 203.46 should any party desire permission to
argue orally before the Board, request therefor must be made in writing to the
Board within ten (10 ) days from the date of service of the order transferring
the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations , the findings , conclusions, recommendations , and recom-
-mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations , be adopted by the Board and become its findings , conclusions,
and order , and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 31st day of January 1949.
MARTIN S. BENNETT,
Trial Examiner.
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 affiliation,
activities, or sympathies.
WE WILL NOT threaten our employees with economic discrimination because
of their union affiliation and activities.
WE WILL NOT coerce our employees to withdraw from membership in a
labor organization or instigate or sponsor withdrawals from membership in
a labor organization.
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
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizations, to join or assist International Woodworkers of America, CIO,
or any other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or protection.
WE WILL NOT discriminate in regard to hire or tenure of employment or
any term or condition of employment against any of our employees because
of membership in or activity on behalf of any labor organization.
WE WILL make whole the employee named below for any loss of pay
suffered as.a result of the discrimination against him.
James Redd
ALL our employees are free to become or remain members of the above-
named union or any other labor organization.
EMPIRE PENCIL COMPANY,
DIVISION OF HASSENFELD BROS ., INC.,
Employer.
Dated----------------------- By-----------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.