J. H. Rutter-Rex Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Mar 25, 1955

111 N.L.R.B. 1099 (N.L.R.B. 1955)

J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 1099
cases involving other types of business or operations for which the Board has
established specially applicable standards for taking jurisdiction in the 48 States,
we shall apply the same standards for asserting jurisdiction in Puerto Rico.
[Emphasis supplied.]
Applying the foregoing to the admitted facts herein it is obvious that the Respond-
ent's gross business for the representative period stated in the complaint , $ 80,000
annually, does not meet the standards set forth in the Hanford case, supra , $200,000
annually. Since the Board would not assert jurisdiction over the Respondent' s busi-
ness, if it were in one of the several States , then it follows that under the doctrine
laid down in the Sixto case, supra , it would apply the same standards in Puerto Rico
and the Territories.
In the circumstances the Trial Examiner will recommend that the complaint herein
be dismissed forthwith.
J. H. RUTTER-REX MANUFACTURING COMPANY, INC. and AMALGAMATED
CLOTHING WORKERS OF AMERICA, CIO . Case No. 15-CA-632.
March 25,1955
Decision and Order
On November 30, 1954, Trial Examiner David London 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. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
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 Interme-
diate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts, with minor corrections,' the Trial Examiner's find-
ings, conclusions, and recommendations.
THE REMEDY
The Trial Examiner found that the Respondent discriminatorily
discharged Elizabeth Morgan on July 31, 1953, and offered her rein-
statement effective August 31, 1953. Morgan could not accept the job
offered because of illness. The Trial Examiner also found that the
Respondent thereafter discriminatorily refused to reinstate Morgan
i The Intermediate Report contains certain minor misstatements or inadvertencies, none
of which affects the Trial Examiner 's ultimate conclusions . Accordingly, we note the
following corrections :
J. H. Rutter's speech pertaining to the Union's organizational campaign was delivered
on July 30, 1953
Eight of the employees who signed the telegram received by the Respondent on October
16, 1953 , testified concerning conversations thereafter had with Eugene Rutter.
During Eugene Rutter' s conversation with Leonard concerning the telegram received on
October 16, 1953, Hingle advised Rutter that he had never had any trouble with Leonard.
When, on July 31, 1953, Budy first told Morgan to go to her machine , Morgan was
about 20 feet from the head of the aisle from which Morgan's machine was about another
90 feet.
The title of the case cited as 204 F 2d 579 (C. A 10) is N. L. R. B. v. Coal Creek Coal Co.
111 NLRB No. 189.
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on January 6, 1954. However, the Trial Examiner recommended that
back pay for Morgan be computed from the date of her discriminatory
discharge on July 31, 1953, to the date the Respondent offers her re-
instatement. The Trial Examiner's recommended remedy is hereby
amended to conform to his findings of discrimination which we have
adopted, by tolling back pay due Morgan from August 31, 1953, to
January 6,1954.
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, J. H. Rutter-Rex
Manufacturing Company, Inc., New Orleans, Louisiana, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Clothing Workers
of America, CIO, or in any other labor organization of its employees,
by discriminating in regard to their hire or tenure of employment
or any term or condition of employment.
(b) Interrogating its employees with regard to their membership
or nonmembership in Amalgamated Clothing Workers of America,
CIO, or in any other labor organization, in a manner constituting in-
terference, restraint, or coercion, in violation of Section 8 (a) (1)
of the Act.
(c) Engaging in surveillance of its employees with respect to their
union membership and activities, or threatening them with reprisals
because of such activities.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist the Amalgamated Clothing Workers of America,
CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all 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.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Dolores King, Clara Dixon, and Elizabeth Morgan
immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other rights
and privileges previously enjoyed, and make them, and Ida Haynes,
whole in the manner set forth in the section of the Intermediate Report
entitled "The Remedy," as amended in this Decision.
J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 1101
(b) Upon request, make available to the Board, or its agents, for
examination and copying, all payroll records, social-security payment
records, timecards, personnel records and reports, and all other records
necessary to analyze the amounts of back pay due under the terms of
this Order.
(c) Post at all of its plants in New Orleans, Louisiana, copies of
the notice attached hereto and marked "Appendix." 2 Copies of such
notice, to be furnished by the Regional Director for the Fifteenth
Region , shall, after being duly signed by the Respondent's authorized
representative, be posted by the Respondent immediately upon receipt
thereof, and be maintained by the Respondent for sixty (60) con-
secutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the said Regional Director for the Fifteenth Region, in
writing, within ten (10) days from the date of this Order, as to the
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent has violated the Act
otherwise than herein found.
2In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
Appendix
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, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in Amalgamated Cloth-
ing Workers of America, CIO, or in any other labor organization
of our employees, by discriminating in regard to their hire or
tenure of employment or any term or condition of employment.
WE WILL NOT interrogate our employees with regard to their
membership or nonmembership in Amalgamated Clothing Work-
ers of America, CIO, or in any other labor organization, in a man-
ner constituting interference, restraint, or coercion, in violation
of Section 8 (a) (1) of the Act.
WE WILL NOT engage in surveillance of our employees with re-
spect to their union membership and activities, or threaten them
with economic reprisals because of such activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
zation, to form, join, or assist the Amalgamated Clothing Work-
ers of America, CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any
or all such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section 8
(a) (3) of the Act.
WE WILL offer to Dolores King, Clara Dixon, and Elizabeth
Morgan immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to any sen-
iority or other rights and privileges previously enjoyed, and make
them, and Ida Haynes, whole for any loss of pay suffered as a
result of our discrimination against them.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of the above-named Union, or any other
labor organization, except to the extent that this right may be affected
by an agreement in conformity with Section 8 (a) (3) of the Act.
J. H. RUTTER-REX MANUFACTURING
COMPANY, 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.
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by Amalgamated Clothing Workers of America, CIO,
herein called the Union, the General Counsel of the National Labor Relations Board,
by the Regional Director for the Fifteenth Region, issued a complaint against J. H.
Rutter-Rex Manufacturing Company, Inc., herein called Respondent, alleging that
Respondent has engaged in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National
Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of
the charges, complaint, and notice of hearing were duly served upon Respondent.
With respect to the unfair labor practices, the complaint alleged, in substance,
that since July 1953 Respondent, by conduct specifically pleaded, interfered with,
restrained, and coerced its employees in the exercise of rights guaranteed in Section
7 of the Act and in violation of Section 8 (a) (1) thereof. The complaint further
alleged that on or about July 31, 1953, Respondent discharged Ida Haynes and Eliza-
beth Morgan, and on August 5, 1953, discharged Hannah Bibbins and Dolores King,
and that all of said discharges were made because the named employees were mem-
bers of, and engaged in activities in behalf of, the Union and because said employees
engaged in concerted activities with other employees for the purpose of collective
bargaining and other mutual aid and protection. The complaint also alleged that
on or about August 3, 1953, and thereafter, Respondent refused to rehire, reinstate,
or reemploy Clara Dixon for the same reason for which it discharged the four
employees above named. By its answer, Respondent denied the allegations of the
complaint above mentioned.
J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 1103
Pursuant to notice, a hearing was held at New Orleans, Louisiana, on various dates
between March 22 and June 17, 1954, before a duly designated Trial Examiner,
at which hearing the General Counsel, Respondent, and the charging Union were
represented by counsel. Full opportunity to be heard, to examine and cross-
examine witnesses, to introduce evidence bearing upon the issues, and to present
oral argument and briefs was afforded all parties. On August 30, 1954, the General
Counsel and Respondent filed briefs which have been duly considered.
From my observation of the witnesses, and upon the entire record in the case,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and during all times relevant herein has been, a Louisiana cor-
poration with its plants and main office in New Orleans, Louisiana, where it is en-
gaged in the manufacture of work clothing, including work shirts and work pants.
In the course and conduct of its business operations during the calendar year 1953,
Respondent purchased raw materials consisting principally of cloth having a value
in excess of $200,000, 75 percent of which was shipped to it from places outside
the State of Louisiana. During the calendar year 1953, Respondent sold, shipped,
and delivered finished products having a value in excess of $500,000, of which 65
percent was shipped to points outside the State of Louisiana. Upon the entire record,
I find that Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Clothing Workers of America, CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Union's organization campaign
The Union began its active 1953 campaign to organize Respondent's approxi-
mately 600 employees about May 1, 1953,1 under the supervision of James E.
Youngdahl, its assistant regional director in charge of organization for the New
Orleans area. An organizing committee chosen from among Respondent's employees
was established to secure membership in the Union from the remaining employees.
A series of organization meetings "to establish a card producing agency for the
plant" were held, the first on or about June 20, attended by 3 or 4 employees. The
second meeting was held on or about July 11, attended by about 15, and a third
meeting on July 30, at CIO headquarters, at which about 15 were again present.
Another meeting was held August 7, to "assess the effects" of the intervening dis-
charge of "the leading committee figures who had spent the time building" the
organizing campaign. A new organizing committee was appointed on October 15
and Respondent was immediately notified of its membership under circumstances
hereafter detailed.
B. Interference, restraint, and coercion
On July 31, the day following the meeting at CIO headquarters, J. H. Rutter,
president of Respondent, assembled the employees at its main plant and addressed
them over a loudspeaker. Though no credible, probative evidence was offered that
Respondent was then suffering from undue absences, tardiness of the employees,
or low production, Rutter first directed his remarks to those subjects. He then told
the employees, in substance, that he had heard that the unions were around talking
to the employees; that if they read the newspapers they would know that unions
didn't do anything but cause strikes which result in suffering to their families, that
he didn't want, and there never would be, any "damn union" in the plant which
"belonged" to him, and that no one else was going to tell him how to run it; that
the last time the Union tried to come in he fired 300 employees and that this time,
if necessary, he would fire 400 to 500 more.
The findings in the preceding paragraph are based on the composite testimony of
12 employees who heard the entire speech. J. H. Rutter, who made the speech, did
not testify, nor was there any explanation given why he did not appear at the hear-
' Unless othenroise specified, all references to dates herein are to the year 1953.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing.2 And, while the record establishes that Rutter had a "piece of paper" before
him during part, but not all , of the time while delivering his speech , no attempt was
made to introduce that "paper" in evidence .3
Upon the entire record I find that Rutter's threats that there would never be a
union in the plant, and that he would, if necessary, fire 400 to 500 employees to
keep the Union out, were in violation of the rights guaranteed Respondent 's employ-
ees by Section 7 of the Act. By such threats Respondent violated Section 8 (a) (1)
of the Act.
On October 16, Respondent received a telegram from the Union advising it that
an organizational committee had been appointed which consisted, in part, of 12
of Respondent 's employees named in the telegram . Seven of the named employees
appeared at the hearing as witnesses for the General Counsel and testified, inter alia,
concerning conversations during the week following receipt of the telegram, with
Eugene Rutter, Respondent's vice president in charge of production,4 and the son
of J. H. Rutter, its president. It would unduly extend this report to review in detail
all the interviews, conducted individually, between these seven employees and Rutter
concerning which testimony was given. However, the findings that follow are suffi-
cient in scope to reveal the general trend and pattern of the interviews.
It is undisputed that Rutter told each of the employees that he had received a tele-
gram from the Union apprising Respondent of that employee 's appointment as a
member of the Union's committee. I further find that at some point during the
interview Rutter told each of the employees, in substance, that "their position on
the committee [made] no difference, as far as their job is concerned, one way or
the other, providing they obey all the rules of the Company and confine their organi-
zational activities to their own time and do not do any organizing on company time
or premises." 5 Accordingly, Respondent argues in its brief, all that Rutter did was
to call "each member of the committee in and [make] it clear to her that she would
not be treated differently because of her union membership, and that she would be
expected to maintain her attendance record and her production record, and that
furthermore she would be expected to confine her union activities to her own time "
Unquestionably, union activity, except under limited circumstances which need not
here be considered, does not diminish an employer's right to insist upon complete
and timely performance of the tasks for which an employee is engaged, and for
which he or she is being paid. Rutter, however, did more than is proclaimed by
Respondent's brief. And, in appraising Rutter's remarks, I cannot only consider
his noncoercive utterances and hold that they neutralize the subtle and veiled threats
created by other portions of his remarks. Its total effect must be appraised as of
the place and time of its utterance, and against the existing background.
No substantial, credible evidence was offered that any of the committee members
interviewed by Rutter had even been neglectful or otherwise deficient in the per-
formance of their duties, or that they had ever been warned for such improper per-
formance. Indeed, John Drake, Rutter's "assistant in running the factory," who
was present during all the interviews, testified that "as a group, they were fine"
employees.
After informing Marie Leonard that he had the telegram containing her name,
he told her that he was curious to know why she would want "to do something like
that," that she had a good record, was making a little over a $1 an hour and then
said: "From now on, you will have to keep all the rules and regulations. You will
2 The failure to do so warrants "drawing an inference that this testimony ], if adduced,
would not have been favorable to Respondent." N L. R. B. v. Wallick & Schwalm Co.,
198 F. 2d 477, 483 (C. A. 3) , Interstate Circuit v. United Staten, 306 U S. 208, 225-226 ;
Wigmore, Evidence, Section 285, 288 (3d Edition 1940)
3 Respondent 's counsel , while cross -examining the Genera l Counsel's witnesses on their
version of Rutter ' s speech, had an unidentified memorandum in his hand . The cross-
examination just referred to was punctuated by frequent references to what purported to
be quotations from the memorandum. However, no attempt was made to identify that
memorandum, to show that it had any relation to, or connection with, the "paper" that
Rutter had before him on July 31, or to offer it in evidence Furthermore, Respondent's
counsel while reading from the memorandum stated that he was "omitting parts of the
speech "
4 From this point on, unless otherwise specified, all references to Rutter are to Eugene
Rutter
6 The quotation just noted is from notes made by Rutter of a long distance telephone
conversation on October 16, after receipt of the Union's telegram, between John Scott at
Fort Worth, Texas, Respondent's "labor lawyer," and both Rutters, and which notes
Eugene Rutter had before him and used during the interviews with the employees.
J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 1105
have to keep your production high and be to work on time and work regular from
now on." This, notwithstanding that Drake at the same time informed Rutter that
he had never had any trouble with Leonard.
During the course of these same interviews, Rutter told Olga Gilyot that he ex-
pected production and good attendance "from now on." To Lulu Mae Washington
he said: "I want you to know that you have a good attendance, A-i. You have
good production. You have quality. I want you to know that I don't want any union
activities carried on around, in or outside of working hours, at any time, in the
morning, in the evening, or lunch time. I want you to be here every day, and on
time. I want quality, . I want production, or else, . . . you will be fired."
In talking to Sophia Mae Carter he said: "I don't want you committeeing on any
of the Company's time or the Company's premises. I want you to make produc-
tion, damn good quality, better not miss no time, and better not be late." He told
Ella Mae Jackson that he was surprised she had affiliated with the CIO, and asked
whether she knew that the Union was going to send the telegram containing her
name because, he said, the other girls he talked to had told him that they didn't
know anything about its He then added: "Whatever you do after a quarter of
five is your business, but make damn sure you have production, quality, and don't be
late, and don't stay out." He asked Dorothy Mixon what she knew about the tele-
gram and then said to her: "I want you to not miss a day, don't come in late and I
want the best of quality and production." To Theresa Weber he said: "I expect
production, quality, be on time every day, and don't miss no days." He asked Lena
Lemeiux, after showing her the telegram, how it happened that she was "in that
mess," and why she allowed "other people" to influence her in joining the Union.
He also asked Lemeiux whether Sophia Carter had asked her to join the Union, and
told her that there would never be a union in the plant as long as he and his father
owned the business. He further told her that he didn't want his father to know
about her being connected with the Union.
Nor can I be unmindful of the effect that the interviews were calculated to have
when viewed against the threats made by J. H. Rutter several months earlier that he
would, if necessary, fire 400 to 500 employees to keep the Union out, just as he had
fired 300 on an earlier occasion. In that state of the record, Rutter's remarks that
"from now on" he expected perfect performance from these committee members, then
considered to be "fine" employees, could only be construed by them, indeed, as it was
calculated to be construed, as a threat that their tenure had been placed in jeopardy
because of their union activities, and that the slightest deviation from a newly im-
posed, higher standard of performance would result in the loss of their jobs. By
such veiled threats, by Rutter's warning that the Union would never come into the
plant, by his interrogation of the employees concerning their union activities, and by
his direction not to engage in such activities "outside of working hours, at any
time, . lunch time . on the company's premises," Respondent interfered with,
restrained, and coerced its employees in the exercise of rights guaranteed by the Act,
and thereby violated Section 8 (a) (1) thereof.
C. The discharge of Ida Haynes and Elizabeth Morgan
Ida Haynes was in Respondent's employment from 1947, and Elizabeth Morgan
from March 1946, both as machine operators. The two women were discharged on
July 31, 1953, the day following J. H. Rutter's speech.
Haynes joined the Union on July 10 and attended its meeting at CIO headquarters
on July 30 with Morgan. She secured the signatures of an undisclosed number of
friends to applications for membership in the Union and turned them over to Mor-
gan who had given her the application forms. Morgan joined the Union on July 2
and attended the meetings of July I1 and 30. To the date of her discharge on July
31, she secured the signatures of 20 employees to applications for membership in
the Union. Both women were considered by the Union's regional director to be part
of the "core" of the organizing committee.
On the morning of their discharge, the two women came to work prior to 8 a. m.,
at which time employees were expected to be at their post ready to commence work.
After punching in, both women went to the dressing room to change into work clothes
and then proceeded to their respective machines. When Haynes was approximately
20 feet away from her machine, the 8 o'clock buzzer sounded. As she reached her
post within a minute or two thereafter, she found Mrs. Bellou, "supervisor in charge
9 No evidence was offered that any of the girls had denied granting authority to the
Union to send the telegram.
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of quality" for the entire plant, standing by Haynes' machine 7 Bellou asked her
where she had been and Haynes answered that she had been changing her clothes.
Bellou scolded her for not being at her place when the buzzer sounded. According
to Bellou , Haynes answered "she would get started when she got good and ready."
At that moment , and according to Bellou, "before [she] could say any more, Mr.
Rutter came along." After telling Haynes that the girls "just play around in the
morning" he told her to get her time sheet and go to the personnel office.
Elizabeth Morgan was on her way out of the dressing room when the 8 o'clock
buzzer sounded. In the aisle leading from the dressing room, and a short distance
away therefrom, Morgan was confronted by Supervisor Gertrude Budy who told
her to hurry to her machine approximately 20 feet away. The aisle, while so de-
nominated, was also characterized by Budy as a "work area . . . and definitely
not a clear aisle in the sense that it could be used for free traffic." Budy was of
the opinion that Morgan was insubordinate because she was not " making the effort
that showed she was sincerely trying to reach her place to start in to work . was
trying to show off . [and] felt it was best to send her to the personnel office
to find out why." At about that time, Rutter approached the two women and in-
structed Budy to send Morgan to the office.
Morgan started for the office and on the way was joined by Haynes who like-
wise had been sent there by Rutter as heretofore detailed. After waiting about 11/2
hours they were admitted to Rutter's office. He asked what was "the matter" with
them, and told them that because they were capable of earning up to 90 cents an
hour he "hated" to see them "fooling around." Both women stated they had never
"fooled around" and Morgan told Rutter he could ask Hingle, a supervisor who was
present during the interview, about her conduct and timeliness in being at her machine
at the 8 o'clock buzzer. Rutter made no such inquiry, nor did Hingle challenge their
denials or make any other comment. Rutter, nevertheless, told them he would have
to discharge them and that they could get their checks at 11 a. in. Both employees
remonstrated that the reason assigned by Rutter for their discharge appeared to
them to be "too thin."
The two women returned to the plant between 1 and 2 p. in. of the same day and
again talked to Rutter in his office. Morgan told him they wanted to know whether
he had fired them for not being at their machines or "for something else " Rutter
answered it was "for violating the company's rules." Morgan added that she had
made the inquiry because of the speech made by J. H Rutter the day before in
which he "spoke about absenteeism and also mentioned about the union ." She re-
peated that she wanted to know whether he had really fired them for not being at
their machines, or "for something else." Rutter again answered it was "for violating
the company's rules "
On August 27 Respondent wrote identical letters to Haynes and Morgan reading
as follows:
It has come to our attention that it is contended that you were discharged
by this company for having engaged in union activity. You know and this com-
pany knows that this is not correct and that you were discharged for a violation
of this company's rule in that you were deliberately late in getting to your
machine and beginning work on the morning of July 31, 1953. As a matter of
fact, you yourself correctly stated the reason for your discharge in applying
for unemployment compensation, for you told the Louisiana Division of Em-
ployment Security that you were discharged for that reason, and, as a result of
your statement to that office you did not qualify for unemployment benefits.8
This finding is based on the testimony of Haynes, which I credit Bellou testified that
she stood at Haynes' machine about 5 or 10 minutes after the 8 o'clock buzzer sounded
"waiting for [Haynes] to come" to her machine. I do not credit her estimate of the time
lapse Bellou testified that "all the girls don't get to their places exactly on time," and
on this particular morning Haynes "was not the only one late to her machine." I do not
believe that a supervisor with the responsibility resting on her to supervise quality through
so large a plant would stand at 1 machine 5 or 10 minutes "waiting" for Haynes to appear,
especially in view of a complete lack of evidence that Haynes had,ever been late before,
while otheis apparently had And, while Respondent repeatedly emphasized in its brief
that the absence of Haynes and Morgan, whose cases are next discussed, kept the remainder
of the line from production, similar blocks must have been caused by "several" other tardy
employees during the same morning Mrs Budy, however, testified that Morgan was the
only one she sent to the personnel office
8 The applications for unemployment compensation were not offered in evidence Haynes
testified that in reporting both discharges to the interviewing officer at the unemployment
agency she stated that Rutter "said he fired us for disobeying the company's rules."
J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 1107
Your honesty in stating the facts correctly to the division of employment secu-
rity is appreciated by this company. If you are prepared, and only if you are
prepared, to abide by this company's rules and regulations in the future, you
may return to your employment under the same terms and conditions as existed
on July 31, 1953, and we suggest that you report to Mr. Ernest Hingle for work
at 8:00 a. in. on Monday, August 31, 1953.
Yours very truly,
J. H. RUTTER-REX MFG. Co. INC.
E. J. RUTTER
Haynes returned to work on August 31 and was in Respondent's employ on March
25, 1954, when she appeared as a witness in this proceeding.9 Morgan had been
under the care of a doctor since August 17 and was ill when she received the fore-
going letter. On August 30 she sent Respondent the following telegram:
In reply to your letter of August 27, 1953, offering job reinstatement I wish
to state that I am willing to work but am unable at this time due to illness.
Wish to request sick leave. Will notify you when able to report to work.
Rutter, by letter to Morgan, acknowledged the telegram on September 3 and asked
to be informed when she would be able to return to work. Morgan replied on Sep-
tember 21, by forwarding her doctor's written statement, dated September 4, reading
as follows- "[Mrs. Elizabeth Morgan] has had major surgery performed-should
be able to return to work in about three months."
On or about October 1 when Maybelle Johnson, employed by Respondent since
1942, was entering the plant, she was handed a union leaflet by Clara Dixon, another
alleged discriminatee herein whose case is considered in findings that follow. Rutter,
who was standing nearby smoking a cigarette, followed Johnson into the plant. After
telling Johnson that it was his "guess" that she was going to join the Union, Rutter
advised her not to get herself into trouble, and told her that "the union ain't nothing
but trouble " He asked her what she thought "about Clara Dixon trying to help
organize the Union in [his] plant, as nice as [he] was to Clara, more better to her
than anyone else," and added that Dixon would "never come back in [the] plant
anymore." On her way out of the plant late that afternoon, accompanied by
Leonardine Smith, Johnson was again accosted by Rutter. Offering to buy Johnson
a coke, he asked her who started the union and told her that she ought to be smart
and tell him. He then told her to "see what happened to" Haynes, Morgan, Dixon,
and King, the latter being another alleged discriminatee, and told her he had fired
them "on account of the Union."
On January 4, 1954, Morgan called the plant and asked to speak to Rutter. When
she was told that he was busy and could not talk with her, she left her number and
was told by the operator that Rutter would call her back later. Not receiving a re-
turn call, Morgan phoned again on January 5, 1954, and once more was unable to
speak to Rutter. She asked to have her call transferred to Supervisor Hingle, in-
formed him that she was well and able to return to work, and inquired whether she
could return to her job. Hingle told her to come to the office, fill out an applica-
tion and he would see what he could do. She went to the office on the next day.
complied with Hingle's direction, and filled out an application for employment and
took it to Rutter's office. Her application stated that the "position applied for" was
that of cuff tacker in which task she was engaged at the time of her discharge on
July 31. However, she also noted on the application that she was able to do fly
stitching and bar tacking. In response to the question: "Do you prefer temporary
work?" she had written: "Yes." After a brief exchange concerning her operation,
Rutter told her that he had seen her at the hearing before the Board on the Union's
petition for certification. She acknowledged that she had attended that hearing.
Rutter then informed her that "the line" in which she was formerly employed was
now engaged in work which did not require cuff tacking. He gave her assurances,
however, that he would let her know when he had an available job for her.
Morgan called Rutter again 10 and reminded him of his promise to call her when
he could place her in a job. She added that if there was no cuff tacking available
that she "could do something else besides cuff tacking," including fly stitching. Rut-
ter answered he didn't know that, but that he would check and, if other work was
'At the hearing, the complaint was amended to reflect the offer of reinstatement to
Haynes and her return to work on August 31.
30 Rutter testified this conversation took place several days after January 6, 1954 ; Mor-
gan's testimony was that it occurred during February In view of the purpose of the call,
I find that it was made several days after January 6, 1954
344056-55-vol. 111-71
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
available, he would call her back. There was no further contact between the parties.
To sustain a charge of discrimination proscribed by the Act it is incumbent upon
the General Counsel to establish by a preponderance of the evidence not only that
the employee under consideration was engaged in a protected activity, but that the
employer had knowledge thereof and discharged her therefor. Here, the record
establishes conclusively that Haynes and Morgan were engaged in such a protected
activity. Rutter, however, and the supervisory personnel who had any connection
with the discharges involved in this proceeding, all testified that they had no knowl-
edge of the union membership or activities of any of the alleged discriminatees.
Our problem, therefore, is to determine whether the General Counsel has established,
by the necessary degree of proof, that Respondent had knowledge of the protected
activity and discharged them for that reason.
The only direct evidence offered by the General Counsel to sustain these two vital
elements of proof was the testimony of Maybelle Johnson, substantially corroborated
by Leonardine Smith, that Rutter told her, on or about October 1, that he had fired
Haynes and Morgan (as well as Dixon and King) "on account of the Union."
Rutter admitted that during the discussion with Johnson he "may have named the
girls involved in the charge," but denied that he made the statement attributed to
him by Johnson. Accordingly, if Johnson's testimony is believed and credited, it
establishes conclusively both that Rutter had notice of the union activities of all four
of these employees and that he discharged them for that reason.
I am gravely mindful that resolution of the credibility problem just stated imposes
a great responsibility. Upon its determination rests in substantial part my ultimate
conclusion on important phases of this entire proceeding In resolving that conflict,
and in appraising the conflicting testimony, I have leaned heavily on my observation
of the demeanor of the witnesses involved as they appeared before me, and have care-
fully weighed all the circumstances existing at the time of the events concerning
which they testified, and those existing at the time they gave their testimony. It is
on the basis of all these factors that I credit Johnson's critical testimony above al-
luded to, corroborated as it was, in substantial part, by Leonardine Smith.
It must be remembered that Respondent was strongly opposed to the entry of
the Union into the plant. Unquestionably, it was Respondent's right and privilege
to urge its employees to reject the Union as their bargaining representative provided,
however, that it did so by means not proscribed by the Act. Here, however, it has
been found that Respondent had, in violation of the Act, threatened its employees
with loss of employment if they tried to bring the Union into the plant. Rutter's
statement to Johnson while the Union's campaign was in progress was, therefore,
but an acknowledgment that Respondent had done, to at least four employees, what
it had threatened to do to more, and was intended to be a warning to Johnson that a
similar fate awaited her if she, too, joined or became active in the Union.
Furthermore, Johnson impressed me most favorably as being a person worthy of
belief. Her testimony, reluctantly given, and not until she was compelled to do so
by order of the United States District Court, was given unhestitatingly and other-
wise in a manner to convince me of its truthworthiness.11 Rutter's denial on the
other hand was not convincing and his demeanor did not inspire confidence therein.
In making the credibility resolution aforementioned, I have not been unmindful
of, and have carefully considered, Respondent's argument that "reasonableness
alone" would dictate the unlikelihood of Rutter's having "confessed a violation of
the law" to Johnson, a factory employee Though that argument has an air of
plausibility, there are counterbalancing factors present which make it not at all
111 adhere to that observation and conclusion notwithstanding an apparent conflict
between Johnson's testimony under considei ation and that of Respondent's attorney concern-
ing an interview with Johnson in Ratter's office on March 19, 1954, while the attorney
was interviewing Johnson "in preparation for this case." At that time. Rutter asked her
whether he had "ever said anything to her which indicated that he had fired anybody for
joining the Union or ever had any such conversation with her like that." Counsel
testified that her answer to Rutter's question was "no" while Johnson testified that the
answer she gave was "yes" I have considered all the circumstances and surroundings
under which she was questioned in Ruitoi's office and conclude that it is not altogether
impossible that she may have answered as testified to by Respondent's counsel. In view
of the fact, however, that I am convinced that her direct testimony as to the events of on
or about October 1 was truthfully given, I find it unnecessary to resolve the conflict posed
by Respondent's counsel's testimony In any event, as Judge Learned Hand so aptly
stated: "It is no reason for refusing to accept everything that a witness says, because
you don't believe all of it; nothing is more common than to believe some, and not all"
N. L. R. B. v. Universal Camera Corp., 179 F. 2d 749 (C. A. 2).
J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 1109
unreasonable to believe that Rutter, on or about October 1, made the statement at-
tributed to him by Johnson. Johnson has been in Respondent's continuous employ-
ment since 1942 and was working in the plant on the day she appeared, under legal
compulsion, as a witness in this proceeding. Rutter testified that he was "friendly
to her; [that] it was not unusual for [him] to stop and talk . . . with her; . . .
[he] had been to see her at her house, [having lived] not too far from her on a farm."
It is thus apparent that Rutter undoubtedly felt he was not talking to one who was
an, ordinary employee, but instead that he was talking to one who was friendly to
him and who would not betray his confidence.
Turning now to the reasons assigned by Respondent for these discharges, Respond-
ent claims, and Rutter testified, that one of the reasons he discharged Morgan and
Haynes on May 31 was that they had been guilty of "insubordination" and that he
so informed them on that day. In his letter of August 27, however, offering the two
employees reinstatement, Rutter stated that he had discharged them because they
had been "deliberately late in getting to their machines and beginning work on the
morning of July 31, 1953." No mention was made of insubordination. Indeed, if
insubordination, such as Rutter and Supervisors Bellou and Budy testified to, actually
occurred, or in fact played any part in the discharge of either employee, it would
seem extremely improbable that Rutter, highly concerned as he was with plant dis-
cipline, would have humbled himself, or Respondent to the extent of voluntarily offer-
ing them reinstatement.
Respondent also claims, and the record establishes, that both women were not at
their machines until a few minutes after the 8 o'clock buzzer sounded. Though dis-
charge for such an infraction would appear to be severe disciplinary action in view
of their long service and apparently good work record, if the women were in fact
discharged for that reason, it was a prerogative which Respondent could exercise
and would not be violative of the Act. However, if tardiness at their respective
machines were the motivating factor for these discharges, it becomes pertinent to
inquire why other operators who, according to Respondent's own witnesses, were
late the same morning did not receive similarly drastic, or indeed any, disciplinary
action.12
Upon the entire record and my observation of the witnesses, I find that Respondent
discharged Haynes and Morgan on July 31, 1953, because of their union member-
ship and activity; that by doing so, it violated Section 8 (a) (3) and 8 (a) (1) of
the Act. As heretofore noted, however, Haynes was offered and accepted reinstate-
ment to her position on August 31. The remedial order with respect to her will,
therefore, be limited to a direction that she be made whole for any loss of pay suf-
fered by her from July 31 to August 31, 1953.
With respect to Morgan, a different situation is presented. While she, too, was
offered reinstatement effective on August 31, she was ill at that time, having been
under a doctor's care since August 17, remaining so to approximately the end of
1953. When on January 6, 1954, she offered to return to work she was denied
employment. One of the reasons now assigned for that refusal, but never pre-
viously asserted to her, was that "sick leave was never granted this employee." I
find no merit to this contention. Respondent's published rules and regulations spe-
cifically provide that sickness is 1 of 3 "acceptable excuses for not being on the
job." It will be recalled in this connection that Respondent's offer of reinstate-
ment specifically stated that her reinstatement would be subject to the "company's
rules and regulations" and that her return to work would be "under the same terms
and conditions as existed on July 31, 1953." Significant, too, is Respondent's quies-
cence when, in response to Rutter's request for information as to when she would
be able to return to work, it received on about September 24 the certificate from
Morgan's doctor that she "should be able to return to work in about three months."
Upon the entire record, I find that Morgan's absence from the plant to January 6,
1954, was an absence excused by Respondent.
Respondent also resists Morgan's reinstatement on January 6, 1954, on the
ground that she "never made an application for permanent work," and that her
"only application was for temporary . . . as a cuff tacker." [Emphasis supplied.]
Putting aside, momentarily, any inquiry (1) as to whether or not, in view of her dis-
criminatory discharge, the Act imposed any duty upon her to make application for
reinstatement, and (2) why she was required to make an application for employment
when she was returning to work upon Respondent's invitation to do so, the testimony
'a Supervisor Bellou testified that July 31 was the first time that she remembered Baynes
being late and that others had "held up lines before " Supervisor Budy testified that
Morgan was "a good employee," with whom she had no prior difficulty and that while sev-
eral other employees were late on the same morning, none of them were sent to the office.
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Rutter and Morgan, and her written application, compel a finding that her offer
to return to work in January 1954 was not an application "only . for temporary
work." True, her application stated that she had a preference for temporary work,
perhaps because of her recent illness. The job to which she asked to return, how-
ever, was her old job which had been a permanent one, and the one she was offered
by Respondent during her illness. Rutter testified that though he had Morgan's
application before him on January 6, 1954, while interviewing her, nothing was
"said or did (sic) to indicate to [him] that she wanted anything other than permanent
work."
Because Rutter had told her on that day that there was no opening for cuff tack-
ers, Morgan called him on the telephone and informed him that she had also done
fly stitching, which information Rutter apparently understood as a willingness to do
that type of work. According to Rutter, he told her he didn't have an opening for
that type of work, but that he would check her application and let her know. He
further testified that he went to the application file to check whether her application
contained such information. It was then, according to Respondent's brief and
Rutter's testimony, that he first "noticed that she was applying for temporary work,
so [he] put the application back in the file." I find it difficult to understand why,
or to believe that he would go to the further trouble to recheck her application to
ascertain whether she had applied for work as a fly stitcher, or had made mention
of her experience in such work if, in fact, no fly stitching was available at that time.
On the entire record, I find that the notation on Morgan's application expressing
a preference for temporary work actually played no part in the refusal to reinstate
her. Rather, I find it to be a belated subterfuge seized upon by Respondent in the
hope that it might be utilized to avoid the reinstatement to which she was entitled,
and which had previously been offered her.
The third defense asserted by Respondent, equally without merit, brings into focus
the complete irrelevance of the defense last discussed, and an explication of the
rights accorded Morgan by the Act. The issue is posed by Respondent's repeated
contention in its brief that relief must be denied because the "General Counsel did
not prove, or offer any testimony that Respondent had a job opening in his
plant for the position applied for by [Morgan]." The primary, but not only, answer
to this contention is that no such duty rests on the General Counsel.
Where, as here, an employer has discriminatorily discharged an employee because
of her union activity, the latter is entitled to "a restoration of the situation, as nearly
as possible to that which would have obtained but for the illegal discrimination "
Phelps-Dodge Corp. v. N. L. R. B., 313 U. S. 177, 194. To bring about that result,
the employee is not required to make application for reinstatement. It is the em-
ployer who must "offer the employee immediate and full reinstatement to his former
or a substantially equivalent position, without prejudice to his seniority and other
rights and privileges."
When, therefore, Respondent wrote Morgan on August 27 and offered her re-
instatement "under the same terms and conditions as existed on July 31, 1953," it
partially fulfilled its obligations under the Act. Insofar as the record reveals, if
Morgan had returned to work on August 31 as requested, she would have resumed
her work as a cuff tacker and would presumably have remained in Respondent's
employment thereafter.13 Her excused absence to January 1954, as heretofore found,
did not prejudice her rights in the interim.
Notwithstanding what has been stated above with respect to Morgan's right to
reinstatement, Respondent would, nevertheless, have been relieved of its obligation
to reinstate Morgan upon her recovery on January 6, 1954, and to continue her em-
ployment thereafter if, in fact, there was no work available for her in "her former
or substantially equivalent position." However, it having been found that Morgan
was discriminatorily discharged, the burden of establishing unavailability of work
rests upon Respondent.14 Certainly since "knowledge [of the material facts] is pe-
culiarly within its possession," Respondent has at least the burden of going forward
with "adequate evidence" fully and satisfactorily explaining its failure to reinstate
Morgan.15
Here, however, all that appears in the record as to availability of work on Janu-
ary 6, 1954, is Rutter's brief assertion that, though he didn't "know whether the rec-
ords show" it, he was certain that he "did not have any openings for cuff tackers
19 Rutter testified that on January 6, 1954, at least, he had a staff of cuff tackers then
engaged in work, and there is no intimation that there was no need for that type of workers
thereafter.
14 Underwood Machinery Company, 95 NLRB 1386, 1393
25 N. L R. B. v. Reed & Prince Mfg. Co, 130 F 2d 765, 768 (C A 1).
J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 1111
on [that day] ." Though he told Morgan on that day that he then "had an over-
abundance of cuff tackers," the record does not disclose whether such overabundance
wa created by hirings after Morgan's discriminatory discharge on the previous July
31 and before she was offered reinstatement. Under all the circumstances present
here, such a paucity of evidence can hardly be considered an adequate showing of
unavailability of work for Morgan as a cuff tacker.
But even if it be assumed, arguendo, that there was no cuff tacking work avail-
able for Morgan on January 6, 1954, Respondent was then under a duty to offer her
employment in a "substantially equivalent position." In this connection it must be
remembered that we are dealing with a plant employing approximately 600 em-
ployees, most of them machine operators The record also establishes that there
was a constant, large turnover in personnel. Rutter testified that from July 13, 1953,
to the date of a strike at the plant which commenced on April 26, 1954, Respondent
hired 150 girls of whom "well over a hundred" were machine operators and pro-
duction employees, and all of whom "were either brand new, or lust returning with
some little experience." He further testified (1) that Respondent is "better off"
in filling vacancies of any kind "to take a girl who has been in the plant and is
somewhat familiar with the different phases of the work and put her into that other
job rather than bring in a new girl from outside," and (2) that in filling vacancies
Respondent "generally" searches the applications on file for employees "who left under
good conditions and good terms" for the purpose of filling those vacancies. In
view of these standards, the reasons advanced by Respondent for not reinstating
Morgan to employment on January 6, 1954, experienced as she was by employment
with Respondent since March 1, 1946, and considered by her supervisor as a "good
employee," cannot be accepted or credited. Rather, 1 find that she was denied
employment on that day for the same.reason for which she was discharged, aggra-
vated by her recent attendance at the Board's hearing on the Union's petition for
certification to which attention was called by Rutter when he denied her employment.
On the entire record I conclude that by refusing to reinstate Morgan to employ-
ment on January 6, 1954, Respondent violated Section 8 (a) (3) and 8 (a) (1) of
the Act.
D. The discharge of Dolores King and Hannah Bibb ins
Dolores King was first employed by Respondent in the summer of 1946. She
worked intermittently thereafter until 1950 or 1951, from which time on she was
continuously employed until her discharge on August 5, 1953.
On July 26 she signed an application to join the Union at the solicitation of Clara
Dixon. She attended the union meeting at its headquarters on July 30. Prior to
her discharge on August 5, she obtained the signatures of about 30 employees to
applications for union membership. Some of these signed applications were ob-
tained "around the plant," a "few" at the lunchroom hereafter described, and the re-
mainder at the home of employees.
A short distance from Respondent's main plant at the corner of Independence and
Dauphine Streets where the employees with which we are concerned were all em-
ployed, there was located a lunchroom 16 (and an adjoining, open grocery store) to
which many of Respondent's employees go for breakfast or a coke before 8 a. m.,
and for lunch at noon. Prior to the time that King joined the Union on July 26, she
visited this lunchroom, but "not very often " After that day, until she was discharged
on August 5, she visited the lunchroom every working day from about 7:30 to 7:45
a. m., and during the noon hour. She did this, she testified, because it gave her "an
opportunity to speak to more girls" about the Union and the advantages to be gained
by membership therein. It was at this lunchroom that she obtained an undis-
closed number of signatures to applications for union membership, and also the
names and addresses of other employees so that she could visit them at their homes
for the purpose of enlisting membership.
During the morning of July 28, King gave one of Respondent's employees, Floyd
Daggs, several application blanks for membership in the Union. That noon, as she
was leaving the lunchroom, she met Daggs and two other of Respondent's employees
on the adjacent sidewalk. When Daggs told her he would sign the application she
had given him earlier that morning, she gave him a pencil with which to append his
signature. Daggs and one of the other employees "stooped down on the side walk,"
signed the cards, and returned them to King. As they were signing their cards,
Rutter approached from the direction of another restaurant, about a block away,
ie King testified that the lunchroom was approximately three-fourths the size of the
room in which the hearing was conducted and which latter room, the parties stipulated,
was 42 feet long and 27 feet wide.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where he generally ate his lunch . He was at a distance variously estimated to be
from 12 to 25 feet away from King and the 2 employees when the latter signed their
cards. Rutter "looked at the boys signing the cards on the side walk," and walked
across the street to the plant.
During the morning of July 29 or July 30, King was seated at a table in the
lunchroom with 6 or 8 other employees , drinking a coke. At that time, while speak-
ing "fluently about the Union," King took a piece of paper out of her purse for the
purpose of having some of the girls sign their names thereon . As she did so, one
of the 50 application cards she had in her purse fell out. At about the same time,
Lorenza Breaux, seated at the table with King , called her attention to Rutter who
was standing across the room, about 20 feet away, at the entrance to another room
used by white patrons, and told her that Rutter was "looking right in [her mouth]."
On July 31 , the day following a union meeting , while King was again seated at
the same table, Rutter and two supervisors entered the lunchroom . Rutter secured
a soft drink and again stationed himself in the doorway to the white patrons' room
and consumed his drink . King and the other employees at the table who were then
discussing the union meeting of the night before, ceased their conversation while
Rutter was in the room . As soon as he left, they resumed their union discussion.
King testified that she never saw Rutter in the lunchroom prior to July 26, the
day she joined the Union . Thereafter , however , she saw him there "from Wednes-
day 29 of July through the 4th of August ." Theresa Weber, in Respondent 's employ
for 3 years , testified that though she visited the lunchroom every morning and
every noon during the entire course of her employment , the first time she ever saw
Rutter in the lunchroom was about a week before King was fired on August 5. After
King was discharged , Weber never saw him there again until March 24, 1954, the
day before she appeared as a witness in this proceeding . Lorenza Breaux testified
that she, too , went to the lunchroom every morning and every noon but never saw
Rutter there until about a week before King was fired.
Rutter testified he "occasionally " went into the lunchroom in the morning and
at noon, but had no recollection of ever seeing King or Bibbins there. Though he
"generally" ate his lunch at the Perez restaurant about a block away, he testified
that he nevertheless went to the lunchroom under discussion "occasionally" at "noon
for a pack of cigarettes , or chewing gum, or charms or a candy bar, [but he had]
no particular reason for going there ." He admitted , however, that cigarettes , hershey
bars , and gum were sold at the Perez restaurant . Rutter's explanation for his visits
to the lunchroom was neither persuasive in substance nor convincing in manner.
And, though he admitted that he "occasionally " visited those premises, there was no
denial by him of the testimony of the witnesses aforenamed that these "occasional"
visits occurred every day of the critical period under discussion . Furthermore, in
determining the purpose of Rutter 's visits to the lunchroom and the effect that they
had on Respondent 's employees , I cannot be unmindful that they occurred at about
the same time his father was telling the employees that he was aware of the Union's
efforts to organize the plant and threatening them with discharge if that effort was
successful . On the entire record, I find that Rutter's visits to the lunchroom during
the Union 's organization campaign were for the purpose of surveilling the union
activities of Respondent 's employees , and that by doing so Respondent interfered
with , restrained , and coerced its employees in the exercise of their guaranteed rights,
and thereby violated Section 8 (a) (1) of the Act. By that same surveillance of
King's activities in the lunchroom , and by his observance of her on the adjacent
sidewalk when she obtained the signatures of two employees as heretofore detailed,
Respondent was apprised of the active role she was playing in the Union 's campaign.
In the course of Respondent 's operations it was the custom to require operators
present in the plant to repair the work of others similarly engaged but who were
absent when their work was rejected by inspectors . Because operators were em-
ployed on a basis which included a bonus dependent , in part, upon a production
quota, they were reluctant to repair the work of other operators because it thereby
reduced their opportunity to earn the bonus . " Rutter testified that Respondent's
practice with respect to repairs on the work of an absent operator was to have the
supervisor divide the garments requiring repairs among operators present on the day
in question and to ask them to make the necessary repairs. It is only if the operator
objects to doing this extra work without being paid therefor that she is "told that
she will be paid for making the repairs ." Only Rutter , and perhaps Head Super-
visor Bellou , had authority to approve the timesheet on such repairs.
17 E J Rutter in several speeches to the employees emphasized that each operator had
to make her own i epairs
J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 1113
On August 5, Lloyd asked Bibbins to repair several garments originally worked
on by other operators. When Bibbins declined to make the repairs, Lloyd sum-
moned Rutter who repeated the request and told her to "make the repairs or go
home." 18 Bibbins again declined, left the plant, and went home. About a week
later, under circumstances not detailed in the record, she asked Rutter to return
her to work and he complied with that request. She has been employed in the
plant since that time and was so engaged when she appeared as a witness in this
proceeding.
Apparently Bibbins' objection to making the repairs on August 5 was not due to
the fact that Rutter did not offer to pay her for that work. Indeed, having previously
made such repairs on 7 or 8 occasions without being paid therefor-she character-
ized that practice as having achieved the status of a "habit"-it is reasonable to
assume that she didn't even know that she could be paid for that work if demand
therefor was made. Not wanting to do this work again without compensation, Bib-
bins, in her own words, "just went home." In any event, because of my ultimate con-
clusion with regard to her case, I find it unnecessary to decide whether her termina-
tion was voluntary, as Respondent contends, or whether Rutter's instruction to her
that she do the extra work, or go home, constituted a constructive discharge.
In his brief, "the General Counsel contends Hannah Bibbins was fired because she
was constantly in the company of Dolores King and Respondent believed her to be
assisting King in obtaining members for the Union." With frankness, however, he
admits that "Bibbins' union activities were not extensive." Indeed, the only pro-
tected activity in which she was engaged was to sign an application to join the Union
on July 28, and no claim is made that Respondent had knowledge thereof. She
never attended a union meeting, never solicited membership therein from any other
employee, and never served on any of its committees.
The only evidence to which the General Counsel points to establish that Respond-
ent had knowledge, or reason to believe, that Bibbins was engaged in union activi-
ties is (1) that Rutter "observed [d] her with King in the lunchroom" under the cir-
cumstances heretofore detailed, and (2) that Rutter saw her standing on the sidewalk
on July 28, not far from where King secured Daggs' signature to an application for
union membership. I cannot attach the significance to either item that the General
Counsel attributes thereto. Insofar as the lunchroom association with King is relied
upon, the evidence establishes that 5 or 6 other girls were generally seated at the
same table with King, and I find no reason to attach greater significance to Bibbins'
presence there than to that of the other women seated at the same table. With re-
gard to the second item mentioned above, I find it difficult to conclude that Bibbins'
presence on the sidewalk, during the lunch hour, at an undisclosed distance from
King, when other employees must also have been nearby on their way back to work,
should have caused Rutter to believe that "Bibbins was helping King obtain cards
from other employees."
On the entire record, I find that the General Counsel has not established by a
preponderance of the evidence that Bibbins was discharged for the reasons alleged
in the complaint. Accordingly, it will be recommended that the allegations of the
complaint pertaining to her discharge be dismissed.
During the morning of August 4, Supervisor Lloyd asked King to repair three
shirts which did not bear her work number. King told her that the shirts did not
belong to her but Lloyd insisted, nevertheless, she made the repairs. When King
still refused because Lloyd had no authority to O. K. her timesheet, Lloyd told her
she would see about the matter and went in search of Bellou. Not being able to
find her, Lloyd went to Rutter, told him that she had repairs to be made, and that
King refused to do the work. Though Rutter told her that he would "come back in
a few minutes," nothing further was done about the matter during the remainder of
the day.
When King reported for work at 8 a. in on August 5, she found three repair jobs
on her machine. By checking their serial numbers, she discovered they were her
own work and made the repairs. As she finished, she heard Rutter, who was stand-
ing near Bibbins' machine, tell Bibbins to make the repairs. Turning to King, he
said, "That goes for you, too." From this point on, there is a serious conflict in
the testimony.
King testified that when she told Rutter that the additional shirts which had been
placed on her machine did not belong to her and asked him whether she was going
to be paid for the work, he answered: "Never mind that. I told you I wanted the
shirts fixed." She explained how making the repairs would interfere with her pro-
duction and jeopardize the bonus she usually earned and concluded by stating she
' I do not credit Rutter's testimony that he told her that she would be paid for the
work.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not make the repairs unless she was paid. She further testified that as she
placed the shirts on a table behind her machine, indicating she was not going to
make the repairs, Rutter told her to "get the hell out of [there]" and to report to his
office.
Rutter's contrary version of the foregoing incidents, corroborated in part by Lloyd,
was substantially as follows- As he turned away from Bibbins' machine following the
conversation with her heretofore summarized, he turned to King's machine and heard
her say "that she was not going to make those damn shirts for [him] or anybody
else; that they were not hers and she didn't give a damn what [he] said, at which
point she threw the shirts at [him]." It was not until later in his narrative that he
recalled he told her she would be paid for the work, and that this occurred "prior"
to the moment she allegedly threw the shirts.
When King reached Rutter's office pursuant to his instructions, Bellou was also
present, having been summoned by Rutter. Bellou asked what the "trouble" was
and Rutter answered it was over repairs. King reminded Bellou of Rutter's frequent
announcements that all operators were to make their own repairs and that on prior
occasions when she repaired the work of others he had told her that he would O. K.
her timesheet for the time consumed, and asked why Rutter didn't tell her so on
this occasion. Bellou gave no answer. At that moment, King opened her purse and
two union cards fell out. Picking them up, she asked Rutter whether "this [was]
the reason why [he] fired [her]." His answer was that he didn't "even know what
that [was]."i9
The principal conflict in the testimony concerning the events occurring at the time
of King's discharge centers on an inquiry as to whether or not Rutter told her she
would be paid for making the repairs in question, and whether King threw the shirts
at Rutter in such a manner as to constitute insubordination sufficient to prompt her
discharge.
In resolving the first conflict, three factors established by uncontradicted evidence
should be kept in mind: (1) That operators were repeatedly told that "they wouldn't
have to do anyone else's repairs"; (2) that if they were asked to repair the work
of others no pay was allowed therefor unless it was demanded; and (3) that only
Rutter, and perhaps Bellou, were authorized to O. K. the timesheet of the employee
who made the extra repairs. The record also establishes conclusively that King
apprised both Lloyd, who first ordered the repairs made, and Rutter, that she objected
to doing this extra work for nothing.
No reason was suggested why King would have refused to do the work in ques-
tion if she were told that she would be paid therefor, nor is it claimed that she
assigned any other reason for not complying with Lloyd's or Rutter's demand. The
work was not more arduous, or substantially different, than the work in which she
was otherwise engaged. And, judging by Rutter's demeanor as I observed it, not only
while he was testifying, but throughout the entire hearing which he attended and
which lasted 9 days, I find it impossible to believe that after hearing this Negress
employee say that "she was not going to make those damn shirts for [him] or any-
one else," and after, as he first testified, she threw the shirts at him, that he would
then attempt to induce her to do so by offering to pay her therefor. On the entire
record, and my observation of the witnesses who testified concerning the incidents,zo
I find that Rutter did not tell King that she would be paid for doing the work that she
was ordered to perform. Rather, I am convinced and find that Rutter purposely
avoided telling her she would be paid for the work in the hope, successfully achieved,
that it would goad her into defiance of his orders and thus furnish him with a plausible
pretext for her discharge.21
Turning now to the other phase of Respondent's defense- King's alleged insub-
ordination in throwing the shirts at Rutter after refusing to make the repairs. In
this connection, the law is well established that no employee, regardless of how
active he or she may be in union affairs, has a right, by reason of that activity, to
be insubordinate to his or her supervisors or other representatives of management.
However, to sustain the defense that King was discharged for insubordination, two
factors must be established: first, that she was guilty of insubordination, and second,
19 The findings in this paragraph are based on the credited, undenied testimony of King
29I (1o not credit Lloyd's testimony corroborating that of Rutter that she heard him tell
King or Bibbins that they would be paid for the extra work. The manner in which she
testified left me with the distinct impression that she was more concerned with being of
aid to Respondent than in testifying truthfully.
21 Only a day or two earlier her earnings had been reduced, by reason of a change in the
method of operations, from $9 to $11 per day to approximately $6 75
J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 1115
that she was discharged for that reason. If either element is lacking, the defense
cannot be sustained.
King's testimony concerning the manner in which she handled the shirts was
neither inconsistent, inherently improbable, nor challenged by cross-examination.
Her appearance and demeanor impressed me most favorably and causes me to reject
any notion that she was the type of person, by disposition or temperament, who
would engage in such conduct. In any event, however, and because I am convinced
and find that the motivating factor for King's discharge was her union activity,
I deem it unnecessary to resolve the conflict on the issue presently under discussion.
Furthermore, it is well established that where a clearly unlawful reason is one of
the motivating causes of a discharge, the presence of a separate, valid reason does
not eliminate the unlawful aspect of the employer's action. N. L. R. B. v. Whiten
Machine Works, 204 F. 2d 579 (C. A. 10). Here, by reason of Respondent' s union
animus 22 and threats of reprisal publicly announced only a few days before King's
discharge, by Rutter's surveillance, and by Rutter's admission to Johnson that she
was 1 of 4 employees he had discharged "on account of the Union," I can only con-
clude that King was discharged because of her union activities and I so find. By
doing so, Respondent violated Section 8 (a) (1) and (3) of the Act.
E. The refusal to reinstate Clara Dixon
Clara Dixon was employed by Respondent, "off and on," since 1946. On June
11, 1953, while she was so employed, her home was substantially damaged by fire,
of which event she was notified by telephone at the plant. Supervisor Bellou gave
Dixon permission to leave and called a cab so that she could be transported to her
home. While she was waiting for the taxi in front of the plant, Rutter joined her
and Dixon told him what had happened. He offered her transportation which she
declined because the cab arrived at about that moment. He inquired about the
extent of the damage and asked her to give him that information later in the day.
She called him as promised, told him that because of the extent of the damage and
the time it would take to repair the loss she could not say definitely when she would
be able to return to work. She told him, however, that if the house was sufficiently
repaired by July 13, the end of the plant's vacation period, she would come back
on that day. Rutter granted her permission to be absent until that time.
Due to bad weather, however, the house was not sufficiently repaired so that she
"could lock it [and] leave it" until July 16. On Friday, July 10, she called the
plant, asked to speak to Rutter, but her call was not put through to his office.
Instead, she was connected with the secretary in the personnel office. She told the
secretary that she would not be able to report on the 13th, but would try to be there
on the 16th and was informed that Rutter said it would be "all right." Because of
complication incident to the insurance adjustment on her fire loss, which was not
completed by the 16th, she did not report on that day. Prior to the 16th, however,
she called the plant and again without success asked to speak to Rutter. She told
the "personnel girl" that she would be unable to report on the 16th because of
"unfinished business," and asked her to convey that information to Rutter.
On Monday, July 27, Dixon called Bellou at her home at about 7 a. m. She told
her that she was ready to go back to work and "wanted to know before [she] went
in that morning if they still had [her] machine available, or if they had a job for
[her]." Bellou answered that she didn't know, "but she saw no reason why they
didn't have a place for [her]" and that she would call her as soon as she got to
the plant. Not receiving the promised call, Dixon called Bellou at the plant later in
the morning and was told that because of excessive absenteeism on that day
Respondent had to "break up two [production] lines to make up one"; that as a
result, some girls were sent home, and that if Dixon had reported for work they
would also have been compelled to send her home. Bellou did, however, tell her
to call again on the following morning. Dixon did as requested, but was told that
they did not have any place for her then, but that Bellou would call and let her
know as soon as work was available for her.
' Such an attitude has some significance as background matter in the same manner that
the Board and the courts have held that the fact that an employer has had a long period
of amicable relations with a labor organization tends to negate an inference of discrimi-
nation. Celanese Corporation of America, 95 NLRB 664, 702; N L. R. B. v. Algoma Ply-
wood & Veneer Co, 121 F. 2d 602, 605 (C. A. 7) ; N. L. R. B. v. Montgomery Ward & Co.,
157 F. 2d 486, 492 (C. A. 8) ; N L. R. B. v Kingston, 172 F. 2d 771, 774-775 (C. A 6) ;
cf. Banner Die Fixture Company, 109 NLRB 1401.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About a week later, not being able to reach Rutter on the telephone, Dixon's
call was transferred to Bellou. When she told Bellou that she had been waiting
for the promised message, Bellou answered that she had been trying to reach her
by telephone but was not able to do so. Bellou further told her that she had been
replaced because Bellou had inquired among the girls about her and had been told
that she had a job. Dixon denied she had a job, or had worked since she left the
plant on June 11. She asked Bellou who gave her the information and what kind
of a job she was said to have. Bellou answered that she didn't know, but that she
had heard that she "was going around with [her] car from house to house selling
something and knew if she had an easy job like that, that [she] wouldn't want to
come back to the plant." 23 Dixon again denied that she had a job and on Septem-
ber 3 filed a written application for employment.
During the first week in September Dixon tried twice to reach Rutter on the
telephone but was never able to speak to him. She finally contacted him by phone
on or about September 9 and told him of her unsuccessful attempts to reach him
and repeated the conversations she previously had with Bellou. He told her she
had no right to call Bellou and "that he was the one to see and not Mrs. Bellou."
They talked briefly about her State unemployment compensation for which she had
applied on July 28 and the payment of which Respondent was resisting. She in-
quired whether he really meant that he would not give her a job and what he was
going to do about her. He, in turn, asked her what she "thought he was going to
do." When she answered that she did not know, except that she wanted to return
to work, he told her that he did not know that she wanted to come back to work
until she had pressed charges against him with the Board.24 She again asked what
he was going to do. Once more he replied with the rhetorical question, "what did
[she] think" and inquired as to why he should give her a job. She told him that he
knew she was affiliated with the Union and didn't want her in the plant.
On October 6, pursuant to suggestions from union officials, she went to the per-
sonnel office at the plant to file another application and also because she wanted to
speak to Rutter personally. After a short wait, Rutter came out of his office, ac-
companied by Supervisor Drake. Rutter asked her what she was doing there and
she told him it was to file an application for her job. After stating that there was
no use in her "fooling" herself, or he in "fooling" himself, he ordered her off the
premises and told her that they could have their talk "some place else."
The record establishes conclusively that Dixon was most active in union affairs.
In May 1953 she was contacted by a union representative to assist in organizing the
plant and received a supply of application cards for membership in the Union.
She attended the 3 union meetings in June and July heretofore described, visited
the homes of employees during evenings, and by August 1 secured the signatures of
about 60 employees to applications for union membership.
Dixon not having returned to work within the time she was granted leave, Re-
spondent was privileged to replace her, which it did. It is the position of the Gen-
eral Counsel, however, that Respondent refused to reinstate or rehire her thereafter
because of her union activities. In this connection, the law is well settled that a
refusal to employ or rehire for that reason is just as violative of the Act as is a
discriminatory discharge
The evidence offered by both the General Counsel and Respondent leaves no
doubt in my mind, indeed it is almost conclusive, that from the time of the fire at
Dixon's home through September, Respondent was apprised of her desire to return
to work. Our only problem is to determine (1) whether there was work available
for her, and (2) whether she was refused employment because of her union activi-
ties. In answering the first question, the testimony of Rutter heretofore detailed in
connection with Respondent's refusal to recall Morgan on January 6, 1954, must
be kept in mind. It will be recalled he testified that in a period of approximately 9
months commencing July 13, 1953, Respondent hired 150 girls of whom "well over
a hundred" were machine operators and production employees who had never before
worked for Respondent, or were "just returning with some little experience." He
also testified that Respondent is "better off," when vacancies occur, to employ girls
who had worked in the plant before, and that in filling vacancies he generally
searches the applications on file for employees who left under "good conditions
and good terms." Dixon had been employed and reemployed since 1946, and was
za Respondent did not produce the source of this information.
24 A copy of the first amended charge herein, alleging, inter alia, that Respondent had
discriminatorily denied reinstatement to Dixon was received by Respondent on
September 1
J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 1117
experienced not only in hemming , in which she was engaged on June 11, but also
as a fly stitcher and a tape crotcher . Notwithstanding the prevailing practice, Dixon
was not recalled.
Rutter testified that Dixon was replaced as a hemming operator on or about July
13, and that thereafter Respondent engaged in "makeshift" arrangements and trans-
fers in that operation until one such operator was discharged on September 19.
Though a "vacancy" occurred in that operation at that time , Dixon was not recalled.
Earlier , on July 27, according to Rutter 's own testimony , Respondent "needed help
on fly stitching ," and though he considered Dixon a "productive fly stitcher" and
that "if she had come in on that day [he] would have hired her ," Dixon was told
by Bellou on that very day that there was no available work.25
Another reason assigned by Respondent for not hiring Dixon , other than that
which I have discredited in the preceding footnote, is that telephone applications are
not deemed sufficient as applications for work, and that to be considered for em-
ployment applicants must present themselves in person and file written applications.26
On the entire record , however, I find that this was a mere subterfuge concocted to
avoid the effect of the undisputed evidence that Respondent was repeatedly informed
by Dixon of her desire to be reinstated to employment and which request, because
of what follows , Rutter was determined to deny. In connection with Rutter 's cross-
examination by the General Counsel , there was received in evidence Dixon's formal
"Employment Record," produced from Respondent 's files. On that record there
are typewritten entries pertaining to her employment . The only notations thereon
in script , and which were admittedly in Rutter 's own handwriting, read as follows:
"June 18, 1953, Left voluntarily . DO NOT HIRE. E. J. R." (Capital letters in
original text .) Not only is the date and the false reason for the termination signifi-
cant, but the capitalized instruction belies his testimony that he would have hired
her on July 27, or at any time thereafter 27
In view of the uncontradicted evidence that Rutter had granted Dixon leave to
July 13, the notation he made on June 18 that she not be reemployed is also of great,
if not controlling , significance in determining his motive for denying her employment
from that time on. That Rutter had knowledge of Dixon's union activities has
already been established by Johnson 's testimony heretofore detailed. In addition,
the record establishes that she was among the first to become active in the Union
as early as May 1953, that she attended the 3 meetings held in June and July, and
obtained the signatures of 60 employees to applications for union membership by
solicitation at their homes. On an appraisal of all the testimony and my observa-
tion of Bellou as she was testifying , I am convinced and find that it was these visits,
made for the above purpose, to which Bellou was in fact referring when she told
Dixon that she had heard that Dixon "was going around with [her] car from house
to house selling something , and knew that if she had an easy job like that, that she
wouldn 't want to come back to the plant." Significant , too, is the fact that though
Rutter testified that he did not speak to Dixon after June 11 until sometime in Sep-
tember, Bellou testified that in a conversation with Rutter which , according to her
conflicting testimony , occurred either shortly after the fire on June 11, or in July,
she asked him what "we were going to do about putting someone in Clara [Dixon's]
place," Rutter "told [her] that Clara wouldn't be back."
On the entire record I find that on and since July 28, 1953 , Respondent refused to
reemploy Clara Dixon because of her union activities and thereby violated Section
8 (a) (1) and (3) of the Act.
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a close,
intimate , and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
TS I do not credit Bellou 's testimony , which was contradictory and vague in many re-
spects, that on July 28 Dixon told her "she wasn't interested" in that type of work
20 Though it was established by Respondent 's own evidence that Dixon filed a written
application on September 3, she was not recalled when the vacancy in the hemming de-
partment occurred on September 19, or when other vacancies arose
r, This wilful fabrication , the substantial inconsistencies otherwise appearing in his testi-
mony , and his demeanor throughout the hearing , were the reasons I rejected his denial
that he told Johnson be had fired the four employees because of their union activities.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, it is
recommended that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. It is, therefore, recommended that
Respondent offer to Dolores King, Clara Dixon, and Elizabeth Morgan immediate
and full reinstatement to their former or substantially equivalent positions,28 without
prejudice to their seniority and other rights and privileges. It is also recommended
that Respondent make whole Dolores King, Clara Dixon, and Elizabeth Morgan for
any loss of pay they may have suffered because of the discrimination against them,
by payment to each of them of a sum of money equal to the amount each would
have earned as wages from the date of said discrimination on August 5, 1953, July
28, 1953, and July 31, 1953, respectively, to the date of offer of reinstatement, less
their net earnings during such period. Ida Haynes having been offered reinstate-
ment effective August 31, 1953, it will be recommended that she be made whole by
payment to her of a sum of money equal to the amount she would have earned from
July 31, 1953, to August 31, 1953. Back pay shall be computed in accordance with
the Board's Woolworth formula 29 on the basis of each separate calendar quarter or
portion thereof during the period from the discharge to the date of proper offer of
reinstatement. Loss of pay shall be determined by deducting from a sum equal to
that which each employee would normally have earned for each quarter or portion
thereof, his net earnings,30 if any, in other employment during that period. Earn-
ings in one particular quarter shall have no effect upon the back-pay liability for any
other quarter.
As the unfair labor practices committed by Respondent were of a character strik-
ing at the roots of employee rights safeguarded by the Act, and disclose a propensity
on the part of Respondent to continue, although not necessarily by the same means,
to defeat self-organization of its employees, it will also be recommended that the
Respondent cease and desist from infringing in any manner upon the employee rights
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Amalgamated Clothing Workers of America, CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of its em-
ployees, Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) and (3) of the Act.
3. By interfering with, restraining, and coercing 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 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
5. Respondent did not discriminatorily discharge Hannah Bibbins as alleged in
the complaint.
[Recommendations omitted from publication.]
28 The Chase National Bank of the Caty of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
29 F. W. Woolworth Company, 90 NLRB 289
w Crossett Lumber Company, 8 NLRB 440
MAXWELL BROTHERS , INC. and INTERNATIONAL WOODWORKERS OF AMER-
ICA, C. I. O. Case No. 1O-C'A-1969. March 25, 1955
Decision and Order
On October 29, 1954, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
111 NLRB No. 187.