Lily-Tulip Cup Corp.

National Labor Relations Board - Board Decisions

Mar 2, 1950

88 N.L.R.B. 892 (N.L.R.B. 1950)

In the Matter of LILY-TULZp CUP CORPORATION and INTERNATIONAL
PRINTING PRESSMEN & ASSISTANTS' UNION OF NORTH AMERICA,
AFL
Case No. 10-CA-279.-Decided March 2, 1950
DECISION
AND
ORDER
On July 20, 1949, Trial Examiner J. J. Fitzpatrick issued his Inter-
mediate Report in the above-entitled proceedings, 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 for in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner further found
that Respondent had not engaged in other unfair labor practices
alleged in the complaint and recommended that the complaint be dis-
missed in part. Thereafter the Respondent and the General Counsel
filed exceptions to the Intermediate Report and supporting briefs.
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 of the Trial Examiner and finds
no prejudicial error was committed. The rulings are hereby affirmed,
except as noted below. The Board has considered the Intermediate
Report, the Respondent's and General Counsel's exceptions and briefs,
and the entire record in this case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner, only insofar as
they are consistent with our Decision and Order herein.
1. The Trial Examiner found that the Respondent did not violate
Section 8 ('a) (1) and (3) of the Act by refusing to demote Young at
the time of her discharge. Although we agree with the Trial Exam-
iner that the failure or refusal to demote Young and her resulting dis-
charge is not violative of the Act in the light of the circumstances here,
we do not pass upon whether the discharge of a supervisor under other
circumstances might constitute a violation of the Act.
88 NLRB No. 170.
892
LILY-TULIP CUP CORPORATION 893
2. Unlike the Trial Examiner, we do not find that the Respondent's
refusal to rehire Young because of its "no down grading" policy was
violative of the Act. The record shows that this policy was one of
long standing and was established prior to the advent of the Union.
As set forth in the Intermediate Report the policy was an operative
factor in Young's discharge as a supervisor, which we have found not
to have been violative of *the Act. Under these circumstances we do
not believe that the policy was unlawfully invoked to deny reemploy-
ment to Young shortly after her proper discharge.'
3. Under the Trial Examiner's interpretation of Section 10 (b), the
only alleged violations of Section 8 (a) (1) properly before the Board
were those incidents alleged to have been committed on or after July
8, 1948. This interpretation was made before and is contrary to our
recent decision in the Gatltey Lumber case.2 Following the holding
in that case, any and all unfair labor practices alleged to have been
committed by the Respondent on or after February 13, 1948,3 are
properly before us. The Trial Examiner's contrary holding in this
respect is therefore reversed.
As set forth in the Intermediate Report, the record contains state-
ments made by Respondent's supervisors in the "Spring" and April of
1948, which we find violative of Section 8 (a) (1) of the Act. Thus
Peske's suggestion to Proctor 4 that he tell Vice-President Carroll that
he disapproved of the Union, and Appleby's interrogation of Hal-
ford,5 both made during an active union campaign were, in our opinion,
calculated to interfere with, restrain, and coerce the Respondent's
employees in the exercise of their rights under Section 7 and 8 (a) (1)
of the Act.
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, Lily-Tulip Cup
Corporation, Augusta, Georgia, and its officers, agents, successors, and
assigns, shall :
1 In finding to the contrary the Trial Examiner improperly relied in part upon an offer
of proof by the General Counsel which had been rejected at the hearing. However, even
assuming the offer to be true we nevertheless find insufficient evidence in the record to sup-
port a finding that the Respondent's refusal to rehire Young was motivated by discrimina-
tory considerations.. Therefore, as no findings of violation of the Act are based on the offer,
the Respondent's motion to reopen the hearing is denied.
2 86 NLRB 157.
8 The date marks the beginning of the 6-month period immediately preceding the filing
and service of the original charge herein.
' The Trial Examiner inadvertently referred to him as "Powell" in the Intermediate
Report.
6 Halford testified that Supervisor Appleby asked her in April 1948 "if the Union man
had been to see" her and " if it did any good."
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from interrogating its employees concerning
their union affiliation, activities, or sympathies, or in any other man-
ner interfering with, restraining, or coercing its employees in the
exercise of their rights to self-organization, to form labor organiza-
tions, to join or assist International Printing Pressmen & Assistants'
Union of North America, AFL, or any other labor organization, to
bargain collectively through representatives 'of their own choosing and
to engage in any other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to refrain from any
or all of such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8 (a) (3) of
the Act, as guaranteed by Section 7 thereof.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Post at its plant at Augusta, Georgia, copies of the notice
attached hereto, marked "Appendix A." 6 Copies of said notice, to
be furnished by the Regional Director for the Tenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof and maintained
by it for a period of thirty (30) consecutive days thereafter in con-
spicuous places, including all places where notices to employees
customarily are 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;
(b) 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.
IT Is FURTHER ORDERED that in all other respects the complaint herein
be, and it hereby is, dismissed.
MEMBER STYLES took no part in the consideration of the above
Decision and Order.
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 :
e In the event that this order is enforced by a 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."
LILY-TULIP CUP CORPORATION 895
WE WILL NOT interrogate our employees concerning their union
affiliations, activities, or sympathies, or in any other manner inter-
fere with, restrain, or coerce our employees in the exercise of the
right to self-organization, to form labor organizations, to join or
aSSiSt INTERNATIONAL PRINTING PRESSMEN & ASSISTANTS' UNION
OF NORTH AMERICA, AFL, or any other labor organization to bar-
gain 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 and 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, as guaranteed by Section 7 thereof.
All our employees are free to become or remain members of any
labor organization. We will not discriminate in regard to the hire or
tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any
such labor organization.
LILY-TULIP CUP CORPORATION,
Employer.
By-------------------------------
(Representative) (Title)
Dated--------------------
This notice must remain posted for 30 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Messrs . Shally O. Wise , and Morgan V. Martin, of Atlanta , Ga., for the General
Counsel.
Wilson, Branch .& Smith, of Atlanta , Ga., by Mr. Alexander E. Wilson, Jr., and
Mr. Richard S. Wechsler , of New York City, for the Respondent.
Mr. Warren W. McCann, of Atlanta, Ga ., for the Union.
STATEMENT OF THE CASE
Upon a second amended charge filed on January 6, 1949, by International Print-
ing Pressmen & Assistants' Union of North America, A. F. L., 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 complaint
dated February 25, 1949, against Lily-Tulip Cup Corporation, New York, `New
York, and Augusta, Georgia, herein called the Respondent, alleging that the
Respondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section S (a) (1) and (3) and Section 2 (6)
and (7) of the Labor Management Relations Act, 1947 (61 Stat. 136), herein
1 The General Counsel and his representatives at the hearing are herein referred to as
the General Counsel, and the National Labor Relations Board as the Board.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called the Act. Copies of the complaint, the second amended charge, and notice
of hearing were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleges in substance
that the Respondent:
(1) On or about June 12, 1948, "refused, failed and omitted to demote and to
offer to demote" Ruby L. Young to a nonsupervisory position ; and on or abort
June 16, 1948, and thereafter refused to hire and reemploy Young because of her
membership in and activities on behalf of the Union, and because she engaged in
concerted activities with other employees for the purposes of collective bargaining
and other mutual aid and protection ;
(2) From about December 24, 1947, to the date of the complaint, (a) inter-
rogated its employees concerning their union affiliation and activities, (b) threat-
ened and warned its employees to refrain from assisting, becoming members of, or
remaining members of the Union, (c) threatened to close its plant if its em-
ployees joined the Union, (d) promised its employees better jobs if they would
not support the Union, and (e) threatened them with loss of overtime work if
they joined or assisted the Union;
(3) By the above acts has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
In its answer filed March 10, 1949, the Respondent admits that it "did not
demote, nor did it offer to demote" Young to a nonsupervisory position, and that
it has not employed her in a nonsupervisory position, but denies the commission
of any unfair labor practices.
Pursuant to notice, a hearing was held at Augusta, Georgia, on April 5, 6, and
7, 1949, before J. J. Fitzpatrick, the undersigned Trial Examiner duly designated
by the Chief Trial Examiner. The General Counsel, the Respondent and the
Union were represented at the hearing. All parties participated and were
afforded full opportunity to be heard, to examine and cross-examine witnesses, and
tc introduce evidence bearing on the issues.
At the opening of the hearing a motion by the Respondent (filed prior to the
hearing) to make the complaint more specific was denied, but the Respondent
was advised that on application and proper showing it would be given reasonable
opportunity to meet any evidence adduced to support allegations of interference
by certain alleged supervisors no longer employed at the Respondent's Augusta
plant 2 No application for additional time to prepare its defense in the above
respect was made by the Respondent. A motion similarly filed by the General
Counsel to make the answer more specific was also denied.
The Respondent moved to strike or dismiss certain allegations of interference
in the complaint not connected with the discharge of Ruby L. Young. These
motions were denied at the opening of the hearing and also when the General
Counsel rested. The same motions, renewed after, all the evidence was in, were
taken under advisement, and are disposed of as will hereafter appear. The
General Counsel's motion to conform the pleadings to the proof in formal matters
was denied on Respondent's objection that the granting of such motion might
affect in some respects its pending motions to strike ; but the parties were, advised
to prepare a stipulation clarifying any inconsistencies in names, dates, or other
2 Prior to the hearing this motion was referred to Trial Examiner Charles S. Ferguson
for disposition. The General Counsel did not have the original Ferguson ruling on the
motion but offered a copy thereof as part of the formal file. Respondent objected to the
receipt of the copy on the ground that no notice of the Order had ever come to its attention
prior to the hearing and the objection was sustained. It therefore became necessary for me
to formally dispose of the motion at the hearing.
LILY-TULIP CUP CORPORATION 897
purely forn32l matters appearing after the receipt of the records. No such
stipulation has been received. At the conclusion of the hearing oral argument was
waived by all the parties, but briefs have been received from the Respondent and
the General Counsel.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Lily-Tulip Cup Corporation is a Delaware corporation'with its principal office
and place of business in New York, New York. It maintains and operates a
number of manufacturing plants in the United States,' including a plant in
Augusta, Georgia, which is the one involved in this proceeding.
At Augusta the Respondent is engaged in the manufacture, sale, and distribu-
tion of paper containers. During the 12 months preceding April 5, 1949, the
Respondent purchased for its Augusta plant materials valued in excess of $200,000
in value, more than 50 percent of which was purchased and shipped to the plant
from outside the State of Georgia. During the same period the plant manufac-
tured and sold products in excess of $200,000 in value, more than 50 percent
thereof going to customers outside the State.
The Respondent admits that it is engaged in interstate commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Printing Pressmen & Assistants' Union of North America, A. F. L.,
is a labor organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background, factual setting, and issues
Augusta, Georgia, houses the newest of the Respondent's plants. Ground for
the buildings was broken in February 1947, manufacturing started the following
September with not over 30 production employees, and production and employ-
ment increased gradually thereafter. At the time of the hearing there were
approximately 350 production workers.
In November 1947, shortly after production started, a campaign was inaugu-
rated to organize the employees in the Union. It culminated with an election on
August 12, 1948.° Management became aware of this union activity about Novem-
ber 1947 and thereafter indicated its disapproval thereof.
Thus there-is credible and undisputed testimony that Forelady Katherine Suber
told employee Elsie Harmon in February 1948 that if the employees joined the
Union they might lose their jobs, and that in April of that year Foreman Cecil
Appleby asked employee Mary Halford "if the union man had been to see" her
and "if it did any good."
Employee Wilbur Powell testified credibly and without contradiction that in
the spring of 1948 Nick Peske, under whom he worked, reminded Powell that
when he was hired in January Peske had told him that if he approved the Union
S And one in Canada.
4 This consent election was lost by the Union, the vote being 74 for the Union and 208
against the Union.
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he would not last long," and that Powell told Vice-President Carroll, at Peske's
request, that he opposed the Union e
On February 3, 1948, Vice-President Carroll warned employee Ruby Young
about soliciting for the Union on company time and threatened to discharge her
if she continued such activities.' The following May, Young was promoted to a
supervisor's job in her departments On June 12, Young was refused a demotion
to her former non-supervisory job and discharged solely because she would not
quit the Unions Young has not since been rehired, although on June 16, 1948, she
5 The objection of the Respondent to evidence of the January conversation between
Peske and Powell ( as well as other antiunion statements by Supervisor Suber) was
sustained on the ground that it antedated the filing and service of the original charge
by more than 6 months. The testimony as to these statements appears in the record in the
form of an offer of proof. Under Section 10 (b) of the Act these statements are of no
value as evidence of any unfair labor practice by the Respondent, but are admissable as
explanatory background. In that respect and for that purpose only the ruling on the
objection to the testimony is reversed and the offer of proof is accepted.
Respondent contends that Peske was not a supervisor. Peske was an experienced
operator of arch press machines at Respondent's College Point, New York, plant. In the
fall of 1947 he was transferred to Augusta to install the arch press equipment and train
inexperienced employees to operate the machines. When the arch press machines were
not in operation, he assigned the trainees to other work. 1-le granted permission for
time off from work and passed on the qualifications of applicants for employment on the
arch press machines and also reported the progress of trainees to management. I find
that Peske was a supervisor within the meaning of the Act. On the other hand I agree
with the Respondent that it is not responsible for any antiunion statements of Dr. K. B.
Bowen. Bowen is a practicing physician in the city of Augusta. He calls at the Re-
spondent's plant several times a week for the purpose of making physical examinations
of new applicants, giving periodical examinations to employees, and rendering emergency
aid to employees when necessary. For whatever time the doctor puts In at the plant
or in attending to physically incapacitated employees at his office, he renders a monthly
statement and is paid therefor by the Respondent. Ile has no other authority in the
plant or over the employees and there is no evidence that management condoned his
antiunion comments or was even aware of them. I will therefore not discuss herein
the testimony of such statements by Dr. Bowen.
S There is credible, although disputed, testimony that about January 22, 1948, the
Respondent posted a ho-solicitation rule on its bulletin board prohibiting solicitation "on
company premises." The Respondent asserts that Young was criticized for violating
this rule. The rule is too broad and should have been limited to working time only, in
the absence of any showing that the broader prohibition was necessary in the interest
of efficiency and plant discipline. However, the rule was never enforced except in the
Young instance above referred to, and that criticism apparently was because management
understood that Young had been soliciting during working hours. Furthermore, as will
hereafter appear, because of the proviso in Section 10 (b) of the Act, activities prior
to February 13, 1948, in any event, are admitted and considered as background only.
No finding therefore will be made herein whether the posted rule constitutes in and
of itself a violation of Section 8 (a) (1) of the Act, especially as it was not alleged as
an unfair labor practice and was not litigated as such and there was no showing at
the time of the hearing that the rule was still in existence and constituted a continuing
restriction upon the employees.
e As has been previously found Young was a machine operator. The next step ordinarily
I. her promotion would be as instructor or inspector. Several of these Inspectors and
instructors in the department were passed over when Young was selected -to be supervisor.
However, Vice-President Carroll's explanation is accepted that Young had the qualities
of leadership needed in a supervisor. She dgfinitely impressed me as being a very capable
young woman. Furthermore, the business was expanding and there is evidence of other
promotions during this period.
s There is no contention that Young did not otherwise perform her supervisory work
satisfactorily in the short period in which she so functioned. The record shows, however,
that it was the Respondent 's established policy, not only in its Augusta plant but also
in all its other establishments, (a) not to down grade supervisors and (b ) to require
supervisors to remain neutral in matters concerning any union in the plant . Whether
LILY-TULIP CUP CORPORATION 899
made written application to the Respondent for a job as a production worker.10
No reply was received from this written application and she has not since been
reemployed.
The General Counsel contends that the activities of Vice-President Carroll,
Supervisors Suber, Appleby, and Peske, above detailed, constitute interference
with the rights of the employees in violation of Section 8 (a) (1) of the Act, and
that the refusal to demote Ruby L. Young and to rehire her as an ordinary em-
ployee discriminated as to her hire and tenure of employment in violation of
Section 8 (a) (1) and (3) of the Act.
In addition to denying responsibility for the acts of Peske, or that it interfered
with, restrained, or coerced Ruby L. Young, or discriminated against her in viola-
tion of Section 8 (a) (1) and (3) of the Act, the Respondent contends: (1) that
Section 10 (b) of the Act bars the introduction of any evidence of any independ-
ent violation of Section 8 (a) (1) not connected with Ruby L. Young prior to
July 8, 1948 (6 months prior to January 8, 1949, when the second amended charge
upon which the complaint is "based" was served upon the Respondent) ; and (2)
that the phrase "and by other acts" first appearing in the second amended charge
(in addition to the allegations relative to Ruby L. Young) is insufficient to form
a basis for independent allegations of interference in the complaint and did not
put the Respondent on notice that such a complaint might be filed against it.
B. Conclusions
1. The legal effect herein of section 10 (b) of the act
The original charge herein (filed August 11, 1948, and served on the Respondent
August 13, 1948) alleges violation of Section 8 (a) (1) only of the Act in the
following language:
On or about June 12, 1948, said company by its officers and agents termi-
nated the employment of Ruby L. Young because of her activities on behalf
of and membership in International Painting Pressmen & Assistants' Union
of North America.
On or about June 17, 1948, said company refused reinstatement to said
Ruby L. Young, because of her affiliation with said International Printing
Pressmen & Assistants' Union of North America.
By the acts alleged above the company has restrained and coerced its
employees in the exercise of their rights guaranteed in Section 7 of the
National Labor Relations Act, as amended. [Emphasis supplied.]
The first amended charge (filed September 9, 1948, and served on the Respond-
ent September 11, 1948) is identical in language with the original charge except
that the acts allegated are charged to be in violation of Section 8 (a) (1) and
(3) of the Act. The second amended charge (filed January 6, 1949, and served
on the Respondent January 8, 1949) in alleging violation of Section 8 (a) (1)
and (3) reiterates the allegations used in the first two paragraphs of the original
and first amended charges, but the third paragraph reads as follows :
Young was advised of these policies at the time of her promotion will be discussed under
"Conclusions."
10 The body of the application for employment reads as follows : "I am hereby applying
for my old job on the production line with the Lily Tulip Cup Corporation, Augusta,
Georgia. I do not desire to be a supervisor . I prefer a job on production , so that I might
remain active in the affairs of Cup and Containers Union No. 517, Augusta, Georgia. Will
appreciate your reply at your earliest convenience."
882191-51-58
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By the above and by other acts, it, by its officers, agents and employees has
interfered with, restrained, and coerced its employees in the exercise of
their rights guaranteed in Section 7 of the National Labor Relations Act,
as amended. [Emphasis supplied.]
The Notice of Hearing, served on the Respondent with the complaint and the
second amended charge, states :
A copy of the charge upon which the complaint is based is attached hereto.
The Respondent vigorously contended at the hearing and in its brief that the
second amended charge upon which the complaint was based stated a new sub-
stantive issue not connected with the Ruby L. Young allegations in the previous
charges, and that therefore Section 10 (b) bars the receipt of any evidence of
violations of Section 8 (a) (1) (independent of the Ruby L. Young matter)
prior to July 8, 1948.
It is clear from the complaint herein, and the record, that the General Counsel
by virtue of the addition of the new words "and by other acts" in the second
amended charge sought to prove independent violations of interference not
connected with Ruby L. Young. The Respondent's first notice that there would
be an additional unfair labor practice allegation included in any complaint issued
was on January 8, 1949, when it received a copy of the second amended charge
containing the general catch-all phrase above quoted. Up to that time, as argued
by the Respondent, it had notice only of specific charges of unfair labor practices
relating to Ruby L. Young. If the complaint herein had been based upon the
original charge or the first amended charge, any allegations of independent.8
(a) (1) violations would have been subject to a motion to strike on the ground
that they were not included within the scope of the charge. When the second
amended charge, including the new count, was filed, the General Counsel recog-
nized the protection of Section 10 (b) afforded the Respondent by promptly
serving it with a copy of this amended charge. Section 10 (b) not only requires
notice to the Respondent that the charge was filed, but also limits allegations of
unfair labor practices in any complaint based thereon to a period "not more
than six months prior" to the filing of the charge and service 'of a copy thereof
on the Respondent.
So far as I have been able to ascertain, the Board has not heretofore passed on
the question of whether a complaint (and the evidence received in support
thereof) containing allegations of unfair labor practices set forth for°the first
time in an amended charge can go beyond the 6-month period prior to the service
and filing of the new charge," but the Board in Erving Paper Mills, 82 NLRB 434,
23 LRRM 1575 uses this language :
We believe that Section 10 (b), properly construed, requires that the six-
month period be computed from the date of the alleged unfair labor practices
to the date of the service on the Respondent of the first charge (or amended
charge) relating to such unfair labor practices. [Emphasis supplied.]
-The Board then goes on to state that the above view accords with a literal
interpretation of Section 10 (b) and with "judicial practice in dealing with
statutes of limitations generally.""
11 Cases cited by the General Counsel : Itasca Cotton Mills, 79 NLRB 1442, 23 LRRM
1021 ; Va.nette Hosiery Mills, 80 NLRB 1116, 23 LRRM 1198; and Hillsboro Cotton Mills,
80 NLRB 1107, 23 LRRM 1200, have to do with the retroactive and prospective effect of
Section 10 (b) and are therefore not in point.
11 After the statement last above quoted the Board adds the following footnote :
LILY-TULIP CUP CORPORATION 901
In the cases above referred to there was no substantial change in the original
charge and the subsequent charges. In the instant case a new cause of action
was added . In my opinion , so far as the new cause of action is concerned, the
General Counsel is limited by the statute in his allegations and in his proof to a
period not over 6 months prior to the service of the last charge , to-wit July 8, 1948.
I so find.
As the evidence to support the allegations of interference show that the anti-
union statements by supervisors all occurred prior to July 1948 and there is no
evidence of continuing interference thereafter , no independent 8 (a) (1) findings
of unfair labor practices are made herein . Likewise, only events occurring sub-
sequent to February 13, 1948 ," will be considered in any findings of unfair labor
practices involving Ruby L. Young. However , the motion to strike the other
testimony herein found barred by Section 10 ( b) is denied . Such testimony will
be considered as background.
I find from the background testimony appearing in the record that the Re-
spondent , in the fall of 1947 and the winter and spring of 1948, through its respon-
sible officers and agents , indicated to the employees its disapproval of union
organization in the Augusta plant, and that it was aware of Ruby L. Young's
activity in the Union.
2. Ruby L. Young
As has been previously found, the Respondent warned machine worker Ruby
L. Young in February 1948, not to solicit for the Union on company time. On
May 17, 1948 , after a several weeks lay -off of Young and others in her department
due to a shortage of material , Young and the others were called back to work.
The next day Vice-President Carroll offered Young the job of forelady in the
Nestrite Department where Young had been working . This was a supervisor's
job. The next day she accepted the offer and from then on until June 12 when
she was discharged she presided as supervisor in the department to the entire
satisfaction of the Respondent so far as her work was concerned.
In the meanwhile , Young continued actively as secretary-treasurer of the
Union, a job she had accepted the previous February 8th. Two weeks after her
promotion , about June 1, Carroll sent for Young and told her that she would have
to leave the Union as it was illegal for her to continue such activity in view of
the fact that she was a representative of management . Young agreed to talk the
matter over with McCann and let Carroll know the result. Young tried to get in
touch with McCann , the union representative , but was unsuccessful and a day
or two later sent a written note to that effect to Carroll."
When a pleading has been filed within the applicable period of limitations , amendments
to the pleadings which do not add a new cause of action are not barred , even though
filed after the limitation period has run. 54 Corpus Juris Secundum . Sec. 280. See
also Rule 15 (c) of the Rules of Civil Procedure of the District Court of the United
States. ( See also J. S. Abercrombie Company, 83 NLRB 524, 24 LRRM 1115 .) [ Text
emphasis supplied.]
'3 Six months prior to the filing and service of the original charge.
1' The note in Young's handwriting reads as follows
Air. CARROLL,
I was unable to contact the party we were discussing. ile should call me this
weekend . R. YOUNG.
It is Carroll ' i testimony that on May 18, when he offered the supervisor ' s job to
Young, he told her that if she accepted the promotion there could thereafter be no down
grading for her ( in case her services as a supervisor were not acceptable ), and that she
would have to leave the Union . He further testified that on this occasion Young agreed
to talk the matter over with her husband and with Mr. McCann and let him know the
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carroll had to leave for New York in early June. Before leaving, and appar-
ently shortly after he received Young's note, he sent for her and told Young
that the "matter" would have to be cleared up. Carroll also at that time left
instructions with Assistant Plant Manager Rhodes to see that Young's case was
settled without delay. A week or 10 days before Young's discharge on June 12,
Rhodes told her about the company policy and that she would have to quit her
job or resign from the Union. Young, who had previously told Carroll that
she was secretary-treasurer of the Union; advised Rhodes that she would have
to give the Union 30 days' notice before she could turn in her union books and that
she had been told by Carroll in their second talk that he would arrange with
McCann so that she could turn in her books without the 30 days' notice's Rhodes
replied that he knew nothing about Young's talks with Carroll but that it would
be necessary for Young to turn in her union books without delay. Several days
later there appears to have been another talk between Rhodes and Young wherein
Young reported that she had been unable so far to get in touch with McCann.
Prior to the 12th of June, however, Young saw McCann at a union meeting, and
he advised her that she did not have to resign from the Union and the Company
could put her back as an operator. On June 12 Young told Rhodes that she had
decided' not to quit the Union. Rhodes offered her a chance to resign her job as
supervisor but she refused and he discharged her the same (lay.
As has been heretofore found, 4 days after the discharge on June 16 Young
made a written application to the Respondent for her old job as machine operator.
She has not, however, been reemployed. The record shows that a number of
machine operators were employed by the Respondent in the Nestrite Department
subsequent to Young's application.
Although it has been found that Young in accepting her promotion as super-
visor without qualifications of any kind on May 19, was not told of the company
policy with reference to demotions of supervisors and their expected neutrality
in union matters involving rank and file employees, she certainly must have been
aware that in taking even a minor managerial position she would be expected to
assist and carry out the policies of management. It seems to me that if she
was unaware of the actual policies she was put on notice to ascertain what those
policies were and how they would affect her status. Certainly as an active
union member, she must have been aware that for her to continue activities in a
union composed of rank and file employees, after accepting a job as supervisor,
could place her as well as management in an equivocal position. The failure to
blueprint to Young all the responsibilities she would incur if she accepted the
next clay. I do not credit this testimony of Carroll's that Young on May 13 was told
that there would be no down grading and that she would have to leave the Union, or
that at that time she asked to talk the matter over with anybody except her husband.
This is based on the specific denial of Young relative to the above matters, the fact that
she made no effort to talk to McCann about resigning from the Union at that time and
the further fact that both Carroll and Young agree that in the second talk, about June 1,
Young said that she would talk to McCann about resigning from the Union and would
let Carroll know her decision. This finding is further buttressed by the admitted fact
that Young sent a note to Carroll 2 or 3 days after the second talk.
16 Carroll denied that he had offered to see McCann and make the above arrangements.
In view of the fact that Carroll's acquaintanceship with McCann was casual, and the
further fact that it seems highly improbable that the vice president of a company would
have volunteered to see a' union representative relative to waiving the Union ' s bylaws
regarding the checking of the Union 's financial officer 's books, I do riot credit this
testimony of Young . Furthermore , it is inconsistent with the finding above made that
as a result of the June 1 talk Young was to see McCann and let Carroll know her
decision.
LILY-TULIP CUP CORPORATION 903
promotion under such circumstances does not justify or support a finding that
the Respondent's purpose in offering Young the job of supervisor was to get her
out of the union movement, as argued by the General Counsel.18
When Young accepted without qualifications, as she did, the position of super-
visor she no longer was an employee within the meaning of the Act.17 When the
Respondent refused to demote her on June 12, she was not entitled to the protec-
tion the Act affords ordinary employees regardless of the Respondent's reasons
for refusing to grant such demotion's I therefore find that the Respondent did
not violate Section 8 (a) (1) and (3) of the Act by refusing to demote Ruby L.
Young on June 12, 1948.
However, after June 12, 1948, Young was no longer a supervisor for the Re-
spondent. When she wrote the June 16 letter she became an applicant for em-
ployment as an ordinary employee, and was entitled to the full protection of the
statute. The Respondent has ignored the•request and has not since reemployed
Young. The Respondent contends that on June 19, 1948, Young told Assistant
Plant Manager Rhodes that she had another job and no longer desired to be
reemployed as a production worker by the Respondent. Both Young and Rhodes
testified to the June 19th conversation. An examination of their testimony shows
[ onclusively that they both agree that on that occasion Young stated she had an
,opportunity to get a job, she thought, in a shirt factory but needed a recommen-
dation, and that Rhodes refused to give her a general letter of recommendation
but stated that if any prospective employer'.called him up he would give a
recommendation direct to such employer. There is no evidence that any pros-
pective employer thereafter did inquire of the Respondent relative to Young, or
that the Respondent had any information whatsoever to lead them to believe that
she had accepted another job and that her application for employment with the
Respondent was to be disregarded. I find that Young did not withdraw her
application for employment, and that her request for a job with the Respondent
is still pending.
The Respondent further claims as justification for refusal to hire Young that
no machine operators were hired in the Nestrite Department until after Septem-
ber 1, 1948. While it is true that no machine operators were employed in that
department until September, 1948, there is evidence that in this period other work-
ers were being employed, and the undersigned finds, in view of Young's excellent
abilities and experience with the Respondent that production work for which she
was qualified could have been found for her at any time after June 16, 1948.
I find, in the light of the Respondent's antiunion attitude disclosed by the
record, that the Respondent's refusal to reemploy Young as a production worker
was because of her membership in and activities for and on behalf of the Union ;
and that by such acts the Respondent has discriminated against Young in her hire
and tenure of employment to discourage membership in the Union, thereby inter-
fering with, restraining and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act, and in violation of Section 8 (a) (1) and (3)
of said Act.
16 It is true that Young's promotion and later discharge was during a union campaign
to which the Respondent was opposed. Any inference, however, that the promotion and
later discharge was motivated by a desire to disrupt the union is at least offset by the
contrary inference from the following facts : (a) Young was an excellent worker and
had received a small pay raise the day before she was offered the promotion ; (b) she had
definite qualities of leadership, and (c) with expanding production the Respondent was
definitely in need and on the look out for employees with apparent supervisory ability.
17 Section 2 (11) of the Act.
21 Section 14 (a) of the statute.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with 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 such activities as have been found herein to constitute
unfair labor practices tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in certain unfair labor
practices, it will be recommended that it cease and desist therefrom and take
certain affirmative action which will effecuate the policies of the Act. It has been
found that the Respondent on June 16, 1948, discriminatorily refused to rehire
Ruby L. Young. It will, therefore, be recommended that the Respondent offer
Young reinstatement to her former or substantially equivalent position as a
machine operator, and that the Respondent make her whole for any loss of pay
she may have suffered by reason of the discrimination against her, by payment
to her of a sum of money equivalent to that which she would have earned as wages
from the date of the discrimnatory refusal to rehire her to the date of the offer
of reinstatement, less her net earnings during said period 1B
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. International Printing Pressmen & Assistants' Union of North America,
A. F. L., 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 Ruby
L. Young the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (1) and (3) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
On the basis of the foregoing findings of fact and conclusions of law, I recom-
mend that Respondent, Lily-Tulip Cup Corporation, New York, New York, and
Augusta, Georgia, and its officers, agents, successors, and assigns, shall :
1. Cease and desists from :
(a) Discouraging membership in any labor organization by refusing to employ
applicants for employment because of their membership in or activity on behalf of
any such organization, or in any other manner discriminating in regard to their
hire or tenure of employment or any term or condition of employment.
2. Take the following affirmative action which I find will affectuate the policies
of the Act :
(a) Offer to Ruby L. Young immediate employment at production work com-
parable to that which she performed previously for the Respondent, and make her
whole in the manner set forth in the section entitled The remedy ;
(b) Post at its plant at Augusta, Georgia, copies of the notice attached hereto
marked Appendix A. Copies of said notice to be furnished by the Regional Direc-
tor for the Tenth Region, shall, after being duly signed by the Respondent's repre-
11 Crossett Lumber Co., 8 NLRB 440.
LILY-TULfP CUP CORPORATION 905
sentative , be posted by the Respondent immediately upon receipt thereof and
maintained by it for a period of sixty ( 60) consecutive days thereafter in con-
spicuous places , including all places where notices to employees customarily are
posted . Reasonable steps shall be taken by the 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 (Atlanta, Georgia) in
writing within twenty (20) clays from the date of the receipt of this Intermediate
Report what steps the 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, the Respondent notifies the said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring Respondent to take the
action aforesaid.
It is further recommended that the complaint be dismissed insofar as it alleges
interference in violation of Section 8 (a) (1) independent of the Ruby L. Young
discrimination. .
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 19_iS, any party may,
within twenty (20) clays 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 an original and six copies of a statement in writing setting forth
such exceptions to the Intermediate Report'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. Immediately upon the filing of'such state-
ment of exceptions and/or briefs, the parties 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 mimeographed 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
(late 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 and recommendations, and
Recommended Order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations, be adopted by the Board and become its findings, con-
clusions, and order, and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington, D. C., this 20th day of July 1949.
J. J. FITZPATRICI{,
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 :
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL. NOT discourage membership in the INTERNATIONAL PRINTING
PRESSMEN bt' ASSISTANTS' UNION OF NORTH AMERICA, A. F. L., or any other
labor organization of our employees, by refusing to rehire or by discriminating
in any other manner in regard to our employees hire and tenure of employ-
ment, or any term or condition of employment.
WE WILL OFFER to Ruby L. Young immediate and full employment to her
former position as a production worker, or to a substantially equivalent posi-
tion, and will make her whole for any loss of pay suffered as a result of the
discrimination against her.
LILY-TULIP CUP CORPORATION,
Employer.
By ----------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.