M & S Co, Inc.

National Labor Relations Board - Board Decisions

Jun 2, 1954

108 N.L.R.B. 1193 (N.L.R.B. 1954)

M & S COMPANY, INC. 1193
departments."' The plantwide bargaining history, in our opin-
ion, validly and effectively embraces the mechanical employees.
The proposed severance of the nonmechanical employees is not
based on craft grounds ; and there are no compelling policy
considerations favoring the separate representation of these
employees in view of the bargaining history.2 Under Section
9 (e) (5) of the Act, the Board may not accord controlling weight
to the extent of organization by the Petitioner. Accordingly, we
find that the separate unit of nonmechanical employees prima-
rily sought by the Petitioner is inappropriate.'
However, in accordance with the Petitioner's alternative unit
position , and in view of its adequate showing of interest, we
shall direct that an election be held in the existing plantwide
unit, as described below, which we find appropriate for the
purposes of collective bargaining within the meaning of Section
9 (b) of the Act:
All employees of the Employer at its Bronx, New York, plant,
excluding confidential employees , executives , and supervisors
as defined in the Act.
[Text of Direction of Election omitted from publication.]
'See The Bureau of National Affairs, 96 NLRB 673, 675,
2 Cf. International Smelting and Refining Company, 106 NLRB 223; National Cash Register
Co., 95 NLRB 27, 29; American Potash & Chemical Corp., 107 NLRB 1418.
3 See, e. g„ Hall-Neal Furnace Co , 96 NLRB 212.
M & S COMPANY, INC. and UNITED GARMENT WORKERS
OF AMERICA, AFL. Case No. 15-CA-587. June 2, 1954
DECISION AND ORDER
On December 8, 1953, Trial Examiner Richard N. Ivins
issued his Intermediate Report in the above -entitled proceeding,
finding that the Respondent had not engaged in the unfair labor
practices alleged in the complaint , and recommended that the
complaint be dismissed in its entirety , as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the
General Counsel filed exceptions to the Intermediate Report
together with a supporting brief and the Respondent filed a
brief in support of the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. ' The rulings are hereby affirmed . The Board has
'At the hearing, the Trial Examiner sustained theGeneral Counsel's objection to the admis-
sion of certain company personnel records, relating to 21 former employees, on the ground
of immateriality. Thereupon, the Respondent's counsel made an offer of proof, in statement
form, to the effect that admission of such records would support the oral testimony of the
Respondent's witnesses as to the existence and enforcement of a company discharge rule
relating to employee absenteeism. In the Intermediate Report, the Trial Examiner reversed
108 NLRB No. 162.
1 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considered the Intermediate Report, the exceptions and briefs,
and the entire record in the case, and hereby adopts the
findings , conclusions , and recommendations contained in the
Intermediate Report.'
The nature of this case is such that determination of the
issues depends primarily upon the resolution of witness
credibility. The Trial Examiner, relying upon witness de-
meanor, resolved credibility in favor of the Respondent's
witnesses and dismissed the complaint. In taking exception
to the Intermediate Report, the General Counsel has noted
factors in the record which tend to cast doubt upon the
propriety of the Trial Examiner's credibility findings. However,
although the Trial Examiner's resolution of credibility herein
is subject to some question and has required particularly
close scrutiny, we are not convinced that the clear prepon-
derance of all the relevant record evidence shows that the
Examiner's resolution was incorrect. Accordingly, we adopt
the Trial Examiner's credibility resolutions 3 and his findings
based thereon.
[The Board dismissed the complaint.]
Member Murdock, dissenting:
The Board ' s disposition of this case rests solely upon the
credibility findings of the Trial Examiner who chose to
his ruling made at the hearing and considered the Respondent Counsel's offer of proof as
evidence. The General Counsel has excepted to the Trial Examiner's reversal of his own prior
ruling. We find merit in this exception because the Trial Examiner's reversal action resulted
in his improperly relying upon the offer of proof as evidence. Lily- Tulip Cup Corporation,
88 NLRB 892, footnote 1.
It is noted that the Trial Examiner's findings relating to the aforesaid discharge rule
are independently sustained by the oral testimony of the Respondent's witnesses and conse-
quently the ultimate findings herein are not affected by our reversal of the Examiner's ruluig
in the Intermediate Report.
2 The Intermediate Report contains certain minor misstatements or inadvertencies, none
of which affects the Trial Examiner's ultimate conclusions. Accordingly, we note the follow-
ing corrections:
During the period Pauline Glass was recuperating from an operation, Mrs Dumas tele-
phoned her on a number of occasions, not every week.
Production Manager Gregory told President Marchman, on January 3, 1953, of his conver-
sation with Eurlee Browder about her unauthorized prospective absence, not on December 3,
1952.
Gregory's version of Browder's visit to the Respondent's plant on January 12, 1953, agreed
substantially with Browder's version, rather than "agreed in substance."
s We agree with Member Murdock in considering it bad practice to use a "boilerplate
footnote" or other generalized finding relating to credibility. As we must normally place
heavy reliance on the Trial Examiner's evaluation of the truth or falsity of testimony, and
as the resolution of credibility conflicts often determines the final outcome of the issues
in cases before this Board, we must expect the Trial Examiner to indicate carefully and speci-
fically how he arrived at his credibility conclusions. Failure to do so may indeed constitute
sufficient basis for rejecting his conclusions as to credibility and his findings on the issues
in the case. This is not the case here, however, for the Trial Examiner did not rely solely
on the blanket finding but in fact considered specifically the credibility of the various witnesses
and made separate and specific findings as to credibility.
4Standard Dry Wall Products, Inc., 91 NLRB 544, 545, enfd. 188 F. 2d 362 (C. A 3).
M & S COMPANY, INC. 1195
believe one group of witnesses rather than another group.
If the Trial Examiner were reversed in his credibility resolu-
tions, the General Counsel has established the violations of
Section 8 (a) (1) and ( 3) alleged in the complaint . My col-
leagues find that there is some question as to the validity of
the Trial Examiner ' s credibility findings but are not convinced
that the clear preponderance of the evidence shows that the
Examiner ' s resolution was incorrect . I do not agree.
No less than they, I am of the opinion that credibility resolu-
tions of Trial Examiners should be given great weight and should
be overturned only "where the clear preponderance of all the
relevant evidence convinces us that the Trial Examiner's
resolution was incorrect ." (Standard Dry Wall Products, Inc.,
91 NLRB 544.) I do not, however , and am sure that my
colleagues do not believe that the Boardis required to abdicate
its function as a finder off act when objective matters of record
completely overcome the advantage the Trial Examiner has in
his observance of the "bearing and delivery of a witness."
(See, for example , National Furniture Manufacturing Co., Inc.,
106 NLRB 1300, in which the Board cited Salant & Salant, Inc.,
92 NLRB 417, as support for overruling the findings of a hearing
officer in an election case.)
The standards and guides utilized by triers of fact , such as
a Trial Examiner , are inherently resistant to being reduced
to absolute or universal formula. (See N. L. R. B. v. Dinion
Coil Co., 201 F. 2d 484 (C. A. 2.) However , when a Trial
Examiner sets forth bases upon which he has made his
credibility findings , it is incumbent upon us, particularly in
the circumstances of this case , to examine them, not only for
their validity but also with respect to their application.
The Trial Examiner set forth in footnote 2 of the Intermediate
Report a statement that he had considered certain factors
in arriving at his credibility findings . Then, instead of
discussing his findings with respect to the witnesses whom he
believed as opposed to those he disbelieved in the light of
these guides , he made a statement that he was "most favorably
impressed with the appearance , demeanor , and testimony"
of 3 of the Respondent ' s witnesses and rejected the testimony
of 12 of the General Counsel's witnesses , " whose appearance,
demeanor , and testimony did not impress [ him] so favorably."
That the Trial Examiner ' s insertion of footnote 2 into the In-
termediate Report was merely, as argued by the General
Counsel, a " clerical function , a mere routine, and not in the
least indicative of a proper determination of credibility,"
is shown by the fact that an almost identical "boilerplate"
footnote 2 appears in six Intermediate Reports issued by
this Trial Examiner , including a report in which the Trial
Examiner stated that the essential facts were not in dispute
and in which there was no issue of credibility involved.'
5 The Item Company. 108 NLRB No. 227.
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"It is noted that the majority agrees ( footnote 3) that it is
"bad practice to use a `boilerplate footnote ' or other gen-
eralized finding relating to credibility ." My objection, of
course, to the practice of the Trial Examinerin this case goes
not to the validity of the criteria which he enumerated but to
the fact that, having laid down his standards for determining
credibility , he did not apply them , insofar as it is evident
from his findings and the fact that he used the same language
in a case not involving credibility . The majority ( also in
footnote 3) states that the Trial Examiner " in fact considered
specifically the credibility of the various witnesses and made
separate and specific findings as to credibility." Those
"specific " findings are described in the paragraph immediately
preceding this one. Of more importance , however, is the fact
that the record contains serious inconsistencies and contradic-
tions in the evidence presented for the Respondent by the very
witnesses credited by the Trial Examiner . These vital variances
have not been explained by the Trial Examiner ; it is not
apparent from the Intermediate Report that the Trial Examiner
was even aware of them; and certainly the Intermediate Report
does not indicate that he considered them.
That a clear preponderance of the evidence requires the
Board to overrule the Trial Examiner 's credibility findings is
evident to me from the following facts:
1. Marchman , Respondent ' s president, gave an affidavit to
a Board investigator prior to the hearing in this proceeding.
This affidavit contains a significant inconsistency when viewed
in the light of Marchman ' s testimony at the hearing. In his
affidavit , Marchman stated that Gregory effected Browder's
discharge and that he, Marchman, had nothing to do with it; at
the hearing Marchman testified that he contacted his lawyer
during the weekend prior to January 5 to obtain advice on the
method of handling Browder.
Marchman testified that he was disturbed about Mrs . Browder
and called his lawyer for advice. At the same time the Re-
spondent contends that the January discharge of Browder was
routine and covered by the Respondent ' s rules . The record does
not show why , if the discharge of Browder were routine, as
contended by the Respondent, Marchmani was disturbed and
thought it necessary to consult counsel.
2. Gregory also gave an affidavit to a Board field examiner
during the investigation and prior to the hearing. Likewise,
there were inconsistencies between the information in the
affidavit and the testimony of the witness , Gregory, at the
hearing. In his affidavit Gregory stated that he waited until
Tuesday (January 6 ) or Wednesday before deciding to replace
Browder with employee Chapman whom he hired on Wednesday;
at the hearing Gregory testified that on Monday he hired em-
ployee Pigg to work as a trimmer in place of Browder and
that he switched Chapman to the trimming machine on Tuesday
because Pigg was unsatisfactory . He also testified that he hired
M 8, S COMPANY, INC. 1197
Chapman on Monday instead of on Wednesday as he had stated
in his affidavit.
3. Under oath at the hearing Gregory gave three conflicting
versions with respect to the identity of the person who wrote
the January 6 letter advising Browder she had been replaced.
Gregory first testified that he had written the letter ; then he
stated that he had not written the letter , someone in the
Respondent ' s office ( whose identity was unknown to him)
had written it; and finally , on cross-examination , Gregory
testified that he had not dictated the letter at all, that it had
come from Respondent ' s counsel.
4. Gregory ' s testimony contains other inconsistencies or
contradictions . He testified that it is the Respondent ' s policy
to do everything it can to keep open the jobs of sick em-
ployees . He testified , however , that, as he did not know in
September when Browder would be able to return to work
from her illness , on September 28 he had to fill the vacancy
caused by the death of Garner . Although, Gregory, according
to his testimony , usually contacted employees when he needed
them, he did not call Browder at that time. Despite this
testimony the same witness , Gregory, also testified that he had
received a letter dated September 1, 1953 ( which was received
in evidence) from Browder ' s doctor that she would be available
for work in 3 or 4 weeks. The doctor ' s letter , moreover,
affirmatively showed that Browder would be able to return
to work, as it stated that Browder was responding to the doctor's
treatment satisfactorily.
5. The credibility of Gregory , the Respondent ' s prime
witness and most active participant in the conduct involved
in this case , is further shaken by the odd response he made to
a relatively simple and direct question put to him as a witness
by the counsel for the Respondent. The question and the answer
are as follows:
Mr. Breard : Did [Browder ' s union activities ] have any-
thing to do with your decision in refusing to give her a job?
Witness Gre ory: Do you mean this last time? (Em-
phasis supplied
It is inconceivable to me, particularly in view of the inconsist-
encies and contradictions in Gregory ' s testimony appearing
above, that a witness who was attempting to give full and
forthright testimony would have reacted as Gregory did to the
question of his own counsel.
6. The record contradicts the Respondent ' s assertion that it
had followed normal procedure in discharging Browder. In
this regard , the Respondent ' s witnesses testified to the existence
of a "2 day rule " relating to job tenure for absent employees.
The Respondent claimed that under this rule employees
absent without expressed prior permission were replaced after
1 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 days' absence. That such a "2 day rule" was not applied
to Browder is shown by the fact that Pigg was hired as
Browder's replacement on the morning of the first day that
Browder was absent from work, although Gregory, himself,
testified that Browder had told him that she would get in
touch with him around the first of the week, Monday or
Tuesday.
The record shows, contrary to the testimony of Marchman,
that the Respondent had no intention of giving Browder the 2-day
absence privilege allowed under the alleged "2 day rule."
If this were a routine discharge occurring under established
rules of the Respondent, there would have been no need for
the extraordinary activity which took place in connection with
this "routine" discharge. Inconsistent with the testimony of
Marchman is the fact that he and Gregory discussed Browder's
case prior to her failure to report for work on January 5, the
fact that Marchman had to advise Gregory to apply the "2
day rule" to Browder (although Gregory ordinarily made such
personnel decisions on his own initiative), and Marchman's
action in contacting his lawyer with respect to Browder but
with respect to no other employees on the weekend before
Browder failed to report for work, although experience showed
that after such shutdowns absenteeism averaged from 10 to 15
percent of the total employee complement. Moreover, if the
January 6 discharge letter was, in fact, wiitten by the Re-
spondent's lawyer (as Gregory testified in his last version
of this incident), the reasonable inference is that instructions
to write the letter were given before January 5, the first day
of Browder's absence. This inference is warranted by the
fact that Marchman left town on January 5 for 1 week and
there is no record evidence that Marchman communicated
further with his lawyer after the weekend preceding January
5. Therefore, although the discharge letter was dated January
6, it was prepared in anticipation of Browder's failure to appear
for work on January 5.
In view of the above inconsistencies and contradictions in the
evidence and testimony adduced through the witnesses credited
by the Trial Examiner and the general cohesiveness and mutual
corroboration of the testimony rejected by the Trial Examiner,
I would reverse the credibility findings and find on the prepon-
derance of the whole record that the Respondent violated Section
8 (a) (1) and (3) of the Act.
Member Beeson took no partinthe consideration of the above
Decision and Order.
M & S COMPANY, INC. 1199
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge filed on March 5, 1953, by the United Garment Workers of America, AFL,
hereinafter called the Union, the General Counsel of the National Labor Relations Board i
by the Regional Director for the Fifteenth Region, issued his complaint and notice of hearing
dated July 31, 1953, against the M & S Company, Inc., hereinafter called the Respondent.
The complaint alleges in substance that the Respondent engaged in and is engaging 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 charge was served upon the Respondent. Copies of the complaint and notice of
hearing were served upon the Respondent and the Union.
With respect to unfair labor practices, the complaint alleges in substance that (1) in
violation of Section8(a)(1)oftheAct, the Respondent: (a) through President Ernest Marchman,
and Production Manager O. W. Gregory, on various named dates in the year 1952, interrogated
employees concerning their own and other employees ' union membership , activities, and
desires, (b) through President Ernest Marchman, Production Manager O. W. Gregory, and
Forelady Hazel Abraugh on various named dates threatened employees with discharge
and other reprisals if they did not cease or refrain from engaging in union and concerted
activities, (c) through Production Manager O. W. Gregory and Forelady Hazel Abraugh did
on various named dates create an impression of surveillance of its employees ' union member-
ship and activity; (2) in violation of Section 8 (a) (3) of the Act, the Respondent on or about
January 7, 1953, discharged employee Eurlee Browder and thereafter failed and refused to
reinstate her until July 20, 1953, because of membership and activities on behalf of the Union
and other concerted activities; that on or about August 5, 1953, the Respondent granted said
Browder indefinite time off from work because of illness; that on or about October 5. 1953,
when the said Browder had recovered from illness and reported for work at Respondent's
plant that the Respondent failed and refused and continues to fail and refuse to reinstate the
said Browder because of her membership in and activities on behalf of the Union and other
concerted activities.
The Respondent in its answer denies the commission of any of the unfair labor practices
alleged in the complaint , and asserts that as to the said Eurlee Browder that she was not
reinstated by the Respondent in January 1953 because she had been absent from her work
without having secured permission from the Respondent and that she was not reinstated
on October 5, 1953, because her job had been filled.
Pursuant to notice, a hearing was held at Monroe . Louisiana, on October 26 , 27, and 28,
1953 . before Richard N. Ivies, the undersigned Trial Examiner . All parties were represented
at the hearing where they were afforded full opportunity to be heard, to examine and cross-
examine witnesses, to argue the issues orally upon the record, and to file briefs and/or
proposed findings of fact and conclusions of law. The parties waived oral argument at the
conclusion of all the evidence. The Respondent and the General Counsel have both filed briefs
which I have considered.
Issues Presented
The pleadings present the following determinative issues for decision by the Trial Examiner:
1. Whether the Respondent acting through its president, manager of production, and forelady
interrogated employees concerning their own or other employees' union activity, membership,
and desires, threatened employees with discharge or other reprisals if they did not cease or
refrain from engaging in union and concerted activities, or created an impression of sur-
veillance of the employees' union membership and activities, thus violating Section 8 (a)
(1) of the Act.
2. Whether the Respondent did in fact discharge and fail to reinstate employee Eurlee
Browder because of her union or other concerted activites, and thus violated Section 8
(a) (3) of the Act.
IThe General Counsel of the National Labor Relations Board and his representative at
the hearing are hereinafter referred to as the General Counsel, and the National Labor
Relations Board is called the Board.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case and from my observation of the witnesses. I -Hake the
following:
FINDINGS OF FACT 2
L BUSINESS OF THE RESPONDENT
M & S Company , Inc., is now and has been during the period material herein a Louisiana
corporation maintaining its principal office and place of business in Monroe, Louisiana,
where it is engaged in the manufacture of men's pants under contract with the Monroe
Manufacturing Company of Monroe, Louisiana, and other concerns, which furnish Respondent
with necessary raw materials, virtually all of which are received from points outside the
State of Louisiana. Respondent, in theconductof its business during the year ending December
31, 1952, which period is representative of all times material herein, performed services
valued in excess of $280,000 for Monroe Manufacturing Company. During the same period,
approximately 80 percent of the finished garments manufactured by the Respondent and de-
livered to Monroe Manufacturing Company, valued in excess of $280,000, were shipped by
the latter to points outside the State of Louisiana.
I find, as Respondent concedes , that it is engaged in commerce within the meaning of the
Act.
II. THE LABOR ORGANIZATION INWLVED
I also find, as the Respondent concedes, that United Garment Workers of America, AFL,
is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
On August 26, 1952, the Union requested recognition by the Respondent as the bargaining
agent for its employees. On August 28, 1952, such request having been refused, the Union
filed a representation petition with the Board. On September 14, 1952, a hearing was held
on this petition, and the Board ordered an election which was held on December 5, 1952,
and the Union lost the election. As already indicated above, on March 5, 1953, the Union
filed with the Board a charge alleging violations by the Respondent of Section 8 (a) (1)
and (3) of the Act. The complaint in this case, which was subsequently filed on July 31, 1953,
alleged violation by the Respondent of said sections of the Act.
Shirley Boult, who has been employed by the Respondent as a seamer for about 6 years,
recalls a speech that President Marchman made to the assembled plant employees. She
fixes the time as the fall of 1952, sometime after the union organization campaign started in
August 1952. She stated that: Marchman stated in his speech that he would not consent (1) to
an AFL or CIO union coming into the plant if the employees wanted a local union he would
consent to that, but that he would shut the plant doors before he would let the AFL or CIO
come into the plant; (2) he exhibited a number of applications for employment from women who
wanted to work in the plant, stating he did not want to hire the applicants unless forced to
do so; (3) he stated further that he had a farm and some cattle; he always had a job in a plant
down in Georgia to fall back on; and he had his living made. She further testified that she
was off her job on one occasion when her mother was sick, and when she returned from visi-
ting her mother she was off sick with a toothache; she was off again when her sister died in
Texas, and again when her husband was sick in bed with the "flu"; and she had been permitted
to return to her job on each occasion when she had reported back for work. She testified
further that Mr. Marchman's speech was prior to the union election which occurred on
December 5, 1952.
2 These . findings of fact are based upon a consideration of the entire record and from my
observation of the witnesses. To avoid unnecessarily burdening this report , all evidence
on disputed points is not set forth, butall has been considered, and where necessary resolved.
In determining credibility , I have considered , inter alia , demeanor and conduct of witnesses;
their means and opportunity for knowledge of the things about which they testified ;,their
apparent candor or lack thereof; fairness , bias , or prejudice ; their interest or lack thereof;
and whether they have been contradicted or otherwise impeached.
M & S COMPANY, INC. 1201
Irene Cockerham, who has been employed by the Respondent for about 4 years, testified
that during the months of August, September, October, and December, 1952, Production
Manager Gregory talked to her on several occasions regarding the Union . On one occasion
he came over to her where she was working in the plant and said "Irene , I don 't think you have
got good sense ... I have every girls name that belongs to that Union." She fixes the time of
this conversation as a month or longer beforethe representation election (December 5, 1952).
She testified that subsequently she asked Gregory to sharpen her scissors, and that he
answered. "No, Irene, I won't sharpen your scissors until you get out of the Union." She
also testified that about 2 weeks before the election Gregory told her that "Snooks" ( Eurlee
Browder ) was the ringleader of the union people in the plant, and that he knew who had gotten
her (Cockerham) into the Union and he was going to fire them. On another occasion Gregory
said to her, "Irene, you've been outherea long time with us ... this is the only way you have
to make a living ... Well, if this Union goes through, the plant is going to shut down ... you
won't have any job ... what do you intend to do then." Cockerham says she answered, "Well,
I will just do the best I can. " She further testified that about 3 days before the election Gregory
engaged her in conversation again , and told her that if she and her friend Eva Hansford did
not get out of the Union, that they "wouldn't have no job."
Ruth Oglesbee, another employee of the Company, testified that about 3 days before the
election in December 1952 Gregory cameuptoher machine where she was working, and asked
her if she "was for the Union." When she answered "yes," Gregory told her "that it might
mean your job."
Dona Frith testified that when she was employed at the plant by Gregory about the middle
of September 1952, he told her that "they were having trouble on account of the Union,"
and that later after she went to work Gregory passed her machine 1 day and asked "had
anybody spoke to me about the Union." Frith also testified that she was off the job during her
mother-in-law's illness from about March 16 to March 24, 1953, and that when she reported
back to the plant she presented a doctor's certificate showing the reason for her absence and
was put back to work. She testified that she had been absent from the job on other occasions
by reason of personal illness, and would call the company office to notify them the reason for
her absence and when she thought she would be back to work.
Eva Hanford, another employee has been working for the Company since January 1952,
testified that a few days before the representation election Superintendent Gregory told her
that she and her friend Irene Rudd (Manager Cockerham) had better get out of the Union or
they would lose their jobs. She told Gregory that she did not care, that she would get another
job. She further testified that soon after the union campaign started in the plant that Gregory
asked her when they held their union meetings; that later he told her that he would like to know
who started the Union; and also later said to her that he would like to get rid of the union
leaders. She also testified that Forelady Hazel Abraugh, shortly after the first union meeting
(August 1952), asked her whether she had signed a union card.
Doris Taylor, who has been employed by the Respondent since sometime in 1952, testified
that prior to the election, she thought in October 1952, Gregory asked her if she had signed a
union card; that he talked to her every day or so about the Union; that on one occasion
he asked her "what did I think I was going to get out of it;" on another occasion he asked
her who had attended the meetings; once he told her that if the Union came into the plant the
plant would be closed; and in another conversation Gregory told her that he had the names of
all the union people in a little black book "and that he was going to ease them out one at a
time." The witness testified that she knew "Snooks" Browder; that in one conversation with
Gregory when he was working on her machine which had broken down, she asked him why
he didn't give "Snooks" her job back. Gregory asked her if she thought he was crazy, and the
witness said "I don't know, but I thought Snooks was a good operator." Gregory said, "Yes,
but she is one of the Union leaders." This conversation, according to Taylor, took place after
Christmas 1952, around the middle of January, she thought.
Francis A. Posey, a former employee who worked for the Respondent during 1952, testified
that Gregory came up to where she was working, she fixes the time as during the month of
October 1952, and asked her whether she had "gotten mixed up in the Union." She answered,
"If you call signing a card getting mixed up, I have got mixed up." Gregory said, "I hope
you don't waste any of your money on it." She testified that she voluntarily terminated her
employment with the Company.
Exxa Mary Newman is employed by the Respondent as a trimmer, and has worked for the
Company more than 5 years. She testified that she had been off the job several times on
339676 0 - 55 - 77
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
account of illness. She got something in her eye while on the job, and was off from work
7 weeks, she then went back to work without any question being raised by the Company.She
had kept in touch with the company office during the time she was off the job. About 2 or
3 weeks prior to the hearing she had suffered a foot injury and was off from work for 1
week. She didn 't know how long she would be off and therefore couldn't tell the Company
that. On another occasion she was off fromwork with pneumonia , and again when her daughter
was operated on for appendicitis . On each occasion when she reported back to the plant she was
given her old job back.
Eurlee Browder testified that she is known by the nickname "Snooks " and that she went
to work for the Respondent on October 3, 1951, operating a trimming machine ; she joined the
United Garment Workers of America, AFL , on August 14, 1952, attended all meetings which
were held at the Labor Hall in Monroe, and still paid dues to the Union. She further testified
that she attended the NLRB representation hearing held in Monroe on September 24, 1952,
and was the only employee of the Company present. She sat directly behind Mr. Oscar Cloyd,
the AFL representative , and that Mr . Marchman was also present at the hearing. She further
testified that she was present on the day when Mrs . Dinsmore , a representative of the
Union, was introduced to Mr. Marchman in Marchman 's office, and was present during the
subsequent conversation but does not remember whatwas said . She also testified that Produc-
tion Manager Gregory talked to her about the Union the day before the first union meeting
and asked if she was going to attend . She answered "Yes, Mr. Gregory, I sure am. I am
strictly in favor of organized labor, of Unions ... it has helped my family in so many different
ways , financial ways , until I am really for a union one hundred percent." She testified further
that during the Christmas 1952 holiday her sister was in an automobile accident and was in
a hospital in Alexandria , Louisiana, in a very serious condition . She went to the plant on
Friday, January 2, 1953, to see Mr. Gregory . She told him that her sister had been in an
automobile accident Christmas night, was in a very serious condition , and that Dr . Hardy, the
attending physician, had asked that the family "stay close at all times because he couldn't
promise anything." She told Gregory that Dr. Hardy planned to start surgery on her sister's
face on the following Tuesday, that in case this was not done she would be back to work on
the following Monday, but if the operation was performed then that she would return at "the
earliest possible dace ." Gregory said "O.K., Snooks ; get back just as quick as you possibly
can." She answered, "O.K., I sure will." She was wearing her United Garment Workers pin
on her coat lapel during this conversation . Gregory made no comment about the pin, but picked
up the coat lapel and looked at the pin . During the following week she learned from a telephone
conversation with her husband, who remained in Monroe while she was in Alexandria, that a
letter on the company letterhead , signed by Gregory, and dated January 6, 1953, had been
delivered to her home in Monroe , Louisiana , stating that she had been replaced on her job
with the Company. She returned to Monroe on the following Sunday,'saw this letter, and on
Monday, she and her husband went out to the plant to see Mr. Gregory and Mr. Marchman
about it. She saw Gregory first and he told her that Marchman was the one who had had the
letter written . She then talked to Marchman , and Marchnian told her that her work had been
satisfactory, but that "We are going to conduct this plant differently in '53 much different
than we did in '52. We have new rules ... there is definitely going to be nobody absent from
work unless it is personal sickness in 1953 . . . I am sorry , Snooks , but all I can promise
you is your job back at the earliest date we can re -place you." Mrs Browder wrote to Mr.
Gregory on April 2, 1953, asking for her old job and that the letter be treated as a future
application for employment. On July 7, 1953, Mr. Gregory, for the Company, wrote Mrs.
Browder, asking that she report for work as a "returning employee" on July 20, 1953.
She testified that she did report for work on that date and was put to work on her old job
as a "trimmer," but that on August 4, 1953, she got sick, and after advising Mr. Gregory,
went to see a doctor . She returned to work on the following day, and worked until the morning
rest period, but felt so badly that she was unable to work longer. She reported to Mr. Gregory
that she was too sick to work and would have to go home. He told her to "See Mrs. Dumas
in the office." She did this and went on home. It was stipulated that the Respondent received
a letter dated August 5, 1953, from Dr. G. A. Varino, advising thitt Mrs. Browder was under
his care and that he had advised her to abstain from work "for the next month." It was also
stipulated that the Respondent received a letter from Dr. H. S. Cohn, dated September 1,
1953, stating that Mrs. Browder was under treatment for secondary anemia and that he had
recommended that she "not return to work for another three or four weeks so that she can
regain her health." Mrs. Browder testified that she was released by Dr. Cohn on October 1,
M & S COMPANY, INC. 1203
1953, and telephoned Mrs. Dumas in the company office and stated that she would be back
to work on Monday, October 5,1953. Mrs. Dumas told her that she would inform Mr. Gregory,
and that if it was necessary Gregory could communicate with her by telephone ; that she
reported for work on October 5, saw Mrs. Dumas, and that Mrs. Dumas asked her if she had
seen Mr. Gregory. When Browder answered that she had not Dumas told her to come into
the company office and wait. Dumas came back in a few minutes and told Browder that "Mr.
Gregory says he has the machines full and doesn't have any place for you right now, Snooks,
and he will re-place you as soon as possible." Browder then saw Gregory and he told her that
the machines were full and that "I can't hold the job open for anyone for two months." He
also said, "I will call you Snooks, whenever I can re-place you." It was stipulated that the
Respondent received a letter addressed to Mr. Marchman, dated October 8, 1953, from
Mrs. Browder, applying for her regular job as a "trimmer," and asking that the letter be
treated as a continuing application. On further examination Browder testified that she and
several other employees had been active in the union campaign and that she had solicited
other employees to sign union cards.
Pauline Glass, another employee, testified that she had worked for the Company about 2
years; on April 23, 1953, she became ill on the job, and after informing Manager Gregory,
went to see a doctor; she was operated on and did not return to work until July 25, 1953;
she informed Gregory on Monday afternoon that she would be back to work on the following
Wednesday (July 23); reported for work on that date , punched in, gave Gregory a statement
from her attending physician and went to work. She testified further that about a week later
she became sick again , informed Mr. Gregory, and went back to the doctor. She was off
for about a week on account of that illness. On neither occasion when she left the job was she
able to tell Gregory how long she expected to be absent from work because she didn't know.
When she returned from the second illness she punched her card, gave Gregory a statement
from her physician, and went back to work. While she was at home recuperating from her
operation Mrs. ,Dumas, in the company office, telephoned her every week and she would
inform Mrs. Dumas what her physician had told her about her condition.
Beth Humphries worked for the Respondent in 1952.,She testified that she no longer worked
for theCompany, having voluntarily resigned and she remembers President Marchman's speech
to the employees in the plant cutting room. She fixed the time of the speech at approximately
August 1952, and stated that he told the employees he held the keys to the factory doors and
would lock up the plant anytime; if the employees wanted a company union they could hold
an election and elect their officers then; he had a farm, and "implied that he was keeping the
factory mostly for the workers, feeding them, that he didn't really need it."
Lessie Ann Wiggins testified that she went to work for the Respondent in February 1953;
she knows Forelady Hazel Abraugh; she rode back and forth to work with Mrs. Abraugh in
Mrs. Abraugh's automobile; Abraugh talked to her on various trips in the car about the Union;
stated that she did not want anyone working under her or riding in her car that belonged to
the Union; and Abraugh also said that Mr. Marchman said that if the Union came into the
plant he was goingtoclose itas he was still doing the hiring and firing. The witness was unable
to fix the exact date when Abraugh made these statements, but thought they were made early
in the summer of 1952.
Ernest L. Marchman, president and general manager of the Respondent, testified that the
Company operated on a straight line production method, with the result that each job was
dependent on the other jobs in the production line; anytime an employee was absent from work
it would hold up the entire production lineunless the absentee's job could be filled temporarily
by 1 of the 2 or 3 utility girls whom the Company employed; the plant was shut down for the
1953 Christmas holiday until Monday. January 5, 1953; after a holiday, 10 to 15 percent of
the employees fail to report for work when the plant opened. He also testified that when
employees were absent from work without permission they were either replaced, or disci-
plined -by being sent home for 1 week; this kept up employee morale; when employees were
absent on account of sickness "we bend over backwards" to keep the job open if it does not
interfere with production. If too many people were out so that there were not enough utility
operators to fill the places of the regular employees who were away sick, it was necessary
to employ other people to fill the vacancies on the production line. If that occurs, when the
regular employee returns after the illness, the new replacement is not discharged to make
room for the old employee. If there is another machine open at a machine which the returning
employee can operate, the old employee is put back to work. Otherwise, the old employee
is told that he will be recalled as soon as a suitable opening is available. The Company has
12 04 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a considerable investment in training each employee and is anxious to keep the trained
people if it is possible to do so without interfering with production. It would not be possible
to get new employees to come in and take the training program if the Company were to replace
a trainee who had been placed on a certain machine with an old employee who had been absent
sick and returned to work. However, if there is a position open for which the returning em-
ployee is qualified she is put back to work.
Marchman further testified that he did make a speech to his employees in 1952, sometime
between April and July. He denied that he expressed any objection to having an AFL or CIO
union in the plant, threatened to close the plant, or made any other threats to the employees
in the speech. He testified that he remembered Mrs. Browder bringing Mrs. Dinsmore and
Mr. Cloyd in his office to see him in August, 1952. The office is about 7 by 9 feet, and contains
his desk and chair and2otherchairs.Mrs. Browder sat on the arm of the chair Mrs. Dinsmore
was occupying. They were all within 3 or 4 feet of each other. Mrs. Browder introduced
Mr. Cloyd, and Browder or Cloyd introduced Mrs. Dinsmore to me. Marchman asked them what
he could do for them and they told him that they were with the United Garment Workers, AFL;
that a majority of the employees in the plant wanted this Union to represent them; that they
would like to go ahead and have an election and sign a contract with them as representing the
plant employes. Marchman told Browder, Cloyd, and Dinsmore that he "didn't think that they
had a majority, that it was my plant and I didn't think they needed representation from them
and they would have to go the usual route, through the regular channels of the National Labor
Relations Board."
On Saturday morning, December 3. 1952, Gregory came to Marchman and told him of his
conversation with Mrs. Browder, and thathehad told Mrs. Browder that he was sorry that her
sister had been hurt, but that the plant would open up on the following Monday morning and that
he needed her and couldn't spare her. Marchman told Gregory to follow the usual company
policy, viz, if Browder failed to show up on Monday morning to go ahead and replace her.
Marchman was disturbed about Mrs. Browder and called his lawyer and asked his advice.
Browder didn't show up for work on Monday morning and Mrs. Dumas in the company office
tried unsuccessfully to locate her. He went out of town and the next time he had any contact
with Browder was the following Monday afternoon. Gregory had told him that she had been
replaced. On January 12. 1953, Browder and her husband came in to see Marchman and he told
that she had been replaced because she had left without permission when she had been warned
not to leave, he had nothing against her, and she would be given a job when the first opening
occurred. Later there was an opening- for a trimmer and the letter of July 17, 1953, was
written to Browder. Some 2 weeks after she reported for work on July 20, 1953, she became
sick and was off the job for some time. Marchman was unable to ascertain through inquiry
of Browder's physicians as to how long she would be off the job. When Browder reported
for work on October 5, 1953, after being absent from her job approximately 2 months, it had
been necessary to replace her in order to keep up the plant's production output, and there was
no machine available to put her on. It was for this reason only that she was not then re-
employed.
Dottie Dumas, who is in charge of the payroll and other records of the Respondent, brought
the company records covering the termination of the employment of some 21 employees
during the years 1951, 1952, and 1953, because such employees had, according to the records,
either left the job without permission, been guilty of continued absenteeism, or been absent
from the job for an extended period of time on account of illness. Respondent proposed to
introduce, through Mrs. Dumas in her capacity of custodian, evidence as to the name,
date of employment, date of termination, and reason noted therefor. I sustained General
Counsel's objection to the introduction of this evidence, but permitted the Respondent to make
a tender of this proof. Upon further consideration, I am convinced that I was in error in so
ruling. Respondent's defense to the allegation that Browder had been refused reemployment
because of her union or concerted activity was that Browder had been treated in exactly the
same manner as the Respondent had treated other company employees under similar circum-
stances, and Respondent proposed to introduce this evidence to show that in keeping with an
established company policy or rule, other named employees had actually been terminated,
and replaced; under similar circumstances. The General Counsel did not question the accuracy
or authenticity of these records, but based his objection on the ground of irrelevancy. In
my judgment the Respondent was entitled to the benefit of this evidence, and I, accordingly,
hereby reverse my ruling at the hearing, and will consider the tender of proof as if the matters
thereby shown were introduced in evidence without objection.
M & S COMPANY, INC. 1205
Hazel Abraugh, a forelady employed by the Respondent, testified denying that she had
interrogated Alice Lucile Pinckard about the Union or signing a union card; also denying that
she had discussed the Union with Lessie Ann Wiggins, or told her that Marchman would close
the plant if the Union came . She also denied that she had ever discussed the Union with any
of the plant employees except Manager Gregory.
Orville Wells Gregory, production manager of the Respondent, testified that on Friday,
January 2, 1953, he was at the plant getting things cleaned up in preparation for resuming
production on Monday, January 5. Sometime in the afternoon Mrs Browder came in and told
him that her sister had been in an automobile accident and was in a hospital in Alexandria,
Louisiana, that there was no one to stay with her sister and Browder felt it was her place to
be there. Gregory further testified that he told Browder that "we are starting the plant upon
Monday morning and that I would need her very bad and couldn't get along without her . . I
told her that if she did go for the week-end to let me hear from her the first part of the
week, which was Monday or Tuesday." Browder said that she would do so. He told Marchman
on the following day (Saturday) as to the conversation with Browder, and Marchman told him
to follow the usual procedure. Browder did not show up on Monday or Tuesday, and nothing
was heard from her. Mrs. Dumas in the company office tried unsuccessfully to locate her on
both mornings. Quite a number of other employees failed to show up when the plant opened
on Monday. When nothing was heard from Browder on Tuesday, Gregory wrote her stating
that she had been replaced, and that when an opening became available she would be given
the first opportunity for the job. When the plant opened on Monday, January 5, Gregory placed
a new employee, whom Marchman had interviewed, on Browder's machine. Her work was
not entirely satisfactory and another employee, Rosemary Chapman, who had been working
at another job in the plant, was placed on the Browder machine after about 2 days. Gregory's
version ofBrowderandherhusbandvisitingtheplant to see him and Marchman on the following
Monday agreed in substance with Browder's version. A vacancy for a trimmer opened up in
July 1953 and Browder was offered the job and reported on July 20th. About 2 or 3 weeks
later she got sick, notified Gregory, and went to see a doctor. A letter was received at the
plant from Dr. Marino, dated August 5, 1953, stating that he had recommended that Browder
refrain from work for 4 weeks. Subsequently, a letter was received by the Company from Dr.
Conn, dated September 1, 1953, advising that Browder would not be able to return to work for
another 3 or 4 weeks. When Browder first left the plant in August, Gregory assigned a utility
operator to her job. Eventually a regular replacement was placed on Browder's job. When
Browder returned to the plant on October 5, 1953, her place had been filled and there were
no other jobs open for which she was qualified. Gregory further testified that he had no
definite information as to when Browder would be back to work and that on account of the
plant's production requirements he was unable to hold her job open indefinitely for her
possible return. Gregory also testified that the reason Exxa Mary Newman's job was held
open for her until she returned to work was because the plant followed a policy of always
trying to keep jobs open for employees who had been injured in the plant as Mrs. Newman
had. However, that Browder had not been injured in the plant, and was not entitled to this
additional consideration. Gregory denied that he had told Irene Cockerham that he had the
names of every girl belonging to the Union, or that he had refused to sharpen her scissors
"until she got out of the union"; or that he told her he was going to fire anyone who got into
the Union, or that if the plant went Union it would be shut down; or that he told her that she and
Eva Hansford would lose their jobs if they did not get out of the Union He testified that he did
not talk to any of the employees about the Union except the ones which came to him and asked
him about it. He denied telling Ruth Oglesbee that if she was in the Union it might mean her
job, denied that he tried to obtain information from Mrs Frith about the Union, denied that he
told Eva Hansford to get out of the Union or she would lose her job, denied that he had ever
interrogated Alice Lucile Pinckard, Doris Taylor, or Francis A. Posey regarding the Union;
or that he told Taylor that "he didn't give Browder her job because she was a union leader."
Discussion
The complaint alleges that the Respondent violated Section 8 (a) (1) of the Act, through
President Marchman, Production Manager Gregory, and Forelady Abraugh interrogating em-
ployees as to their interest in and activities on behalf of the Union, and also through threatening
employees that they would lose their jobs if they joined the Union, and that the plant would be
closed if the Union was successful in its organization campaign. If the testimony of the General
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel 's witnesses is accepted and credited , the General counsel had made out a case in
support of the alleged violations of Section 8 (a) (1). On the other hand , President Marchman,
Production Manager Gregory, and Forelady Abraugh specifically denied each and every one
of the unfair practices attributed to them by the General Counsel 's witnesses . Therefore, this
question resolves itself into simple issues ofcredibilityand burden of proof. The sole question
presented to the Trial Examiner in this connection is whether to accept and credit the testimony
of the General Counsel 's witnesses , or reject this testimony , and instead accept and credit the
testimony of the Respondent 's witnesses . I was most favorably impressed with the appearance,
demeanor, and testimony of President Marchman, Production Manager Gregory and Forelady
Abraugh, as being honest, trustworthy, and frank. I, accordingly, accept and credit their
testimony, and I reject the testimony of the General counsel's witnesses Shirley Boult, Irene
Cockerham, Ruth Oglesbee, Dona Frith, Eva Hanford, Alice Lucile Pinckard, Doris Taylor,
Francis A. Posey, Erulee Browder, Pauline Glass, Beth Humphries, and Lessie Ann Wiggins,
whose appearance, demeanor, and testimony did not impress me so favorably. Having so
resolved the issue of credibility, I find that the General counsel has not maintained the burden
or proof by credible evidencesoas toestablish that the Respondent was guilty of the violations
of Section 8 (a) (1) of the Act, alleged in the complaint.
The remaining issue involved the allegation of the complaint that the Respondent violated
Section 8 (a) (3) of the Act, (1) through failing to reinstate employee Eurlee Browder when she
returned to work on January 12, 1953, and (2) by refusing to reinstate Browder on October 5,
1953, when she returned to work after a prolonged absence due to illness. The complaint
alleged that both these refusals by the employer to reinstate Browder were on account of her
membership in and activities on behalf of the Union, and other concerted activities.
The record shows that the Respondent had an established rule, or practice, which had been
followed in the case of many other employees, to replace employees who were absent without
leave, or if necessary on account of the production schedule to replace employees who were
absent from work over an extended period . as the result of sickness. On Friday , January 2,
1953, Browder came to the plant and told Gregory that her sister had been injured in an
automobile accident, was hospitalized in Alexandria, Louisiana, and that she planned to go to
Alexandria to be with her sister. Gregory told Browder that he would require her services
at the plant when it opened (following the Christmas holidays) on Monday, January 5, 1953.
He instructed her that if she decided to go to Alexandria over the weekend, to let him hear
from her the first of the week, which Browder promised to do. She did go to Alexandria and
did not report back to work or communicate with her employer until Monday, January 12.
In the meantime, Mrs. Dumas in the plant office tried unsuccessfully on Monday and again on
Tuesday morning (January 5 and 6) to get in touch with Browder so as to'ascertam when
Browder would be back to work. After the unsuccessful efforts to contact Browder, Gregory
placed another employee on Browder 's machine. This resulted in there being no vacancy
in Respondent's plant for which Browder was qualified when she returned to work on Monday,
January 12. However, Browder was offered her old job on July 7, when a vacancy was
available, and she returned to work for theRespondent on July 20. Two weeks later she became
ill and did not report back for work until October 5, 1953. Her job as a trimmer had been
filled during her absence and Gregory told her that he did not have a job open for her then.
An employer who declines to reinstate an employee who had been absent as the result of
illness may possibly be thought to be inconsiderate of the employee. Nevertheless, there is
no rule of law which requires an employer who had replaced an absent employee, for any
reason not prohibited by the Act, to discharge the replacement so as to make room for the
ole employee who has reported again for work. Such a practice would disrupt and disturb
the orderly personnel practices, and production of any industrial plant. An employer is entitled
to adopt such reasonable rules and regulations as it considers necessary for the operation of
its business. Certainly the application of the Respondent's rule or policy in replacing Browder
during her absence without leave in January 1953, and again during her prolonged absence
commencing on August 5,1953, seems entirely in keeping with Respondent's reasonable control
over the operation of its business. The duty devolves upon the General Counsel to make out a
case by a preponderance of the credible evidence. In my judgment the record is wholly lacking
of any evidence to support the allegationthatthe Respondent 's reason for refusing to reinstate
Browder on January 12, and again on October 5, was because of her membership in and
activities on behalf of the Union, or because of her "concerted activities." I, therefore, find
and conclude that the Respondent did not violate Section 8 (a) (3) of the Act, as alleged in the
complaint.
GENERAL MOTORS CORPORATION
CONCLUSIONS OF LAW
1207
1. Respondent, M & S Company, Inc., is engaged in commerce within the meaning of Section
2 (6) and (7) of the Act.
2. United Garment Workers of America , AFL, is a labor organization within the meaning
of Section 2 (6) and (7) of the Act.
3. Respondent , M & S Company, Inc ., has not engaged in any unfair labor practices within
the meaning of the Act.
Recommendations omitted from publication. I
GENERAL MOTORS CORPORATION, BUICK MOTOR DIVISION
PARTS WAREHOUSE and INTERNATIONAL UNION, UNITED
AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, CIO, Petitioner . Case No. 8-RC-
2155. June 2, 1954
DECISION , ORDER, AND DIRECTION OF ELECTION
On January 28, 1954 , pursuant to a stipulation for certifica-
tion upon consent election , an election by secret ballot was
conducted under the direction and supervision of the Regional
Director for the Eighth Region, among the employees in the
stipulated unit . Thereafter , a tally of ballots was furnished the
parties, showing that of approximately 30 eligible voters, 29
cast valid ballots, of which 12 were for the Petitioner , 14 were
against representation , and 3 were challenged . On February
1, 1954 , the Petitioner filed objections to conduct affecting the
results of the election.
In accordance with the Board ' s Rules and Regulations, the
Regional Director conducted an investigation of the matter
raised by the Petitioner ' s objections and, on April 6, 1954,
issued and duly serveduponthe parties his report on objections,
in which he found that the Petitioner ' s objections raised sub-
stantial and material issues with respect to the election and
recommended that the election be set aside and a new election
ordered . Within the proper time thereafter , the Employer
filed exceptions to the Regional Director ' s report.
The Board has considered the Regional Director ' s report,
the exceptions , and the entire record in the case, and hereby
adopts the findings , conclusions , and recommendations of the
Regional Director , with the following additions and modifi-
cations.
1. The Employer is engaged in commerce within the mean-
ing of the Act.
2. The labor organization involved claims to represent
certain employees of the Employer.
3. A question affecting commerce exists concerning the rep-
resentation of certain employees of the Employer , within the
meaning of Section 9 ( c) (1) and Section 2 (6) and ( 7) of the Act.
108 NLRB No. 165.