McComb Manufacturing Co.

National Labor Relations Board - Board Decisions

Jul 26, 1951

95 N.L.R.B. 596 (N.L.R.B. 1951)

596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
It has been found that the Respondent has engaged in the unfair labor prac-
tice of refusing to bargain collectively with the chosen representative of its
employees. It will therefore be recommended that it cease and desist there-
from and from like and related conduct and it will further be recommended
that the Respondent bargain collectively, upon request, with the Union as the
exclusive representative of its employees in the aforesaid appropriate unit.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, I make the following :
CONCLUSIONS OF LAW
1. Blue Mountain District Council of Lumber and Sawmill Workers, affiliated
with the United Brotherhood of Carpenters and Joiners of America, A. F. of L.,
is a labor organization within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees, excluding office, clerical, and
supervisory employees as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9 (b) of
the Act.
3. Blue Mountain District Council of Lumber and Sawmill Workers, affiliated
with the United Brotherhood of Carpenters and Joiners of America, A. F. of L.,
was, on May 15, 1950, and at all times since has been the exclusive representative
of all the employees in the aforesaid unit for the purposes of collective bargain-
ing within the meaning of Section 9 (a) of the Act.
4. By refusing on and after June 20, 1950, to bargain collectively with the
aforesaid Union as the exclusive representative of the employees in the appro-
priate unit , Respondent has engaged in and is engaging in an unfair labor prac-
tice within the meaning of Section 8 (a) (5) of the Act.
5. By the aforesaid unfair labor practice, the Respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act, thereby engaging in an unfair labor practice within the
meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practice is an unfair labor practice affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
MCCOMB MANUFACTURING COMPANY AND MRS. O . H. STRINGER and
INTERNATIONAL LADIES' GARMENT WORKERS' UNION7 A. F. L. Case
No. 15-CA-235. July 26, 1951
Decision and Order
On March 20, 1951, Trial Examiner W. Gerard Ryan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in unfair labor
practices and recommending that it cease and desist therefrom and
95 NLRB No. 82.
McCOMB MANUFACTURING COMPANY 597
take certain affirmative action, as set forth in the copy of the Inter-
.mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in other alleged unfair labor
practices and recommended that the complaint be dismissed in this
respect. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief. No exceptions were filed by
the General Counsel or the Union.
The Board 1 has reviewed the rulings of the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
We find no merit in the Respondent's exception that the Trial
Examiner erred in failing to sustain its motion to dismiss the com-
plaint on the ground that the charge upon which the complaint is
based was not signed by anyone authorized at the time to file it. The
original charges and the amended charges upon which the complaint
was predicated were filed on behalf of the Union by Margaret LaValla
and Mrs. Lillian Benson, respectively, who signed the charges as in-
ternational representatives of the Union; LaValla also represented
the Union at the' hearing. The Act provides that the Board may
issue a complaint "whenever it is charged that any person has en-
gaged in" unfair labor practices (Section 10 (b) ). The Board's Rules
and Regulations provide that such a charge "may be made by any
person," including a labor organization. No showing of authority
to make the charge is necessary. Wilson do Company, Inc., 31 NLRB
440; enforced 126 F. 2d 114 (C. A. 7) ; cert. den. 316 U. S. 699.
Nor do we find merit in the Respondent's contention that the Trial
Examiner should have sustained its motion to dismiss the complaint
on the ground that the record contains no proof of compliance by the
Union or its parent organization with the filing, requirements of
Section 9 (f), (g), and (h) of the Act at the time the complaint was
issued. The Act does not, as a condition to the exercise of its juris-
diction, require pleading and proof by the Board that the Union has
complied with these .requirements. N. L. R. B. v. Greensboro Coca
Cola Bottling Co., 180 F. 2d 840 (C. A. 4), March 6, 1950, 25 LRRM
2499; N. L. R. B. v. Red Rock Co., 187 F. 2d 76 (C. A. 5), February 15,
1951, 27 LRRM 2355; N. L. R. B. v. Vulcan Forging Co., 188 F. 2d
927 (C. A. 6), March 23, 1951, 27 LRRM 2534. Moreover, the Board
is administratively satisfied that both the charging union and the
'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
(Chairman Herzog and Members Murdock and Styles].
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I
A. F. of L., its parent organization , have been in compliance at all
times material hereto . See Sunbeam Corporation, 94 NLRB No. 134;
Swift dd Company, 94 NLRB No . 137; cf. Highland Park Manufac-
turing Company , 340 U. S. 927.
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, McComb Manu-
facturing Company of McComb, Mississippi, and its officers, agents,
successors, and assigns, shall :
1. Cease and desist from interrogating its employees with respect
to their membership in the Union or activities in its behalf; threaten-
ing its employees with loss of employment or, that the plant will close
if the Union organizes its employees, or in any like or similar manner
interfering with, restraining, or coercing its employees in the exercise
of the rights to self-organization, to form labor organizations, to join
or assist International Ladies' Garment Workers' Union, A. F. L., or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities except to the extent that
such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment as authorized
in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Post at its plant in McComb; Mississippi, copies of the notice
attached hereto and marked "Appendix A." 2 Copies of said notice,
to be furnished by the Regional Director for the Fifteenth Region,
shall, after being duly signed by the Respondent, be posted by it im-
mediately upon receipt thereof, and maintained by it for sixty (60)
consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Fifteenth Region in. writ-
ing within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it
alleges: (a) That the Respondent discriminatorily discharged and
In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words "A Decision and Order" the words "A Decree of
the United States Court of Appeals Enforcing."
McCOMB MANUFACTURING COMPANY 599
failed to reinstate Opal Hayes, Laura Wingate, Katherine R. John-
son, Viola M. Boyd, Katherine C. Johnson, Nelma Harvey, Willard
Johnson, and Jensie Heck in violation of Section 8 (a) (3) of the
Act; (b) that the Respondent told its employees that it had a list of
all employees who had joined the Union; and (c) that the co-Respond-
ent, Mrs. O. H. Stringer, had engaged in and was engaging in unfair
labor practices affecting commerce.
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 :
WE WILL NOT interrogate our employees in any manner as to
their union activities, nor threaten them with loss of employment
or that we shall close the plant, or in any like or similar manner
interfere with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form labor organizations,
to join or assist INTERNATIONAL LADIES' GARMENT WORKERS'
UNION, A. F. L., or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to refrain from
any or all such activities except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Sec-
tion 8 (a) (3) of the Act.
All our employees are free to become, remain, or refrain from be-
coming members, of the above-named union or any other labor organi-
zation except to the extent that this right may be affected by an agree-
ment in conformity with Section 8 (a) (3) of the Act.
MCCOMB MANUFACTURING COMPANY,
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.
Intermediate Report and Recommended Order
Upon a second amended charge filed on April 18, 1950, by International Ladies'
Garment Workers' Union , A. F. L., herein called the Union, the General Counsel
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the National Labor Relations Board' by the Regional Director for the
Fifteenth Region (New Orleans, Louisiana), on August 4, 1950, issued a com-
plaint against McComb Manufacturing Company, herein called the Respondent,
and Mrs. O. H. Stringer, herein called the co-Respondent, alleging that the Re-
spondent and the co-Respondent had engaged in and were 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 Labor Management Relations Act, 1947,
herein called the Act. Copies of the complaint, the charge, the first amended
charge and the second amended charge, upon which the complaint was based,
together with notice of hearing thereon, were duly served upon the Respondent
and the Union. Copies of the complaint, the second amended charge, and notice
of hearing were duly served upon the co-Respondent.
With respect to the unfair labor practices, the complaint, as amended at
the hearing , alleged in substance that: (1) The Respondent discriminatorily
discharged and refused reinstatement to eight named employees because of their
membership in and activities on behalf of the Union and in order to discourage
union membership and activities of its other employees; and (2) the Respondent
and the co-Respondent from May 10, 1949, to the date of,the complaint had (a)
required supervisory personnel to determine and report to the Respondent persons
active in the Union ; (b) interrogated employees as to their membership in the
Union; (c) interrogated employees about visits of union representatives to their
homes; (d) threatened employees with loss of jobs or other benefits because of
their union membership and activities; (e) threatened the employees that the
plant would close unless said.employees forgot about the Union ; (f) told em-
ployees that the Respondent had a list of names of all employees who had
joined the Union ; (g) offered to-employees steady employment if they would
abandon the Union; (h) told discharged employees that said employees would
be rehired if they would abandon the Union ; (i) made promises of benefit to
employees to cause said employees to cease their union membership and activity ;
and (j) by other acts and conduct interfered with, restrained, and coerced its
employees in the exercise of their rights guaranteed in Section 7 of the Act.
In its answer filed on August 29, 1950, and amended at the hearing, the Re-
npondent admitted certain allegations of the complaint but denied the commission
of any unfair labor practices. The co-Respondent filed a letter on August 11,
1950, in which the allegations of the complaint were denied and which has been
accepted without objection as an answer and motion to dismiss the complaint by
the co-Respondent.
Thereafter on August 29, 1950, the Respondent moved to dismiss the complaint,
to strike certain allegations from the complaint, and for a bill of particulars.
Trial Examiner Sydney S. Asher, Jr., denied the motions to dismiss the complaint
and to strike certain allegations ; and granted in part, and denied. in part, the
Respondent's motion for a bill of particulars.
Pursuant to notice a hearing was held in McComb, Mississippi, from November
21, 1950, to December 1, 1950, inclusive, before W. Gerard Ryan, the undersigned
Trial Examiner , duly designated by the Chief Trial. Examiner. The General
Counsel, the Respondent, the co-Respondent, and the Union participated in the
hearing and were afforded full opportunity to be heard, to examine and cross-
examine witnesses , and to introduce evidence bearing upon the issues. At the
close of the General Counsel's case-in-chief, the Respondent moved to dismiss
the complaint. Decision was reserved on the motion to dismiss the entire
1 The General Counsel and his representative are herein referred . to as the General
Counsel ; and the National Labor Relations Board as the Board. .
McCOMB MANUFACTURING COMPANY 601
complaint but the allegations contained in paragraph VII, subparagraphs (a),
(g), (h), and (i), and the amended portion of the complaint with respect
to paragraph VII insofar as it referred to Louis Alford and acts alleged to have
been committed by him were also dismissed without objection. The allegations
in the complaint alleging that the co-Respondent was an agent, officer, or repre-
sentative of the Respondent were also dismissed on the ground that there was no
evidence in support thereof. At the conclusion of the testimony, the parties were
afforded opportunity to argue orally and to file briefs, proposed findings of fact,
and conclusions of law. The Respondent moved for dismissal of the complaint
for failure of proof. Decision was thereupon reserved and is now disposed of
as hereinafter indicated. Motion by the co-Respondent to dismiss the complaint
against her was granted. Briefs have been filed by the General Counsel and
the Respondent .2
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
The Respondent is a Mississippi corporation having its principal office and
place of business at McComb, Mississippi, where at all times since August 1949,
it has been engaged in the manufacture of nylon, rayon cloth, and lingerie.
Between August 1949 and May 1950, the Respondent purchased raw materials
valued in excess of $200,000, 90 percent of which came from States other than
the State of Mississippi. During the same period, the Respondent manufactured
and sold products whose value was in excess of $100,000, all of which was sold
in States other than the State of Mississippi.
I find that the Respondent is engaged in commerce within the meaning of
the Act.
II- THE ORGANIZATION INVOLVED
International Ladies' Garment Workers' Union, A. F. L., is a labor organiza-
tion which admits to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
The Respondent came into existence in the latter part of July 1949, and
occupied the same premises which had previously been occupied by two previous
concerns which had given up the building.' During the month of August 1949,
the Respondent undertook to train its first employees and engaged the services
of Miss Helen Brown of Milwaukee, Wisconsin, to train its supervisors. Initially
hired for 3 weeks, she remained in the capacity of head supervisor of the sewing
department for about 6 months. In the first week of September, the plant began
production at which time the'sewing department was moved to the second floor
of the building. On October 3, 1949, the Respondent hired Robert I. Cole, an
industrial engineer, to develop and maintain production and quality standards.
Cole guided Brown and her line supervisors in the build-up of the working force,
2 The time for filing briefs was extended, by an Associate Chief Trial Examiner to
January 11, 1951.
3In making the findings herein, I have considered and weighed the entire evidence. It
would needlessly burden this Report to set up all the testimony on disputed points. Such
testimony or other evidence as is in conflict with the findings herein is not credited.
'The latest occupant was a garment manufacturer known as Kay-Ruth.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the adoption of proper methods of work in the various operations performed by
the employees, the elimination of bottlenecks, and the flow of production of the
required quality and volume. While the first operations in the sewing depart-
ment were from finished material, within a matter of weeks the new plant had
established all its present departments for the manufacture of lingerie, from
the knitting of the fabric through dyeing and finishing of the cloth into and
through the making of the garments ready for retail sale. Other departments
of shipping, receiving, warehousing, and office administration were set up along
with the manufacturing units. Most of the General Counsel's case was confined
to the period from September to November 30, 1949, during which there were
from 34 to 42 supervisors. When Cole assumed his duties on October 3, there
were 126 employees in the plant, 73 of whom were in the sewing room ; a month
later, there were 182 of whom 118 were in the sewing room ; and at the first
of December 1949, there. were 240 employees, 151 of whom were in the sewing
room . As of November 1, 1950, there were over 400 employees employed in the
entire plant.
Early in September 1949, the Union began its attempt to organize the Re-
spondent's employees which has continued to the present time. For the times
material to the complaint, the activity on the part of the Union, for the most
part, had been the solicitation of members by personal calls from organizers who
individually called on employees during their off-duty hours at their homes in
the evenings. The organizers obtained signatures from prospective members on
the promise that such information would be held strictly confidential and that
policy was maintained to the extent of not offering any signed union cards in
evidence at the hearing. I mention this policy of secrecy as to which employees
had joined and the dates on which they had joined the Union because' it seems
to me to have an important bearing when weighing the evidence offered to prove
that the Respondent knew that certain employees alleged to have been discrimi-
natorily discharged had joined the Union or were active in its affairs. Corrobora-
tive evidence in the form of written records is usually helpful when it becomes
necessary to fix the date when an.employee joined the Union in order to compare
that date with the date of discharge. Some employees who had joined the Union
were ignorant of the identity of coemployees who also had joined. In view of
that it requires persuasive proof that the Respondent knew that the alleged
dischargees were members of, and/or engaged in, activities for the,Union, when
such information was lacking even among the employees themselves in the
crucial early days of the organizational campaign.
B. The alleged discriminatory discharges'
1. Opal Hayes
The complaint alleged that the Respondent discharged Opal Hayes on October
28, 1949, and thereafter failed and refused to reemploy her because of her
membership in and activities on behalf of the Union, and in order to discourage
union membership and activities of its other employees. The answer denied
that she had been discriminatorily discharged or denied reemployment and averred
that her termination was for legal and proper reasons. Hayes was employed by
the Respondent from July 27, 1949, to October 28, 1949. Prior to her employment
5 Supervisors of the Respondent within the meaning of the Act were : Maurice Perlstein,
president ; Richard Busby , manager ; Robert Cole , engineer in charge of production ; Helen
Brown , head supervisor in sewing department ; and Line Supervisors Laura Dunnaway,
Theo Terrell , Eunice Smith , Addie Barron , Eula Prescott, and Nellie Reeves. Foreman
Lippman replaced Helen Brown sometime in February 1950. '
McCOMB MANUFACTURING COMPANY 603
with the Respondent, she had been employed in the Kay-Ruth garment factory
for approximately 6 years, during the last 2 of which she had been a supervisor
over approximately 40 employees. Hayes was hired by Helen Brown to be
trained with others for supervisors. A program was planned to train the girls
for supervisors by teaching them all the machine operations required for the
making of women's slips and then teaching them to be inspectors. Hayes had
not operated a sewing machine at her prior place of employment and when
hired told Brown that she did not like to work on sewing machines. Brown
explained that in order to be a supervisor she would have to be trained on the,
sewing machines and work up. The first few days of her training she, like others,
sewed on scraps in order to become familiar with the operations of the machine.
After 3 or 4.days sewing scraps, she worked on the operation known as sewing
seams on slips for approximately 3 or 4 weeks. In the latter part of August, at
her own request, Hayes became an inspector and continued to be 'an inspector
until she was discharged. The work of inspector required trimming the threads
of the finished nylon slip and also examining it for workmanship, material, and
grease spots before it was sent to the shipping department as a first-class garment.
As an inspector, her first supervisor was Eula Prescott, her second supervisor
was Laura Dunnaway, and about the middle of September she moved to the
line where Addle Barron was supervisor and remained under her supervision
during the remainder of her employment.
Hayes testified that she first became aware of union activities in late Septem-
ber or early October approximately 4 weeks prior to October 27 when an organizer
for the Union asked her to sign a union card. Hayes did not join at that time
but said she was interested in the Union and asked for time to think it over
and discuss it with other employees. She testified that her union activities con-
sisted of talking about the Union with other employees who were in favor of
it and also talking with her supervisors ; and, with the exception of giving an
application card for union membership to an employee, Georgia Mae Anding,
on October 28, the day she was discharged, did not distribute any cards nor solicit
any employees to join the Union.6 Hayes testified that she discussed the Union
with employees at the plant during rest periods and noon hours at which times
the employees discussed the organizers, which employees' houses the organizers
had visited, and whether it would be a good thing to have a union at the plant.
Some of the employees, including those in favor of and those opposed to the
Union expressed the thought that the plant would close if the Union succeeded
in organizing the employees. On October 14, the day when Perlstein, the presi-
dent of the Respondent, made his first speech to the employees, Hayes remarked
to Helen Brown that he had made a nice speech, to which Brown agreed. Hayes
then asked Brown what she thought of the Union organizing the employees, to
which Brown replied that she was neutral on the subject. Hayes then asked her
if she had ever worked in a plant where it was organized and Brown replied
that she had. When Hayes pursued the subject by asking Brown which condi-
tions Brown would rather have at the Respondent's plant, she answered that it
made no difference to her and walked away. Hayes testified that the first time
Supervisor Smith spoke to her about the Union was 2 or 3 weeks before she was
discharged when Smith asked her what she thought about the Union and Hayes
replied that she did not know. Then Smith said that it looked like the girls
ought to do the right thing, to which Hayes again replied that she did not know.
Smith then, according to Hayes, remarked, "Well, you know definitely that if
there is a union formed in this plant that Mr. Perlstein will. close it down."
9 Anding disputed Hayes on the date by testifying that it. was not October 28, but a
week prior thereto that Hayes gave her the card. -
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hayes replied that the railroad shop was organizing and inquired why the Re-
spondent 's employees could not organize . Smith answered , "Well , you say that
the railroad shops are organizing , but they are not working now." Hayes said,
"Yes, you just watch. The unions always get what they ask for, labor is always
getting what they ask for and I can't see why ladies can 't be organized as well
as men ." In her testimony , Smith admitted that she did have conversation with'
Hayes ( first placing it in September but, on cross -examination , in October) in
which the subject of the railroad shops organizing was discussed , and when
Hayes said she did not see why the girls could not organize the same as the
men replied to Hayes , "Neither do I." At another time, Hayes testified that
Smith directly asked her if she had joined the Union but Hayes , did not tell her
she had or had not joined ; and that Smith passed by her inspecting table several
other times and expressed hopes that the employees would exercise good judgment
and not organize the Union.
Hayes testified that she joined the Union in . October and "thinks" it was on
October 27. She testified further that never at any time while she was an
inspector was she criticized by Brown or any other supervisor , except that
Addie Barron talked to her about wanting to be transferred to other jobs .? . Hayes
testified further that she always inspected all the garments on her line ; that at
times when there were no garments on her line to inspect she helped out by
inspecting on other lines, and at numerous times when there was no work to be
inspected , did other jobs on the floor ; and that at Brown's direction she trained
two employees to be inspectors . She specifically denied that Brown ever told
her that unless she improved she would be discharged , and admitted that she
smoked every day at rest period in the rest room and once or twice during her
entire employment had smoked during working hours in the rest room when there
was nothing else for her to do. She denied further that Brown or Barron had
ever talked to her about the number of times she went to the rest room. Hayes
also admitted that she felt that Brown did not like her as well as some of the
other girls and a few days after her discharge told Smith she felt Brown did
not like her and maybe she was the cause of her discharge . Hayes continued
to testify that in the late afternoon of October 28, Brown said that she hated
to tell her that Richard Busby, the manager , had told Brown to tell her that she
would not be needed any more because her production record was insufficient, to
which Hayes protested that Brown knew Hayes inspected all the garments her
line required and she did not have work to do all the time ; whereupon Brown
replied that was what Busby had told her and Hayes could talk to Busby if she
wanted to . Hayes thereupon similarly protested to Busby and informed him
that she needed her job and if he would rehire her she would be willing to take
any job in the plant where he saw fit to place her . Hayes testified that he replied
that he would have to let her go and train someone else , but that as the plant
grew, more inspectors would have to be trained and when he saw where he could
use her again he would call her which would possibly be in a week or two.
Richard Busby testified that although he was production manager for the
Respondent during the year 1949 , he did not personally order the discharge of
any of the eight alleged to have been discriminatorily discharged . His version
of the conversation with Hayes was that it opened by her inquiring if he knew
she had been discharged to which he replied in the negative . He testified that
Hayes admitted that she knew she did not produce well , that she was not satis-
fied and wanted to be a supervisor ; and that she inquired if there would not be
a place for her, possibly in the shipping or pressing department or in the dye
4 The record does not disclose what Barron said to he
McCOMB MANUFACTURING COMPANY 605
house . Busby testified that he told her if anything opened up and there was a
place he thought she could fill that she would be called back. He denied that
he gave any specific time within which she would be recalled.
Helen Brown testified that during the first 2 weeks of Hayes' training on the
sewing machines she found her to be discontented and "coaxed" her to stay on the
machine because she knew that Hayes wanted to be a supervisor and it was
necessary for her to have the required power machine training. When the time
Caine for the other trainees on the machines to begin their training as inspectors,
Brown testified that Hayes asked if she too could not begin inspecting saying
that she did not want to sew and would never learn because she did not like it.
Brown then told her if she was an inspector without the sewing machine training,
she could never recommend her to be a supervisor. Thereupon Hayes asked if
there would not be a finishing department in the plant which she could supervise,
but Brown informed her that she still would have to learn the sewing in order
to be a supervisor there. Brown transferred Hayes to inspecting about the
middle or latter part of August and testified that as an inspector she found
Hayes to be restless, "not knowing what she wanted" and that Hayes kept in-
quiring if there was not something else for her to do such as a finishing depart-
ment which she could supervise. Brown testified that Hayes' work as an inspec-
tor was good on some days and bad on other days; that her production was
very poor and Brown tried to get her to increase it. In reply to Brown's inquiry
as to how she was doing, Hayes replied, "I don't know. I don't think that I
will ever 'make it." Brown answered that if she did not work, she would never
make it. Brown further testified that the quality of her work as an inspector
insofar as cleaning the garments and passing flaws in workmanship was inferior
and that her production did not increase nor the quality of her work improve.
According to Brown, she spoke to Hayes many times about absenting herself
from her workplace by wandering around the room or being in the rest room, and
Hayes complained that it tired her to stand still and she wanted a job where she
could wander around ; and when Brown cautioned her about smoking during
working hours, Hayes replied that she had to have a smoke. Brown denied that
she knew that Hayes had joined the Union ; and denied Hayes' testimony that
Busby had ordered Brown to discharge her and testified that Busby had not
ordered her to discharge Hayes. According to Brown when she discharged
Hayes on October 28, Hayes inquired if she could see Busby and Brown agreed.
Brown testified that Supervisor Barron had complained many times about Hayes
taking back work to the operators, that Hayes was not nice about it and the girls
had objected. Brown testified that Hayes should have put defective work aside
for the supervisor or service girl to take to the sewing machine operators.
Supervisor Addie Barron corroborated Brown as to the quantity and quality
of Hayes' work. She testified that both Robert Cole, the production engineer,
and Brown were pressing her because of Hayes' low production; but, instead of
discharging her earlier, Barron had asked that Hayes be given another trial for
a week or so and when there still was no improvement Hayes was discharged
by Brown.
Robert Cole, then plant engineer for the Respondent, together with Brown
and each line supervisor were responsible for the production output. As such,
Cole testified that he observed the aptitude and amount of production of the
employees. He testified that at the weekly meetings held with the supervisors
he usually required each supervisor to submit the names of three employees who
were the lowest producers. Hayes' work and her aptitude were discussed for at
least two meetings before she was discharged and that after he had reviewed her
work and worth as an employee he voiced his opinion that he did not want her
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
retained as an employee. With respect to the percent of efficiency records
introduced into evidence, Cole explained that in the beginning the inspectors kept
their own production records and turned them over to the supervisors until such
time as the Respondent was able to set ratings on inspectors. Such records
which were turned over to the supervisors were not kept by the Company with
the result that the production of Hayes is not, reflected on that record for the
weeks prior to those listed. Hayes' percent of efficiency for the 3 weeks listed
(presumably the last 3 weeks of her employment) is respectively: 18.2 percent;
15.4 percent ; and 22.1 percent, which is the lowest rating for any of the inspectors
listed.
On the accredited testimony of Brown, Cole, Busby, and Barron, I find that
Opal Hayes was discharged for cause. There is no evidence whatsoever in the
record to show that any. official of the Respondent or any supervisor knew that
Hayes was a member of the Union or active in its behalf.' From Hayes' own
testimony she was not active in the Union's campaign, except for talking about
the Union with her fellow employees and supervisors. To her supervisors she
was noncommittal as to what she thought about the Union and on one occasion
when Supervisor Smith directly asked her if she had joined the Union, Hayes
did not tell her that she had or had not joined. Her activity for the Union
certainly could not have been particularly noticeable or marked, because she
took 4 weeks in which to "think it over" before joining on October 27. There
is only the remote possibility that Smith may have drawn an inference of
sympathy for the Union from Hayes' remark inquiring why the girls in the
plant could not have a union if the men in the railroad shops had one, to
which Smith replied that neither did she know. Since Smith was not her
supervisor, had no part in her discharge, and the time of such conversation
was so long before Hayes' discharge, a conclusion that it contributed to the
reasons for her discharge would be highly speculative and based on nothing
more than surmise. Accordingly, I find that neither Hayes' membership in nor
her activities for the Union were known to the Respondent and were not the
reasons for her discharge. The evidence is insufficient to support the allegations
in the complaint insofar as Opal Hayes is concerned, and, accordingly, to that
extent the complaint should be dismissed.
2. Laura Wingate
The complaint alleged that the Respondent discharged Laura Wingate on
November 4, 1949, and thereafter failed and refused to reemploy her because of
her membership in and activities on behalf of the Union, and in order to dis-
8 The chart containing the efficiency percentages was prepared by the Respondent at the
request of the General Counsel prior to the hearing . No such chart was in existence prior
to January 1950 when the Respondent first began to make such records.
G The General Counsel in his brief states that prior to October 27, Hayes had spoken in
favor of the Union to Eunice Smith and was known as an active union supporter citing,
in support of the statement that her favoritism toward the Union was common knowledge;
the fact that Mayor Wall, knowing her to be a union supporter, spoke to Hayes in a res-
taurant at noontime on the day she was discharged and urged her to try to persuade
employees at the plant from joining the Union. The Respondent in its brief relies on this
episode as tending to prove that Hayes was not known as an active union supporter.
There is no proof in the record that Wall knew Hayes to be a union supporter. It was
stipulated that evidence as to Wall's conversation was offered only as background evidence,
not binding on the Respondent and limited only to show that it was common knowledge
throughout the community that the Union was engaged in organizational activities. At
that point in the record, the Respondent conceded that it knew the Union was organizing
prior to October 14 pointing to the fact that it gave the General Counsel a copy of
Perlstein's speech to the employees on October 14.
McCOMB MANUFACTURING COMPANY 607
courage union membership and activities of its other employees .'0 The answer
denied that she had been discriminatorily discharged and averred that her
termination was for legal and proper reasons.
Wingate was employed as a sewing machine operator from September 15, 1949,
until her discharge on November 4. Her main job was sewing seams but for
the first 2 weeks of her employment had also "darted" on the garments. The
highlights of Wingate's testimony are that she joined the Union in October 1949,
but does not know the date ; that her supervisor , Laura Dunnaway, once told
her that the Respondent had a list of the employees who had joined the Union
and the Company would discharge them , but does not know how many days or
weeks it was before her discharge that Dunnaway said it, except that it was in
October ; that about every day in the week before she was discharged Dunnaway
asked her if she had signed a union card but Wingate denied at all times that
she had signed a card and , finally, after Dunnaway had nagged her day after day
for several days about the Union, told her on the day before she was discharged
that she had joined the Union; that she saw Perlstein, the Respondent 's presi-
dent, on November 4 shortly after her discharge to protest her discharge stating
that her production was greater than Gladys Honea's, who had not been dis-
charged, to which Perlstein replied that he had come to McComb to build a plant
and not to have it torn down ; and that on the evening following her discharge,
Dunnaway telephoned to say she was surprised when Wingate was laid off-
that if Dunnaway had known she was going to be discharged , Wingate could
have apologized for joining the Union , secured the return of her union card, and
continued to work . The Respondent in its defense offered the testimony of
Dunnaway and Perlstein , who denied the antiunion statements and conduct
attributed to them. Helen Brown and Robert Cole testified that the discharge
was for cause, not motivated by discriminatory reasons. Brown testified that
she had spoken to Wingate more than once about her work; that she could
not or would not follow instructions and that she discharged her for low
production output. Cole testified that Wingate was the first operator he worked
with in the sewing department in early October,; that she was very nervous,
had a poor aptitude for the job , and held up the production of other operators
who followed her operations ; that he had sat at her machine and instructed
her how to sew but when he left her she reverted to her own way ; and that at
.the supervisors ' meeting held the day before she was discharged he voiced his
opinion that she should be discharged . Cole testified further that there could
be no comparison between the work of Honea and Wingate, for each performed
separate sewing operations , except when Honea did the same as Wingate because
of lack of work for Honea and slow production on the part of Wingate. While
there is conflict in the testimony whether Wingate ever sewed as many as 6
or 12 dozen per hour ( standard production was 23 dozen ) Dunnaway 's testimony
that Wingate never reached 50 percent efficiency is borne out by the precent
of efficiency records in evidence . Wingate testified that it was the people around
her, not the machines , that made her nervous and that she once asked Brown
to transfer her from sewing machine work to some other work. She testified
that her reason for the request was that she knew she could not make the
production. Wingate demonstrated her unreliability as a witness, on cross-
examination , by the following testimony :
A. I wanted to get off the machine and I wanted to do it because I knew
more production was going to be pushed on me and I knew I couldn't do it.
10 Laura Wingate is also referred to in the record at times as Laura Alice Wingate, and
as Alice Wingate.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. You couldn't do what?
A. Make the production.
Q. And how long before you were discharged was that?
A. I don 't know, about four months , four weeks.
Q. Give us your best estimate.
A. It was in November while I was working there.
Q. No. You mean , it was in November that you told Helen Brown that
you would like to be moved off the machine?
A. No. I didn't work but three or four days in November.
Q. Why did you say it was in November, then?
A. I said it was in October . I didn't say it was in November.
Q. What part of October ? The middle ? Or the end?
A. I don 't know. It was in October while I was working.
Q. Now, just what did you say to Helen Brown?
A. I asked her could she move me on another job that that lint was
terrible.
Q. And what was the lint doing?
A. Well , I was afraid . it would cause me to have asthma.
Q. It wasn't giving you trouble with the asthma already?
A. No, not any more than anything else.
Q. What other job did you ask for?
A. I don't remember just what I asked her. I just asked her to move me
off the machine,
Q. And that was the reason you wanted to be moved ? On account of the
lint?
A. That is about it, yes. That is the only reason.
Q. And that is the only reason?
A. Yes.
Q. . . . What did you mean a while ago when you said that you knew you
couldn't make production . and that was the reason you wanted to be moved
off the machine?
A. I didn't say I couldn 't make production . I said I could make it if
anybody else could.
Q. You didn't say a moment ago that you knew you couldn 't make the
production?
A. I don 't think I said I knew I couldn't make production.
Q. So the only reason that you wanted to be moved off the machine was that
the lint was bothering you and you were afraid it was going to bother your
asthma?
A. That is right.
The above testimony elicited from Wingate on cross-examination unwittingly
corroborated the Respondent 's defense by admitting that she herself knew she
could not make the production quota. On the accredited testimony of Dunnaway,
Brown , Cole, and Perlstein , I find that Wingate was discharged'for cause. The
evidence is insufficient to support the allegations in the complaint insofar as Laura
Wingate is concerned and accordingly to that extent the complaint should be
dismissed.
3. Viola M. Boyd
The complaint alleged that the Respondent discharged Viola M. Boyd on
November 4, 1949, and thereafter failed and,refused to reemploy her because
of her membership in and activities on behalf of the Union and in order to
McCOMB MANUFACTURING COMPANY 609
discourage union membership and activities of its other employees. The answer
denied that she had been discriminatorily discharged and averred that her
termination from employment was for legal and proper reasons. Boyd was
hired on September 7, 1949, and operated a sewing machine as a side seamer
until the week prior to her discharge . During the last week of her employment
from October 31 through November 4 she was an inspector , succeeding Opal
Hayes who was discharged on October 28. She signed a union card about
October 12 or 15, and thereafter became active in the Union's campaign. She
supplied the Union with names and addresses for its organizers to visit and
accompanied them to employees' homes and talked to them. She talked to the
girls in the plant every day, before and after work , at noontime and recess.
Her activity on behalf of the Union was known to the Respondent . In the rest
room on the day after she signed her union card she solicited several girls to
join in the presence of her supervisor , Addie Barron , while discussion was had
among the girls whether it was a good idea to have a union in the plant . Barron
told the girls at that time that she had worked in shops that were organized
in which there were very good working conditions . Other employees had also
reported to Barron that Boyd had asked them to join the Union and asked Bar-
ron's advice to which Barron replied that was for each to decide for herself.
One week before she was discharged, Boyd testified that Helen Brown had told
her that her production record was not as high as it should be and she was being
transferred from operating a sewing machine to inspecting garments and that
if she could not qualify as an inspector in that week she would be discharged.
Boyd testified further that she protested it was not fair to expect her to be able
to do what was expected of her as an inspector in 1 week . During that week,
Boyd testified that her supervisors , Barron and Brown, told her they thought she
would make a good inspector ; nevertheless on Monday, November 7, she was
discharged for the reason given to her that her production was not sufficient.
At that time she asked Richard Busby, the manager, if he thought she should
make production as an inspector in 41/2 days to which he replied in the affirma-
tive and handed her her pay check . In the following week , Boyd testified that
she telephoned to Maurice Perlstein , the Respondent 's president , and told him
that the co-Respondent, Stringer, had informed her she would get her job back
if Boyd would tell Perlstein she was sorry she joined the Union and that Perl-
stein replied that he could not discuss the matter over the telephone but he
would be glad to talk to her at the plant. On cross-examination, Boyd denied
spending an excessive amount of time away from her work in the rest room ;
and claimed that her production was as good as anyone else's. She further
denied that when Brown transferred her to inspecting work, she told her to
stay at her inspecting table or she would be discharged-and then stated she
"did not remember" Brown telling her that. She repeated that she had spoken
openly in the plant about the Union from the day she joined and that everyone
heard her; but admitted that she did not know the union organizers were in town
contacting employees as early as September until they contacted her on October
12 or 15, the day she signed the union card . After her discharge, she worked
with the union organizers for the following year and it was stipulated that
Boyd received salary checks from the Union in stated amounts after her
discharge.
. Helen Brown and Addie Barron , whose testimony I credit, both testified that
in spite of their efforts to help Boyd improve the quantity and quality of her
work , she failed to do so. Her weekly percent of efficiency for her 7 weeks as
a machine operator were respectively : 6.6 percent ; 20 percent ; 16 percent ; 25
percent ; 20 .5 percent ; 22.5 percent ; and 23 percent. Her work record was
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussed several times at the weekly supervisors' meetings. It was shown
that not only did Boyd spend an unusual amount of time away from her work-
place, but the quality of her work was poor and her production low. Cole
at that time was insisting that Barron increase the production of the girls on
her line and weed out those who did not improve. Boyd urged Barron to let
her keep her job because she was a widow with two children to support and
Barron for that reason put off discharging her. A week prior to her discharge,
Brown told Boyd that the Company could not spend any more time with her ;
that Brown was satisfied Boyd could never be an operator because she could not
get her production out. It was at that moment, on the verge of imminent dis-
charge, that Boyd asked Brown to transfer her to inspecting work. Brown
agreed provided Boyd was willing to stay at her place of work and show Barron
that she was interested in working. According to Brown, not only did Boyd
fail to improve but became worse. As an inspector Boyd was careless and sloppy
in her work. She failed to clean garments properly, discarded numerous gar-
ments as "seconds" which could have been used and which later were reinspected
and classified "firsts." Perlstein's testimony is credited that when Boyd tele-
phoned to him she said she used to work there and would like her job back;
that he told her to apply in the usual manner ; that when she told him that Mrs.
Stringer had said she could have her job back if she got her card back from the
Union, he inquired who Mrs. Stringer was and then told Boyd that Stringer had
no authority to speak for the Respondent, and that if she wanted her job again
to apply in the regular manner. I have considered the emphasis laid by General
Counsel on the fact that Boyd was transferred to the job of inspector and dis-
charged after a trial period of only 41/2 days. Standing alone, without explana-
tion, such circumstance might well be significant in spelling out discriminatory
discharge. But when the fact that she was discharged after 41/2 days' trial is
viewed against the background of 7 weeks' poor work as an operator, that the
transfer was made at her own request, and that her work as an inspector gave
no indication that she would be any better than she was as an operator, such
discharge after such a short trial period loses its significance. At best it could
be nothing more than surmise and suspicion which is insufficient to establish
violation of the Act. I believe and find that giving to Boyd another opportunity
to make good as an inspector when she had made such a poor record of production
as an operator, was not a scheme to transfer her and then fire her after a week's
trial as an attempt to cover up a discriminatory discharge, but actually was
made in good faith by the Respondent who had every justification to discharge
her on October 28 on the basis of her production record as an operator. Instead
of tending to prove that her transfer to inspector was a maneuver to cloak a
discriminatory discharge, it tends to prove to me that she was being given every
opportunity to find a job that she could perform without regard to her known
membership and activities for the Union. . Neither do I credit Boyd's testimony
that Brown and Barron told her in her last week of employment that she would
make a good inspector ; nor that Boyd, at the time she was transferred to in-
specting, protested that a week's trial would be unfair. In view of Boyd's con-
tinued poor work record, the efforts of Barron and Brown to help her improve
her work and giving her an opportunity to do another job by transferring her at
her own request to inspector, I am convinced that her discharge was not moti-
vated by discriminatory reasons but was for cause and I so find. The evidence
is insufficient to support the allegations of the complaint insofar as it refers to
Viola M. Boyd and, accordingly, to that extent, the complaint should be dismissed.
McCOMB MANUFACTURING COMPANY
4. Katherine C. Johnson
611
The complaint alleged that the Respondent discharged Katherine C. Johnson
on November 11, 1949, because of her membership in and activities on behalf of
the Union and thereafter failed to rehire her, and in order to discourage union
membership and activities of its other employees. The answer denied that she
had been discriminatorily discharged and averred that the discharge was for
legal and proper reasons.
Katherine C. Johnson was employed as a machine operator on September
27, 1940, sewing elastic around the legs of panties. Since that particular sewing
operation was more difficult than other work on the garment, the training period.
was 12 weeks, compared to an 8-week training period for other sewing opera-
tions. Two weeks before her discharge her work had been discussed at super-
visors' meetings and on November 7 she was warned to improve her production.
On November 11 her supervisor, Theo Terrell, discharged her and gave her a
slip which stated the cause for discharge was "production and training not on
schedule." She was told that she was let go because her production was low;
but when the Company established a training line sometime in the future when
production was better she would be called back. Johnson thereupon replied
to Terrell that she need not strain herself about calling her back to work.
When discharged, she was producing from 1Y/ to 2 dozen garments per hour
instead of an expected 3 dozen per hour for that period in hef training" Full
production requirements were 5 dozen per hour but 100 percent efficiency was
not expected at that time. Production of 2 dozen instead of 3 dozen per hour
would therefore mean she was producing at the rate of 40 percent when 60
percent was expected. The percentage of efficiency chart submitted for her
shows that she attained 18.2 percent each week for the first 3 weeks of her em-
ployment and 38 percent, 35.9 percent, and 42.2 percent for the last 3 weeks.
Katherine C. Johnson joined the Union around November 1, 1949. Her union
activities consisted of. talking to some girls in the plant about the Union and
handing application cards in the plant to employees Katherine R. Johnson
and Jensie Heck. After giving the card to Katherine R. Johnson in the week
prior to November 4, Johnson returned it before noon unsigned. At first Kather-
ine C. Johnson testified that in the week prior to her discharge she got Heck to
sign a card at noon hour. Later, she corrected that by saying Heck did not
return the card because Heck had already signed one." The other instance of
union activity testified to by Katherine C. Johnson was that'she brought union
leaflets in a brown paper bag into the plant early in the morning of November
11, the day of her discharge; that she put them in the rest room of the plant
before 7 a. in., while several employees were there but she spoke to no one in
there ; that on her way from the rest room she discussed the leaflets with her
sister-in-law and coemployee, Blanche Freeman, who was outside the rest room.
She testified further that Supervisor Eunice Smith came to her machine and
asked her if she had left a brown paper bag in the rest room to which she
replied that she had not;" and that she was discharged later that same day.
Two witnesses for the General Counsel dispute Katherine C. Johnson concern-
ing the date when she brought the leaflets into the plant. Nelma Harvey, who
was also discharged on that same day, testified that the leaflets were put in the
"For 2 weeks prior to November 11, Supervisor Terrell had made hourly checks on the
number . of garments produced by the operators.
17 Heck testified that she joined the Union on October 28.
is Smith had examined the brown paper bag and found it to contain union leafiefs.
961974-52-vol. 95-40
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rest room a day or two before her discharge and that Supervisor Smith asked
Harvey if she knew who had brought them in. When Harvey replied that she
did not know, Smith, according to Harvey, requested her to find out the girl who
had done it. Harvey later reported to Smith that she had not found out the
identity of the girl who had brought in the leaflets. It was stipulated that if
Blanche Freeman had been called by the General Counsel she would have testi-
fied that she (Freeman) had been questioned about the leaflets around Novem-
ber 1. Richard Busby, for the Respondent, fixed the time when they were
brought into the plant to be before October 14 because he stated he had definitely
discussed the matter with Perlstein, the president, prior to October 14, which
was the date of Perlstein's first speech to the employees. Thus the evidence
relied upon to provide a foundation for an inference that the Respondent must
have known that Katherine C. Johnson brought the leaflets into the plant on
November 1.1 and because of that precipitately discharged her a few hours later
is insufficient. I find the evidence is insufficient to establish that the Respondent
had any knowledge that Katherine C. Johnson was a member of the Union or
had taken any part in union activities." The evidence supports the defense
that she was discharged for cause, and I so find. The evidence is insufficient to
support the allegations of the complaint insofar as it relates to Katherine C.
Johnson and to that extent the complaint should be dismissed.
5. Katherine R. Johnson
The complaint alleged that Katherine R. Johnson was discharged by the
Respondent on November 4, 1949, because of her membership in and activities
in behalf of the Union and in order to discourage membership and activities of
its other employees. The answer denied that she had been discriminatorily
discharged and averred that she was terminated for legal and proper reasons.
Katherine R. Johnson did not belong to the Union and was not active in its
affairs. She knew the Union was attempting to organize the Respondent's
employees, but testified that she did not know what a union was or "what it stood
for." The General Counsel contends that Katherine R. Johnson was discharged
by mistake ; that the Respondent had meant to discharge discriminatorily Kath-
, erine C. Johnson on November 4, but through mistaken identity Katherine R.
Johnson was discharged. The Respondent contends that she was discharged for
cause and not through mistake.
In the week prior to November 4, Katherine C. Johnson had given' her a union
application card but she returned it unsigned. Her percent of efficiency attained
weekly was : 11.9 percent ; 25 percent ; 28.8 percent ; 25.5 percent ; 42.5 percent ;
and 35.5 percent. Her work performance prior to her discharge had been dis-
cussed by her supervisors for at least two meetings a week apart and she finally
was discharged on November 4, after several warnings, for the reasons stated
on her separation slip, discussed infra. When she was discharged she sought out
Maurice Perlstein, the Respondent's president, told him that she had not signed
a union card and that she thought he had made a mistake, because there were
14 In making this finding I have considered carefully the testimony of Katherine R.
Johnson and Maurice Perlstein in connection with the discharge of Katherine R. Johnson,
infra, and find that even though Katherine R. Johnson suggested to Perlstein when she
was discharged on November 4 that she was being mistaken for Katherine C. Johnson,
she did not tell him that Katherine C. Johnson was a member of the Union nor engaging
in its activities . She stated her reasons for believing a mistake had been made were that
there were two Johnsons who sewed . elastic and that she ( Katherine R. Johnson) had
been praised for her work . When Perlstein asked her why she was so sure she told him
that she had always been told she had been doing good work.
McCOMB MANUFACTURING COMPANY 613
two Katherine Johnsons who ran sewing machines. When Peristein asked her
why she was so sure, she replied that she had been told she was doing good work ;
and if she had not been doing so, she did not want them telling her that she was.
Katherine R. Johnson did not tell Perlstein that Katherine C. Johnson was a
:member of the Union nor that she had been solicited by Katherine C. Johnson
to join the Union. Peristein told her he would look into the situation, asked
her for her address to identify which Johnson she was, and told her if a mistake
had been made it would be corrected ; and that later on when a training school
would be set up, some of the presently discharged employees whom they did not
have a chance then to train thoroughly would be taken back. Katherine R.
.Johnson was recalled for work by the Respondent on March 6, 1950, and follow-
lug her return to work had several different jobs with the Respondent. The
General Counsel contends that the separation slip of Katherine R. Johnson
showing reasons for her discharge as compared. with the separation slip of
Katherine C. Johnson and other employees is proof of discriminatory discharge,
through error, of Katherine R. Johnson and discriminatory refusal to reemploy
Katherine C. Johnson and other discharged employees. Respondent listed five
reasons for the discharge of Katherine R. Johnson : "(1) bad quality (2) poor
performance (3) waste materials (4) can't catch on to her job (5) needs too
much supervision." The separation slip of Katherine C. Johnson, as those of
other employees shows one reason "production and training not on schedule."
To prove the mistaken identity theory that Katherine R. Johnson was discrimina-
torily discharged on November 4, it must be, established that the Respondent
had known of Katherine C. Johnson's membership in and/or activities on behalf
of the Union prior to November 4; and had on or prior to that date selected
Katherine C. Johnson for discriminatory discharge. The comparison of the sep-
aration slips will not supply proof or an inference of discriminatory discharge
in the absence of such knowledge on the part of the Respondent. There is no
such proof in the record. Since I have found, supra, that the Respondent had no
knowledge that Katherine C. Johnson was a member of the Union or active in its
affairs and did not discriminatorily discharge Katherine C. Johnson, it follows
that Katherine R. Johnson was not discriminatorily discharged in the mistaken
belief that she was Katherine C. Johnson, and I so find. The evidence is insuffi-
cient to support the allegations of the complaint insofar as it relates to Katherine
R. Johnson and to that extent the complaint should be dismissed;
6. Jensie Heck
The complaint alleged that the Respondent discharged Jensie Heck on or
about March 6, 1950, and thereafter refused to reemploy her. because of her
membership in and activities on behalf of the Union and in order to discourage
union membership and activities of its other employees. The answer denied
that she was discharged for discriminatory reasons and averred that her ter-
mination was for legal and proper reasons.
Heck worked as a sewing machine operator from October 12, 1949, until March
7, 1950, with the exception of a period during which she was laid off (January
14, 1950-February 14, 1950). On Friday, March 3, 1950, Heck was laid off for
lack of work caused by shortage of elastic. On her separation slip, signed by
Foreman Lippman, she was rated as having good skill, medium production, and
average deportment. Heck had signed a union card on October 28, 1949, and
had solicited members. for the Union away from the plant during nonworking
hours, from time to time. She provided the use of her automobile in which she
and organizers for the Union rode on visits to employees' homes. During. the
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period of her layoff ( January 14-February 14) she went around "more than
ever" with the organizers soliciting signatures . She did not solicit any signa-
tures at the plant and by her own admission kept her membership in the
Union "a little bit of a secret" insofar as the plant was concerned until Saturday,.
March 4, 1950, which is the first time the record indicates that the Respondent
had any knowledge of her union membership or activities . On that date , having:
been told by her cousin , who was, secretary of the local chamber of commerce,.
that a member of the chamber of commerce had. requested her to tell Heck to.
withdraw from the Union or she would not have a job, Heck went to the plant
and talked with the manager , Richard Busby . She told Busby about the message-
she had received , informed him she had signed a union card, would not withdraw
it, and was 100 percent for organized labor. Busby told her that the Respondent.
had nothing to do with the chamber of commerce and it was the policy of the
Respondent that she was free to join the Union . At the same time he also.
indicated to her that the Respondent disapproved having its plant organized and.
cited an hypothetical example that if she and Busby operated a filling station,.
they would want their employees to run it as Busby & Heck would desire and.
not as the employees saw fit, in order to make a profit . During the conversation,
with Busby, she also told him ". . . I didn't plan to continue to do my work
as I had been doing it and hoped that he didn't feel hard toward me about it,.
and I felt like if anybody made production that I could be one of those that made-
it." Busby replied , "That is the kind of girls we need, Jensie . We need some-
body that has that attitude ." Busby assured her the Respondent had no,
complaint regarding her production.
. Believing that she was to return to work on Tuesday , March 7, Heck reported
for work and after punching in at the time clock went directly to her machine.
Another employee was sitting there but left when Heck asked her what she was,
doing there . After working approximately 20 minutes , Foreman Lippman
asked her what she was-doing and who had asked her to come to work. Heck
replied that Supervisor Nellie Reeves had told her to come in which Reeves
denied. An argument then ensued between Heck and Reeves during the course
of which Heck called Reeves and Lippman uncomplimentary names. Lippman
inquired , "Who do you think is running this , Jensie? to which Heck replied,
"Well , I guess you are Mr. Lippman; but I think you had better get a supervisor
who won't get things so confused and cause arguments ." Lippman thereupon
told Heck to go home and stay home until he called her. Heck then left the
plant and has never been recalled , although following an unsuccessful attempt
to telephone Lippman she went to the plant and asked him to confirm her
understanding that she was to stay home until he sent for her, which he did.
Later in the afternoon of March 7, Supervisor Reeves informed Lippman that
if he ever brought Heck back to work she. (Reeves ) would quit her job. Lippman
agreed not to reinstate Heck.
The General Counsel in his brief emphasized the point that Lippman did not
immediately discharge Heck for her conduct in calling her supervisor and fore-
man uncomplimentary names but waited until that afternoon until Reeves told
him he had the alternative of employing Reeves or Heck and terms such a se-
quence of events incredible . To me it is clear that Heck's discharge was not for
discriminatory reasons but was traceable to her conduct in the plant on March
7; undoubtedly willing to overlook it at the time . as not calling for discharge,
he later had to make his choice when Reeves in the afternoon gave him the alter-
native of choosing between her and Heck. Thus, what had begun as a business
dispute developed into a matter of mounting personal pique involving injured
feelings as far as Reeves was concerned until she demanded and obtained Lipp-
McCOMB MANUFACTURING COMPANY 615
man's assurance that he would not recall Heck. I find the evidence is insufficient
to support the allegations of the complaint insofar as Jensie Heck is concerned
.and accordingly to that extent the complaint should be dismissed.
7. Nelma Harvey
The complaint alleged that the Respondent discharged Nelma Harvey on No-
vember 11 , 1949, because of her membership in and activities on behalf of the
Union and in order to discourage membership and activities of its other em-
ployees. The answer denied that she had been discriminatorily discharged and
.averred she had been terminated for legal and proper reasons.
Harvey was first employed by the Respondent on September 27, 1949, and
worked until her discharge on November 11, 1949. She was recalled to work on
February 14, 1950, and laid off on May 9, 1950. She has been working for the
Respondent since she was recalled on May 24, 1950 . Harvey did not join the
Union until after she returned to work in February 1950. The General Counsel
•contends that she was discharged by the Respondent in the mistaken belief that
Harvey was a supporter of the Union.
During her employment , she operated a power sewing machine , hemming the
flare leg of panties. As shown supra, Helen Brown was the supervisor in charge
of the entire sewing department and Eunice Smith, Brown 's assistant , was the
supervisor in charge of the floor . On and after October 22 , 1949, Nellie Reeves
was Harvey 's immediate supervisor . About 10 days prior to her discharge on
November 11, 1949 , Harvey informed Smith that the employees were trying to
form a Union and asked for Smith's opinion . Smith replied that she did not
think it was a good thing at that time when the plant was just getting started.
Approximately 1 week before her discharge , Harvey had a discussion with Theo
Terrell, also a supervisor ( not however over Harvey ) during which Harvey said
that the Union was a "good thing" and chided Terrell that she had set an example
by quitting and then returned to work for higher wages . Terrell replied they
better leave the Union alone-that it was not a thing for them and the employees
did not need it. A day or two before her discharge , Supervisor Smith asked Har-
vey if she knew who put some union circulars in the rest room and when Harvey
replied that she did not know and was not having anything to do with the Union,
Smith asked her to go into the rest room during recess and ask who had put
it there, Smith opining that they might lose their jobs if the Union came in and
saying to Harvey, "You better find out who put it in there , you might lose your
job." When Harvey went to the rest room at recess, Smith was there and Harvey
asked the girls no questions . Later that same day, before the afternoon recess,
Harvey told Smith that she could not find out who had put the leaflets in the rest
room and informed Smith, "I haven't anything else to do with it." A day or two
later, on November 11, 1.949, at approximately 3: 45 in the afternoon , Supervisor
Reeves notified Harvey that she would have to let her go, to which Harvey replied,
"Okay," turned off her machine and left. Harvey then sought out the plant man-
ager, Richard Busby , and told him that if he was laying her off because of the
Union, that she had not joined the Union. Busby then placed a telephone call but
.although she was present she does not know to whom he spoke nor what he said.
After concluding his conversation on the telephone, he told her that she would be
recalled and put on a training line when they started to train more people. The
General Counsel submits the case of Harvey on the basis of her efficiency rating
for the 7 weeks preceding her discharge on November 11, which is set forth to be
for each week respectively : 3.0 percent ; 6.4 percent ; 23.7 percent ; 34.5 percent ;
-49.7 percent ; 47.50 percent ; and 49.7 percent . Harvey's percent of efficiency rat-
ing is not solely determinative of the issue presented . Her chart shows a very
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
marked improvement for the first 4 weeks, and then an average of 48.96 percent.
for the last 3 weeks. Supervisor Reeves decided to discharge her after her work
had been discussed at supervisors' meetings and when, in Reeves opinion, she-
had shown no improvement after repeated warnings by Reeves. Robert Cole,
plant engineer who also participated in supervisors' meetings, had observed that
her work was slow and of poor quality. The General Counsel maintains that the
chart disproves the Respondent's defense that Harvey's production was low,.
while.the Respondent contends the chart supports its contention. Whether the
efficiency attained is high, medium, or low is not clear from the record. Nor can
Harvey's percent be compared with the ratings given other hemmers named on the.
chart because their work included different operations on different machines than
Harvey performed. The record' is not sufficiently clear to establish that the
chart, in and of itself, supports-either the contention of the General Counsel or the
Respondent.
I find there is no evidence to support the allegations of the complaint that
Harvey was discharged because of her membership in or activities on behalf'
of the Union ; or to support the contention that her discharge was the result of
mistaken belief by the Respondent that she was a supporter of the Union. I.
can find no instance in the record where the Respondent could have any basis fol
mistakenly believing that Harvey belonged to the Union or was active therein.
prior to February 1950. Harvey's remarks to Supervisors Theo Terrell and
Eunice Smith, supra,.were not enough for the Respondent to conclude mistakenly
that she belonged to the Union, was active therein, or a supporter thereof par-
ticularly when she had so positively declared later that she was not a member-
and wanted no part of the Union. The complaint with respect to Nelma Harvey
should be dismissed.
8. Willard Johnson
The complaint alleged that the Respondent discharged Willard Johnson and.
thereafter refused to reemploy him because of his membership in and activities.
on behalf of the Union and in order to discourage union membership and
activities of its other employees. The complaint was amended at the hearing
to read that he was discharged on January 10, 1950; recalled on or about February
20; and then discharged on or about March 8, 1950. The answer denied that
he had been discriminatorily discharged and averred that his termination was-
for legal and proper reasons.
Johnson began work for the Respondent as an electrician's helper in July
1949, and about 1 month later became a warper when a warping machine was.
installed in the knitting room. On or about January 10, 1950, he was laid
off because of lack of yarn and because the machine which he had been using
was to be rebuilt. He was selected for the layoff instead of his coemployee,.
Jesse Renfroe, who was his junior in length of service, because Johnson had a.
record of unexcused absences from work greater than Renfroe had. Between
January 10 and February 20, he inquired several times for his job and Roach,
his supervisor, told him he would be notified when to return to work. Following
such later notification, Johnson returned to work on February 20 on the second.
shift, 3 p. in. to 11 p. in. (instead of on the first shift, 7 a. in. to 3. p. m.) because
a supply of yarn had been received which Roach wanted to run although it
would require two shifts on the other warping machine since the machine which
Johnson had been operating was still out for repairs. When he returned on
February 20, Johnson was told by Roach that he would be put back on his former
machine when it was returned and was also warned by Roach not to be absent
again from work without letting Roach know in advance.
McCOMB MANUFACTURING COMPANY 617
Johnson testified that on the day previous to his discharge in March, he had
been arrested for speeding in Baton Rouge, Louisiana, and detained in jail which
resulted in his reporting for work at 6 p. in. instead of 3 p. in.; and that he
then asked Roach if he wanted him to work 8 hours begining at 6 p. in., to make
up for his lost time, but Roach replied that he did not and since he was short
of yarn to come 'in at 3 p. in. the next day ; and that when he arrived at work
at 3 o'clock the next day, Roach discharged him.
Roach, whose testimony I credit, testified that on March 9, 1950, Johnson did
not report for work nor notify him that he would be absent. When Johnson
called for his pay check the following morning (Friday) which was payday,
Roach discharged him for his unexcused absence from work the day previous.
The Respondent disproved that Johnson had ever been arrested or jailed in
Baton Rouge and so thoroughly discredited him as a witness that I place no
reliance on his testimony.
The evidence fails to show that, if he did join the Union, that fact ever came
to the attention of the Respondent, for by his own admission, Johnson took no
part in nor showed any interest in union activities. His testimony that, on one
occasion, in the presence of Renfroe and Hazel Roach (the wife of Supervisor
Roach but not herself a supervisor) he defended his right to have union organizers
visit his home, is not sufficient to establish that the Respondent had knowledge
of his union membership or activity. He testified that he had nothing to do
whatever with the rest of the employees as to whether or not they were interested
in the Union ; that his only contact with the Union had been that he was asked
to join' and he did so. On direct examination, he testified that 3 days before he
was laid off in January, he signed a union card when the organizers for the.
Union came to his house ; but, on cross-examination, he admitted that he did
not know when he had joined ; that it could have been at any time and he could
not even recall, whether it was before or after Christmas. The Respondent
called Jesse Renfroe who testified that Johnson had admitted to him that he
had not joined the .Union when the organizers came to his house in January.
I find the evidence is insufficient to support the allegations in the complaint
insofar as Willard Johnson is concerned and accordingly, to that extent, the
complaint should be dismissed.
C. Interference, restraint, and. coercion
The evidence adduced to support the allegations of the complaint that the Re-
spondent violated Section 8 (a) (1) of the Act has been detailed supra, with
respect to the alleged interrogation by the Respondent of its employees as to their
union membership and activity ; threats to close its plant ; threats to employees
that they would lose their jobs and other benefits ; and telling them the Com-
pany had a list of union supporters.
Employees Opal Hayes, Katherine C. Johnson, Blanche Freeman, and Nelma
Harvey testified that Supervisor Eunice Smith engaged in conduct which, if
believed, constituted a violation of Section 8 (a) (1) of the Act. Hayes testi-
fied that Smith directly inquired whether Hayes had joined the Union ; on
another occasion had asked Hayes what she thought of the Union and when
Hayes replied that she did not know, Smith stated that the girls ought to do the
right thing, for if a Union was formed, Perlstein, the president, would close the
plant; and that Smith made further comments about the Union during working
hours on several occasions expressing her hopes that the girls would use good
judgment and not orgaaive the Union. Katherine C. Johnson testified that
Smith questioned her to find out if she had left a brown paper bag in the rest
room. This has reference to the bag which contained union circulars which
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson had testified she had left in the rest room. It was stipulated that Free-
man would have testified if called that Smith asked her about November 1 if . .
she knew who had left the union leaflets in a paper bag in the rest room. Harvey
testified that Smith asked her if she knew who had put the union literature in the
rest room and when Harvey told her that she did not know, Smith told her to go
into the rest room during recess period and inquire who put it there ; that Harvey
went to the rest room (Smith was in the rest room at the time) but Harvey asked
no one about it ; and that when Harvey reported later in the day that she could
not find out who had done it, Smith threatened that the girls might lose their
jobs if the Union came in, or Harvey would if she had anything to do with the
Union. Smith denied the testimony of the foregoing witnesses but admitted that
she had asked a group of girls collectively if any of them had left a brown paper
bag in the rest room. On the accredited testimony of Hayes, Katherine C. John-
son, Harvey, and Freeman, I find that Smith threatened that the Respondent
would close the plant if the Union succeeded in organizing the employees ; ques-
tioned Hayes as to her membership in the Union ; questioned the employees indi-
vidually and severally in an effort to find out the identity of the employee who
had brought the union leaflets into the plant ; threatened Harvey with the loss of.
her .job if she had anything to do with the Union and further threatened that
other girls might lose their jobs if the Union succeeded. I further credit Har-
vey's testimony that Supervisor Theo Terrell threatened that the employees
might lose their jobs if the Union was .successful. Accordingly, I find that the
Respondent by the aforesaid interrogation and threats thereby interfered with,
restrained, and coerced its employees in violation of the provisions of Section
8 (a) (1) of the Act. On the accredited testimony of Supervisor Laura Dunna-
way I find that she did not question Laura Wingate as to union membership nor
ask her who the organizers for the Union were, and in that respect, the Respond-
ent did not violate the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
I find that the activities of the Respondent set forth in Section III, above,
occurring in connection with the operations of the Respondent described in Sec.
tion I, above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since I have found that the Respondent has engaged in unfair labor practices
violative of Section 8 (a) (1) of the Act, I shall recommend that the Respondent
cease and desist therefrom and take certain affirmative action designed to ef-
fectuate the policies of the Act.
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 Ladies' Garment Workers' Union, A. F. of L., is a labor or-
ganization within the meaning of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
STANOLIND OIL AND GAS COMPANY 619 -
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
4. The Respondent has not discriminated as to the hire and tenure of employ-
ment of Opal Hayes, Laura Wingate; Katherine R. Johnson , Viola M. Boyd,
Katherine C. Johnson, Nelma Harvey, Willard Johnson, or Jensie Heck in viola-
tion of Section 8 (a) (3) of the Act.
[Recommended Order omitted from publication in this volume.]
STANOLIND OIL AND GAS . COMPANY and INTERNATIONAL UNION OF
.OPERATING ENGINEERS, AFL, PETITIONER . Case No. 39-RC-285.
July 26,1951
Supplemental Decision and Certification of Representatives
On May 31, 1951, pursuant to the Decision and Direction of Elec-
tion issued by the Board in the above-entitled proceeding on May 3,
1951, and amended on May 24, 1951, an election by secret ballot was
conducted under the direction and supervision of the Regional Direc-
tor for the Sixteenth Region.
At the close of the election, a tally of ballots was furnished the
parties by the Regional Director. The tally shows that there were
approximately 93 eligible voters and that 83 ballots were cast, of
which 39 were for the Petitioner, and 33 against the Petitioner, and
11 were challenged. No objections to the conduct of the election were
filed by either of the parties.
Inasmuch as the number of challenged ballots could affect the out-
come of the election, the Regional Director, in accordance with the
Board's Rules and Regulations, conducted an investigation and, there-
after, on June 8, 1951, issued and served upon the parties his report
on challenges. On June 25, 1951, the Employer filed exceptions to
the Regional Director's report.
In his report on challenges, the Regional Director found that Peggy
J. Brown, Ora L. Breetz, and Margaret. G. Wilson, challenged by
the Petitioner, were plant clerical employees and within the appro-
priate unit and therefore eligible to vote in the election. He rec-
ommended that the challenges to their ballots be overruled. No ex-
ceptions having been filed to his findings and recommendations with
respect to these three employees, we adopt his findings and recommen-
dations with respect to them.
The Regional Director further found that Kitty R. Blackburn,
Frederick B. Davis, William C. Erwin, Nancy L. Fish, Robert R.
Freeman, Charles J. Kleb, Jr., Conway D. Odom, and William B.
Reeves, Jr., also challenged by the Petitioner, were in fact office cleri-
95 NLRB No. 79.