Nocona Boot Co.

National Labor Relations Board - Board Decisions

Dec 20, 1956

116 N.L.R.B. 1860 (N.L.R.B. 1956)

1860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dispute and thereafter on August 8, when the picketing in question began at the
Manchester premises, these premises had become the place of business of Drury, a
neutral employer. The General Counsel also argues, in the alternative, that Site
and Drury shared a common situs at the Manchester station and that the Respondent's
picketing activities failed to meet the criteria established by the Board in the Moore
Dry Dock case.'
As set forth in the statement of the facts, on July 20, when Site shut down 'its
Manchester station and removed its signs it did not permanently abandon the loca-
tion as a place of business as the Respondent had believed was the case when it
ceased picketing the station. Like other enterprises which in the normal course of
business close for alterations, Site actually intended to resume operations there as soon
as the construction work was completed. Drury's presence at this location thereafter
on August 8-when the Respondent discovered that it had been mistaken in its
belief that the station was permanently abandoned and then resumed picketing-was
merely in furtherance of Site's object to rebuild the station and resume operations.
The Manchester station on August 8 was thus a temporarily suspended place of
Site's business operations which was being made ready to reopen and a potential place
of employment for the Respondent's members. The Manchester station therefore
remained a part of the situs of the primary dispute on August 8. As in the Crump
case,2 where the employer-disputant was also at the time of the picketing not open
for business to the public at the picketed location pending the completion of certain
construction work and picketing of the construction location was permitted, the
Respondent in the instant case was free to picket Site's Manchester location declaring
its dispute with Site in support of its bargaining demands.3 It is therefore found
that by picketing Site's Manchester station beginning August 8, 1955, the Respondent
did not violate Section 8 (b) (4) (A) as alleged. It will accordingly be recom-
mended that the complaint be dismissed.
[Recommendations omitted from publication.]
1 92 NLRB 547.
2 General Teamsters, Chauffeurs and Helpers, Local Union No. 249, et al., 112
NLRB 311.
3 See United Electrical, Radio and Machine Workers of America, at al. (Ryan Con-
struction Corporation), 85 NLRB 417, 418, where in finding picketing of an employer-
disputant's entire premises including a gate provided for the employees of a construction
contractor, Ryan, to be primary picketing, the Board stated, "Concededly, an object of
the picketing was to enlist the aid of Ryan employees, as well as that of employees of
all other [employer-disputant] customers and suppliers. However, Section 8 (b) (4) (A)
was not intended by Congress, as the legislative history makes abundantly clear, to curb
primary picketing. It was intended only to outlaw certain secondary boycotts, whereby,
unions sought to enlarge the economic battleground beyond the premises of the primary
Employer. [Citing cases.] When picketing is wholly at the premises of the employer
with whom the union is engaged in a labor dispute, it cannot be called `secondary' even
though, as is virtually always the case, an object of the picketing is to dissuade all
persons from entering such premises for business reasons."
See, also, International Rice Milling Co., Inc., et al. v. N. L. R. B., 341 U. S. 665, and
Oil Workers International Union, Local Union 3¢6 (CIO) (Pure Oil Company), 84
NLRB 315.
Nocona Boot Company and Mary Jo Sewall , Verda Lowrie, Bud
Cooper, Wade H. Allison. Cases Nos. 16-CA-877, 16-CA-878,
16-CA-880, and 16-CA-881. December 20, 1956
DECISION AND ORDER
On June 29, 1956, Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
116 NLRB No. 273.
NOCONA BOOT COMPANY 1861
spondent had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed, as set
forth in the copy of the Intermediate Report attached hereto. There-
after, the General Counsel filed exceptions to the Intermediate Report
and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and, finding no merit in the General Counsel's exceptions, hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.
[The Board dismissed the complaint.]
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been filed by Mary Jo Sewall , Verda Lowrie, Bud Cooper, and
Wade H. Allison against Nocona Boot Company , herein called the Respondent, the
General Counsel issued complaints in the above -captioned duly consolidated cases,
alleging that the Respondent had engaged in unfair labor practices within the meaning
of the National Labor Relations Act, 61 Stat. 136, herein called the Act. The com-
plaints alleged in substance that the Respondent violated Section 8 (a) (3), by lay-
ing off Mary Jo Sewall , Verda Lowrie, Bud Cooper , and Wade H. Allison on March
2, 1956, because of their union membership and activities ; violated Section 8 (a) (5),
by unilateraliy changing the manner and rate of pay of a number of its employees on
March 9, 1956, without notice to or negotiation with Boot and Shoe Workers Union,
AFL-CIO, herein called the Union, the duly certified bargaining agent of its produc-
tion and maintenance employees ; and violated Section 8 (a) (1) by the foregoing
alleged conduct, and also, independently , by threatening employees on November 9,
1955, to refrain from assisting or maintaining membership in the Union, by interro-
gating an employee on November 28, 1955, as to his attitude toward the Union and
promising him a raise in pay if he made a "good company man ," and by keeping
under surveillance a meeting of employee union members on February 23, 1956.
The Respondent in its answer denied that it engaged in unfair labor practices.
Pursuant to notice , a hearing was held on May 22, 23, and 24, 1956, at Nocona,
Texas, before the duly designated Trial Examiner. The General Counsel, the Re-
spondent , and the Charging Parties were represented at the hearing by counsel and
were afforded full opportunity to examine and cross-examine witnesses , to introduce
evidence bearing on the issues , to argue orally upon the record, and to file briefs and
proposed findings and conclusions . At the opening of the hearing , the Respondent
moved to strike certain allegations from the complaint in Case No. 16-CA-881 on
the ground that, even if true, such allegations did not make out an unfair labor prac-
tice. The motion was denied with leave to renew after the evidence was in. On the
last day of the hearing, while the Respondent was presenting its case, the General
Counsel moved to amend the complaint in Case No. 16-CA-881, by adding the names
of the seven additional employees claimed to have been discriminatorily laid off on
March 2, 1956. The motion was denied on the ground that the motion was untimely
and that it involved a material alteration in the General Counsel's theory of the 8 (a)
(3) allegations , as that theory had been announced at the opening of the hearing and
as it had been ligitated up to that point . A motion by the General Counsel to con-
form the pleadings to the proof as to nonsubstantive matters, made at the close of
the hearing, was granted without objection . Following the close of the hearing,
briefs were filed by the General Counsel and the Respondent on June 19, 1956.
1862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Respondent, a Texas corporation, with its principal office and place of business
at Nocona, Texas, is engaged in the manufacture and sale of boots and shoes. Dur-
ing the 12-month period preceding April 25, 1956, the Respondent sold and shipped
products valued in excess of $100,000 in interstate commerce from its plant at Nocona,
Texas, to points outside that State. The Respondent does not dispute that it is en-
gaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Boot and Shoe Workers Union, AFL-CIO, is a labor organization within the
meaning of the Act, admitting to membership employees of the Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background; the issues
The specific conduct upon which the General Counsel would support the unfair
labor practice aliegations of his complaint must be appraised in the light of the Re-
spondent's general relations with the Union.
Until late 1955, no effort had ever been made to organize the Respondent's em-
ployees. About October 1955, certain employees in the plant, desiring union organ-
ization, requested the aid of the American Federation of Labor in bringing a union
bargaining representative into the plant. The AFL sent down an organizer who met
with a favorable employee response. On October 31, 1955, the AFL regional
director requested recognition, and on the same day, without awaiting a reply to his
request, filed a representation petition with the Board in the name of the Boot and
Shoe Workers Union, an AFL affiliate which had not itself participated in the organi-
zation of the Respondent's employees and had theretofore exhibited no special interest
in that direction.
The Respondent interposed no obstacle to union organization, advising its em-
ployees that they were free to join or to refrain from joining a union. Upon being
apprised by the Board of the representation petition, the Respondent fully cooperated
in having the representation question expeditiously resolved. Within a matter of
days-on November 4, 1955, to be exact-the Respondent executed a consent-election
agreement, signed on behalf of the petitioning Union by the AFL regional director,
providing for an election in a stipulated appropriate unit consisting of all production
and maintenance employees at its Nocona plant, excluding supervisors, foremen,
office clericals, salesmen, watchmen, and guards as defined in the Act. The election
was held on November 9, 1955. It resulted in a clear-cut victory for the Union.
Of approximately 56 eligible voters, 39 voted for representation by the Union, and
17 against. On November 17, 1955, the Union was formally certified as the exclu-
sive representative of the Respondent's employees in the appropriate unit.
The results of the election came apparently as a shock and disappointment to
Miss Enid Justin , the Respondent 's president. When it became evident during the
counting of the ballots that the Union had won the election , Miss Justin momentarily
became hysterical and engaged in an emotional outburst . In the course of her pas-
sion, Miss Justin directed abusive comments at the AFL organizer and expressed her
anger and chagrin toward the employees generally, and particularly toward Wade
Allison, the Union's observer at the election, for having "betrayed" her by supporting
the Union. Some of the remarks made by Miss Justin on that occasion are claimed
by the General Counsel, and denied by the Respondent, to have been coercive
within the meaning of Section 8 (a) (1). The Respondent insists that nothing said
by Miss Justin fell outside the privileged area of Section 8 (c). The facts on this
issue will be more fully covered, and the issue disposed of, in a subsequent subsection
of this report.
Except for the single incident referred to, the record contains no evidence of any
show of hostility directed against the Union by any of the Respondent 's managerial
representatives. On the contrary, it reflects clearly enough that, with the Union
once certified , the Respondent fully acknowledged the Union 's status as exclusive
bargaining representative , and, far from seeking to undermine the Union 's author-
ity and standing , showed its complete willingness to negotiate with the Union in good
faith for a collective -bargaining agreement . Indeed , the record presents the rather
unusual picture of a willing employer pursuing , for a time at least, an apparently
reluctant union for the purpose of arranging a meeting to negotiate a contract.
NOCONA BOOT COMPANY 1863
For a considerable time after its certification the Union made no attempt to
communicate with the Respondent-perhaps because it had not itself had any direct
prior contact with the employees, perhaps because due to geographical difficulties it
was not equipped readily to service a bargaining unit in that area. The first com-
munication requesting a bargaining meeting came from the Respondent on December
19, 1955, more than a month after the certification. On that day, Otis E. Nelson, the
Respondent's attorney, wrote the Union at Boston. Nelson pointed out that the
Respondent had heard nothing from the Union since the certification, stated that
the Respondent did not know what representative of the Union it was to deal with,
and requested that arrangements be made for the Respondent and the Union to meet
and confer in an attempt to negotiate a contract. John J. Mara, the Union's
president, replied under date of December 22, 1955. Mara explained that although
the Union had been informed of what was happening, it was not the Union but the
AFL that had been active in obtaining the certification, and that it had been his
understanding that the AFL organizer would keep in touch with the situation and
ascertain the type of contract in which the employees might be interested. He went
on to say that the Union was forwarding membership application forms and a copy of
the Union's constitution to Wade Allison (who had been the employee leader in the
organizational efforts) and that after the applications were signed and returned, the
Union would endeavor to have one of its representatives meet with the Respondent.
Nelson responded under date of December 28, 1955, declaring his disappointment at
the delay, expressing his preference to deal directly with the Union which was
familiar with the industry rather than indirectly through an AFL representative, and
urging the Union at least to write to the AFL organizer to give him authority to
negotiate a contract on behalf of the Union and to have him arrange for an im-
mediate meeting with the Respondent. On January 4, 1956, the Union wrote
Nelson, stating that its general counsel, John J. Wickham, would be in St. Louis for
several weeks beginning January 9 and while there would contact Nelson for the
purpose of setting up a bargaining meeting.
A first meeting was finally arranged for January 23. On that day Wickham met
with Nelson at his office at Wichita Falls, and, on January 24, with management rep-
resentatives at the Respondent's plant at Nocona. A further meeting was held the
following day, Wickham on this occasion being accompanied by an employee negotiat-
ing committee consisting of employees Wade Allison, Kenneth LaMascus, Jessie
LaMascus, J. P. Morgan, and Gerald Russel. Those were the only meetings actually
held up until at least April, all other dealings between the Respondent and the
Union being conducted by correspondence or long-distance telephone. Substantial
agreement on all contract questions was reached by the negotiators, except on the
issue of a wage raise requested by the Union. On that issue, the Respondent claimed
inability to pay, and in support of its position voluntarily produced and allowed
Wickham to inspect audit reports reflecting its financial position. It is conceded by
the General Counsel, and unquestioned by the Union, that the Respondent in the
conduct of its negotiations with the Union acted in entire good faith.
The meeting of January 24 terminated with the understanding that the Respondent's
officers would take up with their board of directors the Union's request for a wage
increase as soon as one of the directors, who was absent on a cruise, returned to
town. Later, Nelson advised Wickham by letter that the Union's request for a
general wage increase had been rejected. Under date of February 16, 1956, Wickham
wrote Nelson, expressing disappointment over the rejection of the wage increase,
but suggesting that, pending final settlement of the money issues, Nelson prepare and
forward a contract incorporating the other matters that had been discussed at their
last meeting. In the same letter, Wickham advised Nelson that the Union was notify-
ing its local membership at Nocona to take a strike vote, and, further, that the
Union was notifying the Federal Mediation and Conciliation Service of the situation.
On the same day, Wickham wrote Wade Allison advising him that the Respondent
had rejected the Union's demand for an increase, and requesting "that a strike vote
be taken by members of the local union as soon as possible and , upon receipt of the
result of this strike vote, we will notify the Federal Mediation and Conciliation Service
as required by law."
After work on February 23, 1956, a meeting, attended by about 28 of the Re-
spondent's employees, was held at the city park of Nocona to act on the Union's
request for a strike vote. The employees present voted unanimously to authorize a
strike. The complaint alleges, and the Respondent denies, that the Respondent
through its foreman, John Coleman, engaged in surveillance of that meeting. The
conflicting testimony on this issue of surveillance will be considered, and the conflict
resolved, in a succeeding subsection of this report.
1864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At about this time, the Respondent, because of a falling off in orders, became faced
with the necessity of curtailing production. Although the Respondent's top manage-
ment had been considering the question of reducing production for some time, it
decided on definite action along such lines on Saturday, February 25. On that day,
Nelson, who had been earlier consulted on this matter, wrote Wickham, via airmail,
informing him of the Respondent's state of overproduction, and advising him that
the Respondent was planning "to either cut the force, shorten the work week or
close down for a period of time; laying off all of the production workers." Nelson
further informed Wickham that he had an appointment to see Miss Justin the follow-
ing Monday to determine the steps to be taken. He asked Wickham to communicate
with him by telephone at once to discuss the matter, or else to authorize the Re-
spondent to take up the matter with the Union's local negotiating committee. Nelson's
letter was late in arriving. Not having heard from Wickham, Nelson proceeded to
meet with management officials. It was decided to meet the situation by laying off
11 production employees. Nelson later that day telephoned Wickham, who had not
yet received his letter, told Wickham of the economic situation with which the
Respondent was confronted, and advised him that because of it, the Respondent had
decided to lay off 10 or 11 production employees the following Friday. He stated
that, so far as he knew, the Respondent planned to follow department seniority in
effecting the layoff, except for one person. Wickham interposed no objection to the
layoff. He stated that he regretted the necessity of a layoff, but considered that the
determination of whether it should be made was a management prerogative as long
as it was handled on a nondiscriminatory basis.
Under date of February 29, Nelson by letter to Wickham confirmed their tele-
phone conversation of the previous Monday, and added:
If you find, after investigation, that there are any contentions which the. union
desires to make, and which you think would show that we did an injustice to any
individuals, I would appreciate your advising me.
On March 2, the Respondent laid off 11 production employees. Those laid off
were told that the reason for the action was a temporary cutback in production, and
that the Respondent hoped soon to be in a position to restore them to their jobs.
One of them-Mary Jo Sewall-has since been rehired. The Union lodged no
protest with the Respondent as to the method of selection, nor did it seek to take
advantage of the opportunity extended to it by the Respondent to show that an injustice
was done to any of the individuals selected. But, on March 19, 1956, individual
charges were filed with the Board alleging discrimination within the meaning of
the Act.
Of the 11 laid off, 8 or 9 were members of the Union, including the 4 complainants
in this proceeding. Except for the complainants, it is not disputed that strict de-
partmental seniority was followed by the Respondent in making its selections. In
his opening statement, the General Counsel conceded that the layoff was necessitated
by economic factors, but asserted that the four in question would not have been
chosen but for their union membership and activities. With that position the Re-
spondent joins issue. That issue, which was litigated as the central issue in this
proceeding, will be considered at length below.
There is one other major issue in this case. As a result of the layoff, it became
necessary for the Respondent to assign several of its employees to more than one
regular job. Before then it had been the Respondent's practice to pay its employees
on a piece-rate basis when working on their regularly assigned jobs, and to pay
them at hourly rates when temporarily assigned to the jobs they did not regularly
handle. On March 9, the Respondent announced that thereafter those of its em-
ployees, who as a result of the layoff would now be required to perform the jobs of
laid-off employees, as well as their own previously regularly assigned jobs, would
be paid for both on a piece-work basis. The change in practice involved some 9
employees, and adversely affected the earnings of some 4 of them. The change was
admittedly made unilaterally, and without prior notice to or negotiation with the
Union. After the change was made the Union did not request bargaining concerning
it, but on March 21, 1956, Wade Allison filed an amended charge with the Board
alleging that the Respondent violated Section 8 (a) (5) of the Act as a result of the
unilateral action taken. On March 30, 1955, Nelson wrote Wickham that he had
just learned of this alleged unfair labor practice; that the change in practice had
been made by the Respondent's management without realization that it would have
the effect of a unilateral change in wage rates; that the Respondent now realized that
the change involved a matter that should have been negotiated; and that 'the Re-
spondent desired to meet and negotiate with the Union on this subject. On April 2,
1956, the Respondent posted a notice on its bulletin board, in which it announced its
NOCONA BOOT COMPANY 1865
rescission of the unilateral action taken on March 9 and stated that effective that day
the mode of payment theretofore in effect would be restored in force. The General
Counsel, while conceding that the Respondent acted in good faith in its overall
bargaining relations with the Union, contends that the unilateral change in the rate
and manner of pay of a number of employees that was effected on March 9, 1956,
constituted a per se violation of Section 8 (a) (5). The Respondent, on the other
hand, urges that it should be excused from an unfair labor practice finding because
it acted innocently and without any intent to undercut the Union, and because it
rescinded its unilateral action and showed its willingness to negotiate with the Union
on the subject immediately upon learning that its unilateral action was not proper.
This issue will also be resolved below.
B. Alleged interference , restraint, and coercion
1. Alleged threats and warnings
Reference has been made above to Miss Justin's hysterical outburst on November
9, 1955, on the occasion when it appeared from the counting of ballots that the
Union had won the election. Present at that time were Otis Nelson, the Respondent's
attorney, Phil B. Wells, the A. F. L field representative, Marvin Smith, the Board's
field examiner, Wade Allison, the Union's observer, and Miss Johnson, a clerical
employee who had acted as the employer observer. Miss Justin directed the force
of her fury initially against Wells. Using abusive and profane language, she accused
him of lying to her employees to induce them to vote for the Union, stated that if
she were a man she would whip him, and expressed the hope that "when you start
home tonight that some force will wreck your automobile and you will be found
dead in the morning." At one point during her tirade against Wells, she turned to
Allison and said to him in substance, "I am surprised at you, after as much as I have
done for you to betray me by supporting the Union," and then added, "I hope
never to have to lay eyes on you again." While seized with this hysteria, she also
stepped out to the plant floor, and, sobbingly addressing the employees generally,
said, "Kids, we got 17 votes, and now you are going to be represented by a goddamn
union." According to the account of one witness, Eugene Arami, she also said at
that time, "I didn't know so many people hated me. One of these days you will
meet St. Peter at the gate which I hope you will do, and I hope all of you get killed
in a car wreck." i
The complaint alleges that Miss Justin's remarks to Allison about hoping she would
never have to lay eyes on him again, her observation to other employees about wish-
ing to see them killed, and her use in that context of "loud, vile, hysterical and
profane language" constituted coercive conduct within the meaning of Section 8 (a)
(1). The Respondent insists that no threat of reprisal, or force, or promise of benefit
may be found contained in Miss Justin's remarks, and argues that the privilege of
Section 8 (c) applies. Notwithstanding the violence of Miss Justin's outburst, I do
not think that her remarks may fairly be read as more than an expression of deep
disappointment, chagrin, and anger at losing the election. They contain no express
threat of personal retaliation, and it would be necessary to strain to find an implied
one. Not only for that reason, but because this incident stands on the record as
an isolated one, there being no other evidence of threatening statements by man-
'agement representatives, and also because it appears that the Respondent thereafter
accorded full recognition to the Union and negotiated with it in good faith, I reject
the General Counsel's contention that such conduct was independently violative
of Section 8 (a) (1), and shall recommend dismissal of the particular allegations
of the complaint here under consideration.
2. Alleged unlawful interrogation and promise of benefit
The complaint alleges, and the Respondent denies, that on November 29, 1955,
Plant Superintendent Eugene Keller and Foreman Artie Woods "interrogated an
employee as to what he thought about the Union and promised him a raise in pay
if he made a'good company man."'
To support this allegation, the General Counsel relied upon the testimony of
Robbie Whitecotten, who testified substantially as follows: On November 30, 1955,
Whitecotten applied for a job at the Respondent's plant, speaking first to Wood and
1 Miss Justin did not 'deny making the statements attributed to her by the General Counsel's
witnesses Joe Justin, the plant's general manager, testified he did not hear Miss Justin
tell the employees that she hoped they got killed in a car wreck, but his testimony reflects
that she did at least imply in her remarks that God would punish them for the wrong
they had done her.
1866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then to Keller. He had once before worked for the Respondent, but had later left to
go into the military service. During his interview with Wood, Wood told him that
since he had last worked in the plant a union had come in, and that Wood did not
know what effect the Union would have on the plant. At the same time, Wood
assured him that he could do as he pleased about the Union, join or not join. Keller
asked Whitecotteo what he thought about the Union. Whitecotten said he had no
opinion, that he "would do what would be to his best advantage." Nothing more
was said about the Union. Whitecotten was employed, and remained in the Re-
spondent's employ until he was laid off on March 2, 1956. While discussing the
wages he was to receive, Keller told him that he could go to work at his old rate,
but "if [he] made a company man that probably [he] would do a little better than
that."
Keller and Wood denied that they said anything to Whitecotten about giving him a
raise in wages if he made a good company man. They testified that the subject of
additional earnings was mentioned only in this way: In discussing Whitecotten's
wages, they told him that since he had last worked in the plant, a piecework system
had been installed, explained to him that he would be placed on that basis after
he learned the routine, and expressed the view that he would be able to earn more
on that basis than on an hourly rate. As for the asserted interrogation, Wood denied
that any inquiry had been directed to Whitecotten with regard to his attitude toward
the Union. He admitted, however, that the Union had come up in the discussion.
According to his version, he simply told Whitecotten that if Whitecotten wanted
information about the Union he could obtain it from employees who belonged to it.
The account of the Respondent's witnesses as to what they said to Whitecotten
concerning his chance of increased earnings seems to me plausible. On all the
evidence, I believe that Whitecotten's recollection or interpretation of what the
supervisors told him was faulty, and am unpersuaded that the Respondent's super-
visors promised Whitecotten a raise in pay if he made a "good company man"-using
the quoted phrase in the sense, suggested by the complaint, of being an antiunion
man. As for the alleged unlawful interrogation, I believe that a general question,
such as Whitecotten testified to, might have been directed to him at some point in
the conversation. But bearing in mind the isolated character of this incident, the
contemporaneous assurance to Whitecotten that he was free to join the Union or
not, as he chose, and the fact that he was hired even though he gave no assurance
that he would not join, I find no substantial basis upon which to predicate an unfair
labor practice finding. Accordingly, I shall recommend dismissal of this allegation
of the complaint.
3. Alleged surveillance
As noted above, a strike vote meeting, attended by approximately 28 employees,
was held at the Nocona city park on February 23, 1956. At the meeting, Mary Jo
Sewall read the letter from Wickham to Allison requesting strike authorization,
and such authorization was unanimously voted. The complaint alleges, and the
Respondent denies, that the Respondent, through Foreman John Coleman, kept the
meeting under surveillance.
The meeting was held at a picnic area of the park, about 250 feet distant from a
public road that is entered from the highway and then leads to another road that
goes back to the highway at another point. Employee Ella B. Ritchie testified that
while Mary Jo Sewall was reading Wickham's letter, someone at the meeting re-
marked, "It looks like we are going to have a visitor"; that she then asked. "Who
is it?"; and that "they" said, "Johnny Coleman." According to Ritchie, the "visitor"
remark caused her to look toward the road where she noticed Foreman Coleman
driving by at a normal rate of speed in his two-tone green Chevrolet car, accom-
panied by a female passenger whom she could not identify. Coleman, further ac-
cording to Ritchie, was then looking in the direction of the picnic tables. She testi-
fied that she saw him drive by in one direction, and not return at any time.
Coleman denied that he drove through the park at the time of the meeting.
Ritchie did not identify the person who she says made the remark about a "visitor."
Nor did she identify the "they" who, according to her account, told her in response
to her inquiry that the "visitor" was Coleman. Though Ritchie testified with ap-
parent conviction that she observed Coleman driving by, her testimony of what
she observed was not corroborated by any of the other 27 employees present at the
meeting, all of whom apparently had the same opportunity to observe. The Gen-
eral Counsel called in all some 12 employee witnesses. Of these, two (Mary Jo
Sewall and Wade Allison) remembered hearing something said about a visitor, but
both conceded that they themselves did not see Coleman. A third witness, Eugene
Arami, testified that he observed a two-tone green Chevrolet car driving by, but he
was unable to identify its driver as Coleman. A fourth, Verda Lowrie, testified that
NOCONA BOOT COMPANY 1867
-she did not notice Coleman at the park, and made no mention in her testimony of
,the "visitor" remark. A fifth, Bud Cooper, testified that he neither heard a remark
about a visitor nor noticed Coleman driving by while he was present at the park
meeting. None of the other witnesses made mention in their testimony of Cole-
man's claimed presence in the park. In the absence of corroboration in these cir-
cumstances, I am inclined toward the view that Ritchie may have been mistaken
in her impression of what she saw. I find no sufficient basis for discrediting Cole-
man's categorical denial. Consequently, I conclude that the surveillance allegation
has not been factually sustained, and shall recommend its dismissal.
C. The alleged discriminatory layoffs
On March 2, 1956, the Respondent laid off 11 production employees. The com-
plaints allege discrimination with respect to four of them-Wade H. Allison, Bud
Cooper, Verda Lowrie, and Mary Jo Sewall. The General Counsel in his opening
statement at the hearing made clear that he was not contesting the economic neces-
sity of a layof! on March 2, 1956, but was simply asserting that in making its selec-
tions of those to be laid off the Respondent selected the four complainants, rather
than others, because of their union membership and activities. It was on the basis
of this narrow issue that the case was litigated, and the materiality or immateriality
,of proffered evidence appraised. Midway through the Respondent's case, the Gen-
eral Counsel moved to amend one of the consolidated complaints so as to add to
the list of alleged victims of discrimination the names of the seven remaining em-
ployees who were included in the layoff of March 2. The General Counsel at that
time announced that he was offering a new theory, in addition to his theory of
discriminatory selection , that regardless of economic justification, no layoff at all
would have occurred at that particular time but for the strike vote which preceded
iit, and that the layoff of all employees affected by it was itself therefore discrim-
inatory. The motion to amend was denied on the ground that the added theory rep-
resented a radical departure from the General Counsel's originally announced theory
which framed the issue litigated up to that point, that the General Counsel was
unable to provide sufficient justification for his failure earlier to advance that
theory, putting the Respondent on due notice of it, and that the proposed amend-
ment came too late. Now in his brief, the General Counsel again urges, as one
'theory of his case, that the layoff itself, coming at the particular time it did and in
relation to the strike vote which preceded it, was unlawfully motivated, and that a
finding of discrimination against the four complainants is supportable on that basis
alone, whether or not discrimination in selection is found. By this argument, as
I view it, the General Counsel is seeking to bring in by the back door an issue that
was not only stipulated out of the case at the opening of the hearing, but was later
foreclosed from litigation by the denial of the proposed amendment. To consider
it at this time would be prejudicial to the Respondent. For the reasons indicated,
the legality of the layoff itself will therefore be assumed in this report, and the only
issue that will be considered here is whether or not the Respondent in choosing
the four complainants as among those to be laid off was guided by unlawful consid-
erations within the meaning of the Act. That is not to say, however, that the rela-
tionship in point of timing between the layoff and other events must be ignored
altogether. To the extent that such a relationship may be viewed as having a
bearing on shaping the Respondent's decision as to whom to lay off, it remains, of
course, a relevant consideration.
It has already been observed that the layoff of March 2 affected adversely 11
of the Respondent's 47 production employees. Of those laid off, 8 or 9 were mem-
bers of the Union, and the remainder were not. Bearing in mind that in the election
held in November 1955, 39 of 56 eligible voters (approximately 68 percent) voted
for the Union, the ratio of union to nonunion men selected for layoff does not appear
to be so disproportionate as itself to be a significant factor in assessing the possi-
bility of unlawful motivation in selection.
Turning to the prominence in the Union of those of its members who were selected
for layoff, the record does not contain detailed evidence concerning the activities
of the 4 or 5 laid-off union members who are not complainants. There is enough
in the record, however, to indicate that none of such others was notably promi-
nent. As for the four complainants, the record shows the following: Wade Alli-
son's role in the Union was outstanding. He was the leader and the most active
in solicitation activities before the election, acted as chairman of the organizing
union group, served as the Union's observer at the election, and thereafter became
a member of the Union's negotiating committee. Bud Cooper was not active in
organizing work and served on no union committee. There is evidence that on or
about February 23, he was among a group of employees who called on Union
1868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Attorney Wickham at Wichita Falls, but no evidence or claim that the Respondent
was made aware of this. Verda Lowrie, it appears, was active in union solicitation
activities prior to the election, her activity, perhaps, being second only to that of
Allison. She also acted as secretary of the local organizing group. On the occa-
sion of Wickham's first visit to the plant, Lowrie appeared with the local negotiating
committee in the Respondent's outer office, but the negotiating committee was sent
home by Wickham that day without actually meeting with the Respondent's officials.
The Respondent's officials denied that they were aware of Lowrie's presence in
the outer office that day, and there is no clear proof to the contrary. On the occa-
sion of the actual meeting of the five-man negotiating committee with the Respondent
on the following day, Lowrie did not appear as a member of the committee. Mary
Jo Sewall's role in the Union was mainly a passive one. It appears, however, that
at the strike vote meeting she was asked-for some reason that is not altogether
clear-and did, read the letter from Wickham to Allison, requesting that a strike
vote be taken. The Respondent's managerial and supervisory officials denied that
they were aware of this. The General Counsel would predicate a finding of such
knowledge on the basis of Coleman's alleged surveillance of that meeting. But, as
found above, the allegation of surveillance has not been proved.
The Respondent denied knowledge of the union membership or activities of any
of the complainants, other than Allison. Except for testimony relating to Lowrie's
presence in the outer office with the negotiating committee on the day the com-
mittee was sent home, and the rejected testimony relating to surveillance, the
General Counsel offered no direct testimony that might tend to point unequivocally
to such knowledge. However, there is testimony from the Respondent's own wit-
nesses reflecting that the Respondent's managerial representatives entertained a
fairly good idea, based, they say, on surmise, of which of their employees were
or were not union supporters-though not of the extent of their union activities.
This testimony is sufficient to warrant the conclusion that at the time of the layoff
the Respondent's managerial representatives at least suspected, though they might
not have actually known, that Cooper, Lowrie, and Sewall, as well as Allison,
were union adherents.
In that connection, it is also noteworthy, however, that the Respondent at the
time of the layoff had actual knowledge of the prominence in union affairs of a
number of employees who were not affected by the layoff. Included among such
employees were Kenneth LaMascus, Jessie LaMascus, J. P. Morgan, and Gerald
Russel, all of whom, along with Allison, served on the negotiating committee that
met with the Respondent shortly before the layoff. As will later more fully appear,
those just mentioned were for the most part outranked in terms of seniority by
others who were selected for layoff. I regard this as particularly significant in
appraising the validity of the General Counsel's contention that the Respondent in
making its layoff selections was guided by a determination to "get" those most
active in the Union. If that were so, it seems illogical that the Respondent would
have passed over members of the negotiating committee, whose leadership in union
affairs it could well presume, in order to get senior employees, such as Sewall and
Conner, whose union activities apne?r to have been almost negligible
The selections of those to be laid off were made at a meeting held on Feb-
ruary 27, attended by the Respondent's supervisors and management officials, as
well as by the Respondent's attorney. On the occasion of past layoffs, the Re-
spondent had followed the policy of laying off employees according to their depart-
mental seniority wherever practicable, taking into consideration and giving due
weight, however, to other factors, particularly the factor of retaining a balanced
staff capable of efficiently performing all necessary work operations with the
reduced work force. That same policy, according to the Respondent's witnesses,
was followed on the occasion of the layoff here in question . The departmental
supervisors who made the initial recommendations were instructed, according to
their testimony, that considerations of union membership and the like were not to
be taken into account.
The Respondent has four major departments, each under the supervision of a
separate foreman-the cutting department, the fitting department, the bottoming
department, and the finishing department. Two employees were laid off in the
cutting department, 4 in the fitting department (the Respondent's largest), 3 in the
bottoming department (the next largest), and 2 in the finishing department. The
Respondent's records show that those laid off in the cutting and finishing depart-
ments were the youngest in point of service in their respective departments. Though
at least two of them were members of the Union, no discrimination in their
selection is claimed.
NOCONA BOOT COMPANY 1869
The bottoming department contained 11 employees, whose names and hiring dates,
as well as a reference to whether they were laid off, are tabulated below:
William Stouder---------------------------------- October 1934.
James Cooper___________________________________ December 14, 1944.
Robert Hill -------------------------------------- February 5, 1945.
Kenneth Rice____________________________________ July 12, 1945.
Floyd Payne ------------------------------------- September 10, 1945.
Bud Cooper_____________________________________ October 16, 1947. Laid off.
Wade Allison ------------------------------------ February 8, 1951. Laid off.
Gerald Russel ------------------------------------ February 1952.
Roy Hillard_____________________________________ May 1952.
James Stout_____________________________________ October 1, 1954. Laid off.
Loyd Winningham -------------------------------- December 7, 1954.
Discrimination in selection is claimed as to Allison and Cooper, but not as to
Stout. The record reflects that of those with hiring dates later than Cooper and
Allison, all but Winningham were members of the Union, and Russel, additionally,
was on the negotiating committee.
With regard to Allison, the Respondent's witnesses testified that Allison was
selected for layoff because he was 1 of 2.hand lasters in the department-the other
one being Robert Hill who had some 6-years seniority over him-and because, as
a result of the cutback in production, it required the services of only 1 regular hand
Laster. This they supplemented in the course of the hearing by pointing out that
others in the bottoming department with later hiring dates were retained in preference
over Allison because they were able to perform certain necessary operations for
which Allison was not fully qualified. Credible and substantially uncontradicted
evidence supports the reasons assigned by the Respondent. Thus, it appears that
the cutback contemplated a reduction in production from about 144 pair of boots
per day to about 100, and that the latter figure did not require the services of 2
regular lasters. (Actually, the record shows that since the layoff, the Respondent
has produced about 108 boots a day. Of.that number, Hill, the senior employee
retained, has been able himself to last all but 15 of them, the surplus being taken
care by Kenneth Rice who also had seniority over Allison.) Thus, too, it appears
convincingly that Allison was not qualified to perform fully the work being done
by junior employees who were retained. As Allison himself conceded on cross-
examination, Russel (a member of the Union and on its negotiating committee)
performed a skilled edge trimming operation on which Allison had no experience.
While Allison on occasions had helped out Hillard (also a union member) on Hillard's
insole operations, Allison's own testimony shows that he had never performed all
the operations on which Hillard was skilled, his experience having been limited
to only 6 of the 8 isolating machine operations on which Hillard worked. Allison
also conceded, while testifying, that he had never performed any of the work done
by Winningham who was the specialist at the Respondent's plant in the making
of hand box toes. In an effort to prove that there was unlawful discrimination by
the Respondent's layoff of Allison, a known union leader senior in plant service,
and by its simultaneous retention of Winningham, who did not belong to the Union,
the General Counsel sought particularly to show that it would have been possible
to have had Winningham's work performed by others in the plant if he had been
laid off and Allison retained in his stead. But in this the General Counsel did not
succeed. Even on the basis of the testimony of the General Counsel's own witnesses,
it is clear that although there were others in the plant who could perform some
of Winningham's operations, there was no one, aside from the foreman, who possessed
the necessary skill and experience to perform all of them.
Other considerations urged by the General Counsel to discredit the Respondent's
defense fail to convince. Thus, the General Counsel stresses that on the occasion
of prior reductions in force, Allison was among those retained. But this was un-
accompanied by any showing that conditions were otherwise the same at the times
of the prior layoffs: more specifically, no showing was made that the work in lasting
was caught up as well then as the record shows it was in 1956. The General Counsel
stresses also what he claims to be inconsistencies in the Respondent's defense. He
points especially to the fact that when Miss Justin testified as an adverse witness
at the beginning of the hearing, she asserted that the only reason Allison was selected
for layoff was that he had less seniority than the other hand ]aster who was retained,
but that later the Respondent's witnesses added to that reason the additional one,
that it was necessary to retain in the bottoming department other employees with
less seniority because of the special skills they possessed I do not find anything
1870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessarily inconsistent between the two reasons assigned . The added explanation
given was advanced to meet the General Counsel's own contention that the Respondent
could have, or should have, retained both lasters and laid off instead a junior em-
ployee in the bottoming department . In meeting that contention , the Respondent
did not repudiate the reason earlier stated. Moreover, even if the added reason be-
set aside as one not specifically discussed in reaching the decision to select Allison,
it would still leave the reason first assigned by Miss Justin, itself a legitimate one.
The General Counsel also urges that it might have been possible for the Respondent,
had it really wanted to retain Allison, to redistribute among other employees work
of retained junior employees with skills Allison did not possess, in such a fashion+
as to enable the Respondent efficiently to handle all its operations-saving perhaps
some of Winningham's peculiarly skilled work which occupied a small percentage
of his working time, and which the General Counsel suggests might have been
subcontracted out, as at times it had been in the past. But the question here is
not whether the Respondent fairly applied seniority considerations in effecting its
reduction of force; it is whether the Respondent unlawfully engaged in discrimina-
tion within the meaning of the Act. It is not for the Board to substitute its, judgment
for that of an employer on how his business operations should be handled, and
no inference of discrimination may be drawn from the fact alone that the Respond-
ent could have, but did not , save the job of senior employees by adopting some
other layoff plan. Finally, the General Counsel urges that discrimination in Alli-
son's selection is supported by an "admission or near admission" by Foreman Harrell
that Allison was laid off because of the part he played in bringing the Union in .2
But I view the testimony upon which the General Counsel relies as too equivocal
to substantiate a finding that Harrell in fact made any such admission.
With regard to Cooper, the record evidence is scant, little emphasis having been
placed on his particular ease either by the General Counsel or the Respondent. As
noted above, Cooper's union activity was inconspicuous, although he appears to
have been included among those who management surmised were members of the
Union . Cooper prior to his layoff operated a heel seat machine , a separating ma-
chine, and a leveling machine. The record does not reveal whether or not other
employees in the bottoming department also performed those operations. Nor does
it show who was assigned to take over Cooper's functions after the layoff. The
General Counsel offered no evidence that Cooper was competent to perform the
work being done by employees in the bottoming department with later hiring dates.
On the other hand, the Respondent offered credited testimony showing that Hillard
was the only employee with full experience in the insoling operations to which he
was regularly assigned , that Russel alone performed highly skilled work in edge
trimming with which Cooper had no experience, and that Winningham likewise per-
formed certain work, particularly on box toes, that no one else in the department,
including Cooper, was able to do.
To support a finding of discriminatory selection in Cooper's case, the General
Counsel relies principally upon three considerations-that Cooper is shown to have
been at least suspected by management officials of being a member of the Union;
that he was retained on the occasion of layoffs in prior years; and that the Respondent,
although purporting to follow generally seniority considerations in effecting the lay-
off, had nevertheless retained in the bottoming department employees who were
junior in service. In the particular circumstances of this case, I do not view any of
these considerations , nor all together , as substantially supporting an inference of
discrimination. Though Cooper was suspected of being a union member, so, too,
were Hillard and Russel, 2 of the 3 junior employees retained, and the Respondent
had every reason to believe that Russel , who was on the negotiating committee, was
more important in the Union than was Cooper. For reasons indicated in the discus-
sion of Allison's case, little can be made of the fact that Cooper was not laid off on
prior occasions in the absence of a showing that conditions then were the same. Nor
is it reasonably to be concluded that the Respondent, absent discriminatory motive,
would have viewed Cooper as being in seniority competition with the junior em-
ployees retained, in view of the clear showing that those retained performed certain
specialized functions that Cooper was unable to do.
2 Allison testified that after he was informed that he was being laid off for lack of
work, he had the following conversation with Foreman Harrell:
I said, "There is no doubt in my mind why I am being laid off. I was rather pushed
into something and left holding the sack." He said, "That's happened before with
some people starting something and left you holding the sack." "They have no idea
who started this but it wasn't me." He said, "I know how you feel." That Is about
the conversation we had.
NOCONA BOOT COMPANY 1871
The fitting department, under the supervision of Foreman John Coleman, contained
23 employees . The names of the last 13 of them in order of their last hiring dates,
as shown on the Respondent's records, together with references as to whether they
were included in the layoff, and whether or not they were members of the Union,
are set out below:
Verda Lowrie----------------------------------------------------- 12- 9-493 Laid off----- Union
Ella Ritchie------------------------------------------------------- 2-24-50 -------------- Do.
Kenneth LaMascus---------------------------------------------- 12-15-50 -------------- Do.
Delbert Grottie--------------------------------------------------- 1- 1-51 -------------- Do
Romie Noel------------------------------------------------------ 2-14-51 -------------- Do.
Mary Jo Sewall--------------------------------------------------- 7-31-52 Laid off----- Do.
J. P. Morgan ----------------------------------------------------- 7- 2-53 -------------- Do.
Bertha Giles------------------------------------------------------ 9-27-54 -------------- Nonunion.
Mary Payne------------------------------------------------------ 1-18-55 -------------- Do.
Jessie LaMascus-------------------------------------------------- 2-12-55 -------------- Union.
Vera Jackson ----------------------------------------------------- 4-24-55 -------------- Nonunion.
Bobby Ray Eldred----------------------------------------------- 6- 1-55 Laid off----- Do.
Zelda Sanders ----------------------------------------------------- 9-26-55 -----do------- Union.
Although all employees under Coleman's supervision are here grouped together,
the Respondent at the hearing took the position, disputed by the General Counsel,
that three of them-Romie Noel, Mary Payne, and Vera Jackson-functionally com-
prise a separate department or subdepartment, namely, the shoe and clipper fitting
department as distinguished from the boot fitting department. Of this more later.
Of the four shown above to have been laid off, the General Counsel claims dis-
crimination in the selection of Lowrie and Sewall only.
With regard to Lowrie , the Respondent 's reason for her selection , as given at the
hearing, was substantially as follows: Lowrie's regular job before the layoff was to
operate the fitting table. Lowrie was skilled at that job which involved hand work.
But, because of certain physical defects in her eyesight, she was not considered
adaptable for machine work, the kind of work performed by the bulk of the em-
ployees in the fitting department, and in the past had not done any but the simplest
machine work. There was not enough work at the fitting table to require her full-
time services on that job. As part of the cutback, it was necessary to double up her
job at the fitting table with that of another job which also did not require the full-time
services of a regular employee . In the final analysis , the choice came down to one
between her and Jessie LaMascus whose regular job was that of a skiver .4 It was
finally decided to lay her off, rather than LaMascus, because LaMascus was con-
sidered qualified to handle both their jobs, and she was not.
The evidence as a whole with regard to Lowrie appears consistent with the Re-
spondent's position. Thus, Lowrie's own testimony discloses that prior to the lay-
off she did not have a full day's work at her regular job at the fitting table; indeed,
some of her testimony indicates that she did not have more than a half day's work
at that job. It is undisputed that after the layoff LaMascus, who had had prior
experience at the fitting table, not only performed his former skiving work , but also
took over the bulk of Lowrie's former duties. The Respondent adduced evidence
to show that other employees in the department junior in point of service to Lowrie
were all competent and experienced in the performance of specific job functions that
Lowrie was not qualified to take over. The General Counsel made no attempt to
dispute the veracity of such evidence, except as it related to the skiving work per-
formed by LaMascus. As to this, the General Counsel introduced credible testimony
showing that for a period of a year or so, shortly after Lowrie was first employed
by the Respondent in 1945, Lowrie had assisted the then regular skiver at his work,
averaging about 2 hours a day at that job, and as a result had learned to perform the
operations of that job. Lowrie admittedly, however, had done no skiving for ap-
proximately 10 years before the layoff, and since she was never the regular skiver, it is
not unreasonable to believe that the Respondent's supervisors may have honestly
failed to recall it at the time of the layoff. Lowrie conceded that she did not call
3 The General Counsel contends that Lowrie's actual seniority date was June 3, 1945, the
date she was first hired She was later laid off and recalled on the date above set forth.
The record shows three employees with intervening seniority dates, all of whom were union
members-Jack Henley, Clint Marmaduke, and Dewey Sewall.
* As noted above, Jessie LaMascus was known to the Respondent to be a member of
the Union 's negotiating committee.
1872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her prior experience to the attention of the Respondent at that time. Besides, as
appears from Lowrie's own testimony, her long absence from such work would have
required a retraining period.5 The Respondent's choice of LaMascus over Lowrie
for retention purposes cannot thus be viewed as unreasonable.
To support his position that it was not necessary for the Respondent to lay off
Lowrie, the General Counsel also introduced evidence that the Respondent had in its
employ two other employees, Ollie Penal and Rosa Redman, who had extensive prior
experience in skiving and who could have been assigned to such work if LaMascus
had not been retained. But the Respondent countered that successfully by showing
that Penal and Redman were needed for the highly skilled stitching operations they
were then performing. In any event, it may be observed that even if the General
Counsel proved that the Respondent might have kept Lowrie over LaMascus, it would
scarcely support a finding of discrimination in the statutory sense, for LaMascus was
at least as equally important in the Union as Lowrie.
Other considerations urged by the General Counsel in an effort to substantiate a
finding of discrimination are similar to those urged in connection with the cases of
the complainants previously considered. Thus, the General Counsel contends that
even though Lowrie was unable to perform the work of employees junior to her in
service, there were other employees in the plant capable of performing such work,
and that the Respondent, if it had wanted to, could have saved her her job by effect-
ing a redistribution of job assignments. He also points to the fact that on the occa-
sion of prior layoffs since 1949, Lowrie had been retained. But for reasons already
indicated in the discussion of the cases of the other complainants, these considera-
tions are not considered sufficient substantially to support a finding that the Respond-
ent's selection was impelled by an unlawful motive rather than by the exercise of
normal business judgment.
With regard to Sewall, the Respondent's explanations for her layoff were not
consistent. Testifying as an adverse witness at the opening of the hearing, Miss
Justin stated that although she was not sure, because the supervisors were the ones
who made the layoff decisions, it was her understanding that seniority considerations
alone entered into the determination to select Sewall, and that Sewall's inability to do
skilled work was not a controlling factor. Miss Justin admitted that prior to the
hearing the Respondent had taken the position with Board investigators that Sewall
had lost her seniority in September 1955 when she took unauthorized leave for a
personal trip to South Carolina, thus placing her upon her return at the foot of the
seniority list where she remained at the time of the layoff
However, Superintendent Eugene Keller and Foreman John Coleman, in explain-
ing the selection of Sewall, made no contention that strict seniority was followed
in her case. Their account as to the considerations leading to her selection was
substantially as follows: Sewall prior to her layoff worked as a machine stitcher
on boots. There were four other employees in the department regularly assigned
to comparable stitching work, all of whom had earlier hiring dates, with one excep-
tion-Bertha Giles. Apart from those 4 there were 2 other machine stitchers in
the department supervised by Coleman-Mary Payne and Vera Jackson. Though
both Payne and Jackson entered the Respondent's employ after Sewall, manage-
ment did not consider them as being in Sewall's area of competition for reduction
in force purposes at the time of the layoff. That was because Jackson and Payne,
along with a senior employee, Romie Noel, were regarded as falling in a separate
department or subdepartment, one specializing in the fitting of shoes and clippers, as
distinguished from boots.6 No layoff was necessary among those working on
shoes and clippers, because, unlike the situation in boots, the volume of work in
that branch of the Respondent's business was then growing rather than diminishing.
Most of the machines used in stitching shoes and clippers were mechanically
different in their operation from those used on boots. Both Jackson and Payne
had been specially trained to work on shoes and clippers. Sewall, on the other
hand, had never worked on them, and it would have taken a training period of
perhaps several months before she could attain the competency already achieved
e Lowrie testified, "Of course I would have to learn all over again if I started again.
Anybody off ten years ain't going to pick up and run off with it like a guy doing it
every day."
9 Romie Noel, testifying for the General Counsel, stated that she had never heard of
such a division of departments Significantly, when the Respondent earlier in the hear-
ing stipulated the names and hiring dates of employees in the fitting department, it
drew no distinction between boots, on the one hand, and shoes and clippers, on the other.
NOCONA BOOT COMPANY 1873
by Jackson and Payne.7 Nor was Sewall qualified to perform the work of J. P.
Morgan and Jessie LaMascus, both of whom performed skilled operations they
alone were able to do-the former on a Campbell machine, the latter on skiving-
and with which Sewall had no familiarity. For the reasons stated (still according
to the account of Keller and Coleman) the decision boiled down to a choice
between Sewall and Giles. Although Giles' hiring date was later, it was decided to
retain her rather than Sewall, because Giles (like the other machine stitchers retained
to work on boots) was able to stitch some 18 or 20 fancy patterns that Sewall could
not do,8 and because it was deemed important with a reduced crew of stitchers to
retain those best qualified.
Though the account of Keller and Coleman appears to supply a plausible explana-
tion as to why the Respondent might have decided to lay- off Sewall rather than
some other, there is other record testimony reflecting that the reasons they gave
were more in the nature of a rationalization than an exposition of the actual delib-
erations that led them to their selection. The inconsistency between the account
of Keller and Coleman, on the one hand, and Miss Justin, on the other, has already
been indicated. More important on that point, however, is the testimony of Joe
Justin, the Respondent's general manager, and the last principal witness called by
the Respondent. On cross-examination, Justin testified that at the management
meeting at which the layoff selections were made, the only factor considered in
Sewall's case was her seniority. It was not until after Sewall filed her unfair labor
practice charge-Joe Justin conceded-that the Respondent "began to seek out
other information and determined that other than the fact she had less seniority
she could not do all the operations because she was not experienced." But up to
that point when it was felt "necessary to show other things," testified Joe Justin,
"we didn't go into detail on Mary Jo because it was assumed she had less seniority
because of the incident in September."
Joe Justin elaborated on "the incident in September." According to his version,
Sewall had come to him in September 1955, stated that her daughter in South
Carolina was about to have a baby, and asked his permission for leave to visit
her, explaining that she had been unable to reach Foreman Coleman. Justin,
according to his testimony, told her at the time that the Respondent was at its
period of peak production and she was needed. When, further according to Justin,
Sewall insisted that she would have to go anyway, he told her that he could not
assure her that her job would still be open on her return, but that it probably
would be if the Respondent was unable to hire an experienced stitcher in the
meantime, and she should check with Coleman when she came back. Justin
testified that although Sewall's personnel record card did not reflect a break in
service and a new rehiring dating from Sewall's return from South Carolina, he
recalled this incident when the question of a choice between her and Bertha Giles
came up at the management meeting at which the layoff selections were made,
and that Coleman agreed with him that Sewall must be considered as having quit
when she left for South Carolina, even though she was put back to work upon her
return. Under the circumstances, it was concluded, according to Joe Justin, that
Sewall's seniority ran from the date of her return, and this factor was regarded as
dispositive in.reaching the decision to select her for layoff.
Sewall's version of what occurred in September differs from that of Joe Justin
in one material respect. It was her testimony that Justin, although telling her she
could ill be spared at the time, nevertheless gave his unrestricted approval of a
leave of absence, without making any suggestion to her that she might be replaced.
The only time any such suggestion was made to her, Sewall testified, was about
Christmas 1955, when she asked Coleman for leave in order to visit a sick sister at
Albuquerque. Coleman then told her that there were some rush orders to get out,
and warned her that if she left she might not have a job when she returned.
Because of Coleman's warning, Sewall on that occasion decided to remain at work,
foregoing her visit to Albuquerque.
,On this aspect of the case, to the extent there is a conflict between the versions of
Joe Justin and Sewall, I credit Sewall. Sewall impressed me as a careful and
7 Although not contesting that some training period would be necessary, the General
Counsel's position appears to be that the Respondent's estimate of that period was greatly
exaggerated. Noel testified that a person trained like Sewall in the stitching of boots
could learn the stitching work on shoes and clippers in about 2 weeks
8 There were about 100 patterns in all. Although Sewall testified that she did the
same kind of work as Giles, she conceded when called as a rebuttal witness that Giles
might have stitched certain patterns,that she did not
405448=57--vo1 lle-119
1874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
truthful witness, and her recollection of the incident appeared to me clearer than
that of Joe Justin. Moreover, I think it highly improbable, if in fact the Respondent
considered Sewall's leaving a quitting, and her return a rehire, that the Respondent
would have made no notation of it on Sewall's personnel record.
Under all the circumstances, the Respondent's conflicting accounts as to what led
it to choose Sewall for layoff-unlike the solid explanations it gave for the layoff
of the other complainants-leave me less than persuaded. But that factor alone is
not dispositive of the issue of discrimination. This is not a case involving a dispro-
portionate selection of union men for layoff, where the percentage evidence may
cast a duty on the employer to come forward with an adequate explanation if he
would avoid an inference of discrimination .9 The burden here was not on the
Respondent to show the absence of unlawfully discriminatory motivation in the
selection of Sewall for layoff, but on the General Counsel to show its presence.
The inadequacy of the Respondent's explanation may be a relevant element in the
General Counsel's case, but alone it does not make out a full case, requiring, in
addition, independent evidence substantially pointing to the conclusion that the real
explanation must have been an unlawful one. In the case of Sewall, there are, it is
true, certain suspicious circumstances that give me pause, particularly the fact that
Giles, a nonunion employee performing similar work, was retained over her. But
on all the evidence, I am not quite persuaded that the General Counsel has met his
burden of establishing that such circumstances, assessed against countervailing con-
siderations, mount to the stature of a substantial inference, any more than he has
done so in the cases of the other complainants-and this for the reasons to be indi-
cated below.
The theory of the General Counsel' s case is that the Respondent seized on the
opportunity afforded it by the economic layoff to retaliate against particular employees
who had been active in the Union and in its concerted activities " in an attempt to
break the spirit of the Union, and weaken the Union in its position as the bargaining
representative of the employees." But if that were so, little reason appears why the
Respondent should have singled out Sewall for reprisal. Sewall had played no
part in bringing the Union into the plant, except for joining it. She occupied no
position of leadership or importance in the Union. Her only departure from
passive membership was to read the letter from Wickham to Allison at the strike
vote meeting. But the Respondent's witnesses' denial of knowledge of this must
be accepted as true, for there is no proof from which a contrary inference may fairly
be drawn, the testimony as to surveillance, upon which the General Counsel mainly
relies to establish such knowledge, having been rejected, as found above. Though
there is some testimony reflecting that Joe Justin may have believed, without actu-
ally knowing, that Sewall had voted for the Union, the record does not support
a finding that he had any reason to believe she did more. If, in truth, the Respond-
ent's purpose was to break the Union's spirit and weaken its position as bargaining
agent, it appears unlikely that the Respondent would have directed its reprisal action
against Sewall, an innocuous member, while leaving unaffected, except for Allison,
all members of the Union's negotiating committee, even though they were junior in
service to some of the employees let go and hence more vulnerable to layoff. Nor
do I think the extrinsic circumstances point to the discriminatory predisposition the
General Counsel would attribute to the Respondent. The Respondent has not been
found to have engaged in any independent acts of interference with employee self-
organizational rights. True, Miss Justin's emotional outburst on the day of the
election discloses that she at least would have been far happier without a union
in the plant. But this isolated expression of hostility occurred some 4 months
before the layoff. In the meantime the Respondent, by its affirmative conduct, had
disclosed its complete acceptance of its statutory obligation to honor the status of
the certified bargaining agent and to deal with it in good faith;-indeed the Respond-
ent's early pursuit of the Union while the Union was tardy in carrying out its own
bargaining responsibilities is quite irreconcilable with the theory of destruction the
General Counsel advances.
There are, moreover, other facts in this case, not yet alluded to, that tend to
weaken, although they do not alone negate, the General Counsel's claim that the
Respondent was bent upon reprisal action against Sewall. Not long after Sewall
was laid off, she found employment with another company in Nocona. On or
about April 25, 1956, a vacancy for which Sewall was considered qualified occurred
in the Respondent's fitting department, as a result of the quitting of another em-
ployee who at the time of the layoff had been senior to her in point of service. At
9 Cf. N. L. If. B. v. Chicago Steel Foundry Co., 142 F . 2d 306 (C. A. 7) ; N . L. R. B. V.
Shedd-Brown Mfg. Co., 213 F. 2d 163 (C. A.7).
NOCONA BOOT COMPANY 1875
that time, the Respondent communicated with Sewall and asked her to return.
After a period of reflection, Sewall declined the Respondent's offer, advising it that
she preferred to remain in her new position. Several weeks later Sewall was caught
in a layoff at her new place of employment. About a week or two after her layoff
Sewall called the Respondent and asked if she could come back. Although perhaps
relieved of any duty to reinstate her by virtue of her earlier declination of a job
offer, the Respondent nevertheless readily consented to have Sewall return-the
opening for which Sewall had previously been recalled not having been filled in the
interim.10 -
For reasons indicated above, and upon the record as a whole, I conclude and find
that the allegations of the complaint relating to the layoff of Mary_Jo Sewall, as well
as of Verda Lowrie, Bud Cooper, and Wade H. Allison, have not been sustained,
and shall recommend their dismissal.
D. The alleged violation of Section 8 (a) (5)
As noted above, the General Counsel, while conceding that the Respondent in its
overall dealings with the Union bargained in good faith, nevertheless contends that
the Respondent must be found guilty of a per se violation of Section 8 (a) (5)
because of the unilateral change in the rate and manner of pay of certain employees
that the Respondent effected on March 9, 1956, but later rescinded. The relevant
facts have been fully reported above, toward the end of subsection A, entitled
"Background; the issues," and need not be reiterated here.
Although candidly conceding the impropriety of its unilateral action, the Re-
spondent asked to be absolved of liability on the grounds that it acted innocently and
under a mistake of law, immediately rescinded its unilateral action upon learning that
it was being questioned, and thereafter disclosed its good faith and willingness to
negotiate with the Union on the subject matter involved.
As a general rule, to be sure, "good faith is not open to an employer as a defense
to an unfair labor charge merely because it entertained an erroneous view of the
law." Taylor Forge & Pipe Works v. N. L. R. B., 234 F. 2d 227 (C. A. 7), and
cases there cited. Bearing in mind, however, the additional considerations present in
this case-that the Respondent has not been found to have engaged in any other
unfair labor practices; that the record as a whole demonstrates the Respondent's
acceptance of the collective-bargaining principle; that the unilateral action com-
plained of stands alone and does not appear to have been engaged in with any pur-
pose of discredit the Union or undermine its authority or prestige; that the Union
itself never took exception to the action nor requested bargaining concerning it;
that the Respondent of its own volition, and immediately upon learning from the
filing of an individual charge that its action was being questioned, cured its error
by rescinding its unilateral action, thereby rendering unnecessary an affirmative
order requiring it to do so; and that the record provides no substantial basis for
inferring any disposition on the Respondent's part to engage in like conduct in the
future, even though not ordered to cease and desist therefrom, but does reflect a
willingness on its part to continue harmonious bargaining relations with the Union-
I do not believe that the isolated incident here involved is enough to justify a finding
of refusal to bargain upon which a remedial order should be supported. See Crown
Zellerbach Corporation, 95 NLRB 753; Massey Gin & Machine Works, Inc., 78
NLRB 189. Consequently, I shall recommend -that the allegation in question be
dismissed.
Having found that the Respondent has not engaged in any unfair labor practices,
I shall recommend that the-complaints be dismissed in their entirety.
On the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Boot and Shoe Workers Union, AFL-CIO, is a -labor organization within the
meaning of Section 2 (5) of the Act.
2. Nocona Boot Company is engaged in commerce within the meaning of Section
2 (6) and (7) of the Act.
3. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8 (a) (1), (3), and (5) as alleged in the complaints in this consolidated
proceeding.
[Recommendations omitted from publication.] -
10 Up to the time of the hearing, no other hirings had taken place. Joe Justin testified
that It Is the Respondent's intention to reemploy each of the Individuals who have been
laid off as soon as there are openings for them.