Quarles Manufacturing Co.

National Labor Relations Board - Board Decisions

May 19, 1949

83 N.L.R.B. 697 (N.L.R.B. 1949)

In the Matter of N. B. QUARLES , D/B/A QUARLES MANUFACTURING COM-
PANY , AND SOUTHERN WHOLESALERS and AMALGAMATED CLOTHING
WORKERS OF AMERICA, CIO
Case No. 16-C-1501.-Decided May 19,1949
DECISION
AND
ORDER
On October 27, 1948, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices 1 and recommending that he cease and desist therefrom
and 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 certain other unfair labor practices
alleged in the complaint, and recommended dismissal of those allega-
tions. Thereafter, the Respondent and the General Counsel filed ex-
ceptions to the Intermediate Report.
The Board 2 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 Intermedi-
ate Report, the exceptions filed by the Respondent and the General
Counsel, and the entire record in the case, and hereby adopts those
findings, conclusions," and recommendations made by the Trial Ex-
I As appears in the Intermediate Report, the Trial Examiner found that the unlawful
conduct of the Respondent violated both Section 8 (1) and (3) of the Act and Section
8 (a) (1) and (3) of the Act, as amended.
2 Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations
Board has delegated its powers in connection with this proceeding to a three -member panel,
[Chalrlhan Herzog and Members llduSton and Murdock.]
8 The Intermediate Report contains certain misstatements of fact and inadvertences,
none of which affects the Trial Examiner 's ultimate conclusions , or our concurrence therein.
Accordingly, We note the following corrections : (1) The Trial Examiner improperly
included Margie Courtney , Grace Taylor , Nettie Maxey , Ethel Teal , and Roy Hindman
among those who conversed with, and accepted circulars from, the union representatives
outside the plant on or about November 8, 1946; (2) The record indicates that the only
union meeting between the union representatives and the employees on or about November
8 was the one during the lunch period , and that there was no second meeting on that day,
as the Trial Examiner finds ; ( 3) Ploorlady Driver's interrogation of, and threat to,
employee Maxey took place on or about December 1, 1946, and not December 12, 1946, as the
831sT. L. I#. $., No. 109.
697
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aminer that are consistent with our findings, conclusions, and order
hereinafter set forth.
1. The Respondent, for the first time in his exceptions to the In-
termediate Report, seeks to dismiss the complaint on the grounds that :
(1) there has been no showing of compliance by the Union with the
filing requirements of Section 9 (f), (g), and (h) of the amended
Act; (2) the amended Act had the effect of extinguishing whatever
liability he may have incurred for violations of the original Act; (3)
the complaint came "too late" and is barred by "limitations and
laches"; and (4) the complaint was not validly issued under Section
10 (b) of the amended Act.
With respect to the first ground urged, we have heretofore held, as
we do now, that compliance is a matter for administrative determi-
nation and is not litigable by the parties.4 Moreover, we are adminis-
tratively advised that the Union has fully complied with the filing
requirements of the amended Act. With regard to the second con-
tention, it is well established that the enactment of the amended Act
did not impair the Board's power to adjudicate unfair labor practice
cases which arose prior thereto.5 As to the Respondent's defense of
laches, we find that any delay which occurred herein between the filing
of the charge and the issuance of the complaint cannot be attributed
to the charging party. Furthermore, the defense of laches may not
be invoked against the Board.6
As to the last ground urged, the Respondent contends that he was
not served with copies of the charge until July 16, 1948, which was
beyond the time limit fixed by Section 10 (b) of the Act. In seeking
to meet this contention, the General Counsel has moved the Board
to reopen the record for the purpose of receiving evidence bearing on
its validity. His motion avers that timely service was effected by
registered mail, and he attaches the original to the registered return
receipt thereto. An answer in opposition to the General Counsel's
motion has been received from the Respondent. After an examina-
tion of these documents, we are persuaded that the record should be
reopened for the limited purpose requested. Under these circum-
stances, we grant the General Counsel's motion, and regard as part of
the record the motion and the exhibits, marked "A" and "B", attached
thereto. These documents show that the Regional Director for the
Trial Examiner inadvertently states at one point in the Intermediate Report ; and (4)
The Trial Examiner mistakenly finds that Gladys Hindman 's employment was terminated
on November 5, 1946 . As appears hereinafter , the correct date is November 15, 1946.
4 Matter of Shawnee Milling Company, 82 N. L. R. B. 1266.
b Matter of Marshall and Bruce Company, 75 N. L. R. B. 90; N. L. R. B. v. National
Garment Co. et al., 166 F. ( 2d) 233 ( C. A. 8).
6 Matter of The Electric Auto -Lite Company, 80 N. L . R. B. 1601; Matter of Agar Packing
& Provision Corporation, 81 N. L. R. B., No. 199; N. L. R. B. v. Wilson Line, Inc., 122 F.
(2d) 809 (C. A. 3).
QUARLES MANUFACTURING COMPANY 699
Sixteenth, Region; by registered mail, had served upon the Respondent,
through the then manager of the plant, involved in this proceeding,
a copy of the charge, and that the return receipt, dated June 27, 1947,
had been received by the Regional Office. In our opinion, they es-
tablish clearly, and we find, that the General Counsel has met the
service requirements outlined in Section 10 (b) of the Act.'
The motion to dismiss is accordingly denied in its entirety.
2. We agree with the Trial Examiner that the Respondent, by
Plant Manager Horton and Floorladies Ewalt and Driver, interfered
with, restrained, and coerced his employees in the exercise of the
rights guaranteed them in Section 7 of the Act. We base such
finding upon :
(a) Horton's statements, contained in his speeches of November
8 and 12, 1946, that the plant would be closed down in the event the
Union successfully organized it;
(b) Horton's inquiries of employees Teal, Courtney, and Taylor as
to their union membership and activities;
(c) Horton's threat to Courtney to discharge her if she persisted
in her union activity, and his threat to Taylor that they were not
going to operate under a union,- or hire anybody who belonged to a
union; 8
' The Respondent 's alternative contention , namely, that this service , even if made, has
no "force and effect" because accomplished before August 22, 1947, the effective date of
the amendment to the Act , is clearly untenable . Matter of Vamette Hosiery Mills, 80
N. L R. B 1116 ; Matter of Shawnee Milling Company, supra.
a Contrary to the Respondent ' s contention , the acts of interrogation and threats of
economic reprisal by Horton herein are not protected as free speech by the Constitution
and the Act , as amended . N. L. R. B . v. J. L. Brandeis & Sons, 145 F. (2d) 556 ( C. A. 8) ;
Matter of Minnesota Mining if Manufacturing Company, 81 N. L. R. B . 557. Nor do
we agree with the Respondent that the testimony which attributes these statements to
Horton should be stricken because Horton was deceased at the time of the hearing. Mind-
ful of the fact, noted by the Trial Examiner that our concern here is solely with whether
the remarks attributed to Horton were in fact made and not with their truth or falsity,
and the further fact that evidence of statements attributed to deceased persons should
be received with caution , we have examined the arguments advanced by the Respondent,
and have closely scrutinized the questioned testimony , the other relevant evidence in the
record, and the nature of the evidence as a whole . We have also noted the fact that the
remarks attributed to Horton are consistent with statements of other supervisors indi-
cating the Respondent 's hostility to the Union ; and the further fact that they are
compatible with Horton's own attitude toward unionization as revealed by the Respondent's
admission that Horton told him that "If they organize ,,you will have to get another plant
manager, I will not operate a union plant "
We are therefore convinced from all the foregoing that the evidentiary value of the
remarks attributed to Horton is not affected by Horton 's death before the date of the
hearing, and that no other reason exists for not relying upon the questioned testimony
insofar as it refers to what Horton did in fact say. See, in this connection , Matter of
Reynolds Wire Company, 26 N L . R. B 662, enf'd as mod, 121 F. (2d) 627 (C. A. 7) ;
Matter of Montgomery Ward if Company , 31 N. L. R B 786 ; Terry v. United States,
51 F. (2d )*49 (C A. 4) , Bedell v. United States , 78 F. (2d ) 358 (C . A. 8) cert. den 296
U. S. 628. We do not regard as controlling herein the law in the State of Texas which
counsel for the Respondent says renders testimony of the type in issue inadmissible in the
courts of that State . See Section 10 (b) of the amended Act.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Ewalt's remark to employee Crocker on November 13, 1946,
that "Mr. Hdrtoif could put his finger on all that joined the Union the
night before;"' 9
(e) Drive'r's interrogation of employee Maxey concerning her union
activity, and Driver's statement to Maxey that the plant would be
closed down if the employees continued their union activity.
3. We agree, for the reasons stated by the Trial Examiner, that
the discharges of Minnie Elliott, Oma Crocker, Gladys Rushing, and
Gertrude Johnson on November 14 and 15, 1946, were motivated by
anti-union considerations. We do not agree with the Trial Examiner,
however, that the discharge of Gladys Hindman, the only other em-
ployee discharged at the time, was not violative of the Act 'o
It is apparent that Hindman's union activity, like that of the
other einpldyees named above, was known to the Respondent at the
time of her discharge, for shewas present, as they were, at the union
gathering outside the plant on November 12, 1946, when, in the pres-
ence of Floorlady Ewalt, union' matters affecting the Company's
employees were discussed.', Like Johnson and Crocker, she also dis-
played her union sympathies by her conduct inside the plant. We
ndte,'tod, that 14indman, like the other employees discharged at the
time, was a satisfactory employee whose status was terminated
abruptly.12 And in her case, as in the others, no valid reason is ad-
duced to support the discharge. All these circumstances, when
viewed together with the Respondent's demonstrated hostility to
unionization '13 convince us, and we find, that Gladys Hindman's
' The vice of this remark stems from tile fact that it served to foster the impression
that the Respondent had engaged in surveillance . Matter of Harold W. Baker Company,
71 N. L . R. B 44 ; Matter of S W. Evans d Son, 81 N. L R. B 161.
10 For the reasons appearing hereinafter , we reject the Trial Examiner ' s findings that
there was a "paucity of . . evidence " offered to support the allegations in the com-
plaint relating to Gladys Hindman , and that there is a "lack of reliable , probative, and
substantial evidence" in her case We do , however, agree with the Trial Examiner that
the evidence is inadequate to warrant a finding of discrimination as to Roy Hindman.
ss we have not credited Ewalt's testimony to the effect that she did not communicate
to Horton , who was directly responsible for the discharges , her observations on this
occasion . Considering , inter alia, Ewalt's idconsistent testimony, and hei admission
that she kept Horton posted on activity within tile plant bearing upon the employees'
interest in the Union , we are convinced , and find , that she did advise Horton of the
activity which took place outside the,plant on November 12
32 It is clear that the Respondent had given no consideration to terminating these
employee 's prior to their union activity on November 12 Thus, for instance , when Crocker,
'Johnson, and Glaiiys Hin'dinan requested their final pay checks of Horton on or about
November 16, they were told that the checks were not availabie liecalise he, Horton, had
not known that he "was going to fire . . . [ them]."
is An indication of the anti-uhion bias operating in all these di'schar 'ges on these 2 days
is found in Rushing's conversation with Horton , in the presence of Ewalt, at the time
she applied for reinstatement . According t6 the credible testimony of eRusbing, which
Ewalt did not deny, Horton then said that her discharge was due to the fact that she
"just kept bad `company " This, we find , was an unmistakable reference tb her association
with employees engaged in union activity at the plant in early No.'eniber.
QUARLES MANUFACTURING COMPANY 701
discharge, as well as the discharges of Elliott, Crocker, Rushing, and
Johnson, was motivated by anti-union considerations.
4. We agree with the Trial Examiner's finding that the Respondent
did not discriminate in regard to the hire or tenure of employment
of Nettie Maxey, Grace Taylor, and Ora Green, but we do not adopt
his finding that such discrimination was practiced against Margie
Courtney, Marjorie Baker, and Ethel Teal.
On December 24, 1946, the Respondent closed the plant for the holi-
day season. When the plant reopened on January 13, 1947, all but
24 of the approximately 70 employees laid off at the plant's closing
were rehired. Those in the group not returned to work, including
Maxey,, Taylor, Green, Courtney, Baker, and Teal, were told that the
Respondent was resuming operations with a "skeleton" crew, and that
they, would be recalled when they were needed. Thereafter, Maxey,,
Taylor, and Green were offered reemployment; 14 Courtney, Baker,
and Teal were not.
In the cases of Maxey, Taylor,_ and. Green, we find, for the reasons
stated by the Trial Examiner in the Intermediate Report, that the
Respondent's failure , to reinstate these employees on January 13 was
not motivated by anti-union considerations, and that their recall on
the dates previously mentioned was not purposefully delayed for il-
legal reasons.15 In this. connection, unlike the Trial Examiner, we
find in the record sufficient evidence to identify the employees. who
were recalled on January 13, 1947, and 4 or 5 of the 18 employees who,
like the alleged, discriminatees , were not rehired on that date. We are
also able to determine from the, evidence in the record the union
activity, known to the Respondent, of 5 or 6 employees in the former
group, and of 3, or 4 of those in the latter group. This additional evi-
dence, however, does not alter our concurrence in the Trial Examiner's
finding on this aspect of the case, for the record still fails to, establish
that a disproportionate number of union people were adversely af-
fected by the hiring policy which obtained on January 13. Indeed,
of those recalled whose union status is disclosed by the record, all had
engaged in union activity no less prominent than that of the alleged
discriminatees.
With respect to the Respondent's failure to rehire Courtney, Baker,
and Teal after January 13,16 the Trial Examiner attached controlling
"Maxey, on or about May 7, 1947; Taylor, on or about April 1, 1947; and Green, on or
about May 6, 1947
'L We concur in the Trial Examiner 's finding to the effect that the offer of reemployment
in Green's case was made in good faith, and not under circumstances intentionally designed
to discourage the acceptance thereof
16 No exceptions have been filed concerning the Trial Examiner 's finding that these three
employees were n9t discriminatorily denied reem ployment on January 13. This finding is
therefore adopted without comment.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
significance to the fact that these employees have not been recalled, even
though the Respondent has, at various times since January 13, hired
a number of new employees. Although this circumstance gives rise
to a suspicion that the named employees have been denied employment
because of their union activities, we are persuaded otherwise by pre-
cisely the same considerations that prompted us, and the Trial Ex-
aminer, to find an absence of illegal motivation on January 13. Thus,
as already noted, approximately 21 employees, in addition to Courtney,
Baker, and Teal, were not rehired when the plant reopened on Jan-
uary 13. Thereafter, union adherents Maxey, Taylor, and Green were
rehired or offered reemployment, as were two or three other employees
who had engaged in union activity, to the Respondent's knowledge,
before the plant's shut-down. As to those union adherents not re-
hired, the record identifies Courtney, Baker, Teal, and one other. The
remaining employees denied reinstatement on January 13 are un-
identified in the record; 17 nor does their union affiliation , if any, -or'
their subsequent employment history with the Respondent, appear
therein. So far as appears, they have been lawfully discharged.
Under all these circumstances we are unable to predicate a finding
of discrimination as to Courtney, Baker, and Teal on this record. The
evidence does-not, for example, establish such a disproportionate treat-
ment of union and non-union employees as would give rise to- an in-
ference of discrimination as to union adherents. Furthermore, so
far as the record discloses, the alleged discriminatees have not been
treated any•diferently from 14 or 15 other employees, many of'whom
may have been non-union adherents: -
In view of the foregoing, and upon the entire record, we conclude,
and find, that the preponderance of the evidence fails to establish that
Maxey, Taylor, Green, Courtney, Baker, and Teal' were denied re-
employment on or after January 13, 1947, because of their' union
activity. Accordingly, we shall dismiss the complaint as to them.
THE REMEDY
Unlike the Trial Examiner, we have found that the Respondent
discriminatorily discharged Gladys Hindman on November 15, 1946.
We shall order the Respondent, therefore, to offer Gladys Hindman
immediate and full reinstatement to her former or a substantially
equivalent position, without prejudice to her seniority or other rights
and privileges, and make her whole for any loss of pay she may have
suffered by reason of the Respondent's discrimination, by payment
to her of a sum of money equal to the amount which she would nor-
mally have earned as wages during the period from the date of the
17 With the possible exception of one employee.
QUARLES MANUFACTURING COMPANY 703
discrimination against her to October 27, 1948, the date of the Inter-
mediate Report herein, and during the period from the date of this
Decision and Order to the date of the Respondent's offer of reinstate-
ment,"" less her net earnings during said periods.
We note also that the record shows that Gertrude Johnson declared
at the hearing that she secured other employment on September 3,
1947, and has not desired reinstatement since that date. We shall
therefore revise the recommended order as to Gertrude Johnson, and
provide merely that the Respondent make her whole for any loss
of pay she may have suffered by reason of the Respondent's discrimi-
nation against her, by payment to her of a sum of money equal to the
amount which she would normally have earned as wages during the
period from the date of the discrimination against her to the date of
her employment elsewhere, less her net earnings during said period.
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, N. B. Quarles,
d/b/a Quarles Manufacturing Company and Southern Wholesalers,
and his agents and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Clothing Workers
of America, CIO, or any other labor organization of his employees,
by discharging or refusing to reinstate any of his employees, or by
discriminating in any other manner with regard to their hire and
tenure of employment, or any term or condition of employment;
(b) Interrogating employees in any manner concerning their
union affiliation, activities, or sympathies, or threatening them with
discharge or other economic reprisal because of their union affiliation,
activities, or sympathies;
(c) Threatening to close his plant or employ other economic re-
prisals against his employees if they join Amalgamated (clothing
Workers of America, CIO, or any other labor organization.
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form la-
bor organizations, to join or assist Amalgamated Clothing Workers
of America, CIO, or any other labor organization, to bargain collec-
tively through representatives 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 of such activi-
'e This abatement of back pay for the period between the issuance of the Intermediate
Report and our Decision and Order follows our practice where , as here, the Trial Examiner
did not recommend the reinstatement of this employee or the award of back pay to her.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lies, except to the extent that such right,may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer Minnie Elliott, Oma Crocker, and Gladys Hindman
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges ;
(b) Make whole Minnie Elliott, Oma Crocker, Gladys Hindman,
Gertrude Johnson, and Gladys Rushing for any loss of pay they may
have suffered by reason of the discrimination against them, in the
manner set forth in the section of the Intermediate Report entitled
"The remedy," as modified herein ;
(c) Post at his plant at Wills Point, Texas, copies of the notice
attached hereto, marked "Appendix A." 19 Copies of said notice, to
be furnished by the Regional Director for the Sixteenth Region, shall,
after being duly signed by the Respondent or his representative, be
posted by'the Respondent immediately upon receipt thereof, and
maintained by him for sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to, insure that, said notices are not altered, defaced, or covered by
any other material;
(d) Notify the Regional Director for the Sixteenth Region in
writing, within ten (10) *days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent discriminated with regard to the hire or tenure of
employment of Roy Hindman, Grace Taylor, Ora Green, Nettie
Maxey, Margie Courtney, Marjorie Baker, and Ethel Teal, be, and it
hereby is, dismissed.
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, I hereby notify my employees that :
I WILL NOT discourage membership in AMALGAMATED CLOTHING
WORKERS OF AMERICA, CIO, or any other labor organization of
"In the event this Order is enforced by decree of a United State§ Court of Appeals,
there shall be inserted in the Notice , before the words "A DECISION AND O1 DER," the
words. "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
QUARLES MANUFACTURING COMPANY 705
my employees, by discharging or refusing to reinstate any of my
employees, or by discriminating in any other manner with regard
to their hire and tenure of employment, or any term or condition
of employment.
I WILL NOT interrograte my employees in any manner concern-
ing their union affiliation, activities, or sympathies, or threaten
them with discharge or other economic reprisal because of their
union affiliation, activities, or sympathies.
I WILL NOT threaten to close my plant or employ other economic
reprisals against my employees if they join AMALGAMATED CLOTH-
ING WORKERS OF AMERICA, CIO, or any other labor organization.
I WILL NOT in any other manner interfere with, restrain, or
coerce my employees in the exercise of their right to self -organi-
zation, to form labor organizations, to join or assist AMALGAMATED
CLOTHING WORKERS OF AMERICA, CIO, or any other labor organi-
zation, to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
from any or all of such activities, except to the extent that such
-right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized
in'Section 8 (a) (3) of the Act.
I WILL OFFER to the employees named below immediate and full
reinstatement to their former or substantially equipment positions
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of pay
suffered as a result of the discrimination :
Minnie Elliott
Oma Crocker
Gladys Hindman
I WILL MAKE WHOLE the employees named below for any loss of
pay suffered as a result of the discrimination against them :
Gladys Rushing
Gertrude Johnson
All my employees are free to become or remain members of the
above-named union or any other labor organization. I will not
discriminate in regard to hire or tenure of employment or any
term or -condition of employment against any employee because
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of membership in or activity on behalf of any such labor
organization.
N. B. QUARLES , D/B/A QUARLES MANUFACTURING COMPANY
AND SOUTHERN WHOLESALERS
Employer
Dated-------------------- By--------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
Edmond D. Wilson, Esq., for the General Counsel.
Yale B. Griffis, Esq., of Dallas, Tex., and
Mr. N. B. Quarles, of Wills Point, Tex., for Respondent.
STATEMENT OF THE CASE
Upon a charge duly filed on January 31, 1947, by Amalgamated Clothing Work-
ers of America, CIO, herein called the Union, the General Counsel of the National
labor Relations Board' by the Regional Director for the Sixteenth Region (Fort
Worth, Texas) issued a complaint, dated July 15, 1948, against N. B. Quarles,
doing business as Quarles Manufacturing Company , and Southern Wholesalers 2
.herein called Respondent , alleging that Respondent had engaged and was engag-
ing in unfair labor practices affecting commerce within the meaning of Section 8
(1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat. 449, and Section 8 (a) (1) and '(3) and Section 2 (6) and '(7) of the Labor
Management Relations Act, 1947, 61 Stat. 136, both herein called the Act 2 Copies
of the complaint, the charge, and notice of hearing thereon were duly served upon
the parties.
With respect to the unfair labor practices, the complaint, as amended, alleges
that Respondent: (1) discharged certain-named employees on various dates`
because of their union or concerted activities; and (2) since on or about Novem-
ber 10, 1946, (a) vilified and expressed disapproval of the Union, (b) interrogated
his employees concerning their union activities; (c) threatened and coerced his
' The representative of the General Counsel in this proceeding is referred to as the
General Counsel. The National Labor Relations Board is referred to as the Board.2
The name of Respondent was amended at the hearing to read as appears herein.
For the purposes of this proceeding , the provisions of, Section 8 (1) and (3) and
Section 8 (a) 1 and (3) are substantially identical.
4 Their names and the respective dates of discharge are:
Roy Hindman---------------------------- ---__-___ December 13, 1946
Ora Green----------------------- ----------------- January 13, 1947
Gertrude Johnson---------------------------------- November 15, 1946
Gladys Rushing------------- ----------------------- November 15, 1946
Minnie J. ElliottEllio ----------------------------------- November 14, 1946
Gladys Hindman----------------------------------- November 15, 1946,
Oma Crocker-------------------------------------- November 14,.1946,
Grace Taylor--------------------------- -----_-___ January 13, 1947
Nettie Maxey------------------------------ ------ January 13, 1947
Ethel Teal ------------------------------------ ____ January 13, 1947
Margie Courtney_______________________----------------------------------- January 13, 1947
Marjorie Baker------------------------------------ January 13, 1947
QUARLES MANUFACTURING COMPANY 707
employees to refrain from joining or remaining members of the Union, and (d)
kept under surveillance the meeting places of the Union.
Pursuant to notice, a hearing was held from August 10 to 13, 1948, inclusive,
at Wills Point, and Dallas, Texas, before the undersigned Trial Examiner,
Martin S. Bennett, duly designated by the Chief Trial Examiner. The General
Counsel and Respondent were represented by counsel.' All parties participated
in the hearing and were afforded full opportunity to be heard, to examine and
to cross-examine witnesses, and to introduce evidence bearing upon the issues.
Respondent, who at the outset of the hearing appeared pro se, and who had
filed no written answer prior to or at the hearing, denied orally on the record
all the allegations of the complaint. A motion by the General Counsel at the
opening of the hearing for judgment on the pleadings because Respondent had
filed no answer within 10 days of service of the complaint and because no written
answer had been filed was denied.' The motion was renewed at the close of the
hearing, ruling was reserved, and the motion is hereby denied. During the
bearing, the undersigned denied a motion by the General Counsel to add to the
complaint an allegation that Respondent had discharged and denied reinstate-
ment to Maggie Phillips,' thereby engaging in unfair labor practices within
the meaning of Section 8 (1) and Section 8 (a) (1) of the Act.' A motion by
Respondent to dismiss the complaint because Respondent was not engaged in
commerce within the meaning of the Act was denied. At the close of the
hearing, a motion by the General Counsel to conform the pleadings to the proof
with respect to purely formal matters was granted. The parties were then
afforded an opportunity to argue orally before the undersigned and to file briefs
and/or proposed findings of fact and conclusions of law. Oral argument was
waived by the parties and a brief has been received from the General Counsel.
Subsequent to the close of the hearing, the undersigned on his own motion,
ordered certain corrections of errors in the transcript of testimony.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
N. B. Quarles, an individual, doing business as Quarles Manufacturing Com-
pany and Southern Wholesalers, has his principal office and place of business in
Dallas, Texas, where he is engaged in 'jobbing and selling to retail stores of
dry goods, sportswear, and work clothing under the name of Southern Whole-
salers.' In conjunction with his operation of said , Southern Wholesalers as a
jobbing concern, Respondent operates, as a subsidiary of Southern Wholesalers,
6Respondent appeared pro se for the first 2 days of the hearing When asked by the
undersigned if he wished to retain counsel, he stated that he did not desire to do so
However, Respondent thereafter did retain counsel and was represented for the last 2 days
of the 4-day hearing by said counsel.
6 A motion by counsel for Respondent, at the conclusion of the hearing, for permission
to file a written answer was denied. However, no findings or rulings adverse to Re-
spondent are made which are based upon the absence of a written answer
Also appearing in the transcript as Magie Phillips.
8 In the view of the undersigned, this proposed amendment was prohibited by the
language of the proviso to Section 10 (b) of the Act.
e A jobber, in the strict sense, does not manufacture the products he sells, as a whole-
saler may , but is rather a middleman who purchases finished products from a manufacturing
wholes4ler and then sells to retail store operators.
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his only manufacturing plant at Wills Point, Texas , where he manufactures
sportswear and work clothing under the name of Quarles Manufacturing Com-
p'any, ' all of which is transferred to Southern Wholesalers and sold by Respond-
ent under the name of the latter concern, together with the other products'sold
and distributed by Southern Wholesalers which are purchased by Southern
Wholesalers from various manufacturers . Thus, the Wills Point operations
are the manufacturing end of Respondent 's business , as in fact Respondent con-
tends. All merchandise sold by Respondent is sold under the name of and by
Southern Wholesalers irrespective of whether the merchandise emanates from
another manufacturer or is manufactured at the Wills Point plant. It is clear,
and the undersigned finds, that this is one closely integrated enterprise and
operated as such by N. B. Quarles.10
During the year 1946 , Respondent purchased manufactured goods and raw
materials valued at approximately $112,000, of which goods and materials valued
at approximately $96,000 were shipped to Respondent ' s place of business and
'plant from points outside the State of Texas ; during the same period , Respondent
sold finished products valued in excess of $112,000, of which approximately 7
percent was shipped to points outside the State of Texas. During the year 1947,
Respondent purchased manufactured goods and raw materials valued at ap-
proximately $97,000, of which goods and materials valued at approximately
$83,000 were shipped to Respondent 's place of business and plant from points
outside the State of Texas ; during the same period , Respondent sold 'finished
products valued at approximately $80,000, of which approximately 7 percent was
shipped'to points outside the State of Texas 11
In view of the findings herein , Respondent 's contention that the effect of his
operations on commerce is de minimis is rejected , and the undersigned finds
that Respondent is engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Amalgamated Clothing Workers of America, CIO, is a labor organization
admitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1. Background : Respondent's supervising personnel
This proceeding, involves solely Respondent's manufacturing plant at Wills
Point, Texas which is located approximately 55 miles from the city of Dallas,
Texas, where 'Respondent maintains his office and place of business . Manage-
ment of the plant is in the hands of a plant manager who supervises the opera-
tions of the plant and is assisted by one or two floor ladies. Several times a
week N. B. Quarles makes regular trips to the plant from Dallas 'to inspect
it and its output and to generally look over operations. At the time of the
10 N L. R B. v. Pennsylvania Greyhound Lines, 303 U S. 261 ; Condenser Corporatsoh v.
N L R. B., 128 F (2d) 67 (C C. A 3) : N L R. B v Lund,101 F (2d) 815 (C; C A 8) ;
and flatter of Hill Transportation Company, et at , 75 N L R. B 1203.
"The findings herein are based upon the testimony of N B Quarles and upon stipula-
tions entered into by counsel Quarles gave testimony on this topic which was inherently
inconsistent and in some aspects incredible. The findings above, however, have been largely
based upon stipulations entered into at the hearing by the General Counsel and counsel for
Respondent -
QUARLES MANUFACTURING COMPANY 709
incidents related herein H. B. Horton was plant manager, and , according to
Quarles, he never went over Horton's head on any matter because Horton man-
al;ed the plant with complete authority to hire and discharge employees.
There are usually two floor ladies on duty, one each on the shirt and pants
production lines, although on occasions there has been but one . According to
the testimony of floorlady Ewalt and former floorlady Maxey, the floor ladies
instruct the operators concerning their duties, distribute and assign work, respon-
sibly direct them, and give general orders concerning the manner of performance
of the work. It does not appear that they personally perform any of the work
usually done by the operators and they have always received a wage in excess of
that paid to the operators. They are instructed by the plant manager to recom-
mend the discharge of any employees they deem unsatisfactory and they also
make recommendations concerning the hiring of new employees. There is evi-
dence that their recommendations carry weight with the plant manager and they
are therefore found to be supervisory employees within the meaning of the Act.12
2. Sequence of events"
Respondent ' s plant commenced operations in May of 1945 and there is no
evidence of any union activity prior to the incidents set forth herein. During
the early part of November 1946, and probably on or about November 8, repre-
sentatives of the Union commenced organizational activities among the employees
of Respondent by distributing leaflets in the vicinity of the plant at lunch time and
after the close of work at 4: 30. A number of employees , including those alleged
herein to have been discriminatorily discharged , spoke with the representatives
and accepted circulars from them. This activity took place on the sidewalk near
the plant and was observed by floorlady Ewalt who passed by.14
11 See N L R B v Build 'Manufacturing Co, 169 'F '(2d) 571 ( C. C A 6), 22 L R
R M 2414 , decided August 16. 1948 , Matter of Allen -Morrison Sign - Co., 79 N. L. B B
903, and Matter of Merrill -Stevens Dry Dock & Repair Co ., 79 N L R B. 962
13 The findings herein are based upon testimony which is largely uncontrovetted. Since
almost all of the conduct alleged to be violative of the Act was attributed to Plant Managei
Horton who died -in January of 1948 . prior to the hearing , the undersigned , before deter-
mining what weight to give to the testimony of the witnesses for the General Counsel, has
taken particular pains to carefully appraise their demeanor while testifying as well as to
meticulously review their testimony in the transcript of testimony The witnesses for
the General Counsel in large measure impressed the undersigned as honest individuals of
mature age and temperament In addition , as will appear below , the undersigned has
considered the testimony of a supervisor , floorlady Ewalt , who testified for Respondent,
• and has also given weight to the failure by Respondent to call other witnesses who were
allegedly in a position to testify from their own knowledge concerning some of , the acts
and conduct attributed herein to Respondent Noteworthy also, in the , opinion of,the
undersigned , is the fact that the charge which initiated this proceeding before the Board.
was filed by the charging union in January 1947, approximately one year prior to the
death of plant manager Horton See N. L R.,B. v. Reynolds Wire Company , 121 F (2d)
627 (C C A. 7 ), Matter of Metal Molding Corp, 39 N. L . R B 109 , and Matter of
Montgomery Ward Co Inc ., 31 N L. R B. 786
In the final analysis the conduct attributed to the deceased plant manager, as will
appear , is in the nature of verbal acts, the utterance of which is per se the violation of
the law, irrespective of their truth or falsity. Such statements are not offered for the
purpose of proving the truth thereof and they are therefore not, as Respondent in effect
contended , within the purview of the hearsay rule See Wigmore paragraphs 1769-1770
Cf. Central Garages v . Franklin Mutual Insurance Co., 291 Mich 578, 289 N W. 261 (1-939)
and Mass. General 'Laws. Chapter ,233, Section 65
'14 This - ,finding is - based upon the testimony of witnesses Elliott , Rushing; Jolinson
Crocker and Baker Ewalt , who admitted having knowledge of the union campaign , did wit
deny this incident.
844340-50-vol. 83-46
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At about this time, and still several days prior to November 12, the power was
turned off in the plant during the working day and Plant Manager Horton pro-
ceeded to address the employees. The consensus of the testimony is that this
talk was made to the entire plant, although, according to a few witnesses, it was
made only to the shirt production line. The testimony of those witnesses who
were present is in substantial agreement as to what Horton then said. According
to Minnie Elliott, Horton stated that, "he understood there was Union people
around" and that "we will not operate a Union shop" ; that Mr. Quarles "would
close the doors" if a union organized the plant; and that the employees should
"remember what happened at Terrell." 'a The undersigned credits Elliott's
testimony.18
The union organizers returned to the plant at noon on November 12, again dis-
tributed leaflets, and spoke to the employees in the vicinity of the plant during the
noon hour. Several of the employees who had not met the organizers on their
earlier visit received literature on this occasion. This too took place as floorlady
Ewalt passed by on her way to the plant 17
Shortly before the close of work that afternoon at 4: 30, Plant Manager Horton
turned off the power and again addressed the employees on the subject of their
union activity. His statements were substantially similar to those he had made
several days earlier, as set forth above. He referred to his knowledge that union
representatives were in the vicinity and stated that he knew there was to be a
union meeting that evening.. He again called the attention of the employees to
the plant at Terrell which had shut down when it was organized," and stated that
Respondent would close its doors rather than operate a plant which had been
organized by a union. He added that if the plant were shut down local residents
would find themselves on a "soup line" or have to turn to the Red Cross for
assistance."
As Horton had indicated in his speech, a union meeting had been scheduled for
that evening. When the employees left the plant that afternoon after work,
15 Terrell is a nearby city, where, according to a number of witnesses, a garment fac-
tory had previously closed down when a number of its employees became interested in and
joined a labor organization. There is no evidence of ownership or control of that factory
by Respondent.
16
The findings herein are based upon the testimony of Elliott, supported by that of Court-
ney. Crocker, Johnson, Taylor, and Teal Ewalt admitted that she had asked Horton
if he had seen the union circulars but that he had replied he had not She admitted, how-
ever, that circulars appeared in the factory and that Horton then spoke to the em-
ployees and said that, "they could join [the Union] if they wanted to" but that "He was
going to run an open shop." Mary Creed, a former employee who was called by the*
General Counsel on rebuttal and who proved to be a hostile witness, admitted that Horton
called all the employees together ; that "he did not tell us to go union or not to go union.
He did not tell us either way. a a ; and that he said, "But if you want to cut your
own throat, just go' union * a a You see what happened to the Terrell sewing room
*
a a That is what will happen here " According to Quarles, Horton had informed
him, when the organizing activities started, that he would not operate a•union plant and
that he would leave his employ if the Union succeeded in organizing the plant.
17 The credited testimony of Crocker, Baker and Phillips.
18 There is nothing in the record to indicate that the plant at Terrell closed down for
an economic or any other non-discriminatory reason.
19 This finding is based upon' a consensus of the testimony of Elliott, Crocker, Green,
Rushing, Baker, Teal, and Phillips which is in substantial agreement As found above
(footnote 16) Ewalt admitted that Horton had addressed the employees, although it is not
clear whether she referred to the talk on or about November 8 or the later talk. The
undersigned is of 'the belief, and finds, that both talks took place. In so' finding, reliance
19 placed upon Quarles' testimony that Horton told him he would not' operate a union
plant and would leave Respondent's employ if the Union organized the plant.'
QUARLES MANUFACTURING COMPANY 711
:a considerable number met the union representatives in the immediate vicinity
.and engaged in a discussion as to the most desirable place to hold the meeting.
Floorlady Ewalt passed by on this occasion also, stopped and was present for
-several minutes while the conversation continued. As the employees entered
-various automobiles to proceed to a meeting place which had been agreed upon 920
Mrs. Green invited Ewalt to attend the meeting. Ewalt declined, stating as Ethel
Teal testified "I haven't got time to fool with it". The group then left without
Ewalt "
On or about the following morning floorlady Ewalt approached Oma Crocker
-while the latter was at work and stated, as Crocker testified, that "Horton could
-put his finger on all that joined the union the night before." 22
On or about November 19, Ethel Teal was called to the office by Plant Manager
Horton who informed her that employee Mary Creed had complained that Teal
was putting forth too much work on her machine "because she [Creed] wouldn't
join the union ." Horton then asked Teal if she belonged to the Union and Teal
stated that she did .23
On or about December 1, 1946, and shortly after the Union had held another
meeting for the employees of Respondent , floorlady Rachel Driver approached
employee Nettie Maxey 24 and said, according to Maxey, "Have you been to that
meeting?" Mdxey stated that she had attended the meeting and Driver then
replied. "If you mess with that Union, Mr. Quarles is going to close this factory
down." 25
On the morning of December 10, Plant Manager Horton summoned employee
Margie Courtney to the plant office and asked her if she had been attending union
meetings and what she knew about them. He stated that he had been informed
of her election to the position of secretary of the group being organized and then
said, "You recall that I told you and all the others concerned with the Union
will be fired, and this will not be a Union' plant." 2° Horton concluded the inter-
view by telling Courtney that she would be discharged if she continued her union
activities.
20 This was the home jointly occupied by Oma Crocker and Ora Green who are sisters.
a These findings are based upon the testimony of Elliott, Courtney, Crocker, Green, Rush-
ing, Baker, Taylor, Teal and Phillips The testimony of Ewalt is in substantial agree-
ment with their testimony, although Ewalt alleged that she did not know where they were
going: In view of'Ewalt's comment on the union meeting on the following morning, infra,
and her general awareness of the union activities in the plant, the undersigned believes and
finds that Ewalt did know the purpose of the meeting.
22 Crocker's testimony is credited herein as elsewhere. Ewalt did not deny the state-
ment.
23 This finding is based upon the uncontroverted testimony of Teal. Creed admitted
that she had complained to Horton that Teal and Grace Taylor had been making her work
difficult because she (Creed) did not join the Union; according to Creed, she had made
her complaint shortly before Christmas.
24 Maxey at one time had been a floorlady in the plant. In April 1946, approximately
8 months prior to this incident, she was reduced at her own request to the grade of rank
and file operator, which is her present position, and replaced by Ewalt.
23 This finding is based upon Maxey's uncontroverted testimony. Driver, although still
in Respondent's employ, was not called as a witness. Although Driver and Maxey had
formerly been members of another labor organization at a factory In Dallas, there is
nothing in the record to indicate that the instant statement, which apparently was not
uttered in a jocular manner. was anything other than a statement made by a supervisory
-employee to a rank and file employee and was so regarded by Maxey.
20 This finding is based upon the uncontroverted and credited testimony of Courtney
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
An analysis of the above series of events demonstrates that almost simul-
taneously with the onset of the organizational campaign by the Union, Plant
Manager Horton took steps to counteract it. His speeches on November 8 and
12 embraced a specific threat to close the plant if the union organized it, which
was underlined by a reference to another garment factory in a nearby town which
closed down under reputedly identical circumstances. In the same coercive
category is the threat to employee Maxey by floorlady Driver that the plant
would be closed down if the employees continued with their union activities,
the almost identical threat to Margie Courtney in her interrogation by Horton
concerning her union activities and the interrogation of employee Teal by Horton
concerning her membership in the Union. These threats are all,violative of the
Act and are found to constitute interference, restraint, and coercion.2T
The undersigned is of the belief and finds that floorlady Ewalt's statement to
Crocker that Horton "could put his finger on all that joined the union the night
before (November 12)" constitutes interference, restraint ,and coercion. It will
be recalled that this was uttered by Ewalt on the day following Horton's threat
to close down the plant and his statement that he knew of the presence of the
organizers in town and of the meeting scheduled for that evening. This state-
ment by Ewalt, although not found to be evidence that Respondent (lid in fact
engage in surveillance of the union meeting. served only to foster the impression
that Respondent had engaged in surveillance, or was obviously calculated to
have the effect of placing employees in fear of losing their -jobs because of their
union activities. In view of Horton's statements the previous day, the under-
signed believes, that Ewalt's statement was motivated only by such a'i unlawtul
purpose. As this statement by Ewalt was not a view, argument or opinion,
it is not protected by Section 8 (c) of the Act. The only issue then is whether
it poses an economic threat and is, therefore, coercive. The undersigned finds
that such is the case .s Respondent urges as a defense herein that Horton had
allegedly been instructed by Quarles not to discuss the Union in the plant.
Assuming this to -be true and overlooking -the fact -that Quarles admittedly ,had
knowledge that Horton Was strongly opposed 'to labor 'organizations and was
unwilling tb 'remain in Responflent's employ if the 'plant `became organized,
Respondent is not relieved of responsibility for the conduct of Horton in the
absence of any statement to the •rank•and file employees disavowing 'the conduct
of his supervisory employees.3o
3. Alleged interference, restraint, and coersion
rSeveral 'days 'be) fo're `November 12, 'flborlady `Ewalt approached the machines
of employees `Oma Crocker and Gertrude Johnson 'and -announced that all em-
ployees who-desired a•union were to report to-Plant-Manager Horton in the plant
27 See N. L. R B 'V. tKo-P&an-W6racek Shoe Mfg. 'Co., 168 F. (2d) 103 (C C. •A. 8) ;
'N. '-L R B. v Peterson, -157 'F. (2d) 514 (C.'C. A fi),1cert.' dente'd,:330 U.' S. 838; and
'Lldtter-of Tygart -Sportsticear, 77 N. L R 13.'613.
28•Cf Styles 'v Electrical W6rkers, 80 F. 'SUpp. 119 '('D. C. Tenn.), 'decided August
31, 1948
20 See 'N L R B. 'v. 'Penn. Greyhound Lines, '303 U. - S. 261 , N. -L. iR. B 'v. Bdldwin
Locomotive Works,-128 •F._ (21d) 39 .(C--C A 3), Mdtter,of 73drdld W. •BaverrCo ,'71'N.'L.
R B. 44, Matter of Servel Inc.,'57 N. L 'R.,B. 138, and 'Matter oj - Indu8trial Metal -'Fabrica-
t9r's'63'lQ. L. 'R. B. 46.
30 See N. L. R. B.'v. A. S. Abell Co., 97 F. (2d) 951' (C. C: A. 4), and Meter of Wades-
boro Full -Fashioned Hosiery M2ll8 , 72 N. L. R. B. 1064.
QUARLES MANUFACTURING COMPANY 713
office. It appears, however, that Ewalt immediately went to the plant office
and returned and announced that Horton no longer desired to see those employees
who wanted a union.31 In view of the incompleteness of the record in this respect
and the fact that the action was immediately rescinded, the undersigned does
not find this incident to have been violative of the Act.
There is evidence that during the time Maxey was a floorlady, Horton asked
her to report to him if there was any talk about a union and to inform the em-
ployees that there would be no union in the plant. As this took place many
months before the advent of the Union in Respondent's plant and also antedates
the period set forth in the complaint, this incident is relied upon only to show
Horton's opposition to labor organizations in the plant.
B. The discharges
1. The group on November 14 and 15, 1946; Minnie Elliott, Oma Crocker, Gladys
Rushing and Gertrude Johnson
It will be recalled that consistent with his opposition to the Union, as expressed
to Quarles, Plant Manager Horton undertook an antiunion campaign as soon
as he discovered the organizational activities among the employees. He spoke
to them on two occasions, the latter on November 12 but 2 days before the first
of four discharges and told them that the plant would be shut down by Respond-
ent if the Union organized it. Furthermore, interest in singling out those em-
ployees who attended the meeting on the night of November 12 was expressed
by floorlady Ewalt on the morning of November 13.
The discharge of 4 employees within so short a period in a small plant employing
only approximately 80 employees is a relatively high and significant figure. All
4 dischargees herein involved were long-term employees ; Elliott and Johnson
had been employed from the opening of the plant in May 1945 and Crocker and
Rushing had entered Respondent's employ in August and November of that year
respectively. All 4 were interested in the union campaign, participated-in the
organizational activities, and were observed and listened to by floorlady Ewalt
on November 12 as they assembled in the vicinity of the plant and discussed
the' union meeting to he held that evening. Furthermore, there is no evidence
of the discharge of any employee other than these four, and one other whose case
Is discussed hereinafter, for a considerable period before or after November
14 and 15
Minnie Elliott, who had been in Respondent's employ since May 1945, was an
operator on the men's shorts line. As in the case of the other three employees
herein involved, she was paid an hourly wage. There is no evidence of any
complaints ever having been made concerning her ability or performance of
her duties prior to the incident on the day of her discharge. In fact, during
the period up to April 1946, when Nettie Maxey was floorlady, Elliott was assigned
to work on specials which are garments intended to be used as samples and which
must perforce be made with precision and care and on at least one occasion Horton
requested that a group of samples be made by Elliott. On November 14, accord-
ing to Elliott's testimony, the operator at the next machine, Ora Green, was
short of work and, as was the custom in the plant when there was not suffi-
cient work for all the operators, Elliott gave part of her bundle to Green.
a^ This finding is based upon the testimony of Crocker, Taylor, and Johnson Ewalt did
not deny this.
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plant Manager Horton, who was in the vicinity, was called to the scene by Ewalt
and reprimanded Elliott for giving part of her bundle to Green stating, as
Green testified, "that was yours. . . . You have given it away." A few minutes
later, Horton sent for Elliott and told her when she reported to his office "I
just can't use you any more after today. . . . There is going to be a whole bunch
more finished and I can't use you any more." Elliott then left the plant.
Oma Crocker entered Respondent's employ in August 1945 and was employed
until her discharge on November 15, 1946 as a machine operator making shirt
collars and flaps. Her work was satisfactory, according to Maxey, and there
is no evidence of any complaints ever having been made concerning her perform-
ance of her duties. In fact, floorlady Ewalt conceded that Crocker "did pretty
good work" until approximately 2 weeks before her discharge at which time
she "got to where she visited around and talked." Significantly, Ewalt else-
where testified that when the union activities started in the plant, the workers
did "visit and talk and they had some circulars there." Ewalt further admitted
that she kept Plant Manager Horton posted on the "talking and visiting" in
the plant. Ewalt made it clear that this "talking and visiting" took place around
November 12 because she later testified that it occurred at the same time that
the employees met the union representatives near the plant (November 12).'
On November 14, immediately after the discharge of Elliott, Horton sent for
Crocker and said,, according to Crocker that "he couldn't stand it any longer
that day and I was worth $1.70 a day against .40 an hour against what I was
being paid..... • Crocker asked whether he wanted her to return to her ma-
chine or go home. Horton replied that she could do as she pleased and Crocker
returned to her machine. On the following morning, Crocker reported to the
plant at the usual hour and discovered that her time card was not in the rack.
She asked Horton what this meant and he stated "I am not arguing with you
any more today than I did yesterday," and that she could consider herself
discharged.
Gladys Rushing entered Respondent 's employ in November 1945 and was em-
ployed as a machine operator sewing pockets and flaps on shirts. As in the case
of Elliott and Crocker, she was active in the union campaign from the outset
and-was so observed by floorlady Ewalt. According to former floorlady Maxey,
she assigned specials to Rushing because of her ability and on one occasion did
so at Horton's direction. Floorlady Ewalt admitted that Rushing "did good
work" and, according to Rushing, Ewalt continued to give her samples 8S There
is no evidence that her employment record was anything but exemplary.
. As noted above, Oma Crocker was informed by Plant Manager Horton on the
morning of November 15 that she could consider herself discharged. That
afternoon Horton summoned Rushing to the office and announced that she had
been worth but $0.625 to the Company that morning. Rushing disputed this,
pointing out that the work bundles had been split up by five operators among
themselves and alleging that Horton could not possibly know how much work
she had turned out that morning. Horton did not reply to this but stated that
he "couldn't use" Rushing any longer and that she was discharged. He did men-
tion that there had been some gossip about the office girl but then conceded,
when Rushing pleaded her innocence, that Rushing had not been guilty of this
gossip. He concluded by announcing that "He was going to make a clean sweep
33 It was on this occasion that the employees - decided . to hold a, meeting at the home
jointly occupied by Oma Crocker and her sister , Ora Green.
33 Ewalt did not deny this.
QUARLES MANUFACTURING COMPANY 715
of the factory and get rid of those who couldn't work on piece work and I was
one of them."'
Rushing was recalled and reemployed by Respondent in August 1947. She
testified that at that time Ewalt told Horton in her presence that she, Rushing
"made us a good hand when she was here before" and Horton then replied
"Yes, she did . It wasn't her work , she just kept bad company." as
Gertrude Johnson entered Respondent's employ when the plant opened in
May 1945 as a machine operator and sewed pockets on shirts. She was active
in the union activities at the outset of the organizational campaign and was
one of the group that talked with the union representatives on November 8 as
floorlady Ewalt passed by. Her work record was exemplary and there is no
evidence of any criticism of her work. According to former floorlady Maxey,
Johnson "was very efficient and did very nice work." Ewalt admitted that "what
she (Johnson) did was very good" but claimed that she talked during working
hours for "several weeks." This is apparently, and the undersigned so finds, the
same "talking and visiting" with union circulars that Ewalt referred to else-
where in her testimony and as set forth above in the discussion of the case
of Crocker.
On November 15 Horton summoned Johnson to the office and said, according
to Johnson that she "had been worth .76 that day and that he didn't need me
any more after then." He informed her that she could finish the day if she
chose and Johnson did so. She did not report for work the following day.
Conclusions
As noted above, these four employees were discharged on 2 successive work
days. As the entire pay roll included approximately 80 individuals, this
amounted to a 5 percent reduction in staff and appears to the undersigned to
merit further and adequate explanation . When , as is the case here, they are the
only discharges over a substantial period of time, with one other exception, and
each of them is an employee who has therefore had an exemplary employment
record , the undersigned is impelled to search for a denominator common to the
cases of all . ` The first and obvious common denominator in these four cases is
that they followed by 2 and 3 days the threats by Plant Manager Horton
to shut down the plant if the union activities persisted and the plant were or-
ganized . The union activities persisted and pervasive of the cases of all four is
the predominant union activities which took place openly and in the vicinity
of the plant and under the observation of floorlady Ewalt who admittedly kept
plant manager Horton posted on what she termed "talking and visiting" in the
plant and discussion of union circulars . This talking and visiting was in fact,
and the undersigned so finds, a demonstration by the employees of their interest
in the Union and a discussion of the merits and demerits thereof.
In none of the cases does there appear to be a valid and reasonable cause for
the discharge. In the case of Elliott, floorlady Ewalt attempted to show that
Elliott while being timed by Horton on an operation, had given some of the
work to another operator, Green, apparently for some allegedly unscrupulous
reason, the purport of which is not apparent . The testimony of Elliott and
Green was, however , that no instructions had been given to Elliott not to share
that bundle and the evidence is overwhelming that sharing bundles in the plant
a4 The office girl , Weaver , did not testify.
"This was not denied by Ewalt. Rushing's subsequent reinstatement is discussed in
more detail in the Section infra entitled " the remedy "
16 See N . L R. B. v. Sandy Hill Iron & Brass Works, 165 F. ( 2d) 660 ( C C. A. 2).
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of a chronic shortage of work was not only common but was even encour-
aged . Noteworthy herein , is the statement of Horton to Elliott , in discharging
her, that "there is going to be a whole bunch of them ( discharged )," making
clear that Elliott was but one of a group Horton intended to, eliminate from
the plant forthwith. In the final analysis , the testimony of Ewalt makes clear
that her prime objection to the incident on November. 14 was, not the fact that
some of the shirts had been passed but, curiously enough, only the manner by
which Elliott gave part of the bundle to Green 87
The cases of Crocker , Rushing and Johnson are of a common pattern. Each
was called to the office and without any advance warning or any prior repri-
mand of any sort was informed that she was worth less to the company than she
was being paid ( 40 an hour ) and then discharged . This alleged opinion of
Horton of the ability of these employees is, however , refuted by the evidence and
in large measure by the testimony of Respondent 's witness , Ewalt. And such
complaint that Ewalt advanced concerning Crocker and J'ohnsoh related only
to the last ` two weeks;"- of their employment .when after being. admittedly , satis-
factory Workers they devoted some time to visiting and talking about the Union,
for which , insofar as the record indicates , they were at no time warned, or
reprimanded . Furthermore, there is nothing in this record to indicate that
any one of this group of employees was not qualified to work on piece wprk,
rather than on an hourly, rated basis or that they. had ever been so informed
prior to their discharge.
In view of the over -all picture , the vigor of Respondent 's anti-union campaign,
the closeness by which these four discharges followed the opening of the anti-
union campaign by Horton , the predominant union activities of the four dis-
chargees , and the knowledge by management of their union activities , together
with the absence of any economic or other valid reason for discharging these
employees with exemplary work records, the undersigned finds on a pre-
j onderance of the testimony that Respondent has discriminated with respect
to the hire and tenure of Minnie Elliott, Oma Crocker, Gladys Rushing and Ger-
trude Johnson and has thereby interfered with, restrained , and coerced his
employees in the exercise of the rights guaranteed by Section 7 of the Act'
2. Later discharges
The General' Counsel alleges that Gladys and Roy Hindman, who are. hus-
band and, wife, were discriminatorily discharged by Horton on November 5,
37 Trawl eiaminer, B,F V E,ri. You said sgmething alout Mrs. Elliott slipping part of a
bundle to Mrs. Green . Did you use the word sneaking?
The WITNESS . Just slipping it, I called it slipping it acioss . The machines were
very. close.
Trial Examiner BENNETT . Did you object to the way she, handled the bundle, or part of a
bundle, to Mrs Green?
The WITNESS I sure did.
Trial Examiner BENNETT . What method did you think she should have handed it to her?
The WITNESS Just picked it up and handed it to her instead of, slipping it like this
(indz_cating )
Trial Examiner BENNETT. You have been making some suggestions with your hands. I
believe you indicated she passed it along with her hand , close to the floor , and you indi-
cated she could have passed it higher from the floor.
The WITNESS That's right; she handed it down real low. (Emphasis supplied.)
38 See N. L R B v Bird Machine Co., 161 F. (2d) 589, 592 (C C. A. 1) ; N. L R B. v.
Western Cartridge Co., 138 F ( 2d) 551 ( C. C. A. 2 ) Bert denied 321 U. S. 786 , N. L. R. B.
v. Entwistle Mfg Co ., 120 F. ( 2d) 532 ( C C. A 4 ) and N L. R. B. v. Kentucky Firebrick
Co., 99 F. ( 2d) 89 (C. C A. 6).
QUARLES MANUFACTURING COMPANY 717
1946, and December 13, 1946, respectively. Neither testified in this proceed-
ing and , according to Magie Phillips, they moved to California in May or June
of 1947.
Gladys Hindman was employed by ]Respondent as a stitcher and, according
to the testimony of several employees, was a competent worker.' She was active
in the Union and was present when the group of employees met the union
representatives in front of the plant on November 12 in the presence of floorlady
Ewalt. The record indicates only that Hindman was discharged on November
15, and that, according to Gladys Taylor, floorlady Ewalt later said "she was
fired with Mrs. Johnson and Mrs. Rushing," whose discharges are hereinabove
found to have been discriminatory. The only other evidence which supports
the position of the General Counsel is a statement by Ewalt that she read a
union circular at the request of Mrs. Hindman In view of the paucity of the
evidence offered in support of this allegation of the complaint, the undersigned
finds that there is a lack of reliable, probative, and substantial evidence in
support thereof and recommends its dismissal.
Roy Hindman entered Respondent's employ in June 1946, and was employed
as a cuttei. He, too, was interested in the Union and was present at the meet-
ing near the plant which floorlady Ewalt observed on November 12. In fact,
he and his wife drove some of the employees to the meeting that night in their
automobile. According to employee Ethel Teal, Hindman asked permission dur-
ing lunch one day in mid-December to be off to go to a ball game, and his request
was denied by Plant Manager Horton. Some minutes later Horton came over
to Hindman and discharged him, stating that he "could just go to the ball game
and keep going to the ball game." The undersigned is of the belief, and finds
that there is an absence of reliable, probative, and substantial evidence in sup-
port of this allegation of the complaint and recommends the dismissal thereof.
3. Events in 1947; Margie Courtney, Marjorie Baker, Ethel Teal, Nettie Maxey,
Grace Taylor, and Ora Green
The plant continued operations on a normal basis for the remainder of 1946
until December 24, when, at the end of the day, it was shut down for the Christ-
mas and New Year holiday season, as had been customary since the plant had
opened. The floorladies in the plant, as well as Plant Manager Horton, circu-
lated about and informed the employees that the plant would be closed for the
purpose of taking inventory ; that work would be scarce for a bit when it re-
opened ; that the employees would be called back as they were needed ; and that
they should contact the Company after the first of the year. There is also evi-
dence that the statements went beyond the mere announcemefit of a shut-down.
Thus, according to Marjorie Baker, floorlady Ewalt told the employees that they
should " . . get all our personal things, some of us aren't coming back
after Christmas to work. She said they were going to clean house." 40
The plant did shut down on the following morning, although Several em-
ployees were retained for the purpose of taking inventory. After January 1,
the laid-off employees appeared at the plant on several occasions, individually
and in groups, but they were told that Respondent was not quite ready to resume
operations and to return at a later date.
It appears that Respondent decided to officially teopen on January 13, 1947,
on which morning all the laid-off employees appeared at the plant. They dis-
"The record does not disclose the date that Hindman entered Respondent 's employ.
40 The testimony of Teal was substantially similar.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
covered that their time cards were not in the rack and were informed by the
office assistant that Horton would select those to return. Shortly thereafter,
Horton arrived, conferred with his office assistant, Weaver, and the latter then
announced the names of those who were to return to work. Twenty-four of
those who were present were not selected for return and Horton informed them'
he intended to operate with a "skeleton" crew at first, that they should leave
their names and addresses with the office assistant, and that they would be
called in as needed. The six employees whose names appear above were in-
cluded among the 24 not reinstated on January 13, although three of them, Tay-
lor, Maxey, and Green, as appears below, were subsequently offered reinstate-
ment, and Taylor and Maxey did return to Respondent's employ. The other
three, Courtney, Baker, and Teal, were never recalled to Respondent's employ,
although they, as was the case with the three who were recalled, did leave their
names and addresses with the office assistant, Weaver, as instructed. As for
the other 18 employees who were not reinstated on January 13, the record dis-
closes neither their names nor their subsequent employment history with Re-
spondent, if any.
The General Counsel's first contention herein is that the singling out of these
six employees for lay-off on January 13, was discriminatory and motivated
by their union activity. Secondly, and corollary to the first contention, with
respect to the three who were offered reinstatement, it would seem that it is
the position of the General Counsel that they should have been offered rein-
statement on a date earlier than the date the offer was made. Thirdly, and
also corollary to the first contention, it appears to be argued that the three who
never were reinstated should have been reinstated, if not on January 13, at least
at some later date.
As for the first contention, it may be disposed of briefly. Assuming that all
six named above were active in the Union and that Respondent had knowledge
of their union activities, and, as will appear below, such was the fact, the con-
tention that they were discriminatorily denied reinstatement when the plant
reopened on January 13, overlooks several factors. Firstly, Respondent opened
the plant on January 13 with a greatly reduced staff ; in fact, according to Nettie
Maxey, who testified for the Union, the plant then had approximately one-third
of its full complement, and according to the uncontroverted testimony of floor-
lady Ewalt, Respondent gradually took on more personnel and a full comple-
ment was not reached until sometime in May. Ewalt admitted that the crew
remained at a full complement level for the remainder of that year thereafter.
Secondly, in addition to the above reduction in staff, there is the persuasive fact
that these six were but one-fourth of the over-all group of 24 not reinstated on
January 13. As noted above, the record is silent as to the identity of the re-
maining 18 and their subsequent employment history, if any, with Respondent.
There exists, therefore, no valid basis in the absence of any evidence as to the
identity of the others who were singled out for lay-off, or their union activity or
lack thereof, for making a comparison of the record of the six herein involved
with the other 18. Finally, the record does not disclose the names of those
who were reemployed on January 13, their union activity or lack thereof, or
their seniority or other criteria of value as a worker. It is therefore impossible
to make any valid comparison of the employment history of these six with those
who were reinstated on January 13. In view of the above, any finding which
adopts the General Counsel's first contention herein would be based solely upon
the union activity of the six denied reinstatement, plus the statement by floor-
lady Ewalt that some employees would not • return after the plant reopened.
- QUARLES MANUFACTURING -COMPANY. 719
In the opinion of the undersigned, such a finding would not be based upon pro-
bative and substantial evidence, and the contention of the General Counsel herein
Is therefore found to be without merit.
In order to consider the other two contentions herein, an analysis of the
work record of the six employees involved is necessary. For convenience they
will be considered in two groups ; firstly, those offered reinstatement and sec-
ondly, those to whom no offer of reinstatement was ever made.
a. The employees offered reinstatement; Grace Taylor, Ora Green, and
Nettie Maxey
Each of these three employees was a relatively long-term employee whose
employment dated back to mid-1945, Maxey and Taylor having been hired in
May, and Green in August of that year. All three had been active in the union
campaign, and although Maxey was not present on November 12 when Taylor
and Green were among those observed and listened to by floorlady Ewalt, when
they discussed the selection of a meeting place with the union representatives,
Maxey was interrogated by floorlady Driver on or about December 12 concern-
ing her union activities. There is no evidence of any criticism at any time of
the work of the three and, in fact, Ewalt conceded that Maxey was a competent
operator. As noted above they were not reinstated on January 13, 1947, after
the lay-off, but were offered reinstatement at later dates ; Taylor and Maxey
returned to Respondent's employ on April 4 and May 8, 1947, respectively, after
each had received a post card several days earlier to report for work.41 Green
received a card, on or about May 8 and reported to the plant on or about May 12,
but did not return to work, as will appear below in more detail.
As set forth above, the General Counsel in his second contention herein urged,
in effect, that Taylor and Maxey would have been reinstated on dates prior to
their actual reinstatement on April 4 and May 8, respectively, but for their union
activity. As found above, however, Respondent had reopened the plant with
a substantially reduced number of personnel and did not come up to full strength
until approximately May of 1947. There is evidence that Respondent did hire
some new employees in the months that followed the reopening of the plant.
Thus, on the pants line, one employee was hired on January 27, one on March
13, one on April 24, and five late in May The shirt line hired no employees
-until one was hired in late May. The pants line hired eight more in June and
the shirt line three in that month' The record reveals that Taylor was on the
shirt line at the time of her lay-off and that Maxey was on the pants line at that
time, although' Maxey had" workedi on both lines. There is. also some evidence
that employees were transferred from one line to the other.
Although it is true that Respondent, on widely separated occasions, hired two
new employees before Taylor was reinstated, and a third before Maxey's rein-
statement, it is apparent that Respondent hired no large number of new em-
ployees until some weeks after the reinstatement of these two. Thus,, six
employees were hired late in May and nine in June after the reinstatement of
Taylor and Maxey. Although there is no evidence of the experience or quali-
fications of the three new employees hired in January, March, and April, respec-
41 Before Taylor was sent to her machine on April 4, Horton asked her, as she testified,
if they had ever got the Union organized " Taylor replied that she did not know and
Horton then stated, "I just want to tell you light now, that we are not going to operate a
union, under a union, or anybody that belongs to a union." This threat to and interroga-
tion of Taylor is found to constitute per ae, interference, restraint, and coercion
11 The total for both are : 1 in January, 1 In March, 1 in April, 6 in May, and 11 in June.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tively, and the jobs for which they were hired, the undersigned is of the belief
that the reinstatement of Taylor and Maxey under the circumstances above, and
prior to the hiring of the large group of new employees in fate May and June,
lends weight to the view that Respondent did not discriminatorily withhold its.
offer to reinstate these two to a date later than that on which they would normally
have been reiiistated.43
In the case of Green, she received 9 post card on or about May 6 instructing
her to return to work and she did return some days later, probably on or about
May 12. At that time Horton told her to return on the following morning, May
13, which Green did. According to Green, she then had a lengthy conversation,
with Horton in the presence of floorlady Ewalt, in which she explained that her
delay in reporting back to work was caused by her absence on a trip. Green,
claimed that Horton used profanity when he spoke to her on this occasion, that
he spoke to her in a rough manner, and that he announced that the employees
were being put on piecework and would have 2 weeks to make an assigned quota
on penalty of discharge.' Horton then decided that Green could return to work
that day and Ewalt told Green to report that afternoon immediately after lunch.-
According to Ewalt, whose testimony in this respect impresses the undersigned
as accurately reflecting what actually took place, Horton was angry at the time,,
because he had just discovered that several of the workers had folded some gar-
ments incorrectly, and in discussing this incident with Ewalt in Green's presence-
said, "That is enough to make a man say damn !" Green went home for lunchi
and discussed the entire incident with her sons who advised her not to return to
work because of Horton's language. Green did not report for work that after-
noon and at no time since has sought employment with Respondent.
Under all the circumstances, as set forth above, the undersigned does not be-
lieve that Respondent, as the General Counsel contended, constructively refused
to reinstate Green on May 12, 1947, by the use of profane or rough language in,
her pretence. It is further found for the reasons appearing above in the cases.
of Taylor and Maxey, that Respondent did not, for discriminatory reasons, with-
hold his offer of reinstatement to Green to a date later than that on which she
normally would have been offered reinstatement. It is accordingly found that a
preponderance of the evidence does not support the contentions of the General
Counsel, herein, with respect to the cases of Taylor, Maxey, and Green.
b. The employees not offered reinstatement; Courtney, Baker, and Teal
Margie Courtney entered Respondent's employ as an operator when the plant
opened in May 1945, and worked until January 1946, when she left ; she was
reemployed in September 1946 and worked until her lay-off on December 24.
There is no evidence of any complaints concerning her work, and floorlady
Ewalt conceded that Courtney "did pretty good work." According to former
floorlady Maxey, she never had occasion to criticize Courtney's work.
Marjorie Baker entered Respondent's employ on or about March 1, 1946, and
*as employed until her lay-off on December 24, to unroll bolts of material, and
spread and arrange them on work tables for cutting. There was no evidence of
48 Although the record indicates that almost all jobs in the plant involved sewing, this
is not necessarily true of all the positions It is therefore impossible to say that Taylor
and Maxey could necessarily have handled the first jobs that opened. It seems more likely
that they would have been able to handle the jobs that were filled when the,large group
was hired late in May and in June.
94 The record indicates that Horton was an outspoken man who frequently used rough
language and exhibited a lack of manners in dealing with employees.
QUARLES MANUFACTURING COMPANY 721
:any complaints ever having been made concerning her work or performance of
her duties.
Ethel Teal entered Respondent's employ in May 1946 as an operator. There
is no evidence that her work was ever complained of and Teal testified that she
was told by floorladies Ewalt and Miller, on or about November 19, that her
work was satisfactory. This took place immediately after an occasion, as set
forth above. when Horton questioned Teal concerning her union membership.
According to Teal, she then asked Ewalt and Miller if her work had been
satisfactory and they stated that it was. Miller was not called as a witness.
Ewalt claimed that Teal's work was extremely poor ; that she had tried Teal
on a number of operations and her work was entirely unsatisfactory on all ;
and that she never performed an operation correctly. Ewalt did not deny the
statement attributed to her by Teal. Inasmuch as there was no shortage of
help, there is an inconsistency between the failure to ever discipline or criticize
Teal and the complete,lack of ability attributed to her by Ewalt. Although Ewalt
claimed that she occasionally spent several months in an effort to train an
operator, Teal, had been in the plant for 7 months at the time of her lay-off. In
view of the above, the undersigned does not credit Ewalt's testimony herein.
Each of these three employees had been active in the organizational activities
at the outset of the union campaign and had been observed by floorlady Ewalt
near the plant on November 12, when the union group discussed the selection of
a meeting place that evening. Furthermore, as found above, Ewalt admittedly
had kept Plant Manager Horton advised of union activity in the plant. In fact,
employee Mary Creed bad complained to Plant Manager Horton, in November,
that Teal and Grace Taylor were making her working conditions difficult be-
cause she, Creed, would not join the Union" In addition, both Teal and Courtney
had previously been interrogated by Horton concerning their union activities
and Hornton had threatened Courtney with discharge for her union membership.
Respondent made no contention herein,that Baker was not a satisfactory worker
and Ewalt conceded that Courtney was a competent worker, although in the case
of the latter, Ewalt claimed that Courtney complained a great deal about work-
ing conditions Significantly, however, Courtney, after leaving Respondent's
employ in 1946, was rehired some months later, despite the fact that Ewalt al-
legedly took the view that she did not care whether Courtney returned or not.
Finally, at the time of the lay-off in December, Courtney was in the pants de-
partment and Ewalt admitted that she had lost track of her in the plant.
There is no contention herein that Respondent, in the period prior to the lay-off
in December, was confronted with a scarcity of'help, nor is there any evidence
of such a situation. In view thereof, and in the absence of any complaint having
been made to, or concerning, any of these three employees during their employ-
ment with Respondent, the only logical inference, and the undersigned so finds,
is that each of these three was a competent worker" This is supported by the
fact that Respondent did not state that it was discharging them. It merely laid
them off and announced that they would be recalled. Finally, compelling evi-
dence of Respondent's motivation herein is shown by its later acquisition of new
96 Creed, though she had less seniority than any of the several employees who worked
with her, which group included Teal and Grace Tayloi, was reinstated on January 13 when
the plant reopened
46 Quarles vaguely testified that in an unidentified year he did ask Horton not to
return four operators to work because they talked too much, and that this group included
'Teal and those who worked with Teal Not only is there no evidence of a complaint made
to anyone, but Mary Creed, who was one of the group working with Teal and opposed to
.the Union, was not laid off as were Teal and Taylor This testimony is therefore rejected
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personnel. As found above, in the months following the reopening of the plant
in January, a number of new employees were hired by Respondent, and par-
ticularly so in late May and June, while it made no attempt to recall these three
employees; nor, as of the date of the hearing herein, had any such recall been
made." This impels the conclusion, and the undersigned so finds, that Re-
spondent had no intention of ever recalling these three employees. It is ac-
cordingly found that they were in fact, discriminatorily denied reinstatement
by Respondent.
The question arises as to the date of the discrimination against Courtney,
Baker , and Teal . Although the problem does not permit a precise solution,
the undersigned is persuaded that, under all the circumstances, a date in the
latter part of May 1947 is the most equitable solution for the following reasons.
Prior to May 22 and ,29, on which dates Respondent hired two and four em-
ployees, respectively , Respondent had hireds ' but• three employees ',. and each .was
hired on an isolated occasion in January , March , and April . There is accord-
ingly, some doubt in view of the absence of any evidence as to the jobs filled by
the first three hired on these scattered dates, and the qualifications of those
hired, as to whether it can be reasonably concluded that Courtney, Teal, and
Baker could have handled those jobs. However, at such time as a large num-
ber of employees was hired for jobs, which are in large measure similar , it seems
far more probable that Courtney , Teal , and Baker , would , in the normal course
of events , have been considered for employment . Furthermore, it has been found
above in the discussion of the cases of Taylor , Maxey , and Green , that Respond-
ent did not discriminate against them in offering them reinstatement in April
and May. In view )of the above, and under all the circumstances of this Lase,
the undersigned finds that reinstatement `-'could 'and"should :-have been offered
to at least two of the three employees on May 22 and to one on May 29.'8
The undersigned is persuaded , and finds, in view of Respondent's anti-union
campaign , the union activity of the dischargees and the knowledge by manage-
ment of their activities , their exemplary employment records, and finally, the
addition to the employment staff of new employees while these three were in a
lay-off status , that Respondent has discriminatorily refused to reinstate and has
discharged them because of their union activities , thereby discriminating with
respect to the hire and , tenure of their employment , and thereby interfering
with, restraining, and coercing his employees in the exercise of the rights guar-
anteed by Section 7 of the Act 49
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The,,activiities,of Respondent set forth in Section III, above, occurring in con-
nection, with its operations 'described in Section I, above, have ^a-close, intimate,
and substantial relation to trade, traffic, and commerce among the several States
47 There is nothing in the record to indicate the degree of experience of these new em-
ployees, the criteria used in their selection, or anything other than that they were hired
in both the shirt and pants departments . In view of the smallness of the town of Wills
Point, it would seem that they probably lacked any prior manufacturing experience.
48 Which two of the three would have been reinstated on the earlier date because of
seniority or other non-discriminatory criteria , may be ascertained at a compliance stage by
an inspection of Respondent 's records. 1
49 See N . L. R. B. v. Holtville Ice and Cold Storage Co , 148 F . ( 2d) 168 (C C A 9) ;
N. L. R. B. v. Brezner Tanning Co., 141 F. ( 2d) 62 ( C. C. A. 1); N. L. R. B . v. Pick
Manufacturing Co., 135 F. ( 2d) 329 ( C. C. A: 7 ) ; G imble-Robineon Co v N. L R R.,
129 F . ( 2d) 588 (C. C. A. 8) ; Wilson d Co. v. N. L. R. B., 123 F. (2d,) 411 ( C. C. A. 8) ;
N. L R. B . v. Moitrup Steel Products Co., 122 F. ( 2d) 612 ( C. C. A.'3) ; and N. I). R. B.
v. Entwistle Manufacturing Co., 120 F. (2d) 532 (C C. A. 4).
QLTARLES MANUFACTURING COMPANY 723
and such of them as have been found to be unfair labor practices tend to lead
to labor disputes burdening and obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices affecting
commerce, it will be recommended that he cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
!-laving found that Respondent has discriminated with respect to the hire and
tenure of employment of Minnie Elliott, Gertrude Johnson, Oma Crocker, Gladys
Rushing, Margie Courtney, Marjorie Baker, and Ethel Teal, because of their
union and concerted activities, the undersigned,, will recommend that Respondent
offer immediate and full reinstatement to their former or substantially equivalent
positions," without prejudice to their seniority or other rights and privileges to
all those named except Rushing, who has already been reinstated. It is further
recommended that all found to be discriminated against be made whole for any
loss of pay suffered by reason of Respondent's discrimination, by payment to
each of them of a sum of money equal to that which, she would have earned from
the date of the discrimination against her to the date_ of the offer of reinstate-
ment," less the net earnings '2 of each during that period.
Respondent, in its discharge and failure to reinstate those named above resorted
to the most effective means at its disposal to defeat what the Supreme Court
has termed "the principal purpose of the Act," namely, its guarantee to employees
of "full freedom of association and self-organization." 68 Concurrently with such
discriminatory treatment Respondent made threats that it would close down the
plant if it became organized by the Union which these employees were seeking
to have represent them. The undersigned is convinced that the unfair practices
found herein reflect on the part of Respondent "an attitude of opposition to the
purposes of the Act to protect the rights of employees generally," " and the conse-
quent likelihood of Respondent resorting to other acts of interference, restraint,
and coercion, in violation of the Act. The undersigned will, therefore, recommend
that Respondent be ordered to cease and desist from in any manner infringing
upon the rights of employees as guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following :
CONcIusIONs OF LAW
1. Amalgamated Clothing, Workers of America, affiliated with the Congress of
Industrial Organizations, is a labor organization within the meaning of Section
2 (5) of the Act.
2. By discriminating with regard to the hire and tenure of employment of
Minnie Elliott, Oma Crocker, Gladys Rushing, Gertrude Johnson, Margie Court-
11 In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position where-
ever possible and if such position is no longer in existence then to a substantially
equivalent position." See Matter of The Chase National Bank of the City of New York,
San Juan, Puerto Rico Branch, 65 N L R. B 827
51In the case of Rushing, back pay will be computed only until July 19, the day fol-
lowing the sending to her of an offer of reinstatement and the probable date of its receipt,
as a result of which Rushing later returned to Respondent's employ.
12 See Matter of Cijssett Lumber Co, 8 N. L R. B 440, 497-98
"Wallace Corp v N L. R B., 323 U. S 248.
54 May Department Stores " N. L R. B , 326 U. S. 376
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ney, Marjorie Baker, and Ethel Teal, thereby discouraging membership in a labor
organization, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (3) and Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing his employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (1) and
Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. Respondent has not discriminated with respect to the hire and tenure of
employment of Roy Hindman, Gladys Hindman, Grace Taylor, Ora Green, and
Nettie Maxey.
RECOMMENDATIONS
On the basis of the foregoing findings of fact and conclusions of law, the under-
signed recommends that Respondent, N. B. Quarles, d/b/a Quarles Manufacturing
Company and Southern Wholesalers, his officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Clothing Workers of America,
affiliated with the Congress of Industrial Organizations or any other labor
organization of his employees, by discriminatorily discharging or refusing to
reinstate any of his employees, or by discriminating in any other manner with
regard to their hire and tenure of employment or any term or condition of
employment ;
(b) Interrogating his employees concerning their union affiliation, activities,
or sympathies;
(c) Threaten his employees with the closing of his plant because of their
union affiliation and activities ;
(d) In any other manner interfering with, restraining, or coercing his em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist Amalgamated Clothing Workers of America, CIO, or any
other labor organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Section 7 of
the Act.
2. Take the following affirmative action which the undersigned finds will
effectuated the policies of the Act :
(a) Offer to Minnie Elliott, Oma Crocker, Gertrude Johnson, Margie Courtney,
Marjorie Baker, and Ethel Teal, immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority
and other rights and privileges, and make them and Gladys Rushing whole for
any loss of pay suffered by reason of Respondent's discrimination against them
in the manner outlined in the section hereinabove entitled "The remedy" :
(b) Post at his plant at Wills Point, Texas, on all bulletin boards, or such
places as notices are customarily posted, copies of the notice attached hereto and
marked "Appendix A." Copies of said notice, to be furnished by the Regional
Director for the Sixteenth Region, shall, after being duly signed by Respondent
or his representative, be posted by Respondent immediately upon receipt thereof,
and maintained by him for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted.
QUARLES MANUFACTURING COMPANY 725
Reasonable steps shall be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material ;
4 (c) Notify the Regional Director for the Sixteenth Region in writing, within
ten (10) days from the receipt of this Intermediate Report, what steps Respondent
has taken to comply herewith.
It is recommended that unless on or before ten (10) days from the date of re-
ceipt of this Intermediate Report, Respondent notify said Regional Director in
writing, that he will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring Respondent to take the action
aforesaid.
It is further recommended that the complaint be dismissed insofar as it alleges
that Respondent discriminated with regard to the hire and tenure of employ-
ment of Roy Hindman , Gladys Hindman, Grace Taylor, Ora Green, and Nettie
Maxey.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file
with the Board, Rochambeau Building , Washington 25, D. C., an original and six
copies of a statement in writing setting forth such exceptions to the Inter-
mediate Report and Recommended Order or to any other part of the record or
proceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and six copies of a brief in support thereof; and any
party may, within the same period, file an original and six copies of a brief in
support of the Intermediate Report and Recommended Order. Immediately upon
the filing of such statement of exceptions and/or briefs, the party filing the
same shall serve a copy thereof upon each of the other parties. Statements of
exceptions and briefs shall designate by precise citation the portions of the record
relied upon and shall be legibly printed or mimeographed, and if mimeographed
shall be double spaced. Proof of service on the other parties of all papers filed
with the Board shall be promptly made as required by Section 203.85. As fur-
ther provided in said Section 203.46 should any party desire permission to argue
orally before the Board, request therefor must be made in writing to the Board
within ten (10) days from the date of service of the order transferring the case
to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 27th day of October 1948.
MARTIN S. BENNETT,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, I hereby notify my employees that :
I wrLL Nor interrogate my employees concerning their union affiliation, ac-
tivities, or sympathies.
844340-50-vol. 83-47
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I WILL N,OT threaten my employees with the closing of my plant because
of their union affiliation and activities.
I WILL NOT in any,other manner interfere with , restrain , or coerce my em-
ployees in the exercise of their right to self-organization , to form labor or-
ganizations , to join or assist Amalgamated Clothing Workers of America,
CIO, or any other labor organization , to bargain collectively through repre-
sentatives of their own choosing , and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection.
I WILL NOT discriminate in regard to hire or tenure of employment or any
term' or condition of employment against any of my employees because of
membership in,or activity on behalf of any labor organization.
I WILL OFFER to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed , and make
them whole for any loss of pay suffered as a result of the discrimination :
Minnie Elliott
Oma Crocker
Gertrude Johnson
Margie Courtney
Marjorie Baker
Ethel Teal
I WILL MAKE WHOLE the employee named below for any loss of pay suffered
as a result of the discrimination against her :
Gladys Rushing
All my employees are free to become or remain members of the above-named
union or any other labor organization.
N. B. QUARLES , D/B/A QUARLES,
MANUFACTURING CO. AND SOUTHERN,
WHOLESALERS,
Employer.
Dated---------------------------- BY-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered , defaced , or covered by any other material.