Reidbord Bros. Co.

National Labor Relations Board - Board Decisions

Mar 22, 1971

189 N.L.R.B. 158 (N.L.R.B. 1971)

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reidbord Bros. Co . and Amalgamated Clothing Work-
ers of America, Pittsburgh District Joint Board,
AFL-CIO. Cases 6-CA-4836, 6-CA-4837,
6-CA-4838,6-CA-4839, and 6-RC-5147
March 22, 1971
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On October 15, 1970, Trial Examiner Robert Cohn
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision.' He also found
that Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and
recommended dismissal of such allegations. The Trial
Examiner further recommended that the election held
at Respondent's Buckhannon, West Virginia, plant on
November 20, 1969, in Case 6-RC-5147 be set aside
and that a new election be held. Thereafter the
General Counsel filed limited exceptions to the Trial
Examiner's Decision and a brief. The Respondent
filed exceptions to the Trial Examiner's Decision, a
brief in support thereof, and an answering brief to the
General Counsel's limited exceptions. The Charging
Party filed cross-exceptions in which it adopted the
limited exceptions of the General Counsel and a brief
in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejucicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in these cases and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Reidbord Bros. Co., Elkins, Buck-
hannon, and Philippi, West Virginia, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.3
IT IS FURTHER ORDERED that the election held at
Respondent's Buckhannon, West Virginia, plant on
November 20, 1969, in Case 6-RC-5147 be, and it
hereby is, set aside, and that said case be, and it
hereby is, remanded to the Regional Director for
Region 6 to conduct a new election when he deems
the circumstances permit the free choice of a
bargaining representative.
[Direction of Second Election4 omitted from
publication.]
i Corrected pursuant to errata issued by the Trial Examiner on October
15 and 16, 1970
2 There are no exceptions to the Trial Examiner 's finding that Gladys
Poling was not discharged or constructively discharged in violation of
Section 8(a)(3), his finding that Respondent did not confer "ecomomic
benefits on employees at the Philippi plant because of their lack of activity
on behalf of the Union" in violation of 8(a)(3), his 8(axl) findings, his
findings with respect to the supervisory status of certain individuals, or his
finding that the Petitioner 's objections to the election held at Respondent's
Buckhannon plant be sustained and the election set aside . In the absence
of exceptions thereto , these findings are adopted pro forma
3 In footnote 64 of the Trial Examiner 's Decision, substitute "20" for
"10" days
4 In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them . Excelsior
Underwear Inc, 156 NLRB 1236; N L R B v Wyman-Gordon Co, 394 U S
759 Accordingly, it is hereby directed that an election eligibility list,
containing the names and addresses of all the eligible voters, must be filed
by the Employer with the Regional Director for Region 6 within 7 days
after the date of issuance of the Notice of Second Election by the Regional
Director. The Regional Director shall make the list available to all parties
to the election No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances . Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT COHN, Trial Examiner : This consolidated
proceeding , held pursuant to Section 10(b) of the National
Labor Relations Act, as amended (herein the Act), was
heard at Elkins , West Virginia , on June 2 through 5 and
June 22 through 25, 1970 , pursuant to due notice. The
consolidated complaint, issued March 31, 1970, by the
General Counsel of the National Labor Relations Board,
through the Regional Director for Region 6, alleges, in
substance, that Reidbord Bros . Co. (herein the Employer,
Respondent, or Company) violated Section 8(a)(1) and (3)
of the Act through acts and conduct of its agents and
supervisors more fully detailed hereinafter.'
By its duly filed answer , the Respondent admitted the
jurisdictional allegations of the complaint and also
admitted that certain named personnel were supervisors
within the meaning of Section 2(11) of the Act; however, it
denied that certain other personnel were supervisors, and
i The several charges giving rise to the complaint were filed by
Amalgamated Clothing Workers of America, Pittsburgh District Joint
Board, AFL-CIO (herein the Union), on December 10, 1969, and were duly
189 NLRB No. 19
REIDBORD BROS . CO. 159
generally denied the commission of any unfair labor
practices.
At the hearing, all parties were represented by counsel
and were afforded full opportunity to introduce relevant
testimony, to examine and cross-examine witnesses, and to
argue orally on the record. Oral argument was waived.
Helpful posthearing briefs have been received from counsel
for all parties, which have been duly considered.
Upon the entire record in the case, and from my
observation of the demeanor of the witnesses, I make the
following.
FINDINGS AND CONCLUSIONS 2
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Setting of the Issues
The Respondent, a Pennsylvania corporation, with its
principal office in Pittsburgh, is engaged in the manufac-
ture and sale of men's clothing, and has manufacturing
plants in the States of Pennsylvania and West Virginia.
Only its four West Virginia plants are involved in the
instant proceeding.3 The Company's supervisory staff
includes President Murray Reidbord, Vice President in
Charge of Manufacturing Charles Leff, and at least one
foreman at each of the four plants, all of whom are
admitted supervisors. The supervisory status of the
floorladies at the Buckhannon and Elkins # I plant, as well
as that of a trainee assistant foreman at the Buchannon
plant, is in issue herein.
The Union commenced its organizational campaign
among the employees at the four West Virginia plants on or
about August H, 1969.4 On that date and thereafter, union
representatives met with interested employees of the
Respondent and advised them generally of the asserted
advantages to be derived from joining the Union and
specifically with respect to the working conditions as
reflected in the contract which the Union had with the
Respondent in the Pennsylvania plants. The union
campaign proceeded along usual lines, i.e, the solicitation
of its employees to sign union authorization cards during
their free periods at work and at their homes, the holding of
union meetings, etc. On September 25, the Union notified
the Respondent by telegram of its organizational campaign
and cautioned the Employer not to take any action in
violation of the employees' rights guaranteed by law.
On October 6, the Union, also by telegram, notified the
Respondent that a majority of the production and
maintenance employees of the four plants had authorized
the Union to represent them as their exclusive
collective-bargaining agent respecting wages and working
served by registered mail on the Respondent on December 15, 1969 (Case
6-CA-4839 was amended on March 6, 1970) The representation case
(6-RC-5147), involving objections to an election, was consolidated into the
proceeding by order of said Regional Director, dated May 20, 1970
2 There is no issue as to the Board's jurisdiction or the status of the
Union as a labor organization The complaint alleges sufficient facts, which
are admitted by answer, upon which I may, and do hereby, find that the
Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that the Union is a labor organization within the
meaning of Section 2(5) of the Act The Board recently asserted
jurisdiction over this Employer in Reidbord Bros Co, 184 NLRB No 33
(June 30, 1970), of which official notice is taken
conditions, and requested a meeting. By letter dated
October 7, the Respondent's attorney expressed doubt as to
the validity of the Union's claim and declined to engage in
collective bargaining with the Union's representatives.
Accordingly, on October 10, the Union filed a representa-
tion petition (6-RC-5136) seeking an election among the
Company's production and maintenance employees at all
four plants. On October 27, this petition was amended to
seek an election only among the production and mainte-
nance employees at the Employer's Elkins # 1 plant while
simultaneously filing three additional petitions seeking
elections among the Employer's production and mainte-
nance employees at the other three West Virginia plants .5
The elections were held at all four plants on November
20. The Union received a majority of the valid votes cast at
three plants (Elkins # 1, Elkins #2, and Philippi) but lost
the election at Buckhannon. In apt time, the Union filed
objections to conduct affecting the results of the election at
Buckhannon, and, as previously noted, on May 20, 1970,
the Regional Director directed a hearing on said objections
and ordered the case (6-RC-5147) consolidated with the
instant proceeding for the purpose of hearing.
The consolidated complaint alleges that Respondent,
through its officers and agents, interfered with, restrained,
and coerced its employees in the exercise of their
organizational efforts by various acts and conduct includ-
ing promises of benefit if the employees would refrain from
joining the Union, surveillance of union activities, interro-
gation concerning union activities, threats of economic
reprisal should the employees select the Union as their
collective-bargaining representative, and, finally, discnmi-
nation against some six employees in retaliation for their
union activities. Since some of this alleged unlawful
conduct was assertedly engaged in by floorladies and by an
assistant foreman trainee whose supervisory status is in
doubt, this issue should be the first to be discussed and
resolved.
B. The Supervisory Status of the Floorladies6
The record shows that during the critical time herein the
number of employees in the unit approximated 110 at the
Elkins # 1 plant and 138 at Buckhannon. At Buckhannon
there was only one admitted supervisor: Foreman Paul
Griffith; at Elkins # 1 there were two conceded supervisors
(demoninated "plant managers" by President Murray
Reidbord): James Civello over the trouser department and
Guy Bennett over the shirt department. At each plant there
were two floorladies: Virginia Gregory and Clara Rowan at
Buckhannon; Jean Rowan and Georgie Martin at Elkins
# 1. Orders are transmitted from the Pittsburgh main office
3 The poor proceeding involving the Employer was concerned with
unfair labor practices at the two Pennsylvania plants of the Company The
four plants involved herein are located at Elkins (Elkins # I and Elkins
#2), and one each at Buckhannon and Philippi , West Virginia
4 All dates hereinafter refer to the calendar year 1969 unless otherwise
indicated
5 See Cases 6-RC-5145, 5146, and 5147
6 They are Virginia Gregory and Clara Rowan at Buckhannon and
Georgie Martin and Jean Rowan at Elkins # I The parties at the hearing
stipulated and agreed that the authority, duties, and responsibilities of the
floorladies are sufficiently similar that they may be considered together for
the purpose of determining supervisory status
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the plant managers or foremen and then through the
floorladies to the production employees (primarily sewing
machine operators).
Each floorlady has the responsibility of approximately 35
to 50 employees, which consist of several lines of
production. It is the principal function of the floorlady to
assure that production flows smoothly and expeditiously
through the lines while, at the same time, maintaining
necessary quality. Thus it is the duty of the floorlady to
train new employees and otherwise assist other employees
in their work; to survey the work of the operators several
times a day either alone or in the company of the foreman;
to check the work of the employees and, if it is not being
done properly, to direct the employee to redo it; and to
perform work at a machine herself if necessary; however,
the extent to which she might engage in this latter duty
might vary rather extensively over a period of time. It is also
the duty of the floorlady to check the timecards of the
operators after work commences in the morning to see
which employees are present or absent. Furthermore, it is
the responsibility of the floorlady to note on the timecard
any occasion in which an employee goes on "straight
time." 7
The record reflects a general consensus among the parties
to the duties and responsibilities of the floorladies above
described. There is also no contention that the floorladies
have the right, on their own responsibility, to hire, fire,
layoff, suspend, promote, reward, or discipline employees.8
There is likewise general agreement that a floorlady has
authority, in the absence of the foreman, to allow a sick
employee to go home and to temporarily transfer an
employee from one job to another for a short period of
time .9 However, there is substantial variance in the
testimony as to the authority of the floorladies to assign or
transfer employees from one operation to another without
prior clearance from the foreman. Jean Rowan testified
that she could move an operator temporarily from one
place to another without checking with Foreman Bennett,
but that she usually discussed with Bennett a decision to
transfer a girl if such a transfer contemplated a period of a
week. Also, exfloorlady Nan Lit Corbin testified that she
had authority to switch girls from one machine to another
when it was required. Both Gregory and Clara Rowan
denied having such authority. However, considering the
probabilities of the situation along with the demeanor of
the witnesses, I am inclined to credit Jean Rowan and
Corbin. Moreover, although Gregory denied having any
supervisory authority with respect to the operators in her
section of the plant, she clearly felt she had the right to
7 Most sewing operations at the Employer's plants are on piecework or
quota basis, however, some jobs are paid on a straight hourly rate If an
employee is transferred from the former to the latter during a working day,
it is the responsibility of the floorlady to make such a notation on the
employee's timecard so that the employee will be paid the straight time
rate , i e., the minimum rate under law, for performing that operation
B There is testimony of an exfloorlady who accused an employee of
wasting time in the bathroom and instructed her to check out or "I'll check
you out," and did so However, Foreman Richard Riley testified that he
advised the floorlady when he learned of the incident not to do that again
or she would be reprimanded.
9 The evidence shows that the foremen are rarely absent from the plant.
At Elkins # I either Civello or Bennett , or both, are usually present, at
Buckhannon , Griffith is normally present except for 2 weeks in the summer
instruct the operators in her section of what types of
clothing she considered proper to wear in the plant.10 And
she finally conceded under cross-examination that she had
certain authority with respect to maintaining discipline in
the plant and that Griffith would instruct her to watch a
particular operator more closely than others as regards
whether such operator was performing her job properly. I
also note that a floorlady (Georgie Martin) was present at
the discharge of Coberly (infra).
Analysis and Conclusions as to Supervisory Status
of Floorladfes
The term "supervisor" is defined in Section 2(11) of the
Act as meaning:
.. . any individual having authority, in the interest of
the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such
action, if in connection with the foregoing the exercise
of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.
It is by now well established that this section "is to be
interpreted in the disjunctive,"" so that the possession of
any one of the above enumerated criteria is sufficient to
place the employee involved within the supervisory class.
As may be expected after 23 years in the administration of
the statute, as respects this section, there have been
hundreds of cases decided by the Board and courts bearing
upon this issue in many different industries, involving many
types of leadmen or "straw bosses" whose authority over
other employees is subject to be determined under the
above-quoted definition. However, "it is a question of fact
in every case as to whether the individual is merely a
superior workman or a lead man who exercises the control
of a skilled worker over less capable employees, or is a
supervisor who shares the power of management." 12 It
appears that, in several recent cases involving the garment
industry, the Board has held that floorladfes of the type
involved herein, possessing and exercising similar duties,
functions, and responsibilities, including the authority to
responsibly direct employees in their respective depart-
ments, are supervisors within the meaning of the Act.13
Accordingly, I find and conclude that the above-named
floorladies are supervisors within the meaning of the Act.
C. Supervisory Status of Larry Evans
This young man (22 years of age) has been employed by
when he goes to the National Guard During that time the Respondent
transfers Richard Riley, foreman at the Philippi plant , to Buckhannon to
take over the duties of Griffith
10 See discussion of the Gregory-Naomi Cnss incident, infra
11 Ohio Power Company v. N L R B, 176 F 2d 385, 387 (C A. 6), citing
N L R B v Edward G Buda Mfg Co, 169 F 2d 517 (C.A 6), cert denied
335 U S 908
12 N L R B v Southern Bleachery & Print Works, Inc, 257 F 2d 235, 239
(CA 4)
13 See C & M Sportswear Mfg Corp, 183 NLRB No 29, Ottenheimer
and Company, Inc, 144 NLRB 38, 43, Mid-South Mfg Co, inc, 120 NLRB
230, 243, Brewton Fashions, Inc, a Division of Judy Bono 145 NLRB 99, 107,
enfd 361 F 2d 8 (C A 5), cert denied 385 U S 842
REIDBORD BROS. CO.
the Respondent for approximately 4 years. He commenced
work as a presser in the Elkins #2 plant in 1966, and
worked there for about 3 years. His last year of employment
has been at the Buckhannon plant where he has been
training to be an assistant foreman. The evidence shows
that in that capacity he necessarily consults with and assists
Forman Griffith in checking production and performs
work of an inventory control nature such as keeping stocks
of thread. He also assists in loading and unloading trucks.
He is present with Griffith at times the latter is interviewing
prospective employees or talking with employees concern-
ing their production; however, he does not participate in
these discussions nor does he make any recommendations
to Griffith respecting employment or discharge. Evans
punches the timeclock, is not paid for time off (as is
Griffith), does not train new employees, nor does he have
any authority with respect to hiring, firing, promoting,
disciplining, or effectively recommending any of these
things. In connection with his duties in assisting the
foreman, he does, on occasion, check the timecards of
employees and on one occasion, when the starting bell rang,
told the employees that it was time to go to work. Also, in
connection with his inspection of the work, he has
concededly requested an employee to redo work which was
not up to the required quality.
On the basis of the foregoing, counsel for the General
Counsel argues that Evans, like the floorladies, has
sufficient authority to constitute him a supervisor within
the meaning of Section 2(11). I disagree. Unlike the
floorladies, there is no evidence that he has, on his own
initiative, given employees time off, or trained new
employees, or given instructions respecting sewing to older
employees, or taken any action respecting control in the
plant, such as in the Gregory-Naomi Criss incident, infra.
Moreover, unlike floorladies, should Evans be found to be
nonsupervisory, there would not exist the great dispropor-
tionate ratio of employees to supervisors as the Board has
found to be a significant factor in determining supervisory
status (see cases cited in footnote 13, above; see also M & M
Charter Lines, Inc. d/b/a M & M Charter Bus Lines, 173
NLRB No. 96, section in, C, 1, d). Accordingly, I find that
there is not sufficient evidence in the record to conclude
that Evans is a supervisor within the meaning of the
statute,14 and I will recommend that those allegations in the
complaint which allege that Evans engaged in conduct in
violation of Section 8(a)(1) of the Act be dismissed.
D. Interference, Restraint, and Coercion
1. By Murray Reidbord
The consolidated complaint alleges, in substance, that
Murray Reidbord, president of Respondent, on or about
October 8, threatened employees with plant closure and
cessation of operations if the employees selected the Union
as their collective-bargaining representative, and promised
14 In addition to the evidence above cited, respecting Evans' duties at the
Buckhannon plant since August 1969, there is evidence that on a few
occasions , consisting of 4-week periods , from November 1969 until May
1970, Evans worked as a head presser on the second shift at the Elkins #2
plant . However, he was not in charge of the pressing although there were
occasions when no other management representative would be present
161
benefits to the employees in order to dissuade them from
becoming members of the Union.
According to the evidence, the asserted promise of
benefits was made by Reidbord to the employees at a
meeting of the Reidbord Quota Club at the Elkins # 1 plant
on Tuesday, October 7. Briefly stated, the "club" is an
organization limited to employees of the Company at the
Elkins plants who join on a voluntary basis and pay
monthly dues of a nominal amount. These dues are
matched on a dollar-to-dollar basis by the Company. The
purpose of the club is to provide health and hospitalization
insurance, as well as possible social benefits, to the
employees. Similar clubs exist at the Buckhannon and
Philippi plants as well as at the Respondent's Pittsburgh
location. Indeed it was found in the earlier case ( Reidbord
Bros. Co., 184 NLRB No. 33), that the Pittsburgh club was
organized along the lines of the earlier established West
Virginia clubs.
According to the credited testimony of employees
Margaret Lewis and Betty Monroe, the employees were
discussing at the club meeting the disposition of assets
should the club be dissolved, when Murray Reidbord came
in and spoke to them. He reminded the employees
(approximately 75 to 100 were present at the meeting) that
half of the money in the club was his and that he did not
intend to allow anyone to distribute it. The advent of the
Union was then apparently raised by an employee who
inquired whether Mr. Becker, the union representative,
would be allowed to come to the meeting and Reidbord
refused saying that only club members could come to club
meetings. He then went on to compare the Respondent's
plant with those shops "down south" which were not
Union; that he was having difficulty in competing with
them; and he could not pay the 10 percent which he would
apparently be required to pay to the Union's health and
welfare program should the Union be voted in. He
reminded the employees that if they wanted larger benefits
they could raise the dues to 3 or 4 dollars (they were $2 per
month at the time) and that he would match it. Finally, he
stated that he and his family had enough money to live on
without his working.
Reidbord was called as a witness by the General Counsel
under Rule 43(b) of the Federal Rules of Civil Procedure,
but his testimony was limited to that concerning the
organizational structure of the Respondent. He was not
thereafter called upon by the Respondent to respond to the
statements attributed to him by the employee witnesses.
Accordingly, as noted, I credit their testimony and find
that, in the context of the antiunion statements made by
him on this occasion, the reference to increased benefits,
above described, to be paid for partially by increased
company contributions, necessarily implied to the employ-
ees that they would be better off to handle their health
benefits through the employee club rather than through the
Union. This particulary where he advised that he was not
able to afford to pay the percentage required by Union to
Moreover, there is insufficient evidence that he either possessed or
exercised supervisory authority of the character required by Section 2(11) on
these occasions Even if it were so found, the Board has consistently held
that such sporadic exercise of such authority is not sufficient to constitute a
person a supervisor within the meaning of that section See Stewart &
Stevenson Services, Inc, 164 NLRB 741, 742
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finance its program. It is, of course, well established that
such a promise of increased benefits in return for rejection
of the Union constitutes a violation of Section 8(a)(1) of the
Act. I so find.15
On October 8, Reidbord made a speech to employees at
all four West Virginia plants, which speech was from a
prepared text which is incorporated in the record herein as
General Counsel's Exhibit 10. In essence, the speech related
the history of the Company in West Virginia, and how it
had benefited the employees in the communities in which
they lived. He then adverted to "strangers in town," i.e., the
union representatives, who had told the employees lies
concerning the Company's policies and who were only
interested in their own welfare, i.e., through the dues which
the employees would pay to the Union. Reidbord made
reference to the fact that the net profit of the Company was
very small in relation to invested capital and that the same
amount of capital invested in utility bonds would bring a
greater return. With respect to conditions in union plants,
Reidbord advised that employees lose their freedom to
complain directly to management where there is a Union in
the plant since "all complaints must go through the union
agent , and if for some reason a girl does not get along with
the business agent, she is in trouble." He also referred to the
possibility of assessments which the Union might impose
upon employees in order to finance their strikes in other
parts of the country. He asserted that the rates in the
Company's union plants were no higher than those in the
West Virginia plants.
Finally, with respect to solicitation for the Union,
Reidbord stated:
It has come to my attention that there are certain
girls going around the plant telling other girls if they do
not sign a union card, they will lose their job if the
Union comes in. I want to make it clear now that this is
not true and we will not have anymore of this going on.
Any girl who threatens another girl with such lies will be
fired. Anyone who has signed a union card may ask for
its return.16
Summarizing, Reidbord implored the employees not to
let "a bunch of strangers" break up the good relationship
which the Company had established with its employees
over the years, and to "protect your job, protect your
future, but do it intelligently."
Considering the speech in the light of applicable Board
precedent, 17 I am convinced that the speech here, as in the
cited case , "contains `veiled threats that if the employees
selected the Union as their bargaining representative, the
harmony between Respondent and employees [which
prevailed before] the advent of the Union would no longer
exist and the employees would take sides with the Union
against the Employer in a never-ceasing conflict resulting
in adverse economic consequences to the employees.' " 18
Thus Reidbord warned that the Company was already
operating on a thin profit margin and that the demands of
15 1 note that a similar appeal (to handle benefit programs through an
employee club rather than through the Union ) was made by Reidbord in
the earlier case , and was found to be a violation of the Act See Reidbord
Bros Co, 184 NLRB No 33 (TXD, § Ill, C)
iH This paragraph has significance in assessing the Employer 's motive in
two of the alleged discrimination cases, infra
17 See Graber Mfg Co, Inc, 158 NLRB 244, enfd , 382 F 2d 990 (C A
the Union would probably topple the already precarious
financial position of the Company; that the employees
would not receive any more or better benefits than they
already had by voting the Union in-indeed, as noted
above, they might lose the advantages that they already had
with particular respect to the health and welfare benefits.
Moreover, he misstated the law when he advised that, with
a Union at the plant, employees could not "go directly to a
supervisor and register a complaint." Section 9(a) of the Act
expressly provides that "any individual employee or a
group of employees shall have the right at any time to
present grievances to their employer and to have their
grievances adjusted, without the intervention of the
bargaining representative, as long as the adjustment is not
inconsistent with the terms of a collective-bargaining
contract or agreement then in effect: Provided further, That
the bargaining representative has been given opportunity to
be present at such adjustment." As my colleague, Trial
Examiner Fannie M. Boyls, noted in Block-Southland
Sportswear,i Inc., 19 "this statutorily protected right of
employees thus to present their own grievances and to
speak for themselves is undoubtedly a right cherished by
many employees and [the employer's] statement that after
the Union came in, employees would not be able to go to
him with their problems was, by its nature, the threat of the
loss of benefit in reprisal for the selection of a Union."
Accordingly, I find and conclude that Reidbord's October
8 speech to the employees interfered with, restrained, and
coerced them in their rights guaranteed by Section 7, in
violation of Section 8(a)(1) of the Act.
2. By Guy Bennett
The consolidated complaint alleges that Bennett, a
conceded supervisor at the Elkins # 1 plant, on or about
October 9, engaged in surveillance of a union meeting held
at the Moose Club Hall in Buckhannon, West Virginia.
Bennett, a witness for the Respondent, testified that he had
known about the meeting approximately 2 weeks prior to
October 8. He further testified that he was late getting home
that night so he, his wife, and 18-year-old daughter
decided to go out to eat and went to Baxa's Restaurant,
which is located beside the Moose Hall where the union
meeting was to be held. He testified that he arrived there at
approximately 7 p.m. and parked in the Moose parking lot
which is located across the street but approximately
130-140 feet diagonally down the street from the Moose
Hall.20 Bennett's car was parked with the front facing the
Moose Hall and one could view the entrance looking across
the left front fender of the automobile. Bennett further
testified that', they came out of the ^ restaurant, about 8 p.m.
and, while his daughter stopped to talk to some friends, he
and his wife went back to their car and waited for her. A
few minutes later, Bennett and his wife, while sitting in their
car, were approached by Union Representative John
7), Barnwell Sportswear, Inc, 183 NLRB No 11, section III, B
18 Graber Mfg Co, supra, 249
19 170 NLRB No 101 (TXD)
20 Although the parking lot is referred to in the record as the Moose
parking lot, the evidence shows that it is in fact a municipal lot which has a
gate paying machine as one leaves the parking lot
REIDBORD BROS. CO.
Butler Butler testified that he had been standing in front of
the Moose Hall when several union members from the
negotiating committee at Elkins told him that they had seen
Bennett parked in the parking lot across the street. Butler
walked across the street to the lot, took the license plate
number from Bennett's car, and asked Bennett if he was in
fact the supervisor at Elkins # 1 plant.21 Bennett's wife
advised Butler that they had a perfect right to park in a
public parking lot, but Butler claimed that such conduct
constituted a violation of the Act, and he went back across
the street. After Butler left, Bennett told his wife to get their
daughter and, at this point, the daughter came out of the
restaurant and the Bennetts left at approximately 8:10 p.m.
Although the circumstances are suspicious, it is to be
recalled that the General Counsel has the burden of proof
on this issue (as on all issues in the case), and I am
constrained to find that he has not sustained this burden by
substantial evidence considered on the record as a whole.
Thus, although Bennett concededly knew of the union
meeting in advance, the fact remains that such meeting was
held in a downtown location, in a building on a public
street, next to a public restaurant across from which was a
public parking lot. Bennett and his family clearly had the
right to eat at the public restaurant and to park his car in
the public parking lot. The fact that the car was parked in a
position so that the occupants could view the building in
which the meeting was held does not, of course, make out a
case of surveillance. Nor is there evidence that the Bennetts
tarried unduly long while parked there (there being no
evidence in refutation of Bennett's testimony that during
the time they were parked they were awaiting the end of
their daughter's conversation with friends), nor is there
evidence that either Bennett or his wife was making
notations of persons who attended the meeting while they
were waiting.22 Accordingly, I will recommend that this
allegation of the complaint be dismissed.
3. By Virginia Gregory
The complaint alleges that on or about September 25 and
October 8, at the Buckhannon plant, Virginia Gregory
interrogated employees about their union activities and
prevented them from wearing union buttons; and, on or
about November 19, engaged in surveillance of a union
meeting at the fire hall in Buckhannon.
Gae Linger, an employee at the Buckhannon plant,
testified that around the first part of October, in the plant,
Gregory asked her what she thought of the Union and she
replied that she always did believe in organized labor;
whereupon Gregory responded that if the Union came in
"he wouldn't be able to get orders." About a week later, at
lunchtime, Gregory was talking about the fact that the
Respondent had lost a "process order." 23 According to
Linger's testimony, Gregory stated that the Company had
lost the order before when someone underbid the
Respondent and that "he probably wouldn't get it back."
21 Butler testified on cross-examination that it was approximately 7 50
p in when the three employees from Elkins informed him of Bennett's
presence in the parking lot.
22 Compare Linn Mills Company, 116 NLRB 96, 100
23 This refers to the name of a company for whom the Respondent
manufactures clothing
163
Gregory denied having any conversation with Gae Linger
about the Union; however, Gregory was not impressive as a
witness. Her testimony was punctuated with frequent and
long pauses in response to many simple and direct
questions and she seemingly attempted to avoid giving
candid and responsive answers to such questions. Accord-
ingly, I credit the testimony of Linger who impressed me
favorably as a witness , and find that the statements
attributed to Gregory occurred substantially as she
testified. It is well established that such interrogation
concerning Linger's union activities , coupled with a threat
of loss of work should the Union come into the plant,
constitutes interference , restraint, and coercion within the
meaning of Section 8(axl). I so find.
As respects the surveillance incident, the uncontradicted
evidence shows that the Union held a meeting at the fire
hall in Buckhannon the evening before the election.
Gregory, along with another employee of the Respondent,
was sitting in a car which was parked facing the fire hall
about 20 yards from the entrance. The car remained there
approximately 3 hours during the time the meeting was
held.
In its brief (page 25), Respondent "admitted that Gregory
engaged in surveillance of the union meeting on November
19, 1969." Counsel was unable to explain why she did this
on the eve of the election, suggesting "that it could not in
any way affect the outcome of the election and served at the
most to satisfy wh: t appears to be only her curiosity, the
Respondent submits that this does not justify a remedial
order." I disagree. Assuming the innocence of Gregory's
motivation, the impact of her conduct is rendered no less
coercive in the eyes of the law, as was well explicated by
Chief Judge Brown of the Fifth Circuit Court of Appeals in
Hendrix Mfg. Co., Inc. v. N.L.R.B., 321 F.2d 100, at
footnote 7:
Surveillance becomes illegal because it indicates an
employer's opposition to unionization, and the furtive
nature of the snooping tends to demonstrate spectacu-
larly the state of the employer's anxiety. From this the
law reasons that when the employer either engages in
surveillance or takes steps leading his employees to
think it is going on, they are under the threat of
economic coercion, retaliation, etc.
Accordingly, I find and conclude that Gregory's conduct
on this occasion violated Section 8(a)(1) of the Act, and I
will recommend an appropriate remedial order.
As respects the union button allegation, the evidence
discloses that employee Naomi Criss came into the plant
one day in October wearing two union buttons, one worn
over each breast.24 Shortly after work commenced,
Floorlady Gregory walked past Criss' machine, stopped,
reached over and yanked the buttons off her shirt, and
threw them in the box on her machine. When Gregory
asked Criss why she was wearing the buttons, the latter
replied, "because she wanted to," and Gregory turned
around and walked away.
24 During the organizational campaign , the Union had two so-called
"union button days" On those days, the Union apparently exhorted all
adherents of the Union to wear such buttons openly so as to impress
management officials as well as other employees with the vigor of the
campaign One of such buttons, about the size of a half dollar, was
introduced in the record
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gregory conceded taking the buttons off Criss on this
occasion, stating that she did so because "she had them
right on the nipples and told Criss that `it didn't look very
nice , that if she wanted another badge, I would bring her
mine , and she could put them on.' "
On rebuttle, Criss testified that shortly after the incident
Gregory returned to her and "apologized for taking the
buttons off of me and she told me that I could put the
buttons back on and wear them where I wanted to and she
had a third button that she would give me to wear in a
certain place if I wanted to wear it only she didn't say a
certain place, she used a filthy word." Criss testified that
she did not wear the buttons that day, but that she did
subsequently during the campaign There is no evidence
that Gregory, or any other supervisor, interfered with the
wearing of the union buttons by any employee at any other
time during the campaign.
In my view, there is not substantial evidence to sustain an
allegation that the Respondent, by this one incident,
interfered with the legitimate right of its employees to wear
union buttons during the union campaign. Clearly, the
motive behind Gregory's conduct was prompted by
moral-not union-considerations. While I agree with
counsel for the General Counsel that Gregory's motive for
the removal is not the test for violation,25 the circumstances
dictate the conclusion that it was the place where Criss was
wearing the buttons and not the fact that she was wearing
them which prompted Gregory to remove them. That this is
the more reasonable inference to be drawn is confirmed by
the fact that many employees who either viewed the
incident or were later told about it regarded it in a jocular
vein. Accordingly, I find and conclude that the General
Counsel did not sustain his burden on this issue and will
recommend that this allegation of the complaint be
dismissed.
4. By Clara Rowan26
Employees Ruby Allmaker and Helen Wilson testified
that several weeks before the election on November 20, in
conversations with Floorlady Clara Rowan, the latter
stated that if the Union came in the Company would close
down the plant because the only reason Reidbord brought
the plant to West Virginia was because there were no
unions there. Although, according to the testimony of
Wilson, Mrs. Allmaker opined that the Government would
25 "It is well settled that the test of interference, restraint , and coercion
under Section 8(a)(l) of the Act does not turn on the employer ' s motive or
whether the coercion succeeded or failed The test is whether the employer
engaged in conduct which , it may reasonably be said , tends to interfere
with the free exercise of employee rights under the Act." (Citing cases )
American Freightways Co, Inc, 124 NLRB 146, 147
26 The consohdated complaint alleges that in October, at the Buckhan-
non plant, Jean Rowan threatened employees with plant closure if the
employees selected the Union as their collective-bargaining representative.
The evidence discloses that in fact Jean Rowan is a floorlady at the Elkins
# I plant and that Clara Rowan is a floorlady at the Buckhannon plant
The evidence disclosed (as General Counsel concedes in his brief) that the
alleged threat was made by Clara Rowan, as hereinafter discussed
General Counsel , in his brief , page 22 , acknowledges the inadvertency
but claims that Respondent was not prejudiced because the General
Counsel's case-in-chief was completed on June 5 , 1970, and Respondent
was not required to go forward until June 22, 1970 Moreover, the
allegations were fully litigated (Citing cases ) I agree with General Counsel
not allow Reidbord to close the plant, Rowan insisted that
he would.27
It is well established that such a bald threat to close the
plant should the employees select the Union as their
collective-bargaining representative constitutes interfer-
ence , restraint , and coercion within the meaning of Section
8(a)(1) of the Act. I so find.
5. By Don Carr
The complaint alleges that Don Carr, a conceded
supervisor at Elkins #2 plant, unlawfully interrogated
employees concerning the union activities of other
employees and solicited surveillance of such activities, and
that he further threatened employees with plant closure if
the employees selected the Union as their
collective-bargaining representative.
Employee mechanics Alvin Monroe and Charles Sponau-
gle testified that during August Foreman Carr called them
into the office and asked if they had heard any of the girls
talking about the Union or if they knew anything about the
union campaign. They replied that they knew nothing
and that they had only heard rumors. Carr, noting that
the mechanics are able because of their position to circulate
freely throughout the plant, requested that they listen to see
if they could hear anything about the Union and report
back to him-"but not let the girls know anything about
it." He further advised the two men that Reidbord could
not afford the Union because of the 7 percent which the
Union charged for hospitalization, etc., and that the plant
would probably have to close. Several weeks later,
according to Sponaugle's testimony, Carr approached him
about once a day and wanted to know what he had found
out, but that he never reported anything to Can. Monroe
testified that Can never did question him again about the
subject matter.28 It is well established that the foregoing
interrogation, request to engage in surveillance , and threat
to close the plant if the Union came in are violations of
Section 8(a)(1) of the Act. I so find.
6. By Richard Riley
The complaint, as amended at the hearing, alleges that
Richard Riley, a conceded supervisor, in October, at the
Buckhannon plant , threatened employees with plant
closure and cessation of operations if the employees
on this point and will consider the matter as fully litigated and ripe for
resolution on the merits See J C Penney Co, Inc v N.LR B, 384 F.2d
479 (C A 10), where it was stated
"Courts as well as the National Labor Relations Board have held that
a material issue which has been fairly tried by the parties should be
decided by the Board regardless of whether it has been specifically
pleaded " [Citing case .] And, ". where evidence is received without
objection , the pleadings are to be deemed amended "
27 Although Rowan denied making the statements attnbuted to her, she
was not impressive as a witness and I credit the testimony of the employees
as above found
28 General Counsel opined in his brief that the reason for this was that
Monroe's name appeared on union literature in October as a member of
the union negotiating committee
The foregoing findings are based upon the credited testimony of Monroe
and Sponaugle , Carr admitted that he interrogated the men but denied that
he threatened either of them that the Company could not afford to pay the
7 percent and that the plant would have to shut down Such denial is not
credited
REIDBORD BROS CO 165
selected the Union as their collective-bargaining represent-
ative.
Riley is foreman at the Philippi plant, but works from
time to time in all of the West Virginia plants. During
October and November, he traveled among the plants and
spoke to practically all of the employees in small groups of
approximately 10 to 12 employees concerning the issues
raised by the union campaign. Thus the thrust of his
remarks was an attempt by a management official to
respond to the union literature which was being disseminat-
ed during the campaign. Such union literature apparently
referred to the lack of dignity on the job which employees
suffered without a union, and Riley questioned the women
on that issue . According to his testimony, "all of the girls
that I talked to, felt that they had dignity." He questioned
how "outsiders" could advise the employees how bad the
working conditions were when they had not been inside the
plant to observe them. When the matter of the "new
process" contract arose during a question and answer
period following the speech, he stated that the Company
had lost this contract because it could not compete with the
prices that other garment factories had offered, particularly
a company in Mississippi. He explained that their cost was
lower than the Respondent's because of less expense for
transportation. He denied telling them that the wages paid
by employers in the South was less because, as he
explained, the employers paid the minimum wage the same
as Reidbord did.
In support of this allegation, counsel for the General
Counsel proffered two employee witnesses , the first of
whom testified that Riley stated that the Company could
not compete with the plants in the South-that "they just
couldn't pay union wages or something to that effect;" The
other witness testified that she did not remember too much
about the speech, but afterwards she asked Riley if the
Philippi plant and both Elkins plants went Union would
they (the Company) shut them down, and he shook his head
affirmatively. However, Riley stoutly denied that the
question was ever asked and that he gave any such
affirmative reply. He further testified that this particular
witness had a strong personal bias against him, which
testimony is uncontradicted on the record. I credit Riley in
this respect and find that the General Counsel did not
sustain his burden of proof on this allegation and that the
remarks of Riley were protected by the provisions of
Section 8(c) of the Act. I shall therefore recommend that
this allegation of the complaint be dismissed.
E. Alleged Discriminatory Conduct
1. Conferring of economic benefits
The complaint, as amended at the hearing, alleges that in
November "Respondent conferred economic benefits on
employees at the Philippi plant because of their lack of
activity on behalf of the Union, and deprived similar
benefits to other employees at Philippi plant because of
their activity on behalf of the Union, where in both cases
the action was taken in order to discourage membership in
the Union." This allegation was based on the testimony of
Richard Riley, on cross-examination , when he conceded
that some employees at the Philippi plant were not invited
to attend his talks (described above) because they were
hard-core union members and he apparently did not
believe that he would be able to dissuade them from
adherence to the Union. These employees, therefore,
remained at work while the other employees attended
Riley's speeches, on company time, and were paid at the
straight-time rate during the period of their attendance.
Although not fully explicated either on the record or in
his brief, it is apparently the General Counsel's theory that
Respondent violated Section 8(a)(3) and (1) of the Act by
conferring economic benefits (consisting of permitting
some employees to listen to antiunion remarks by a
management official while being paid straight time) while
denying that privilege to other employees who had
exhibited their staunch adherence to the Union, and
allowed (or required) them to continue at work . I have been
referred to no authority for such proposition, nor I have
been able to uncover any through independent investiga-
tion . However , the controlling principles of an 8(a)(3)
violation are well established . In Radio Officers' Union v.
N. L. R. B., 29 the Supreme Court held:
The language of § 8(a)(3) is not ambiguous. The
unfair labor practice is for an employer to encourage or
discourage membership by means of discrimination.
Thus this section does not outlaw all encouragement or
discouragement of membership in labor organizations;
only such as is accomplished by discrimination is
prohibited . Nor does this section outlaw discrimination
in employment as such ; only such discrimination as
encourages or discourages membership in a labor
organization is proscribed.
Subsequently in the opinion, the Court held that
Congress intended the employer's purpose to be control-
ling.
Applying the foregoing principles to the facts at hand, it
is apparent that the Employer "discriminated" among its
employees, i.e., treated them differently by ordering some
to attend an antiunion speech while allowing others to
remain at work . It is also clear that the reason for such
difference of treatment was based upon union considera-
tions, i.e., Respondent 's representative did not believe that
he could persuade certain hard-core union members to
change their minds and that it would be useless to waste his
time and theirs in so attempting . Accordingly , it is clear that
the Employer intended no "conferring of benefits" upon
the employees who were directed to hear the talk.
Moreover, there is no evidence that the employees who
were allegedly discriminated against would have preferred
to listen to an antiunion talk rather than remain at their
machines. Indeed , based upon this Examiner's knowledge
of and experience with industrial plants which work on a
piece-rate basis , the majority of employees earn more
money per hour at their piece rate than they would on a
straight-time rate which is, in the instant case, the
minimum wage. Accordingly, it is doubtful-and certainly
not proven-that the alleged discriminatees herein
suffered either financial or psychological disadvantage
from not being allowed to hear Riley's remarks . According-
29 347 U S 17 (1954)
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ly, as previously noted, I find that the General Counsel has
failed to sustain his burden on this allegation , and will
recommend that the complaint be dismissed to this
extent 30
2. Alleged individual discriminatees
a. Linda Wilfong
The complaint alleges that, on or about September 15,
Respondent reduced the hours of Linda Wilfong for
discriminatory reasons.
Wilfong commenced work for the Respondent at the
Buckhannon plant in 1963. Her principal job since that
time was the seaming and hemming of bottoms, which is a
piecework or quota job. Since approximately 1966, Wilfong
also made belt loops on occasions, which is a straight-time
job. In June or July 1969, Hazel Herron, the regular belt
loop girl, quit, and it was determined by management that
this particular operation would not be filled with a regular
operator but that work of this nature would henceforth be
divided among Wilfong, Theresa Sheets (who had also
worked on belt loops on occasions), and Floorlady Clara
Rowan. Thus during the remainder of the summer until at
least the second week in October,31 Wilfong's principal job
was sewing bottoms but she also shared in the belt loop
operation. However, even during this period, the record
shows that, particularly during July and August, Wilfong
did not make as many hours on the belt loop operation as
Theresa Sheets.32
Respondent's records show that, during October, No-
vember, and December, Sheets and Schaeffer performed
substantially more belt loop work than Wilfong, the latter,
of course, not performing any work on belt loops following
October. Wilfong testified that when she was taken off belt
loops during the second week in October she returned to
her job sewing bottoms along with Madeline Penney, and
that they divided up the work between them. She further
testified that, commencing in approximately the second
week in November, she voluntarily went home on frequent
occasions because she did not feel well, and she did not
work at all during the months of February, March, and
April because of illness.
Foreman Griffith and Floorlady Rowan, witnesses for
the Respondent, testified that Sheets and Schaeffer worked
more on loops because they did not have enough work on
their regular jobs. This testimony is unrefuted; indeed,
Wilfong testified that she observed Schaeffer doing things
other than her regular job, including "chopping crotch
pieces, sewing repairs, [and] sweeping the floors." It is true,
as contended by General Counsel, that, during the last
week in October and continuing through the months of
November, December, and January, Wilfong worked a
lesser number of hours per week than Schaeffer and Sheets;
however, she concededly left work frequently on a
voluntary basis. Moreover, company records reflect that,
30 Nor am I able to find that the Employer's discriminatory conduct
here was "inherently destructive " of important employee rights under the
circumstances See N LR B v. Great Dane Trailers, Inc, 388 U.S 26 (1967)
31 Wilfong testified that she was taken off belt loops on the second
Tuesday in October. However, Respondent 's records indicate that she
performed several hours of work during the weeks ending October 17 and
24 (see G C Exh. 11)
during the 3-month period September-November inclu-
sive, Wilfong's average hours worked per month were 134
whereas for the first 8 months of the year the average hours
worked per month were 113.62.
In sum , the General Counsel proved a puma facie case of
discrimination as respects Linda Wilfong by showing that
she was one of the most active union adherents in the plant,
that the Respondent knew it, that the Respondent was
opposed to the Union coming into its plants, and that
thereafter the work which this employee had been
performing prior to the advent of the Union slackened and
was eventually taken away. However, the Respondent then
came forward and proved that a legitimate and justifiable
business end was served by its conduct, that in fact the
employee was not unduly harmed in that she worked more
hours per month following the alleged discrimination than
before it, and, finally, that if she was in fact harmed such
was in part due to her own conduct, i.e., voluntarily leaving
work. I find, under these circumstances, that the General
Counsel has not sustained his burden of proof on this issue
through substantial evidence, and will recommend that the
complaint, to this extent, be dismissed.
b. Gladys Rose Poling
The complaint alleges that the Respondent discharged
and/or constructively discharged Gladys Rose Poling, an
employee at the Buckhannon plant, on or about January
29, 1970, for discriminatory reasons . Respondent contends
that Poling quit her employment of her own volition.
Poling started working for the Respondent on July 8 as a
blindstitch operator in the Buckhannon plant. There is no
question but that Poling was one of the more active
employees in the union campaign . Thus she passed out
union buttons in the parking lot, solicited another employee
to sign a union card in the presence of Supervisor Riley,
and questioned President Reidbord following the latter's
speech on the day before the election concerning the
difference in the quotas between the Pittsburgh and West
Virginia plants. Paul Griffith, foreman of the Buckhannon
plant, testified that he was aware that Poling was active in
the Union from the fact that she gave out union buttons
and literature and that she was subsequently on the Union's
negotiating committee.
However, Poling was not what one might describe as an
exemplary employee from the standpoint of production.
Company records reflect that she did not once make her
quota while she worked there. (See Resp. Exh. 3).33
According to Poling's testimony, about a month after she
commenced work, Griffith came to her machine and said
that she was doing "real good, to keep up the good work."
Although Griffith did not specifically deny this conversa-
tion, I give it little probative weight in view of the
uncontradicted documentary evidence reflecting her poor
production record. In any event, she further testified that in
32 During this period the record shows that another employee, Joyetta
Schaeffer , also performed some belt loop work though not as much as
Sheets and Wilfong (G C. Exh 11)
33 Poling testified that she made her quota once while she worked for
the Respondent , and that is possible since the Respondent's exhibit
showing her earnings commences the week ending September 12, 1969,
records prior to that time apparently not having been available.
REIDBORD BROS . CO. 167
November Griffith called her into his office and advised
that her work performance had deteriorated and suggested
that she improve it. She told him that she would "do the
best that [she] could." 34
Griffith testified that he had another conversation with
Poling concerning her production on December 11 in which
she advised that she would try her best to improve . About a
week later , on December 18, according to the testimony of
Griffith, Poling came to his office and stated that she would
like to give a 2 months ' notice to quit to take care of her
mother-in-law (sometimes referred to in the transcript as
her grandmother). He told her that as long as she showed a
gain in production that he would accept her notice and she
advised that she would be leaving around the last of
February.35
On January 28, 1970, shortly after 3 p .m.,36 Poling was
called into the office of Foreman Griffith for the purpose of
discussing her production.37 Company records indicate that
Poling ' s production had, except for one insignificantly
small rise during 1 week in January, steadily declined from
the week ending December 12 until the week ending
January 23. Griffith showed this record to her and asked
her the reason , explaining that it was his job to see that the
employees made their quota or had a reason . Poling replied
that she was doing the best she could and if that wasn't
enough that they could fire her. Griffith responded that it
was not his purpose to fire her but rather to see if he could
help her . Poling , becoming increasingly excited , insisted
that the Company wanted to fire her or get rid of her and
asked why didn 't they lay her off. Griffith retorted that it
was not his purpose to punish her ; whereupon , Poling
stated that she would just quit . At that point Richard Riley
stated that that was a decision that she would have to make
for herself . At or about that time , the afternoon buzzer rang
indicating the end of the workday. As Poling got up to
leave , she stated that she would be back tomorrow to pick
up her check.38
The following morning Poling went to the plant at the
usual time (at or about 6:55 a .m.-starting time is 7 a.m.)
and found that her timecard was missing from the rack. She
asked to speak to Griffith and he told her that he thought,
on the basis of the previous afternoon's discussion , that she
34 Griffith testified that this conversation occurred on or about October
21
35 Poling denied that she had such a conversation and denied that she
ever gave a notice of quitting However, Griffith 's testimony is
corroborated in part by that of Clara Rowan , and I am inclined to credit it
based both on demeanor considerations as well as subsequent events even
though I have, as previously set forth, discredited some of Rowan's
testimony "It is no reason for refusing to accept everything that a witness
says, because you do not believe all of it, nothing is more common in all
kinds of judicial decisions than to believe some and not all" N LR B v
Universal Camera Corporation, 179 F 2d 749, 754 (C A 2, 1950).
36 The time is based upon the credited testimony of Janet Randolph, the
office girl at the Buckhannon plant who testified that she was the one who
called Poling to Griffith's office at that time
37 Poling was the last of a number of employees who had been called
into Griffith's office that afternoon for that purpose
38 The foregoing findings are based upon the testimony of Griffith,
Riley, and Evans which is, in essence , mutually corroborative Poling's
testimony is not essentially at variance with the above except that she did
assert that a reason for her decrease in production was the changing of
material and that she became so upset that she commenced crying She
asked them if she was being fired and both Riley and Griffith said no, to
use her own judgment As she was leaving, she stated , " I will be back
had quit, and that further he had placed another employee
on her job. Whereupon, she stated that it made no
difference and asked for her check. Griffith directed the
office girl to secure Poling's check. While this was going on,
Griffith asked Poling to sign a file card which stated that
she had quit her employment. Poling signed the card and
lef09
Analysis and Concluding Findings as to Poling
Counsel for the General Counsel, in his brief, argues that,
based on the evidence, Respondent terminated Poling for
discriminatory reasons, and that, in any event, even if it be
found that Poling stated that she quit on January 28,
"Respondent should be held to have constructively
discharged Poling." I have already found, as indicated
above, that Poling advised Respondent's officials both on
December 18 and January 28 of an intention to voluntarily
leave the employment of Respondent 40 The question then
becomes whether or not such quitting amounts to a
constructive discharge as that term has been applied by the
Board in such situations. I find that General Counsel did
not sustain his burden of proof on this issue. Thus it is to be
recalled that, during her whole period of employment,
Poling did not (save perhaps 1 week) make her quota.
However, even after her union activities became known to
Respondent, its officials did not unduly torment or harass
her by threatening discharge or other dire consequences if
she did not improve her production. Rather, in the January
28 interview, they sought to ascertain the cause thereof and,
if possible, assist her. Moreover, there is no evidence that
Poling was singled out for "treatment" on January 28, the
uncontradicted evidence showing that she was one of
several employees who were called into the office that day
for the purpose of discussing low production.
However, General Counsel points to Poling's testimony
that her low production was caused, in large part, by the
Company's switching her work from belt loops to "fancy
pants," and that her machine would not sew the latter.41 In
this connection, mechanic Jack Canter credibly testified
that during December and January he was called many
times to Poling's machine on the complaint that it was
skipping, and that he would check the work and the
tomorrow , and I said if I don't, I will make arrangements to pick up my
check until I do. So then I left out crying, and I went on home "
39 The foregoing findings are based upon the testimony of Griffith,
which is corroborated in its essential respects by Riley, who was present
and by Evans and Randolph who were nearby and heard parts of the
conversation Poling, in her testimony , stated that she had not quit but that
the management representatives kept insisting that she had Whereupon,
she asked if her check was ready and, crying during the while , she accepted
the check, signed the card (without reading it), and walked out.
The check which the office girl gave to Poling was for the previous 2
weeks' work, and had been received in the Buckhannon plant from
Pittsburgh only the afternoon before
40 In subsequent proceedings , a deputy of the West Virginia
Department of Employment Security found that Poling "told the Employer
she was leaving," and found "the separation to be a voluntary quit
without good cause . . " (Resp . Exh.2 ) This decision was not appealed
by Poling. In accordance with Board precedent ( Mitchell Plastics, Inc, 117
NLRB 597, In. I), I received the decision into evidence However, I have
not accorded it controlling weight in reaching my ultimate conclusions
herein
41 "Fancy pants" do not require loops and involve a different styled
pocket However, apparently , the material used is the same as on regular
pants
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
machine and found nothing wrong with it. On these
occasions, Poling would advise Canter that it was working
all right at that time. In addition, Foreman Richard Riley
(who had mechanical skills) checked Poling's machine at
the request of mechanic Canter and he was unable to locate
any mechanical difficulty.42 Again, there is no evidence
that Poling was singled out from other operators in the
same category for discriminatory treatment.
In sum, I find a lack of substantial evidence to prove that
Respondent altered Poling's working conditions "or
otherwise engaged in conduct of a kind calculated to force
her to quit." 43
c. Darlene Hutzell
The complaint alleges that Respondent discharged
Darlene Hutzell on or about October 10 for discriminatory
reasons; Respondent contends that Hutzell was separated
for cause, i.e., failure to make her quota.
Hutzell commenced working for the Company on the last
occasion on July 16, as a pocket setter.44 She testified that,
on the occasion of her being hired by Foreman Guy
Bennett, the matter of her being able to make her quota was
not mentioned although she had never made her quota on
the previous occasions she worked for the Company.
The testimony is uncontradicated that Hutzell was quite
active in the union campaign. Thus, she attended the union
meetings, above described, in September and October; she
passed out union buttons, pamphlets, and other materials at
the plant before worktime; she wore a union button openly
while at work on several occasions; and she left union
literature on her machine and, on occasion, Foreman
Bennett, while checking the work, stopped and picked up
the material and read it. However, the record shows that
Hutzell never made her quota of production, and she
admitted to having been warned on at least one occasion
about this prior to October 8.45 It is to be recalled that this
was the day on which President Reidbord made his speech
in the plant, above described. Shortly following the speech,
Hutzell was called into the office in the presence of
Foreman Bennett and Civello and was told that the
Company was in a "tight squeeze," that they had to
"tighten up some and if I didn't have my quota by Friday,
that they would have to let me go."
This news was quite upsetting to Hutzell and she went
back to her machine crying. Floorlady Jean Rowan came
over and asked what was wrong and Hutzell told her what
happened. As Rowan was leaving, she stated, "You know
why they are doing this." Hutzell replied, "Sure." Either
that day or the following, Hutzell had trouble with her
machine and called the mechanic, Paul Monroe, to fix it.
42 On the occasions where a mechanic is working on the machine of an
operator, a spare machine is available-or at least it was in Poling's
case-for her to work on
43 Cf Action Wholesale, Inc d/b/a A L French Company, 145 NLRB
627, 628
44 The two previous occasions were (1) in 1966 or 1967 when she worked
for a month and then went overseas with her husband, (2) the second
occasion occurred in 1969 when she worked for 2 or 3 months and quit
because her husband was moving out of town
45 She could not remember the date of this occasion Bennett testified
that he warned her on two occasions, once on October 1 and once following
The trouble was that the feeder was worn which resulted in
the material not being pulled through the machine properly.
Monroe testified that he resharpened the feeder because he
did not have a new one, taking approximately a half hour to
fix it 46
On Friday, October 10, near quitting time, Bennett
advised Hutzell that she had not gained enough to reach
her quota and that, while he hated to let her go, he was
forced to do so.
Analysis and Concluding Findings as to Hutzell
There, is no question but that Hutzell's position was quite
vulnerable due to her inability to attain earnings proximate
to her quota. Thus, although the record does not establish
the exact amount of work comprising the quota, it was
required to be at least $1.60 per hour (the minimum wage);
otherwise the operator is in "makeup" which means that the
Company is losing money. The closest that Hutzell came to
reaching this figure was for the week ending September 19
at which time she achieved an hourly rate of $1.25. Of
course, the existence of a valid reason for discharge does
not constitute a defense if the reason is because the
employee engaged in union or concerted activities. On the
other hand, "if an employee is both inefficient and engaged
in union activities, that is a coincidence that does not
destroy the dust cause f or his discharge. " 47
Although the circumstances here are suspicious primarily
because of the timing, I cannot say that there is substantial
evidence to prove that Bennett would not have reached a
similar conclusion had Hutzell not been engaged in union
activities. Certainly, the fact of such engagement does not
immunize an employee from disciplinary action and, as the
Board held in Klate Holt Co. :
The mere fact that an employer may desire to terminate
an employee because he engages in unwelcome
concerted activities does not, of itself, establish the
unlawfulness of a subsequent discharge. If an employee
provides an employer with a sufficient cause for his
dismissal by engaging in conduct for which he would
have been terminated in any event, and the employer
discharges him for that reason, the circumstance that
the employer welcomed the opportunity to discharge
does not make it discriminatory and therefore unlawful
[citing cases ].48
I therefore find and conclude that the General Counsel did
not, by a preponderance of the evidence, prove that
Respondent terminated Hutzell in order to discourage
union membership in violation of Section 8(a)(3) and (1) of
the Act, and I will recommend that the complaint be
dismissed in this respect 49
the week ending August 15 when her production dropped to $.76 per hour.
46 He testified further that it probably took a half hour to 45 minutes
from the time he was notified by Bennett of the problem until he was able
to get to Hutzell's machine During this period, Hutzell attempted to work
on a spare machine, but she had to thread it and discovered that it was not
running properly because it kept breaking the thread
47 N L R B v Birmingham Publishing Co, 262 F 2d 2, 9 (C A 5, 1958)
48 161 NLRB 1606, 1612
49 In his brief, counsel for the General Counsel points to the fact that
another employee on this operation (Wilda Martin ), in 1968, failed to make
her quota and was not discharged However, Martin showed a continuous
REIDBORD BROS. CO 169
d. Pauline Phares and Linda Gibson
The complaint alleges that the Respondent discharged
Pauline Phares on or about November 3 and Linda Gibson
on or about November 4 for discriminatory reasons.
Respondent contends that the two employees were
discharged for making threats to other employees, thereby
creating friction in the plant. Since the two cases involve a
similar principle, they will be considered together.
Phares, an employee of some 11 years with the Respon-
dent, became active in the union campaign almost from the
beginning. She conspicuously wore union buttons, passed
out authorization cards, and attended the union meeting in
October, previously described. The day after this meeting
she had lunch with two other employees, Jean Antolini and
Helen Haddix. The discussion revolved around what had
occurred at the union meeting the night before, and Phares
advised that they had discussed wages, hospitalization,
retirement, working conditions, and the union shop. Phares
explained that in a union shop all employees were required
to belong to the Union. Antolini inquired when the
employees would have to loin, and Phares replied that she
did not know but probably "30, 60 or 90 days."
Antolini, a witness for the General Counsel, testified that
one day during the latter part of the summer she had a
conversation with Phares during which the latter said that
they were getting a union in the plant and that "we had to
sign a card or we would be fired." When Antolini asked
how long they had, Phares replied that she did not know for
sure but she thought maybe 3 or 4 weeks-"6 weeks at the
most." Subsequently, according to Antolini's testimony, she
mentioned to Foreman Bennett that someone was trying to
organize a union but Bennett "just laughed and went on.
He acted like he didn't pay any attention to me" Haddix,
also a witness for the General Counsel, testified that the day
after the union meeting Phares came by her machine and
gave her some union literature and that they had a
discussion about it at noon. She corroborated Phares on the
point that the latter, when questioned by Antolini, stated
that in a union shop every employee would have tojoin the
union.
Apparently, neither Antolini nor Haddix advised Fore-
man Bennett directly concerning Phares' "threat." They
discussed the situation with another employee, Pearl Roy,
who, in turn, advised Bennett of the circumstances of the
conversation among Phares, Antolini, and Haddix.50
Shortly thereafter Bennett called Antolini and Haddix into
his office, seriatim, the same day. Haddix told him that
Phares had advised her and Antolini, during break or lunch
time, that, if they did not sign a union card and a union
came into Reidbord Brothers, they would lose their jobs.
Antolini advised him substantially the same thing.
Without any prior discussion of the matter with Phares,
Bennett, on November 3, at the end of the workday, called
her into his private office (in the presence of Foreman
improvement (save I week) from the time of her employment in July until
she quit in November Also, as respects the other pocket sewer who worked
at the time of Hutzell (Sally Wansley), the record shows that she was a
trainee whose work record improved steadily until such time as she was
earning above the minimum wage (Resp Exh 5)
50 According to Bennett's testimony, Roy reported to him that Phares
had told the other two employees that if "they didn't sign a union card,
Civello) and advised that she was no longer an employee of
the Respondent. Phares responded that she would tell him
exactly what she told those girls-that "if we got the
Union voted in and got a union shop that everybody had to
belong to the Union in a union shop . . ." She asked
Bennett if it was "over the Union" that she was being fired
and he said yes, unhesitatingly.si
Linda Gibson, an employee of over 6 years with the
Respondent, was, like Phares, discharged by Bennett
because of an alleged threat concerning union security
made to another employee, Thelma Summerfield. Summer-
field testified that, after the first union meeting, Gibson
came to her and said that "they had told her at the union
meeting that if you did not sign within 6 weeks after the
union came in, you would be fired." Bennett testified that
one morning Summerfield stopped him at her machine and
stated that a girl had told her that if she did not sign a union
card and the Union came in to Reidbord that she would be
fired. However, Summerfield, at that time, did not say who
the "girl" was. About a week later, Bennett learned through
Pearl Roy that Linda Gibson had been giving Thelma "a
pretty rough time" in that Gibson told Summerfield that, if
she did not sign a union card and the Union came in the
plant, she would be fired. Later that day, Bennett
questioned Summerfield who confirmed to him what Pearl
Roy had stated, and that she did not want to lose herjob.
Bennett assured her that she would not be fired for signing
or for not signing.
Subsequently, at the close of the workday, Bennett called
Gibson into his office and, without giving her any
opportunity to deny or explain her asserted conduct,
advised that he was discharging her because she had made a
threat against another employee.
Analysis and Concluding Findings as to Phares
and Gibson
In its brief (pages 83--84), Respondent stated as follows:
General Counsel, in his opening address, stated, inter
aba, that "Respondent discharged, two leading organiz-
ers, two leading union organizers, namely Pauline
Phares and Linda Gibson, under the mistaken belief
that they had threatened other employees that these
employees would have to join the union or lose their
jobs." First, the testimony does not establish that they
were more than active union members , and (2)
Respondent contends that they were fired for making
threats despite a warning by the president of the
Company that such acts would result in discharge; that
even if the statement of General Counsel is true, if
management was mistaken in its belief , the discharge
was made under a mistaken belief that these employees
and a Union came in to Reidbord that they would lose their Jobs "
51 Credited testimony of Phares Bennett conceded that he discharged
her because she made threats against another employee , but testified that
during the interview Phares asked him who made the threats against her
and he would not tell her Bennett denied that Phares told him what she
said to the other employees , but did not deny that he had not discussed the
matter with Phares at any time prior to the discharge
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were guilty of making illegal threats and not for umon
activities 52
It is my view that this aspect of the case is controlled by
the Board's opinion in Burn up and Sims, Inc 53 In that case,
the Respondent, based upon information supplied by an
employee (Tate), denied reinstatement to two other
employees because Tate asserted that the two employees,
while soliciting him for membership in the Union, had told
him that the Union would use dynamite to get in if the
Union did not acquire the authorization. There, as here, the
Respondent did not investigate the matter further by
talking with the perpetrators of the alleged misconduct but
rather rested its case on its good-faith belief in the
information supplied it. There, as here, the Respondent
knew that the alleged misconduct was asserted to have
taken place while the solicitors were engaged in protected
union activity, was strongly opposed to such conduct, and
had a desire to rid itself of the leaders of such protected
concerted activity. I, therefore, find and conclude that,
particularly in view of the summary nature in which
Bennett discharged these employees without giving them an
opportunity to deny or explain their actions,54 Respondent
by the discharge of Phares and Gibson, on November 3 and
4, respectively, because of their union activity, violated
Section 8(a)(3) and (1) of the Act.55
e. Catherine Coberly
The complaint alleges that the Respondent discharged
Catherine Coberly on or about December 2 for discrimina-
tory reasons. Respondent asserts that it discharged Coberly
for cause, i.e., because she made threats to other employees.
The factual situation involving this aspect of the case is
rather unusual and somewhat complicated . It may be
briefly summarized as follows: Employee Opal Bright was
51 It is to be recalled that, in his speech of October 8, President
Reidbord did in fact state as follows "It has come to my attention that
there are certain girls going around the plant telling other girls if they do
not sign a union card, they will lose their job if the Union comes in I want
to make it clear now that this is not true and we will not have any more of
this going on Any girl who threatens another girl with such lies will be
fired Anyone who has signed a union card may ask for its return " (G C
Exh 10, p 4)
53 137 NLRB 766, 771-773, enforcement denied in this respect 322
F 2d 57 (C A. 5), reversed 379 U S 21 (1964)
54 See, e g, United States Rubber Company v N L R B, 384 F 2d 660
(C.A 5), where the court stated, "Perhaps most damning is the fact that
both Brewster and Morales were summarily discharged after reports of
their misconduct without being given any opportunity to explain or
give their version of the incidents" See also the observation of Judge
Prettyman, speaking for the court in E Anthony & Sons, Inc v N L.R B,
163 F 2d 22, 26-27 (C A D C.), cert denied 332 U S 773 "All were
discharged summarily, without preliminary warning, admonition or
opportunity to change the act or practice complained of Such action on
the part of an employer is not natural. If the employer had really been
disturbed by the circumstances it assigned as reasons for these discharges,
and had had no other circumstance in mind, some word of admonition,
some caution that the offending laspe be not repeated, or some opportunity
for correction of the objectionable practice, would be almost inevitable
The summariness of the discharges of these employees, admittedly
theretofore satisfactory, gives rise to a doubt as to the good faith of the
assigned reasons "
55 Moreover, I would find, as did the Supreme Court in Burnup and
Sims, that the discharges here violated Section 8(a)(1) even if a case under
Section 8(a)(3) could not be made out, since I would find under all the
circumstances here that the two employees did not, in fact, engage in
misconduct In the first place, assuming the veracity of the reports made to
advised by another employee, Howard Lambert, that
Coberly had made threats of physical violence against
Bright. The fact is that Coberly actually made no such
threat-that it was a figment of Lambert's imagination.
However, Bright reported the threat to her floorlady who in
turn told Foreman Jimmy Civello. On December 2, Civello,
in the presence of Foreman Bennett , Vice President Leff,
and office girl Bailey, called Bright and Lambert into the
office (apparently separately) and interrogated them
concerning the matter. Lambert, a witness for the General
Counsel, admitted telling Bright that Coberly was "going to
punch her other eye out" (Bright had only one eye), but
maintained that he meant it only as ajoke. Leff asked him
why he did not joke about someone else to which Lambert
replied, "on account of Catherine wearing all of them
[Union] buttons." 56 At the close of the interview, Bright
and Lambert signed a paper which apparently stated that
they agreed to forget about the incident.57 According to
Lambert's undenied testimony, Coberly was still working
on that day because he saw her at her machine when he
went to the office.
The following afternoon, at the close of the workday,
Coberly was called into the office with Opal Bright. Present
were Civello, Bennett, Bailey, and Georgie Martin, the
floorlady. Civello directed Bright to relate the circum-
stances of the alleged threats, which Bright did.58 Civello
then allowed Coberly to speak and she testified as follows
respecting what she stated on this occasion:
Well, I was crying and Jimmy told Opal to let
Catherine what she wants to say. So I said I didn't say
any of it, it is all lies, I said Opal why should I be
worried about what goes on between you and Howard, I
said I don't even know you. She said that's right. She
said that's what I said to Howard. She said I don't know
you and you don't know me, and about that time Jimmy
management , the statements complained of "contained neither assertions
which the employees could not evaluate nor threats within the Union's
power to carry out " (Globe Motors, Inc, 123 NLRB 30, 32)
Moreover, the subject of union security is quite technical and ofttimes
confusing to experts in the field of labor law It is certainly not less so to
these less sophisticated sewing machine operators The Union in this case,
in its literature , advised the employees in West Virginia of the
union-secunty provisions of its contract with the Respondent in its
Pennsylvania plants, which provisions are clearly protected by the first
proviso to Section 8(a)(3) The record here makes it abundantly plain that
Phares and Gibson were merely attempting to convey to the employees
that, if the Union were successful in its organizational efforts in the West
Virginia plants, they might reasonably expect that union membership as a
condition of employment would be bargained for and secured there as in
Pennsylvania Since West Virginia is not a so-called "right-to-work" State,
this provision would appear to be legal. Thus, I would find that the
asserted misconduct never occurred, and that a discharge of an employee
arising out of a protected activity is an 8(axl) violation despite the
employer's good faith N LR.B v Burnup and Sims, Inc, 379 U S. 21,
22-23
56 Coberly testified that on occasions she wore union buttons all over
her clothing-sometimes up to two dozen of them She also wore
"homemade" buttons as well as the manufactured ones Some of the
legends on the former stated such things as "Don't worry about Murray, he
got his silver spoon from us Now let's get ours"; "Down with the $1.60
sweat shop", "Ask not what you can do for Reidboard, but what you can
do for yourself "
57 This document was not introduced into the record herein
55 In addition to the alleged threat related by Lambert, Bright
apparently received a threatening telephone call which was attributed to
Coberly.
REIDBORD BROS . CO. 171
excuse Opal and she went out back to work and Jimmy
said to me, he said, Catherine I have had another
complaint on you, he said this isn't the first time. He
said, I have had a written statement that you forced a
girl to sign a union card. And I said, I know all about it
Jimmy, I said, the girl's out there in the plant bring her
in here. I said it is Eunis Hornbeck. I said it's been
rumored all over this factory. I said I also had three
other girls help me to force her to sign that card. I said
you can call them in but he refused, he just sit there and
he didn't answer me. He said I should have fired you
that time he said, but I felt that you wasn 't that type of a
girl. He said but since this complaint has come up about
this, he said, Charley Leff told me to take action, and he
said as of now, he said, I no longer need you and you
are dismissed, and that was just about the time for the
bell to ring, so I went up and got my things and I was
going out the door as the rest of the girls were going out.
On redirect examination, Coberly expounded upon what
she told Civello regarding the incident in which she
allegedly forced an employee to sign a union card, as
follows:
Q. In reference to the signing of the card, what did
you tell Civello?
A. About forcing the girl?
Q. Yes. What did you say?
A. I told him that I had never forced anybody to
sign a card, that I didn't even talk to the girl, I knew just
about who was company and who wasn't. Then I told
him I said, I didn't force anyone to sign a card and I
told him that he could bring those girls in that who was
supposed to have helped me force that girl, and bring
her in, but he wouldn't even answer me.
Q. You say that was "supposed to" have helped
you, where did you hear that from?
A. It was a rumor all over the plant.
Q. You heard it from other employees?
A. Yes.
About a week later, on December 11, Coberly returned to
work for the Respondent apparently on the behest of
Lambert's sister who, being concerned that her brother's
prevancations were instrumental in Coberly' s dismissal,
prevailed upon Leff to call her back to work, which was
done.
Analysis and Concluding Findings as to Coberly
the matter of Coberly's union activities into the case and
asserted that an additional reason for the Respondent's
action was Coberly's asserted forcing of another employee
to sign a union card. This was vigorously dented by Coberly
who requested that witnesses be called in to ascertain the
truth of the matter. However, the Respondent's officials did
not bother to do this either at the exit interview or did they
offer their agent, Foreman Civello, as a witness in these
proceedings, although no reason for his failure to appear
was proffered. Under these circumstances, I credit
Coberly's uncontradicted denial and find that she did not
in fact engage in the conduct attributed to her, i.e., forcing
another employee to sign a union card.
Accordingly, I find and conclude that, since the discharge
was motivated, at least in part, by discriminatory reasons
proscribed by Section 8(a)(3), and that Coberly did not, in
fact , engage in any misconduct which rendered her union
activities unprotected, her discharge on December 2
constituted a violation of Section 8(a)(3) and (1) of the Act,
and I will recommend an appropriate remedy.
If. THE OBJECTIONS
As previously noted, the Union's objections to conduct
affecting the results of the election at Buckhannon were
consolidated for the purpose of hearing with the complaint
proceedings by order of the Regional Director dated May
20, 1970. The thrust of the allegations comprising the
objections is that prior to the election the Employer's
officials threatened plant closure and other threats of
reprisal for engaging in union activities; engaged in
surveillance of a union meeting; and discriminated
concerning terms and conditions of employment in order to
discourage membership in the Union. As hereinabove set
forth, I have found that substantial evidence supports some
of these allegations and not others 61 However, I have
found that during the critical period the floorladies at the
Buckhannon plant engaged in surveillance of a union
meeting and threatened employees with plant closure
should they select the Union as their collective-bargaining
representative. I find that these unfair labor practices
committed by management representatives during the
critical period precluded a fair election and effectively
denied the employees their statutory rights freely to express
their views. I shall therefore recommend that the results of
the election be set aside and a new one held.
The record amply establishes that Coberly was one of the
most active union adherents in the plant, and that this
knowledge had come to the Respondent's officials, prior to
the decision to discharge her.59 Moreover, substantial
evidence indicates that Respondent's officials were aware
of the falsity of Lambert's attributions to Coberly even
before the discharge. Finally, the uncontradicted evidence
is that, during the exit interview, Foreman Civello injected
59 For example, in addition to the evidence relating to her wearing the
union buttons hereinabove adverted to, the record shows that, following
the speech by President Reidbord on the day before the election , she had a
dialogue with Reidbord which was not complimentary to the Company,
and from which a reasonable inference of her union proclivities was
certainly conveyed to the Respondent 's officials
60 N L R B v. Hanes Hosiery Division, Hanes Corp, 413 F 2d 457, 458
III THE EFFECT OF THE UNFAIR LABOR , PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section I,
above, occurring in connection with the operations of the
Respondent described above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes
(C A. 4, 1969); Winchester Spinning Corp v N.L R B, 402 F 2d 299, 304
(C A 4, 1968), N L R B v. Dove Coal Company, 369 F 2d 849, 852 (C A 4,
1966) See also Burnup and Sims, Inc., supra
6i It is to be recalled that the objections apply only to such acts and
conduct which may have occurred on and after October 10 , the date the
petition was filed. See The Ideal Electric and Manufacturing Co, 134 NLRB
1275
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
burdening and obstructing commerce and the free flow
thereof.
Upon the basis of the foregoing findings of fact, and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. By unlawfully interrogating employees concerning
their union activities, by threatening employees with plant
closure or other dire economic consequences if they
selected the Union as their collective-bargaining represent-
ative, by promising increased economic benefits if the
employees renounced the Union as their
collective-bargaining representative, by threatening em-
ployees with loss of their right to talk with management
about their grievances if they selected the Union as their
bargaining representative, and by engaging in surveillance
and securing other employees to spy upon the union
activities of its employees, the Respondent has interfered
with, restrained, and coerced employees in the exercise of
rights guaranteed them in Section 7 of the Act, m violation
of Section 8(a)(1) of the Act.
4. By discharging employees Pauline Phares, Linda
Gibson, and Catherine Coberly, as described above, the
Respondent discriminated against employees in regard to
their hire and tenure of employment, and terms and
conditions thereof, and in order to discourage membership
in the Union and their participation in concerted activities,
and thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. Except to the extent that violations of the Act have
been specifically found, as set forth above, the General
Counsel has failed to establish by a preponderance of the
evidence the remaining allegations of the complaint herein,
and it will be recommended that said complaint be, to that
extent, dismissed.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) and (3) of the
Act, I shall recommend that it cease and desist therefrom
and take affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent discriminatonly dis-
charged Pauline Phares, Linda Gibson, and Catherine
Coberly, I shall recommend that the Respondent offer each
of them immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges (to the extent
that it has not already done so),62 and that they be made
62 The record reflects that Coberly returned to work on or about
December II and that Phares returned to work on or about March 30, 1970
However, the record does not reflect whether these women returned to
whole for any loss they may have suffered by reason of the
discrimination against them . Any backpay found to be due
shall be computed in accordance with the formula set forth
in F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
In view of the serious and extensive nature of the unfair
labor practices committed which is indicative of a
propensity to commit these and other unfair labor
practices , I shall recommend that the Respondent be
ordered to cease and desist from in any manner infringing
upon rights guaranteed to its employees by Section 7 of the
Act. Entwistle Mfg. Co., 23 NLRB 1058, enfd . as modified
120 F.2d 532 (C.A. 4).
Upon the basis of the entire record , the findings of fact,
and the conclusions of law , and pursuant to Section 10(c) of
the Act, I hereby issue the following:
RECOMMENDED ORDER
The Respondent, Reidbord Bros. Co., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning union
activities.
(b) Threatening employees with plant closure or other
economic reprisal should the employees select a labor
organization as their collective-bargaining representative.
(c) Threatening employees with the loss of their right to
talk with management about their grievances in the event
they select a labor organization as their
collective-bargaining representative.
(d) Announcing or suggesting to employees that the
Respondent would grant increased benefits through the
Reidbord Quota Clubs for the purpose of persuading the
employees to reject the Union as their collective-bargaining
representative
(e) Engaging in surveillance of employees' activities with
respect to union organization.
(f) Requesting employees to spy upon and report to the
Respondent as to the union activities of other employees.
(g) Discouraging membership in or activities on behalf of
Amalgamated Clothing Workers of America, Pittsburgh
District Joint Board, AFL-CIO, or any other labor
organization, by discharging or otherwise discriminating
against employees in any manner with regard to their rates
of pay, wages, hours of employment, hire, tenure of
employment, or any term or condition of their employment.
(h) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to
self-organization, to form, join, or assist the above-named
labor organization, 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, or to refrain from any and all such activities.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Pauline Phares, Linda Gibson, and Catherine
Coberly immediate and full reinstatement to their former
their previous jobs, and no intimation is intended as to whether the work to
which these women returned is substantially equivalent to their old jobs.
REIDBORD BROS CO
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights or privileges (to the extent that Respondent has
not already done so), and make them whole for any loss of
earnings they may have suffered by reason of the
discrimination against them in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Notify the above-named employees if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from
the Armed Forces.
(c) Preserve and , upon request , make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other documents
necessary and relevant to analyze and compute the amount
of backpay due under this Recommended Order.
(d) Post at its West Virginia plants copies of the attached
notices marked "Appendix."63 Copies of said notices, on
forms provided by the Regional Director for Region 6, after
being duly signed by the Company's authorized representa-
tive, shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Company to insure that said notices are not
altered, defaced, or covered by other material.
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have been
taken to comply herewith.64
IT IS FURTHER RECOMMENDED that the Union's objections
to the election held by the Board in Case 6-RC-5147 be
sustained , and that the results of said election be set aside
and that said case be remanded to the Regional Director
for Region 6 for the purpose of conducting a new election
at such time as he deems the circumstances permit the free
choice of a bargaining representative.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
61 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions, recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the 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 In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "POSTED BY ORDER OF
THE NATIONAL LABOR RELATIONS BOARD" shall be changed to
read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD"
In accordance with Board policy (See Reidbord Bros Co, 184 NLRB No
33, and Lawler's Cafeteria & Catering Co, 138 NLRB 352, fn 2), I have
provided for separate notices to be posted at each of the four West Virginia
plants as is commensurate with the unfair labor practices committed at the
respective plant Thus the notices are denominated
Appendix-Buckhannon , Appendix-Philippi, and so forth
64 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX-PHILIPPI
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
173
After a trial in which parties had the opportunity to present
their evidence , the National Labor Relations Board has
found that we violated the law and has ordered us to post
this notice telling our employees what we have been
ordered to do and not to do in the future.
The Board has ordered us to tell you that
WE WILL NOT threaten to close the plant if the Union
comes in.
WE WILL NOT threaten employees with the loss of
their right to talk with management about their
grievances in the event they select the Union as their
collective-bargaining representative.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of their
right to self-organization , to form labor organizations,
to join or assist the aforesaid Union, or any other labor
organization , to bargain collectively through represent-
atives of their own choosing , and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activity.
All our employees have the right to join or assist, or not to
join or assist , Amalgamated Clothing Workers of America,
Pittsburgh District Joint Board , AFL-CIO, or any other
labor organization , 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 National Labor
Relations Act.
REIDBORD BROS. CO.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office, 1536
Federal Building , 1000 Liberty Avenue , Pittsburgh, Penn-
sylvania 15222, Telephone 412--644-2977.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX-ELKINS # I REIDBORD BROS. Co.
(Employer)
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which parties had the opportunity to present
their evidence , the National Labor Relations Board has
found that we violated the law and has ordered us to post
this notice telling our employees what we have been
ordered to do and not to do in the future.
The Board has ordered us to tell you that
WE WILL NOT discharge or otherwise discriminate
against employees in order to discourage membership
in Amalgamated Clothing Workers of America , Pitts-
burgh District Joint Board , AFL-CIO , or any other
labor organization.
WE WILL NOT threaten to close the plant if the Union
comes in.
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 1536
Federal Building, 1000 Liberty Avenue, Pittsburgh, Penn-
sylvania 15222, Telephone 412-644-2977.
APPENDIX-ELKINS #2 PLANT
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT promise benefits to employees in order
to discourage support for the Union.
WE WILL NOT threaten employees with the loss of
their right to talk with management about their
grievances in the event they select the Union as their
collective-bargaining representative.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of their
right to self-organization , to form labor organizations,
to join or assist the aforesaid Union, or any other labor
organization , to bargain collectively through represent-
atives of their own choosing , and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activity.
The Board has ordered us to tell you that
WE WILL offer Pauline Phares , Linda Gibson, and
Catherine Coberly immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions (to the extent that we
have not already done so), without any loss of pay,
seniority , or other rights and privileges , and repay them
with interest, for any loss they may have suffered
because we discharged them.
WE WILL notify any of the aforementioned persons if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
All our employees have the right to join or assist , or not to
join or assist , Amalgamated Clothing Workers of America,
Pittsburgh District Joint Board , AFL-CIO, or any other
labor organization , except to the extent that such right may
be affected by an agreement requring membership in a
labor organization as a condition of employment as
authorized in Section 8(a)(3) of the National Labor
Relations Act.
After a trial in which parties had the opportunity to present
their evidence, the National Labor Relations Board has
found that we violated the law and has ordered us to post
this notice telling our employees what we have been
ordered to do and not to do in the future.
The Board has ordered us to tell you that
WE WILL NOT coercively question you concerning
your membership in or activities on behalf of Amalga-
mated Clothing Workers of America, Pittsburgh
District Joint Board, AFL-CIO, or any other labor
organization.
WE WILL NOT threaten to close the plant if the Union
comes in.
WE WILL NOT request employees to spy upon and
report to us concerning the union activities of other
employees.
WE WILL NOT promise benefits to employees in order
to discourage support for the Union.
WE WILL NOT threaten employees with the loss of
their right to talk with management about their
grievances in the event they select the Union as their
collective -bargaining representative.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of their
right to self-organization , to form labor organizations,
to join or assist the aforesaid Union, or any other labor
organization , to bargain collectively through represent-
atives of their own choosing, and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activity.
All our employees have the right to join or assist, or not to
join or assist, Amalgamated Clothing Workers of America,
Pittsburgh District Joint Board, AFL-CIO, or any other
labor organization, 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
REIDBORD BROS . CO. 175
authorized in Section 8(a)(3) of the National Labor WE WILL NOT spy on union meetings or other
Relations Act.
REIDBORD BROS. CO.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office, 1536
Federal Building , 1000 Liberty Avenue , Pittsburgh, Penn-
sylvania 15222 , Telephone 412--644-2977.
APPENDIX-BUCKHANNON
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which parties had the opportunity to present
their evidence , the National Labor Relations Board has
found that we violated the law and has ordered us to post
this notice telling our employees what we have been
ordered to do and not to do in the future.
The Board has ordered us to tell you that
WE WILL NOT coercively question you concerning
your membership in or activities on behalf of Amalga-
mated Clothing Workers of America , Pittsburgh
District Joint Board , AFL-CIO, or any other labor
organization.
WE WILL NOT threaten to close the plant if the Union
comes in.
union activities of our employees.
WE WILL NOT threaten employees with the loss of
their right to talk with management about their
grievances in the event they select the Union as their
collective-bargaining representative.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
right to self-organization, to form labor organizations,
to join or assist the aforesaid Union, or any other labor
organization, to bargain collectively through represent-
atives of their own choosing, and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activity.
All our employees have the right tojoin or assist, or not to
join or assist, Amalgamated Clothing Workers of America,
Pittsburgh District Joint Board, AFL-CIO, or any other
labor organization, 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 National Labor
Relations Act.
REIDBORD BROS. CO.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 1536
Federal Building, 1000 Liberty Avenue, Pittsburgh, Penn-
sylvania 15222, Telephone 412-644--2977.