Ripley Manufacturing Co.

National Labor Relations Board - Board Decisions

Oct 8, 1962

138 N.L.R.B. 1452 (N.L.R.B. 1962)

1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has duly considered the allegations of the petition. The
Board's Advisory Opinion procedures are "designed primarily to de-
termine questions of jurisdiction by the application of the Board's dis-
cretionary standards to the `commerce' operations of an employer." i
As noted above, the Petitioner has not posed a question of jurisdic-
tion relating to the applicability of the Board's commerce standards,
but rather appears to have raised what amounts to a unit issue-an
issue as to whether it would effectuate the policies of the Act for the
Board to establish a unit of the Employer's croupiers. Indeed, the
Petitioner agrees that there is no question of commerce jurisdiction,
as it concedes in its petition "that the operations of the Employer af-
fect commerce within the provisions of the National Labor Manage-
ment Relations Act." As the issue thus raised herein is essentially one
of unit and does not concern a question of the applicability of the
Board's discretionary commerce standards, it does not fall within the
intendment of the Board's Advisory Opinion rules?
ACCORDINGLY. IT IS HEREBY ORDERED that, for the reasons set out
above, the petition for advisory opinion herein be, and it hereby is,
dismissed.
IInterlake Steamship Company and Prockands Mather & Co., 138 NLRB 628, and cases
cited therein
2 See Interlake Steamship Company and Piakanda Mather & Co , supra, footnote 3.
Ripley Manufacturing Company and Southern Illinois District
Council , International Ladies' Garment Workers' Union, AFL-
CIO. Cases Nos. 26-CA-1092 and 06-CA-1149. October 8, 1962
DECISION AND ORDER
On May 23, 1962, Trial Examiner Reeves R. Hilton issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent 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 Intermediate
Report. Thereafter, the Respondent and the Charging Party filed ex-
'ceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in this
138 NLRB No. 146.
RIPLEY MANUFACTURING COMPANY 1453
proceeding, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner with the modifications set forth
below.2
ORDER
The Board adopts the Recommended Order of the Trial Examiner.'
'We do not adopt the Trial Examiner's finding that Rosenfeld's Interrogation of Kil-
patrick after the May 15 meeting was not coercive. However, since we do not regard the
incident to be within the allegations of the complaint we shall make no finding with
respect thereto.
a Interest at the rate of 6 percent per annum shall be added to the backpay to be com-
puted in the manner set forth in Isis Plumbing & Heating Co , 138 NLRB 716
a Insert the following note immediately below the signature at the bottom of the notice:
NOTE.-We will notify any of the above-named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act after discharge from the Armed
Forces.
,Change the sentence beginning with the words, "This notice must remain posted . . ." to
read "This notice must remain posted for 60 consecutive days from the date of post-
ing, . . " instead of "60 days from the date hereof, . . . .
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon separate charges, as amended, duly filed on June 13 and September 28, 1961,
by the above-named Charging Party, herein called the Union, the General Counsel
of the National Labor Relations Board, through the Regional Director for the Twenty-
sixth Region (Memphis, Tennessee), issued separate complaints, dated October 13 and
November 2, 1961, respectively, alleging that Ripley Manufacturing Company, herein
called the Respondent or the Company, has engaged in unfair labor practices in
violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as
amended by the Labor-Management Reporting and Disclosure Act of 1959, herein
called the Act. On November 2, 1961, the Regional Director issued an order
consolidating the cases. The amended answers of the Respondent, dated Novem-
ber 16, 1961, admit certain allegations of the complaints but deny the commission
of any unfair labor practices. Pursuant to notice, a hearing was held before Trial
Examiner Reeves R. Hilton at Ripley, Tennessee, from November 28 to December 5,
1961, and at Memphis, Tennessee, on February 8, 1962. All parties were represented
by counsel and were afforded opportunity to adduce evidence on the issues, to present
oral argument, and to file briefs. About March 26, 11962, the General Counsel and
the Respondent submitted briefs which I have fully considered.
Upon the entire record in the case, and from my observation of the witnesses and
their demeanor, I make .the following:
FINDINGS OF FACT
1. THE COMPANY'S BUSINESS
The pleadings show that the Respondent, a Tennessee corporation, operates a gar-
ment manufacturing plant at Ripley, Tennessee. During the 12 months preceding
the issuance of the complaints the Respondent purchased and received goods and
materials valued in excess of $50,000 directly from points outside the State of
Tennessee, and in the same period it shipped finished products valued in excess of
$50,000 directly to customers located outside the State of Tennessee. The Re-
spodndent admits it is engaged in commerce within the meaning of the Act, and I so
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization as defined in the Act.
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III THE UNFAIR LABOR PRACTICES
A. The Company's operations
Milton G. Rosenfeld, president and majority stockholder of the Company, testified
that the Company has maintained its plant at Ripley I for about 10 years and manu-
factures ladies' coats for Bixby Hall Coats, Inc.. a selling or merchandising corpora-
tion. Rosenfeld described the Company's business as seasonal, as well as dependent
upon acceptance of its styles, and that Montgomery Ward and J. C. Penney are its
principal customers. The Company conducts its manufacturing operations in one
main plant and during the peak season it employs around 100 to 150 workers. In the
fall of 1960, the Company opened the Boydston plant, a small building adjacent to the
main factory, as an auxiliary operation in completing a large order for Montgomery
Ward. Boydston was staffed with a combination of new employees, former em-
ployees, and employees transferred from the main plant. Boydston operated until
sometime in April 1961, when the order was completed, reopened in the latter
part of May 1961, and was closed down permanently about the middle of June 1961.
In the May-June period the number of workers varied from about 14 to 36.
A majority of the stock in Bixby Hall is owned by Rosenfeld's wife and his two
sons and the officers are, Paul Rigney, president, Fred 'Dottingham, vice president,
and Robert L. Rosenfeld, secretary-treasurer. According to Rigney, Bixby Hall em-
ploys three salesmen, who operate out of its offices in St. Louis, Missouri, and when
orders are obtained it purchases the necessary cloth, linings and findings which the
Ripley Company processes into a finished coat at a fixed price per coat
B. The issues
In brief, the issues presented are whether (1) the Company shut down from
April 28 to June 7, 1961, for the purpose of penalizing its employees because of their
union activities, (2) the Company discriminatorily discharged and/or refused to re-
employ about 13 employees, and (3) the Company unlawfully interfered with,
restrained, or coerced the employees in the exercise of their statutory rights by
engaging in acts of surveillance, threatening to discharge employees, encouraging
employees to attend an antiunion meeting as well as trials of a union representative
and a union adherent on "criminal charges," stating that a union adherent was
having an affair with a union representative, and threatening to discharge employees
if they patronized a local businessman who had given assistance to the Union.
C Chronology of events
The Seasonal Shutdown; Change in Operations
In the latter part of January or early February 1961,2 the plant shut down due to
seasonal business conditions and remained down until about March 24 For some-
time prior to the shutdown the employees were paid on an individual piece-work basis.
Rosenfeld stated that before the shutdown he had been considering installing a line
or group system under which the employees would be paid the same rate with the
same guarantee and an incentive bonus based upon production as a group. The group
system was prompted by the fact that Rosenfeld anticipated a large order for coats
from Montgomery Ward Company and he was desirous of initiating a manufacturing
process which would assure an even flow of work resulting in maximum produc-
tion and quality, without loss of earnings to the employees, at the same time eliminat-
ing inequities in earnings under the piece-work system. Accordingly, in January,
Rosenfeld employed George Zacour, an industrial engineer who had been engaged by
Roseneeld on various projects over a period of 15 years, to install the new system.
Rosenfeld also discussed the new system with the management committee composed
of Crockett Kirby, Maxine Forsythe, Catherine Forsythe. Myrtle Husk, and Abe
Goz. The Company concedes that all the above-named individuals were, and are,
supervisors as defined in the Act, with the exception of Goz 3 Rosenfeld said that
when the management committee meets alone they make decisions regarding produc-
tion but when he meets with the committee members he considered them a discussion
group since he simply presented his ideas to them for approval and they lacked
any authority or right to vote on such matters
I Ripley is about 50 miles north of Memphis and has a population of 3,782 according to
Dunn & Bradstreet, Reference Book 1962, based on 1960 census
2 All dates refer to 1961, unless otherwise stated
The status of (loz is discussed infra.
RIPLEY MANUFACTURING COMPANY 1455
Zacour testified that in January , Rosenfeld stated he was negotiating with Mont-
gomery Ward for an order of some 5,000 coats , which would be cut in large quanti-
ties and in solid colors and sizes, and requested Zacour to devise an efficient system
for the manufacture of these coats , at the same time maintaining the past level of
earnings of the employees . From past experience Zacour knew that this type of
order could be processed by synchronizing the operations so the flow of work could
go through smoothly and then determine the number of employees necessary to
perform these operations . After studying the matter , Zacour decided on the line
or group system and set up the machines in sequence commencing with the first
operation to the final inspection . The changeover to the group system, according
to Rosenfeld , was neither difficult nor expensive . Zacour stated that the system
required teamwork and cooperation on the part of the employees in order to make
it function efficiently. When asked the type of employees to be selected to work
under the group system, Zacour replied, "The more productive employees . . .
those that will cooperate and work together harmoniously ; they are the best em-
ployees." The line system was installed about March 24, and Zacour estimated it
would require I or 2 weeks before it functioned efficiently.
Prior to March the Company obtained the Montgomery Ward order which Rosen-
feld said amounted to several thousand coats and Rigney stated the order was a
"sizeable" one . Both said the order was for less than 9 ,000 coats . At the same
time the Company had orders from other companies , including J. C. Penney.
In March, Husk was made supervisor of the line operation , except for pressing,
which was under Clara Morrow. At the same time Catherine Forsythe was made
supervisor of a small department which made samples and duplicates , small cut-
tings, and hard style coats.
The Selection of Employees for the Line System
Rosenfeld said "we" selected about 60 of the best girls for reemployment under
the new system . These employees were chosen because they would give the Company
good quality and production , be cooperative and have the right attitude toward the
line system , which Rosenfeld termed as an "experiment ." After the girls had been
selected the department supervisors , as usual, arranged for their recall.
Catherine Forsythe testified that Rosenfeld told the supervisors to select the girls
for recall on the basis of the quality of their work , their production , and stressed
the point that these girls would have to work together and be satisfied with the
new system . The employees upon being selected were notified by the office to report
for work.
The Meeting of March 21
On the above date Rosenfeld held a meeting at the plant of the some 50 or 60
employees who had been selected for recall for the purpose of explaining the new
system to them. In the course of his talk Rosenfeld pointed out that high earnings
by an employee did not necessarily mean that the employee was a skilled operator
and mentioned that Zola Dew's high earnings were attributable to the fact that she
was on a special machine performing a repetitive operation . One of the objects
of the line system, he stated, was to equalize the earnings of all operators. While
Rosenfeld admitted he tried to call back the best operators he could not recall
whether he made such a statement at the meeting.
Rubye Garrett said Rosenfeld explained the new system , announced a minimum
price of $1 05 an hour for 1 , 098 coats , and said he was calling back the best operators
in the plant . Since Garrett had always made her quota she was not too impressed
with .the new system , but she did not express any opposition to the system at this,
or any other , meeting.
Aunita Emerson stated Rosenfeld outlined the new system , that he had large
orders from Montgomery Ward and Penney , that he had selected the best operators
for recall, and that they should make a lot of money under the new system
Catherine Forsythe testified Rosenfeld explained the new system and concluded
his talk by saying , "If you think you won't be satisfied working on this line, you feel
free to say so." None of the girls expressed any opinion regarding the line system.
The Resumption of Operations on March 24; Rosenfeld 's Meeting with the Employees
Garrett stated that on March 22, she and several of the girls discussed the new
rates and decided to request a meeting with Rosenfeld for the purpose of setting the
minimum rate of $1.25 an hour, which most of them had averaged or exceeded
an the past.
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the morning of March 24, the plant resumed operations with some 50 or 60
employees and continued to operate until April 28.
Garrett returned to work that day and about 12:30 she asked Rosenfeld how,
much she was going to earn that day. Rosenfeld replied he was trying "to set
it up on a 100 percent basis."
Florence Reece testified she did not attend the March 21 meeting but was recalled
to work around April 1. On March 24, Reece and about 30 or 45 operators who had
not been recalled met at the courthouse to discuss the line system. During the course
of the meeting Reece, apparently, was designated to call Rosenfeld. Reece called
Rosenfeld, who invited them to come to the plant, which they did, and he explained
the line system to them.
Rosenfeld stated that on March 24 he met with the employees who were working
on the line system and Dew said she was not satisfied with the new system.
Catherine Forsythe was present one day, she could not recall the date, when a
group of 15 girls including Garrett came to the plant at lunch time, following a meet-
ing at the courthouse, and generally discussed the line system with Rosenfeld.
Husk said she was present when 13 or 14 girls, including Garrett, Reece, Emerson,
and Dew, discussed the line system with Rosenfeld, but she could not recall the date
of the meeting.
Aunita Emerson also stated that Rosenfeld spoke to some of the operators a second
time and asked them if they had any questions about the line system. While Rosen-
feld invited questions it is not clear whether any were asked and Emerson con-
cluded by saying that Rosenfeld referred to Dew as one of the highest wage earners
in the plant.
Organizational Activities
Gerald Perlstein, International representative of the Union, testified he arrived in
Ripley on April 25 to conduct an organizational drive among the employees of the
Company. Upon his arrival, Perlstein drove to the plant area, which is located off
Highway 51, south of Ripley, there he talked to some construction workers, and,
after identifying himself and the purpose of his visit, one of the men suggested that
he contact Garrett. Perlstein called upon Garrett at her home that evening and
while she was interested in the Union she stated she wished to talk to other employees
and agreed to meet Perlstein the next day during her luncheon hour at the Blue
and White Cafe.
The next day, April 26, Perlstein met with Garrett, Emerson, and Reece at the
cafe at which time they discussed organization. Garrett, Emerson, and Reece not
only signed union cards, but took a batch with them and promised to contact other
employees after working hours that day. The luncheon ended with the group
agreeing to meet at Garrett's home that evening.
Following the luncheon Perlstein visited employees who had not been recalled
and that evening he attended a meeting at Garrett's home. About nine employees
were present at the meeting all of whom signed, or had signed, union cards. At this
time they discussed plans for organizing the plant and agreed to contact employees
and endeavor to sign them up for the Union.
Garrett said Perlstein spoke to her about the Union on April 25, and she,
Emerson, and Reece testified substantially the same as Perlstem concerning the
luncheon of April 26 and the fact that they signed up for the Union Thereafter
all three solicited employees to join the Union. Garrett further stated that an
organizational meeting was held at her home the evening of April 26 and that eight
other employees were present, namely,
Aunita Emerson Bertha Nichols Dottie Jacobs
Florence Reece Zola Dew Joe Medile
Evelyn Escue Hattie Kilpatrick
Rosenfeld's Speech to the Employees on April 26
About 4 p m. on April 26, Rosenfeld assembled the employees, numbering about
110, for the purpose of speaking to them on several matters. Rosenfeld opened by
stating that on April 19 or 20, he intended to take two officials of Montgomery
Ward on an inspection tour of the plant but as they entered the factory there was so
much confusion and disorder that he called off the tour and left the premises with
the officials. Rosenfeld stated he was ashamed of their conduct on that occasion,
that girls were talking to each other four or five machines away, and the factory
was in chaos and disorder. Rosenfeld then mentioned the line system and when
he asked for a show of hands whether they like the new system, about 50 percent
indicated they liked it. Rosenfeld also told the employees he had heard rumors
RIPLEY MANUFACTURING COMPANY 1457
the plant was closing down and he assured them there was no basis for such rumors,
that employees spreading such rumors must be "fortune tellers." While Rosenfeld
did not tell the employees how much work was on hand, he admitted there was
"considerable unfinished work" and "there was the usual amount of production
in the factory." Rosenfeld further stated that orders for fall coats come in around
May 1 and are processed commencing in June.
Garrett testified Rosenfeld told the employees that rumors were being circulated
the plant was going on vacation by "fortune tellers" and these rumors were false, that
there was sufficient work to last until June, and the employees would probably get
their vacations in July or August. Reece, Emerson, and Jean Russell were present
at the meeting and testified to the same effect as Garrett.
Garrett also stated that Rosenfeld said he was ashamed of the girls when he came
to the plant with officials of Montgomery Ward. However, she did not hear Rosen-
feld complain about noise or confusion in the plant on that occasion. Emerson
also heard Rosenfeld say he was ashamed of the girls on the above occasion. Russell
could not recall any such remark and Reece, when asked if Rosenfeld complained
of confusion on the day in question, said she did not hear any such complaint.
Garrett testified that while she preferred .the piece-rate system she never expressed
any dissatisfaction with the line system. Emerson had no complaints against the
new system. Reece said she may have told her floorlady she preferred the piece-rate
plan but denied that she complained or threatened to quit because of the hne system.
Russell was not questioned along these lines.
Zacour stated that at the time when Rosenfeld and a representative came into the
plant there was much noise and talking among the employees, "louder than usual,"
throughout the whole shop, and he called it to the attention of the forelady, Husk.
Zacour also stated that te Montgomery Ward representative went through the entire
factory that day.
Husk said that when Rosenfeld and the Montgomery Ward representative came
through the plant, around the middle of April, the girls were "laughing and cutting
up" but she could not say whether they were talking more than usual. Zacour corn-
plained to her about too much talking, so she told the girls "to quieten down."
Although Husk said Reece had complained about the work and had been laughing
and talking for sometime she could not recall reprimanding her or even talking to her
individually about her conduct. Husk also asserted Garrett and Emerson talked a
lot but she made no claim that she ever reprimanded them for doing so. Husk
reluctantly believed she had complimented Reece and Emerson for doing good
work, but she could not recall complimenting Garrett as Garrett worked for her but
6 weeks.
Catherine Forsythe stated she had been a supervisor for about 7 years, that at the
time of the hearing she was "over the whole shop, in a sense ," but when the line
system was installed she supervised a small department which made hard coats or
hard styles, samples, and duplicates. Forsythe said when the line system was first
intalled the girls "worked pretty good" and "really tried" but later they became
dissatisfied and a few of them would laugh and talk loudly thereby causing con-
fusion . When asked to name the principal offenders, Forsythe said it was Garrett
whom she heard telling .the girls "all during the day," "Well , you can do this if you
want to. But I 'll tell you one thing: I'm not going to." She did not hear any other
employee make such comments. Forsythe related that when Rosenfeld took the
Montgomery Ward representative through the plant the girls were laughing, talking,
and cutting up. When asked if their conduct was unusual , Forsythe replied she was
not in a position to answer since she had been absent the 2 preceding days. Forsythe
further stated that she discussed the situation with Rosenfeld and top management
and, seemingly, they reached the conclusion the employees were dissatisfied with
the line 'system because they had to work harder or that all operators received the
same pay regardless of skill. While Forsythe did not give the date of this meeting
or discussion it apparently took place on April 26, for she said Rosenfeld spoke to
the employees the same afternoon. Concerning this meeting, Forsythe said Rosenfeld
told the girls he was ashamed of their conduct on the occasion in question . He also
said "something" about ,the employees being dissatisfied with the work, and asked for
a show of hands whether they thought the line system would work out. As Forsythe
remembered, not a single hand was raised, indicating they were not in favor of con-
tinuing the line system.
Husk, like Rosenfeld, testified most of the girls held up their hands thereby showing
they were not opposed to the line system.
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Surveillance of the Union Meeting of April 27
The complaint (Case No. 26-CA-1092) alleges that Rosenfeld and Kirby main-
tamned surveillance of a union meeting on April 27.
Perlstem related that he, Kilpatrick, and Grace Belton visited about 13 employees
at their homes on April 27, 12 of whom signed cards. Later the same afternoon,
after plant working hours, Perlstein and Kilpatrick went to Bill Thornley's Cafe where
they were to meet with some of the employees and from there they would go to
Gannett's home for a meeting. While at Thornley's Perlstein heard that Rosenfeld,
Kirby, and Rigney were driving around, so he left the cafe, apparently with the
intention of driving to Garrett's home. On his way, Perlstem stopped by the home
of Robbie Nelson, located just off Highway 51, where he met Emerson, Kilpatrick,
and Ruth Steelman. Nelson mentioned that Rosenfeld had driven by, so Perlstein
drove off in the same direction, northerly on Highway 51. Emerson, Kilpatrick, and
Steelman immediately left in a car, for Perlstein said they stopped him some distance
up the road to inquire if he had seen Rosenfeld and he replied he had not. The two
cars then proceeded in a northerly direction and Perlstein saw Rosenfeld, Kirby,
,and Rigney in,a black Oldsmobile coming m the opposite direction traveling about 5
miles per hour and that he waved to Rosenfeld. Perlstem then proceeded to Garrett's
home.
The record shows that Rosenfeld knew Perlstein and had known his father for
30 years.
Emerson testified she attended the meeting,at Thornley's Cafe on April 27, and
after the meeting she drove to Nelson's home, accompanied by Kilpatrick and Steel-
man, to talk to her about joining the Union. Perlstein arrived while they were
talking to Nelson and later, as they were leaving, Nelson remarked Rosenfeld was
driving past and Emerson saw a black Oldsmobile, with Kirby driving carrying Rosen-
feld and Rigney, drive past slowly going in a northerly direction. Obviously,
Perlstein had left at that time, for Emerson stated she drove a short distance up the
road to stop him and tell him of seeing Rosenfeld, Kirby, and Rigney. While talking
to Perlstein she saw the car with Rosenfeld, Kirby, and Rigney returning in a southerly
direction, going slowly, and seemingly Rosenfeld was observing Emerson and
Perlstein.
Steelman and Kilpatrick corroborated Emerson's testimony concerning the above
incident.
Garrett did not attend the meeting at Thornley's Cafe but Reece telephoned her
that Perlstein wanted to hold a meeting at her home that evening. Garrett lived at
Halls, some 13 miles north of Ripley, and her home was situated in a residential
section about two city blocks off Highway 51. Garrett and her husband drove to
Halls that afternoon and while seated in her husband's truck she observed Rosenfeld,
Kirby, and Rigney drive by. Later, when she returned to her home, Dew came by
to leave some union cards and in the course of her visit Garrett saw Rosenfeld's
car pass her house on two occasions. Perlstein also came to her home that evening
and Garrett told him Rosenfeld had driven past her house twice, that she could
not have a meeting that night because her husband was sick. She then gave the
cards to Perlstein and promised to get in touch with him the following day.
Rosenfeld testified that shortly before the shutdown, probably April 27, the
Company needed the services of an electrician, Lloyd (Junior) Tibbs, who had in-
stalled an air-conditioning system in the plant sometime previously. Tibbs is one of
the few electricians in the vicinity and while he lived in Ripley and maintained
several offices in the area he was, according to Rosenfeld, a very difficult person to
locate. Accordingly, on the date in question, Rosenfeld, Kirby, and Rigney began a
search for Tibbs using Rosenfeld's Oldsmobile, with Kirby doing the driving. They
first went to Tibbs' office near Curve, several miles north of Ripley, where the opera-
tor of a gasoline station informed them that Tibbs was doing some work at a big
cotton gin. Rosenfeld could not remember if the operator told them where Tibbs
could be reached for he considered it Kirby's job to find him. Rosenfeld simply went
along for the purpose of using his influence to have Tibbs perform the work, once
they had found him. They then drove north toward Halls and on their way Rosen-
feld saw two or three "of our girls" and a man standing in the front yard of a
house, but he could not identify them by name. Later. Nelson told him the incident
occurred at her home. Rosenfeld, Kirby, and Rigney continued on to Halls and
about 5 minutes later Rosenfeld noticed a white Chevrolet, with Missouri tags,
following them. Rosenfeld stated he could not identify the man in the Chevrolet
and had no conversation with Rigney or Kirby concerning this man. Rosenfeld
said when they reached Halls they turned around and returned to Ripley, without
going into the residential area of Halls.
RIPLEY MANUFACTURING COMPANY 1459
Rigney testified that around 4:30 or 5 p.m. on April 27, he accompanied Rosen-
feld and Kirby on their search for Tibbs . They first went to Tibbs ' office, just north
of Ripley, and when they found no one there , they inquired as to his whereabouts
at an adjacent gasoline station and were told Tibbs was working at Halls. They then
proceeded north on Highway 51 to Halls, passing through Curve . Upon arriving at
Halls they turned right, or east , off the highway and drove slowly past a group
of office buildings and stores looking for Tibbs . Not finding him they turned
around and drove to the westerly side of the highway past buildings for a block
or so but they found no trace of Tibbs. On this last leg of the trip Rigney saw a
company employee , whom he later identified as Garrett , and waved and called
"hello" to her. The group thereupon started their return trip to Ripley and while
passing through Curve, Rosenfeld remarked that "there was a group of girls in this
yard," but Rigney did not know who they were . Rigney stated they were not
looking for any unionman or any sign of organizational activities on this trip , denied
there was any discussion of union activities , and could not recall any white Chevrolet
with Missouri tags following them
Tibbs testified he has been in the electrical contracting business since 1940 and
has maintained his office and home in Ripley for many years and is listed in the
telephone directory . Tibb has, and had, a part-time office worker who works in the
morning, but in the afternoon there is no one at his office to meet people or to accept
calls. In these circumstances , Tibbs made it a practice to leave word of his where-
abouts with Bill Smith the owner of a gas station , which is located near his office
,and warehouse . Customers of Tibbs were aware of this arrangement and left mes-
sages with Smith for Tibbs. Tibbs had performed work for Rosenfeld in the past
including the installation of an air-conditioning system in the summer of 1960.
Tibbs stated he had some jobs in the north end of the county around April 27,
but he could not recall if he informed Smith where he could be reached on April 27.
He further stated that Rosenfeld had looked for him at other jobs in the past,
but he could not recall whether Rosenfeld was seeking him on April 27 In any
event Tibbs received a message to come to the plant, he could not recall who gave
him the message or the date , and on Saturday , April 29, he did go to the plant and re-
pair a burned out compressor.
The Shutdown on April 28
Rosenfeld left Ripley around 7 p .m. on April 27 and drove to Memphis where
he met a buyer for Foley's Department Store of Houston, Texas , and obtained an
order for coats . Rosenfeld remained in Memphis that night and considered closing
down the plant , a matter he had thought about since the events of April 19 or 20.
Rosenfeld had received an audit report that day and was concerned about losing
money, the production and quality of work, and "particularly the morale of the
factory." On April 28, Rosenfeld , without consultation with anyone , decided to shut
down the plant . That day one of the employees picked up Rosenfeld at Memphis and
while driving to Ripley, Rosenfeld wrote out a statement announcing the closing of
the plant. Upon arriving at the factory he called a meeting of the supervisors about
3:30 and informed them of his decision to shut down the plant. About 4:15 Rosen-
feld assembled the employees and read his prepared statement to them. According
to Rosenfeld the supervisors and the employees "were stunned and shocked " with his
statement announcing the shutdown of the plant.
In reading his statement to the employees , Rosenfeld , in brief, opened by saying
that on April 26, when he told the girls the plant would not be closed , he was wrong.
After pointing out that for the past 2 seasons more than 50 percent of the fa-
ailities had been devoted to the production of coats for several large chain and de-
partment stores, he stated that the "annual audit" and cutting records , which he had
just received , indicated the Company lost considerable money on these sales and
more than one-quarter of these sales , made in the past year , required the employment
of more than 50 additional employmees . In view of these disclosures the Company
decided to discontinue manufacturing operations until it could determine how to
eliminate these losses Therefore , the employees in the manufacturing department
were being terminated immediately , they would ieceive "permanent separation slips,"
and they were free to seek employment elsewhere . Rosenfeld stated that after a study
of employee needs had been completed the Company would receive applications for
employment and concluded by saying the shutdown did not apply to office, shipping,
and retail store departments or employees necessary to finish work already in process
or for the manufacture of coats scheduled for delivery in the immediate future.
That day the employees referred to in Rosenfeld 's speech were given separation
notices and sometime before May 1, termination notices, as well as notification of
662353-63-vol 138-93
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cancellation of insurance, were mailed to employees who were not working on
April 28. According to its records the Company had 110 employees as of the week
ending April 29, and 34 as of the week ending May 6. Rosenfeld stated that the
plant had a small department on a piece-rate basis on April 28, and a number of em-
ployees in this department continued to work after the shutdown
Rosenfeld said he was unaware of any organizational activity before or at the time
he spoke to the employees. However, that night he heard the girls had been actively
soliciting members for the Union at the plant that day.
Garrett testified Rosenfeld read a prepared statement announcing the shutdown on
April 28, and the same day she was handed a separation notice stating that she
was being separated for "lack of work." The notice was identical to notices handed
to Garrett in prior seasonal layoffs. Reece, Emerson, and Russell testified the same as
Garrett.
Perlstein had arranged to meet with some of the employees the evening of April 28
at the home of one of the workers near Halls, and when he arrived for the meeting
he learned the employees had been laid off that afternoon. The organizational drive
continued and the number of employees who signed cards increased from 35 as of
April 28, to around 40 on June 1, and some 50 by June 20. In connection with its
campaign, the Union made arrangements for Emerson, Reece, Kilpatrick, and
Russell to visit a union plant in Cape Gerardeau, Missouri, about May 18, and the
trip, plus pictures of these individuals, was publicized in a local newspaper on
May 26
On April 29, teams composed of Garrett and Reece, Russell and Steelman, and
Dew and Emerson visited a number of employees at their homes and succeeded
in signing up new members for the Union.
The Union continued to hold meetings subsequent to the shutdown
The Company's Production Records
As stated above, Rosenfeld, on April 28, told the employees that the Company's
"annual audit" indicated that it was suffering "considerable losses" and he decided
to discontinue manufacturing operations until he could determine methods to stop
such losses Later, Rosenfeld admitted that his reference to the "annual audit"
was a mistake, that he was in fact referring to the weekly production report. which
is an audit of the payroll and submitted to him every Thursday In line with this
practice Rosenfeld received the weekly production report for the week ending April
22, the following Thursday, April 27. It was on the basis of this report that Rosenfeld
announced to the employees that as of April 28 he was shutting down the manu-
facturing operations and discharging them 4
Zacour testified that the production report, or payroll analysis report, was pre-
pared under his supervision and submitted to Rosenfeld every Thursday While
production reports for the weeks ending March 25 through April 22 were offered
and received in evidence, the first report is meaningless since the group system had
been in effect but 1 day and production was zero. These reports, broken down by
departments, show the number of employees in each department, their gross earnings,
the number of units or single coats produced, and the cost per unit or coat Zacour,
testifying from these records, gave the following figures on units and costs:
Week ending: Uii.its produced Cost per anit
April I-------------------------- 601 $9.86
April 7-------------------------- 1,230 4.00
April 15-------------------------- 1,557 3.28
April 22-------------------------- 1,356 3.65
Thus, during the above period, 4,744 coats were produced at an average cost of $4 41
per coat.
The records for the week ending April 29 were not produced at the hearing.
Zacour stated that as the line system progressed the trend was toward higher pro-
duction. which resulted in greater earnings for the employees and reduced costs for
the Company. He admitted that the records showed a downward trend in unit
4 The Company also produced a statement of income and expense especially prepared for
this hearing by Ham , Its accountant and office manager. This statement covered a 5-week
period ending April 22 , and indicated the Company lost about $ 5 200 in that period
Rigney , likewise , prepared statements for the hearing showing gains and losses , including
the costs of garments, of Bixy Hall for various dates in the latter part of March and
April Company counsel do not mention , much less discuss , these statements in their
biiet I fail to see how they shed any light on the issues and I do not rely upon their in
making any findings herein
RIPLEY MANUFACTURING COMPANY 1461
costs. Zacour also admitted that at the time of the hearing the employees were "not
quite" making 100-percent production under the line system.
The Meeting at the Plant on May 15
On the afternoon of the above date Rosenfeld called a meeting of the discharged
employees and those who had received separation notices for the purpose of inform-
ing them that their insurance was being extended for 30 days . He also told the
group that it would not be necessary for them to file new applications for
employment.
Garrett said a large number of persons attended the meeting and Rosenfeld an-
nounced their insurance had been extended and it would not be necessary to file
new applications for employment . Rosenfeld also stated that they should be back
to work in a couple of weeks and "if all of us that didn't think he had abused or
misused us, he wanted us to work for him ." Rosenfeld further stated he knew noth-
ing about the Union , except that a white car with Missouri tags had been parked
near the Catholic church. He then went on to say he was against the Union, the
one that Medile, Kilpatrick , and Reece were working for, because a man 75 years
old "had killed himself over Union activities at a plant that was trying to be
organized."
Medile said Rosenfeld spoke of the insurance extension and referred to Kil-
patrick, Reece, and himself as "Union workers."
Kilpatrick stated that after Rosenfeld had talked about insurance he spoke along
the same line as he did at the meeting of April 26. Rosenfeld also told the group
that a few days before the factory closed he saw a car with Missouri tags parked
in a yard, Nelson 's home, and later, when Nelson told Rosenfeld she had "no part"
with the Union , he said all he had was "circumstantial evidence ." Kilpatrick con-
cluded her version of the talk by stating that Rosenfeld named Medile, Reece, and
herself as working for the Union , that the Union could not force him to close or
open the plant, that it could not make him sign a contract, and that the only two
things ,the Union could do was to require them to pay dues and go on strike. After
the meeting Kilpatrick talked to Rosenfeld in the office and explained that while she
had nothing to do with calling in the Union, she had signed a card and attended
meetings so that if it ever came to a vote she could use her own judgment in voting
for or against the Union . Kilpatrick also related that she and others had stopped
by Nelson's home the evening in question to ask her to join the Union but she re-
fused to do so. According to Kilpatrick , Rosenfeld asked the names of the union
organizers and she told him John Vickers and Perlstein . Rosenfeld said he knew
Perlstein 's father and thanked her for all the information.
Evelyn Escue said Rosenfeld advised the group that their insurance was being
extended , that they would be called back to work as needed , and it was not neces-
sary to file new applications for employment . He further stated the Union was no
good , that the cards meant nothing to him , and that Medile, Kilpatrick , and Reece
were working for the Union.
Rosenfeld denied making any statement to the effect that Reeces , Kilpatrick, and
Medile were working for the Union.
The Surveillance of the Union Meeting on May 15
The complaint (Case No. 26-CA-1092 ), as amended , alleges that Catherine Por-
sythe engaged in acts of surveillance on the above date.
It is undisputed the Union held a meeting at Mama Lena's Cafe the evening of
May 15, after normal serving hours. The cafe, as described by Reece and others,
is located at Gates, approximately 6 or 8 feet off Highway 51, about 50 feet north
of a "Stop and Go" flashing traffic signal . She further stated the building is some
25 feet wide , with a double entrance door and a large picture window. Emerson
said around 10 or 15 persons attended the meeting . The foregoing individuals,
plus Perlstein , Vickers, Garrett, Russell , and Medile , uniformly testified the cafe
was well-lighted and there was nothing obstructing their view of the highway, or
one's view from the highway of the cafe . Again, these witnesses testified that around
8 or 8:30 the evening in question they saw Forsythe 's white Cadillac , which was well
known to the employees , drive past the cafe slowly and then return , heading in
the opposite direction The witnesses agreed that Forsythe was accompanied by
another lady and Reece and Medile claimed Forsythe was driving the car on this
occasion 5
6 Medile also testified that while driving to the meeting he observed Kirby seated in his
car which was parked some 300 or 400 feet from the cafe. Medile claimed Kirby was in
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Forsythe said she first heard of organizational activities on May 1 when the girls
came to the plant to file job applications . Some of the employees volunteered the
information to Forsythe that they had been invited to attend a union meeting that
evening at Reece's home. In like fashion Forsythe was informed of subsequent
meetings , including the one a Mama Lena's on May,15.
Forsythe testified that her daughter, Charlotte Morrow, who lived in Memphis,
visited her nearly every Monday, because her husband was a member of a local
National Guard unit which usually held its meetings on Monday at the Ripley
Armory. On Monday, May 15, the Morrows and their small son called upon For-
sythe and when her husband left to attend his meeting, Forsythe and Charlotte de-
cided to visit Morrow's in-laws who lived in Curve. Forsythe, Charlotte, and her
son then left in Forsythe's white Cadillac, with Charlotte driving. Upon arriving
at their destination they found the Morrows were not at home and as the National
Guard meeting lasted until about 10 o'clock, they decided to ride around for awhile
They then drove north on Highway 51, through Gates, to Halls where they turned
around and headed south toward Ripley, again passing through Gates. Forsythe
knew the location of Mama Lena's and said they drove past the place,on the above
occasions about 9 o'clock. Forsythe saw nothing unusual as they drove through
Gates and said she did not even look toward the cafe.
Charlotte Morrow said they left her mother's home about 8:30 that evening and
arrived in Curve some 15 or 20 minutes later. When they found the Morrows were
not at home they left Curve around 9 o'clock and took a ride, passing through Gates
on two occasions. While Morrow did not give the approximate time of their ar-
rival at her mother's home, it, was obviously, prior to 10:15. Morrow testified sub-
stantially the same as Forsythe concerning their Monday visits, the trip in question,
the location of Mama Lena's Cafe, and the fact that she observed nothing unusual
while passing through Gates.
Other Alleged Acts of Interference , Restraint, and Coercion
The complaint (Case No. 26-CA-1092), as amended , alleges that Forelady Bessie
King ordered and encouraged employees , (1) to attend an antiunion meeting held
about May 25 and (2) to attend a "criminal" trial about June 1, involving a union
representative and a union adherent.
Evelyn Scallions stated she was laid off in the early part of April and called to the
plant on May 20, where Rosenfeld informed her and a group of employees that he
was opening the Boydston plant the following week and employees would be recalled
as needed. Scallions filed an application that day and reported for work at the
Boydston plant, about May 23 or 24, and worked under Forelady King
Scallions stated that on the afternoon of May 25, King received a telephone call
and then assembled the girls in a group to tell them "we were to meet around the
courthouse" that day, after working hours, because some employees felt they needed
protection against the "Union people." Scallions went to the meeting, which drew
a large number of persons including King, Catherine Forsythe, Husk, and Kirby.
According to Scallions the sheriff spoke very briefly and informed the group that if
anyone was bothered by union representatives, that is, if the person told the rep-
resentatives to istay away from his or her home and they failed or refused to do so,
the representatives could be arrested and fined $50 and costs. No other person spoke
to yhe group and, seemingly, the meeting ended on that note. Scallions claimed
she heard Forsythe offer to point out the union workers to the sheriff but he paid no
attention to her.
King testified that in May she had about 16 girls under her supervision at the
Boydston plants King related that on May 25, she received a call from one of the
office girls requesting her to inform the employees that there would be a meeting
at the courthouse after working hours. She then went out to the factory and informed
the girls of the meeting King attended the meeting and stated the sheriff told the
girls that if the union organizers kept bothering them at their homes, after they had
been warned to stay away, they could be arrested for trespassing. King said the
meeting lasted 10 or 15 minutes.
Flossie Brooks said she and other girls, including some who were not working,
arranged the meeting of May 25 to see if they could stop the union men from follow-
a position to see cars or persons approaching the cafe, apparently from one direction, but
because of the contour of the land Kirby could not see the entrance to the cafe No other
witnesses testified regarding Kirby's presence on this occasion and the General Counsel
makes no mention of this incident in his brief I find this evidence insufficient to prove
that Kirby maintained surveillance of this meeting.
6 I find King was employed in a supervisory capacity at the time in question
RIPLEY MANUFACTURING COMPANY 1463
ing them , visiting their homes, and sending them letters. Brooks denied that Rosen-
feld or any of the supervisors had anything to do with organizing the meeting.
Betty Lee Hughes and Bobbie White testified that King simply told the employees
there would be a meeting at the courthouse after working hours. Both denied that
King ordered or instructed them to attend the meeting.
Catherine Forsythe said she was in the courthouse square the day in question
and when several of the girls called to her, she went into the courthouse. How-
ever, the courtroom was crowded , so she just stood at the door . Forsythe denied
making any statement to the effect that there were union sympathizers at the meeting.
On May 27, Vickers was arrested on a warrant charging him with reckless driving,
which he believed was obtained by Crockett Kirby's wife . On the same day Reece
was also arrested on a warrant charging her with public profanity , which apparently
was secured by employee Eunice Sutton . Both were released on bail and their
trials set for the afternoon of June 1. The trials resulted in Vickers and Reece
being convicted of the offenses charged. There is no doubt the trials were well at-
tended and spectators included Rosenfeld , supervisors , and employees and unques-
tionably many of the alleged discriminatees.
Scallions stated that on June 1, King came to her while she was working and in-
quired if she was going to attend the trials . Scallions answered , no, whereupon
King asked if she was going to work alone. Scallions replied she thought Louise
Carmack would be working and King agreed . That ended the conversation that day.
King testified several girls asked if they could go to the trials and she told them she
did not know , that she would find out. King then checked with Catherine Forsythe
and was informed later that she could excuse any employee who wished to attend
the trials. King advised the employees accordingly , and about 11 of the 18 em-
ployees clocked out and left the plant. The remaining employees continued to work.
King denied that she talked to Scallions personally about attending the trials.
White and Mildred Bradford testified King told the girls they could attend the
trials if they so desired.
Catherine Forsythe stated some girls asked permission to go to the trials and
she checked with Rosenfeld who said it would be all right to excuse them as they were
not busy. Forsythe passed on this information to the girls.
The complaint ( Case No. 26-CA-1092 ), as amended , alleges that about May 28,
Catherine Forsythe threatened employees with discharge if they or their families
patronized a local businessman who had assisted the Union.
Vickers said that when he was arrested he borrowed money from a Mr. Mulligan
who operates a motel and skating rink in Ripley.
Scallions asserted that around June 1, Catherine Forsythe approached a group of
girls at the Boydston plant during their lunch hour and told Essie Yochum that
Mulligan had put up the bail for the unionman and if she cared anything for her job
she would stay away from Mulligan 's skating rink . When Yochum said she took her
daughter to this rink Forsythe told her there was another rink down the road.
Forsythe then turned to Scallions and remarked , "This also goes for you, too ." Essie
Burkeen , who was terminated about June 5, testified substantially the same as
Scallions.
Forsythe denied making any such statement . Yochum, likewise, denied that
Forsythe made any such remarks to her at any time.
The complaint (Case No. 26-CA-1092 ) alleges that about May 15, Catherine
Forsythe made a statement to a group of employees that a known union adherent Was
having an illicit affair with a union representative.
Garrett testified that on May 15 she was present with a group of girls in the eating
area of the plant when Brooks made a harmless comment about the "Union man"
and Reece , which prompted Forsythe to utter a so -called vulgar remark 7 Brooks
and Forsythe denied making any such remarks. The General Counsel does not
discuss this phase of the case in his brief. It is sufficient to say there is no substantial
evidence to support this allegation of the complaint.
Analysis and Concluding Findings
The evidence shows that Perlstein , without any invitation on the part of the
workers, came to Ripley on April 25 for the purpose of organizing the Company's
employees . As a result of his conversation with , some workers in the building trades,
Perlstein spoke to Garrett about organization that evening , gave her a union card,
and arranged to meet with her and any other employees that might be interested in
the Union the following day at the Blue and White Cafe . On April 26, Perlstein
1 Garrett 's testimony appears at pp 199-200 of the transcript.
1464 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
met Garrett , Emerson , and Reece at the cafe, during their luncheon hour, and ob-
tained signed union cards from all of them . Garrett, Emerson , and Reece agreed to
solicit employees to join , the Union and secured additional cards from Perlstem for
that purpose . The luncheon ended with the group agreeing to meet at Garrett's home
that evening . Later that day Perlstein called upon some employees who had not yet
been recalled by the Company and then went to Thornley 's Cafe where he met
some of the workers . As a consequence of these visits he secured a few signed
cards. That evening Perlstem held an organizational meeting at Garrett 's home and,
as stated above, nine employees attended the affair (supra). By the end of the
meeting all nine had signed union cards.
On April 27, Perlstein, accompanied by Kilpatrick and Belton , visited some 13
employees at their homes and late in the afternoon he and Kilpatrick went to
Thornley's Cafe where they were scheduled to meet some employees and then
proceed to Garrett's home for a meeting . At the cafe Perlstein heard Rosenfeld,
Kirby, and Rigney were out looking for him, so he left the cafe, seemingly with the
intention of driving to Garrett 's home. Emerson , Kilpatrick , and Steelman also
left Thornley 's and drove to Nelson 's home to talk to her about joining the Union.
While the group was in Nelson's yard , plainly visible from the highway , Perlstem
drove up and joined them . As Perlstein was walking toward his car Rosenfeld,
Kirby, and Rigney drove past slowly , going in a northerly direction , but Perlstein
did not see them although he did hear Nelson make some remark about Rosenfeld.
Perlstein then entered his car and proceeded north on the highway . Emerson,
Kilpatrick , and Steelman immediately followed in their car and stopped Perlstein
a short distance up the road where they got out of their cars . The group informed
Perlstein they had seen Rosenfeld , Kirby, and Rigney drive past Nelson's home and
as they were standing there they saw Rosenfeld, Kirby, and Rigney drive slowly by
heading in a southerly direction . Perlstein waved to Rosenfeld , then drove off to see
Garrett.
Garrett testified she saw Rosenfeld , Kirby, and Rigney driving around the business
area of Halls the evening of April 27, and latex the three men drove past her home,
which is located in a residential section, on two occasions. When Perlstein arrived
Garrett gave him some signed cards which Dew had left and called off the meeting
scheduled for that night.
Rosenfeld and Rigney explained that on April 27 they wanted Tibbs to perform
some work for the Company , so around 4:30 or 5 o'clock , after the plant closed,
the two of them plus Kirby left the plant to look for Tibbs. They first drove to Tibbs'
office near Curve and not finding him they asked Smith , owner of the adjacent
gasoline station , where they might locate him. Smith , according to Rigney, said
Tibbs was working on a job in Halls. The party then proceeded north on Highway
51, to Halls, passing through Curve . When they arrived ,in Halls they drove slowly
around the business section but seeing nothing of Tibbs they decided to return to
Ripley. While cruising around Halls, Rigney admitted he saw Garrett and waved
and called to her. Both Rosenfeld and Rigney observed some of the employees
gathered in front of a house near Curve. The incident as related by Rosenfeld
took place while they were driving to Halls while Rigney said it occurred when
they were driving south on their return to Ripley. Again , Rosenfeld claimed he saw
a white Chevrolet with Missouri tags following their car but Rigney had no recollec-
tion of any such occurrence.
From Tibbs ' testimony it is clear he maintained his home and office in Ripley, was
listed in the telephone directory , his office was open every morning and his business
affairs handled by a part-time clerical employee, and in the afternoon he usually
informed Smith where he could be reached . Tibbs ' customers were well aware of the
manner in which he conducted his business . Tibbs had performed work for the
Company and Rosenfeld had looked for him at other jobs in the past Tibbs further
stated he had some jobs in the north end of the county around April 27, but he
could not remember whether he informed Smith where he could be reached on that
date . There is no doubt Tibbs repaired a burned out compressor at the plant on
April 29 , but he had no recollection as to how or when he received the request for
this iob
The foregoing testimony of the various witnesses shows that Rosenfeld and Rigney
observed a group of employees and a man gathered on Nelson's lawn and that Rigney
saw Garrett in Halls on the evening of April 27 However, contrary to Garrett's
testimony Rosenfeld ,and Rignev denied driving past her house on that occasion I
accent and credit Garrett's testimony and find that Rosenfeld , Kirby, and Rigney
drove past her home twice that evening The remaining question is whether this
evidence is sufficient to support a finding of surveillance on the pant of Rosenfeld,
Kirby , and Rigney Ordinarily , the mere presence of a company official or supervisor
RIPLEY MANUFACTURING COMPANY 1465
in the vicinity of a union meeting does not establish surveillance. However, in the
circumstances of this case the activities of Rosenfeld, Kirby, and Rigney certainly
required explanation and the Company proceeded on that theory.
In an attempt to show that the trip to Halls was in connection with company
business, Rosenfeld and Rigney unfolded a vague, implausible, and unconvincing
story that they were merely looking for Tibbs to perform some work at the plant.
First there is not a line of testimony indicating any existing emergency requiring
Tibbs' immediate services or that the Company had made any prior effort to reach
him by telephone at his home. Since Rosenfeld was a customer of Tibbs', presum-
ably, he knew Tibbs could be reached during the morning but not in the afternoon.
Nevertheless, Rosenfeld, Kirby, and Rigney left the plant around 5 o'clock and drove
to Smith's gasoline station where they were told Tibbs had a job somewhere in
Halls. Neither Rosenfeld nor Rigney explained how they expected to find Tibbs on
such meager information or that he would be working on a job at that hour of the
evening. Despite all this, the party drove some 13 miles to Halls and as might have
been anticipated they were unable to locate Tibbs.
I am convinced the trip was not made for the reasons advanced by Rosenfeld
and Rigney. The evidence bearing upon the activities of Rosenfeld, Kirby, and
Rigney the evening of April 27, considered in the light of subsequent acts and
conduct, justifies the inference and conclusion that the trip was prompted by Rosen-
feld's desire to obtain information regarding organizational activities among the em-
ployees. Accordingly, I find the Company on April 27 engaged in acts of surveillance
as alleged in the complaint.
Upon his return to Ripley from the above-mentioned trip, Rosenfeld then went
to Memphis where he obtained an order from a buyer for a department store and
remained in Memphis that night. The next day he came back to Ripley and shut
down manufacturing operations in the manner found below.
Meantime, on April 26, Rosenfeld spoke to the assembled employees on several
matters. First he complained of their conduct about April 19 when he brought two
officials of Montgomery Ward into the plant to inspect manufacturing operations
Rosenfeld declared there was no much talking and disorder in the plant that he
called off the tour .and left with the officials. Next he brought up the subject of the
line system and when he asked for a show of hands whether they favored this system
about 50 percent of the employees indicated they favored it. Rosenfeld concluded his
talk by assuring the employees there was ample work available and rumors the plant
was closing down were baseless and false.
On the whole the witnesses for the General Counsel did not seriously challenge
Rosenfeld's account of his speech, so I accept his testimony in that respect.
However, concerning the noise in the plant about April 19, Zacour stated the em-
ployees were talking "louder than usual" and that Rosenfeld did take an official
of Montgomery on a tour of the entire factory. Husk and Catherine Forsythe
testified the girls were laughing and talking on this occasion but they could not say
whether it was any worse than at other times Admittedly, the employees were
not reprimanded and Husk did nothing more than tell them "to quieten down "
Thus, the testimony of Zacour, Husk, and Forsythe, if not negating Rosenfeld's ac-
cusaltions of chaos and disorder at the plant, certainly indicates that Rosenfeld
grossly exaggerated the conduct of the employees on that occasion.
As already stated Rosenfeld spent the night of April 27 in Memphis. Rosenfeld
had thought of closing the plant after the incident of April 19, and had further
consideration to the matter that night in Memphis. Rosenfeld had received Zacour's
weekly production report for the week ending April 22 that day, so on the basis
of that report, plus his concern over losing money, the poor production and quality
of coats being turned out and the low morale of the employees, he decided to shut
down the plant. The next day on his return trip to Ripley he prepared a statement
to be read to his supervisors and employees announcing the shutdown. In line with
this plan, Rosenfeld first read his statement to the supervisors and then to the assem-
bled employees, all of whom "were stunned and shocked" by his actions (supra).
The precipitate shutdown of operations within 24 hours after the surveillance
activities of top company officials and the reasons for the shutdown as well as the
manner .in which it was carried out convince me that the action was taken to dis-
courage organization at its very inception.
There is no doubt Rosenfeld alone made the decision to close the plant. although
actually the shutdown did not result in a complete cessation of operations. Rosenfeld
made it clear to all employees that the shutdown was prompted by losses disclosed
in the Company's "annual audit." a rather impressive term, when in fact his decision
was bottomed on Zacour's weekly production report handed to him that afternoon.
Indeed, he was so anxious to close down operations that he refused to delay his
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision for a matter of hours so he could discuss the report with Zacour. It is true
the report showed a slight increase in unit costs over the preceding week, but Rosen-
feld's sudden action precluded any possible explanation of the increase by Zacour.
Moreover , Zacour testified there was a downward trend in costs and he was as sur-
prised as anyone else when Rosenfeld announced the shutdown . Again, although
not mentioned to the employees in his statement , Rosenfeld in the course of his testi-
mony stressed the point that factors other than losses were considered including
such intangibles as plant morale and demoralization . It is also significant that while
Rosenfeld informed the workers the Company was discontinuing operations until
such time as it could find means of eliminating losses, there is not a word of testimony
from either Rosenfeld or Zacour suggesting that they made any study along that
line or that they did anything whatever toward correcting that condition. The
evidence shows nothing more then that the plant shut down on April 28 and re-
opened June 7. Indeed, some employees were called back the following week. In
this connection the Company not only failed to produce the production records for
the week ending April 27, the so-called critical week, but also for the period after
the plant reopened . Hence, no determination can be made as to whether or not
the shutdown accomplished its purpose, namely, to give the Company an opportunity
to devise methods for eliminating its losses . Considering all the evidence and the
reasonable ineferences to be drawn therefrom , I find that the Company shut down
manufacturing operations in order to discourage organizational activities, not for
economic reasons.
Although Rosenfeld told the employees they were being permanently discharged
as of April 28, he conceded they were given the same type of separation notices
as issued by the Company in prior layoffs . About the only factor distinguishing
this layoff from previous ones was Rosenfeld 's statement the employees would
have to file new job applications and he later abandoned that requirement. In my
opinion Rosenfeld resorted to the mass discharge technique as a temporary strategem
and the employees were laid off rather than discharged.
Following the layoff the Union conducted a rather intensive campaign to secure
members in the course of which Perlstein and the union proponents held meetings,
contacted employees personally , sent out literature , and publicized a visit by certain
adherents to a union plant . At the same time many of the employees expressed
their opposition to the Union and held a mass meeting at the courthouse to complain
to the sheriff of the manner in which union organizers and adherents were approach-
ing them. In addition Vickers and Reece were arrested on warrants secured by
employees charging them with violation of traffic regulations and public profanity,
respectively , for which they were tried and convicted in the local court Certainly,
company officials and supervisors were fully cognizant of the organizational situa-
tion, in fact Rosenfeld and Catherine Forsythe admitted they were aware of union
activities as early as April 28 and May 1, respectively.
The General Counsel contends that during this period the Company engaged in
certain conduct constituting interference , restraint , and coercion and adduced
evidence pertaining to several acts on the part of company representatives to sustain
his contention . I was not too impressed with this evidence and I do not consider
it decisive of the case.
The first incident stems from the so-called insurance meeting held at the plant on
May 15, when Rosenfeld , according to Garrett, Medile, Kilpatrick , and Escue , stated
that Kilpatrick , Medile, and Reece were working for the Union Rosenfeld denied
making any such statement . I accept and credit the testimony of the General
Counsel's witnesses and find Rosenfeld did make the remark attributed to him.
After the meeting Kilpatrick came to Rosenfeld and volunteered the information she
had signed a union card and attended meetings but she would use her own judgment
in voting for or against the Union This prompted Rosenfeld to ask the names of the
organizers and she complied with his request I attach no importance to the conver-
sation since it was free of coercion and illegal interrogation insofar as Rosenfeld
was concerned
Much time was spent at the hearing on the fact that Catherine Forsythe drove past
a cafe while a meeting was in progress on the night of May 15 Forsythe not only
admitted she passed the cafe but that she knew a meeting had been scheduled to be
held there that night . However (unlike surveillants Rosenfeld, Kirby, and Rigney),
Forsythe and her daughter gave a satisfactory reason for her presence in the area.
Therefore , I find she did not drive to the cafe for the purpose of spying on the
meeting
The General Counsel contends that the Company not only encouraged employees
to attend the antiunion meeting of May 25 and the trials of Vickers and Reece on
June 1, but did so in a manner designed to create the impression that they were ex-
pected to attend these events. The General Counsel produced one witness , Scallions,
RIPLEY MANUFACTURING COMPANY 1467
to prove these allegations. Scallions was working in the Boydston plant and related
that on May 25 King told the assembled employees "we were to attend a meeting at
the courthouse," after working hours, because some employees felt they needed
protection from the "Union people " Scallions attended the meeting and claimed
she heard Catherine Forsythe offer to point out the union adherents to the sheriff.
One June 1, Scallions asserted King asked if she was going to attend the trials and she
answered, no. Admittedly, King did not state attendance was compulsory. It is undis-
puted many employees clocked out and attended the trials.
In brief, King testified she did nothing more than inform the workers of the meet-
ing of May 25 and, similarly, she told them they could attend the trials on June 1
on their own time if they wished. Other witnesses for the Company corroborated
King's testimony. Catherine Forsythe denied she offered to point out union adherents
to the sheriff.
In addition Scallions said that around June 1, Catherine Forsythe, in the presence of
a group of girls, threatened her and Yochum with dismissal if they patronized
Mulligan's skating rink because Mulligan had furnished bail for Vickers. Her testi-
mony on this point received support from Burkeen, a rebuttal witness, who worked
with Scallions and was discharged on the same date, June 5, as Scallions. However,
Burkeen was not questioned concerning King's statements to the employees on
May 25 and June '1 Forsythe denied uttering any such threats and her testimony
was corroborated by Yochum.
I was not impressed with Scallions for her attitude and demeanor on the stand
made it clear that she considered herself the principal witness for the General Counsel,
hence she had to come up with something, and that she was in fact attempting to build
up a case to support her claim that her union membership and activities resulted
in her discharge on June 5 Although Scallions signed a union card about April 27,
she engaged in no activities whatever, not even attending one meeting However,
her attitude changed after her discharge and she then became active in union affairs.
In these circumstances, I find that Scallions seized upon King's announcement of the
May 25 meeting and her granting permission to employees to attend the trials of
June 1, without pay, as something suspicious and sinister and attempted to convey
the idea that King was acting in a threatening or coercive manner Plainly, that was
not the case. I reject Scallions' versions, accept the testimony of King and her cor-
roborating witnesses, and find she made no threatening or coercive statements to the
employees on these occasions. I also credit Forsythe's testimony and find she did not
volunteer to point out union adherents to the sheriff at the May 25 meeting. Further,
I accept the testimony of Forsythe and Yochum and find that Forsythe, contrary to
Scallions' assertion, did not threaten Yochum and Scallions with dismissal if they
patronized Mulligan's skating rink
The Discrimination Cases
The complaints , in substance , allege that the Company discriminatorily refused
to reemploy 2 employees on and after May 1, refused to recall 10 employees on and
after June 7, and discharged 1 employee on June 5.
The Company's records shows that it had 110 employees at the time of the layoff,
34 the following week, and by the week ending June 3 it had 57 workers About
June 7, the plant resumed full operations and the work force increased as follows:
Week ending No of employees Week endanq No of employees
June 10____________________ 93 July 8____________________ 139
June 17____________________ 104 July 15____________________ 143
June 24____________________ 133 July 22____________________ 141
July 1____________________ 137 July 29____________________ 146
August 5, Vacation
The Selection of Employees for Recall
In the interim May 1 to June 7 (and no doubt thereafter) the management com-
mittee, composed of Maxine and Catherine Forsythe. Husk, and Kirby, held meet-
ings to decide which employees should be recalled Maxine Forsythe said employees
were chosen on the basis of production and quality of their work, general attitude
and behavior in the plant. ability to get along with other employees, and whether
they liked or disliked the line system under which they would work.
Catherine Forsythe testified substantially the same as Maxine concerning the
method of selecting employees for recall. However, she added that the committee
did not consider "certain employees" for recall because they had expressed dissatis-
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
faction with the line system . Forsythe concluded by saying that "almost all" of the
employees who were working on the line system in April were reemployed.
From the foregoing testimony it is abundantly clear that the employee's attitude
toward the line system , under which she would work, was the controlling factor, or
at least an important one, in selecting employees for recall . Despite all the clamor
on the urgency and necessity for proper attitude regarding the line system the plain
fact is that the system was not even used when the plant reopened in June. Both
Rosenfeld and Zacour unequivocally testified the old piece-rate method was used
when the employees were recalled and sometime later a hybrid line system, a com-
bination of the piece-rate and line systems , was installed under which employees
were, and are , paid different hourly rates based upon their production . Indeed,
Zacour admitted that at the time of the hearing the new line system was still not
operating at 100-percent production efficiency.
Thus, the Company 's contention that at least one of the reasons for denying re-
employment to Garrett, Reece, and Emerson was their opposition to the line system
is completely negated by the testimony of Rosenfeld and Zacour . I have no doubt
these employees did register some complaints to Husk because the original line system
resulted in a decrease in their earnings But they were not the only employees who
made complaints for Husk and Catherine Forsythe stated that sometime in March,
evidently around the 24th, a group of some 15 girls held a meeting at the courthouse
and then called upon Rosenfeld to protest the line system . Of this group, Forsythe
could recall only the names of Garrett , Daisy Grimes, and Lulu Merle Meadows as
being present and that no one acted as spokesman for the group . Following a dis-
cussion of the line system Rosenfeld asked the group to try the new system and
they agreed to do so. Husk testified that of the employees attending this meeting
all were recalled to work after the layoff except Garrett, Reece, and Emerson. Again,
the fact that there was general dissatisfaction with the original line system , insofar
as earnings were concerned , is conclusively proven by the Company 's action in dis-
carding that system upon the reopening of the plant, reverting to the piece-rate
method , and then ending up with a hybrid line system . In my opinion the evidence
shows Garrett, Reece, and Emerson were no more opposed to the line system than
any of the other employees and the Company simply used the attitude factor as an
excuse for denying reemployment to these leaders in the union movement.
Equally without foundation or merit is the claim that Garrett, Reece , and Emerson
laughed, talked , and cup up excessively while working . Actually, Husk, Catherine
Forsythe , and some supporting witnesses could come up with nothing more than
broad, general , and vague accusations that these individuals engaged in such con-
duct. Typical of this line of testimony is that given by Dorothy Holcomb who
claimed Garrett talked a lot and bothered her, at the same time admitting that other
girls also laughed and talked Moreover , Holcomb did not complain of Garrett's
behavior to any supervisors . Undoubtedly , there was much talking in the plant, but
there is no evidence that Garrett , Reece, or Emerson were the principal offenders
or that they were ever individually cautioned or reprimanded by any of the super-
visors for such behavior . Hence, I find they were not denied reemployment on that
ground.
There is no doubt the Company refused to reemploy 12 employees and discharged
1 worker, so the question to be resolved is whether this action was prompted by
unlawful motivation as urged by the General Counsel , or for valid reasons, unrelated
to union membership or activity , as argued by the Company . Considering these
cases, I find as follows:
Garrett was first employed by the Company in 1956 and worked as a sleevemaker
at the main plant. Garrett was laid off in the latter part of January, recalled on
March 24, and laid off April 28. In the course of her employment Garrett had
been laid off in the past and always been recalled, without being required to file a
new application for work.
However, in view of Rosenfeld 's speech of April 28, she went to the plant on
May 5 where she spoke to Kirby about filing an application and he told her there
was no one to accept it, that he would call her when work was resumed Sometime
later Garrett telephoned Kirby and Maxine Forsythe about returning to work and
inquired if she had to file an application . Kirby and Forsythe said they knew her
and it was not necessary to file an application . Not hearing from the Company.
Garrett , together with Reece , Emerson , and Russell . went to the plant about June 14
and all filed job applications . Garrett was never recalled
Husk said there were two sleevemakers at the time of the shutdown . Garrett and
Holcomb . Husk admitted Garrett was a fast worker and averaged about $1.30 an
hour for 6 months preceding the shutdown . However, she called Garrett a "sort
of average" worker, who talked a lot and was dissatisfied with the line system. al-
RIPLEY MANUFACTURING COMPANY 1469
though Husk never "had a real serious talk with her." When the plant reopened the
Company needed three sleevemakers so they recalled Holcomb, transferred Louise
Carmack from Boydston to the main plant, and recalled Martha Savage. The latter
was a trainee sleevemaker at the time Garrett was working and had replaced Garrett
when she was out 2 or 3 days because of family illness . Husk believed Savage had
a better attitude toward the line operation than Garrett , so Savage was selected over
Garrett.
Catherine Forsythe said Garrett was a fast worker with a good production record
for the preceding 6 months. Maxine Forsythe, office manager since 1959, testified
Garrett was not recalled because she did not do quality work, talked, and did not like
the line system.
Holcomb worked next to Garrett for sometime prior to the layoff and considered
Garrett a fast worker although there was some question regarding the quality of her
work . Upon reopening of the plant Holcomb, Carmack , and Savage were recalled
as sleevemakers . Holcomb conceded that Garrett had a much higher average
hourly rate than she did and insofar as quality was concerned all the employees
had coats returned to them for repairs.
Holcomb and Carmack, according to Husk, average $1.10 and $1.11 an hour,
respectively, in comparison to $1.30 an hour for Garrett. Savage's average hourly
rate was not given , seemingly, for the reason that it was low for she had just
completed her training as a sleevemaker.
The testimony clearly shows that Garrett was far superior to the other three
sleevemakers, although the Company sought to cast some aspersions upon the quality
of her work. It is also interesting to note that in order to eliminate Garrett from
her regular job as sleevemaker, the Company had to transfer Carmack from Boydston
to the main plant and then call in Savage , an inexperienced sleevemaker , who had
replaced Garrett for a few days while Garrett was on authorized leave. Apparently,
Garrett was not returned to her regular job because Savage had replaced her. Oddly
enough, as set forth below, the Company used the reverse of this procedure in order
to deny Escue employment. Manifestly, the Company relied upon the attitude factor
in Garrett's case and I have already rejected that as an adequate explanation for its
actions.
Reece first went to work for the Company in 1952, but quit her employment after
a few months and moved out of the State. In the latter part of 1955 or early 1956,
she returned to Ripley and worked for the Company during 1956, was not employed
during 1957, but was reemployed in 1958 and worked continuously, except for
seasonal layoffs , until April 28. Reece was employed as a collar setter and always
made production when on the piece-rate system. She was laid off in February,
recalled in March to work on the line system, and laid off April 28. Reece said she
had no objection to the line system as such but since the rates were cut she did
not earn as much as under the piece-rate plan . About June 14, Reece, along with
Garrett , Emerson, and Russell, filed on application for employment . Reece was not
recalled when the plant reopened.
Husk said Reece averaged about $ 1.35 an hour in the 6-month period preceding
the February layoff and was recalled in March with a group of employees who were
selected for their production, quality, and willingness to work on the line system.
Reece preferred to set collars and complained that the style of coats precluded her
from working exclusively on that operation and she did not like to set facings, which
she was required to do. Reece also laughed and talked and exhibited a bad attitude
but Husk never reprimanded her individually, although she did tell all the girls "to
quieten down several times." Between April 26 and 28 , Reece and other girls con-
tinued to laugh and talk and Husk found it necessary to return some of Reece's
work for repairs, which she completed. In selecting employees to be recalled when
the plant resumed operations on June 7, Husk said the management committee
decided to call Iva Sauls instead of Reece because of Reece's bad attitude and poor
work. Husk admitted that other girls complained about the line system. She also
stated that Sauls' average earnings for 6 months amounted to $1.03 an hour.
Sauls said she and Reece set facings and collars and when she was recalled in
June she did repair work on some coats bearing Reece's tickets
The refusal to reemploy Reece is bottomed on her bad attitude plus the fact that
several days before the layoffs she laughed and talked and turned in a great amount
of poor quality work. To correct this condition the Company decided to recall
Sauls instead of Reece, although Sauls' earnings averaged but $1 .03 an hour com-
pared to $1 35 for Reece. I do not accept the Company's explanation for denying
Reece reemployment.
Emerson was first employed by the Company in October 1953, and worked con-
tinuously, apart from seasonal layoffs, until April 28. Emerson was one of three
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
facing setters and was given new or difficult styles to work upon and averaged
between $1.25 and $1.50 an hour. In February she was laid off and recalled, as
facing setter, in March or April when the line system was installed. Emerson made
no complaint to any supervisor about the line system. After the layoff of April 28,
Emerson filed an application for employment at the same time Garrett, Reece, and
Russell submitted their applications. She was not recalled to work.
Husk,said Emerson was setting facings on the line system and at first the quality of
.her work was good. However, between April 26 and 28 her quality dropped and
when Husk brought back coats to be repaired she remarked that she was surprised
at Emerson. Emerson would make no reply but simply laugh. Husk said Emerson,
like Reece, complained of the line system and laughed and cutup with Reece. Husk
told Emerson and Reece she thought they could do well on the line system if they
would give it a try. The management committee decided not to recall Emerson be-
cause she would not work out in view of her attitude and because she had turned out
bad work the last few days she worked. Husk stated she needed only two facing
setters when the plant reopened so she recalled Sauls and transferred a Mrs. Bradford
from Boydston to the main plant .8
Sauls stated that Emerson, Reece, and other employees complained about the line
system. Emerson also said she was tired of working, and that she wanted to be
fired so she could draw her unemployment and then have another child. There
is no claim on Sauls' part that she reported Emerson's remarks to any supervisor
or to management.
The Company's position regarding Emerson is the same as that taken with respect
to Reece. Like Reece, Emerson's attitude was objectionable and her bad work
commenced simultaneously with organizational activities, about 3 days before the
shutdown. I reach the same conclusions regarding Emerson as I did in respect to
Reece However, one additional comment might be made on Sauls' testimony that
Emerson wanted to be fired so she could draw unemployment benefits and have
another child. I am convinced Sauls manufactured this ridiculous tale. Certainly,
Emerson's going to the plant and filing a job application refutes the idea she did not
desire reemployment. Moreover, Sauls did not report this startling information to
any supervisor, hence this so-called remark had no bearing on the committee's deci-
sion denying reemployment to Emerson.
Russell was employed in August 1960, was laid off in January, recalled in March,
and again laid off on April 28. Russell was primarily a presser at the main plant and
worked under Morrow, with Husk being in charge of the entire system.
Following her layoff Russell applied for unemployment and was informed that she
was ineligible because she had insufficient working time at the plant. She thereupon
went to the plant about May 15, and asked one of the office girls if they were
accepting applications for employment. After conferring with Rosenfeld and
Maxine Forsythe, the girl returned and told Russell, "We don't want your applica-
tion." Russell then left the office. Later, about June 12, Russell filed an applica-
tion along with Garrett, Reece, and Emerson. Russell was never recalled to work.
Morrow testified she was in charge of the pressing department and as of April 28
there were 17 or I8 employees there including Russell and Kilpatrick. Morrow con-
sidered Russell a good worker until a few weeks prior to her layoff in April, during
which time her work fell off. Morrow said Russell became dissatisfied because she
was doing several jobs and when Morrow spoke to Russell about her work she replied,
"Well, I won't be here much longer anyway." Russell did not amplify her remark nor
did Morrow ask for any further explanation. Morrow was not a member of the
management committee and did not confer with the committee regarding the selection
of employees for recall in her department.
Maxine Forsythe said the committee did not consider Russell for recall because
she worked only a few months and did not make production
Here the committee applied the seniority test to Russell, although seniority was not
mentioned as one of the factors considered in recalling employees generally and
plainly seniority was not applied to discriminatees who had long service with the
Company Manifestly, seniority was a ready and convenient reason to dispose of
Russell in view of her comparatively short service. Further, it seems strange that the
committee did not consult with Morrow regarding Russell's capabilities as an em-
ployee, even though work records may have been available to the committee. Again,
while Russell may have been a rather new employee she was chosen to work
8 On cross-examination, Husk admitted giving a statement to it representative of the
Board wherein she said Emerson was not recalled because "She did not file a timely
application" and because she already had two facing setters
RIPLEY MANUFACTURING COMPANY 1471
on the line system which indicated she was an efficient worker, and Morrow conceded
she was a good worker until a few weeks prior to April 28. Morrow 's claim, of
course, follows the general theme that proponents of organization became ineffi-
cient with the advent of the Union . Unlike the other cases , the Company offered
no evidence indicating Russell's job had been eliminated or who replaced her. In
these circumstances , I find Russell was discriminatorily denied reemployment
Escue, Emerson 's sister, worked for the Company several years before her layoff
on April 28. Escue worked on linings but in May 1960, Kirby , her supervisor , put her
on canvas cutting to replace Willie Mae Henderon 9 who was ill and had to be
hospitalized . Escue worked continuously as a canvas cutter from May 1960 to
April 28, X1961 , and was the only person employed in that capacity on the latter date.
In her capacity as canvas cutter she was paid on a straight -time basis , she worked dur-
ing the seasonal layoff in January and February and her operation was not affected
by the installation of the line system in March. Escue was laid off following Rosen-
feld's speech on April 28, and was never recalled to work. She did not file an
application for reemployment.
Catherine Forsythe said the committee selected Henderon over Escue because
Henderon was well enough to return to work when they needed her and she was
a better canvas cutter than Escue.
Maxine Forsythe testified to the same effect and also conceded Henderon had been
ill and was not working on April 28.
The company records show Henderon reported for work on June 3
Since Escue worked as the canvas cutter for practically an entire year it strikes
me that this was her regular or permanent job. Thus, the cavalier statements by the
Forsythes that Escub was not recalled because Henderon was available and was a
better cutter are neither convincing nor persuasive. Surely, there is nothing in the
record suggesting that Escue was not an efficient cutter and the fact that she held the
job so long , without complaints , proves the contrary . Moreover , I find it difficult to
believe that the Company would hold a job open for an employee more than a year
in the absence of any rule or policy , and there is no evidence the Company had any
such rule or policy. Indeed the contrary seems to be true for when Garrett was absent
a few days Husk was so impressed with her replacement , Savage, an inexperienced
employee, that Savage was selected for recall instead of Gam rett But the fact that
Escue had been satisfactorily performing on Henderon 's job for almost a year was
ignored when it came to recall a canvas cutter . Further, if there was any basis for
Henderson replacing Escue then it would surely follow that Escue should have the
right to replace the employee who took over her old job on the lining operation.
Obviously, the committee paid no attention to the ramifications inherent in their
method of selecting a canvas cutter for, in my opinion , they were more concerned
with finding an excuse for not recalling Escue.
I find Escue was discriminatorily denied reemployment.
Medile was first employed in 1957 as maintenance man, quit his job in 1959,
and returned to the plant around November : 1960. Upon his return Medile worked
at the main plant but shortly thereafter he was assigned to the Boydston plant.
According to Medile, the Company had five maintenance men, two of whom were
working at Boydston , and that Ozell Hargett was the top machinist at the main p lant.
Medile continued to work at Boydston until the plant closed down in the early part
of April.
About I week later Medile was assigned the job of painting the company house
and was so employed on April 28, at which time there was still much painting to be
done. When Medile went to the plant to clock out that day, Kirby told him Rosen-
feld was going to speak to the employees and that he should attend the meeting, which
be did. After the meeting he went to the office and asked Doris Sutton it he was in-
cluded in the group to be laid off and she said that he was included in the group.
Medile then asked for his separation notice but Sutton said she had none at that time,
to come back later. As he was leaving the office he met Mrs. Rosenfeld and told her,
"I guess I won 't see you tomorrow ." She answered , "I guess not."
On April 29, Meddle went to the office to get his separation notice and attended
a meeting of salesroom girls and a few girls who were there to file applications.
Rosenfeld read the same speech to this group as he had delivered to the employees
the day before and when some girls asked if it was necessary to file application,
Rosenfeld stated in substance , "Well, we know you ." After the meeting Medile ap-
proached Rosenfeld and had a brief talk with him . Medile opened the conversation
by saying Rosenfeld knew he had carried a card in the International Alliance of
9 Her name also appears in the transcript as Henderson and Hendrix
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Theatrical Stage Employees and Motion Picture Operators Union, and that he had
often boasted of his membership therein . Rosenfeld said he knew about that.
Medile then stated he had nothing to do with calling in the union representatives,
but since they were here, he was a union man and would go along with them.
Seemingly , Rosenfeld made no comment for Medile said he concluded the conversa-
tion by stating that if Rosenfeld needed him in any way he would appreciate his call-
ing him. Medile received his separation notice that day or shortly thereafter.
Medile went to the plant on May 15 to attend the meeting and when Rosenfeld
saw him he called Medile into the office. There Rosenfeld asked Medile, "Why did
you leave?" Medile replied:
I want you to know that I was a Union man; that being what the Union was
already in, that I was going to work for them and work with them. . . . I also
wanted you to know that I still felt the same way about you; that there was no
grievance between you and I. It is just that I am going to work with the Union,
and I would appreciate it, anytime you need me, for you to call me.
Medile did not state what, if any , response Rosenfeld made and apparently the
conversation ended on that note. Following this talk, Rosenfeld spoke to the group
and announced their insurance was being extended. In his speech Rosenfeld men-
tioned Medile, Kilpatrick, and Reece were working for the Union.
Medile signed a union card on April 26, solicited employees to join, and attended
the various meetings held by the Union.
Medile did not file an application and was not recalled to work.
Billy Joe Shoemake , employed as maintenance man, stated that he and Medile
had been painting the company house for about a week prior to April 28. Shoemake
attended the meeting on April 28, and since he considered he had been terminated
he did not report for work on Saturday or Monday. On Tuesday or Wednesday,
Earl Goodwin, maintenance man, told the Company wanted him or resume the
painting job, which he did. Shoemake was still employed at the time of the hearing.
Hargett testified he had been employed by the Company for about 2 years as
machinist and maintenance man, devoting most of his time to repairing and maintain-
ing the machines, and was so employed,at the time Medile came back to work in No-
vember 1960. Medile performed the same type of work at the Boydston plant.
Hargett and the maintenance men were laid off on April 28, but Hargett was recalled
about I week later. Since that date he has been the only machinist employed by
the Company and has been able to take care of all machinery repairs. The Company
also called back Shoemake and Goodwin to take care of the general maintenance
work.
Morrow said she was present on May 15, and heard Medile ask Rosenfeld why he
had been laid off and Rosenfeld answered Medile had been painting the house and
.,you walked off the job and didn't come back, and we just considered you had quit "
Medile said, "Well, I guess I have." Brooks, Lorrine Benthal, and Savely testified to
the same effect as Morrow.
Medile was recalled in rebuttal and qustioned by counsel for the Charging Party.
Medile denied he told Rosenfeld he had quit his job during their conversation on
May 15. When asked what he did tell Rosenfeld, Medile stated:
I told Mr. Rosenfeld-he asked me a series of questions pertaining to that
house painting, and he led up to the question : "Joe, the job is still unfinished,"
I said, "Yes"
"And you quit the job."
Well, I quit painting on the house; yes. But I didn 't give a direct answer.
I said , "I guess so , Mr. Rosenfeld ," in a way that I had stopped painting on the
house-not that I had quit my job.
Maxine Forsythe said Medile's recall was not considered by the committee.
The Company claims Medile quit his employment, but assuming the contrary, it
still was under no obligation to recall him since there was no job available for him
In arguing its position the Company has completely overlooked important and
undisputed facts in Medile's case.
Medile, along with Shoemake , was engaged in painting the company house on
April 28, when he was instructed to attend the meeting at which Rosenfeld an-
nounced the shutdown. Although Rosenfeld named classifications of employees who
were included in the layoff , as those excluded therefrom , he made no mention of
mechanics or maintenance men. Accordingly, Medile went to the office immediately
after the speech and inquired of Sutton whether he was included in the layoff and
she answered in the affirmative . Medile thereupon asked for his separation notice
RIPLEY MANUFACTURING COMPANY 1473
and Sutton replied she was out of these forms, to come back later . 10 Medile then
left the office.
From the testimony of Medile and Hargett there is no question but the mechanics
and maintenance men were included in the layoff and were actually laid off . This is
further strengthened by the fact that Shoemake did not return to the painting project
for several days, and then only when personally requested to report back to the
job by the Company . This undisputed evidence conclusively proves that all me-
chanics and maintenance men were laid off on April 28, and that Medile did not
walk off the job or quit his employment at any time prior to the layoff.
The next day Medile went to the plant to get his separation notice and had a brief
conversation 11 with Rosenfeld which ended with Medile stating , "If you ever need
me in anyway , Mr. Rosenfeld , I'd appreciate you calling me." Surely, there is nothing
in this conversation suggesting that Medile had quit or was quitting . Indeed, his
testimony makes it clear that he was politely requesting reemployment.
On May 15, Rosenfeld again spoke to Medile and Medile covered their conversa-
tion on both direct and rebuttal examinations . In both instances his testimony is
somewhat garbled , but it is plain that in his direct testimony he again requested re-
employment for he concluded by telling Rosenfeld , "I would appreciate it, anytime
you need me , for you to call me." His rebuttal testimony differs in that he admitted
quitting or walking off the painting project, but not his job , and he failed to mention
any request for reemployment . I find this discrepancy to be of a minor nature and
wholly insufficient to warrant the conclusion that Medile voluntarily quit his
employment.
The Company further argues that granting Medile did not quit, it did not recall
him for it had no available opening for him since it employed but one "mechanic,
Hargett, after the layoff. The undisputed evidence refutes this argument for the
Company quickly recalled Shoemake and Goodwin to work as "maintenance" men.
The record shows that Medile was fully qualified to perform either of these jobs
and had actually worked on both jobs in the past.12 Despite these qualifications the
Company selected Shoemake and Goodwin for recall although they were classified
only as general maintenance men.
I find Medile was discriminatorily laid off on April 28 , and denied remployment
at all times thereafter.
Kilpatrick was employed in 1953 and at the time in question she worked as a
hand presser in the main plant . Kilpatrick was laid off in February due to the
seasonal shutdown and recalled about March 15 to work in the Boydston plant. She
remained at Boydston until about the first week in April when she was sent to the
main plant to work on the line system on "switch pressing ," that is, different types
of pressing . She worked about 31/2 days during the week ending April 8, and on
April 10 the floor boy told her that they were ahead of the pressing and she would
be needed only 1 day a week. Kilpatrick complained to her forelady , Morrow, who
suggested that she talk to Kirby, which she did. Kirby told her that they had the
line system filled with regular workers and he wanted her to fill in a day or two
a week. Kilpatrick stated she did not want any such arrangement , that she wanted
regular employment , and Kirby said, "Okay ." She was thereupon laid off and never
recalled to work. Kilpatrick said there were two other pressers performing similar
work on the line system . She also admitted she was never a high producer but she
had been complimented by Morrow on the quality of her work.
Around May 1, Kilpatrick received a written separation notice from the Company
advising her that she had been discharged , that her insurance was terminated as of
April 31, and that the Company was accepting applications for employment be-
ginning May 1 . Upon receiving the notice Kilpatrick and Dew went to the office
and filed job applications . She heard nothing from the Company regarding her
application . I have already considered Kilpatrick's version of her conversation with
Rosenfeld on May 15 (supra).
10 While Sutton ( Doris Sutton Sandlin ), a secretarial employee , testified at the hearing
she was not questioned on the Medile phase of the case
11 Medile ' s statement that for many years he had carried a card in a union having noth-
ing to do with the garment industry and Rosenfeld 's admission he had known this for a
long time , is meaningless insofar as tending to establish Medile's activity in the present
Union or the lack of hostility to organization on Rosenfeld's part
12 Medile described his duties in the period 1957 to 1959 as taking care of the boiler,
pipe, and electrical work, repairing the sewing machines, and anything else that broke
down During the period he was employed elsewhere , 1959 to 1960 , he was called to the
plant on several weekends to help out in repairing machines
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Morrow said Kilpatrick was already working when the line system started and
she was called in to help out on the operation. Later Kirby instructed Morrow to
inform Kilpatrick she could only work on a part-time basis. Morrow so informed
Kilpatrick and her answer was that if she could not be employed on a full-time basis
she would not work at all.
Maxine Forsythe stated when Kilpatrick's name came up for consideration
Kirby said she wanted full,time employment and as the Company could not guaran-
tee such employment to Kilpatrick or anyone else the committee did not recall her.
From Kilpatrick's own testimony it is plain that on April 10 she insisted upon
full-time employment as a presser and as the Company could not employ her on that
basis she waslaid off. There is, of course, no contention that the Union had anything
to do with her layoff. The committee did not recall Kilpatrick because the Company
could not assure her full,time employment as she had demanded.
Since Kilpatrick was not even working at the time of the layoff it was incumbent
upon the General Counsel, in order to prove an illegal refusal to employ her, to
first establish that the Company had 'a job open for which she was qualified and that
the Company discriminatorily refused to employ her in that job. There is no
evidence the Company had an available job which Kilpatrick was qualified to fill
and he was unable to present any plausible argument to support has allegation that
Kilpatrick was unlawfully denied employment subsequent to the reopening of the
plant.
Accordingly, I find Kilpatrick was not discriminatorily refused employment
Dew was employed in December 1955, and performed two operations, basting and
felling seams. Dew was laid off around the end of January, called to the plant
for the meeting of March 21, and returned to work the afternoon of March 24. Dew
worked that afternoon (Friday) and on the evening of March 26 (Sunday) Kirby
telephoned her to say that Rosenfeld believed she was not happy working on the
line system and had decided to put her in another department. Dew inquired if
she was being fired and Kirby said she was not. Dew then asked if Rosenfeld wanted
her to work in the Boydston plant and Kirby replied they were closing that plant
but Catherine Forsythe's department, small orders and samples, had not yet re-
opened. Dew explained she needed a job and asked for a "release" so she could
seek employment at a new plant in the area. Kirby told her Rosenfeld had gone
to New York for the week but promised to mention the release to Rosenfeld, if he
called, and the conversation then ended Shortly thereafter Dew called Kirby to
inform him that she would speak to Rosenfeld herself. About 1 week later Dew
went to the plant to pick up her check and asked Maxine Forsythe if she could speak
to Rosenfeld. Forsythe told her Rosenfeld was in New York Thereafter, Dew
telephoned Rosenfeld once or twice and was advised he was not in at the time
About May 1, Dew and Kilpatrick filed applications for employment. Dew had no
word or written communication from the Company, following Kirby's telephone
conversation of March 26, or the filing of her application of May 1. She was never
recalled to work.
Husk said Dew worked the afternoon of March 24, and was present when the girls
met with Rosenfeld to talk about the line system. Husk claimed Dew did a lot of
talking that afternoon and caused "some confusion," but when asked what Dew
was talking about she said she did not know. About 4:30 that day Rosenfeld
called a meeting of the management committee to inform them that Dew "was
talking and causing confusion" and that she would not work out on the Arne. The
committee agreed and Rosenfeld then told Kirby to call Dew and tell her not to come
in, that maybe something would work out in another department. Dew has not
worked since that date. Husk admitted that Dew's average hourly earnings in the
previous 6 months amount to $1.68, which means good production.
As stated above, Rosenfeld 'attributed her hourly rate to the fact that she was
employed on a repetitious operation.
Maxine Forsythe said she observed Dew talking and causing a general disturbance
on March 24, and the management committee did not even consider her for recall
subsequent to April 28
The facts in Dew's case bear a close similarity to those in the Kilpatrick case,
except that Dew actually requested her "release" from the Company so she could
seek employment elsewhere. Therefore, for the reasons stated in the Kilpatrick
matter, I find the Company did not discriminatorily refuse to reemploy Dew.
The General Counsel bottoms Dew's case on the testimony of employee Wilma
Land, Dew's sister, who related certain statements allegedly made to her by
Catherine Forsythe.
According to Land, about 2 or 3 weeks before the hearing herein, she and Forsythe
were talking at the plant when the conversation turned to the "silly" letters they
RIPLEY MANUFACTURING COMPANY 1475
had received from the Union. Forsythe then said she had heard Dew's name had
been used in connection with the letters, without her permission. Forsythe there-
upon remarked she did not think Dew was involved too much and "she believed if she
[Dew] would have stayed out of that mess they would have eventually put her back
to work." Land knew Dew needed a job very badly, so she reported the conversa-
ton to Dew, "dhmking she would get out of it."
Forsythe related a rambling account of the conversation in the course of which
Land emphasized how badly Dew needed a job. Forsythe expressed sympathy for
Dew and stated that if Dew had behaved at the plant she would have been given work
in her department. Forsythe denied she discussed the Union with Land.
Granting Forsythe made the remark as claimed by Land the result would be the
same. First it would not alter the event of March 24 and thereafter when Dew
was laid off and requested her release, and secondly, the bare remark is no substitute
for evidence showing the Company had a vacancy which Dew was qualified to fill.
I find Dew was not discrimmatorily denied employment.
Lillian Howard was employed by the Company in October 1955 and was laid off
in February, at which time she worked primarily as a cutter on a straight-time
basis. Howard was recalled around the middle of April and worked in the cutting
department, which was not a part of the line system operation. The Company also
had another cutter, Sue Woods, who was hired around June 1955. Howard was
present when Rosenfeld spoke to the employees on April 28, and was laid off that day.
She was also present at the May 15 meeting when Rosenfeld announced the exten-
sion of their insurance.
Pursuant to a telephone call from the Company, Howard went to the plant on
October 18, where she spoke with Rosenfeld in the latter's office. Maxine Forsythe
was present during part of their conversation. Rosenfeld asked why Howard
had not called about her job and she replied she did not do so for personal reasons.
Rosenfeld commented she was a stubborn person and inquired if she wanted to return
to work. Howard said, "Yes," and Rosenfeld stated he would talk to Kirby and let
her know when to report. Rosenfeld asked if she would file an application, which
she did the day she reported for work, October 23. Rosenfeld also discussed the
Union with Howard and, in the course of the discussion, he said that Garrett, Reece,
and other girls that had worked so hard for the Union would never return to work.
Howard remarked that her husband was a member of the Steelworkers union, which
seemingly was well known to Kirby and the employees, and Rosenfeld said that
the Steelworkers was a good union but the Garment Workers Union was not a good
union and it had attempted to break him. Apparently, the conversation then ended.
As appears 'above, Howard reported for work on October 23, and was still employed
at the time of the hearing. Woods was working gat the time of her return. Howard
said she and Woods got along all right although Howard did resent the fact that
Woods received a lugher hourly rate than she did. Howard could not recall making
any statement to employees that it would be more profitable for her to draw un-
employment compensation than to work and pay the expense of a babysitter. Howard
admitted her husband was ill around April 28, and for sometime thereafter, but he
was drawing sick benefits from either his employer or the Steelworkers union.
Howard's union activities consisted of her signing a card for Garrett, on April 27,
and attending a union meeting in October. Admittedly, she had no conversation
with any supervisor regarding the Union during the period from the date of her
termination to her meeting with Rosenfeld.
Rosenfeld admitted he talked to Howard in his office on October 18, and that
Maxine Forsythe was present during the entire conversation. When asked to relate
the reasons advanced by Howard as why "she hadn't worked or couldn't work,"
Rosenfeld asserted Howard said, (1) since she had to pay a babysitter she would
receive as much from her unemployment compensation 'as if she had worked, (2) that
her husband had injured his back and she had to stay home with him, (3) that she
was upset because Woods received 10 cents an hour more than she did for the same
operation, and (4) that she had been ill. Rosenfeld denied making any statement
to the effect that Garrett, Reece, and Medule would never work for the Company.
Maxine Forsythe said she was present throughout the entire conversation between
Rosenfeld and Howard and her version thereof was substantially the same as that
related by Rosenfeld. However, Forsythe added that Howard complained she had
not been recalled because Rosenfeld thought she was working for the Union. Rosen-
feld replied he did not know who was working for the Union, or against it, and
that was not the reason she had not been recalled to work.
G62353-63-vol 138 94
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Forsythe could not recall whether the management committee considered Howard
for recall subsequent to her termination on April 28, for the reason that they
needed only one cutter and they selected Woods who was a better worker.
Catherine Forsythe said Howard was not called in earlier because they needed
but one cutter and selected Woods over her.
Here the complaint is that Howard was unlawfully denied employment from June 7
to October 23. Unlawful motivation for this action is supplied by the fact that
Howard signed a union card around April 27, and her husband was a member of the
Steelworkers union. It is sufficient to say this testimony is wholly insufficient to
impute either knowledge or illegal motivation to the Company. Howard convinced
me she was a disgruntled employee, which was probably due to the fact that Woods
was paid a higher hourly rate than she received. I am further convinced from her
own testimony as well as that of Rosenfeld that she was not interested in returning
to work for sometime after the layoff of April 28.
Howard asserted that during her conversation with Rosenfeld about October 18,
Rosenfeld discussed the Union and stated Garrett, Reece, and other union adherents
would never be reemployed. In charging Rosenfeld with uttering this threat her
testimony stands alone and I see no reason why Rosenfeld would make a threat of
this character to Howard. I accept the testimony of Rosenfeld and Forsythe and
find he made no threat or statement to Howard.
The General Counsel stresses the point that cutters were scarce and the Company
delayed calling Howard until it was forced to do so. I am not sure what this stands
for, but the evidence shows that up to October 23, it needed only one cutter and
that it recalled Woods, who, obviously, was a better cutter than Howard.
I find Howard was not unlawfully refused employment from June 7 to October 23.
Josie Hill commenced her employment in September 1954, and was laid off in
February 1961. At the time of her layoff she was listed as a machine operator but
performed other jobs such as pressing, cleaning, and matching coats. Hill received
a notice from the Company around May 1 stating she had been discharged, that her
insurance had been terminated, and that the Company was accepting applications
for employment. Around the latter part of May, Hill went to the plant and spoke
to Maxine Forsythe about filing an application and Forsythe told her that it was
not necessary to file a new application, that the Company was using the old ones.
Later she called the plant about work and was informed she should file an applica-
tion. Accordingly, in June, Hill filed an application with Maxine Forsythe, who
called Catherine Forsythe to inquire if they had a job for her. Hill complained to
Catherine Forsythe she had heard she was being refused employment because of
her union activity and Hill denied she was active in the Union, that all she did was
sign a card. Forsythe replied that was not true, that Hill had not been recalled
because of lack of work and that she would be called when needed. Hill's union
activities consisted of signing a card on April 27, and having one meeting in her home
about October 16 She was never recalled to work. Hill admitted she went to
Chicago about September 4 to visit her daughter and remained there about 10 days.
During this time there was no one at Hill's home.
Catherine Forsythe said Hill was too slow as a machine operator or presser and
prior to her layoff in January she was cleaning chalk marks off pockets and button-
holes. Hill was not recalled to work on the line system for the reason there was
no full-time job for her and the Company used any employee who was caught up
in her work to clean off the chalk marks. In September, Forsythe decided to call
in Hill for inspection work and told Bowie to call her. Bowie reported she was
unable to reach Hill and heard she was out of town for 2 weeks, visiting her daughter.
Forsythe then called in another employee, Betty Palmer.
Husk testified substantially the same as Forsythe.
Bowie. likewise, corroborated Forsythe's testimony
Hill was laid off in February and has not worked since that date Her union
activities consisted of nothing more than signing a card around April 27, and
having a meeting at her home the following October On the basis of Catherine
Forsythe's testimony I find there were no jobs available for which Hill was qualified
until September. at which time she instructed Bowie to notify Hill to report for
work Bowie made efforts to reach Hill but was unsuccessful as Hill was out of
town for about 2 weeks visiting her daughter. Hill admitted this was true and
that there was no one at her home during this period. The Company thereupon
called in Palmer.
The Company made reasonable efforts to contact Hill and was not under any
obligation to hold open the job until her return. (Lew Chevrolet Componv, 131
NLRB 1123, 1128 ) The General Counsel argues Hill advised Attorney Joe Walker,
who was representing her in a private matter, that she was leaving town and as
RIPLEY MANUFACTURING COMPANY 1477
Walker also appeared as counsel for the Company at this hearing, this constituted
notice of her absence to the Company. Presumably , this means the Company con-
sulted with Walker in the conduct of routine personnel affairs and that the Company
was under some duty to withhold any recalls until Hill returned from her trip.
Manifestly , there is neither merit nor substance to this argument.
I find Hill was not discriminatorily denied employment on and after June 7.
Steelman was hired in August 1959 and was working primarily as a pinker under
Husk when she was laid off in February . Steelman was recalled about April 6,
worked a half day at Boydston , and was then transferred to the main plant in the
sample department , under Catherine Forsythe , where she performed pinking as well
as other jobs. Steelman was laid off April 28 , filed an application for employment
about 3 weeks later, but was never recalled to work.
Forsythe said Steelman worked in her department a short while and at the time
of her layoff was felling and hemming coats on special machines. Forsythe stated
sample coats need to be as near perfect as they can make them and while Steelman
was an efficient , quiet worker , she did not make production . Forsythe did not con-
sider Steelman was a regular, full-time employee 13 and as she recalled Steelman was
off quite a lot during 1960 . As related by Forsythe , Steelman was not recalled in
June because she did not have enough coats to keep her busy full time , so she called
back Ruth Sheperd, an experienced employee who could perform many jobs and
was a higher producer than Steelman.
Maxine Forsythe said Steelman 's name was probably mentioned at the committee
meeting but she had been working in a department not under the line system. Ac-
cordingly , when they considered employees for work on the line system they decided
to call another girl instead of Steelman.
Steelman stated she was employed on a full-time basis.
Steelman was rather active in the Union and the failure to recall her might create
the suspicion that her activities had some connection with the Company's decision
in that respect. However, considering all the testimony , especially the fact that
the Company called in an experienced , all-around operator , and had no subsequent
opening for a person of Steelman's ability, I find the Company did not discrimina-
torily deny reemployment to Steelman.
Scallions first went to work for the Company about January 1951 , and in 1960
was working at the main plant as a back maker. About October 1960 , Scallions
was assigned to Boydston plant where she worked under King until her layoff about
April 7. Around May 1 , she received the form separation notice sent to employees
who were not working on April 28. As stated above, Scallions was called to the
plant on May 20, at which time Rosenfeld announced he was going to reopen the
Boydston plant . Scallions filed an application that day and reported to work about
May 23.
As set forth above, Scallions attended the meeting at the courthouse on May 25,
but did not attend the trials of Vickers and Reece held on June 1.
On June 2, Scallions said King was walking past her machine and she, Scallions,
remarked , "The ones that signed a Union card didn't go to the trial ." Obviously,
Scallions mumbled her remark , for when King asked Scallions what she had said,
Scallions refused to repeat it.
On June 5, Rosenfeld , Catherine Forsythe , and Kirby came into the building and
about an hour later , during the afternoon work break , Rosenfeld spoke to the em-
ployees. Rosenfeld announced they were going ,to make the best coats and he was
keeping only the best operators , the others would be terminated that day. King,
he said, would inform the operators of their termination . At 4:30 that day King
told Scallions , "Rosenfeld said to let you go." When Scallions asked the reason King
replied she had heard the same thing as King had heard. Scallions was given a
separation notice which stated she was terminated for lack of work. She has never
been recalled for employment.
Scallions said she was the only back maker employed at the time of her termination
and denied that anyone had complained of her work or that she had production diffi-
culties in the period May 23 to June 5.
Scallions signed a union card on April 27 , but did not attend any meetings or
participate in any union activities until after her discharge.
King said Scallions began turning out poor quality work shortly before her April
layoff and it continued after she was recalled in May. King brought this to her
13 Testifying from company records, Forsythe said for the weeks ending April 8, 17,
and 29, Steelman worked 16 hours each week and 32 hours the week ending April 22 It is
not clear how many hours the plant worked during those weeks
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attention but, apparently , she did not improve, so she was discharged for that rea-
son on June 5. Burkeen , a collar maker, was also discharged the same day for
the same reason.
King also complained to Scallions about excessive use of the telephone during
working hours.
Betty Lee Hughes, pocket setter, worked near Scallions and stated that while
Scallions worked hard she did use the telephone frequently.
Scallions said she did use the telephone a great deal during January and February
because of illness in her family. She usually made her calls during work breaks
but if she had to do so during working hours , she obtained permission from King.
Admittedly , Scallions merely signed a union card around April 27, and displayed
no active interest whatever in organizational until after her discharge . In order to
make out a case of discrimination Scallions testified concerning threats made by
Catherine Forsythe and the coercive manner in which King instructed the employees
to attend the meeting of May 25 and the trials of June 1. I have already found Scal-
lions to be an unreliable witness and rejected her testimony.
I find the Company had no knowledge of the fact that Scallions had signed a union
card, and that she was discharged for reasons other than her union membership.
It might also be noted that Burkeen was not recalled to work.
Belton was first employed in May 1953, and was included in the seasonal layoff in
February . At that time she was employed at the main plant hand felling buttonholes.
About a week later Belton was called back to help out Goz in the Boydston plant.
Belton considered Goz as her supervisor and stated that he assigned work to her,
gave orders regarding the manner in which her work should be performed , allotted
overtime, and when there was no work available he would send her home . Around
the first of April, Belton was laid off by Goz for lack of work Sometime later,
Belton received the form separation notice and cancellation of insurance sent to
employees who were not working on April 28 Belton filed an application for employ-
ment in the latter part of June or early July but was never recalled to work.
Around the first of June, Belton went to the Boydston plant and asked Goz if he
was going to call her back Goz said he wanted her but he had been to a manage-
ment meeting and they told "they were only calling the ones back that hadn 't signed
union cards " Belton explained she had had nothing to do with the Union, that she
had not attended meetings or handed out any cards . Goz concluded the conversation
by saying he would give this information to the committee and he would probably
call her in the next day. Goz never did call her.
Belton signed a union card on April 27 , which she gave to Kilpatrick a few days
later. She also claimed that on April 27 she accompanied Perlstein and Kilpatrick
when they called upon several employees.
Kilpatrick stated Belton was with them part of the time when she and Perlstein
visited employees on April 27.
A few days after her meeting with Goz , Belton said she talked to Morrow and
King in front of the Boydston plant, at which time Morrow accused her of work-
ing for the Union . King also remarked she had heard Belton was working for the
Union and "they know every card that had been signed " Morrow and King
specifically denied having any such conversation with Belton.
Belton also stated she telephoned Rosenfeld and Catherine Forsythe on several
occasions about returning to work.
Goz worked in the garment industry for many years and was employed by the
Company in 1957. He^'was still employed at the time of the hearing . Throughout
the period of his employment Goz maintained his home and family in St . Louis, while
he lived at the company house in Ripley.
Goz said his job was to "push the coats," that is, when he received a rush order it
was his responsibility to see that the order was completed , which included following
the order through the various operations . Goz gave instructions concerning these
orders to supervisors , who in turn would pass them on to the employees. Goz was
paid a salary of $100 a week (plus $25 a week from Bixby Hall), was, and is, carried
on the Company 's executive payroll , has authority to sign payroll checks, and is
a member of the management committee.
Goz worked at the Boydston plant from about October 1960 , to around April 7
or 8, when the plant closed down. He then went to St. Louis and did not return to
Ripley until around June 6. Upon his return , Goz worked at Boydston for about
1 week and then went to the main factory.
Rosenfeld said Goz , along with Maxine Forsythe and Rigney , had authority, as
cosigner , to sign payroll checks . Rosenfeld called Goz a "work expediter" and it was.
his duty to see that the work flowed smoothly from one operation to another.
RIPLEY MANUFACTURING COMPANY 1479
Certainly Goz was no ordinary employee, for he possessed and exercised authority
plainly indicating he was a supervisor or a top management official. Indeed, the
Company does not argue the contrary . I find Goz was a supervisor at all times mate-
rial herein.
Goz denied that at any time he told Belton the management committee had decided
not to reemploy anyone who was for the Union. He stated the only conversation
he had with Belton took place about July 8, when he met her in a grocery store
and she asked about work Goz told her he did not know anything about it.
Goz did not attend any management committee meetings between April and
June 6, and thereafter he was present at only one meeting . At this meeting the
committee discussed girls to be recalled but he did not join an the discussion because
he "didn 't know enough about them."
Maxine Forsythe said the management committee did not consider Belton because
she was already working when the line system first started up and as she had remarked
she would rather be laid off and draw unemployment,the committee decided to recall
another girl who had worked on the same operation.
Catherine Forsythe stated Belton worked under her supervision for sometime
and she considered Belton a pretty good worker, although she complained quite a lot.
Prior to and at the time of the layoff Fannie Holcomb was performing the same op-
eration as Belton . Forsythe gave an involved account of the employment history
of Belton and Holcomb and concluded by saying the Company needed only one
buttonhole feller and the committee selected Holcomb because she was a better
worker than Belton.
Belton , of course , was laid off at Boydston before the commencement of organ-
izational activities and the question is whether the Company unlawfully refused to
reemploy her on and after June 7. Belton 's activities consisted of signing a union
card on April 27, and accompanying Kilpatrick and Perlstein for a short time that
dray when they called upon employees. In view of the timing of Belton's layoff,
plus the fact there is no evidence indicating the Company had any job for her after
the plant reopened , her case turns on whether Goz, Morrow, and King made the
statements attributed to them by Belton Her testimony in this respect strikes me as
nothing more than an attempt to establish knowledge and unlawful motivation on the
pact of the Company for its failure to recall her . All these accusations were
categorically denied by Goz, Morrow , and King . In my opinion Belton was simply
trying to build a case for herself, and I have no difficulty in rejecting her testimony
and accepting the testimony of Goz, Morrow , and King
Accordingly , I find Belton was not discriminatorily denied employment.
Since I have found the Company engaged in acts of surveillance on April 27, and
that the shutdown and layoff of employees was motivated by illegal considerations, it
is my opinion that the General Counsel by showing that many union adherents
were subsequently denied reemployment at the same time the Company was recalling
a large number of workers thereby established a prima facie case, insofar as these em-
ployees were concerned . Accordingly , proof that jobs were unavailable for the union
proponents when the Company resumed operations was an affirmative defense and the
burden of establishing it rested upon the Company (N.L.R.B. v. Cambria Clay
Products Company, 219 F. 2d 48, 56 (C.A. 6); Croscill Curtain Company and
Durham Drapery Company, Inc., 130 NLRB 1465 ) Considering the evidence as a
whole and the reasonable inferences to be drawn therefrom , I find the Company
discriminatorily refused to recall or reemploy Garrett, Reece, Emerson , Russell,
Escue, and Medile and thereby had engaged in and is engaging in unfair labor prac-
tices yin violation of Section 8(a) (3) and ( 1) of the Act.14
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with its business operations described in section 1, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States , and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce
"Brewers and rlaltsters Local Union No 6, International Brotherhood of Teamsters,
Chau1eurc Warehousemen and Helper s of America (Falstaff Brewing Corporation) v.
N L R.B , 301 F 2d 21 6 (C A 8) , Southern Electronics Conipaiig, Inc, 131 \TLRII 1441,
enfd 302 F 2d 145 (CA 6)
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondent , on April 28, 1961 , ceased manufacturing op-
erations and laid off all employees engaged in such operations in violation of Section
8 (a) (3) and ( 1) of the Act, I shall recommend that the Respondent make whole
each of these employees from the date of the layoff, April 28, 1961, to the date the
Respondent resumed operations, June 7, 1961, or the date of their reemployment
if prior thereto , less their net earnings , if any, during such period.15 As appropriate
remedial relief, the General Counsel urges a recommended order requiring reinstate-
ment of the laid-off employees. Apart from the discriminatees specifically named
herein, the complaints do not allege a discriminatory refusal on the part of the
Respondent to reinstate or reemploy any given number of the laid-off employees, or
the names of such employees Since the evidence shows that practically all the
laid-off employees were recalled by or around June 7, 1961 (except the specific dis-
criminatees), I do not see how the record would justify the recommendation of
broad order of reinstatement for these employees, nor would such a recommenda-
tion effectuate the policies of the Act.
Having found that the Respondent on April 28, 1961, laid off and thereafter refused
to reemploy Garrett, Reece, Emerson, Russell, Escue, and Medile in violation of
Section 8 ( a) (3) and (1 ) of the Act , I shall recommend that the Respondent offer
to the aforementioned employees immediate and full reinstatement to their former
or substantially equivalent posi.tions,16 without prejudice to their seniority or other
rights and privileges, I shall also recommend that the Respondent make whole each
of the afore-mentioned employees for any loss of earnings they may have suffered
because of the discrimination against them with backpay computed in the customary
manner.17 I shall further recommend that the Respondent preserve and, upon
request, make available to the Board and its agents, payroll, social security payment
records, and all other records necessary to analyze the amount of backpay due and the
rights of employment.
Having found that the Respondent by the foregoing conduct and by engaging in
surveillance of union activities has interfered with, restrained, and coerced its
employees in violation of Section 8(a) (1) of the Act, I shall recommend that the
Respondent cease and desist therefrom and from infringing upon the rights of em-
ployees guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent occur in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discriminatorily shutting down its manufacturing operations and laying off
all employees engaged in such operations during the period April 28 to June 7, 1961,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 ( a)(3) and (1) of the Act.
4. By discriminatorily laying off and thereafter refusing to reemploy Garrett,
Reece, Emerson , Russell , Escue, and Medile, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1)
of the Act.
5. By the foregoing conduct, and by surveillance of union activities, the Respond-
ent has interfered with , restrained, and coerced its employees in the exercise of their
rights guaranteed them by Section 7 of the Act and thereby has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
7. The Respondent did not violate Section 8(a) (3) or ( 1) of the Act by failing to
reemploy Kilpatrick , Dew, Hill , Steelman , and Belton , or by failing to reemploy
Howard until October 23, 1961, or by discharging Scallions.
8. Except as found herein , the Respondent had not engaged in the various acts
and conduct alleged in the complaints to be in violation of Section 8(a)(1) of the
Act.
15Arnoldware, Inc, 129 NLRB 228
16 The Chase National Bank of the City of New York , an Juan, Pue, to Rico , Branch,
65 NLRB 827.
17P. W Woolworth Company, 90 NLRB 289
RIPLEY MANUFACTURING COMPANY 1481
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Respondent , Ripley Manufac-
turing Company , its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Southern Illinois District Council, International
Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization of
its employees , by shutting down manufacturing operations , by laying off and re-
fusing to reemploy and/or reinstate employees , or in any other manner discriminating
against employees in regard to their hire and tenure of employment or any term or
condition of employment.
( b) Maintaining surveillance of union meetings or activities of its employees.
(c) In any other manner interfering with, restraining , or coercing its employees
in the exercise of their right to self-organization , to form, join , or assist any labor
organization , to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purposes of collective bargaining
or other mutual aid or protection , or to refrain from any or all such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Make whole each employee for any loss of pay he or she may have suffered
by reason of the Respondent's discrimination in laying off all its manufacturing
employees during the period April 28 to June 7, 1961 , in the manner set forth in
the section entitled "The Remedy."
(b) Offer to Rubye Garrett, Florence Reece, Aunita Emerson, Jean Russell,
Evelyn Escue , and Joseph Medile, immediate and full reinstatement to their former
or substantially equivalent positions , without prejudice to their seniority or other
rights and privileges , and make each of the aforementioned employees whole for
any loss of pay each may have suffered Eby reason of the Respondent 's discrimination
against him or her in the manner set forth in the section entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board and its agents, for
examination and copying , all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records relevant to a determina-
tion of the amount of backpay due and the right to reinstatement.
(d) Post at its Ripley, Tennessee , plant, copies of the attached notice marked
"Appendix ." 18 Copies of said notice, to be furnished by the Regional Director of
the Twenty-sixth Region, shall, after being signed by a duly authorized representative
of the Respondent , be posted by it immediately upon receipt thereof, and be main-
tained 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 Respondent to insure that said notices are not altered , defaced, or
covered by any other material.
(e) Notify the Regional Director , in writing , within 20 days from the receipt of
this Intermediate Report and Recommended Order, what steps the Respondent has
taken to comply therewith.is
I further recommend that, unless within the prescribed period the Respondent
notifies the said Regional Director that it will comply with the foregoing Recom-
mended Order , the National Labor Relations Board issue an order requiring the
Respondent to take the action aforesaid
I further recommend that the complaint be dismissed insofar as it alleges that
the Respondent discriminatorily refused to reemploy Hattie Kilpatrick. Zola Dew.
Jose Hill, Ruth Steelman , and Grace Belton , failed to reemploy Lillian Howard until
October 23 , 1961, and discharged Evelyn Scallions, and insofar as the complaint
alleges acts and conduct in violation of Section 8(a)(1) of the Act not specifically
found to be violative of that section.
'- In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice In the further event that the Board's Order is enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order "
19 In the event that this Recommended Order be adopted by the Board, paragraph 2(e)
thereof shall be modified to read, "Notify said Regional Director in writing, within
10 days from the date of this Order, what steps the Respondent has taken to comply
therewith "
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in Southern Illinois District Council,
International Ladies' Garment Workers' Union. AFL-CIO, or any other labor
organization of our employees , by shutting down our manufacturing operations,
by laying off and refusing to reemploy and/or reinstate employees , or in any
other manner discriminating against our employees in regard to their hire and
tenure of employment or any term or condition of employment.
WE WILL NOT maintain surveillance of union meetings or activities of our
employees.
WE WILL make whole each of the manufacturing employees laid off on
April 28, 1961 , for any loss of .pay each may have suffered by reason of our
discrimination against said employee, for the period April 28 to June 7, 1961,
or the date each employee was reemployed prior to June 7, 1961.
WE WILL offer to the following named employees immediate and full rein-
statement to their former or substantially equivalent positions , without prejudice
to their seniority and other rights and privileges , and we will make each of
these employees whole for any loss of pay each may have suffered by reason of
our discrimination against said employee:
Rubye Garrett Jean Russell
Florence Reece Evelyn Escue
Aunita Emerson Joseph Medile
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, join, or
assist any labor organization, to bargain collectively through representatives of
their own choosing , and to engage in other concerted activities for the purposes
of collective bargaining or other mutual aid or protection or to refrain from any
or all such activities.
RIPLEY MANUFACTURING COMPANY,
Employer.
Dated ------------------- By-------------------------------------------(Reiiresentative) (Title)
This notice must remain nosted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 714 Falls
Building, 22 North Front Street, Memphis, Tennessee, Telephone Number, Jack-
son 7-5451, if they have any question concerning this notice or compliance with its
provisions.
Metropolitan Millwork , Inc. and Local 282, International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers
of America and Local 522, International Brotherhood of Team-
sters , Chauffeurs , Warehousemen and Helpers of America,
Party in Interest . Case No. 2-CA-8236. October 8, 1962
DECISION AND ORDER
On May 16, 1962, Trial Examiner A . Bruce Hunt issued his Inter-
mediate Report in the above-entitled proceeding , finding that the
Respondent had engaged in certain unfair labor practices , and recom-
mending that it cease and desist therefrom and take certain affirma-
138 NLRB No. 129.