Rosen Sanitary Wiping Cloth Co., Inc.

National Labor Relations Board - Board Decisions

Sep 15, 1965

154 N.L.R.B. 1185 (N.L.R.B. 1965)

ROSEN SANITARY WIPING CLOTH CO., INC. 1185
agreement. Where the Employer has the right to terminate the rela-
tionship at will, it indicates an employer-employee relationship, and
not that of an independent contractor.'
Accordingly, on all the facts, we conclude that the Employer has
reserved the right to control the manner and means, as well as the
result, of the dealers' work and that they are, therefore, not independ-
ent contractors .4
As noted above, the Employer contends that, even if the Board finds
that the dealers are not independent contractors, the proposed unit
is nevertheless inappropriate on the ground that the dealers are super-
visors within the meaning of the Act. It is clear, however, that the
carrier boys are not employees of the Employer. As the dealers do not
exercise supervisory authority over any employees of the Employer,
we find that, in their employment relationship with the Employer,
which is the only relationship relevant here, the dealers are not super-
visors within the meaning of the Act.5
Accordingly, we find that a unit of the following employees is appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act :
All district dealers employed by the Employer in the distribution and
circulation of the Employer's newspapers, excluding all other employ-
ees and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
8 Site Oil Company of Missouri, 137 NLRB 1274, 1287.
* The Vindicator Printing Company, 146 NLRB 871, 875-876; Lindsay Newspapers,
Inc., 130 NLRB 680, 681-682 ; Site Oil Company of Missouri , 137 NLRB 1274, 1287-1288;
Buffalo Courtier-Express, Inc ., 129 NLRB 932, 935-936; San Antonio Light Division,
Hearst Consolidated Publications , Inc., 130 NLRB 619, 620, 624-629.
G Buffalo Courier-Express, Inc., 129 NLRB 932 , 937 ; Textile Workers Union of America,
139 NLRB 800, 802.
Rosen Sanitary Wiping Cloth Co., Inc. and General Truck Driv-
ers, Chauffeurs , Warehousemen & Helpers, Local 270, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , Ind. Case No. 15-CA-
0560. September 15, 1965
DECISION AND ORDER
On May 12,1965, Trial Examiner John F. Funke issued his Decision
in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision.
154 NLRB No. 105.
2 0 G-446- 66-vol. 151- 76
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, the General Counsel and the Respondent filed exceptions
to the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following additions, modi-
fications, and exceptions.
1. The Trial Examiner found that the Respondent terminated four
employees in order to discourage membership in the Union, in viola-
tion of Section 8 (a) (3) and (1) of the Act. While we agree with the
Trial Examiner's ultimate conclusion in this matter, we not agree with
his reasoning, but base our concurrence on the following considera-
tions.
The Union, which began an organizational campaign among the
Respondent's employees in September 1964, sent a registered letter to
the Respondent on September 17 asserting that it represented a major-
ity of the employees and requesting negotiations. Blappert, the
Respondent's superintendent, picked up the letter at the post office on
September 18. Later the same day, Blappert laid off seven employees.
Of these seven, Denise Smith, Barbara Ann Edwards, Katie Mae
Julien, and Jean M. Cole," who had signed union membership cards,
are the complainants herein.
The Respondent contends that these layoffs were based solely on
economic considerations. The record, however, belies this contention.
Thus, the record establishes that the Respondent's business, which con-
sisted of processing, selling, and servicing wiping materials for use by
industrial and commercial firms, was run on a day-to-day basis with
a minimal backlog of orders or inventory. Although the Respondent's
production for the entire month of September reflected a slight decline
compared to the previous month, the total value and weight of rags
delivered to its customers during the week of September 14 through
18-the week when the layoffs occurred-were markedly above the fig-
ures for the two preceding weekly periods. Moreover, although there
was an even greater decline 2 months later, the Respondent nevertheless
I The Trial Examiner made inconsistent findings as to the date on which Cole signed a
union authorization card . As the card signed by her was received in the mail by the
Board's Regional Office on the morning of September 18, we find that the card was signed
prior to her layoff on September 17.
ROSEN SANITARY WIPING CLOTH CO., INC. 1187
proceeded to hire several new employees to replace those it had laid
off. The laid-off employees were later recalled, at a time when there
was less work available than at the time of their layoff.
The Respondent further contends that the layoffs were contemplated
before the letter from the Union was received. There is no support in
the record for this contention. To the contrary, none of the employees
was given any warning of a layoff until the end of work on Septem-
ber 18, a day after the workweek had ended, with the result that it was
necessary to give each of the employees laid off two paychecks. More-
over, the layoffs occurred at the close of business on a Friday; on Mon-
day, the first regular workday after the layoffs, Blappert, as set forth
below, embarked upon an antiunion campaign which included unlaw-
ful interrogation, statements indicating that the Respondent was
engaging in surveillance of the union activities, threats to discharge
employees or to sell the plant if the Union succeeded in organizing the
employees, and promises of various benefits which would be bestowed
if the Union were defeated.
All the circumstances surrounding the layoffs, particularly their
precipitate nature; the timing, immediately after receipt of the Union's
letter and a day after the end of the workweek; the antiunion cam-
paign in which the Respondent engaged, including threats of discharge
for union activity; and the absence of evidence to support the Respond-
ent's defenses that the layoffs were economically motivated and were
contemplated prior to receipt of the Union's letter, make it apparent,
and we find, that the Respondent laid off these employees as the first
step in a campaign to discourage membership in the labor organization
which was attempting to obtain recognition. In view of this unlawful
motivation for the layoffs, we find no merit in the Respondent's asser-
tions that the layoffs cannot be found to have violated the Act because
of lack of evidence to establish the Respondent's knowledge as to the
union membership or activity of the four complainants, and because
the employees selected for layoff were those having the least seniority .2
Accordingly, on the basis of the foregoing and the entire record, we
find that the Respondent laid off Denise Smith, Barbara Ann Edwards,
2 Majestic Molded Products, Inc. and Lucky Wish Products, Inc. v. N.L.R.B ., 330 F. 2d
603 (C A. 2), enfg. 143 NLRB 71. The employer in this case had laid off eight em-
ployees in order of seniority and regardless of union preference, purportedly on the basis
of a decline in business . The court agreed with the Board that the layoff was a power
display to discourage union activity , and characterized the layoffs as intended to make
the employees "good little girls." See also Peizo Manufacturing Corporation, 125 NLRB
686, 697, enfd. 290 F. 2d 455 (C.A. 2), in which layoffs made immediately after receipt
of a union bargaining demand were found to be unlawful even though the evidence in-
dieated that the employer did not know or have any reason to believe that those laid off
had joined the union.
We note that the instant case, obviously , is not, as the Trial Examiner stated, "one of
first impression" in which "no formula of precedent is at hand."
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Katie Mae Julien, and Jean M. Cole in order to discourage member-
ship in or activity on behalf of the Union, in violation of Section 8 (a)
(3) and (1) of the Act .-3
2. As noted above, the Trial Examiner found, and we agree, that
the Respondent engaged in numerous violations of Section 8 (a) (1) of
the Act, beginning immediately after it received notice of the Union's
claim to represent its employees. Such conduct included Blappert's
interrogation of employees about the union membership, activities, and
sympathies of themselves and their coworkers which constituted unlaw-
ful interrogation and attempts to compel employees to act as informers
regarding union activity; Blappert's threats to several employees that
they would be "let go" if the Union "came through," that the practice
of making loans would be discontinued because of union activity, that
the business might be sold if the Union won the scheduled Board elec-
tion, and his remarks to Denise Smith, one of the four discriminatees,
after she had been reinstated, that if she had taken the day off on the
day he went to the Board office, he would have known she went there
and would have discharged her; Blappert's promises of benefits,
including overtime work, holidays and vacations with pay, and a
wage increase if the Union lost the election; and Blappert's attempts
to create an atmosphere of surveillance by indicating to employees that
he knew who signed union cards, who attended union meetings, and
who was active on behalf of the Union .4
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders
that the Respondent, Rosen Sanitary Wiping Cloth Co., Inc., New
Orleans, Louisiana, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recommended Order.5
8 Boro Motors, Inc., 153 NLRB 145 (TXD) ; Heinrich Motors, Inc., 153 NLRB 1575.
4 Southern Coach & Body Co., Inc., 135 NLRB 1240, Mid-State Beverages, Inc., 153
NLRB 135 (TXD) ; Gal Tea Hotel Corporation, d/b/a Admiral Semmes Hotel and Motor
Hotel, 154 NLRB 338.
While we agree with the Trial Examiner that Bonnie Bourne, an individual, d/b/a
Bourne Co . v. N.L.R.B., 332 F. 2d 47 (C.A. 2), is applicable to this case, we do not adopt
his comments concerning the effect of that decision . Moreover, as we find other remarks
by the Trial Examiner , such as his references to "the Eisenhower Board" and "the
Kennedy Board" and to what he characterizes as "the cleavage, perhaps crescive, be-
tween the thinking of the Board and that of the courts," to be improper, irrelevant, and
injud cious, we disavow any statements made in his Decision which are unnecessary to
our fir dings and conclusions.
s The telephone number for Region 15, appearing at the bottom of the Appendix at-
tached to the Trial Examiner 's Decision, is amended to read: Telephone No. 527-6391.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed October 12, 1964, by General Truck Drivers, Chauffeurs, Ware-
housemen & Helpers, Local 270, herein called Local 270 or the Union, against Rosen
ROSEN SANITARY WIPING CLOTH CO., INC. 1189
Sanitary Wiping Cloth Co., Inc., herein called Rosen or the Respondent, the General
Counsel issued a complaint alleging Respondent violated Section 8 (a) (1) and (3) of
the Act. The answer of the Respondent denied the commission of any unfair labor
practices.
This proceeding, with General Counsel and Respondent represented was heard
before Trial Examiner John J. Funke at New Orleans, Louisiana, on March 15, 1965.
At the conclusion of the hearing the parties were given leave to file briefs and helpful
briefs were received on April 19, 1965.
Upon the entire record in this case, and from my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The answer admits and I find that Respondent is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 270 is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Violations of Section 8(a) (1)
I credit the following testimony of witnesses for the General Counsel:
(a) The testimony of Denise Smith that upon her recall to work on September 25,
1964,1 she was asked by Superintendent Blappert if she knew anything about the
Union, told that he knew she had signed a card and that when the Union had a meet-
ing (or election) he wanted her to be on his side.
(b) The testimony of Denise Smith that during the month of November Blappert
told her that he knew she had signed a card, that her name was on the Board "list"
(the charge herein was filed on October 12 and her name appeared on the charge),
and that had she taken off on the day Blappert went to the Board he would have
known she went there and would have fired her.
(c) The testimony of Denise Smith that Blappert told her Rosen had told him
that the day after the election some employees would be laid off and the ones that were
kept would be given a week's vacation and three paid holidays.2
(d) The testimony of Lawrence Thompson that, about the middle of September,
he and Everett Henderson were called to Blappert's office where Blappert asked him
if he had signed a card. (Thompson denied signing a card.) Thompson also testified
that about the latter part of September he was called to the office of Aaron Rosen
and in the presence of Blappert and Foreman Sam Bernard was again asked if he had
signed a card. Later he was told by Blappert that if the Union "don't come through"
he would guarantee him three paid holidays and a week's vacation with pay.3
(e) The testimony of Joseph Slater, who started the union organization at Rosen,
that about October 21 Blappert told him that no more loans would be made by
Respondent to the employees because the Union would not permit it.
(f) The testimony of Donald Forte that Blappert asked,"How come they got mixed
up in this Union." He also testified that Blappert told him that when it was over
"they" would know who to keep and who they were going to let go. In a later con-
versation Blappert told him that Rosen had stated that if the Union lost the election
the employees would get 1 week's vacation and three paid holidays but that if the
Union won the towel business would be sold the first part of the year.
(g) The testimony of Sammy Lee Franklin that on November 10, Blappert told
him that he (Franklin) had attended a union meeting the previous night and that
when he repeatedly denied it Blappert insisted and told him he knew everyone who
was there. Franklin stated that Blappert later promised him 1 week's vacation, a
nickel raise, and three paid holidays if the Union lost. Blappert also told him that if
the Union won Slater and Henderson were to be let go.
Conclusions
I find the foregoing testimony sufficient to establish that Respondent engaged in
conduct which was in violation of Section 8 (a) (1) of the Act. I believe the interro-
I Unless otherwise noted all dates refer to 1964.
2 The employees were receiving no vacation and no paid holidays.
s While Thompson was a reluctant witness and at times evasive, his reluctance and
evasion seemed attributable to an unwillingness to testify against his employer rather
than an effort to contrive his testimony.
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gation of Smith and Thompson by Blappert and the subsequent interrogation of
Thompson by Aaron Rosen meet the tests applied by the court in Bonnie Bourne, an
individual d/b/a Bourne Co. v. N.L.R.B., 332 F. 2d 47, 48 (C.A. 2).4 The interroga-
tion of these witnesses took place against a background of established hostility
toward the Union, the information sought could have been for the purpose of taking
action against the employees, the interrogators were high in the company hierarchy,5
the employee questioning took place in the boss' office, and each employee gave an
untruthful reply. When it has been established that some of the interrogation took
place under circumstances which make it clearly coercive then I believe that collateral
interrogation which may not meet the requirements of Bourne is necessarily coercive
since the pattern has been established. Since a recital of the other instances would
be merely cumulative I find such recital unnecessary.
I do not regard either of the speeches made by Sam or Aaron Rosenberg as coercive
unless Section 8(c) is to be effectively repealed by administrative construction and
confine my findings of violation to the interrogation as indicated, the statement made
by Blappert to Smith that had she taken off on the day he went to the Board she would
have been fired,6 his statement to Smith that the day after the election some employ-
ees would be laid off and the others given a week's vacation with three paid holidays,
the promise to Thompson, Forte, and Franklin of a week's vacation and three paid
holidays if the Union lost, the threat to Slater that there would be no more loans to
employees if the Union won, Blappert's statement to Forte that after the election the
Employer would know "who to keep and who they were going to let go," Blappert's
statement to Forte that the towel business would be sold if the Union won, and Blap-
pert's statement to Franklin that he knew he had attended a union meeting and knew
everyone who had attended.
B. Violations of Section 8(a)(3)
Sometime during the month of September Local 270 started an organizational cam-
paign among the employees of Rosen. On September 17 it sent a registered letter to,
Rosen alleging that it had been authorized to represent the employees and requesting
bargaining negotiations . ( General Counsel 's Exhibit No. 2-a). The registry receipt
shows the letter was delivered to Rosen on September 18 Blappert admittedly picked
up the letter at the post office on that day although he denied having "seen " the letter.
There is no denial that the letter was received and its contents made known to Respond-
ent's officers On that afternoon Respondent , acting through Blappert, laid off seven
employees , four of whom are alleged to have been laid off to discourage union mem-
bership. The facts related to the termination and reemployment of these employees
are brief.
Denise Smith v'^c employed by Respondent on August 7. (All dates are taken from
Respondent's Exhibit No 4). Smith testified that she signed a union card on either
September 8 or 9 at the request of Joe Slater , another employee . She signed the card
in the ladies ' room at the plant and stated that no one saw her sign it. On the 18th,
which was a Friday and the regular payday, she went to the office and was handed two
paychecks 7 and was told by Blappert that she was fired because there was no work.
She was rehired by Blappert a week later to replace an employee who was leaving.
When she was rehired she was interrogated concerning her union activity as has been
related, supra , and was also told she was rehired because she was a good worker.
Barbara Ann Edwards was employed by Respondent on August 28. She testified
that she signed a union card at the request of Joe Slater in the plant on September 16
and that no supervisor saw her sign it. When she went for her paycheck on Septem-
ber 18 she was given two checks and told she was fired because there was no work.
She was rehired on December 8.
Katie May Julien was employed by Respondent on July 31 . She signed a union
card at her home on a date she fixes as September 15 or 16. She was fired by Blappert
on September 18 and was rehired on December 9.
'The Board has Indicated that some deference will be paid to the Bonrne decision
(followed by the Fifth Circuit in N.L.R it. v. Cameo, Inc, 340 F. 2d 803, 804) in its
decision in Cannon Electric Company, 151 NLRB 1465. The extent of that deference
is described as "tentative only and not of general applicability . . . The meaning of
those words is left to the reader to find.
Aaron Rosen was secretary-treasurer of the Company.
Although the threat referred to conduct which had not taken place, I consider it a
direct threat that the Employer would engage in reprisal if he knew the employees were
resorting to the Board.
T One was for the regular pay period which ended on Thursday, the 17th, and one for
her day's work on the 18th.
ROSEN SANITARY WIPING CLOTH CO., INC. 1191
Jean M. Cole was employed by Rosen on August 2 8 and signed a union card at her
home on September 14.9 She was laid off by Blappert on September 18 and reem-
ployed December 4.
In addition Respondent's Exhibit No. 4 indicates that Ralph Underwood was hired
September 3, Inez Rowell was hired September 11, Jerry Howard was hired Septem-
ber 11 and that all were also discharged or laid off on September 18. None of these
terminations is alleged to be discriminatory. Respondent's record indicates, and this
is not disputed by the General Counsel, that these seven employees were junior in
employment tenure to the other employees on September 18. The records do not
establish whether the last three were reemployed. These are the naked facts respect-
ing the termination.
In refutation of the allegation that the terminations were motivated by an intent to
thwart the organization of the employees and were an immediate response to Local
270's letter received on the same day Respondent offered testimony to the effect that
the terminations were motivated by economic necessity. Respondent's daily produc-
tion records from the period August 1 through November 30 (General Counsel's
Exhibits Nos. 3(a) to 3(d)) indicate the following:
(1) During the month of August, Respondent delivered to customers 147,105
pounds of rags for which Respondent received $28,021.65;
(2) During the month of September, Respondent delivered to customers
119,260 pounds of rags for which Respondent received $25,726.47; 6
(3) During the month of October, Respondent delivered to customers 113,485
pounds of rags for which Respondent received $22,481.27;
(4) During the month of November, Respondent delivered to customers
90,365 pounds of rags for which Respondent received $19,052.87.
6 Computation of Respondent's daily production records for September (General
Counsel's Exhibit No. 3(b)) on an adding machine shows an error in the totals
reflected on Respondent's September record. Based on Counsel for the General
Counsel's computations, it would appear that in September Respondent delivered
to customers 126,760 pounds of rags for which Respondent received $24,726.47.
Respondent also, on cross-examination of Edwards, Julien, and Cole, elicited the
fact that none of them consistently made her production quota. It is nowhere alleged,
however, that this failure was the cause of their discharge and it is not alleged that
other employees consistently met their quotas.
In an effort to establish unlawful motive by direct evidence Slater was interrogated
by the General Counsel respecting a conversation with Blappert on September 23.
Slater testified that Blappert told him that he had heard "they got a Union going
around here." Slater denied any knowledge of union activity but subsequently asked
Blappert if that was the reason for the layoff. According to Slater, Blappert replied,
"Yes, I heard this was the new people that started pushing that union trouble." Later
that same day Blappert allegedly told Slater that the new boy (Ralph Underwood)
was the one who brought the cards in I do not credit Slater as to this conversation,
denied by Blappert. Slater, in testifying, appeared anxious to favor the Union on
every possible point. While I have credited Slater with respect to other conversations
with Blappert these conversations were consistent with other credited testimony.
While Blappert was eager to defeat union organization within the plant and willing
to coerce the employees to further that end there was no reason for him to make such a
damaging admission to Slater. It seems particularly inconsistent in view of Forte's
testimony, which I credit, that Blappert told him that Slater was the ,one who kept the
Union going and that he did not see how anyone could follow Slater because "he is
kind of crazy." The demeanor of Slater was such as to convince me that he was will-
ing to deviate from the truth when it served his purpose and I am unwilling to credit
his testimony where it is not corroborated by or in conformity with other testimony.'°
9 General Counsel's Exhibit No. 4 Indicates Cole was hired September 4. In view of
Cole's testimony that she was first employed about August 1, I accept the date of Au-
gust 2 as the correct date
6 This testimony contradicts her pretrial affidavit in which she stated she signed the
union card on Monday, September 21. The same affidavit states, however, that she
signed a card on September 16. In view of her testimony that she signed two cards,
one for authorization and one for membership, I accept the date of September 16.
io As counsel for the Respondent points out in his brief, if the General Counsel fully
credited Slater he would have been under obligation to allege the discharge of Underwood
as a violation of the Act.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
Although there is no direct evidence that the discharges were discriminatory and
the evidence on which inference of discrimination can rest is scant, it is my conclu-
sion that the discharges were in violation of the Act. This conclusion is fortified by
Respondent's own records which contradict its claim of economic justification. As the
General Counsel points out in his able brief Respondent's sales, while consistently
declining from August through November, were increasing during the crucial period
in September. Thus from September 1 through 4 the sales totaled $3,188.26; from
September 8 through 11 sales totaled $3,745.24; from September 14 through 18 sales
totaled $4,315.92; from September 21 through 25 the sales totaled $4,399.77 and from
September 25 through 30 sales totaled $9,077.28.
In addition the Respondent's record (Respondent's Exhibit No. 4) show that it
employed Ralph Underwood on September 3, and Inez Rowell and Jerry Howard on
September 11. These hirings are difficult to reconcile with Blappert's testimony, not
supported by Respondent's own records, that sales were dropping off during this period,
and that he decided on the layoff about 2 or 3 days before the 18th. His own testimony
thus establishes that he hired two new employees only 2 or 3 days before he decided
it was necessary to lay off seven employees. This is either a display of woeful incom-
petence in estimating personnel requirements or purely fictitious testimony designed
to conceal Respondent's discriminatory motive. There is, however, further evidence,
again based on the Respondent's own records, that the alleged economic motive was
not the real one and was designed to mask its true intent. These records establish
that during the month of November Respondent hired seven new employees 11
although reinstatement was not offered to any of the employees terminated on Septem-
ber 18 and still in a layoff status. What seems more devastating to Respondent's plea
is the fact that its sales (or receipts) in November totaled $19,052. 87 as against sales
in September of $25,726.47.12 Again the Respondent's records (General Counsel's
Exhibit No. 4) discloses that there were no terminations of employees during the
period commencing after September 18 until the new hirings in November. It cannot
then be claimed that these hirings were recruited to reinforce a depleted work force.
So the economic argument presented by the Respondent for the discharges on Sep-
tember 18 is not only not established by Respondent's records, it is conclusively
proved false. There is one other factor that must be considered. If Blappert, as he
testified, decided 2 or 3 days before September 18 to reduce his working force, ordi,
nary procedure would have effected the reduction on Thursday, September 17, the
close of the pay period and have eliminated the necessity of issuing two paychecks.
It was not, however, until September 18 that Respondent gained knowledge of the
interest of the employees in union representation and its response was so immediate as
to foreclose acceptance of any but a discriminatory motive in the absence of substan-
tial evidence to the contrary. This is not to suggest that a post hoc ergo propter hoc
line of reasoning is sufficient to support the General Counsel' s case. The finding here
is based on Respondent's established hostility toward the Union, the finding that dur-
ing September there was no justification for the layoffs and that there were subsequent
hirings which are not justified by any increase in sales or productivity.
There is nothing in the record to establish that either the Rosens or Blappert
knew at the time that any of the seven employees laid off on September 18 had signed
union cards.13 The four who testified to signing cards testified that they did so in
secret, at least to the extent that no supervisor saw them sign. Since the cards of all
except Smith were signed during the week of September 18 and since there is no evi-
dence to show Respondent learned of union activity until delivery of the Union's
letter on the 18th I am unwilling to accept any inference that Respondent knew the
n The hirings and the dates were:
Henrietta Washington___ November 11 Edna Carter_________ __ November 13
Mildred Gray----------- November 12 Juanita Mae Smith__ __ November 16
Louise Smothers-------- November 12 Gloria Rousell---------- November 30
Mary Green__________ __ November 12
13 There is nothing in the record to indicate that the sale of wiping rags would be
increased in December . It is not foreseeable that the holiday season would have an
appreciable effect on the sale of wiping rags, hardly appropriate for Christmas gifts.
13 All the testimony which relates to Respondent 's suspicions concerning certain em-
ployees is fixed at times after September 18.
ROSEN SANITARY WIPING CLOTH CO., INC. 1193
identity of any union adherents on that day.14 In the cases cited below there is some
evidence, however slight, that the employer learned of union activity and the size
of the plant was offered to establish, with such other evidence, the inference. Here,
while there is evidence to establish that Respondent learned of union activity of his
employees on the 18th, there is no support for the further inference that he learned
of their identities. I reject any inference that he knew that Smith, Edwards, Julien,
and Cole had signed union cards prior to the time of discharge.15
I do not, however, find such knowledge necessary to sustain the rationale of the
case. Here the evidence is convincing that Respondent's immediate response to the
Union's letter was the discharge of seven employees. No other reason finds justifica-
tion and the asserted reasons are established as fictitious. The fact that it can be
found that the employees laid off were not selected on a discriminatory basis does not
serve to exculpate the Employer from conduct clearly unlawful. The discrimination
in this case consists of loss of job status not by reason of known or suspected union
activity but because of knowledge, not particularized as to individuals, of union
activity in the plant. Having acquired this knowledge the Respondent fired 16 its
seven junior employees without any attempt to learn of their individual status vis-a-vis
the Union. But the Respondent cannot be permitted to engage in conduct so mani-
festly unlawful by employment of a subtle and sophisticated procedure. If it is to be
permitted enforcement of the Act will depend not on whether the employer has dis-
criminated against his employees but whether he has found a method of discrimina-
tion which does not fall within the letter of Section 8(a) (3). But in recent decisions
the courts have found that construction of the statute need not necessarily be literal
but must serve the overriding intent of the Congress. National Maritime Union of
America (Weyhaeuser Lines, etc.) v. N.L.R.B., 342 F. 2d 538 (C.A. 2); 17 National
Maritime Union (Delta Steamship Lines, Inc.) v. N.L.R.B., 346 F. 2d 411 (C.A.D.C.).
In these cases both courts held that the existence of a primary dispute was not neces-
sary in order to establish a "secondary boycott" within the meaning of Section 8(b)
(4). In holding that the section was not intended to apply to the traditional secondary
boycott situation only, the Second Circuit referred to the section as "one of the most
labyrinthine provisions ever included in a federal statute." The court stated (342
F. 2d 538) :
In considering and applying these principles we are of the opinion that Con-
gress did not intend to confine the effect of § 8(b)(4) to a strict or precise
definition of the term "secondary boycott" nor did it intend to require the
existence of a "primary employer" as a prerequisite to the applicability of the
subsection.
The District of Columbia Circuit took a similar view, stating (346 F. 2d 411) :
The mere fact that the language of this Section comprehends the familiar patterns
of a secondary boycott in the customary sense does not inexorably dictate the
conclusion that it excludes all variations from those patterns. Where, as here,
act and object fall comfortably within the letter of the statute, the Board's hand
is to be stayed only upon a persuasive showing that they are beyond its spirit.
Both courts acknowledged that the Supreme Court had agreed that the section
could not , on the other hand, be interpreted literally or it would proscribe all peaceful
picketing even when directed at the primary employer in the dispute. Local 761,
International Union of Electrical Workers (General Electric Company) v. N.L.R.B.,
366 U.S. 667.
141 am aware that the Board and the courts have sustained an inference of company
knowledge when union activity has taken place in a small plant . N.L.R.B. v. Abbott
Worsted Mills, Inc., 127 F. 2d 438, 440 (C.A. 1) ; N.L.R.B. v. Quest-Shop Mark Brassiere
Co., Inc., 185 F. 2d 285 (C.A. 2), enfg. 80 NLRB 1149, 1150; Angwell Curtain Company,
Inc. v. N.L.R.B., 192 F. 2d 899 (C.A. 7).
'S The First Circuit rejected such an inference in affirming the Board in N L.R B. v.
Roberto Alvaro Manufacturing , Inc., et al., 327 F. 2d 998 (C.A. 1), and the permissibility
of such an inference was rejected by the Fifth Circuit in N.L.R.B. v. Teamsters, Chauf-
feurs and Helpers Local Union No. 79 , IBT (Redwing Carriers, Inc.), 284 F. 2d 397, 400.
19 The terms "fired," "discharged," and "laid off" are used interchangeably since it is
difficult to determine exactly in what form the terminations took place and the issue
is not material.
17 This decision involved two Board cases, 147 NLRB 1243 and 147 NLRB 1317.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board is therefore admonished not to construe the statute in the literal terms
of its language. It has also suffered reversal when it has gone beyond the language
and spirit of the statute and extended its scope beyond the intendment of the Congress
as construed by the Supreme Court.18 When the agency established by the Congress
to apply a special expertise to the construction of a statute suffers so many reversals
by the Supreme Court (with intermediate divergent and conflicting opinions by the
circuit courts) on major issues of policy, it appears that the task entrusted is not an
easy one. We are not dealing with a statute of descent where the rules are fixed and
the application is rigid. The language of the Act has both scope and variance in
meaning, for conduct which may be discriminatory in one instance may not be in
another. The ever-growing caseload of the Board is evidence that precise definition
is impossible and the art of statutory construction is flexible and decisions will
fluctuate.
Even in their estimate of the quantum of evidence necessary to support a finding of
violation of Section 8(a)(3), apart from issues of law, there is dispute'9 The cases
cited below are cited for the sole purpose of showing the cleavage, perhaps crescive,
between the thinking of the Board and that of the courts on the issue of sufficiency of
proof despite Universal Camera Corporation v. N.L.R B., 340 U.S. 474. If the reason
for a disparity in emphasis is subject to analysis it might be said that the Board has
placed increasing reliance on its intuitive expertise; the courts are more wary of
inference and seek proof.
If this is a labored decision with relation to the impact of the case, it is, nevertheless,
as I see it , one of first impression and some review of the trend of the decisional
process is necessary when no formula of precedent is at hand. Observation of recent
Board reasoning and its decision rather compels the conclusion that it has given a
liberal construction to those sections of the Act which protect the rights of employees
and to defend those rights against assault, however subtle and ingenious, by employers
and labor organizations. This defense is, as it should be, a primary function of the
Board and requires the exercise of constant vigilance and expertise. I am therefore
giving sufficient compass to the Section 8(a)(3) to hold that Respondent engaged in
discrimination when he laid off seven employees for the purpose of discouraging
membership in the Union. To hold that discrimination must apply to the selection of
the employees terminated unduly offers the adroit employer escape from the conse-
quences of his misconduct and the chance to make void the rights of those employees.
No action has greater impact than discharge and, when taken at the beginning of
union organization and, as here, accompanied or followed by other coercion, threats,
and unlawful interrogation, such impact is lethal.
18 Local 374 , International Brotherhood of Boilermakers , etc (American Ship Build-
ing Company) V. N.L.R.B., 331 F. 2d 839 (C.A.D.C.) (142 NLRB 1362) ; Textile Workers
Union v. Darlington Manufacturing Co., 380 U.S. 263 (139 NLRB 241) ; N.L.R.B. v.
Brown, et at., d/b/a Brown Food Store, 319 F. 2d (C A. 10) (137 NLRB 73) ; NLRB.
v. News Syndicate Company, Inc., etc., 365 U.S. 695 (122 NLRB 81S) ; Local 357, Team-
sters (Los Angeles-Seattle Motor Express) v. N L R B , 365 U.S. 667 (121 NLRB 1629) ;
N.L.R.B. v. Local 761, International Union of Electrical Workers, etc. (General Electric
Company), 366 U.S. 667 (123 NLRB 1547) ; Local 60, Carpenters (Mechanical Handling
Systems) v. N.L R.B., 365 US. 651 (122 NLRB 396) ; Local Lodge No. 1424, et al.,
Machinists v. N.L.R.B., 362 U.S. 411 (119 NLRB 575) N.L.R B. v. Insurance Agents'
International Union (Prudential Ins. Co ), 361 U.S. 477 (119 NLRB 768) ; N L R B.
v. Drivers, Chauffeurs and Helpers Local Union No 639, Teamsters (Curtis Bros ), 362
U.S. 274 (119 NLRB 232). (It might be noted that the first three of the above decisions
in which the Board was reversed were decisions of the Kennedy Board and in each the
employer was the Respondent. In six of the remaining seven decisions, decided by the
Eisenhower Board, the Union was the Respondent )
zs In decisions which issued during the first 3 months of the current year the Board and
the courts have found themselves in disagreement respecting the proof required to sus-
tain discriminatory motive under Section 8(a) (1), (3), and (4) in the following cases:
Welch Scientific Co., Inc v N.L R.B., 340 F 2d 199 (CA. 2) (146 NLRB 1451) ; A. 0.
Smith Corporation v. N.L.R.B , 343 F. 2d 123 (C A 7) (132 NLRB 339 and 137 NLRB
361) ; N.L.R.B. v Park Edge Sheridan Meats, Inc., et al., 341 F. 2d 725 (CA. 2) (146
NLRB 289) ; N.L R.B. v The Little Rock Downtowner, Inc., 341 F. 2d 1620 (C A. 8)
(145 NLRB 1286) Fort Smith Broadcasting Co. v. N.L.R.B., 341 F. 2d 874. (C.A. 8)
(146 NLRB 759) N.L.R.B v. Ace Comb Co., etc., 342 F. 2d 841 (C A. 8) (141 NLRB
489) ; Bonded Armored Carrier, Inc. v. N.L.R.B., 343 F. 2d 184 (C.A. 4) (147 NLRB 100) ;
N.L.R.B. v. I. Posner, Inc„ et al., 342 F. 2d 826 (C.A. 2) (145 NLRB 1190) ; N.L.R.B. v.
Miami Coca Cola Bottling Co., 341 F. 2d 524 (C A. 5) (140 NLRB 1359).
ROSEN SANITARY WIPING CLOTH CO., INC. 1195
The discharges of Smith, Edwards, Julien, and Cole were discriminatory within the
meaning of Section 8(a) (3) and under the circumstances of the cast, inevitably inter-
fered with, restrained, and coerced other employees in the exercise of the rights guar-
anteed them by Section 7 and were in violation of Section 8 (a)( 1 )20
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
IV. THE REMEDY
Having found the Repondent has engaged in and is engaging in certain unfair labor
practices, I shall recommend that it be ordered to cease and desist therefrom and
take certain affirmative action to effectuate the policies of the Act.
Having found that Respondent discharged Denise Smith, Barbara Ann Edwards,
Katie Mae Julien, and Jean M. Cole in violation of Section 8(a)(3), I shall recom-
mend that Respondent make each of them whole for any loss of pay she may have
suffered by reason of said discrimination in accordance with the formula set forth in
F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of the Act.
2. Local 270 is a labor organization within the meaning of the Act.
3. By unlawfully interrogating its employees with respect to their union activity,
threatening them with reprisal for engaging in protected concerted activity, telling
the employees it knew the identity of union adherents, promising them benefits if the
Union lost the election, and threatening them with reprisal if the Union won, the
Respondent violated Section 8 (a) (1) of the Act.
4. By discharging four employees on the day it received notice of union activity
in its plant to discourage membership in Local 270, Respondent violated Section
8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record
in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as
amended, it is recommended that the Respondent, Rosen Sanitary Wiping Cloth Co.,
Inc., its officers , agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Interrogating its employees with respect to their union activity in a context
of coercion and restraint; threatening them with loss of benefits for engaging in union
activity; telling its employees it knew who had engaged in union activity; promising
its employees benefits if the Union lost the election; and threatening them with reprisal
if the Union won the election.
(b) Discriminating against any employee in regard to his or her hire or other
tenure and condition of employment to discourage membership in General Truck
Drivers, Chauffeurs, Warehousemen & Helpers, Local 270, or any other labor organi-
zation, by discharging or otherwise terminating or interrupting his or her employment.
(c) In any other manner interfering with, restraining, or coercing its employees in
the exercise of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Make Denise Smith, Barbara Ann Edwards, Katie Mae Julien, and Jean M.
Cole whole for any loss of earnings they may have suffered by reason of the discrimi-
nation practiced against them in the manner set forth in the section entitled "The
Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary for the computa-
tion of backpay which may be due under this Recommended Order.
mo The discharges of the other three employees were not alleged as unfair labor prac-
tices in the charge or in the complaint nor were their discharges litigated at the hear-
ing. For these reasons no finding is made that they were discharged in violation of Sec-
tion 8( a)(8).
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its plant at New Orleans, Louisiana, copies of the attached notice
marked "Appendix." 21 Copies of said notice, to be furnished by the Regional
Director for Region 15, shall, after being signed by a representative of the Respondent,
be posted immediately upon receipt thereof, and be maintained for a period of 60
consecutive days thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, detaced, or covered by any other material.
(d) Notify the Regional Director for Region 15, in writing, within 20 days from
the receipt of this Decision, what steps have been taken to comply therewith.22
It is further recommended that those allegations of the complaint not specifically
found to be violations of the Act be dismissed.
a In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order 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 "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order".
rd In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days,
from the date of this Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT interrogate our employees with respect to their union activity
or membership.
WE WILL NOT threaten our employees with loss of benefits for engaging in,
union activity.
WE WILL NOT promise our employees three paid holidays and a vacation if the
Union loses the election.
WE WILL NOT threaten our employees with loss of benefits or loss of jobs if
the Union wins the election.
WE WILL NOT tell our employees we know who has joined the Union.
WE WILL NOT discriminate against any employee in regard to his or her hire
or other tenure and condition of employment to discourage membership in
General Truck Drivers, Chauffeurs, Warehousemen & Helpers, Local 270, or any
other labor organization , by discharging or otherwise terminating or interrupting
his or her employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed by Section 7 of the Act.
WE WILL pay Denise Smith, Barbara Ann Edwards, Katie Mae Julien, and
Jean M. Cole for any wages they may have lost between the time we discharged
them and reemployed them.
All our employees are free to become or remain members of the above-named or
any other labor organization, or to refrain from such membership.
ROSEN SANITARY WIPING CLOTH CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, T6024
Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana, Telephone
529-2411, Extension 6396.