Russell-Newman Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jan 3, 1962

135 N.L.R.B. 1 (N.L.R.B. 1962)

Russell -Newman Manufacturing Company , Inc.- and Interna-
tional Ladies ' Garment Workers Union , AFL-CIO. , Case No.
16-CA-1456. January 3, 1962
DECISION AND ORDER
On June 30, 1961, Trial Examiner Joni P. Von Rohr issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set, forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief, while the Charging Party filed excep-
tions and, a letter in lieu of brief. The Respondent also filed a brief
in.support of the Intermediate Report.
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 Leedom and Brown].,
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 Intermedi-
ate Report and the entire record in this case, including the exceptions
and the briefs, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner.
We agree with the Trial Examiner that the General Counsel failed
to prove by a preponderance of the evidence that the discharge of
Wardlaw was discriminatorily motivated. Our dissenting colleague
believes, however, that the evidence requires a finding that the dis-
charge was unlawful. In our view he gives undue weight to certain
parts of the record which, when presented in isolation, would seem
to justify his proposed result. We are satisfied, however, that the rele-
vant evidence viewed as a whole, including those parts relied upon
by our colleague, quite clearly fails to support a violation.
We are mindful of the fact that Wardlaw, who was an active union
member and satisfactory. employee, was discharged for engaging in
conduct of swearing ; that swearing was fairly common in the plant;
and that such conduct had, on one occasion , been "punished" only by
a change in work location. However, although not mentioned by the
dissent, the record further shows that Martino, Respondent's vice
president and general manager, who discharged Wardlaw, was in fact
135 NLRB No. 6. 1
634449-62-vol 135-2
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opposed to the use of improper language in the plant; had notified her
supervisor that it would not,.be,permitted; and was unaware of its
common occurrence. Further, there is no direct evidence demon-
strating that Martino was motivated in his action against Wardlaw
by reasons other than her use of offensive language. Significantly,
at the time Wardlaw used offensive language toward Smith she also
stated in effect that Smith should vote for the Union or "she would
be sorry." Certainly, it would have been reasonable, as well as law-
ful, for Respondent to discharge Wardlaw for making such a ,threat.
However, the Respondent expressly disclaimed that the di's`charge
was based at all upon the threat-a disclaimer obviously inconsistent
with the dissent's view that Respondent sought to disguise an unlawful
motivation with a lawful one.
Wardlaw's union activity and Respondent's opposition to the Union
are, of course, factors suggesting an improper motivation behind the
discharge. But, any certainty in this regard becomes speculative in
view of the facts that, (1) there is no evidence that the, Respondent
y,engaged.in conduct proscribed by the Act in opposing the Union, and
(2) three other employees on the union organizing committee with
Wardlaw were neither discharged nor subjected to any discriminatory
type conduct by Respondent.
Furthermore, we cannot find here any reason for questioning the
Respondent's motivation because of the severity of the penalty meted
out to Wardlaw. The fact that in a single instance in the, past involv-
ing a vaguely--similar situation the-offending employee suffered only
an interplant transfer does not establish a company practice. Conse-
quently, the failure to subject Wardlaw to a similar "punishment"
cannot, in our view, be considered as showing that Wardlaw had been
singled out for special treatment. Our conclusion here finds further
support in the fact that the language used by Wardlaw might reason-
ably have been considered by Respondent to be far more offensive than
that involved in the previous incident, and thus, to have warranted
more drastic disciplinary action. The company policy against swear-
ing was breached. It was up to Respondent to determine the appro-
priate disciplinary action and we cannot say that its choice of penalty
discloses an attempt to seize upon Wardlaw's swearing as a means
of getting rid of an active union adherent.
This case, as the Trial Examiner observed, is one not wholly free
from doubt, but in view of the various considerations outlined above,
we conclude that the evidence is insufficient to support a finding that
the asserted reason for Wardlaw's discharge was a pretext and that
she was in fact discharged for her union activity.
[The Board dismissed the complaint.]
RUSSELL-NEWMAN MANUFACTURING COMPANY, INC. 3
MEMBER BROWN dissenting :
I would reverse the Trial Examiner and find that Respondent dis-
criminatorily discharged employee Wardlaw for her union activities in
violation of Section 8 (a) (3) of the Act.
In my opinion, Respondent's antiunion animus is demonstrated by
the visits of its vice president and secretary-treasurer to the homes of
all employees during which visits the employees were interrogated
concerning their. union- affiliation and. whether they intended to vote
for the Union in the forthcoming representation election. Indeed, Re-
spondent's discriminatory motivation becomes clearly manifest to me
when the following circumstances surrounding the discharge of Ward-
law are considered : (1) she was an efficient worker with 13 years of
satisfactory service; (2) she was the known leading union proponent
(one of the four members of the union organizing committee) ; (3) the
discharge purported to be for use of profane language to another em-
ployee, Smith, despite the fact that Smith made no complaint to Re-
spondent and such remarks were commonplace in the plant; (4) the
severity of.the action taken by Respondent in Wardlaw' s case particu-
larly since such an extreme penalty had never before been meted out
by Respondent for vulgar name calling; and (5) in a similar instance
occurring earlier, the corrective measure taken by Respondent was to
remove the employee who had been called the vulgar name to another
part of the plant to protect her from the offending employee and since
Smith terminated her employment the day of the -swearing incident,
the same sort of measure could have been taken 'here' without` dis-
charging Wardlaw.
Upon the entire record in this case, and on the basis particularly of
the factors to which I have referred, I would find that Respondent's
asserted reason for discharging Wardlaw was a pretext and its real
reason was her union activities. Accordingly, I would find that by
this conduct the Respondent violated Section 8(a) (3) of the Act and
would order Wardlaw's reinstatement with backpay.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge, duly filed, the General Counsel for the National Labor Rela-
tions Board, for the Regional Director of the Sixteenth Region (Fort Worth,
Texas), issued a complaint against Russell-Newman Manufacturing Company,
Inc., herein called the Respondent or the Company, alleging that the Respondent
had engaged in and was engaging in certain unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and ( 3) and Section 2(6) and (7)
of the National Labor Relations Act , as amended , 61 Stat. 136, herein called the
Act. The Respondent's answer denies the allegations of unlawful conduct in the
complaint.
Pursuant to notice , a hearing was held in Denton , Texas, on April 11 and 12,
1961 , before the duly designated Trial Examiner. All parties were represented
by counsel and were afforded opportunity to adduce evidence , to examine and
cross-examine witnesses , and to file briefs. Briefs filed after the close of the
hearing by the Respondent and the Charging Party have been carefully considered.
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case , and upon my observation of the witnesses,
I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Texas corporation with its principal office and place of
business located in Denton, Texas, where it is engaged in the manufacture and
sale of ladies' and children's underwear and sleepwear. During the last 12 months
the Respondent purchased and received goods and materials valued in excess of
$50,000 from points and places outside the State of Texas During the same
period it sold and shipped finished products valued in excess of $50,000 to points
and places located outside the State of Texas.
The Respondent admits, and I find, that it is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Ladies' Garment Workers Union, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
- The sole'issue here involved is whether, as alleged in the complaint, the Respond-
ent was motivated in discharging employee Gertrude Wardlaw because of her
union activities in violation of Section 8(a)(1) and (3) of the' Act.
- 'A Board-conducted representation election was held among the Respondent's
production and maintenance employees on August 5, 1960, with the Union losing
the election by a vote of '157 to 58. Gertrude Wardlaw, the alleged discriminatee
herein, was one of the four members of the Union's organizing committee which
led the Union's organizing campaign during the period preceding the election.
Frank Martino, the Respondent's vice president and production manager and the
one who was responsible for Wardlaw's discharge, conceded that prior to hei
discharge he was aware that Wardlaw was one of the union leaders.
Wardlaw, who had been an employee of the Respondent for approximately 13
years, worked as a machine operator on the second floor with 50 other female
employees. It appears that she had been a satisfactory employee throughout her
tenure of employment. She was discharged by the Respondent on August 8, a
Monday. The incident which Respondent asserts as prompting her discharge
occurred on the day of the election, which was a Friday. The facts concerning
this incident are as follows: 1
During the 10-minute break period about midmorning, Wardlaw went to the
Respondent's lunchroom where she met Joyce Smith, also an employee on the
second floor. Joyce Smith, age 20, married, and with two children, had pre-
viously signed a union card. However, the evidence reflects that Smith had an-
nounced her intention to quit about the time of the election and it appears that
the union leaders had some doubts as to how she would cast her vote in the
election. When Wardlaw encountered Smith in the lunchroom she asked Smith
whether she still intended to vote for the Union. Smith responded in the negative
At this point there is a conflict in the testimony. Smith testified that upon indicating
to Wardlaw that she would vote against the Union, Wardlaw thereupon said to her,
"You little ass you, you had better or you will be sorry " 2 Wardlaw, on
the other hand, testified that at this point she told Smith, "Oh. s , you are
letting us down." Wardlaw testified further that at this point, "She [Smith] lust
grinned and didn't say a word. Just walked back like it didn't bother her at all.
Just went on over with some more girls and went to talking." I credit Smith's
version of the conversation , as aforesaid.3
1 Unless noted to the contrary, the facts concerning this incident are not in dispute
2 Vulgarities deleted In this and In the following sentence
In crediting Joyce Smith's version of this conversatl,in, I have not overlooked the
fact that Smith's testimony pertaining to another matter was in conflict with her prior
sworn statement (General Counsel's Exhibit No 5) The latter related to a conversation
which she had with Martino in which Martino allegedly requested her not to quit her
Job before the election, this because she allegedly had indicated to hill that she was
opposed to the Union and would vote against it Howerei, I belieNe that Smith was tell-
ing the truth in giving her account of the above conversation with W'ardlaw This is
RUSSELL-NEWMAN MANUFACTURING COMPANY, INC.
The above incident first reached the ears of Plant Manager Martino that same
evening when he received a telephone call at his home from one Audrey Turner,
an employee on the second floor, who called to inquire about the results of the
election. During the course of this conversation Turner reported that there had
been some trouble on the floor that day and she proceeded to relate the entire
incident to Martino , including the language which Wardlaw had used in her con-
versation with Smith 4 On the following day, a Saturday, Martino called Smith
at the latter' s home to inquire further about the matter. Mrs. Smith answered
the telephone but in view of the embarrassing subject matter her husband was put
on to provide the details . After confirming that his wife had reported the incident
to him, Mr. Smith related what had occurred, including the language used by
Wardlaw. Martino did nothing further over the weekend, but he took the matter
up with Eunice Lovall , the floor supervisor of the second floor, as soon as he
arrived at the plant on Monday morning. After some discussion , in which Lovall
confirmed that she also had received reports of the Wardlaw-Smith incident on the
preceding Friday,5 Martino directed Lovall to go check and find if there were any
witnesses to the matter . Lovall did as instructed . Reporting back to Martino a
short while later, Lovall said that although she found no witnesses who were
present at the name-calling incident , her discussion with other employees indicated
that it was common knowledge around the plant that the incident in fact did hap-
pen in the manner related. Pursuant to Martino 's request Lovall thereupon went
to the second floor and brought Wardlaw to Martino's office.6 Martino proceeded
to tell Wardlaw that he had learned of the name-calling incident with Smith, that
he believed that the reports he received were true , and that she was being
discharged for the use of vulgar and profane language. During the discharge
conversation Wardlaw asked Martino to quote the exact language which she had
used against Smith, but Martino would not do so. While not denying that she had
used vulgar language, Wardlaw at this point merely told Martino , "Well, it's not
true then , because I don 't use that kind of language, anything that would be too
bad for you to say." 7
Martino as a witness at the hearing gave as the reason for Wardlaw's discharge
the same reason he gave to Wardlaw at the time of her discharge ; viz, the use of
vulgar and profane language toward another employee. It will be recalled that
in addition to the vulgarity which Wardlaw used against Smith, she also added,
"You had better [vote for the union ] or you will be sorry." Martino testified
that the threat thus made by Wardlaw was not a factor in his determination that
she be discharged.
Additional Facts; Conclusions
The General Counsel, in urging that Respondent 's reason for the discharge was
pretextual , introduced testimony to show that it was not entirely uncommon for
women employees to indulge in the use of various vulgarities , particularly that of
the type which Wardlaw claimed to have used in her conversation with Joyce
Smith . I have no doubt as to the veracity of such testimony . However, as the
Respondent points out , the evidence shows that the profanity in kind was either
used in a jocular vein or was of the "exclamation" type, i e., "a spontaneous type
borne out by the fact three witnesses (Doris Spraybury, Ann Sheppard, and Eunice Lovall)
credibly testified that they observed Smith was upset and that she was crying after her
conversation with Wardlaw . I would regard it as extremely unlikely that Smith would
have reacted in such a manner if the conversation was as innocuous as Wardlaw would have
it Of equal significance is the fact that Spraybury, Shephard, and Lovall testified that
they spoke to Smith when they saw that she was upset and that she repeated the language
which Wardlaw had used Their testimony in reporting what Smith had told them, which
I regard as a part of the res gestae , was corroborative of the version given by Smith.
4 Although Turner did not witness the incident , she spoke with Smith about it shortly
after it happened . Turner thus repeated to Martino what she had learned from Smith.
5 Lovall testified that on Friday a floorgirl reported that there had been a dispute be-
tween Wardlaw and Smith. According to Lovall , whose testimony I credit , she thereupon
went back to check on the matter and found that Smith was in tears. Smith then related
the entire incident, including the vulgarity which Wardlaw had used against her.
s Lovall did not remain for the ensuing discussion
7 Wardlaw testified , and Martino denied, that during this conversation she told him (in
reference to his stated reason for her discharge ), "That's not what you are letting me go
for." Wardlaw testified that Martino made no response to the latter remark Assuming
that the foregoing occurred as Wardlaw testified , I would find this to be of little pro-
bative value in resolving the issue of her discharge
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of utterance upon the happening of an unexpected event which is not directed toward
another person." But beyond this, it is also clear that in the instances where such
language was used it was employed among the women themselves and did not
come to the attention of Martino. There is in this regard, however, one incident
which requires comment. Thus Irene Frazier, a former supervisory employee
called by the General Counsel, testified that on one occasion while still a super-
visor she separated two women employees by stationing them apart from each
other because one referred to the other as a "damn b ch." Frazier testified
further that she reported this incident to Martino about a day later, that she did
not recall Martino making any response, and that no disciplinary action was taken
against the employee who did the cursing. The employee involved was called as
a Respondent witness and denied that she used the words "damn b ch," claim-
ing that she used the word "hussy" instead. Martino testified that he did not learn
of the incident until it was called to his attention by the field examiner who in-
vestigated the instant case. Upon a consideration of all the evidence, and as-
suming that the incident happened as testified to by Frazier, I am impelled to
conclude that any such isolated incident does not establish, as the General Coun-
sel apparently would have it, that Martino generally tolerated the use of profanity
or vulgar language around the plant But perhaps even more to the point, and
again assuming the incident occurred as Frazier related, it is clear that corrective
measures had already been taken by the floor supervisor before she reported the
matter to Martino.
Martino testified that profane and vulgar language was not tolerated around the
plant. Although there is no evidence that any other employees had been discharged
or disciplined for the use of such language, there is credible evidence that this in fact
was the rule, at least as far as Martino was concerned. Thus Irene Frazier testified
that during supervisory meetings Martino "quite often" told the supervisors that
they should report any such matters as profanity or theft and that "they expected us
to keep up the good Christian atmosphere that we had, and they expected to keep
it that way." Indeed, Frazier testified, "I heard him [Martino] say that if he heard
them [vile words] himself he would fire them." Likewise, employee Doris Spraybury
credibly testified that Irene Frazier, then a supervisor, told her when she was hired
that employees were not allowed to use profane language; and Audrey Turner, a
floorgirl, testified without contradiction that on several occasions during floor meet-
ings Martino told the employees that this was "a Christian plant" and that the use
of profane language in the plant was not allowed.
At this point let us consider for the moment another aspect of the case, i e., the
evidence proffered by the General Counsel purportedly to show that the underlying
motivation or real basis for the discharge was Respondent's antiunion animus The
sole conduct so relied upon consisted of visits by Martino and Donald Robinson,
secretary-treasurer of the Respondent,8 to the homes of the employees during about
the month before the election. Martino conceded that the purpose of these visits
was to let the employees know that they felt the Company would be better off with-
out a union The subject matter of these visits involved only explanations and com-
parisons by Martino and Robinson of Respondent's wage scales, .its working facilities,
working conditions, and the like There is no evidence whatsoever to indicate that
any threats or promises of benefits were made to the employees during the course
of these visits On the contrary. Martino testified without contradiction that they
assured the employees "that the vote on election day would be a secret ballot and
that no one would know how anybody voted, and it was their right and prerogative
to cast their vote whichever way they saw fit." 9 Whether or not the visits of Martino
and Robinson to the homes of employees in themselves constituted a violation of
Section 8,(a) (1) of the Act need not be decided here, for they occurred more than
6 months prior to the filing of the charge and were not alleged in the complaint.10
While this evidence was admissible as background. I find that it falls short of the
purpose for which it was offered At best it shows that the Respondent did not want
the Union. There was nothing in Respondent's discussion with the employees that
exceeded the permissible bounds of free speech Accordingly, it must be concluded
that Respondent's conduct, as aforesaid, does not reveal such hostility to union
organization or to the union activities engaged in by Wardlaw so as to establish
8 Robinson is also supervisor of the cutting room
8 One witness, employee Velma Brooks, testified that she recalled the owner of the
plant , Mr. Newman, make a speech to the employees a few days before the election but that
the only statement she recalled him making was "that he would like for all of us to vote "
10 It is noteworthy also that no objections to the August 5 election were filed on the
basis of this or any other conduct.
HOUSE MANUFACTURING CORPORATION 7
anything in the nature of a prima facie case that the discharge of Wardlaw was
unlawfully motivated.il
In sum, I find that the Respondent did show by substantial evidence that the
assigned basis of Wardlaw's discharge did have a tangible basis and was not a mere
pretext for discrimination . Indeed , the evidence upon which Martino based his
conclusion that Wardlaw had in fact engaged in profanity was predicated upon much
the same evidence in which the Trial Examiner reached the same conclusion.
Although, as we have seen , there is evidence that other employees on occasions used
profanity and were not discharged for it, the evidence does not establish that Martino
was aware of such profanity or that he would tolerate it if it had come to his atten-
tion . Quite to the contrary , the evidence affirmatively establishes that Martino was
opposed to the use of profanity in the plant.12
To be sure , the case is not free from doubt. The Trial Examiner has particular
misgivings when the degree of the penalty exacted is taken into account. Consider-
ing the fact that Wardlaw was a 13-year Respondent employee , Respondent might
well have taken some disciplinary action less severe than the extreme penalty of
discharge . While the degree of the penalty may properly be considered as a part of
the evidence as a whole, the rule generally applicable has been stated , in the language
of the Eighth Circuit Court of Appeals , as follows:
In considering the propriety of the discharges the question is not whether
they were merited or unmerited , just or unjust, nor whether as disciplinary
measures they were mild or drastic . These are matters to be determined by the
management , the jurisdiction of the Board being limited to whether or not the
discharges were for union activities or affiliations of the employees.13
Upon the record as a whole, and on all the evidence , I find and conclude that the
General Counsel has failed to establish by a preponderance of the evidence that the
discharge of Wardlaw was discriminatorily motivated . Accordingly , I shall recom-
mend that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Respondent is and has been engaged in commerce at all times material
herein 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. The Respondent has not violated Section 8 (a)(3) and ( 1) as alleged in the
complaint.
[Recommendations omitted from publication.]
11 See Alumatic Windows, Inc., 131 NLRB 1210
12 It might be added that this appeared to be in keeping with Martino ' s character as this
Trial Examiner observed it on the stand
13 N L R B v Montgomery Ward & Co , 157 F 2d 486 ( C A 8) ; see also Osceola County
Co-Operative Creamery Association v N L R B , 251 F 2d 62 (C A 8 ), and cases cited.
House Manufacturing Corporation and Lumber and Sawmill
Workers Local Union 2882, United Brotherhood of Carpenters
and Joiners of America , AFL-CIO. Case No. 2O-CA-2042.
January 3, 1962
DECISION AND ORDER
On October 6,1961, Trial Examiner James R. Hemingway issued his
Intermediate Report on the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
135 NLRB No. 3.