Sanitary Bag & Burlap Co., Inc.

National Labor Relations Board - Board Decisions

Feb 15, 1967

162 N.L.R.B. 1648 (N.L.R.B. 1967)

1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sanitary Bag & Burlap Company, Inc. and United Furniture
Workers of America , Local 282, AFL-CIO
Panhandler, Inc. and United Furniture Workers of America,
Local 282, AFL-CIO. Gases 26-C A-226, 2295, 295-2, 296, and
2296-2. February 15, 1967
DECISION AND ORDER
On May 18, 1966, Trial Examiner Horace A. Ruckel issued his
Decision in the above-entitled proceedings, finding that Respondents 1
had engaged in and were engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent filed exceptions and the General
Counsel, cross-exceptions, to the Trial Examiner's Decision, each with
a supporting brief.
Pursuant to Section 3(b) of the Act, the National Labor Relations
Board has delegated its powers in connection with these cases to a
three-member panel [Chairman McCulloch and Members Jenkins 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 cross-exceptions, the briefs,
and the entire record in these cases, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner, with the
modifications noted below.2
8(a) (1) Conduct
The Trial Examiner specifically found, and we agree, that
Respondent's abrogation of the Christmas bonus,3 its withdrawal of
1 The Trial Examiner found , and we agree , that the two corporate Respondents are a
"single integrated enterprise " Accordingly, we find that Respondents are a "single em-
ployer" under the Act, and shall not distinguish one from the other, referring to both as
" Respondent" for purposes of discussion.
3 The Trial Examiner made certain inadvertent errors in his Decision , which are hereby
corrected as follows : TXD section III, a, 1, paragraph 2 and thereafter where applicable,
the name Coughlin is changed to Coughlan ; section III , a, 1, paragraph 7, first sentence,
"had not stopped" is changed to "had stopped"; section III , a, 1, paragraph 9, first
sentence , "was not unrelated" is changed to "was unrelated " ; footnote 7, "Zerlick Com-
pany" is changed to read "Zelrich Company ," third paragraph of the section entitled
"Conclusions ," "September" is changed to read "January."
3 The Trial Examiner stated that while Respondent never announced its decision to
withhold the bonus to employees before Christmas , its president , Gilman, thereafter "told
individual employees who inquired that it was due to the Union ." ( Section III, 2, C,
162 NLRB No. 151.
SANITARY BAG & BURLAP COMPANY 1649
the hourly bonus to employees Holmes, Mitchell, and Williams, and
its adoption of written rule 5,4 all in December 1965,5 violated Section
8(a) (1) of the Act.
The Trial Examiner failed to find that certain other conduct of the
Respondent, which he described, violated Section 8(a) (1). In order
to clarify his Decision, we list the incidents mentioned in his Decision
which, in context, we find to have violated Section 8 (a) (1).
The following findings are based either on testimony credited by
the Trial Examiner or testimony which we have credited, since it was
undenied or uncontroverted by other testimony and not discredited
by the Trial Examiner.
1. Threats of reprisals, loss of benefits, loss of employment, and
related acts of interference : (a) Coughlan's statements to Dixon and
Jackson that Respondent would have to reduce its operations and lay
off some of the employees if the Union came in and that Dixon and
paragraph 5.) He recited testimony by two employee witnesses , which he said was denied
by Gilman , but credited only one, as Respondent notes The absence of a credibility resolu-
tion as to the testimony by the other employee , Holmes, does not preclude our reliance
upon it as evidence of an incriminating admission by Respondent , since contrary to the
Trial Examiner , the record shows that Holmes ' testimony was uncontradicted . Further-
more, such a finding is clearly consonant with the Trial Examiner 's own intent
The abrogation of the Christmas bonus was alleged to have violated Section 8(a)(3)
as well as Section 8 ( a) (1), and the Trial Examiner ' s finding of discriminatory motivation
in this regard would of course support an 8(a)(3) finding Since, however , there are no
exceptions to the Trial Examiner 's failure to find an 8 ( a) (3) violation , since to find the
8(a) (3) violation in addition to the 8 ( a) (1) violation found by the Trial Examiner and
adopted by us would not affect the remedy involved , and since there are numerous other
8(a) (3) violations in this case , we do not disturb the Trial Examiner 's failure , apparently
Inadvertent , to find the conduct violative of Section 8(a) (3).
+ The Trial Examiner credited testimony by employees Williams and Holmes that dur-
ing an August 1965 conversation Gilman threatened , among other things, to stop their
bonus if they joined the Union The Trial Examiner also referred to two other conversa-
tions on successive days in December 1965 , after the bonuses of Williams , Holmes, and
Mitchell had been stopped . During the first conversation , which the employees initiated to
protest Respondent 's action , Gilman, according to the employees , reminded them of his
August warning and told them , in effect, that they had brought the situation on them-
selves. The following day, Mitchell alone spoke to Gilman to present a written grievance
about the bonuses under the contract During this talk, according to Mitchell, Gilman
repeated his comments of the previous day, and made other statements, discussed later,
not directly related to the subject of bonuses ( see p 3 ). All of the testimony related to
bonuses stands undenied ; the record shows that Gilman did not testify about the first
conversation at all , and was asked only about an unrelated statement in the second con-
versation . The Trial Examiner apparently telescoped the two conversations into one for
he discussed Gilman's testimony about the unrelated statement , made during the con-
versation with Mitchell alone, as though It had been made during the first conversation
with all three employees , then remarked that Gilman did not deny the remainder of the
comments attributed to him by Mitchell , Williams , and Holmes . In any event, the Trial
Examiner failed to specifically credit the testimony of the three employees . Since the
testimony is undenied , the Trial Examiner ' s omission does not preclude us from relying
on it as evidence of Respondent 's unlawful conduct in eliminating the bonuses
For the reasons set forth in the concluding paragraph of the preceding footnote, we
do not disturb the Trial Examiner's failure to find either the withdrawal of the hourly
bonus or the adoption of written rule 5 violative of Section 8(a) (3) of the Act
5 Various corrections in the Trial Examiner 's recital of the testimony supporting this
finding are noted infra
264-047-67-vol. 162-105
1650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jackson might not eat 6 (section III, A, 1) ; 7 (b) Gilman's statement
to Holmes that she had received a warning notice because of the
Union (section III, A, 2, C) ; (c) Gilman's statement to Holmes and
Williams that their bonuses would be stopped if they joined the
Union (supra) ; (d) Gilman's statement to Mitchell, Williams, and
Holmes that their bonuses had been stopped, as he had warned them,
because they brought the Union into the plant (supra) ; and (e) Gil-
man's statements to Mitchell that employees had lost their bonuses by
the advent of the Union and that he could move the plant and Mitchell
would have to stand in a breadline (supra).
2. Interrogation: Gilman's inquiry of Holmes and Williams as to
who started the union agitation (supra).
3. Creating impression of surveillance: (a) Coughlan's statement
to Dixon and Jackson that he knew who had started the union move-
ment and who belonged to it (section III, A, 1) ; and (b) Coughlan's
statement to Barnes that he knew she had signed a union card
(supra).
4. Comments linking written disciplinary rules (promulgated by
Respondent) with union contract and selection of Union by employ-
ees in election: (a) Coughlan's statements in early December to Gant
that the union contract gave Respondent the right to enact written
rules, that employees were going to live with the contract, and if they
did not like the situation in a year, they could forget about the
Union 8 (section III, A, 2, b) ; (b) Gilman's statement to Gant that
the employees were responsible for the contract and would have to
live with the rules (supra) ; (c) Coughlan's statement to Willett that
the employees had made the rules and would have to abide by them
(supra) ; and (d) Coughlan's statements to Barnes and Nathaniel that
rule 5 was in the contract and that he had tried to warn employees
about the matter 9 (supra).
BAs Respondent notes , the record does not support the Trial Examiner 's conclusion
that Coughlan told employee Barnes and Montgomery "the same things " during a con-
temporaneous talk . However , according to the undenied testimony of both employees,
Coughlan did say, during the course of the conversation , that he would eat whether or
not the Union came in , and asked them whether they thought that they would eat too.
The Trial Examiner did not make any credibility findings about the employees ' testimony.
Since it is uncontradicted and undenied , we will credit it, and find that it constitutes an
implied threat of loss of employment in violation of Section 8(a) (1).
7 All page and line references are to the Trial Examiner's "slip Decision."
s Gant's testimony shows that Gilman made the comment during a conversation in early
December attended by Gant and employee Mitchell , not Willett . It was called by Gilman
to discuss the new written rules.
B The Trial Examiner's slightly inaccurate recital refers specifically to Barnes ' testi-
mony. According to the record, Barnes testified that Coughlan said, "Now, this rule on
y'all's contract ," not "is in y 'all's contract " [Emphasis supplied.] He then reminded
them that he had warned them previously that this would happen but they hadn 't listened
to him. Barnes also testified that Coughlan had a copy of both the rules and the contract.
Nathaniel 's version is that Coughlan said "This is the contract and company rules, and
SANITARY BAG & BURLAP COMPANY 1651
8(a) (3) Contract
1. We have adopted the Trial Examiner's finding that Respondent
violated Section 8 (a) (1) of the Act by adopting its rule 5 in Decem-
ber 1965 in retaliation for its employees having selected the Union as
their bargaining agent. The record amply supports the finding that
Respondent sought by various means, including rule 5, to demonstrate
to its employees that their selection of the Union would work to their
disadvantage. Events developed in such a manner that rule 5 became
the focal point of Respondent's unlawful antiunion campaign, and
on January 5 and 6, 1966, Respondent discharged or suspended 14
employees for violations of rule 5. We find, in agreement with the
Trial Examiner, that these discharges and suspensions violated Sec-
tion 8(a) (3) and (1) of the Act.
2. The Trial Examiner also found that Respondent violated Sec-
tion 8(a) (3) and (1) of the Act by discharging employees Dixon,
Jackson, and Barnes on August 12, 1965. Respondent attacks these
findings as unsupported by the record.
The record shows that the three employees in question all joined
the Union in July 1965. Shortly thereafter Superintendent Coughlan
had a number of conversations with them about the Union in the
course of which he informed them that he knew who was supporting
the Union and made general threats about layoffs if the Union calve
into the plant and specific threats to the employees that they might
"not eat" if Respondent had to bargain with the Union. On
August 12, the three employees were simultaneously discharged by
Coughlan, and he refused to tell them a reason for their discharges.
Barnes had been employed by Respondent for 19 years, Dixon for 5
years, and Jackson for a little over a year.
Coughlan's explanation for the discharges was grounded largely on
the events of August 12, described below, but he did testify that he
had talked to all three of the employees prior to that time about their
work and production. He did not specify further what he discussed
with them and testified that he talked to most employees about their
work on occasion. He also testified that he made notations in his time-
book of having warned each of the employees about some phase of
their production; such notations, he conceded, were a practice he
began when he learned of the Union's organization efforts.
Jackson and Dixon worked together on opposite sides of a table,
operating a cutting machine. The 17-year-old son of Respondent's
you've got to obey these rules" Both employees indicated that he said he would fight
all of them if he had to we credit the testimony of both employees, which is undenied
and uncontradicted. We find that Coughlan's statements to the employees under either
version were calculated to impress upon them the causal relationship between the union
contract and the new much resented rule 5, in violation of Section 8(a) (1).
1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
president, a summer employee, pursuant to his father's instructions,
was on August 12 covertly observing employees at work. He reported
to Coughlan that he had observed Jackson and Dixon: talking
together for 41/2 minutes without doing any work. Coughlan testified
that he thereupon went to the two women and saw them working
"rather slow." He indicated to them that they were working too
slowly and left. Coughlan testified that half an hour later he
approached their work station again and, while he could not see the
employees from where he was concealed, he did hear them talking.
(He testified that he did not think they were talking about work
because he would remember that and he did not remember what they
were discussing.) He then stepped to where he could see them and
saw them talking and not working. He then asked them to come to
his office.
Coughlan testified that while he was walking with Jackson and
Dixon to his office, he passed Barnes at her work station, where she
was sitting at her sewing machine not working. He told Barnes to
come along to his office also. In his office, Coughlan discharged the
three employees. Both he and President Gilman refused to tell the
employees the reasons for their discharge. The employees' termination
slips stated they were discharged for "Inability to maintain produc-
tion, quality and pace." Coughlan told the union representative the
next day that Barnes was fired for "daydreaming" and the other two
for talking for 41/2 minutes.
As to employee Barnes, we consider it clear that Respondent's
attempt to explain her discharge in terms of what Coughlan observed
as he walked by is a pretext. The proffered explanation assumes such
strict standards-leaving aside the suggestion of irrationality or arbi-
trariness-that it is impossible to see how Barnes or anyone else could
have remained in Respondent's employ for a year, let alone 19. We
believe that the strict standards, like Coughlan's notations and the
covert observations, were a development originating with the Union's
organizational efforts and Respondent's decision to undermine the
Union's support. In light of the timing of the discharge and the
threats by Coughlan, we find that the pretext is an attempt to mask
the discharge of Barnes because of her interest in the Union. Respond-
ent's contention as to its lack of knowledge of concerted activities is
refuted by Coughlan's earlier conversation with all three employees
about the Union.
Respondent's explanation for the discharges of Jackson and Dixon
is not on its face as incredible as that as to Barnes since it at least
rests upon several observations made shortly before they were dis-
charged. In this connection, however, it is clear that it was the prac-
tice of Respondent's employees who worked together, as did Jackson
and Dixon, to talk while at work, and this practice had not been crit-
SANITARY BAG & BUFLLAP COMPANY 1653
icized by Respondent. We do not therefore give any weight to
Coughlan's attempt to explain that the talking between Jackson and
Dixon was a factor he considered in discharging them for other than
discriminatory reasons, particularly since the evidence indicates that
neither he nor Respondent's young observer was interested in what
the talking was about. The "not working" aspect of the observations
really rests mostly upon the original observation for the timed 41/2
minutes. (Coughlan's observations themselves resulted in seeing Jack-
son and Dixon working "rather slow" for a brief, unspecified period
and then not working for another brief, unspecified period.) We are
persuaded that Coughlan's explanation was a pretext. First of all,
the young observer's covert observations, pursuant to his father's
instructions, appear to have been an attempt to manufacture grounds
for discharge. Such observations were not conducted by him prior to
the organizational campaign. Coughlan obviously needed little more
to follow through and discharge the employees : Coughlan did not
testify that in fact Jackson and Dixon were not maintaining their
production or even that he was interested in whether they were or
not. The employees testified that they were working as usual when
Coughlan came around the first time and that they may have stopped
working temporarily when he came around the second time but that
this was not unusual as they had to wait from time to time for addi-
tional work to reach them. These circumstances, coupled with Cough-
lan's quick decision to discharge Barnes also for the same "reasons,"
completely impair the plausibility of Respondent's explanation for
the discharges of Jackson and Dixon. In light of the timing of the
discharges and the threats by Coughlan to these employees, we find
that the discharges were discriminatorily motivated. Accordingly, we
adopt the findings of the Trial Examiner that employees Barnes,
Jackson, and Dixon were discharged by Respondent in violation of
Section 8(a) (3) and (1) of the Act.
3. The Trial Examiner also found that Respondent discharged
employee Barbara Gordon on September 9, 1965, in violation of Sec-
tion 8(a) (3) and (1). Respondent excepts to this finding and argues
that the record shows that Gordon was hired to work on specific, tem-
porary jobs and that she was laid off when her work on these jobs
came to an end. We find merit in Respondent's exceptions.
The record establishes that Gordon was hired in April 1965 as a
temporary employee.10 Respondent hired temporary employees to
10 Superintendent Craig hired Gordon ; he testified she was hired as a temporary em-
ployee for 3 to 6 months and was told this Gordon testified that she was told when hired
that she was to be permanent The Trial Examiner did not resolve this conflict and
stated that the violation existed even if Gordon were hired as a temporary employee As
the record establishes no basis for crediting Gordon's testimony in preference to that of
Craig, and as the other record evidence is consistent with Craig's testimony , we find that
Gordon was hired as a temporary employee.
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work on "salvage jobs." Unlike other temporary employees, Gordon
primarily worked as a "grader," except when relieving another tem-
porary employee. Although the Trial Examiner did not specifically
so find, the record discloses that grading work was done by Respond-
ent on both salvage and nonsalvage jobs. On salvage jobs, grading
work ended before the rest of the work on the job was completed.
Craig's uncontradicted testimony establishes that about September 1,
when grading work on the salvage jobs was coming to an end, he
offered to let Gordon "bump," a junior temporary employee doing
another type of work, but that Gordon declined the change because
it involved an early starting time.h1 No grading work was done for
6 weeks after Gordon's layoff. Only then were temporary employees
(hired after Gordon) assigned to this work.12 ,
In early August 1965, when Respondent and the Union were dis-
cussing employees eligible to vote in the forthcoming election, Re-
spondent listed Gordon as one of the temporary employees ineligi-
ble to vote.13 On September 7, Respondent's employees were being
assembled to hear a speech by Gilman, and Gordon was told by Gil-
man that she was not wanted because she was a temporary employee;
i.e., not an eligible voter. Gordon thereupon consulted a union
representative who told her she could vote by challenged ballot. The
day after the election, Gordon was told she was laid off; her termina-
tion slip stated the reason as "lack of work; hired as temporary
employee to assist a job now being completed."
The Trial Examiner found that Gordon was terminated because she
sought union assistance to vote in the election. He found Respondent's
explanation to be inconsistent with various facts. The timing of the
discharge does raise a suspicion that Gordon's discharge was con-
nected with the election. Our view of the record, however, leads us to
conclude that Respondent's explanation for Gordon's termination is
consistent with the evidence. The record as a whole does not, in our
view, provide adequate support for a finding of discriminatory moti-
vation in Gordon's termination. Accordingly, we do not adopt the
Trial Examiner's finding that her discharge violated the Act.
ll The Trial Examiner does not mention this testimony. In light of this evidence, we
cannot attach significance, as the Trial Examiner did, to the fact that Gordon wag laid
off before less senior temporary employees
13 The Trial Examiner finds that two employees hired during the November 1965 strike
were "Upon Gordon's discharge . transferred to grading work which Gordon had
been doing " The employees in question had, in fact, been hired in June 1965 Moreover,
no one was assigned Gordon's grading work "upon her discharge" because, as stated above,
no such work was performed for 6 weeks thereafter
13 This evidence thus negates the Trial Examiner's finding that Respondent did not
classify Gordon as a temporary employee until the day before the September 8 election.
The Trial Examiner relies upon Gordon's testimony that she first learned that she would
not vote in the election on September 7, but such testimony cannot support the Trial
Examiner's finding in light of the other relevant evidence. In fact, Gordon's testimony
does not even support a finding that Gordon first learned of her temporary classification
then, which is how it is summarized by the Trial Examiner.
SANITARY BAG & BURLAP COMPANY 1655
REMEDY
Having found the Respondent has engaged in unfair labor prac-
tices in violation of Section 8 (a) (1) and (3) of the Act, we shall
order that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
As rule 5 was adopted and enforced in retaliation for the selection
of the Union as bargaining agent by the employees, we shall order
that rule 5 be revoked and rescinded.
Having found that Respondent discriminatorily discharged Provi-
dence Clark, LaVerne Jones, Sadie Barnes, Sara Bethel, Ozell Jones,
Erma Montgomery, Matilda Nathaniel, Ida Willett, Shirley Mont-
gomery, Jimmy Gant, Freddie Carver, Willie Ford, Clara Holmes,
and Jessie Williams, we order that they be offered reinstatement and
made whole for any loss of pay resulting from their suspension or
discharge to the date on which they are offered reinstatement, less
their net earnings during that period. Such backpay shall be com-
puted on a quarterly basis in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289, and shall include interest at 6 per-
cent as provided in Isis Plumbing c6 Heating Company, 138 NLRB
716.
Having found that Respondent discriminatorily withheld the 1965
Christmas bonus, we shall order Respondent to make whole the
employees in the appropriate unit by paying them the 1965 Christmas
bonus computed according to the formula of the bonus paid to them
or to employees in similar positions at Christmas 1964 with interest
thereon at the rate of 6 percent per annum from the date of the dis-
crimination to the date the employees are made whole.
Having found that Respondent discriminatorily reduced the pay of
Bobbie Mitchell, Clara Holmes, and Jessie Williams, by eliminating
the hourly "Thank You" bonus previously paid them, we shall order
Respondent to restore said bonus to them, and make them whole by
paying them a sum of money equal to the amount of the bonus with-
held from them by reason of Respondent's discrimination, plus inter-
est at 6 percent as provided above.
In view of the extensive and serious nature of the unfair labor
practices committed, the commission of other unfair labor practices
reasonably may be anticipated. We therefore shall order that Re-
spondent cease and desist from in any other manner infringing
upon the rights guaranteed to its employees by Section 7 of the Act.
CONCLusIONs OF LAW
1. United Furniture Workers of America, Local 282, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of
the Act.
1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Respondents are engaged in commerce within the meaning of
Section 2(6) and ( 7) of the Act.
3. By coercively interrogating employees concerning union activi-
ties; threatening employees with plant closure and loss of employ-
ment if or because they selected the Union as their representative;
threatening employees with loss of benefits if they selected the Union
as their representative ; creating the impression that they were
engaged in surveillance of employees ' union activities ; discriminator-
ily promulgating , maintaining , and enforcing rule 5; discriminatorily
withholding the 1965 Christmas bonus; and discriminatorily discon-
tinuing the hourly "Thank You" bonus previously paid employees
Bobbie Mitchell, Clara Holmes, and Jessie Williams, Respondents
have interfered with, restrained , and coerced its employees in the
exercise of rights guaranteed to them by Section 7 of the Act, and
thereby engaged in and are engaging in unfair labor practices within
the meaning of Section 8(a) (1) of the Act.
4. By discriminating in regard to the hire or tenure or employment
of those employees whose names appear in the Appendix , thereby
discouraging membership in the above -named Union , Respondents
have engaged in and are engaging in unfair labor practices within
the meaning of Section 8(a) (3) of the Act.
5. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2 ( 6) and ( 7) of the Act.
6. Except to the extent that violations of the Act have been spe-
cifically found and set forth above , Respondents have not engaged in
any other unfair labor practices within the meaning of Section 8(a)
( 1) or (3 ) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondents, Sanitary Bag & Burlap Company, Inc., and Panhan-
dler, Inc., Memphis, Tennessee, their officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Coercively interrogating employees concerning union activi-
ties; threatening their employees with plant closure and loss of
employment if or because they select the Union as their representative;
threatening employees with loss of benefits if they select the Union
as their representative; creating the impression that they are en-
gaged in surveillance of employees' union activities; discriminatorily
promulgating, maintaining, or enforcing rule 5; and discriminatorily
withholding the 1965 Christmas bonus, and discriminatorily discon-
tinuing the hourly "Thank You" bonus previously paid employees
Bobbie Mitchell, Clara Holmes, and Jessie Williams.
SANITARY BAG & BURLAP COMPANY 1657
(b) Discouraging membership in and activities on behalf of United
Furniture Workers of America, Local 282, AFL-CIO, or any other
labor organization of its employees, by discharging any employee, or
in any other manner discriminating against any employee in regard
to hire or tenure of employment or any term or condition of
employment.
(c) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, including the above-named
labor organization, to bargain collectively through representatives of
their own choosing, to engage in other concerted activities for the
purpose of collective bargaining or mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such
right may be affected by an agreement authorized by Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
2. Take the following affirmative action designed to effectuate the
policies of the Act :
(a) Offer to Sadie Burns, Olla Dixon, Susie Jackson, Providence
Clark, LaVerne Jones, Sara Bethel, Ozell Jones, Erma Montgomery,
Matilda Nathaniel, Ida Willett, and Shirley Montgomery, immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority and other rights and
privileges.
(b) Make whole the above-named employees and Jimmy Gant,
Freddie Carver, Willie Ford, Clara Holmes, and Jessie Williams,
for any loss of pay they may have suffered by reason of the discrim-
ination against them, by payment to each of them of a sum of money
equal to the amount he normally would have earned as wages from
the date of their discharge, layoff, or suspension, to the date of their
reinstatement, in case of layoff or suspension, or, in the case of dis-
charge, to the date of Respondents' offer of reinstatement, in the man-
ner set forth in the section entitled "The Remedy."
(c) Restore the hourly "Thank You" bonus to employees Bobbie
Mitchell, Clara Holmes, and Jessie Williams, and make them whole
for the loss in wages sustained by them as a result of the withdrawal
of said bonus, with interest at 6 percent.
(d) Make whole all eligible employees employed in the appropriate
unit for losses sustained by reason of the withdrawal of the Christmas
1965 bonus, by paying to each of them as a bonus a sum of money
computed according to the formula of the bonus paid to them or to
employees in similar positions at Christmas 1964, with interest at 6
percent.
(e) Revoke and rescind rule 5.
1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Preserve and, upon request,'make available to the Board and
its agents, for examination and copying, all payroll records, social
security records, timecards , personnel records and reports, and all
other records relevant or necessary to the determination of backpay
and other sum due and to the reinstatement and related rights pro-
vided under the terms of this Order.
(g) Post at their plant copies of the attached notice marked
"Appendix ." Copies of said notice, to be furnished by the Regional
Director for Region 25, shall, after being signed by Respondents'
representatives , be posted by Respondents immediately upon receipt
thereof, and be maintained by them for 60 consecutive days there-
after, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by Respondents to insure that said notices are not altered , defaced,
or covered by any other material.
(h) Notify the Regional Director for Region 26, in writing, within
10 days from the date of this Order, what steps the Respondents have
taken to comply herewith.
IT Is rur.THER ORDERED that the complaint herein be, and it hereby
is, dismissed insofar as it alleges violations of the Act not found
herein.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf
of United Furniture Workers of America, Local 282, AFL-CIO,
or any other labor organization of our employees, by discharging,
suspending , laying off, or otherwise discriminating in regard to
the hire and tenure of any employee 's employment or any term
or condition of employment.
WE WILL NOT coercively interrogate employees respecting their
union activities , nor threaten our employees with plant closure,
loss of benefits , or loss of employment if or because they selected
the Union to represent them, nor create the impression that we
are engaged in surveillance of employees ' union activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization , to form labor organizations, to join or assist the
above-named labor organization , or any other labor organization,
to bargain collectively through representatives of their own
SANITARY BAG & BURLAP COMPANY 1659
choosing and engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL offer the following employees immediate and full
reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority or other employment
rights and privileges : Sadie Barnes, Ol1a Dixon, Susie Jackson,
Providence Clark, LaVerne Jones, Sara Bethel, Ozell Jones,
Erma Montgomery, Matilda Nathaniel, Ida Willett, and Shirley
Montgomery, and make these employees and Jimmy Gant, Fred-
die Carver, Willie Ford, Clara Holmes, and Jessie Williams,
whole for any loss of pay they may have suffered by reason of
our discrimination against them.
WE WILL make whole all eligible employees employed in the
appropriate unit for withdrawing the Christmas 1965 bonus by
paying, to each of them as a bones a sum of money computed
according to the formula of the bonus paid to them or to employ-
ees in similar positions at Christmas 1964, with interest at 6
percent.
WE WILL restore the hourly "Thank You" bonus to employees
Bobbie Mitchell, Clara Holmes, and Jessie Williams and make
them whole for the loss in wages sustained by them as a result
of the withdrawal of said bonus, with interest at 6 percent,.
WE WILL revoke and rescind rule 5 which was promulgated
and enforced by us in retaliation for our employees having
engaged in union activity.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of any labor organization, except to
the extent that such right may be affected by an agreement authorized
by Section 8 (a) (3) of the Act, as modified by the Labor- Management
Reporting and Disclosure Act of 1959.
SANITARY BAG & BURLAP COMPANY, 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 compli-
ance with its provisions, they may communicate directly with the
Board's Regional Office, 746 Federal Office Building, 167 North Main
Street, Memphis, Tennessee 38103, Telephone 534-3161.
1660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case came before Trial Examiner Horace A. Ruckel upon an unfair labor
practice complaint issued on December 3, 1965, and a consolidated complaint dated
February 21, 1966, by the General Counsel of the National Labor Relations
Board, acting through its Regional Director for Region 26 (Memphis, Tennessee),
against Sanitary Bag and Burlap Company and Panhandler, Inc., jointly called the
Respondent, or severally the Respondents. The complaints are based upon charges
filed on October 15, 1965, and January 11 and February 16, 1966, by United
Furniture Workers of America, Local 282, AFL-CIO, herein called the Union.
They allege, in substance, that Respondent (1) through its supervisors and agents
interrogated employees as to their union affiliations, threatened them with plant
closure and the loss of benefits if they selected the Union as their bargaining repre-
sentative, and with discharge if they went on strike, promulgated new and more
stringent work rules because the employees selected the Union; (2) about
August 12, 1965, discharged employees Sadie Barnes, Olla Dixon, and Susie Jack-
son because of their union activities; (3) on or about December 10, 1965, reduced
the pay of employees Clara Holmes, Bobbie Mitchell, and Jessie Williams, and
discontinued the annual Christmas bonus for all employees; (4) on January 6 and
7, 1965, suspended five employees for 1 week; and (5) on September 9, 1965,
discharged one employee, and on January 6 and 7, 1966, nine others. All these
alleged actions by Respondent are said to be in violation of Section 8(a) (1) and
(3) of the National Labor Relations Act, herein called the Act, and to affect com-
merce within the meaning of Section 2(6) and (7) of the Act. Respondents filed
an answer denying the commission of any unfair labor practice.
Pursuant to notice, a hearing was held on March 8, 9, 10, 11, 14, and 15, 1966,
at Memphis, Tennessee, at which all parties were present and participated in the
hearing. At its conclusion the parties waived oral argument and filed timely briefs.
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Sanitary Bag and Burlap Company, Inc., is a Tennessee corporation with its
plant and principal office in Memphis, Tennessee, where it is engaged in processing
and sale of materials, primarily burlap. During the 12 months prior to the issu-
ance of the complaint this Company in the course of its operations purchased
and received at its Memphis plant materials valued in excess of $50,000, directly
from points outside the State of Tennessee, and during the same period sold and
shipped from its Memphis plant products valued in excess of $50,000, directly to
points outside the State of Tennessee.
Panhandler, Inc., is a Tennessee corporation located at the same address as
Sanitary Bag and Burlap where it manufactures pot holders. During the 12 months
prior to the issuance of the complaint, in the course of its operations, Panhandler
sold and shipped from the plant products valued in excess of $50,000 directly
to points located outside the State of Tennessee.
Sanitary Bag and Panhandler are a single-integrated enterprise occupying the
same plant and offices with common ownership, supervisors, and management who
formulate a common labor relations policy affecting the employees of both
corporations.
II. THE LABOR ORGANIZATION INVOLVED
United Furniture Workers of America, Local 282, AFL-CIO, is a labor orga-
nization admitting employees of Respondent to membership.
IIL THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; the discharges
1. The coming of the Union; the August discharges
The Union began the organization of Respondent's employees in June 1965,
and obtained the membership of numerous employees, including Susie Jackson,
Olla Dixon, and Sadie Barnes. A consent-election agreement was signed on
SANITARY BAG & BURLAP COMPANY 1661
August 3, and an election held on September 8, which the Union won., Subse-
quently, Respondent and the Union engaged in collective bargaining, followed
by a strike, the return of the strikers to work, the execution of a contract, and
finally, the first week in January 1966, the suspension of a group of 5 employees
and the discharge of 10 others. These latter events are hereinafter related. At
present we are concerned with Respondent's initial reaction to the Union and the
discharges on August 12, 1965.
Olla Dixon, Susie Jackson, and Sadie Barnes
Dixon was employed in October 1960 and Jackson in July 1964. They joined
the Union in July 1965, Dixon obtaining the membership application of Jackson.
Shortly thereafter Leonard Coughlin, Respondent's superintendent, on the second
floor of the plant, came to them while they were working at their cutting machine
operations and told them, according to the credited testimony of both of them,
that he knew who had started the union movement in the plant and who belonged
to it, so he was not going to ask them any questions, but, since they were young
and did not understand, he should tell them it would cost about $25 to join, that
Clark [the union organizer] was not to be trusted, and that Respondent would
have to reduce its operations and lay off some of the employees if the Union came
in Who these would be he had not yet determined, but in any event he and Gilman
[Seymour Gilman, Respondent's president], and Craig [R. E. Craig, Respondent's
first floor superintendent] would eat, but Dixon and Jackson might not eat. Jack-
son said that she would eat whether or not she had a job, and Coughlin left after
telling them to think it over and ask him or Craig if they had any questions, and
that Gilman was very upset about the whole thing and had already had one heart
attack.
Coughlin also had a conversation with Sadie Barnes and Erma Montgomery in
which he told them the same things. Barnes, too, opined that "If the Lord give
you a piece of bread he'll give me a piece." On another occasion, according to
Barnes, Coughlin told her he knew she had signed a union card. Coughlin denied
this. I credit Barnes' testimony.
On the following day Coughlin again approached Dixon and Jackson and asked
them if they had read an article in the paper the evening before to the effect that
everybody was to be paid $1.75 an hour.2 When the two girls told them they had
read this, Coughlin said, "See, that's what I was telling you yesterday. You're just
wasting your money joining this union when you'll be making $1.75 an hour
anyway."
On August 12, Martin Gilman, President Gilman's 17-year-old son and summer
employee who was "learning the business," and who had been instructed by his
father to "keep his eyes open and see that everybody is working," from a vantage
point on top of some bales of fabric observed Dixon and Jackson at their cutting
machine. His testimony is that for a period of 4 minutes and 30 seconds, by his
watch, they were standing, talking, and not working, though he was not close
enough to hear what they were talking about. He immediately reported this state
of affairs to Superintendent Coughlin. Coughlin accordingly went to a point about
20 feet from the two girls and observed that they were "working rather slow." He
asked them why they were not "maintaining production," and if anything was
wrong with the machine. They said that everything was all right. He told them to
"snap out of it," and left.
About 30 minutes later Coughlin returned to the area by a back stairway which
landed him about 15 feet from where Dixon and Jackson were. This was an
improvement of 5 feet in distance and he had the advantage this time of being
behind a stack of burlap material so that the girls could not see him. Nor could
he see them, but he could hear them talking. He could not recall while testifying
what they were talking about but he thought that it was not about work "because
I would have noticed it." His position was not entirely satisfactory so he came out
from behind the burlap and revealed himself to them. He then saw that they were
just talking and he asked them if they intended to work. Receiving no immediate
1 The results were : For Against
the Union the Union
Sanitary Bag------------------------------------------- 16 4
Panhandler -------------------------------------------- 5 0
' I take it that this was with reference to a proposal to increase the minimum wage.
1662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
answer , he told them to come with him to the office On the way, he saw Sadie
Barnes sitting at her sewing machine, not talking, and not working. He asked her
what the matter was and receiving no answer he said, "That's all" and told her to
get her things and come along with the others to the office. There he told them
all that they were discharged. The above account is according to Coughlin.
The credited testimony of Jackson and Dixon is that when Coughlin spoke to
them at the time of their discharge they had not stopped work to talk to one
another , since they stand on opposite sides of the same table to operate the cutting
machine, and they customarily talk while working, and that if at the moment
Coughlin revealed himself they had not stopped in their work it was temporarily,
to wait for a bail of material. Neither is it contradicted that when Coughlin took
them to the office and told them they were discharged he refused to give them a
reason, telling them that he was not going to argue about it. Similarly, Gilman,
when he arrived at the office, refused to tell them why they were discharged. The
reason as it appeared on their discharge slips was "Inability to maintain , production,
quality and pace." On the following day Gilman told Clark, the representative of
the Union, and Dixon and Jackson, that the latter had been discharged because
they had been talking for 4i/2 minutes. As to Sadie Barnes, Gilman said that she
was discharged for "daydreaming." When Clark pointed out that Barnes had been
with Respondent for 9 years and was one of the oldest employees in point of
service, Gilman consented to reinstate her provided Clark did not file charges with
the Board on behalf of Jackson and Dixon. The Union refused. Baines was sub-
sequently rehired on December 2, 1965, at the end of the strike hereinafter related.
During the first part of July, according to Coughlin, shortly after the beginning
of organizational activity, he began keeping a record of occasions when he spoke
to employees about their work. On August 26, about 2 weeks after the discharge
of Baines , Dixon, and Jackson, he began issuing warning slips. His testimony is
that he spoke to these three employees on several occasions before their discharge
about their work, or "some phase of production," and each time put a check
opposite their names in his notebook. He did not testify as to what might have
caused him to speak to them on any specific occasion. He admitted that from time
to time he spoke to most employees about their work. It does not appear that any
other employees were discharged because of the quality or quantity of their work
either before or after August 26 when he reduced the more "serious" complaints
to writing.
Because of the absence of any specific complaint as to the woik of Barnes, Jack-
son, or Dixon during their employment, prior to the day of their discharge, and the
absence of any showing that any other employee was discharged during the same
period; the coincidence that Barnes was discharged at the same time as the other
two, though her work was not unrelated to theirs; because of the refusal of
Respondent to specify the reasons for their discharge at the time it occurred,
though requested, and the opposition to the Union expressed to them on two or
more occasions , and hereinafter further exemplified by the events following the
strike, I am persuaded, and I find, that Respondent discharged Barnes, Dixon, and
Jackson because of their interest in the Union, and not for legitimate business
reasons.
2. The strike; the contract; other acts of interference, restraint,
and coercion; further discharges and suspensions
a. The strike
As has been found, on September 8, 1965, pursuant to a consent-election agree-
ment executed on August 3, the Board conducted an election among Respondent's
employees in an appropriate unit, which the Union won. On September 16, the
Board certified the Union as the exclusive bargaining representative for the employees.
On October 7, representatives of the parties met and began negotiations looking
to a contract. On November 29, a strike took place in which all but six employ-
ees engaged, and a picket line was established at the plant. The employees, includ-
ing Sadie Barnes, who had been discharged the previous August, returned to work
on December 2. On December 9, contracts were executed covering the employees
in the appropriate unit in both companies, effective retroactively to December 2
and to expire on December 2, 1966.
b. The promulgation of written rules; the protests
On December 17, 1965, Respondent, for the first time, distributed written rules
to its employees. These rules in part codified oral rules or practices which had been
SANITARY BAG & BURLAP COMPANY 1663_
in effect before the advent of the Union, and provided that an employee would be
subject to discharge upon receipt of three warnings. Rule 5, also, was new and
immediately became a matter of protest by the employees and their collective non-
compliance . This rule, in a sharp departure from the practice prevailing before the
contract, provided as follows:
Lunch period will be from 12:00 noon until 12:30 p.m. Rest breaks of ten
(10) minutes each will be at 10:00 a.m. and at 2:30 p.m. No employee may
be away from his assigned place of work except with the permission of or on
orders of the supervisor. Should any employee need to go to the rest room or
require water at anytimes (sic) other than those designated, permission from
a supervisor must be had. If a supervisor is not present and any employee need
to go to the rest room, then the employee may go and so advise the supervisor
later.
The second floor toilet and drinking fountain adjoin the second floor office. It is
conceded that prior to the appearance of the Union the employees, 20 of whom are
female and 8 male, went to the restrooms as they wished or found necessary, with-
out obtaining permission of a supervisor or reporting to him thereafter. Coughlin's
testimony on this point was as follows:
TRIAL EXAMINER:-I want you to be sure that you know what I meant a
minute ago.
You said that before these written rules were adopted the employees could
go to the rest room anytime they wanted to.
The WITNESS: With exception of 30 minutes before lunch-and from 4:00
to 4:30 they could then if necessary.
TRIAL EXAMINER: With these exceptions they could go to the rest room any-
time they wanted to go for any purpose. Is that correct?
The WITNESS: That's right.
TRIAL EXAMINER:-Was there any limit, since they could go to the bath-
room anytime they wanted to go for any purpose, as to how long they would
spend in there?
The WITNESS: I haven't noticed at that time anybody staying excessively
long. I would say that the time is about what it takes them now.
On December 17, the Union wrote Respondent requesting a meeting to discuss
the rules, a request which Gilman referred to Respondent's attorney. In his reply
letter Gilman foreshadowed the contention which Respondent advanced at the
hearing. This was that the rest periods provided for in the contract cost Respondent
money in production time, and hence the goings and comings of the women to and
from the restroom should be strictly supervised. Gilman called the Union's atten-
tion to an additional expense which Respondent was undertaking:
We take this opportunity to make known to you the fact that we have con-
tracted with a plumber, starting tomorrow, to make alterations to our rest-
rooms which will increase the "seating capacity" 3 so that there will be no
future possibility of a claim that the rest break periods are inadequate for the
personnel herein employed. We have undertaken this action voluntarily, look-
ing to the future. You can well imagine the expense involved in this improve-
ment which will be for the sole benefit of our employees. We trust that the
union will reciprocate our good faith in this by insuring the greater productiv-
ity that must ultimately pay for the improvements.
Respondent's letter misconstrued the Union's protest, which was not stated in its
letter and which, when formulated, had nothing to do with the adequacy of the
facilities. The protest was against the requirement that the women must ask per-
mission to go to the toilet, or report to supervision that they had done so, a
requirement which did not exist before the Union's advent. In this letter, and there-
after in various conversations with employees, as well as in Gilman's own testi-
mony, Respondent sought to place the responsibility for rule 5 on the union con-
tract, and indeed upon the employees themselves for having voted the Union into
the plant. It evidenced its intention to make the employees themselves pay for the
7-cent-an-hour wage raise and the two 10-minute rest periods provided in the
contract.
'One additional commode was installed In the women's toilet, and an additional urinal
in the men's toilet
1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For example , Coughlin on one occasion engaged Jimmy Gant , a union steward,
in conversation about the union contract and stated that it gave Respondent the
right to make the rules, going on to say that the Union "isn't what most of [you]
thought it was, and it's nothing I can do about it and nothing you, Mr. Gilman or
anybody can do about [it]." He added that since the Union signed the contract the
employees were "going to live with it," and told Gant to "go on with the Union"
and "if you don't like it in another year just forget about the union."
The testimony of Gant is that on an occasion when he went to Gilman's office
with an employee, Willett, to discuss a grievance based upon a reprimand given her
for going to the toilet without first obtaining permission of Superintendent Cough-
lin, Gilman said that the employees were responsible for the union contract and
they were going to have to live with the rules the Company had promulgated.
On January 5, 1966, when Willett received a warning notice, Coughlin, accord-
ing to Willett's testimony, said, "You people made these rules and you are going to
have to abide by them." Later the same day, in a conversation about the notice at
which Gant was present, Willett pointed out that Coughlin was a white man and
that she was a colored woman, said that she felt embarrassed in asking him for
permission to go to the toilet, and protested that rule 5 was "an unlawful prac-
tice-an unfair labor practice . It is unconstitutional . It is a disgrace ." Gilman
replied, "Let me tell you people one damn thing. You brought this union, these
rules on yourself. You're going to abide by them," adding that he would "close the
damn place up."
Sadie Barnes and Matilda Nathaniel testified that during the first week in Janu-
ary 1966, Coughlin came to where they were working, told them to shut off the
machine and to listen to what he had to say. He pointed to a copy of the union
contract he had with him and said, "Now, this rule [rule 5] is in yall's contract-
I tried to warn you all about this, you wouldn't listen to me."
The testimony of Clara Holmes is that Gilman made declarations to her similar
to those above attributed to him.
Respondent's further linking of rule 5 with the contract is found in the language
of the separation notice which it gave to the employees whom it terminated-
Three written warnings that (he) (she) violated company rules and company/
union contract.
Thus Respondent sought not only to link rule 5 with the contract, but the con-
tract with the discharges. The plain implication of the notice when coupled with the
statements of Gilman and Coughlin, is that if the employees had not been so fool-
ish as to vote the Union in they would still have their jobs. As it was, they had
made their bed and now they could lie in it.
Coughlin denied the substance of the remarks attributed to him by Willett and
Nathaniel to the effect that they had brought the rules upon themselves by joining
the Union. Gilman did not deny the statements attributed to him by Willett, Barnes,
and Nathaniel but did deny making similar statements to Clara Holmes. I do not
credit the denials of either Coughlin or Gilman. All these statements to employees
on this subject were consistent with the position Respondent took in its letter in
reply to the Union's letter of December 17, in which it coupled the rules and the
expense of additional toilet facilities, with the execution of the union contract.
Moreover, I found both Gilman and Coughlin to be frequently evasive and unre-
sponsive as witnesses.
c. The Christmas bonus and the so-called "Thank You" bonus
Respondent paid Christmas bonuses to its employees in the amount of $10 to
$15 each, in addition to "edible thank you Christmas gifts," as Gilman described
them, every year for about 20 years, until December 1965, the first Christmas
following the appearance of the Union and the execution of the union contract.
According to Gilman, the reason for the withdrawal of the bonus in 1965 was
"economic necessity " If it had been paid, it would have amounted to $400 or $500,
or proportionately the same as in 1964.
Gilman testified that the economic necessity was brought about by loss of
Respondents ' rag business through a technological change, and that this represented
about "30 percent of the volume of the Company." In addition, he said, the instal-
lation of one urinal in the men's toilet and one commode in the women 's toilet
resulted in the "very unusual" expenditure of $1,000. And then there were the
expenses [ attorney's fees ] in dealing with the Union. Altogether , Gilman, although
he "felt kind of sentimental at Christmas time-if I can afford to," felt that he
could not afford it in 1965.
SANITARY BAG & BURLAP COMPANY 1665
The only evidence in support of Gilman's assertion that Respondent could not
"afford" a Christmas bonus, is a letter he testified he received from Cerro Copper
& Brass Company, dated October 8, 1965, in which that Company stated that it
could not afford to pay Respondent a "handling charge for all the cuttings gen-
erated by Oberman Mfg. Co.," and said that "These cuttings must be selectively
graded either at the factory or by you and the synthetic blends disposed of locally.
We would continue to take all of the all-cutting cuttings that they produce on the
same basis as before."
No explanation was made of the overall meaning or effect of the termination
of a handling charge for the cuttings "generated by Oberman Mfg. Co."; or what
proportion these cuttings bore to the total cotton cuttings handled by Respondent
for this customer; or what proportion the rag business bears to Respondents' total
business. Nor was any evidence offered as to Respondents' profit or loss for 1965.
In fact, it is not asserted that Respondent suffered a loss in total profit, or even
that there was a falling off in business as compared with previous years. There is
only Gilman's unsupported, undefined, and unadorned statement that Respondent
could not "afford" to pay the usual Christmas bonus.
Respondent's determination to skip the Christmas bonus was not announced to
the employees beforehand, nor, after Christmas, was any explanation volunteered
the employees. On succeeding days however, Gilman told individual employees
who inquired that it was due to the Union. Thus, on December 31, when Clarence
Cothran, the chief steward, came to Gilman on another matter Gilman asked him,
according to Cothran's testimony, if he knew why the employees did not receive
a bonus, and when Cothran replied that he did not, Gilman said, "Well, I'll tell
you, Fortas 4 got it.-Do you want to see the bills Fortas sent men" Clara Holmes
testified that when she spoke to Gilman about a warning notice she had received,
she asked him if the reason she had not received a Christmas bonus was because
of the Union, and Gilman said that it was Gilman denied making the statements
attributed to him by Cothran and Holmes. At the same time he admitted that he
told Cothran that one reason for not paying the 1965 bonus was unusual expenses,
"such as legal expenses as a result of having to make-having to negotiate with
the Union." I conclude that Cothran's account of this conversation more nearly
reflects what Gilman said.
Respondent since 1960, in the Panhandler operations, paid Jessie Williams since
1960, Clara Holmes since 1962, and Bobbie Mitchell since 1963, respectively, 10,
10, and 5 cents an hour more than the other employees. Gilman testified that he
regarded these increases as "Thank You" bonuses, and that they were instituted
for "good and faithful" work and to cut down on absenteeism. They were con-
ditioned upon regular attendance, and he cited the instance of Clara Holmes who
was not paid her "bonus" for I week in 1965 because on 1 day she had to be
absent for 3 hours. On December 10, 1965, the "Thank You" bonuses to these
three employees were stopped and they have not been resumed.
Holmes and Williams testified that as early as the second or third week in August,
Gilman called them to his office and told them that if they joined the Union their
bonuses would be stopped, that no union had told him to give them a bonus and
"no union was going to tell him to keep on giving it." In the same conversation
Gilman asked them if they knew who started the union agitation and told them
that he would not tolerate a union in the plant, and would shut it down and sub-
contract the making of pot holders as he did the making of gloves. At the same
time he pointed out that since there were only five eligible employees in Pan-
handler it would take three of them to vote for the Union in order for it to win.5
In another conversation with Holmes, Gilman told her that if the employees
brought the Union into the plant they would "just be bringing back slavery."
Gilman testified that he had several conversations with Williams and Holmes
about the Union because they were among his oldest employees and he did not
want them to join the Union. He testified that he could not recall specifically what
he said in the August conversation above related. I credit the accounts of Williams
and Holmes.
When Mitchell, Williams, and Holmes found on December 10 that the bonus
had been deducted from their paychecks, they went in the office together to see
Gilman. Gilman reminded them, according to their testimony, that he had warned
William E. Fortas, Respondent's counsel.
5 As has been found, the five eligible employees in Panhandler voted unanimously for-
the Union.
264-047-67-vol. 162-106
1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them that if they brought the Union into the plant the bonuses would stop, that
they had brought it on themselves, and that under the union contract they all had
to be paid the same wages. On the following day Mitchell, who was shop steward
for Panhandler, again saw Gilman and presented her written grievance and Gil-
man repeated what he said the day before. In addition, he said that the employees
were "in for a big shock," that he knew "a way he could get people out of the
Union" which was by "giving big bonuses to people for just the way they parted
their hair, or wore their ear-rings, and the Union would die out." He concluded
by saying that he could move the plant to Arkansas and that he would eat and
[Mitchell] would have to stand in a bread line.
Gilman admitted having this conversation with Mitchell, Williams, and Holmes.
As to saying he could get the Union out by giving bonuses to employees for part-
jng their hair, he testified: "Actually, the reverse is true. I said that if it were my
intention to try to break the Union-I could buy the support of people by giving
them bonuses for parting their hair, or the kind of clothes that they wore, that I
would be no party to buying anybody's support." I perceive little difference between
this version and that of Mitchell since Mitchell did not say that Gilman said he
would give bonuses for parting their hair-only that he could do so. Nor was the
remainder of the conversation denied, as related by Mitchell, Williams, and
Holmes.
Conclusions
In November 1965, after the certification of the Union, Respondent inaugurated
a system of written warnings, three of which rendered employees eligible for dis-
charge. In December Respondent began issuing warnings for violations of the rules
adopted December 17.
I am convinced that the adoption of the system of written warnings, and later
the written rules, was in retaliation and reprisal for Respondent's employees hav-
ing voted the Union into the plant. Respondent, coincident with the issuance of
the rules, began systematically to persuade its employees that they were required
by the union contract,e and the employees, therefore had brought the rules upon
themselves by voting for the Union. That the union contract required Respondent
to initiate written rules, was false. Nevertheless, not only did Respondent's super-
visors in various conversations with employees couple the rules with the contract,
but so did the separation notices to those employees who were suspended or dis-
charged on January 6 and 7, 1966, for violation of rule 5. That rule 5 was not
necessary to plant management, and that the employees were not abusing the
previous permissive practice of going to the bathroom or to the water fountain, is
,clearly shown by the testimony of Superintendent Coughlin who, as has been
related, testified: "I haven't noticed at that time [before the written rules] that
anybody stayed excessively long. I would say that the time is about what it takes
them now."
Of a piece with Respondent's attempt to saddle the Union and the employees
themselves with responsibility for the rules, was its attribution of the abolition of
the Christmas bonus to the employees and the cancellation of the 10-cent-an-hour
wage "bonus" to Mitchell, Holmes, and Williams.
As to the Christmas bonus, Respondent made no showing that its withdrawal
was due to Respondent's inability to pay. As to the hourly "bonus" to Mitchell,
Holmes, and Williams, admittedly they had been receiving this for several years
because they were Respondent's oldest employees in point of time, and among the
most trusted. It was granted for their "good and faithful" service, according to
,Gilman. It was taken away by Respondent's unilateral action when Mitchell,
Holmes, and Williams exhibited their support of the Union. Gilman's stated reason
was that "the wage contract negotiated with the Union required that we increase
the pay by seven cents an hour, base pay, and, of course, I felt that it would make
me subject to the accusation that I was trying to offend the Union by giving a
bonus for any reason whatsoever to any employee that was not specifically provided
for in the Union contract."
° The only source cited for this claim was the customary management rights clause of
the contract which included Respondent's right "to adopt and enforce working and
safety rules " Respondent was not required to adopt rules of any kind, and had the right
prior to , and without , the contract to adopt such reasonable rules as good management
,night dictate.
SANITARY BAG & BURLAP COMPANY 1667
Gilman admitted that no representative of the Union had ever protested the
payment of this bonus to the three employees. In point of fact, as has been found,
Gilman told Holmes and Williams in the previous August long before the con-
tract and when the Union was first organizing, that if they joined the Union their
"bonus" would be stopped.
Respondent's withdrawal of this bonus, which had been paid regularly for sev-
eral years by adding 10 cents and (in Mitchell' s case ) 5 cents an hour to their
paychecks, was simply a reduction in their wages. It is well established that bonuses
paid regularly to employees are a part of wages.?
Respondent's abrogation of the Christmas bonus and the reduction in the wages
of Mitchell, Holmes, and Williams, like the adoption of rule 5 I find to have been
motivated by Respondent's resentment of the Union and its determination to cause
disaffection of the employees from the Union. By this action Respondent engaged
in interference, restraint, and coercion within the meaning of Section 8(a)(1) of
the Act.
3. The suspensions and discharges
During the latter part of December, Respondent began issuing warning notices
for violations of rule 5. By the first of January 1966, the employees, with the
cooperation of the union stewards, had agreed not to conform to rule 5 and to
continue as in the past to go to the washroom and drinking fountain when neces-
sary without obtaining permission of the plant superintendent or reporting to him
afterward. There followed on January 6 and 7 the suspension of five employees 8
for 1 week, and the discharge of 9 others,9 for violation of the rule. In each case
a violation of rule 5 occurred on the day of the discharge, and the violation was
the third for which the employees had received a warning notice. In most instances
the two preceding notices had been for violation of the same rule 10 The separation
notice given each employee discharged stated that, after three warnings, the
employee was discharged for violating "Company Rules and Company/Union con-
tract." The decision to lay off five employees for a week while discharging nine
othei s appears to have been based upon the greater experience of the laid off
employees and Respondent's reluctance to part with them permanently. One was
as guilty of violating rule 5 as the other.
The suspended employees were reinstated on January 14, 1966.
1 have found above that the imposition of rule 5 was discriminatory. It follows
that the suspensions, or layoffs, and discharges of the above-named employees
assertedly for violating the rule were discriminatory, and made in violation of
.Section 8(a)(3) of the Act.
4. The discharge of Barbara Gordon
Respondent hired Barbara Gordon on April 12, 1965, following a telephone call
from R. E. Craig, plant superintendent on Respondent's first floor, who sought a
replacement for Dorothy Montgomery who had worked for several months for
Respondent and resigned her job. Gordon's testimony is that Montgomery was a
-permanent employee and that when Craig hired her he told her that she would
also be a permanent employee. Craig's testimony was that Montgomery was only
a temporary employee and that he did not tell Gordon that she was to be a per-
manent employee. I did not find it necessary to resolve this contradiction in view
.of my findings, hereinafter made.
7 It is well established that bonuses paid regularly to employees are a part of wages.
See Custom-Pak, Inc, 126 NLRB 242 , Zertick Company, 144 NLRB 1381.
8 Namely, Jimmy Gant, Freddie Carver, Willie Ford, Clara Holmes, and Jessie Williams.
B These were Providence Clark, LaVerne Jones, Sadie Barnes, Sara Bethel, Ozell Jones,
Erma Montgomery, Matilda Nathaniel, Ida Willett, and Shirley Montgomery. It will be
recalled that Barnes was discharged by Respondent who reinstated her along with the
returning strikers, on December 3, 1965
10 Gant, however, was given his first warning on August 26, 1965, the day Respondent
originated written warnings, for talking to other employees, and his second on November 8,
for a mistake in cutting material. Holmes was given her first warning on November 5, 1965,
for not reporting her machine out of order, and her second on November 15 for assertedly
-taking time off without permission.
1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Craig he put Gordon to work to clean up a salvage job which
Respondent had received from Virginia. Another salvage job began in June 1965,
work on which consisted of drying out material in an oven, outside the plant. In
July, a large salvage job arrived from Texas, and Respondent, according to Craig,
hired six additional employees. Craig admitted that when Gordon was not working
on these jobs she was doing grading. Gordon's testimony, however, is that the
greater part of her time was spent grading inside the plant, and that her work on
salvage in the yard did not begin until the Texas salvage job arrived, and was con-
fined to relieving one of the girls for 30-minute periods, twice a day. This latter
fact seems to be confirmed by Craig." Otherwise Gordon, according to her
account, did grading inside the plant. This work she described as separating good
material from bad, separating plastic from leatherette, separating good bags from
bad bags, and occasionally bailing what she had graded. As to her proficiency as an
employee, Craig's testimony is that he had no fault to find with it.
When Respondent signed a consent-election agreement, on the representation of
Gilman that Gordon was a temporary employee her name was not included in the
list of eligible voters. Gordon's credited testimony is that the first inkling she had
that she was considered a temporary employee was on September 7, the day before
the election when Gilman and Craig gathered together the eligible voters prepara-
tory to sending them upstairs to be addressed by Gilman. When Craig called out
Gordon's name to go with the others, Gilman called out "No, I don 't want Bar-
bara-she was only hired temporarily." Gordon reported this decision to Clark,
the representative of the Union, who arranged with Respondent's representative to
have her vote by challenged ballot.
Gordon voted in the election. On the following day Craig told her to go to the
office and pick up her check, saying that she was "laid off." Her separation slip
stated as to the reason for her termination: "Lack of work; hired as temporary
employee to assist in a job now being completed."
At the time of her separation, Gordon was working at grading. This is regular
work which Respondent always has on hand. The employees hired after her in the
yard, at least six of whom Craig testified were hired after Gordon, continued to be
employed until in October or November when, according to Craig, the Texas Sal-
vage job was completed. Even at the time of the hearing, two employees, Hattie
Smith and Irene Turner, who did not participate in the strike in November-who
had been hired during the strike for the yard work, were still employed. Upon
Gordon's discharge they had been transferred to grading work which Gordon had
been doing.
CONCLUSIONS
I credit Gordon's testimony that from the time of her employment she worked
principally as a grader inside the plant. Craig's own testimony is that, at least for
a period, this was her principal work. I conclude that Respondent's classification of
her as a "temporary" employee was arbitrary and dated from the day before the
election when, in sending others upstairs to be addressed by him, Gilman did not
include Gordon The fact that Craig had just told her to go with the others war-
rants the conclusion that Craig himself, who had hired Gordon and who super-
vised her work, did believe she was a "permanent" employee and hence entitled
to vote. When Gordon appealed Gilman's decision to Clark, and as the result of
the Union's intervention was permitted to vote, Respondent, discharged her.
If I were to accept Respondent's contention that Gordon was a temporary
employee hired only to work at salvage work, it would still remain true that she
had more seniority than at least six other temporary employees doing the same
work, two of whom were still employed at the time of the hearing. As to the others,
Craig admitted that the Texas salvage job on which they were working along with
Gordon, and which Gilman testified was the largest Respondent had ever had, was
not finished until October or November. Gordon's termination slip gives the rea-
son for her termination , "Lack of work; hired as a temporary employee to assist
u The following is his testimony on the point :
What specifically did she do on that job?
A. Well, she relieved on the dryer 30 minutes in the morning and 30 minutes in
the afternoons, and then she would grade the three yard pieces.
SANITARY BAG & BURLAP COMPANY 1669
in a job now being completed." There is no evidence aside from this that the Texas
salvage job was "being completed." In fact, as Craig testified, it was not completed
until October or November. No other person working on the project was termi-
nated when Gordon was, and there is no other evidence of any step whatever
taken, or plans being made, to liquidate this job as of any particular time.
I conclude and find that Barbara Gordon, like Barnes, Dixon, and Jackson the
previous month, and like the other persons terminated on September 6 and 7, was
discharged for her activity in the Union, in violation of Section 8(a)(3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, occurring in con-
nection with the operations of Respondent, described in section I, 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices in violation
of Section 8(a) (1) and (3) of the Act, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent discriminatorily discharged Barbara Gordon,
Providence Clark, LaVerne Jones, Sadie Barnes, Sara Bethel, Ozell Jones, Erma
Montgomery, Matilda Nathaniel, Ida Willett, Shirley Montgomery, Olla Dixon,
and Susie Jackson and discriminatorily laid off or suspended Jimmy Gant, Freddie
Carver, Willie Ford, Clara Holmes, and Jessie Williams, I recommend that they be
offered reinstatement and made whole for any loss of pay resulting from their
suspension or discharge to the date on which they are offered reinstatement, less
their net earnings during that period. Such backpay shall be computed on a quar-
terly basis in the manner prescribed by the Board in F. W. Woolworth Company,
90 NLRB 289, and shall include interest at 6 percent as provided by the Board in
Isis Plumbing & Heating Co., 138 NLRB 716.
Having found that Respondent discriminatorily withheld the 1965 Christmas
bonus, it will be recommended that Respondent make whole the employees in the
appropriate unit by paying them the 1965 Christmas bonus based upon the formula
used in 1964.
Having found that Respondent discriminatorily reduced the pay of Bobbie Mitch-
ell, Clara Holmes, and Jessie Williams, by eliminating the "Thank You" bonus pre-
viously paid them, it will be recommended that Respondent make them whole by
paying them a sum of money equal to the amount of the bonuses withheld from
them by reason of Respondent's discrimination, plus interest at 6 percent as pro-
vided above.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices reasonably may be anticipated. I shall,
therefore, recommend that Respondent be ordered to cease and desist from in any
other manner infringing upon the rights guaranteed to its employees by Section 7
of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record, I
make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. United Furniture Workers of America, Local 282, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. By discouraging membership in a labor organization through discrimination in
employment, and by interfering with, restraining, and coercing employees in the
exercise of their rights under the Act, Respondent has engaged in and is engaging
in unfair labor practices affecting commerce within the meaning of Sections 8(a)
(3) and (1) and 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]