School-Timer Frocks, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1954

110 N.L.R.B. 1659 (N.L.R.B. 1954)

SCHOOL-TIMER FROCKS, INC. 1659
be combined with the value of those received indirectly (indirect in-
flow) in determining whether or not an enterprise meets the indirect
inflow standards. I heartily concur in this finding. Simple logic
tells us that transactions directly across State lines have as much
impact as those of an indirect nature. Having come this far, however,
in recognizing that the Board cannot look at only one aspect of an
employer's operations, I wonder if it is not time for the majority to
further reexamine the question of a combination approach to com-
merce and take the next logical step? If direct and indirect inflow can
be combined, why not direct and indirect outflow? While the present
Board, over my dissent, rejected the Rutledge doctrine' allowing such
a measurement of total impact in the recent decisions in Jonesboro
Grain Drying Cooperative, 110 NLRB 481 and Rogers Bros. Whole-
salers, 110 NLRB 604, the decision herein indicates a more perceptive
view of the situation.
4 The Rutledge Paper Products, Inc., 91 NLRB 625.
SCHOOL-TIMER FROCKS, INO. and INTERNATIONAL LADIES' GARMENT
WORKERS' UNION , AFL. Case No. 11-CA-668. December 16,1954
Decision and Order
On June 7,1954, Trial Examiner Louis Plost issued his Intermediate
Report in 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 copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices alleged in
the complaint and recommended that these allegations of the com-
plaint be dismissed. Thereafter, the Respondent filed exceptions to
the Intermediate Report and a supporting brief. The Respondent
also requested oral argument. This request is denied as the record,
including the exceptions and brief, in our opinion adequately presents
the issues and the positions of the parties.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
1 The Respondent excepts to the Trial Examiner's rejection of certain evidence, includ-
ing talks given to plant employees by its plant manager and attorney. We do not pass
upon the propriety of these rulings because the evidence, even if admissible, would not
alter our determination herein.
110 NLRB No. 239.
1660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions of the Trial Examiner with the following exceptions and
modifications :
1. The Trial Examiner found, and we agree, that the Respondent
independently violated Section 8 (a) (1) of the Act by the following
conduct : Foreman Dupuy's interrogation of employee Griffin as to
whether she had any more of "those damn union cards" with her, and
his statement to Griffin that if she wanted to keep her job she would
have to keep the cards out of the plant; Manager Lofton's statement to
Griffin that he was discharging her because she had brought union
cards into the plant and he would not have a union there; Supervisor
Mimms' threat to employee Buck that the management would close
the plant if the Union came in, her interrogation as to whether Buck
had attended a union meeting, and her interrogation of employee
Howard as to whether Howard had attended a union meeting and
signed a card; Supervisor Poe's interrogation of employee Wright as
to whether she had attended a union meeting; Supervisor Munn's 2
interrogation of Wright as to whether she had attended a union meet-
ing and what she thought of the union; and Supervisor Grimes's ask-
ing employee Williamson whether she had signed a union card.
The Respondent excepts mainly on the grounds that the Trial Ex-
aminer's credibility rulings on which these findings are based are
contrary to the greater weight of the evidence, and that, in any event,'
the statements and interrogations were only casual inquiries and ex-
pressions of opinion which, in the absence of evidence that the em-
ployees were intimidated thereby, did not constitute violations of the
Act. It has been the Board's settled practice not to disturb the Trial
Examiner's credibility findings based on his personal observation of
the demeanor of witnesses unless the clear preponderance of all rele-
vant evidence demonstrates that the Trial Examiner's resolution was
incorrect.' We find that this test is not met here and on the record
we are not warranted in disturbing the Trial Examiner's credibility
findings. We further find that the statements and interrogations,
when viewed in the context in which they occurred, constituted inter-
ference and coercion .4 Moreover, it is well settled that statements
of an employer need not have successfully intimidated or coerced em-
ployees in order to constitute violations of Section 8 (a) (1).-' Ac-
cordingly, the Respondent's exceptions in this respect are overruled.
2. We also agree with the Trial Examiner that the Respondent dis-
charged Jenelle Griffin because of her union activity and thereby vio-
lated Section 8 (a) (3) and (1) of the Act. The Respondent excepts
on the ground that the Trial Examiner's finding is contrary to the
2 In one instance the Trial Examiner, apparently inadvertently, referred to Supervisor
Munn as Minims.
9 Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F. 2d 362 (C A. 3)
4 The Dalton Company, Inc., 109 NLRB 1228.
5 Ibid.
SCHOOL-TIMER FROCKS, INC. 1661
greater weight of the evidence. However, we have examined the entire
record and we find that the Trial Examiner's finding that Griffin was
discriminatorily discharged is fully supported by the preponderance
of the evidence. We consider particularly persuasive Griffin's leader-
ship of the union movement, Foremen Dupuy's threatening remarks
on the day of her discharge, and Manager Lofton's statements when
discharging her that she had done "an unpardonable deed" bringing
union cards into the plant that day, and that, although she was one
of the best operators, he would not have a union in the plant.'
3. We do not agree with the Trial Examiner that the Respondent
discharged employees Buck, Wright, Mackey, Williamson, and How-
ard because of their union activity. Even accepting the Trial Ex-
aminer's credibility resolutions, we find, for the reasons indicated
below, that the evidence fails to support the findings of the Trial Ex-
aminer with respect to these discharges.
a. Dorothy Buck, who was hired by the Respondent in February
1953, was an admittedly slow worker. After an absence from the
plant because of illness, she was rehired in August 1953 on a 2-week
trial basis and was told that she would not be retained unless her
production increased. Thereafter her production did not increase,
and the Respondent, after approximately 5 weeks, discharged her on
October 7 for the stated reason that she was too slow. Based on the
fact that Buck's original 2-week trial period was extended to 5 weeks,
the Trial Examiner was persuaded that, even though Buck was a
slow worker, the Respondent would not have discharged her had it not
discovered that she attended a union meeting in October, shortly be-
fore her discharge.
However, the Trial Examiner did not allude to other evidence which
we believe supports the Respondent's contention as to the nondis-
criminatory motive behind Buck's discharge. In this connection, the
record shows that the Respondent is a new company which began
operations in December 1952. In May 1953, before the union organi-
zation campaign, the Respondent began a program, which continued
until December of that year, to improve the operating efficiency of
the plant by replacing employees who had proved unsatisfactory.
From 35 to 40 employees were discharged during this period for ir-
regular attendance, slowness, or other reasons of inefficiency.'
G We do not agree with the Trial Examiner that, unless the Respondent had an estab-
lished rule forbidding all character of solicitation during working hours, it could not
legally discharge an employee for soliciting for the Union during working hours. This
does not affect our conclusion, however, that Griffin was unlawfully discharged, as Dupuy's
and Lofton's statements establish that Griffin was discharged not because of the time but
because of the nature of her activities.
7 We note and correct a misstatement in the "Preliminary" section of the Intermediate
Report that the Respondent's February 13, 1954, payroll shows that 101 of 183 produc-
tion employees, or over 50 percent, failed to exceed the legal minimum wage. The pay-
roll shows that 101 of 211 employees, or less than 50 percent, received makeup pay, and
this percentage includes employees who were transferred to a new operation with their
wages increased to their average earnings as well as employees being made up to the min-
imum wage.
1662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the foregoing, including Buck's admitted slowness, we
cannot agree with the Trial Examiner that the Respondent's desire to
give Buck every opportunity to increase her production rate by ex-
tending her trial period for 3 weeks indicates that the Respondent
would have continued indefinitely to tolerate her inefficiency had it not
learned in the meantime that she had attended one union meeting.
We find that the allegation of discriminatory discharge of Dorothy
Buck is not supported by a preponderance of the evidence.
b. Ann T. Wright was employed by the Respondent in August 1953.
She attended a union meeting on September 24. After working 31/2
weeks, she left the plant on September 26 because of illness. When
she was released from the hospital, Wright telephoned Personnel
Manager Doss on October 12 and 13 concerning work but on both
occasions Doss refused to reemploy her. On October 14 Wright went
to the plant for an interview with Doss but Doss told her that she
would not be reemployed because her supervisor, Munn, had said that
she refused to do work assigned her and Munn did not want her back.
Wright denied she had refused work assignments. Wright then told
Doss that she had joined the Union. Doss replied that it was Wright's
own business whether she signed a union card or not.
Supervisor Munn testified she had advised Doss not to reemploy
Wright because she had refused work assignments and for "grumbling
at everything I put her on, the operation was not right and she wanted
to be changed, and the rest of the girls were making money on the
job."
The Trial Examiner discredited Munn's testimony "insofar as it
may be intended to show that Wright refused to do the work as-
signed her" and found in substance that Wright did not refuse to do
her assigned tasks, that the reasons advanced by the Respondent for
its refusal to reemploy Wright were mere pretexts, and that the
Respondent refused to reemploy Wright because of her union activity.
We cannot agree.
Initially, the record does not support the Trial Examiner's finding
that the Respondent had knowledge of Wright's union activity before
deciding not to rehire her. For although Wright testified that Super-
visors Munn and Poe asked her on September 25 whether she had
attended a union meeting, whether she had joined the Union, and
what she thought of the Union, there is no evidence whatever that
Wright disclosed her union adherence to them. And although Wright
volunteered to Doss that she was a member of the Union, this was
done when Wright visited the plant on October 14, after Doss had
already refused to rehire Wright twice, on October 12 and 13.
Even assuming that Respondent had knowledge of Wright's union
activity before October 12, and that Wright may not have actually
refused to do assignments, the record is clear that she was, as Munn
SCHOOL-TIMER FROCKS, INC. 1663
explained, a dissatisfied, complaining employee. Wright herself cor-
roborated Munn in this respect, as she testified, "I would work on one
style for maybe 30 minutes and I would work on belt fronts on dresses
and maybe putting skirts on dresses next, you never knew what you
were going to do next." She further testified that she asked Munn
to give her a steady operation, that Munn put her on a special machine,
and that she requested that she be taken off this assignment. She was
put back on a regular sewing machine but, according to her own testi-
mony, she was not satisfied with it "because it was still changing
from one operation to another."
As the record fails to establish the Respondent's knowledge of
Wright's union activity at the time of its refusal to rehire her and,
in any event, supports the Respondent's contention that it refused to
rehire her for cause, we find that the preponderance of the evidence
fails to support the Trial Examiner's finding that the Respondent vio-
lated Section 8 (a) (3) of the Act with respect to Wright.
c. Jessie Mackey was hired in August 1953 as an experienced opera-
tor. She was employed by the Respondent for approximately 2
months, during which time she got into an argument with an employee
named Legette over which of them would pick up a bundle of dresses
from the floor. Supervisor Davis ordered the two employees to pick
up the bundle but Mackey refused, and it was only after being taken
to Personnel Manager Doss' office and ordered by her to do so that
Mackey agreed to follow instructions. Mackey attended one union
meeting, on October 13. On October 16 Doss discharged her. The
Respondent contended that Mackey was an unsatisfactory worker
because she caused confusion in the unit by using profanity, arguing
with the supervisors and other employees, and refusing work assign-
ments.
The Trial Examiner found that the bundle incident was "trivial,"
that the other reasons advanced for Mackey's discharge were not sup-
ported by the evidence, and that Mackey was discharged because of
her suspected union activity. We reject the Trial Examiner's con-
clusion.
In the first place, there is no evidence that the Respondent knew,
or had reason to suspect, that Mackey was a union adherent. The only
evidence in this connection consisted of Mackey's testimony that the
day following the union meeting which she attended, Supervisor Poe
told her that although Poe had understood she was "against the union,"
Poe had heard that Mackey had gone to the meeting. Mackey said
she told Poe that she had not gone to the meeting because her husband
was against the Union. Obviously this evidence fails to show knowl-
edge of Mackey's union adherence. Moreover, it demonstrates, not
that the Respondent suspected that Mackey's sympathies were with
1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union, but on the contrary that Supervisor Poe had the impression
that Mackey was against the Union.
Nor can we agree with the Trial Examiner that the reasons ad-
vanced by the Respondent for Mackey's discharge were groundless.
Although the Trial Examiner discredited the testimony of the Re-
spondent's supervisory personnel where it conflicted with Mackey's,
and credited Mackey's denial that she ever refused to do work assign-
ments, other evidence, not referred to in the Intermediate Report,
supports the Respondent's contentions of misconduct by Mackey.
Thus, Mackey admitted getting into the argument with Legette over
the bundle, and that she refused her supervisor's order to pick it up.
Although the Trial Examiner dismissed this incident as "trivial," it
was obviously serious enough to require Mackey to be sent to the per-
sonnel manager before she finally agreed to obey her supervisor's
order . While Mackey may not have been discharged for this incident
alone, there is additional independent testimony that Mackey used
rough language (Mackey refused to deny she may have cursed during
the bundle incident), argued with supervisors and other employees,,
and interfered with the work of other employees.
In the absence of any persuasive evidence of company knowledge,
and as the evidence supports the Respondent's contention that Mackey
was discharged for cause , we find that the Trial Examiner's finding
of an unfair labor practice is not supported by the preponderance of
the evidence.
d. Ann Catherine Williamson, who was hired in February 1953,
was also an admittedly slow worker. Williamson's supervisor, Davis,
had recommended her discharge some weeks before she was laid off.
On that occasion Williamson had left her machine without permis-
sion and when Davis found her, Williamson said she had left her
work because the material was too hard to sew and she did not intend
to work on it. Williamson attended a union meeting on the 1st or
2nd of October, and signed a membership card. On October 16 she
was discharged by Doss for the stated reasons that she was too slow
and wasted time smoking in the restrooms. Williamson d ;d not deny
these charges at the time but replied only that there were others whose
production rate was low and who smoked in the restrooms also.' The
Trial Examiner found that although the Respondent may have had
cause to discharge Williamson because of her slowness, it would not
have done so absent her union adherence. We cannot agree.
In view of the evidence discussed above that the Respondent was
engaged in a program, begun before plant organization was started
by the Union, to replace its inefficient workers, that Williamson was:
8 At the hearing , Williamson denied wasting time in the restrooms , and the Trial Exam-
iner credited her denial.
SCHOOL-TIMER FROCKS, INC. 1665
an admittedly slow worker whose discharge had previously been rec-
ommended, and that she failed to deny the reasons given to her at
the time of her discharge but replied only that others did the same
thing, we find that the Trial Examiner 's conclusion that Williamson
would not have been discharged had the Respondent not learned of
her union membership is not supported by a preponderance of the
evidence.
e. Matilda Howard was hired in April 1953 . She had a long rec-
ord of absenteeism , as shown by the Respondent 's personnel records,
which, contrary to the Trial Examiner , were read into the record.
This evidence reveals that she worked a full 40 hours during only 4
out of her last 16 weeks of employment .9 She attended a union meet-
ing and signed a membership card around October 1. After being sick
during most of her last week, she left the plant on October 15, being
told by Doss, as she left , that she was out sick too often . Howard
thereafter entered the hospital . Upon her release , she reapplied for
her job on October 21 but was refused reemployment . She again
requested work on October 23, but, according to Howard 's own testi-
mony, she was told by Doss that there was no job for her because the
plant was replacing old employees who did not work steady . Howard
replied that she had worked steady except when she was sick, but
Doss said , "I don't feel like you are able," and Howard replied, "Well,
I ain't well, I know." Although Howard telephoned Doss several
times after that, Doss refused to put her back to work.
The Respondent contended that Howard was not rehired because
of her irregular attendance and because she had failed to bring a
health certificate as requested . The Trial Examiner credited How-
ard's denial that she was told to bring a health certificate prior to
her last day of employment, and found that Howard had "explained
all her absences," and therefore the Respondent refused to reemploy
her not for the reasons it advanced but because of her union member-
ship and activities . We do not agree.
The record does not support the Trial Examiner's finding that
Howard explained all her absences . She gave reasons for being ab-
sent during 5 weeks of employment at most, and , as shown by the
personnel records, she was absent during at least 10 weeks. But even
if she explained all her absences , the Respondent , as discussed above,
was replacing employees whose attendance was irregular. Under
these circumstances , including Howard's poor attendance record, we
find that the Trial Examiner 's conclusion that Howard was discharged
because of her union activity is not supported by a preponderance of
the evidence.
The period included two holidays
338207-55-vol 110--106
1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we shall dismiss the allegations of the complaint that
the discharges of Buck, Wright, Mackey, Williamson, and Howard
were unlawful.
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, School-Timer Frocks, Inc.,
Charleston, South Carolina, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in International Ladies' Garment
Workers' Union, AFL, or in any other labor organization of its em-
ployees, by discharging or in any other manner discriminating in re-
gard to their hire or tenure of employment or any term or condition
of their employment, because of their union membership or activities.
(b) Interrogating its employees concerning their activities in con-
nection with International Ladies' Garment Workers' Union, AFL,
or any other labor organization, in a manner constituting interfer-
ence, restraint, or coercion in violation -of Section 8 (a) (1).
(c) Treatening economic reprisals by reason of the organizational
activities of its employees.
(d) In any other manner interfering with, restraining or coercing
its employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist International Ladies' Garment
Workers' Union, AFL, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any and
all such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment, as authorized by Section 8 (a) (3) of the
Act.
2. Take the following action which the Board finds will effectuate
the policies of the Act :
(a) Offer to Jenelle Griffin immediate and full reinstatement to her
former or substantially equivalent position without prejudice to her
seniority or other rights or privileges and make her whole for any
loss of pay she may have suffered as a result of her discriminatory
discharge, in the manner set forth in the section of the Intermediate
Report entitled "The Remedy."
(b) Upon request, make available to the Board or its agent for
examination and copying all payroll records, social-security payment
records, timecards, personnel records and reports, and all other records
necessary to determine the amount of back pay due.
SCHOOL-TIMER FROCKS, INC. 1667
(c) Post at its plant at Charleston, South Carolina, copies of the
notice attached hereto and marked "Appendix." 10 Copies of said
notice, to be furnished by the Regional Director for the Eleventh
Region, shall, after being duly signed by the Respondent's authorized
representative, be posted by the Respondent immediately upon re-
ceipt thereof and maintained by it for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the said Regional Director within ten (10) days from
the date of this Order what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent violated the Act in respects other than herein found,
be, and it hereby is, dismissed.
MEMBERS RODGERS and BEESON, dissenting in part :
While we concur in the majority decision that the Respondent did
not violate the Act by discharging employees Buck, Wright, Mackey,
Williamson, and Howard, we dissent from their findings that the
Respondent violated Section 8 (a) (3) and (1) in the discharge of
Jenelle Griffin, and independently violated Section 8 (a) (1).
As to the discharge of Griffin, the majority relies chiefly on the
Trial Examiner's credibility determinations that Foreman Dupuy
on the day of her discharge asked her whether she had any more of
"those damn union cards" with her, and told her if she wanted to
keep her job, she would have to keep the cards out of the plant; and
that Manager Lofton told her in effect at the time of her discharge
that she was being discharged for her union activity. However, as
indicated below, the clear preponderance of the evidence demonstrates
that these credibility findings are erroneous.
Dupuy was not called as a witness, and the Trial Examiner credited
Griffin as to his alleged coercive statements because her testimony was
undenied. However, the Trial Examiner ignored Griffin's further
testimony, which shows without serious doubt that his statements
never were made. Thus, when asked a further question on cross-
examination about this conversation with Dupuy, Griffin replied,
"The union was never brought into our conversation." [Emphasis
supplied.] When asked further, "how many conversations did you
have with Mr. Dupuy about the union the day you were discharged?"
she answered "None." After her inconsistencies were pointed out to
Griffin on redirect examination, she became completely confused and
10In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said she meant that she did not have a conversation with Dupuy re-
garding his opinion of the Union , and then that Dupuy had not asked
her opinion but had stated his opinion.
The evidence is also convincing that Manager Lofton did not say
in discharging Griffin, as she testified , that she had done "an un-
pardonable deed" bringing union cards into the plant , and that al-
though she was one of the best operators , he would not have a union
in the plant . The Trial Examiner credited this testimony , and dis-
credited Lofton 's denial , "on the entire record." However , Griffin
was obviously an unreliable witness. Her testimony as to the time of
the washroom incident was discredited even by the Trial . Examiner.
Her testimony regarding her conversation with Dupuy was confused,
as shown above. Griffin was inconsistent in stating first that union
talk in the plant prior to September 22 was not toward organizing,
and later that she had previously talked to employees about organ-
izing. Finally, in at least two instances her testimony was most im-
probable, viz , when she stated that Lofton told her she was one of the
best operators , as by her own testimony she currently seldom made
production ; and when she stated that Supervisor Grimes went out of
her way to tell her that another employee wanted to see her about
getting some union cards , a statement which Grimes , whom the Trial
Examiner credited over Griffin with regard to the time of the wash-
room incident , denied.
Conversely , the record does not, as claimed by the Trial Examiner,
cast doubt on Lofton 's credibility . For although Lofton at first said
he had announced a no-solicitation rule and later said he had not, he
explained that he thought the first question related only to a separate
rule against smoking in the restrooms , and the record shows that the
immediately preceding testimony had in fact concerned smoking in
the restrooms . Moreover , the Trial Examiner completely ignored
Lofton's testimony that when he decided that Griffin should be dis-
charged for reasons he gave at the hearing, he sought the advice of
counsel because he knew she was engaged in union activity . Having
consulted an attorney, it is utterly incredible that, as Griffin claimed,
he told her she was being discharged for such union activity.
As a clear preponderance of the evidence shows the credibility
findings with regard to Griffin's alleged conversations with Dupuy
and Lofton to be erroneous , these findings should be overruled.
Without these findings, the allegation of unlawful motivation in
Griffin's discharge is without persuasive support in the record.
Rather, the record establishes that Griffin was, as the Respondent
contends , an unsatisfactory employee who was discharged for cause.
Griffin had previously been warned for showing indecent pictures and
telling dirty jokes in the plant; her rough language had so disturbed
the work of another employee , Brown , that Brown's machine had to
SCHOOL-TIMER FROCKS, INC. 1669
be moved at her request from Griffin's vicinity; and she had twice
been reported by Supervisor Munn for interfering with the work of
other employees upon which occasions Munn had recommended her
discharge." On the day of her discharge Griffin was observed by
Supervisor Davis going and coming from the restrooms and going
into another unit and visiting girls at their work; she was seen by
Doss going from girl to girl talking to them, and staying longer in the
restrooms than she was supposed to; and she was also seen by Super-
visor Munn away from her machine doing a lot of talking. In addi-
tion, Griffin was discovered by Supervisor Grimes distributing union
cards in the restroom during working hours, and Griffin approached
employee Filyaw during working hours and asked her to join the
Union.'2
In view of Griffin's misconduct both prior to and on the day of
her discharge, and in the absence of any credible evidence of a dis-
criminatory motive, this 8 (a) (3) allegation of the complaint should
be dismissed.
The majority's findings of independent 8 (a) (1) violations are also
based chiefly on the Trial Examiner's credibility findings which, in
our opinion, are shown by a clear preponderance of the evidence to
be erroneous and should therefore be overruled.
1. We have discussed above the 8 (a) (1) findings based on em-
ployee Griffin's account of the alleged coercive statements made to her
by Foreman Dupuy and Manager Lofton. For the reasons previously
stated, these allegations should be dismissed.
2. The majority finds that Supervisor Mimms interrogated and
coerced employee Buck. This finding is based on the testimony of
Buck, that the morning after she attended a union meeting Mimms
asked her, while on their way to work in the same car pool, if she had
been to the meeting and how many were there, remarking that em-
ployee Adkins had told Mimms "that about 15 attended" ; and Buck's
further testimony that Mimms stated she could tell who signed union
cards by the way they talked, and that the management had said they
would close the plant if the Union came in. Mimms denied these
statements, but said she told some employees in the afternoon that
Adkins had said there were 15 employees at the meeting.
"The Trial Examiner found it "unnecessary to discuss" Griffin's conduct prior to the
day of her discharge , because of testimony by Doss and Lofton that she was discharged
for her misconduct on that day However , the record shows that when Doss was asked
whether Griffin was discharged only for what she did on her last day, Doss replied. "Not
necessarily because she had been causing a lot of trouble before and she was warned
several times before about the things she had done " Doss also said that in deciding
to discharge Griffin, her previous record, her interference with the work of other em-
ployees, and her past warnings were taken into consideration Lofton testified that Griffin
was discharged for "an accumulation of things " as well as for her conduct on her last day.
12 The fact that Griffin 's own machine may have been broken does not, of course , explain
why she spent her last day at the plant engaged in the activities set forth above, when
she should have been working at other duties to which she was assigned
1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner credited Buck and discredited Mimms' denial
because Mimms "admitted part of Buck's testimony" and did not im-
press him as "reliable" while Buck did. The record, however, con-
tains evidence, not adverted to by the Trial Examiner, corroborating
Mimms' denial. In this connection, employee Westgate, who was
.also a member of the car pool, testified Mimms did not interrogate or
threaten Buck. Moreover, although employee Shoemaker, who was
another member of the pool, appeared as a witness, she did not testify
as to Mimms' alleged interrogation of Buck. As to Mimms' alleged
"admission" of part of Buck's testimony, the fact that Mimms stated
in the afternoon that Adkins had said 15 employees attended the meet-
ing on the previous evening does not indicate she made the same
statement earlier, particularly in the absence of evidence as to how
Mimms could have received this information from Adkins in time to
make the statement on the way to work in the morning. On this
evidence the crediting of Buck was clearly erroneous, and should be
overruled.
3. The majority also finds that Mimms interrogated employee
Howard, on the basis of Howard's credited testimony that Mimms
asked her the morning after she attended a union meeting whether
she had attended and signed a card. The Trial Examiner credited
Howard and discredited Mimms' denial on his "observation of the two
witnesses, the fact that other witnesses were also queried by Minims
and the general nature of Mimms' testimony on other matters, dis-
credited by the undersigned." However, Mimms testified to only one
other matter, i. e., her denial that she interrogated Buck. The Trial
Examiner's discrediting of Mimms on that issue, as shown above, was
contrary to the clear preponderance of the evidence. Therefore, as the
principal basis for this credibility finding as to Howard is not sup-
ported by the record, it should be overruled and the 8 (a) (1) allega-
tion dismissed.
4. The majority finding of a violation in Poe's and Munn's interro-
gation of employee Wright is based on Wright's credited testimony
that Poe asked her on their way to work in a car pool if she had
attended a union meeting the previous evening, and that Munn asked
her later that day if she had attended the meeting and what she
thought of the Union. The Trial Examiner credited Wright over
Munn's and Poe's denials because Wright "created an impression of
complete forthright honesty." However, the record hardly supports
such a characterization of Wright. For example, Wright testified
repeatedly that her duties were changed constantly, "every day a
number of times each day," yet her work records show no change in
duties during 8 of her 18 days of employment.
Moreover, the Trial Examiner discredited Poe's denial that she
questioned Wright on the basis of "the record as a whole, and his
SCHOOL-TIMER FROCKS, INC. 1671
observation of the witnesses," and because Poe denied that she ever
discussed the Union in the car pool, whereas employee Varner testi-
fied Poe once told a member of the car pool that she might be dis-
charged if she signed a union card. Yet neither Varner nor another
member of the car pool, who may have been present at the time, testi-
fied as to Poe's interrogation of Wright and the Trial Examiner did
not, in any event, make any specific resolution of Varner's credibility.
The Trial Examiner's discrediting of Munn similiarly lacks sup-
port. Apparently the Trial Examiner did so because Munn placed
the time when she put Wright on a special machine as occurring in
July and because she stated Wright worked about 6 weeks, whereas
Wright was not hired until August and worked at the plant only 31/2
weeks. However, Munn's testimony as to these dates certainly does
not show an attempt to mislead. On the contrary, it represents at most
inaccurate estimates, particularly in view of her further testimony
that she was not sure of these dates. The Trial Examiner also stated
Munn's account of how Wright threatened to quit unless she was taken
off the special machine "because it is killing me in my nerves," showed
that Wright was physically unable to do that assignment rather than,
as Munn testified, she was unwilling to do it. We are unable to per-
ceive any substantial difference between a refusal to do assigned work
and Wright's statement that if she was not removed from the job, she
would quit.
In these circumstances, the credibility findings with respect to
Wright are clearly contrary to the preponderance of the evidence,
and they should be overruled.13
Only one 8 (a) (1) finding remains-Grimes' alleged interrogation
of employee Williamson, who was an old friend of Grimes' visiting
her in the hospital, as to whether Williamson had signed a union
card. This finding is based on Williamson's testimony, which the
Trial Examiner credited, rather than Grimes' denial, on the ground
that Grimes was not reliable. This seems an invalid basis for dis-
crediting Grimes, however, when the Trial Examiner had previously
found that Grimes was reliable with respect to the time of the wash-
room incident involving Griffin. Moreover, this one incident, which
took place in the context of a casual conversation between an em-
ployee and a minor supervisor whom she was visiting in a hospital
room, certainly could not reasonably restrain or interfere with the
employees' exercise of rights guaranteed by the Act.14
Upon the basis of the foregoing, we would dismiss the complaint in
its entirety.
13 Even if Poe asked Wright whether she had attended the union meeting, as alleged,
we would not find such an interrogation by a minor supervisor in the casual, friendly
context in which it occurred, riding to work in a car pool, a violation of the Act. Blue
Flash Express, Inc., 109 NLRB 591.
14 Blue Flash Express, Inc, supra.
1672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 the International
Ladies' Garment Workers' Union, AFL, or any other labor or-
ganization of our employees, by discharging or in any other man-
ner discriminating in regard to their hire or tenure of employ-
ment or any term or condition of employment, because of their
union membership or activities.
WE WILL NOT interrogate our employees concerning their ac-
tivities in connection with International Ladies' Garment Work-
ers' Union, AFL, or any other labor organization, in a manner
constituting interference, restraint, or coercion or threaten eco-
nomic reprisals by reason of their organizational activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organ-
ization, to form labor organizations, to join or assist Interna-
tional Ladies' Garment Workers' Union, AFL, or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities, except
to extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of
employment, as authorized by Section 8 (a) (3) of the Act.
WE WILL offer to Jenelle Griffin immediate and full reinstate-
ment to her former or substantially equivalent position without
prejudice to her seniority or other rights and privileges, and make
her whole for any loss of pay she may have suffered as a result
of the discrimination against her.
All our employees are free to become or remain members of the
above-named Union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of mem-
bership in or activity on behalf of any labor organization.
SCHOOL-TIMER FROCKS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
SCHOOL-TIMER FROCKS, IN C. 1673
Intermediate Report
STATEMENT OF THE CASE
Upon a second amended charge duly filed by International Ladies' Garment Work-
ers' Union, AFL,' herein called the Union, the General Counsel of the National
Labor Relations Board, by the Regional Director for the Eleventh Region (Winston-
Salem , North Carolina), issued a complaint dated January 7, 1954, against School-
Timer Frocks, Inc., a corporation herein called the Respondent, alleging that the Re-
spondent had engaged in and was engaging in unfair labor practices within the
meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National
Labor Relations Act (61 Stat. 136), herein called the Act. Copies of the complaint,
charge, and a notice of hearing were duly served on the parties.
With respect to the unfair labor practices the complaint alleged, in substance, that
on various dates between September 22, 1953, and October 2, 1953, the Respondent
discharged or transferred 12 named employees and has since refused them reinstate-
ment because of their membership in and activities on behalf of the Union or because
they engaged in concerted activity for the purposes of collective bargaining or other
mutual aid or protection; that the Respondent has engaged in various acts of inter-
ference, restraint, and coercion in violation of the Act; and that by the above conduct
has violated Section 7 of the Act, more particularly Section 8 (a) (1) and (3) thereof.
The Respondent duly filed an answer in which it denied that it had engaged in any
of the unfair labor practices alleged in the complaint.
Pursuant to notice a hearing was held before Louis Plost, the duly designated Trial
Examiner on February 16 to 25, 1954, at Charleston, South Carolina.
At the hearing all the parties were represented and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent
to the issues, to argue orally upon the record, and to file briefs, proposed findings,
and conclusions. Oral argument was waived. A date was fixed for the filing of
briefs, and/or proposed findings and conclusions, with the Trial Examiner.2 A brief
has been received from the Respondent.
At the opening of and at various times during the hearing motions to amend the
complaint were granted without objection and likewise at the close of the hearing
the Trial Examiner granted a motion by the General Counsel to conform the plead-
ings to the proof with respect to names, dates, spelling, and like matters.
At the close of his evidence-in-chief the General Counsel moved to dismiss the
complaint insofar as it alleged that one Harvey Talbott had been discriminatorily dis-
charged. The motion was granted without objection.
At the close of the Respondent's evidence the General Counsel moved to amend
the complaint to allege that one Mildred Adkins had been discharged by the Respond-
ent on the preceding day because of her union membership and activity and because
she had testified in the hearing and that such discharge was in violation of Section 8
(a) (3) and (4) of the Act. The motion was granted without objection and the
matter was thereafter fully litigated.
At the opening of the hearing the Trial Examiner granted a motion by the
Respondent to permit no "off the record" discussions and ordered that all spoken mat-
ter be recorded by the official reporter. At the close of the General Counsel 's case-
in-chief and again at the close of the hearing motions by the Respondent to dismiss
the complaint were denied.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges and the Respondent admits that the Respondent is, and has
been , at all times material herein, a corporation organized under and existing by
virtue of the laws of South Carolina, with its principal office and place of business
located at North Charleston, South Carolina, where it is engaged in the manufacture
and sale of children's clothing. The Respondent, in the course and conduct of its
business at Charleston, South Carolina, as described above, annually purchases, and
causes to be shipped, raw materials, goods, equipment, and supplies of a value in
3 The charge was filed October 5, 1953, the first amended charge October 26, 1953, and
the second amended charge filed January 4, 1954
2 The date was extended to April 12, 1954, by the Chief Trial Examiner
1674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
excess of $300,000, of which in excess of 50 percent originates at points and places
outside the State of South Carolina, and the Respondent annually produces and sells
finished products valued in excess of $500,000 of which in excess of 90 percent
represents shipments from its Charleston, South Carolina, plant to points and places
outside said State.
II. THE ORGANIZATION INVOLVED
International Ladies' Garment Workers' Union, AFL, is a labor organization
within the meaning of Section 2 (5) of the Act, and admits employees of the Re-
spondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary
The expression "making production" appears throughout the record used by both
the General Counsel and the Respondent as a standard to measure the value of an
employees' services to the Respondent.
Under the provisions of the Fair Labor Standards Act the Respondent is required
to pay its employees a minimum wage of 65 cents an hour for learners and 75 cents
an hour for experienced workers. The minimum must be paid regardless of the
amount of work performed. The Respondent, following a practice common in the
garment manufacturing industry, operates on a piecework system under which em-
ployees performing the various operations in the manufacture of a garment are paid
a fixed amount for a certain number of finished operations and if the amount so
earned, "on piecework," exceeded the legally fixed minimum the excess is paid to the
worker, if the operator's piece rate earnings are less than the legal minimum the
difference is "made up" to the employee by the Respondent. In one instance the
employee has "made production" and earns a bonus, in the other the Respondent
is required to "make up."
The piecework rate is set by the Employer.
The record shows that if an employee "on piecework" ran out of work it was
customary to assign the employee to hourly rated work rather than send her home,
likewise if an employee who "made production" was transferred to a different task
the employee was guaranteed her former earning rate for a period calculated to be
sufficient to master the new job.
Tennessee Doss, the Respondent's personnel manager, testified that 75 percent
of the employees "made production." The Trial Examiner called for corroboration.
A summary of the most recently completed payroll was introduced by consent of
all parties. This payroll, for the period ending February 13, 1954, contained the
names of 183 production employees. Of these 101 failed to "make production"
and required "make up" to bring them to the legal minimum wage.
Apparently less than one-half of the employees exceed the legal rate of pay.
B. The discriminatory discharges
1. Jenelle Griffin
Jenelle Griffin testified that she was hired by the Respondent as an experienced
sewing machine operator on March 19, 1953, and was discharged on September 22,
1953; that when she was hired she was not told of any specific company rules; that
she worked at various sewing operations and that her work was not criticized by
her supervisors; that during the month before her discharge she was transferred
to a different operation on a different machine and was guaranteed her previous
earnings, however, she had difficulty with the machine which failed to operate and
she was not criticized because she could not "make production" on this machine,
that for approximately a month prior to her discharge various employees discussed-
the possibility of forming a union. Apparently this was no more than talk.
Griffin testified further that on September 22, before work began she gave "three
or four" union application cards to a fellow employee for distribution and that
during the 10 a. m. rest period she was in the back restroom with "maybe ten girls,"
whom she asked to join the Union and to whom she gave application cards; that
while she was so engaged in the restroom, Supervisor Christine Grimes entered the
room and was handed a card by one of those present. Grimes examined the card
and handed it to Griffin and then left the room, having made no comment whatever.
According to Griffin during the lunch hour:
after we had finished our lunch I was on my way to the rest room and
Christine Grimes called me and I was even with the table where she was sitting
and she called me and told me that Ida Mack wanted to see me, that she thought
SCHOOL-TIMER FROCKS, INC. 1675
she wanted some union cards, and I went over to where they were and she
told me that it was Ida wanted some union cards and I walked over to where
Ida was and gave her about ten cards.
Q. Was that during the lunch period?
A. Yes, and Ida taken the cards and put them in her purse and then I went
to the rest room.
Upon leaving employee Mack, to whom she gave the cards in the supervisor's
presence , Griffin went to the restroom where she spent the balance of the lunch
period distributing union application cards. Griffin also testified that during the
afternoon work period , employees came to her for cards which she refused to give
them , telling them to see her after work.
Griffin testified that at about 3:30 p. m., Mr. Dupuy, the sewing room foreman,
came to her machine and said to her:
"Jenelle, I thought you were a pretty good gal," and I said, "Well, maybe
I am," and he said , "Well, do you have any more of those damn union cards
with you?"
Q. And did you make any reply?
A. I told him that I thought that was my business.
Q. What if anything else did Mr. Dupuy say?
A. He told me that if I wanted to keep my job with the plant that I would
have to keep the cards out of the plant . He said, "If you want to work for a
union shop why don 't you go to Manhattan Shirt Company, I am sure you
could make anywhere from fifty to seventy-five dollars a week ." I told him
as long as I was doing work for the union on my time and not on the company
time that I considered it my business.
Q. Did he say anything about that: In reply to that?
A. No, he walked away from the machine.
Dupuy was not called. Griffin's testimony regarding this incident , undenied, is
,credited by the Trial Examiner.
It is clear that September 22 was the first time union application cards were
distributed in the plant.
Griffin further testified that at 4:25 p. m. Supervisor Betty Munn sent her to the
office of Personnel Director Doss who in turn sent her to the office of Alexander
Lofton, the plant manager . According to Griffin:
Mr. Lofton asked me to have a seat, and he told me that some time ago that
he told me then , he said, "You know, Jenelle, you have done an unpardonable
deed today."
Q. Did you say anything?
A. I asked him what did he have reference to or what was he referring to,
and he told me, he said , "Why you know you brought union cards in the plant,"
and he said, "Some time ago something was said and reported to Tennessee
and we thought that you were unjustly accused ," and said, "We did not do
anything about it," and I said, I asked him about my work and he told me that
I was one of the best operators , that it was very good and that my work was
satisfactory , and then he told me that he could not or would not have a union
working in the plant , he gave me my two checks, the check for the week before
and the check for September 21st and 22nd.
Griffin further testified that on the last day of her employment her machine was
"broken down" practically all day. She denied that she interfered with the work of
other employees , spent an undue amount of time in the restroom , or distributed
union cards in the plant at any other time than rest or "break" periods or at
lunchtime.
The complaint alleges in effect that Jenelle Griffin was discharged by the Respond-
ent because of her union membership and activity and because she engaged in con-
certed activity within the meaning of the Act.
To refute this the Respondent adduced a great deal of testimony with respect to
Griffin's work , habits, conduct , language, traits of character , as well as oblique in-
sinuations with respect to her marital affairs, however , after all of such testimony
had been spread on the record , Tennessee Doss, the Respondent 's personnel man-
ager, testified that Griffin was not discharged because of any specific act or omission
testified to by the Respondent 's witnesses. Doss disclosed the reason for Griffin's
discharge to be as follows:
Q. (By Trial Examiner .) Then in reality she was just discharged for what
she did the last day, was she, that she was there?
A. Yes.
1676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Doss testified that the specific conduct which caused Griffin's discharge to be
Q. (By Trial Examiner.) Could you tell me why Jenelle Griffin was fired?
A. For loafing during working hours and spend too much time in the rest-
room and for soliciting for outside organizations during working hours.
Q. Over what period of time did this loafing, for which she was discharged,
take place?
A. Well, for what she was discharged was just for that one day but she had
been doing that several days.
Alexander Lofton, the Respondent's manager who actually discharged Griffin,
testified:
Q. Now Mr. Lofton, with respect to Jenelle Griffin, would you state the rea-
son for her, or reasons for her discharge?
A. She was discharged for not staying at her working place the proper amount
of time during the day, or in other words being away from her work place
excessively during the day and interfering with the work of other employees.
Lofton testified to various derelictions by Griffin but qualified his testimony by
statements that his knowledge came from the supervisor 's reports ; that he never
warned Griffin; never noticed her interfering with others; never gave instructions
to any supervisor to speak to Griffin "regarding her work, production or quality of
her conduct in the plant"; and finally testified:
I did not fire her because of her failure to make production. It was due
to an accumulation of things, but particularly those that I mentioned.
On the state of the record the Trial Examiner deems it unnecessary to discuss
further any of the alleged conduct of Jenelle Griffin prior to September 22, 1953,
the day of her discharge, in order to determine the cause thereof.
It has been found herein that as to the events of September 22, Griffin testified
that during the 10 a. in. "break" or rest period she distributed cards to various em-
ployees who were in the back restroom and that while she was so engaged Super-
visor Christine Grimes entered the room, was given a card, which she examined,
returned, and then left without making any comment.
Supervisor Grimes testified that she entered the room, received a card which she
returned, and then left. Grimes testified that she reported the incident to Supervisor
Eileen Davis. Grimes did not fix the hour of the incident.
Frances Hicks testified substantially as Griffin and Grimes, and added that after
Grimes left, word was sent in that the janitor wished to clean the room and that
some of those in the room, including Griffin, then went to the front restroom where
Griffin continued to talk about the Union until Supervisor Eileen Davis entered
and the conversation ceased.
Hicks placed the entire occurrence as being "during working hours," not during
the 10 a. in. break.
Geneal Mott testified to the back restroom incident and further that she and her
sister accompanied Griffin to the front restroom. She fixed the time of day as "dur-
ing working hours."
Jeanette Mott testified as did her sister.
Shirley Shoemaker testified that she was in the front restroom, when Griffin
entered it, gave her a union application card, and told her to "hide it" and to "bring
it back tomorrow." Shoemaker testified further that a supervisor, whom she could
not name, then entered whereupon "everybody left with the cards in their pockets "
Betty Hicks, who testified that she was a participant in only the front restroom
incident , placed it "during working hours."
It is of interest to note that Betty Hicks opened her testimony as follows:
Q. (By Mr . Gaud.) Were you in the restroom with Jenelle Griffin and the
other girls on the day that Jenelle was discharged?
A. I was in the second restroom in the front when Jenelle and the other
three came in. [Emphasis supplied.]
Bertha Blanton, fixing the hour as "before 10 o'clock ," testified to the incident
involving Grimes which others placed as the first in point of time as follows:
Q. Were you in one rest room or both rest rooms?
A. One.
Q. Which rest room were you in?
A. The last one. [Emphasis supplied.]
Q. By the last one which part of the plant do you mean?
A. Down at the back . [ Emphasis supplied.]
SCHOOL-TIMER FROCKS, INC. 1677
Regardless of Blanton's evident error, the fact that she used the expression "the
last one" and Hicks the expression "the second rest room," considering that neither
participated in both incidents, is, in the opinion of the Trial Examiner, worthy of
note.
With respect of the restroom incidents, Supervisor Eileen Davis testified as follows:
Q. Did you see her [Griffin] in the washroom that day?
A. Yes, sir, I did.
Q. Will you please tell the Court about that?
A. In the morning Christine Grimes went into the restroom and came out
and told me that they were having union talk in there and I went into the rest-
room, very calmly walked in and over and washed my hands and turned
around and I noticed there were a good many girls in there and I said, "Girls,
I think we had better scatter out and go back to work." I returned back to the
unit.
Q. Do you recall whether that was during a break?
A. No, sir, that was not during a break, it was during working hours.
In evaluating the testimony regarding the restroom incident the Trial Examiner
is mindful that the two most responsible witnesses, from the Respondent's point of
view, namely, Supervisors Grimes and Davis, presented a quite different picture as
to place than did the other witnesses, in fact it may be said that in reality their testi-
mony corroborated Griffin who denied going from the back room to the front.
The Trial Examiner is mindful that Grimes, in her testimony, did not fix the time
of the incident at all, testified that after seeing the union cards she reported to Davis
who in turn testified that Grimes "came out and told me they were having union talk
in there and I went into the rest room." If the English language is a medium for
conveying meaning, this can only mean that the same restroom is referred to by both
supervisors, and is not designated.
Davis was not asked to specify the room in which she found Griffin, which in the
opinion of the Trial Examiner strongly supports the obvious meaning of her testi-
mony.
As indicated above the Trial Examiner does not attach any considerable value to
the testimony of Bertha Blanton and Betty Hicks.
There remains the testimony of the Mott sisters and Frances Hicks, who testified
that some of those originally in the back room went to the front restroom and
were there dispersed by Davis, all "during working hours."
From his observation of the witnesses, the nature of the testimony, and on the
entire record considered as a whole, the Trial Examiner is persuaded that the two
supervisors are the more reliable witnesses and that their testimony can only mean
that one room not specified, was involved.
In the opinion of the Trial Examiner the time of the incident is under all the facts
herein entirely immaterial. Davis testified that she warned named employees not
to spend too much time in the restroom and also named the employees she recalled
as being in the restroom with Griffin at the time she sent them back to work. None
of these employees other than Griffin had been discharged at the time of the hearing.
It was admitted, by the Respondent, that employees were permitted to go to the
restrooms at other times than rest periods or "breaks."
Clearly then the Respondent's objection to Griffin's conduct was not because she
was in the restroom, no matter what the time, but arose from the fact that she
solicited union membership.
It is clear that September 22 was the first instance of distribution of union cards
in the plant and that Griffin was the first employee to make such distribution.
Had the union solicitation been made during Griffin's free time, during "breaks"
or at lunchtime, the Respondent could have had no cause to discharge her. Pre-
suming that the solicitation was made during working hours, it is well established
by the Board, with court support, that unless the Respondent had an established rule
forbidding all character of solicitation during working hours, under the circumstances
of this case it had no cause to discharge Griffin for such activity.
Supervisor Eileen Davis testified that rules governing employee conduct existed
but none were posted. She testified as to these understood rules as follows:
The rules and regulations in my unit is that we be at our machines promptly
ready to go to work at 8 o'clock when the whistle blows. Another rule is that
we do not spend more than five minutes in the restroom on company time.
Another rule is that we do not disturb the operators behind, in front or by the
side of us by talking too much. And another rule is that we conduct ourselves
in a very nice way, that we have no dirty talk in our unit. Another rule is
1678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that promptly after the horn sounds at the break, that we return to our ma-
chines and go to work.
Personnel Manager Doss testified that with the exception of "once" for the Com-
munity Chest the Respondent had permitted no solicitation in the plant but later
admitted that collections were made.
Doss testified on cross:
Q. Now is there any rule about solicitations on company time at the plant?
A. There is no written rule.
Q. Is there any posted rule?
A. No.
Q. Is the supervisor ever instructed to instruct the girls about soliciting on
company time for Red Cross or death benefits or flowers or birthdays or
anniversaries?
A. If the supervisors have told them I don't know.
Q. Did you ever instruct them to tell them?
A. I have instructed the supervisors that there was to be no soliciting on
company time.
Q. What supervisors did you so instruct, and on what date?
A. I could not tell you that.
Doss further testified that no one had ever before been discharged for any such
soliciting.
On the entire record the Trial Examiner finds that the Respondent had no estab-
lished bona fide rule forbidding solicitation and further finds that employees were
permitted to and did solicit funds for various causes and were not discharged therefor.
The Trial Examiner further finds that being in the restroom during working time
was not prohibited by the Respondent and that the fact that Jenelle Griffin was in
the restroom, as herein found, during working time was not the reason for her
discharge. The Trial Examiner further finds on all the evidence considered as a
whole that Griffin's distributing of union application cards and soliciting members
for the Union was a contributing factor in her discharge.
Eileen Davis testified that following the restroom incident she "watched Jenelle
[Griffin] constantly," saw her "going and coming from the restroom" and saw
her go into another unit and "visit girls at their work," and further that during
such absence "I timed her for thirty minutes at one time."
Davis testified she did not speak to Griffin regarding these derelictions but did
report the conduct to Doss.
Doss testified that "because I had been told that she [Griffin] was running into
the restroom too much and was on the inside giving out union cards," she observed
Griffin "from time to time" during the entire day, clocked her away from her ma-
chine for one 45-minute period and observed that:
She was getting up and going from girl to girl talking to girls on the unit and
going into the restroom and staying longer than she was supposed to.
Doss testified September 22 was the first time she had heard that Griffin distributed
union cards.
Doss further testified that she did not warn Griffin regarding her conduct because:
I figured a woman that had worked as many years as she had, it is understood
that she goes there to work.
Doss testified she reported to Lofton and recommended that Griffin be discharged.
Griffin testified that on the last day of her employment her machine "broke
down," that Dupuy was informed and permitted her to do "company work" that is
work for which she was paid her guaranteed hourly rate, which was higher than
the legal minimum, and that she worked steadily all day.
Doss testified that Griffin earned only $2 on her last day and was paid "make up"
at the rate of 80 cents per hour.
If Griffin's machine was broken down and if she worked at hourly rated tasks
most of the day there is no real inconsistency in the testimony on this point.
Dupuy who would have been able to shed light on the matter was not called,
however , Griffin 's immediate superior , Betty Munn, testified:
Q. Do you recall anything taking place with respect to Jenelle Griffin on
September 22, 1953?
A. She was away from her machine a lot on the 22nd day of September and
did a lot of talking.
SCHOOL-TIMER FROCKS, INC. 1679
On cross-examination Munn testified:
Q. How did you happen to know that Jenelle Griffin was away from her
machine?
A. Well, whenever they work on that machine naturally I notice, she was
on a special machine.
Q. You never watched her personally?
A. I did not go to her personally.
Q. You did not warn her personally?
A. I did not go to her personally.
Q. You did not go there?
A. No.
In the opinion of the Trial Examiner Munn's testimony can hardly be said to cor-
roborate either Davis or Doss.
The Trial Examiner finds that the Respondent's evidence does not refute Griffin's
testimony to the effect that her machine was "broken down" on her last day of
employment and that she spent most of the day on hourly rated work. The Trial
Examiner so finds.
Novaleen Filyaw (called by the Respondent) testified as follows:
Q. Do you recall when Jenelle Griffin was fired?
A. Yes.
Q. Did she have a conversation with you that day?
A. Yes.
Q. Will you please tell His Honor about that?
A. Well, we were in the wash room, I was washing my hands fixing to come
out and she asked me, said, "Are you interested in the union activity," and I
said, "Yes," and she said, "Would you like to have a union card to sign," and I
said , "Yes," and so she brought it to me that day at lunch.
According to Filyaw this incident occurred during "working hours." Other than
this, the record is barren of direct testimony as to Griffin "bothering" employees.
Manager Lofton, who actually discharged Griffin,3 denied that he told her that
she did an unpardonable deed when she brought in the union cards" or that "he
would not have a union worker in the plant." Lofton testified all he said to Griffin
was:
I told her that, to the best of my recollection, I told her that she had been in-
terfering with the work of other employees and she had been away from her
machine a large part of the day, and that because of that, and I recall that
when-she asked me a question, I don't remember what it was, but that was all
the reasons I gave.
He further testified "I suspected that Jenelle Griffin was either a member or com-
mitted with it [the Union] in some way" and that he had been told by Doss, on
September 22, that Griffin was distributing cards.
Lofton testified to plant rules as follows:
Q. Now do you have any rules posted or, withdraw that. At the time that
Jenelle Griffin was discharged, had you instructed employees either yourself
or through your attorney Mr. Gaud as to what they could or could not do with
respect to the work of union activity on company time?
A. I had no written instructions but I had given oral instructions to the en-
tire plant on two occasions.
Q. Was that prior to Jenelle Griffin's discharge?
A. Yes, it was.
At a later point in his testimony Lofton testified:
Q. (By Mr. McCormick.) Now you have testified that you had informed
the employees that they were not to engage in union activity on company time
prior to Jenelle Griffin's discharge, do you recall when you gave that?
A. No, I did not testify that. I testified that with regard to smoking in the
washroom, as I remember your question.
Q. Well, then you did not then?
Mr. GAUD: If counsel please, I did not go into a stipulation of that before
because I wanted the witness to bring that out in as much as I think he misun-
derstood your question , we are perfectly willing to stipulate that there was no.
3It is worthy of note that only Griffin was discharged by Lofton , all other discharges
involved were by Doss.
1680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advice given the employees prior , I believe, to my talk on September 24, which
was after Jenelle Griffin was discharged , about what they could or could not do
concerning union activities inside or outside of the plant.
On the entire record the Trial Examiner is persuaded and finds that Jenelle
Griffin's version of her conversation with Manager Lofton at the time of her dis-
charge represents the more accurate version thereof and credits her testimony with
respect thereto.
Assuming arguendo that Lofton discharged Griffin for an "accumulation" of
reasons, although the Trial Examiner cannot be persuaded on this record that such
is the case , however, so assuming arguendo that some of the reasons advanced by
the Respondent for Griffin 's discharge are valid, still as it has been found that one of
the reasons for Griffin's discharge was her fully protected activity on behalf of the
Union the Trial Examiner cannot separate the legal from the illegal reasons but must
base a finding on the illegal act.
It has long been established that where legal and illegal causes exist they need not
be separated or weighed as offsetting one another.
The doctrine has been reaffirmed very recently by the United States Court of Ap-
peals for the Second Circuit 4 wherein Judge Medina speaking for the court holds:
If employees are discharged partly because of their participation in a campaign
to establish a union and partly because of some neglect or delinquency, there
is nonetheless a violation of the Act.
Upon the entire record in the case , the evidence considered as a whole and his
observation of the witnesses while testifying the Trial Examiner finds that on Sep-
tember 22 , 1953, the Respondent discharged Jenelle Griffin because of her mem-
bership in and activities on behalf of the Union and because she engaged in con-
certed activity looking toward collective bargaining by the Respondent 's employees
with their employer and further finds that such discharge was violative of the rights
guaranteed in Section 7 of the Act, more particularly Section 8 (a) (3) thereof.
2 Dorothy Buck
Dorothy Buck began work for the Respondent on February 9, 1953, and was
discharged October 7, 1953. Buck testified that she rode in a car pool with Super-
visor Naomi Mimms, that she attepded a union meeting October 1; and that the
next day in the car Mimms asked her if she had been to the meeting and how many
were there, adding that employee Mildred Adkins had told her "that about 15
attended."
Mimms testified:
She said she had been to the meeting and I asked her how it was , and she said
it was nice, the man had given a nice talk , and that is all I said.
Yes, they were talking about it [the Union] that afternoon and so I told some
of them that Mildred said there was fifteen girls at the meeting.
Inasmuch as Mimms admitted part of Buck's testimony and as Mimms did not
impress the Trial Examiner as reliable while Buck did the Trial Examiner accepts
Buck's version as true and finds that on October 2, Mimms inquired into Buck's
union activity and sought information with respect to the union meeting.
Buck further testified credibly that Mimms stated that she could tell who had
signed cards for the Union "by the way they talked" and made the statement that
"Tennessee [Doss] and Mr. Lofton said they would close the plant if the Union
came in."
Buck further testified that while riding with Mimms she ( Buck ) always expressed
herself as being in favor of the Union.
Buck testified to the following employment record:
Well, some in January , and in June I stayed off, my nerves were getting bad
and I stayed off and went back some time in July, and Tennessee handed me
my card and I punched in and went to work as usual and worked about a
week, and I seen that I was not able to work so I stayed off again and went
back some time in August. So she hired me back, and she said , "Dorothy,
I am hiring you back but the only thing that worries me about you is that
you are too slow."
4 N. L. R. B v. Jamestown Sterling Corp., 211 F. 2d 725 (C. A. 2).
SCHOOL-TIMER FROCKS, INC. 1681
She further testified that on October 5 she was moved to a different unit and
told Supervisor Eileen Davis she would not work there and that:
She [Davis] called Mr. Dupuy over there and I said, "I will not go over there,"
and he said "Why," and I said, "Because we do not get along," I said, "We
argue from the time we leave the plant until we get home until we come to
the plant the next morning," and he said, "Well, we are doing it for your good,"
and I said, "Well, if I have got to go over there I go home," and he said, "No,
don't go home," he said, "We will put you somewhere on another machine,
we will put you somewhere," and he called Eileen and told her to put me back
in Eva Poe's unit ," and she carried me back there and put me on a machine
and started me off on the cuffs and dresses. She showed me about two of
them, I worked on two days and then I was fired on October 7th.
On October 7, Buck was sent to Doss' office who discharged her because she was
"too slow." Buck testified frankly that she "never made production" and that:
When she [Doss] hired me back the last time she said, "Dorothy, I am going
to hire you back, all that worries me about you is you are too slow."
Q. When was it she hired you back?
A. Some time back in August.
Doss testified:
She was very slow and at no time made her production. She had worked there
one time previously and was off and when she came back and worked, she
wanted her job back and I told her she could have the job on a two weeks trial
basis and if she could not prove that she could make her time in that time I
would have to let her go.
Doss testified further that she had no knowledge of Buck's union membership
when she discharged her. Regardless of Doss' testimony the record is clear that
the Respondent had chargeable knowledge of Buck's union membership from Minims.
The Trial Examiner so finds.
Here we have an employee who admits she did not "make production " and was
rehired after an illness on the express condition that she improve the speed of her
work and did not do so. In addition thereto the employee volunteers that she
refused to work where assigned.
There seems to be ample cause for her discharge.
However, the Respondent does not advance Buck's refusal to work where assigned
as a cause for her discharge but relies solely on the fact that she was slow.
Admittedly Buck did not "make production" but although she was rehired in
August on a 2-week trial she was still working on October 7. The General Counsel
questioned Doss on this. Doss testified:
Q. I believe you testified that Mrs. Buck was hired on a two-weeks trial basis?
A. Yes.
Q. Did she actually work?
A. She worked about four weeks.
Q. How was her work during the first two weeks?
A. It was slow.
Q. Why was she not fired then?
A. Because I felt sorry for her and felt I would give her a longer chance
and gave her four weeks instead.
It would seem that the Respondent did not forget compassion in its corporate pur-
suit of business profits. Doss' decision to "temper the wind to the shorn lamb" is
indeed admirable, and the Trial Examiner believes that the Respondent would have
continued to stretch Buck's 2-week trial into permanent employment but for the added
factor of Buck's union membership and her outspoken desire for union organization.
The Trial Examiner is persuaded that it was Buck's union membership which
"hardened the heart" of the Respondent's personnel manager and recalled to her mind
that a valid excuse for Buck's discharge had existed for a period of a month or more.
The excuse, Buck's work record, was sufficiently valid but the added weight-
making factor, Buck's union membership, was not. There is here another case of a
valid and an invalid reason for a discharge covered by N. L. R. B. v. Jamestown
Sterling Corporation.5
The Trial Examiner so finds.
5 See footnote 4, supra.
338 207-55-vo l 110-107
1682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner finds that on October 7, 1953, the Respondent discharged
Dorothy Buck because of her membership in and activities on behalf of the Union in
violation of Section 7 of the Act, more particularly Section 8 (a) (3) thereof.
3. Ann T. Wright
Ann T. Wright testified that she was first employed by the Respondent in mid-
August 1953; that she was hired as an experienced operator; that she worked at
various sewing jobs, being changed frequently, she testified:
I would work on one style for maybe thirty minutes and I would work on belt
fronts on dresses and maybe putting skirts on dresses next, you never knew what
you were going to do next.
Wright further testified that she attended the first union meeting held September
24, and signed an application card the following night, that thereafer she talked about
the Union during "break" periods, lunch hour, and after work and obtained the
signatures of two fellow employees to union application cards.
Wright testified that on September 25, the day following the union meeting, she
was coming to work in an automobile driven by Supervisor Eva Poe (Wright and
others being members of a car pool with Poe), and Poe asked her if she had
attended the meeting and "generally discussed it."
Supervisor Poe denied that she ever questioned Wright regarding the Union and
testified that she never discussed the Union with any of the car pool riders, naming
those who were in the pool, among them employee Carrie Varner, however Varner,
who was employed in the plant at the time of the hearing, testified that at one time
she heard Poe tell one of the members of the car pool, while they were en route,
"don't you dare sign a union card, that is the best way I know for you to lose your
job."
Wright further testified that on the same day Poe questioned her regarding her at-
tending the union meeting, Supervisor Betty Munn also asked her if she had attended
the meeting and what she thought of the Union.
Munn testified that after Jenelle Griffin's discharge Wright came to Munn and spoke
to her regarding the Union as follows:
Well, it was one day right after 12:30 and I was going down the alley and Ann
was helping the service girl. a lot and she got in touch with me and said, "Betty,
you know 1 am getting pretty popular around here," and said, "Jenelle Griffin"-
that is when Jenelle was coming to the outside of the plant and talking to the
girls, and she said, "Jenelle asked me to come out," and said "I did not even
know Jenelle knew me," and said "Jenelle invited me to a union meeting," and
said "And I am not saying anything for it and am not saying anything against
it but I am not going to join the union until I know what it is," and she said she
never had belonged to one and she wanted to be sure what they stood for, and
I had work to do and I had girls waiting for work and I delivered the work, and
that was the conversation.
Wright testified that on September 26 she became ill and was hospitalized, the Re-
spondent being informed of her illness; on October 12, having been discharged from
the hospital and told by her doctor that she could return to work, she telephoned the
plant and talked to Doss who told her that no work was available but stated that she
would "let her know" as soon as there was something, that she called Doss again on
October 13 and was told the Respondent was "still short of work", that on October
14 she went to the plant and talked to Doss who told her that "before I can let you
go to work" Wright had to "change her attitude" and explained she meant that Wright
had refused to do work assigned to her. Wright denied to Doss that she had refused
to do any work assigned to her. According to Wright, Doss remarked "that the
Union had come in and upset all the girls" and further testified:
Q. Was anything else said by Tennessee concerning the union?
A. Yes, she asked me, I think at this time, I am not sure but I did tell her in
that conversation that I had joined the union, I had signed a union card, that 1 did
not know whether she knew it or not but I wanted to be honest about it, . . .
On October 19, Wright again called Doss when according to Wright the following
conversation took place.
In each one of those conversations I asked her did she have work for me to do,
and she said that she did not have anything for me to do at the time but she kept
putting me off and the last time I called on the 19th of October 1953, I asked her,
"Tennessee, do you have any work for me to do, or when can I return to work,"
SCHOOL-TIMER FROCKS, INC. 1683
and she said, "No she did not have any work for me to do at that time," and I
asked her when did she think she would or would I ever be able to come back
to work and she said "it would be a long time before I could return to work,"
and I said "Well , is there any need of me calling back ," and she said, "Well,
I may as well be truthful, I will never have anything for you to do."
Personnel Manager Doss testified Wright was not reemployed:
Because she refused to do the work she was asked to do and when she came in
I went and asked her supervisor if she wanted her back and she said no.
Betty Munn, who was Wright's supervisor, testified with respect to Wright's work
as follows:
Q. (By Mr. Gaud.) Did Ann Wright-was she a steady operator?
A. She was a new operator and it is very seldom we take a new one and put
them on regular but I thought she had the makings of a good operator an&
changed her and put her on a Metropolitan.
Munn testified that Wright was not satisfied with this change but after being told
that the work would be "regular":
the first day she worked right good and I worked with her practically all
day and the second day she was working and she said, "Betty, this is killing
me in my nerves and if you don't take me off I am going to quit." So I went
to Mr. Dupuy and told him about it, and he told me to take her off and put her
on-
According to Munn this change took place in July "about three weeks" after
Wright was hired and she testified, "I would estimate she worked six weeks"; she also
testified that Wright "never made production."
Doss testified, without contradiction, that Wright worked in the plant only 18
working days, 3 full consecutive weeks, and 4 additional days. Wright was hired
in August.
Other than Munn's cited testimony there is nothing in the record to show that
Wright refused to do any work assigned to her. It is quite clear that if Munn's
testimony is accepted it does not show a refusal to do work, but a physical inability,
a fact apparently recognized by Dupuy who ordered Wright be transferred.
Munn was of course quite wrong as to the period of Wright's employment.
Munn did not impress the Trial Examiner as a reliable witness. Wright, on the
contrary, created an impression of complete forthright honesty.
On the entire record and his observation of the two women the Trial Examiner
does not credit Munn's testimony, insofar as it may be intended to show that Wright
refused to do the work assigned her and finds that Wright did not so refuse to do
her assigned tasks.
The Trial Examiner further credits Wright's testimony to the effect that on Sep-
tember 25, 1953 , Munn questioned her with respect to her attending a union meet-
ing and her opinion of the Union and rejects Munn's contrary testimony.
Weighing the testimony of Wright and Poe with respect to Wright's testimony
that Poe sought information of her attending a union meeting (denied by Poe),
together with Poe's further testimony that she never discussed the Union in the car
pool, and with Varner's testimony as herein set out, the Trial Examiner on all this
testimony, the record as a whole, and his observation of the witnesses credits Wright
and finds that on September 25, 1953, Supervisor Poe inquired of Wright whether
she had attended the Union 's meeting on the preceding evening.
Doss testified Munn reported to her that "whenever she puts Ann [Wright] on
something she refused to do it." Doss further testified:
Q. When she refused to do the work and you received that report you did not
discharge her?
A. No, not right at that time.
Doss substantially corroborated Wright's accounts of her efforts to be put back
to work after she was discharged from the hospital.
Doss testified:
Q. Did you know at the time of Ann T. Wright's discharge whether or not
she had ever signed a union card?
A. No.
Q. Did you know at that time whether or not Ann T. Wright was a member
of any union?
A. No.
1684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Did you know at that time whether or not Ann T. Wright favored the
union form of organization?
A. No.
However, in her account of Wright's conversation with her while seeking work,
Doss also testified:
Q. Did you make any statement to her?
A. We were talking and she asked me, she said, "Tennessee, I have got some-
thing to tell you," she said, "I have signed a union card, and I want to know if
that had anything to do with this," and I said "It did not, that is up to you,
that is your affair and none of mine, and if I could bring you back to work I
would bring you back just as soon as if you had not signed it."
As between Doss and Wright the Trial Examiner credits Wright and finds that
where her testimony is in conflict with that of Doss, the version given by Wright
is the accurate account.
Conclusion
It is clear that the Respondent had chargeable knowledge of Wright's union ad-
herence both from the supervisors' questioning and from Wright's volunteered state-
ment to Doss.
It is clear that if the Respondent had cause to discharge Wright for any reasons
it advanced it failed to do so at the time they allegedly arose but did discharge
her after it had full knowledge of her union adherence, moreover, the Trial Exam-
iner has found herein that the reason given for Wright's discharge did not in fact
exist.
The Trial Examiner finds, on the entire record considered as a whole and in-
cluding his observation of the witnesses, that the reasons advanced by the Respondent
for refusing work to Ann T. Wright were not the real reasons therefor but were a
mere pretext and further finds that the Respondent refused work to Wright, thereby
in fact discharging her, because of her membership in and activities on behalf of the
Union, in violation of the rights guaranteed by the Act more particularly Section
8 (a) (3) thereof.
Inasmuch as Wright applied for work on October 12, 1953, and was refused work
by the Respondent on that day and at all times thereafter, the Trial Examiner will
recommend that any back pay found to be due Ann T. Wright shall be totaled from
that day.
4. Jessie Mackey
Jessie Mackey was first employed by the Respondent in July and was discharged
October 16, 1953.
Personnel Director Tennessee Doss testified Mackey was discharged:
Because she refused to do the work that was given her to do, causing confusion
between the girls and around the girls and causing such confusion on the unit
that the supervisor could not run the unit properly.
Doss admitted that Mackey "made production" and "was a good worker." She
further testified to a report made on Mackey "two weeks" before her discharge testi-
fying:
Eva Poe and Eileen Davis, that they had given her work and she refused to
do the work that was given her, and she wanted another operation that she
could not give her.
Q. What did she say about Mackey refusing to do work?
A. She just told me that she had given Jessie work and she had refused to
do it.
Q. Gave her what kind of work?
A. Setting cuffs.
Q. You did not think that was a serious infraction?
A. It was but that was the first time she had done that.
With respect to the "confusion" caused by Mackey, Personnel Director Doss
testified:
Q. Will you elaborate on that to His Honor: Exactly what confusion and
to whom did she cause it?
A. The way she was carrying on in the unit.
SCHOOL-TIMER FROCKS, INC. 1685
Q. Tell us what she was doing?
A. Well, I could not tell you all she said.
Q. Well, tell what report you got, she said.
A. The girls told me she was causing all kinds of confusion.
Trial Examiner: Tell what they said she was doing?
A. Swearing and profanity that they did not like around the work and they
knew was not allowed.
Q. Did you have a rule against swearing?
A. Yes.
Q. Was it posted?
A. It is not posted but it is understood.
According to Doss, she personally warned Mackey "a week before" and again on
the "second day" before her discharge regarding the use of profanity.
Jessie Mackey testified that prior to her employment with the Respondent she had
worked at another Charleston plant together with Supervisor Davis and Manager
Lofton and had received a letter from the Respondent asking her to contact the
Respondent for work.
Supervisor Eva Poe testified that when Mackey came into the Respondent's
employ Poe asked that she be assigned to her "because she was a good operator and
I had worked with her before."
Mackey testified that she had very few repairs and her work was never criticized.
It has been found that Doss admitted Mackey "made production."
Mackey testified that she attended only one union meeting, this was on October
13, and that on the following day in the plant, Supervisor Poe asked her if she had
attended the meeting. Mackey replied in the negative.
Mackey further testified that prior to the union meeting both Poe and Supervisor
Davis had told her "Mr. Lofton and Tennessee said they would close the plant
before a union would come in."
Both Poe and Davis denied making the statement. Poe did not specifically deny
asking Mackey if she had been to the union meeting, although she testified that she
never discussed the Union with Mackey.
From his observation of the witnesses and on the entire record the Trial Examiner
credits Mackey and finds that Poe did ask her if she attended the union meeting and
further finds that Poe and Davis told Mackey that the plant would be closed by
management rather than permit its unionization.
Mackey further testified that on October 16:
Eileen [Davis] came up and told me that Tennessee wanted to see me in
the office, and I says, "What for," and she said she did not know, and I said,
"Well, you don't want me to go now," and she said, "No, wait until you punch
out to go," and I went until time to punch out which was 4:30, and I went on
to the office and says "Tennessee," I says, "Do you want to see me," and she
said "Yes," and at the time being she had a check in her hand which I did not
know was mine, and she said, "Jessie, I am going to have to let you go," and I
says, "on what grounds," and she said, "Well, you are not making your pro-
duction and your work is dissatisfactory," and I said, "Well, Tennessee," I says,
"If I am not making production it is funny I am drawing it and if my work is
dissatisfactory I get very few repairs back," and then she said, "Well," she
said that she understood that I was trying to do Eileen Davis the same way that
my sister did her over at Charleston Manufacturing Company, and I said,
"Tennessee, did you say you hated a liar," and she said, "Yes," and I says
"Well, I don't care who told you that even if it was my sister," I said, "Has
told a lie," and she said, "Well, I will tell you what I will do, Jessie," she said,
"I will look into the matter over the weekend and call you at your mother's on
Monday," and I never heard from Tennessee since... .
According to Mackey that night she telephoned Supervisor Davis and told her
she had been "fired." Davis asked the reason and then stated she "did not know
anything about it."
Davis testified Mackey telephoned her and that she told Mackey that "I did not
know, [why she was discharged] it was probably because she fussed and complained
so much about the work and because she kept the other girls upset."
Although the resolution of this minor testimony can have little or no effect on
the final findings still the Trial Examiner, because of the impression he gained from
his observation of the two witnesses while testifying and from his evaluation of the
entire record as well as their testimony, feels that in all fairness he must state that
1686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he accepts the version of this incident presented by Mackey. The Trial Examiner
therefore does not credit Davis with respect to the telephone call.
Mackey testified she had never refused to do any work assigned to her or failed
to carry out orders and freely testified to the following occurrence, which according
to Mackey transpired "about a month" before her discharge. According to Mackey,
she was working with employee Madeline Legette and:
Madeline just looked up and said "Jessie," and pitched five or six top
dresses to me, and I said, "Madeline, I am not going to pick them up," and
she said, "Well, I am not," and I got up and went to Eileen, and we were
always laughing, me and Madeline both, and I said, "I will go to Eileen and
find out," and I told Eileen and Eileen then carried me and Madeline back
into the room and talked to us, and she said that we would both have to pick
it up, and I said, "No, we would have to see Tennessee before I would pick it
up," and we all three of us went to the office to Tennessee, and laughing, and
when we got there and Eileen said we had a matter to attend to, and so she
up and told Tennessee what had happened, and then Tennessee said, "Oh, you
are both acting like children, both of you go back out there and pick it up and
finish the bundle," and so we went back to the machine and Madeline picked
up one and I picked up the other and we got them all picked up and so I guess
in about five or ten minutes Tennessee came to the machine and said, "You
know what I have decided," and I said "What?" And she said, "I have decided
to bring you and Madeline an all day sucker, you are acting just like two little
babies," and we were all laughing, but it was not no bad news or anything
to it. It was mostly children's play, mostly.
Although this incident was not given specifically as one of the causes of Mackey's
discharge and in fact is denied as a cause by the supervisor who allegedly recom-
mended the discharge, still because of the time devoted to the affair by the Respond-
ent and the paucity of the evidence as to any other specific incidents wherein (as
Doss testified) Mackey refused to do work, caused confusion among the girls, such
confusion "that the supervisors could not run the unit properly," the Trial Examiner
concludes that the above-mentioned "Legette-Mackey" incident is the basis for the
Respondent's contention that Mackey was discharged for cause.
Supervisor Eileen Davis testified she recommended Mackey's discharge:
The reason I gave for wanting her discharged was because she was very hard
to get along with, she did a lot of arguing and complaining and kept other girls
upset around all about her and that took up too much of the supervisor's time
that we were not able to get to the point of inspecting out work, we spent entirely
too much time keeping down arguments.
Davis, without however giving any specific incidents, testified further, "I was
constantly reporting her for keeping the girls upset" doing so "most of the time
I saw Tennessee [Doss]," but she testified also that she could remember but one
time she actually reported Mackey.
With respect to the "Legette-Mackey" affair, which Davis did not see, Davis
testified:
. Mackey was pulling work from Madeline Legette's machine and she
pulled several garments and then Madeline Legette pulled the rest of the work
out of her machine and laid it over on the table beside Jessie, Jessie picked
the work up and threw it over at Madeline and Madeline threw the work back
at Jessie and from that it began, the tossing of the bundle back and forth
and it fell on the floor... .
The rest of her testimony with respect to the incident is substantially as Mackey's
account.
Eva Poe, under whom Mackey actually worked, testified that:
She spent quite a bit of time in the restroom and would cause confusion among
the workers, and use profanity.
Poe gave no incidents of Mackey being too long in the restrooms, but did testify
that "about a week" before Mackey's discharge, employee Cook complained to her
that Mackey "kept her a nervous wreck."
Cook, however, testified:
Q. Did she affect your work in any way?
A. Well, by talking to me she did because she was making her time and I
was not and I felt like if she would not talk to me so much I could make more.
SCHOOL-TIM ER FROCKS, INC. 1687
Poe testified that Mackey "caused confusion":
By complaining about the work If she got a set of collars that were sent
for her to stitch, if it was not just right as she thought it should be, she would
fuss about having to do it and complain and about other girls getting small
bundles and she did not and just continually uproar.
Q. Complained to you?
A. No, she did not complain to nze, just complained. [Emphasis supplied.]
Poe further testified she did not see who threw the bundle but that Legette
admitted doing so. Mackey refused to pick it up.
The rest of her account also is about as Mackey's except that Poe testified that
Mackey "was mad."
Poe testified that she did not recommend discipline for Legette but that 2 days after
the incident she recommended Mackey's discharge. She testified:
Q. Now, tell us why you recommended her discharged?
A. Because she used profanity and caused trouble and kept everybody in
an uproar and nobody could do their work.
Q. (By Mr. McCormick.) You really did not discharge her for this inci-
dent at all, did you9
A. That was just one thing. I recommended her discharged on Friday after
I seen I could not get any cooperation from her.
Poe admitted that Mackey "always made production."
In the opinion of the Trial Examiner there can be no doubt from the nature of
the testimony and the demeanor of the witnesses that the Respondent's witnesses
were magnifying a trivial incident, which had been overlooked at the time, into not
only a cause for Mackey's discharge but to bolster a wholly otherwise groundless
assertion that Mackey stayed too long in the restrooms, used foul language, caused
confusion; all of which charges remained entirely unsupported
Upon the entire record the Trial Examiner credits Mackey's testimony where it is
in conflict with that of Eileen Davis, Eva Poe, and Tennessee Doss, none of whom
the Respondent finds to be wholly reliable.
The Trial Examiner therefore finds that the Respondent did not discharge Jessie
Mackey for the reasons it advanced but for entirely different reasons, not disclosed
to her, the reasons given Mackey for her discharge and those advanced by the Re-
spondent at the hearing being a mere pretext.
Doss testified that she had no knowledge of Mackey's union interest at the time
Doss discharged her.
The Trial Examiner has found that Supervisor Davis asked Mackey if she at-
tended the union meeting ana received a negative reply In asking the question
Davis was following a pattern of conduct engaged in with other employees as herein
found.
True Mackey's union activity was nil, she denied her interest to Davis, yet from
the pattern of the Respondent's conduct both before and after Mackey's discharge,
the Trial Examiner believes it only reasonable to infer that if the Respondent had
no knowledge of Mackey's union adherence it had a suspicion that Mackey was either
a member or a sympathetic adherent of the Union. The Trial Examiner so finds.
Inasmuch as the Respondent's reasons for Mackey's discharge are patently ground-
less, there remains no other reason for Mackey's discharge except as alleged in the
complaint.
The Trial Examiner finds on all the evidence considered as a whole, and from his
observation of the witnesses that the Respondent, on October 16, 1954, discharged
Jessie Mackey because of her membership in, or her supposed membership in, and
activities on behalf of the Union and that such discharge so made was in violation
of the Act more particularly 8 (a) (3) thereof.
5. Ann Catherine Williamson
Ann Catherine Williamson testified that she was first employed by the Respondent
in February 1953 and discharged October 15, 1953; that she performed various sew-
ing operations; that her work was not criticized until the day of her discharge;
that she was not criticized for failure in "making production"; 6 that she attended
a union meeting "on the first or second of October" and signed a union application
card 2 days later; that thereafter she solicited fellow employees for union member-
ship and obtained "five maybe six" members; that about 2 or 3 days after the union
6 The record shows she did not "make production "
1688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting she visited Supervisor Christine Grimes in the hospital where, in a conver-
sation in which the Union was discussed , Grimes asked her if she had signed a
union card and "I told her yes."
Williamson also testified that she solicited the membership of employee Grace
Jones who refused to join and who later told Williamson that she had asked Doss
if she might join the Union and that Doss had told her "she could not tell her to
join or not to join." 9
According to Williamson she was called to the office on Friday , October 16, where
Doss told her she was "laid off" because she did not "make production" and spent
too much time smoking in the restrooms.
Supervisor Grimes testified that Williamson visited her at the hospital in com-
pany with one Pauline Pillar,8 and that Williamson brought lip the subject of the
Union . She testified:
Well, I asked Catherine how things were going on in the sewing room, and she
said, well things were just like they were, that they were still talking union talk
out there and at that time she asked how did I feel about the union and I told
her well , the union did not come before me whatsoever at that time , and then
she said that she had got wind that she had not make production and she
thought maybe she would get laid off sooner or later and that is all that wa,,
said about the union.
Grimes also testified she had told Williamson to stay out of the restrooms testi-
fying:
Q. Can you name any of those to whom you have said them?
A. I know Catherine , I told Catherine here and this other girl that used to
go into the restroom together , both at the same time, and I told Catherine
and this other girl if they had to go to the restroom for one to go at a time
because they were on the same operation.
The "other girl" was not identified.
Supervisor Eileen Davis testified that Williamson 's "work was very poor" and
further, without contradiction, that:
One day while they were running this style that was taffeta a combination o'
nylon sleeve she left the machine and went over to the turning table and started
turning collars and when my attention was called that she was away from he
machine I began to look for her and found her at the table turning collars and
asked her why she had left her machine and she told me the material was too
hard to sew and she did not intend to work on that material . So I persuaded
her to go back to her machine.
Davis testified that she reported this to Doss. On cross-examination she testified
that she could not remember how long before Williamson's discharge the incident
occurred , that she did not report to Doss in writing, but orally, and that the occurrence;
might have been "a month" before Williamson's discharge.
With respect to Williamson 's absence from her machine, Davis further testified:
Q. When did you happen to notice that Mrs. Williamson was over in another
department doing other work?
A. Well, as I check the operators I missed her from her machine and gavs
her time to go to the rest room and return and she did not come back and then 1
began looking for her, I first looked at the machine to see that it was not stuck,
and went on to the first room and she was not there , and when you have a group
of girls together you have to look over them very carefully and I began to search
each machine until I found her over at the turning table , turning collars.
After the search as above set out, according to Davis, she found Williamson about
50 feet from her machine , in plain view , at work, but testified that she had not see i
Williamson because:
Well, I had a good many workers around there and when a girl 's back is turne I
to you , you have to look very closely to be sure if you are a good distance frori
her.
"Jones also testified to a speech made to the Respondent 's employees by the Respondents
attorney in which they were told they could join or refrain from joining the Union as they
saw fit The General Counsel does not contend this speech was violative of the Act, ncr
that a speech later made by Manager Lofton was in any way illegal The speeches were
delivered September 24 and November 20, respectively.
8 Pillar was not called by either party
SCHOOL-TIMER FROCKS, INC. 1689
Doss testified that Williamson was discharged because she did not "make produc-
tion" and spent too much time away from her machine in the restrooins.
Doss testified that on the Wednesday before Williamson ' s discharge "I sent her
home" because:
She was in the restroom that morning and went in about eight times and each
time I went there she was there.
According to Williamson on that Wednesday she was ill. She testified:
Well, that morning in the restroom I saw Tennessee in the restroom about twice
that morning, and on the second trip into the bathroom she said, "Well,
Catherine," she said, "What in the world are you doing in the bathroom this
morning so much ," and I said, "Well, Tennessee , I am sick," and I said, "If I
can work on until 12 o'clock , I am going to work until then and then I am going
home and go to bed...." and she said, "Well, all right then ," and I went on
home and that was about 11.30, and I went on home at 12 o'clock
Q. Did you come back to work the next day?
A. Yes.
Q. Was anything said to you about being absent that half day?
A. No. '
The Trial Examiner accepts Williamson 's version . Doss further testified:
Q. What happened on Friday to cause you to let her go?
A. The same thing, I was watching her again , every time I would catch her
away from her machine I would go hunt her up and she was in the restroom.
The Trial Examiner does not consider either Grimes or Doss to be reliable
witnesses.
Doss' attempt to create the impression that she sent Williamson home because she
was in the restroom and not because Williamson asked to go home because of illness
is characteristic of much of her testimony on other matters wherein she "told the
truth" in a way that was evidently intended to mislead , for instance her testimony
to the effect that certain employees were "irregular " in attendance . On cross-exami-
nation she defined "irregular" to include any absence, even an authorized request to
leave the plant one-half hour early, and for further example , her testimony with re-
spect to "making production."
The Trial Examiner credits Williamson's testimony to the effect that Supervisor
Grimes asked if she had joined the Union and was told "yes."
The Trial Examiner does not believe that this record establishes that the Re-
spondent discharged Williamson for any of the reasons it advanced , although there
may have been cause for the discharge of Williamson because she admittedly did not
"make production ," in the opinion of the Trial Examiner her failure to "make
production" would not have been used to effect her discharge absent her union ad-
herence.
The case therefore comes squarely under Jamestown Sterling Corporation.9
The Trial Examiner , on the entire record, finds that on October 16, 1953, the Re-
spondent discharged Ann Catherine Williamson because of her union adherence and
in violation of Section 8 (a) (3) of the Act.
6. Matilda Howard
Matilda Howard testified that she had 5 years' experience in garment sewing work
at the time she was employed by the Respondent on April 7, 1953 ; that as an em-
ployee of the Respondent she worked at various sewing jobs and "made production
on practically everything"; that both Dupuy and her immediate supervisor compli-
mented her work; that she attended a union meeting "around October 1, 1953" and
signed a union application card at the meeting; that the next morning her super-
visor, Naomi Mimms , asked her if she had gone to the meeting , signed a card, and
if "she thought the plant would close down"; and that she replied in the affirmative
to the questions regarding the meeting and her membership therein and stated that
she did not believe the plant would close.
Mimms denied asking the questions . The Trial Examiner credits Howard.10
e See footnote 4, supra.
io The Trial Examiner bases this finding on his observation of the two witnesses, the
fact that other witnesses were also queried by Mimms and the general nature of Mimms'
testimony on other matters, discredited by the Trial Examiner
1690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Howard further testified that in November or early October her sister was hos-
pitalized and underwent an operation; that Howard asked Doss for the day off to be
at the hospital; that she received permission to be absent; and that on the morning
following the operation she called Doss from the hospital, explained that she cuuld
come in, but was told to "go home and get some rest."
Howard further testified that shortly before the above incident she had been out
sick for a period "not over three days," and that upon her return to work was not
asked for a doctor's certificate to account for her absence.
According to Howard's testimony on Monday, October 12, she came to work ill
and became quite sick during the day and asked Supervisor Minims:
"Will you go get me some aspirin or a dose of ammonia or something," and she
went and brought me an aspirin and a dose of ammonia and I worked that day
and went right to the doctor's office.
Howard was unable to come to work the next day, but did come in on Wednesday.
On arrival at the plant Howard went to Doss' office. She testified:
When I went in on Wednesday morning I did not go to the rack, I went to the
office and Tennessee was standing there with the card in her hand, and I had
heard her ask a woman in there about a doctor's certificate and I went to her and
said, "Tennessee, I did not bring a doctor's certificate this morning, I did not
know about bringing one, I have got to go back to the doctor tonight and [ can
bring you one in the morning," and she- said, "I think your card must be still
in the rack, I have not got it here," and it was in the rack, and that is all that
was said.
Q. Did Tennessee say anything about you getting a doctor's certificate?
A. No. That is all that was said and I told her if I have to have one I would
bring it, and she did not say yes, bring it or no, don't bring it.
On Thursday Howard came in as usual but again became ill and so informed
Mimms who told her "well go ahead and finish that bundle then go see Tenressee
[Doss] or Mr. Dupuy or some of them." Presently:
. . . she came back and I had the bundle finished and was trying to clean the
machine and I tied the bundle up and she said, "Matilda, Tennessee said you
can go home but be sure when you come back to bring a doctor's certificate,"
and I said "I will bring one," and I started out to clock out with my cans and
Tennessee was in the office and she seen me and she met me at the front door
and wanted to know what was wrong, and I said I was too sick to work and was
not able to stay on my feet and was going home.
Doss then told her that she had been out sick too much. Howard pointed out
that others were out sick for longer periods.
That evening Howard's doctor hospitalized her until October 19, but would not
permit her to go to work at once. On October 21, Howard telephoned Do,,s and
told her she could return on October 26. Howard testified:
She said, "Well, Matilda, you had better call me Friday and I will tell you if
I have a job for you or not."
Q. What did you say?
A. I said, "Well, Tennessee, do you mean to say because I was out sick I
don't have a job," and she said, "Well, I don't know, you call me Friday and I
will tell you if I have a job for you or not."
Q. Did Tennessee say anything about other girls?
A. She said she placed another girl on my machine, and I said, "No.. there
is not anybody on my machine," and she said, "Do you want to come out and
look," and I said, "No, Tennessee, I am going to tell you, that is why the girls
are trying to get a union because we are not being treated fair," and she said,
"I don't have anything to do with that," and she hung up, and that is all that
was said, and I called Mr. Lofton as soon as we hung up and told him about it,
and I said, "Mr. Lofton, what about that," and he said, "Well, Matilda, we
don't plan to take a girl's job if they are off sick, I don't know what the situation
is, give me a chance to talk to Tennessee," and said, "In other words be sure to
call her Friday."
On Friday, Howard called Doss who told her "Matilda, I don't have a job for you."
The next week Howard again called Doss and was refused work. She called on sev-
eral occasions thereafter and was refused work, Doss telling her that the Respondent
was replacing "girls who didn't work steady," but also told Howard that "your work
SCHOOL-TIMER FROCKS, INC. 1691
is all right." As late as January, Howard again called Doss who again refused to
put her back to work.
Howard testified that on Thursday, the day she went home sick and was hospi-
talized, Doss first told her to bring in a doctor's certificate that she was able to work;
that this was the only time she was told to bring such a certificate; and that on her
return she had such a certificate but was not given the opportunity to present it.
Personnel Manager Doss testified that Howard was not given work after her
return from the hospital because:
When she was out the preceding week, the first day of that week, I asked her
when she came in to bring me a doctor's certificate that she was able to work
because she did not work steady, she was out part of every week and I asked
her to bring me back a doctor's certificate that she was able to work steady when
she came back in.
Q. Did she bring back that doctor's certificate?
A. No, she did not.
This is Doss' entire testimony as to failure to give Howard work. She did not
deny Howard's testimony with respect to Howard's conversation with her. Howard's
undenied testimony is credited.
Doss testified, from the Respondent's records, that on the week ending October
17, 1953, Howard "worked Monday and Wednesday and a little over an hour Thurs-
day" but further testified that Thursday, October 15, was the day Howard left the
plant sick and was reported as entering the hospital. This was Howard's last day of
work in the plant. Doss also testified that during the week ending October 10,
Howard worked only Monday, Tuesday, and Friday.
Other than this testimony Doss, who had custody of the Respondent's records,
did not testify with respect to Howard's alleged absences.
It is clear that Doss' testimony, intended to discredit Howard, serves to corrobo-
rate her.
The Respondent did not produce its records but sought to substantiate its conten-
tion by the following testimony of employee Edna Hackney:
Q. (By Mr. Gaud.) Now did you work near to Matilda Howard?
A. I did before she quit.
Q. Was she regular in her attendance?
A. No, she was not.
Q. Could you tell us anything about that?
A. Well she was out almost every week.
Q. Some time almost every week?
A. Yes.
Obviously under the circumstances of this case this is not probative evidence.
Hackney also testified that Howard told her she did not bring in a doctor's certifi-
cate because she had not been to the doctor.
Naomi Mimms testified that Doss instructed her to tell Howard to bring in a
doctor's certificate but testified, "I forget what morning of what day but she was
sick."
The Trial Examiner is of the opinion that had Howard been under orders to bring
in a doctor's certificate earlier than October 15, the last day she actually worked,
she would not have been permitted to go to work Friday, October 9, after being
out Monday and Tuesday, October 5 and 6, as Doss testified.
Doss did not impress the Trial Examiner as entirely reliable therefore, on all
the evidence, the Trial Examiner credits Howard and finds that she was told to bring
in a doctor's certificate only on the last day she actually worked, namely, October 15.
The record is clear that from Howard's credited statements to Minims that the
Respondent had knowledge of Howard's union adherence. The Trial Examiner
does not credit Doss' testimony that she did not possess such knowledge.
Howard explained all her absences even testifying to absences occasioned by her
leaving the plant (with permission of Doss) 30 minutes early to collect her husband's
pay. This happened twice during her employment. She admitted to being off 1
week in July, but this was a vacation she was allowed to take, without pay. She
testified that all the absences were because of her sickness as herein set out and the
2 days because of her sister's operation.
The Trial Examiner found Howard to be a truthful witness, worthy of credence,
and credits her testimony as to her absences.
On the entire record considered as a whole and from his observation of the
witnesses the Trial Examiner is convinced that the Respondent did not discharge
Matilda Howard because of undue absenteeism or because she failed to bring in a
1692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doctor's certificate when ordered to The Trial Examiner is convinced that Howard
was not permitted to present the doctor's certificate she was told to bring and did in
fact bring, but was denied work before she could tender it.
The Trial Examiner therefoie finds that the Respondent did not deny work to
Matilda Howard for the reasons it advanced but for different reasons not disc osed
to her.
The Trial Examiner finds that by refusing to give work to Howard on October 26,
1953, the day she stated that she was able to return and offered to return, the Re-
spondent in fact discharged her.
The Trial Examiner further finds on the entire record herein that the Respoiidenl
discharged Matilda Howard. October 26, 1953, because of her membership in and
activities on behalf of the Union in violation of Section 8 (a) (3) of the Act.
Conclusion as to the Discriminatory Discharges
Upon the entire record and from his observation of the witnesses the Trial Ex
aminer finds that the Respondent discharged Jeneile Griffin on September 22, 1953,
Dorothy Buck on October 7, 1953, Ann T. Wright on October 12, 1953, lessie
Mackey on October 16, 1953, Ann Catherine Williamson on October 16, 1953, and
Matilda Howard on October 26, 1953, because of their membership in and Z ctivi-
ties on behalf of the Union. Thereby the Respondent has discouraged membership
in a labor organization by discrimination in regard to the hire and tenure of em-
ployment of its employees in violation of Section 8 (a) (3) of the Act
C. The alleged discriminatory discharges
1. Annette Mole
Annette Mole started to work at the Respondent 's plant June 3, 1953, and wt s
discharged October 8, 1953.
Mole testified that she worked at a sewing machine "for about a month" but
could not learn the machine and was given work sorting garments and carrying
work to and from the sewers, that on the machine work she "made productior"
only "once" and her other work was hourly rated; that she signed a union applicaticn
at the Union's first meeting September 24, and also obtained the signatures of two
fellow employees to such cards , that on September 30 and October 1, she was absent
from work because of her mother's illness, so notified the Respondent, and returned
to work on October 2; that on October 7, she left the plant at noon because of
illness, having permission to do so, that on October 8, she found her card gorse
from the rack and went to Doss' office when Doss told her:
"You are going to stay out too, of the ladies rest room , there is not enough
work to do," and I explained to her about my mother being sick and I had lo
stay with her and I told her that Eileen had given me permission to go home
the day before, and she said, "I am not talking about the day before," and :;o
I recall her saying something about not calling in, and I left and she handed
our checks and I left.
Personnel Manager Doss testified:
She was very slow, her makeup was high, she was doing unsatisfactory work
and she was spending too much time in the restroom and loafing around whin
she should have been working.
Doss testified that Mole was on "time work" only 3 weeks of her employment
and further that the girl who worked with Mole had reported her as loafing aid
that Supervisor Davis had reported on Mole:
That she was not staying in her place working and getting the work mixed up
and not staying where she belonged when they wanted her, they had to go to
the restroom and call her, she would be loafing around.
Supervisor Eileen Davis testified:
Q. Did you ever speak to her [Mole] about her work?
A. Yes, a number of times. She never could fix up the bundles to be sent
over to the pressing department , they had to be all of one color and one size
and she would mix the sizes up and the colors in the bundle and sh-, could
never get the work together to send it over there and on one occasion she
passed a lot of one hundred dresses and sent them to the pressing department
that had not been inspected.
SCHOOL-TIMER FROCKS, IN C. 1693
Q. Did you ever warn her about spending too much time in the restroom?
A. Yes.
Mole denied Davis had ever warned her.
Doss testified she had no knowledge of Mole's union membership prior to her
discharge.
Conclusion
According to her own testimony Mole was not a very valuable or even a satisfactory
employee.
There is nothing to show that the Respondent had knowledge of Mole's union
membership or activity.
The Trial Examiner, on the entire record, finds that the General Counsel has
not sustained his burden of proof with respect to the allegation that the Respondent
discharged Annette Mole on October 8, 1953, because of her union membership,
and activity and will therefore recommend that the complaint be dismissed insofar
as it alleges that the Respondent discharged Annette Mole in violation of the Act..
2. Ann Ferguson
Ann Ferguson started with the Respondent in April 1953, and was discharged
October 8 of that year.
Ferguson testified that during her employment "I think I made [production] two
days. I am not sure"; that she did not distribute application cards or solicit mem-
bers for the Union, but did ask one employee if she had signed a card.
Ferguson further testified that on October 6 and 7 she stayed home, being sick,
but that the Respondent was not notified and that on other occasions she had also
stayed away from work without notifying the Respondent.
Presumably to somewhat bolster this testimony the General Counsel adduced
from Ferguson testimony that during the noon hour of October 1, she and employee
Frances Hicks crossed the street in front of the Respondent's plant in order to visit
the home of an employee directly opposite the plant; that the union representative's
car was parked directly opposite the plant in front of the house they intended to
visit, a distance of some 50 feet; and that she and her companion took union
application cards from the Union's representative in the parked car and returned
them to him when they came out.
Ferguson then testified:
Q. Now Mrs. Ferguson, where does the office window of the plant face?
A. It faces the street.
Q. Did you see anybody in the office window?
A. Not then I did not.
Following this Ferguson testified that 5 days later she saw the Union's representative
distributing literature "after work" and "I took one paper and asked him for an-
other" and further testified that as she left the plant she had observed Doss standing
by the office window facing the street where the literature was being passed.
Supervisor Betty Munn testified Ferguson was slow, did not "make production,"
and was warned.
Ferguson admitted that she might have been so warned.
Doss testified that Ferguson was discharged because of "irregular attendance
and slow."
Although Doss testified that she interpreted "irregular attendance" to mean any
absence from work, for any cause, even if excused in advance, it is apparent from
Ferguson's testimony that she was actually absent without excuse or notification
to her employer, that she was slow in her work and had been warned therefor-
Doss testified she had no knowledge of Ferguson's union membership at the time of
her discharge.
There is nothing in the record to show any knowledge of Ferguson's union member-
ship by the Respondent.
On the entire record and the evidence considered as a whole the Trial Examiner
finds that the Respondent discharged Ann Ferguson for the reasons it advanced at the
hearing and not because of her union adherence or activity and will therefore recom-
mend that the complaint be dismissed insofar as it alleges that the Respondent dis-
charged Ann Ferguson on October 8, 1953, in violation of the Act.
3. Mary Anderson
Mary Anderson testified that she started work with the Respondent September 1,
1953, and was discharged October 8, 1953.
1694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Anderson testified that she signed a union authorization card on October 2 during
the noon hour and that later that day Doss came to her machine and the following
colloquy took place:
She came to my machine apd told me that I had been away from my machine: for
a half hour and she had timed me by her watch.
Q. What if anything did you say?
A. I told her that I had not been away from my machine that long, that I
had never been away more than fifteen minutes, if I recall correctly.
Q. Did Tennessee say anything?
A. She said that her watch had been wrong that day and that mine had been
right, she did not know because her watch had been wrong but I would have to
spend more time at my machine.
Q. That was the only thing she ever spoke to you about, being away from dour
machine?
A. Yes.
According to Anderson on October 8:
At 4:25, I think it was, Tennessee came to my machine and told me that I had
not improved any on my work since she had talked to me and she would have
to replace me, and I told her okay and I left.
The next day Anderson called at the plant and was told by Doss that she had been
looking at Anderson's card and now felt that Anderson had "pulled up my work con-
siderably"; and told Anderson she would like to have her back if she wanted to come
back. Anderson replied that she wanted the job whereupon:
She said she would have to talk to him, and did not mention any name.
Q. Did she say she would let you know?
A. She would let me know the following Monday.
Q. Did she in fact let you know?
A. No, I never heard from her since.
Anderson testified further:
A. She gave me one check and I told her that I did not want the other one if
she was planning for me to go back to work and I did not get it.
Q. What did Tennessee say about that?
A. She said she would let me know and I could get it when she found out.
This testimony was not denied, and is credited.
On cross-examination Anderson testified that Doss had warned her "once" not
to spend too much time in the restrooms on pain of discharge.
Doss testified that Anderson was discharged because she was slow and spent too
much time in the restrooms; and that she had no knowledge of Anderson's union
affiliations.
Employee Geraldine Carswell testified that Anderson worked with her and that:
She was slow, and then the inspectors, after the inspectors they would tell me to go
get her out of the restroom so that they could have work, in other words instead
of doing the work I would go to the restroom.
Q. And the inspectors would send you to get her?
A. Yes.
Carswell testified she reported this to Doss on two occasions.
There is nothing in this record to show that the Respondent had, or could have had.
any knowledge of Anderson's union activity or membership.
The Trial Examiner does not believe the record discloses that the General Counsel
sustained his burden of proof with respect to the allegation that Mary Anderson wa:;
illegally discharged by the Respondent, and although the matter is not free fron-
doubt (principally raised by Personnel Director Doss' conversation with Anderson on
October 9, Anderson's testimony with respect thereto being fully credited by the:
Trial Examiner), on the state of the record the Trial Examiner finds that the Re-
spondent did not discharge Mary Anderson on October 8, 1953, for any reason
violative of the Act and will therefore recommend that the complaint be dismissed
insofar as it so alleges.
4. Beverly Bradley (Paxton)
Beverly Bradley" testified credibly that she was hired by the Respondent in Mav
1953, and discharged October 16, 1953, that she worked at various jobs in the plant
"Since the filing of the charge Bradley has married and her name is now Beverly
Bradley Paxton. However, she will be referred to herein as Bradley.
SCHOOL-TIMER FROCKS, IN C. 1695
but only "made production" on one job but at no time exceeded the legal minimum
wage ; that "about the time" of her discharge her supervisor, Eileen Davis , told her
that "Tennessee [Doss ] said I should make more production "; that Davis had criti-
cized her work; that "about a week" before her discharge she signed a union appli-,
cation card but was told the next day that it had been lost and signed another; that
she could not recall who had told her the card had been lost , or gave her the second
card , nor to whom she returned it. Bradley admitted that she stayed away from
work "every once in a while" and that "once" Davis told her that she spent too much
time in the restroom.
Supervisor Eileen Davis testified Bradley did not stay at her machine , had been
warned regarding her work habits and production, and had made the statement to
Davis that "she did not intend to try to make her production on that machine."
The Respondent ( the Trial Examiner believes inadvertently ), rephrased Davis'
testimony as:
Q. And did you tell her you did not care whether you made it [production]
or not?
Bradley replied:
A. I told her I could not make it because of my machine.
The Trial Examiner finds that Bradley did not state that "she did not intend to
try to make her production."
Doss testified Bradley was discharged on October 16, 1953, for:
Being slow , not making her time and she was warned about it and asked to
make her time , and she told the supervisor she was not going to try to make her
time.
Q. When this employee was discharged, did you know whether or not she
had signed a union card?
A. No Sir.
Q. At that time did you know whether or not she was a member of any
union?
A. No.
Unless the Trial Examiner is to infer that Bradley 's lost union application came
into the Respondent 's possession there is nothing to show that the Respondent had
knowledge of Bradley 's union adherence.
The Trial Examiner cannot make the inference.
Giving full credence to Bradley's testimony ; the Trial Examiner having found
her to be an honest and forthright witness, there is not sufficient probative evidence
to sustain the allegation that she was discharged because of her union membership
and activity , therefore on the entire record the Trial Examiner will recommend that
the complaint be dismissed insofar as it alleged the Respondent , on October 16, 1953,
discharged Beverly Bradley ( Paxton ) for any reason violative of the Act.
5. Mildred Adkins
The complaint as drawn alleged that "on or about November 19, 1953 , Respond-
ent transferred its employee Mildred Adkins, at the North Charleston plant, to
a more onerous and lower paying job," discriminatorily and in violation of the Act.
The General Counsel adduced a plethora of testimony to the effect that Mildred
Adkins was very active on behalf of the Union and that this interest and activity
was known to the respondent . This evidence is credited insofar as it establishes that
Adkins was active on behalf of the Union and her activity was known to the
'Respondent.
The Trial Examiner will confine himself to the allegation that Adkins was illegally
transferred to a more onerous and lower paying job.
The record is clear beyond doubt that the Respondent for strictly business reasons
set up a new sewing unit and transferred Adkins to this unit because she was a good
operator and it was thought she would be very valuable to the unit.
At the time Adkins was transferred her average earnings in the old unit were
guaranteed to her for a limited period , not disclosed by the record.
The record is also clear that the same kind of work was performed in Adkins' new
job as was performed in the old, and that if there were any harder sewing jobs, such
as longer dresses or use of different material, a higher rate was paid.
It is clear that Adkins was treated no differently than was any other employee in
the unit . The General Counsel went to great lengths in an attempt to prove that
repairs which were not the result of Adkins' work or on dresses she sewed were
1696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
brought back to her, but Adkins admitted that she did not know that the wrong
repairs were brought to her because only once was a repair brought back to her on
which she had not signed the identification work ticket when she first released the
garment.
Adkins testified she was transferred October 5 or 6 (not November 19, as alleged).
The last week Adkins was in her old unit she earned $49.08. For the workweek
containing October 5 and ending October 9 she earned $48.13. For the week ending
October 30, Adkins earned $52.37, which was her highest weekly earning in the
plant.
There is nothing in the record to show that after her transfer Adkins earned less
than she did before, except her unsupported testimony that at a time, not specified,
she had earned $1.22 an hour in the old unit, and her apparent belief that she should
have been able to earn this at all times.
Conclusion
The record does not disclose that Adkins was transferred for any other than rr an-
agement reasons.
It is of course the undisputed prerogative of an employer to assign employee;3 to
positions of his choice. Unless a transfer or assignment is made for a discrimina-
tory motive violative of the Act there can be no legal complaint.
Although the Respondent was well aware of Adi.ins' union adherence, this knowl-
edge alone cannot under the circumstances herein be used to spell out a discrimina-
tory transfer.
On the entire record the Trial Examiner finds that the Respondent did not trans-
fer Mildred Adkins to a more onerous and lower paid job, as alleged in the
complaint.
On February 25, 1954 (the last day of the hearing), the General Counsel with-
out objection moved to amend the complaint to allege in effect that on February 23,
1954, the Respondent discriminatorily discharged Mildred Adkins in violation of
Section 8 (a) (3) and (4) of the Act The motion was granted.
Adkins had been a witness in the instant hearing on February 17; she testified
that she returned to work on February 18 (Thursday); that at about 9 a. in. she
went into the restroom and found "around nine or ten" employees there; that after
"about five minutes" Supervisor Eileen Davis came in and that
She came in and slapped her hands like this and said she was not going to have
the girls piling up in the bathroom that morning, and said, "Mildred, and no
secrets," and I had not even opened my mouth, I was standing there washing
my hands.
On the same day, according to Adkins, she complained to Dupuy that her ma-
chine was not operating properly and he had promised to install a new machine over
the weekend. The plant was closed Monday, February 22. Adkins came in to
work on Tuesday, February 23, found that her machine had not been changed, and she
so notified Dupuy, who learned that by error another machine had been moved and
ordered the change made at once. During "break time," according to Adkins' testi-
mony, she went for a "coca cola," some "12 or 13 other girls" were at the same spot
and 1 of them remarked that Davis had been going around telling people that "she
had run me [Adkins] out of the rest room," whereupon Adkins remarked to the
group that "for my part she [Davis] can kiss my ass." When Adkins returned to
her machine the changeover was being made. Sewing Room Foreman Dupuy was
present and according to Adkins the following colloquy took place:
.. . "Mildred," he said, "I want to talk to you I know it is going to make you
mad," he said, "But you have been reported cursing to me," and I told him I
did not curse, and nobody in there could ever say he heard me curse.
Q. What did he say to that9
A. He said, "Well," he did not know about that, and then I told him that
I wanted him to get the person that told him that I curse and bring them to me
and we would go to the court house and we would prove that they never Ii Bard
me utter a curse word in that plant.
Following this Dupuy continued:
Well, he told me that he wanted me to carry myself in an upright way because
the girls looked up to me and everybody was picking on me in this plant now,
and I ought to know that, and he told me also that I ought to stay at my ma-
chine, and I told him that I did not bother anybody, and he said, "You should
SCHOOL-TIMER FROCKS, INC. 1697
stay at your machine and not talk to no groups ," and I said I stayed there only
when I went to the bathroom.
According to Adkins' testimony:
He said, "God bless you and your union activity and passing out cards but
just don't let them have them on company time or in the plant, and I told him
this was the United States and I never had solicited anybody to sign a union
card on company time, and this was the United States and I thought I had a
right to do what I wanted to do.
Adkins testified further that Supervisor Eileen Davis was present, having "come
up from the back." Davis said to Adkins that she had reported her to Dupuy.
At a later point in her testimony the General Counsel asked "whether or not Mr.
Dupuy mentioned an election , union election during your conversation" and re-
ceived the following answer:
He told me, he said, "Mildred , these things get rough ," and he said , "You know
how the presidential election gets," he said, "They really get rough ," is what he
told me.
Dupuy did not testify.
According to Adkins , when she came in to work February 24, she found that her
card was out of the rack and went to Doss' office . Adkins testified:
I went in and before I said anything she told me she was going to send me back
home, and I asked her for what, and she told me for disturbing the girls and
running all over the plant , and I had the whole plant in an uproar , and I told
her that was not so.
Doss would not permit her to go into the plant for her personal belongings, but
went herself and brought them.
Eileen Davis testified that on February 18, having been told that "there was quite
a party going on in the rest room," she entered the room, in which she discovered
a group of girls whom she ordered to go back to work and that she saw that Adkins
had one girl "penned in a corner" and that:
Mildred Adkins was talking to Leola Powers but she did not move. I come
there and said, "Mildred , that includes you too," and Mildred kept on talking to
Leola. I looked around then and I said, "Mildred, let me tell you something,
I don't want you in the restroom talking secrets," I said, "You can carry on
your union work or whatever you are talking about at the morning break or
lunch hour , but on company time I don't want you in this restroom talking to
anyone like that and let me remind you that if I catch you in here again, I
will send you home."
Davis further testified that Supervisor Poe came to her Thursday morning (Feb-
ruary 23 ), "and told me that Mildred had some very bad talk to her" and also that
"she was afraid " of her. Davis then reported to Dupuy who said he would handle
the matter , as "we needed side reamers." She went to Adkins with Dupuy. Adkins
asked who had reported her and Davis told Adkins she had done so. Davis further
testified:
Q. And what was the conversation that took place between you an Mildred
Adkins, if anything?
A. Mildred asked me if I had ever heard her curse and I told her, "No, I
never have heard you curse , but there is dirty talk that is going on here and it
came straight to me and you know that I don't allow that going on in here"
and Mildred told me then that I had some supervisors that talked dirty and I
told Mildred that I could not say about that, that I had never heard any of
the supervisors talking dirty, but if any of my supervisors talked dirty and I
found out , they would get the same medicine that she was getting.
According to Davis this was the extent of the conversation.
Davis testified she reported the two incidents above set out to Doss orally on
Tuesday afternoon at the hearing and that night in writing . Davis further testified
she had previously reported Adkins for improperly operating her machine and that
on February 12 she reported to Doss that Adkins had talked to two operators in such
a way that:
We had to take them in there I the First Aid Room] and let them lay down and
give them ammonia.
338207-55-N ol . 110-108
1698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Why did they have to go to the First Aid Room?
A. They were so nervous they could not do anything.
Eva Poe testified that she had reported to Doss that Adkins had used improper
language to her, that she had never heard her use improper language but on the one
occasion, and that Adkins produced more work than any other operator but that the
quality of her work was not good.
Doss testified that she discharged Adkins on the reports given her and character-
ized her as unsatisfactory . Doss testified that when she discharged Adkins:
I told her it was because of her conduct in the plant, the repairs that she had
had, a lot of different things that she had been doing, and I also told her that the
talking that she had done in there on the day before it, that I got a report about
that, was in the reasons too.
Doss further testified:
Well, I knew that she was having a lot of activity in the union, and I knew
that if we discharged her, we would be accused of discharging her for union
activities, and put up with a lot of it for that reason, but when it got to i he
place where the supervisors were hindered so much from their work and afraid
to bother her, and afraid to go back and talk to her because of the way she
was acting and what she was doing, then I figured it was time to discharge her,
Q. Had Mildred Adkins engaged in any of this conduct to which you ob-
jected and for which she was discharged prior to the time in September or prior
to the time the union came in?
A. I had several compaints on her bad work before that, yes.
Q. Anything on interfering with other employees?
A. Not until then, no.
Q. Until after the union came?
A. Yes, that is right.
Conclusion
On the entire record the Trial Examiner is persuaded and finds that Supervisor
Davis' account of the February 18 restroom incident and her account of the February
23 conversation between Adkins, Dupuy, and herself is the accurate version.
Although Dupuy did not testify it is inconceivable to the Trial Examiner that a
foreman, during the course of a hearing on a charge of unfair labor practice against his
employer, would have told an employee "God bless you and your union activity."
While it is true that Davis, during the restroom incident, referred to Adkins'
union activity and announced a nonexistent rule as to her authority, her testimony
of the affair seems entirely natural and credible.
The Trial Examiner does not credit Adkins' account thereof.
It has been found that the Respondent discriminatorily discharged certain em-
ployees.
It has been found that Adkins' original charge of discrimination was groundless.
Realistically it is hard to believe that an employer would engage in an unfair
labor practice during a Board hearing. The only normal, realistic conclusion which
the Trial Examiner can reach is that Adkins "stretched her luck" too far and upon
her return from the witness chair overstepped the line once too often.
The Trial Examiner can well believe, under all the circumstances in the case, hat
Adkins' supervisor was afraid of her, perhaps not so much physically, but afraid of
disciplining her because of the overhanging threat of an unfounded charge of unfair
labor practices.
Upon the record considered in its entirety the Trial Examiner is persuaded thw, al-
though Adkins' allegedly objectional conduct stemmed from her adherence to the
Union, though a paradox it was the conduct in itself and not its motivation which
caused her discharge. The Trial Examiner therefore finds that the Respondent did
not discharge Mildred Adkins on February 24, 1954, in violation of Section 8 (a)
(3) and (4) of the Act and will recommend that the complaint be dismissed insofar
as it so alleges.
Conclusion as to the Alleged Discriminatory Discharges
Having found that the Respondent has not discriminatorily discharged Annette
Mole, Ann Ferguson, Mary Anderson, Beverly Bradley (Paxton), and Mildred Ad-
kins it will be recommended that the complaint be dismissed insofar as it so alleges.
SCHOOL-TIMER FROCKS, INC. 1699
Conclusion as to Interference, Restraint, and Coercion
The Trial Examiner finds that by the inquiries of and statements made, as here-
inabove found, by Supervisor Dupuy to Griffin, by Manager Lofton to Griffin, by
Supervisor Minims to Buck, Howard, and Wright, by Poe to Wright, and by Grimes
to Williamson the Respondent has interfered with, restrained, and coerced its em-
ployees in the exercise of rights guaranteed in Section 7 of the Act.12
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent set forth 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
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
Having found that the Respondent discriminatorily discharged Jenelle Griffin,
Dorothy Buck, Ann T. Wright, Jessie Mackey, Ann Catherine Williamson, and
Matilda Howard it will be recommended that the Respondent offer to all of them
immediate and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privileges, and that
each be made whole for any loss of pay she may have suffered by reason of the
discrimination against her, by payment to each of them of a sum of money equal
to that which each would normally have earned as wages from the date of the
discrimination to the date of the Respondent's offer of reinstatement, less her net
earnings during such period.13 The back pay shall be computed in the manner
established by the Board 14 and the Respondent shall make available to the Board
its payroll and other records to facilitate the checking of amounts due.
The preventive purposes of the Act will be thwarted unless the recommendations
are coextensive with the threat contained in violations of the Act herein found.
It will therefore be recommended that the Respondent cease and desist from in-
fringing in any manner upon the employees' rights guaranteed in Section 7 of
the Act.
Upon the foregoing findings of fact, and upon the entire record in the case, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. School-Timer Frocks, Inc., Charleston, South Carolina, is engaged in commerce
within the meaning of the Act.
2. International Ladies' Garment Workers' Union, AFL, is a labor organization
within the meaning of Section 2 (5) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
4. By discriminating in regard to the hire and tenure of employment of Jenelle
Griffin, Dorothy Buck, Ann T. Wright, Jessie Mackey, Ann Catherine Williamson,
and Matilda Howard, thereby discouraging membership in a labor organization, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
6. The Respondent has not engaged in any unfair labor practices as alleged by
discharging Annette Mole, Ann Ferguson, Mary Anderson, Beverly Bradley
(Paxton), and Mildred Adkins. The complaint should be dismissed insofar as
it so alleges.
[Recommendations omitted from publication.]
" See Syracuse Color Press v N. L. R B., 209 F. 2d 596 (C A. 2).
13 Crossett Lumber Company, 8 NLRB 440.
11 F. W. Woolworth Company, 90 NLRB 289.