Southland Manufacturing Co.

National Labor Relations Board - Board Decisions

Feb 13, 1952

98 N.L.R.B. 53 (N.L.R.B. 1952)

SOUTHLAND MANUFACTURING COMPANY 53
SOUTHLAND MANUFACTURING COMPANY and AMALGAMATED CLOTHING
WORKERS OF AMERICA, CIO. Case No. 34-CA-205. February 13,
1952
Decision and Order
On July 24, 1951, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding finding that
the Respondent had engaged in and was engaging in certain unfair
labor practicesrin violation of Section'8 (a) (1) and (3) of the Na-
tional Labor Relations Act, and recommending that the Respondent
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 vio-
lated the Act by discharging Gladys Whitfield and Clara Belle Davis
and consequently recommended dismissal of the complaint as to
them.' Thereafter, the Respondent filed exceptions to the Inter-
mediate Report. The Respondent's request for oral argument is
hereby denied as we are of the opinion that the record before its
adequately presents the issues and the positions of the parties.
The Board 2 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
Intermediate Report, the exceptions thereto, and the-entire record
in this caee, and, to the extent consistent herewith, hereby adopts
the findings, conclusions, and recommendations of the Trial Ex-
aminer. The Board, however, specifically adopts in full the Trial
Examiner's resolutions of credibility. With respect to those findings,
conclusions, and recommendations of the Trial Examiner which the
Board adopts, it relies solely upon the following:
The Union's campaign to organize the Respondent's plant started
in late May or early June 1949. This activity continued down to the
date of the hearing in this case in June 1951, and apparently reached
a peak in the spring of 1950. The Union, claiming to represent a
majority of Respondent's employees, filed_ a representation petition
with the Board, and a direction of election issued in September 1950.
However, the Board permitted the Union, because of the pendency
of the unfair labor practice charges involved herein, to withdraw
its petition before holding the election.
I As no exceptions have been filed to these findings of the Trial Examiner , we shall adopt
the findings without passing upon the merit thereof and dismiss the complaint as to
Whitfield and Davis
' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [ Chairman Herzog and Mem-
bers Murdock and Styles].
98 NLRB No. 15.
998666-vol 98-52-5
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent's response to the organizational activities of its
employees constitutes the basis of the case now before us.
Violations of Section 8 (a) (1)
1. Much of the interest in the Union at Respondent's plant cen-
tered in the pressing department .3 After union buttons had been
distributed for the first time at a meeting held about May 1, 1950,
a number of pressers wore these buttons into the plant on the next
working day. Before work started that morning, Richard Carey, the
pressing department foreman, approached a group of employees
and asked what the buttons were for. Upon learning that they were
union buttons, Carey censured the group for talking too much and
said, among other things, ". . . all that wore those union buttons
would end up being chambermaids." Soon after the workbell rang,
Carey ordered Viola Smith and Clara Davis, two of the button-
wearers in the group, to punch out and report to the front office.
Carey joined them there and, in the presence of Nathan Block, Re-
spondent's secretary-treasurer and chief operating official, complained
that the employees had been talking about the Union in the plant.
Although Smith, and Davis had been employed for 12 and 2 years,
respectively, neither of them had ever before been reprimanded for
talking on the job, and the talking complained of on this occasion
occurred before work began.
Soon after Smith and Davis returned to work that morning, Carey
again brought up the subject of the Union. A group of the pressers
worked along both sides of an aisle. None of the employees on one
side of the aisle wore union buttons, but most of those on the other
side did. Addressing the group, Carey said that all ". . . on'the left-
hand side [wearing buttons] were fools and the ones on the righthand
side [no buttons] had sense, and he would see that all the ones that had
on those buttons would be fired...."
Four witnesses testified, in substance, that Carey made the remarks
referred to above. This testimony, though contradicted by Carey,'
was credited by the Trial Examiner. When the events that occurred
in the pressing room that morning are considered in their entirety,
there is hardly room for doubt that Carey made clear to the pressers
not only his hostility to the Union but also his determination to do
something about it. ,
There were about 60 employees in the pressing department , most of whom were women-
Carey, in the course of his testimony , admitted the reference to "chambermaids," but
claimed that he did not use the remark as a threat . Carey testified that he told the
pressers that they would have to keep up their production regardless of union membership,
and that no matter what happened "... there'd always be a chance of becoming a chamber-
maid."
SOUTHLAND MANUFACTURING COMPANY 55
Furthermore, Carey made his antiunion attitude known in other
parts of the plant. Several months before the episode recounted
above, according to the credited and uncontroverted testimony of
Bradley McCormick, then employed as a maintenance man, Carey
engaged in conversation about the Union with McCormick and Cooper,
another employee. As he was about to leave, Carey said : "If I catch
anybody fooling with the union, any of my people, I'm going to fire
them." The Trial Examiner, though finding this remark to be an,
improper restraint, apparently considered the remark ambiguous be-
cause it could have referred to union discussion during working time.
We do not share the Trial Examiner's difficulty, and we find this state-
ment of Carey's to be a clear threat of reprisal in violation of Section
8 (a) (1).
2. Nathan Block, the Respondent's secretary and treasurer, also
engaged in conduct which interfered with, restrained, and coerced
the Respondent's employees in the free exercise of the right guaran-
teed by Section 7 of the Act. In December 1949, Mary Watkins, a
sleeve facer, borrowed $10 from Block; she had been advanced com-
parable sums on several previous occasions. Upon giving her the
money this time, however, Block said that ". . . he was willing to
help all the girls as long as they would help him and the union didn't
come in. . . ." In January 1950, Block questioned Hazel Miller, an
employee whose discharge is considered below, about her membership
in the Union.5 And on another occasion, when Lee Roy Hufham, an
employee in the cutting department, asked Block why he,had not
gotten a raise, Block replied "... the union activity, by my being in
that, that that had held me back and that if I was to look out more for
the interests of the company, that I would in turn receive some compli-
mentary something or other from the company. . .." 6
Block denied the testimony of Watkins and Hufham but not the
interrogation of Miller. The Trial Examiner credited the testimony
of the employees. Block's general testimony of a "hands-off" policy
with respect to union matters is specifically refuted by the evidence
detailed herein. Block's statements contained clear promises of bene-
fit and threats of reprisal in violation of Section 8 (a) (1) of the Act.
3. There is other competent evidence in the record to support our
conclusion that the Respondent violated Section 8 (a) (1). Hazel
Miller frequently sought reemployment after her discharge, and on
one such occasion, in August 1950, she spoke to John Wallace, a super-
visor and Block's chief assistant. After refusing to put Miller back
"we adhere to the rule consistently followed by the Board that interrogation concerning
union membership is a violation of Section 8 (a) (1) of the Act See Standard - Coosa-
Thatcher Company, 85 NLRB 1358; Chautauqua Hardware Corp., 92 NLRB 1518 , enforced
192 F. 2d 492 (C. A. 2).
6 Hufham left Respondent 's employ in February 1951 ; he testified that this conversation
took place a few days before that.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to work, Wallace asked whether she was a member of the Union, said
he would like Miller to tell him who the union members were, and
stated that he 11... didn't want any unions working in the plant."
Similarly, Amos Carter, a foreman, questioned Robert Jacobs, an em-
ployee in Carter's department, concerning his union membership, and
Alton Ketchum, another foreman, asked Jacobs "how the union was
getting along." 7 Jacobs, whose credited testimony was undenied, was
vague about the time of these conversations, but they appear to have
occurred sometime during the first 8 months of 1950. Finally, in
June 1950,, Carter, in the course of a conversation with Hufham and
the night watchman, said that unions would never get into the Re-
:spondent's plant because "... Mr. Block could close up this plant
and move it, shut down, and fire all the people, if he wanted to."
Carter then went on to say to Hufham, "Well, you all just keep messing
with that union; you'll find out what it'll get you. You'll all end up
without your jobs."
4.-Accordingly, on the basis of all the evidence referred to above,
we find that the Respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed them in Section 7
of the Act, and thereby violated Section 8 (a) (1) of the Act.
Violations of Section 8 (a) (3)
The Trial Examiner found that the Respondent violated Section 8
(a) (3) of the Act by discharging Viola Smith, Mabel Pollock, Cora
Hazel, Marie Green," and Hazel Miller, and by refusing to employ
Estelina Raynor.
1. Smith, Pollock, and Hazel all worked in the pressing department,
and all had been employed by the Respondent for substantial periods
of time.9 They were discharged on the same day, May 15, 1950, and
in each case the reason assigned by the Respondent at the time was
excessive absence from work. However, the evidence of the Re-
spondent in support of its contention that these employees were dis-
charged for cause does not in our opinion rebut the prima facie case
of discrimination established by the General Counsel.
It is significant that the Respondent had never previously warned
any of these employees about absences. Furthermore, excessive ab-
senteeism was a chronic condition in Respondent's plant. Numerous
witnesses testified to this effect, their testimony was not refuted, and
See footnote 5, supra.
e Inadvertently referred to by the Trial Examiner as Mary Green
Smith had worked a total of 12 years for the Respondent , the last 5 of which immedi-
ately preceded the date of the alleged discrimination against her . The corresponding
periods for the other two employees are : Pollock , 20 and 7 years ; Hazel , 10 and 3 years
The employment continuity of these employees was interrupted by a strike in 1941, and
they did not work for the Respondent for periods varying from 2 to 6 years
SOUTHLAND MANUFACTURING COMPANY 57
pressing department payroll records produced at the hearing cor-
roborated this evidence.10
At the hearing, the Respondent offered evidence that Smith, Pol-
lock, and Hazel did not make their production quotas, as further cause
for their discharge, although the Respondent gave absences as the sole
reason for the discharges at the time they were effected. Here again
the record shows that in the pressing department low production was
the rule. Without repeating what is said in the Intermediate Report,
we agree with the Trial Examiner's analysis of this situation and his
disposition of this argument. Furthermore, the record reveals that
Smith, Pollock, and Hazel were by no means the worst producers in
the pressing department; indeed, Pollock was one of the best.
The real reason for the discharge of Smith, Pollock, and Hazel is
not hard to find. All wore union buttons in the plant on the morning
referred to above," and all were present when Foreman Carey made
the coercive antiunion statements on that occasion. As we have found
above, Carey at that time made clear to the pressing department em-
ployees his views on the Union and his intention to discriminate
against the "button wearers." Then, within a short time thereafter,
despite long periods of service, Smith, Pollock, and Hazel were dis-
charged on the same date, May 15. When the sequence of events in
the pressing department, preceded as it was by other evidence of Re-
spondent's opposition to the Union, is considered in connection with
the insubstantial nature of the proffered reasons for the discharges,
it is clear that those reasons were used as pretexts to obscure the fact
that the discharges were effected in retaliation for engaging in union
activities. Accordingly, we find that the Respondent discharged Viola
Smith, Mabel Pollock, and Cora Hazel because of their membership
in and support of the Union. We find, therefore, that the Respondent
by such action violated Section 8 (a) (1) and (3) of the Act.
2. The Trial Examiner found that Marie Green was discrimina-
torily discharged in violation of Section 8 (a) (3) and (1). Green,
who like Smith, Hazel , and Pollock worked in the pressing room, had
been employed by the Respondent for 7 years. Along with others in
the pressing room, Green had frequently been warned that she was
not producing her quota, i. e., enough to bring her earnings up to the
minimum wage requirement . On June 12, 1950, she was discharged
for inefficiency. At the hearing Wallace explained that 2 days before
10 The payrolls for February 14 and March 21, 1950 , showed that , out of' 60 and 62
employees , respectively , in the pressing department, no employee worked as many as 40
hours On the earlier payroll. 17 employees, and on the later payroll, 12 employees worked
30 or less hours These payrolls , pertinent in time , were apparently selected at random,
and were the only ones referred to in the record from which attendance data was cited
n All ,s ere membera of the Union , and Pollock was one of its leader s The Respondent
does not deny knowledge of these facts
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Green's discharge, he decided to lay off the presser with the largest
"makeup" on the last two payrolls, and that Green was that presser.
The Trial Examiner, in reaching his conclusion that Green was
discriminatorily discharged, apparently discounted the warnings given
,Green concerning her production, because warnings were the usual
thing in the pressing room; he minimized her failure to make pro-
duction, on the ground that low production was the rule and her pro-
duction was no worse than that of others; and he found unimpressive
Wallace's explanation of the method used in discharging Green be-
cause such method had not previously, nor has it since, been followed.
On the other hand, the Trial Examiner found persuasive the fact
that Green, like the three pressers discussed above, was one of the
"button wearers" in the pressing room on the morning when Carey
made the coercive antiunion remarks, threatening discrimination
against button wearers.
While it is true that Carey's remarks make the Respondent's dis-
charge of Green highly suspect, we cannot agree with the Trial Ex-
aminer that a preponderance of the evidence in the record substanti-
ates a finding that Green was discriminatorily discharged. Even
if we were to overlook Green's low production in the past_and the
fact that she was frequently warned on that score, because low pro-
duction was the rule rather than the exception in the plant, we believe
that under the circumstances of this case Green's production record
during the last two pay periods preceding her discharge affords suffi-
cient reason for a finding of discharge for cause. During that period,
out of some 55 or 60 employees in the pressing department, Green's
"makeup" was the greatest. Whether or not the lowest producer had
ever before or since been discharged, the right of an employer to
discharge such an employee should not be questioned absent evidence
that union animus contemporaneously motivated the discharge. Here,
Carey's remarks were made about 2 months before Green's discharge,
a month had elapsed since three of the other "button wearers" had
been discharged, and three or four other "button wearers" in the
pressing department were not, so far as the record shows, discrimi-
nated against. Accordingly, we shall dismiss the allegation in the
complaint that Marie Green was discriminatorily discharged in
violation of Section 8 (a) (3) and (1) of the Act 12
3. The Trial Examiner found that Hazel Miller was discharged
and was refused reinstatement because of her union activities. The
Respondent, in turn, contends that Miller was discharged because
her production was poor.
22 Member Murdock dissents from the reversal of the Trial Examiner in this respect.
He finds adequate support for the Trial Examiner 's finding that Green was discriminatorily
discharged and does not believe that there is a clear preponderance of the evidence on the
record considered as a whole to warrant reversing this finding
SOUTHLAND MANUFACTURING COMPANY 59
Some 3 or 4 weeks before her discharge, Miller was transferred
from her job as sewing machine operator, a job which she held for
about 4 years, to a job turning cuffs. Although the record shows
that Miller's production turning cuffs was below that of the only
other cuff turner, the record shows that it was not unusual for pro-
duction to be low on new assignments. On the, other hand, the evi-
dence shows that during her 4 years as a sewing machine operator
Miller was highly competent, and that her production record was
eminently satisfactory when compared with production records of
other employees.
Despite her proven competence as a sewing machine operator, Miller
was discharged at the very time when the Respondent was in need
of such operators. During the first 8 months of 1950, the period
in which Miller was discharged and was seeking reemployment every
2 or 3 weeks, the Respondent hired 31 learners in the sewing room.
,The only testimony of Respondent's witnesses which would explain
the failure to return Miller to her old job as a sewing machine operator
is highly questionable. Huffman, Miller's immediate supervisor,
stated that Miller's production as a sewing machine operator was
not satisfactory. Later, when the Respondent's own records clearly
refuted Huffman's testimony, Wallace, Huffman's superior, admitted
that Miller's production was not low, but then shifted grounds and
charged that her work was "sloppy." Wallace's testimony on this
charge of sloppiness was equivocal and unconvincing. Accordingly,
in view of Miller's satisfactory record as a sewing machine operator,
the Respondent's need for such operators, the expense connected with
training new employees, and the Respondent's unconvincing argu-
ments proffered in support of its reasons for discharging and refusing
to rehire Miller, we find it difficult to accept the Respondent's ex-
planation of its action with respect to Miller.
Reference has already been made to the interrogation by Block
and Wallace of Miller. These instances of interrogation, in our judg-
ment, disclose the real reason for the Respondent's discharge of, and
failure to reemploy, Miller. In response to Block's inquiry as to
whether or,not she 'was a member of the Union, Miller replied, "Well,
maybe I, am, and maybe I'm not." As a result of this interrogation,
which was not denied by, Block, and Miller's evasive answer, it is a
reasonable assumption that Block at least suspected that Miller was
engaged in union activities. 'Miller was, almost immediately there-
after, transferred to turning cuffs and then discharged, allegedly for
failing to make production in the new assignment.
That the discharge of Miller and the later refusal to rehire her was
motivated not merely by a suspicion of Miller's union activities, but
by actual ' knowledgef of these' activities, is disclosed by Wall'ace's
remarks accompanying his interrogation of Miller. When,' some 7
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
months after her discharge, on the occasion of one of her last attempts
to secure reemployment, Miller refused to give a yes or no answer to
Wallace's question concerning membership in the Union, Wallace
quite frankly informed her that he already knew she was a member
of the Union and that, moreover, he "did not want any unions working
in the plant." Like the Trial Examiner, we do not credit Wallace's
denial of these remarks.
On the basis of the interrogation of Miller by Block and Wallace,
of Wallace's ultimate admission that he knew that Miller belonged
to the Union and of Wallace's statement that he did not want unions
in the plant, and in view of the implausibility of the reasons asserted
by the Respondent for the discharge of and refusal to reemploy Miller,
we find, as did the Trial Examiner, that the Respondent discharged
and refused to rehire Miller because of her union activities, in viola-
tion of Section 8 (a) (3) and (1) of the Act.
4. We disagree with the Trial Examiner's conclusion that Estelina
Raynor was refused employment in January 1950, because of her
union activities. Although Raynor had worked for the Respondents
in earlier years, shr had not been employed at the plant between 1936
and 1949. Raynor was reemployed by the Respondent about 2 months
before the Christmas vacation in 1949, and she was not given further
employment thereafter.
Raynor had been criticized about the quality of her work in 1949.
The machine she used had not been put into operation from the time
she was refused employment to the time of the hearing. Finally, and
most significant, there is no evidence in the record to show knowledge
by the Respondent of Raynor's union membership or activity at the
time she was refused employment. The only evidence connecting
Raynor with the Union, as far as the Respondent is concerned, was a
conversation between Raynor and Block a month after she was turned
away from the plant. The evidence is clear that Raynor herself
brought up the subject of the Union in this conversation, and that
Block told Raynor he was not concerned whether she was a member
or not.
In this state of the record, we do not find that Estelina Raynor was
illegally refused employment by the Respondent in January 1950, and
we shall therefore dismiss the complaint as to her.
The Remedy
We adopt the section of the Trial Examiner's Report entitled "The
Remedy," to the extent consistent herewith, with the following
modification :
The record shows that Viola Smith was reemployed bythe Respond-
ent in November 1950, and that she quit her job about 6 weeks later.
SOUTHLAND MANUFACTURING COMPANY 61
We shall not, therefore, order the Respondent to offer reinstatement
to Smith; we shall restrict Respondent's back-pay liability to the
period between Smith's discharge on May 15, 1950, and her reemploy-
ment on or about November 1, 1950.
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Southland Manufacturing
Company, Wilmington, North Carolina, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Clothing Workers
of America, CIO, or in any other labor organization of its employees,
by discharging or refusing to reinstate any of its employees, or in any
other manner discriminating in regard to their hire or tenure of
employment, or any term or condition of employment.
(b) Interrogating its employees concerning their union member-
ship or activities, or promising benefits or threatening reprisals to its
employees in connection with their union membership or activities.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Amalgamated Clothing Workers
of America, CIO, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all. of such
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer to Mabel Pollock, Cora Hazel, and Hazel Miller imme-
diate and full reinstatement to their former or substantially equivalent
,positions, without prejudice to their seniority or other rights and
privileges, and make whole the above employees and Viola Smith, in
the manner set forth in that section of the Intermediate Report, as
modified herein, entitled "The Remedy," for any loss of pay they
may have suffered as a result of the Respondent's discrimination
against them.
(b) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other
records necessary to analyze the amount of back pay and the right
of reinstatement under the terms of this Order.
62 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
(c) Post at its plant in Wilmington, North Carolina, copies of the
notice attached hereto and marked "Appendix A." 18 Copies of said
notice, to be furnished by the Regional Director for the Fifth Region,
shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof and main-
tained by it for sixty (60) consecutive days thereafterJn conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for the Fifth Region, in writing,,
within ten (10) days from the date of this Order what steps the Re-
spondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint in this case, insofar as it
alleges that the Respondent discriminatorily discharged or refused to.
employ Gladys Whitfield, Clara Belle Davis, Marie Green, and,Este-
lina Raynor, in violation of Section 8 (a) (3) of the Act, be, and it
hereby is, dismissed.
Appendix A
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, we hereby notify our employees that :
WE WILL NOT discourage membership in AMALGAMATED CLOTH-
ING WORKERS OF AMERICA, CIO, or in any other labor organiza-
tion of our employees, by discharging any of our employees or
discriminating in any other manner in respect to their hire or
tenure of employment, or any term or condition of employment.
WE WILL NOT interrogate, threaten, or promise benefits to our
employees in connection with union activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist AMALGAMATED
CLOTHING WORKERS OF AMERICA, CIO, or any otl% r labor or-
ganization, 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 or all of such activities, except.
to the extent that such right may be affected by an agreement
la In the event that this Order is enforced by a decree of a United States Court of Appeals,
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."
SOUTHLAND' MANUFACTURING COMPANY 63
requiring membership in a labor organization as a condition of
employment , as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Mabel Pollock , Cora Hazel , and Hazel Miller
immediate and full reinstatement to their former or substantially
equivalent positions , without prejudice to their seniority or other
rights and privileges , and make whole the above -named employees
and Viola Smith for any loss of pay suffered as a result of the
discrimination against them.
All of our employees are free to become , remain , or to refrain from
becoming or remaining, members in good standing in AMALGAMATED
CLOTHING WORKERS OF AMERICA, CIO , or any other labor organization,
except to the extent that this right may be affected by an agreement
in conformity with Section 8 ( a) (3) of the Act.
SOUTHLAND MANUFACTURING COMPANY,
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.
Intermediate Report and Recommended Order
The complaint herein as amended' at the hearing, alleged that the Respondent
violated Section 8 (a) (3) of the National Labor Relations Act, as amended, 61
Stat. 136, by discharging and failing and refusing to rehire on various dates
eight employees named therein,` and Section 8 (a) (1) of the Act by said alleged
acts and by threats or promise of benefit and interrogation of employees con-
cerning union membership and activities. The answer, as modified by stipulation
during the hearing, denied the allegations of unfair labor practice.
A hearing was held before nee at Wilmington, North Carolina, from June 18 to
21, 1951, inclusive. Decision was reserved on the Respondent's motion, made at
the close of the hearing, to dismiss the complaint ; it is now disposed of in accord-
ance with the conclusions and recommendations below. Pursuant to leave
granted to all parties, a brief was thereafter filed by the Respondent.
Upon the entire record in the case and from my observation of, the witnesses,
I make the following:
FINDINGS OF FACT
I. THE RESPONDENT ' S BIISIFESS AND THE LABOR ORGANIZATION
It was admitted that the Respondent, a North Carolina corporation, manu-
factures, sells, and distributes dress and sport shirts in its plant at Wilmington,
North Carolina ; and that in the conduct of that business it has caused a sub-
1 During the hearing, so much of the complaint as alleged violation of Section 8 (a) (5)
was stricken on motion of General Counsel . - At the close of the hearing, General Counsel's
motion to conform the complaint to the proof with respect to names, dates, and places was
granted without objection.
'Pressers : Viola Smith and Mabel Pollock, May 15, 1950; Cora Hazel , May 16, 1950;
Mary Green and Gladys Whitfield , June 12, 1950; Clara Belle Davis, July 1950 . Needle
workers: Hazel Miller , February 6, 1950; Estelina 'Raynor ( no discharge alleged),
January 9, 1950.
64 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
stantial amount of materials to be purchased, transported, and delivered in inter-
state commerce from and through the States of the United States, other than the
State of North Carolina, to said plant, and a substantial amount of its finished
product to be sold, transported, and delivered in such commerce to and through
such States from said plant.
It was stipulated and admitted, the Bodrd has previously found in a repre-
sentation proceeding,3 and I now find that the Respondent is engaged in commerce
within the meaning of the Act, and that the Union is a labor organization and
admits to membership employees of the Respondent's Wilmington plant.
II THE UNFAIR LABOR PRACTICES
References hereinafter made to the evidence, not ascribed to named witnesses,
represent uncontradicted testimony, or findings where conflicts have been re-
solved ; findings are made on the basis of reliable, probative, and substantial evi-
dence on the record considered as a whole and the preponderance of the testimony
taken.
A Statement of events
The Union started to organize the Respondent 's employees in May or June 1949.
On April 26 , 1950, the Respondent was notified by letter that Pollock and Jacobs,
a die press operator , were on the union organizing committee . At a union meet-
ing held at about that time or shortly before, union buttons were distributed
among the members.
On April 4, 1950, the Union had filed a representation petition , claiming as the
appropriate unit all production employees in the Wilmington plant A hearing
was held on June 5, the Board issued its Decision and Direction of Election on
September 14, 1950, and an election was scheduled for October 9, 1950. In the
meantime ' several discharges occurred , and the Union filed charges herein and
requested withdrawal of its representation petition . The Board by order dated
October 13 , 1950, permitted withdrawal of said petition.
B. The alleged violat,on4 of Section 8 (a) (1)
McCormick, a former maintenance employee, testified without contradiction
that McGirt, a fellow employee, showed him on February 12, 1950, a copy of a
letter from the Union to the Board designating Mrs McCormick and another
employee as a union committee, and that McGirt told him that Nathan Block, the
Respondent's secretary and treasurer, had directed him to show it to McCormick.
Although McGirt was not a supervisor, the Respondent would have been charge-
able with his unlawful utterances under such circumstances since it had entrusted
him with the letter and had authorized him to speak with McCormick.' But Mc-
Girt denied making another statement attributed to him, and no finding needs to
be made in that regard.
The letter incident is important, however, since it destroys the picture which
Block painted of a hands-off policy with respect to union activities featured by
consistent and repeated statements to the employees that he was not interested
in whether they engaged in such activities. Further, considering the importance
which Block attached to this letter, I do not credit the testimony of Carter and
Carey, both foremen, that they had no knowledge of the letter of April 26 in
3 Southland Manafactnitnq Company. 91 NLRB No 38.
4 "Independent ," so-called , as distinguished from "derivative" violation of Section
8 (a) (1).
5 L 4 H Shirt Company, Inc., 84 NLRB 248.
SOUTHLAND MANUFACTURING COMPANY 65
which another union committee was designated ; the circumstance that Block
gave the earlier letter to McGirt and told him to show it to McCormick warrants
the conclusion ( which is strengthened by other evidence of Block's interest in
union activities ) that he did discuss the later one with Carey and Carter, who
were respectively the foremen of Pollock and Jacobs, the two employees named
therein.
Another aid in, determining the issue of credibility as witnesses contradicted
one another is found in Carey's explanation of a reference which he made to the
possibility of the employees becoming chambermaids . He denied that this was
a threat, but without otherwise indicating the connection he testified that when
he was asked whether they should belong to the Union, he replied that they
Rould have to get production regardless of union membership and that there
would always be a chance of their becoming chambermaids. Carey also testified
that he discussed employees' impudence with "the office." Yet in no instance was
such conduct cited as the reason for discharge, nor was it even mentioned as
such until Carey did on the last day of the hearing.
As between Block, Carter, and Carey on the one hand, and employees on the
other, the issues of credibility are determined in favor of the latter; they im-
pressed me as being truthful. (Additional examples of the unreliability of the
former will hereinafter be noted.)
B1oek's interest in his employees' union activities and his communication of
such interest to employees having been found, another manifestation appears in
Miller's testimony that 3 or 4 weeks before her discharge on February 6, 1950,
Block asked her whether she was a member of the Union. A similar violation,
occurred when Block asked Raynor ( it being found that she was still an em-
ployee ), after she first mentioned the Union , whether she was a member; 6 and
on that occasion he added the threat that he would close the plant down before
the Union got in. One other witness testified that Block asked her whether she
favored the Union, but she appeared to be confused
Miller testified further that Wallace, Block's assistant in the operation of
the plant, asked her whether she was a member of the Union , said he would
like to know who the members were, and stated that he didn't want a union
in the plant . I do not credit Wallace ' s denials ; his testimony is further con-
sidered , nifra.
Hufham, who was employed as it spreader until he quit in February 1951,
testified that 4 days before he quit he spoke to Block about an increase and was
told that he hadn't received it "on account of the Union" and that the union
activity "had held [him] back." I credit this testimony in the face of Block's
denial:
Block also denied the testimony of Watkins , another employee, that when she
borrowed $10 from him in December 1949 he said "he was willing to help all the
girls as long as they would help him and the union didn't come in." Watkins
appeared to be friendly to the Respondent and without direct personal interest
in the case . I credit her testimony . The fact that there is nothing to indicate
that her union membership has affected Watkins' relationship with the Respond-
ent, as she testified, does not alter the nature of Block's remarks
6 She testified that lie stated "in substance" that he "wasn 't interested in knowing about"
whether she belonged to a union: In her own words, that he "didn't want any part of it "
T It appears, in tact, that llufham became responsible after a time for the work of people
on his "spread" and that some employees under him were receiving more than lie was Nor
is this latter fact explained by the Respondent's testimony that Hufham's work was of poor
quality; those under him could not rise in quality of output to heights above the job which
they were jointly performing (No violation of Section 8 (a) (3) was alleged in this
regard )
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There was no denial of the testimony of Jacobs, who like Watkins is still in
the Respondent's employ and whose manner indicated a desire to help the Re-
spondent, that Carter asked him whether he belonged to the Union and Ketchum,
another foreman , asked how the Union was getting along. Such interrogation is
a violation of the Act 8 Statements by Block to his employees or instructions to his
supervisors to the effect that employees were free to engage or refrain from en-
gaging in union activities do not overcome the interference actually committed.8
Further violative of the Act was Carter's statement to Hufham that if the em-
ployees kept "messing with that union," they'd "all end up without [their] jobs."
Closely connected with the discharge of the pressers is their testimony that
they wore the union buttons to work the day after the buttons were distributed,
and that Carey said that the wearers would "end up being chambermaids" and
"he was going to get rid of them the first chance he could." As suggested, supra,
the Respondent urges-that Carey merely made two proper statements : Employees
were free to join the Union, and,if they failed to get the work out they would lose
their jobs and become chambermaids. The issue of credibility, as noted, is de-
cided against Carey. But in any event, such statements, each of which can be
clearly understood by employees with "limited education," to quote the Respond-
ent, constitute a threat when so combined in response to a question which was
directed to union membership and was wholly unrelated to the issue of getting
the work out and the disastrous consequence of failure. The threat is accen-
tuated in surroundings where, as here, low productivity is the rule so that its
immediate applicability is apparent even to any who may have limited education.
Interference is also found in Carey's threat in February 1950 that if he caught
any of his people "fooling with union," he'd fire them. This statement was broad
enough to cover many situations ; but even if recognized as limited to union dis-
cussion which had been taking place among employees on working time, it was an
improper restraint in view of the easy discipline which prevailed.
Whether or not Abernathy, who performed a variety of jobs in the cutting de-
partment, made any threats as Hufham alleged and which she denied, need not be
determined ; it does not appear that Abernathy was a supervisor. Nor was
Block's reference in a conversation with Jacobs to the moving of a hosiery mill a
threat or interference ; it appears that the moving was not connected with union
activity in fact or in concept.
Not to provoke but to summarize; it is found that the Respondent , by threats
and promise of benefit, and by interrogation, interfered with, restrained, and
coerced employees in the exercise of rights guaranteed in Section 7 of the Act.
C. The alleged violation of Section 8 (a) (3)
The atmosphere of interference above described was pregnant with possibilities
of discrimination. Such possibilities were realized.
The employees in question were paid at piece rates, with a minimum of 75
cents per hour beginning in February 1950. Block testified that the "make-up,"
or difference between the hourly minimum and the amount earned in produc-
tion, totaled $200 per week in the pressing department during the early part of
1950. By the end of November, it was down to $20, and at the time of hearing
it was $20-$25. (Carey testified that the makeup went to $300-$400 in May,
and was down to zero in August.) Block explained that the method of pressing
was changed early in the year and that time is lost with every change : new
skills must be acquired and habits formed, and adjustments are made in rates.
8 Standard-Coosa-Thatcher Company, 85 NLRB 1358.
9 Cf. Salant d Salant, Inc., 92 NLRB 1073 ; Kallaher t Mee, Inc., 87 NLRB 410.
SOUTHLAND MANUFACTURING COMPANY 67
It is not questioned that the Respondent had the right to discharge employees
for poor production or because they were otherwise unsatisfactory; 10 but where
low production was general and other employees, at least some 11 of whom pre-
sumably did not display union buttons, were not discharged although they were
among the lowest producers, the question to be determined is whether the Re-
spondent did discriminate'because of union activities in making the discharges.
All eight employees herein considered were members of the Union. .
Examination of a February 1950 payroll record for the pressing department,
in which six of the dischargees were employed, discloses that one of them "made
production" while the other five did not. It was noted that eight other employees
fell considerably below these in production. Of the latter eight, four were early
terminated, one of these leaving because of pregnancy, two for reasons which
the Respondent was now unable to determine, and only one for poor workman-
ship and low production. Of the other four, one quit 4 months after the payroll
date, one was discharged 5 months after, one left a year after on account of
sickness, and one is still in the Respondent's employ.
The same payroll record discloses that, of 60 pressers, only 9 made their
quota ; and, since absenteeism was also pointed to as justification in several
cases, it was noted that none worked as much as 40 hours, and 17 worked 30 or
fewer hours. A. March payroll record discloses that only 3 made their quota ;
all worked less than 40 hours, and 12 worked 30 or fewer."
While it may be assumed that availability for work is a desideratum, there
were references, conversely, to slack periods, layoffs, and no-work days : the
workweek here was apparently quite variable. In any event, the Respondent
does not appear to have resorted to discharges for absences ; such action, taken
in the case of employees here involved, was not only Draconian under the
circumstances, but also unusual.
Note has also been taken of the testimony by Coleman, an inspector- and now
supervisor, that employees who failed to make their quota were not fired if they
did good work. It appearing that many others who fell below quota were not
discharged, there was still no evidence of the quality of their work or that it, was
in any respect different from that of the dischargees. Further, Davis and Whit-
field, both of whom were reemployed, not only fell below their minimum, but
were also charged with poor work.
Where the record warrants a finding that an employee is less efficient or less
regular in attendance than other employees, such inefficiency or irregularity may
justify discharge. But such reason cannot be cited where it is not warranted
by the record.
It is clear from Carey's testimony that in his mind the pressers who were dis-
charged constituted a clique. He cited as their common feature the uproar and
disruption which they caused by their impudence. Curiously, neither in the
reasons otherwise assigned by the Respondent for. the various discharges nor
in the testimony of its other witnesses 33 is there 'reference to impudence or
10 Reasons other than low production were assigned in several cases. These will be
considered seriatim.
"It was testified for the Respondent that "a good many" button wearers are still in the
Respondent's employ, and that the number is "around 15"or 20-, they were not identified.
(Watkins, referred to above In connection with Block's threat and promise of benefit, is a
sleeve fixer, wore a union button, and is still employed by the Respondent.) Some 10 but.
ton wearers were named by General Counsel's witnesses, but except with respect to the
discriminatees no further testimony was offered beyond the statement by Smith that all
button wearers in the pressing department were fired.
"In the face of such statistics, Carey testified that "most of the people were there
every day on time and put a full day's work in."
11 Coleman did testify that Hazel was impudent when Carey spoke about her absences.
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
uproar. That Carey grouped these employees and attempted to justify their
discharge can be accepted ; but the proven connnon bond to dictate their discharge
was union membership and activity.
As for the subsequent all-over improvement in the quantity of production, it
cannot be established that those discharged would not at least have kept pace
with employees whose production had been as low or lower.
1 turn now to specific consideration of the respective discharges as the evidence
warrants.
1. Viola Smith
Smith had been employed by the Respondent for more than 12 years She
occasionally did sample pressing, for' which a high degree of skill is required
and a higher rate paid. On the day when they wore union buttons for the first-
time, Smith and Davis were, for the only time during their employment, charged
by Carey with talking while at work, and were sent to see Block in the office.
(It was on that day that Carey made his "chambermaid" remarks ) The latter
said something about strangers causing confusion, and sent them back to work.
About 2 weeks later, on a Monday, Smith telephoned Carey and told him that
she couldn't come in that day ; the following day she told him that she couldn't
promise to be in the remainder of that week. On both occasions, Carey authorized
absence. On Friday, when she telephoned him for her check, he said that he
would not send it. Her work and attendance record to that time did not prompt
discharge, which could have been effected over the telephone in contrast to the
request that she come to the plant It does not appear that Carey even repri-
manded her during this last week of absence, but when she returned to work on
the following Monday, May 15, she was told that she could no longer be used.
The reason assigned by Coleman for Smith's discharge was not her absences
but her failure to make production although her work was "fair"; this latter
characterization despite her work on samples . In this connection we must
recall Coleman's statement that employees who fell below quota were not fired
if they did good work.
I find that Smith was discharged on May 15 because of her newly acquired
interest in the Union and the discovery thereof by the Respondent.
2. Mabel Pollock
Pollock was employed by the Respondent for approximately 20 years. Her
work was excellent with respect to both quality and quantity of production,
although her inspector was limited in her praise. She was a leader in union
activities, meetings were held at her house, and she was one of the two employees
mentioned in the Union's letter of April 26, 1950, to the Respondent as being on
the organizing committee.
Her mother was ill on Wednesday, May 10, and Pollock did not come in at
all on the following day. She did not telephone Carey, but sent word via another
employee, who told him. Coleman testified that Carey "insisted" on a telephone
call when employees were absent, and that messages were not to be sent with
other employees. But no question was raised when Green used the latter
method," and Carey himself, who arrived only in time to testify at the close of
the hearing, stated that word was sometimes sent by another employee although
he did not recall that Pollock did that during her last absence.
As did Smith, Pollock telephoned for her check on Friday, was told by Carey
to come for it, and was fired the following Monday for the stated reason that she
14 Raynor did likewise in her department without objection.
SOUTHLAND MANUFACTURING COMPANY 69
"laid out too much." She was admittedly absent a great deal , but apparently
not as much as other employees ; while she was at work , Carey brought her mes-
sages from her mother ; and he never said anything .to her about her absences.
'Carey 's testimony that Pollock refused to shift to different styles as directed,
when no such charge was made by her immediate supervisor or inspector in
describing her performance , appears to be an insufficient attempt to explain an
otherwise unjustified discharge . Nor would the inspector have failed to have
mentioned any such constant uproar and the cause of it, to which Carey testi-
fied, had it in fact existed . Further, while citing Pollock ' s manner, Carey failed
to explain his tolerance of Davis ' impudence , concerning which he also testified.
I find that Pollock was discharged on May 15 because of her union activities.
3. Cora Hazel
Hazel had left in connection with a strike in 1941 after 7 years in the Respond-
ent's employ ; more recently , she had been employed for 3 years . She joined the
Union and wore a union button at work from the day after they were distributed
until her discharge approximately 3 weeks later . From the latter part of 1949,
until March 1950, she lost considerable time (about a day each week or every 2
weeks ) because she attended her mother , who was ill . Her attendance record
was much better for 2 months thereafter until May 12, when she asked to be off
to take her mother to the doctor.
On Monday , May 15, she told her foreman that she was sick and again received
permission to leave. When she returned the next day , her face was swollen.
(She was having trouble with her teeth .) Her card was not in the rack, and
she was told that she had been fired because she stayed out too much.
Sometimes she produced her quota ; sometimes she did not. She was among
those who were told that they would be fired if they did not step up their pro-
duction , and she testified further that most of the pressers failed to earn their
minimum. ' While the Respondent claimed that Hazel was impudent when
spoken to about her absences and otherwise ill-behaved, this appeared to be an
afterthought : it was apparently not mentioned when she was discharged.
The general remarks hereinabove made concerning quota production need
not be repeated. In any event , Hazel's discharge was laid to her absences. But
the absences pointed to were trivial in comparison with those which the Respond-
ent had for a long time condoned. Hazel 's discharge on May 16 under such
circumstances and without further explanation is found to have been effected
because of her newly acquired interest in the Union and the discovery thereof
by the Respondent"
4. Mary Green
Green had been employed by the Respondent for 7 years The paper given
her for unemployment compensation purposes when she was discharged on June
12 stated that she was "not efficient ." She was among those who did not "make
the minimum ," but it does not appear that her production was worse than that
of others.
What has already been noted concerning the widespread failure to meet
production quotas is applicable in consideration of Green's production, which
was not shown to have fallen during the last few weeks of her employment,
and to a comparison of her production with that of other employees.
'-'We need not speculate on the significance of the timing of these three discharges with
their different emphases although all of these shortcomings , or most of them , were charged
by various witnesses to all three employees : Smith and absences . Pollock and insubordina-
tion, and Hazel and low production.
998666-vol 98-52-6
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coleman, testifying that Green was discharged because she couldn't make
production, also referred to frequent lateness and subsequently added that she
was not a good presser. This latter item was not mentioned by her supervisor;
while it may have been included in "not efficient," the reference seems to have
been to quantity of turnout 1° Wallace explained that 2 days before Green's
discharge, he decided to lay off the presser with the largest makeup on the last
two payrolls, without reference to previous records, and that Green was "it."
Such information, he testified, was not sought at any other time, and the method
was not otherwise followed.
Like her three coworkers already considered, Green was apparently accepta-
ble and her work at least adequate by the Respondent' s standards until the
issue arose of union activities and her part therein as, like the others, she was
one of the button wearers ; and I find that her discharge was prompted by
such activities. (Note should also be taken of Carey's testimony that Whitfield,
who was laid off on the day that Green was discharged and who was subsequently
recalled, was responsible for most of the poor work in the department; there
is no valid explanation for the failure to recall Green.)
5. Gladys Whitfield
Whitfield had been employed for not quite 2 years when she was told that there
was no work, and was laid off. On being informed by another girl in September
that her card was in the rack (since she had not been discharged), she came in
to work. She did work for 1 day but was told that there wasn't work for her yet.
She returned on October 31, and is still on the job.
With the evidence indicating that Whitfield was not discharged but only laid
off during a slack period, a note of confusion was introduced by Carey's testimony
that most of the poor work was traced back to her. What such testimony was to
justify is not clear, but it further indicates Carey's unreliability on the witness
stand : he minimized Whitfield's skill although she has been recalled and is still
employed, while Davis, whom he called a good presser, had repeated trouble with
her work.
There is no evidence that the report of a falling off of work on June 12 was
untrue. Nor does it appear how many or which pressers (besides Davis) were
then retained. The evidence does not warrant a finding of discrimination against
Whitfield.
6. Clara Belle Davis
Davis was employed by the Respondent for almost 3 years. Carey told her that
her work wasn't good and that her production would have to "step up." There-
after, at his direction, she-took 2 weeks off in July 1950 because she was "having
trouble" with her work. On her return, several shirts were brought back to her,
another girl "fixed" them, and Carey told Davis to "get her time."
I find that Davis was discharged for sufficient and proper cause. ' (She was
recalled on October 31, had further trouble with her work, wanted to quit, and
apparently was discharged on May 11, 1951.)
7. Hazel Miller
Miller worked for 4 years on a single-needle machine and then, for some 3
weeks immediately prior to her discharge on February 6, 1950, turned cuffs. -
"The record concerning the quality of Green's work is in marked contrast to the clear
details with respect to Davis', which was admittedly poor . Yet Davis was retained for
some 2 months after Green 's discharge and was later reemployed.
SOUTHLAND MANUFACTURING COMPANY • 71
While the other cuff turner had been performing this operation for half a year
or more as against Miller's experience of but a few weeks, the latter's output was
.not only smaller but actually fell off ; it cannot be said that the Respondent with-
out warrant took her off the cuff-turning job. But her production had compared
favorably with others in the sewing room, and in the light of the apparent
.similarity and easy transferability among the sewing jobs, the Respondent's
.failure to assign her to another, either when her previous operation was discon-
tinued or when she was discharged, indicates discrimination. Such discrimina-
tion was based on at least a suspicion that she belonged to the Union, and the
suspicion was indicated when,, as noted above, both Block and Wallace asked her
about her membership"
The discrimination against Miller is pointed up by the fact that during the first
8 months of 1950, while she applied every 2 or 3 weeks for work, 31 learners'
were hired in the sewing room.11 Miller testified that when she applied for reem-
ployment Wallace told her that her production had been poor; her supervisor
testified that Miller had been discharged for that reason. But the production
records as noted at the hearing indicate that her production for the last 2 months
on her previous job compared favorably with others' and belie such declarations.
Wallace, citing that reason on the stand, proved his own unreliability as a witness.
Unlike the supervisor, he also assigned "sloppy work" 20 as the reason for Miller's
discharge.
I find that Miller was discharged and was refused reinstatement because of
her union activities.
8. Estelina Raynor
Raynor had been employed by the Respondent for approximately 6 years
between 1923 and 1936, leaving twice as she moved to the west coast . She had
more recently entered the Respondent 's employ and worked for about 2 months
until December 22, 1949, when the plant was closed for the Christmas vacation.
She had been employed at various single -needle jobs.
Raynor testified that she did not return to work on January 2, 1950 , sending
word that her mother was ill but that she would return on January 9. Her
supervisor testified that Raynor said she would have to be out indefinitely and
that she did not say whether or not she was coming back. This testimony does
not indicate that Raynor permanently quit; nor was she then discharged. I
credit Raynor 's statement that she sent word that she would return on the 9th.
On the latter date, Block told her that he did not have any work or a machine
for her , but that he would let her know . She reapplied a month later and received
the same reply. She admitted that she had been told to do neater work and to
increase her production ; in the latter connection , she noted that she had to
wait for the work as it was turned out by the girls ahead of her, hers being a
finishing operation.
While the direct evidence indicates that Block did not question Raynor con-
cerning her union activities until about a month after he first refused her employ-
ment, he had in the interim interrogated Miller . When the question first became
determinative must be decided in the light of the attendant circumstances.
37 It will also be recalled from Watkins' testimony that Block had indicated his interest
in union activities approximately 2 months before Miller was discharged.
18 This was almost three times the number of employees in her department.
19 It costs $500-$750 to train an operator. Block indicated that despite this expense he
preferred new operators to old ones who couldn't make the grade. But again, it does not
appear that the Respondent discharged employees with poorer production records than
those who were connected with the Union and were.discharged.
20 This characterization is suspect because of Wallace's penchant for applying. it quite
generally ; at least it is not unusual
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Raynor had been active in organization work, soliciting membership and work-
ing with the union organizers in distributing literature. She was clearly an
experienced operator, and had been twice rehired upon her return to the com-
munity. 'Whether she was "sloppy" and below the Respondent's norm can be
judged from her previous employment record with the Respondent. Reference
may here be made to what has been noted above concerning the number of learners
hired in the sewing room during the first 8 months of 1950 and the expense in-
volved, especially when contrasted with the transferability of Raynor to opera-
tions which she had previously performed for the Respondent.
I do not believe that the refusal to employ Raynor was based on the quality
or quantity of her work; she was admittedly not discharged. Viewed as a
whole, the evidence indicates and I find that the same discriminatory intent
which manifested itself in the promise of benefit made to Watkins in December
1949, in the questioning of Miller in January 1950 at about the very time when
Raynor was being told that they did not have anything for her, and in Miller's
discharge a few weeks later, prompted the refusal to put Raynor to work on
January 9 and thereafter.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section II, above, occurring in.
connection with the operations described in Section 1, above, have a close, inti-
mate, 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.
IV. THE REMEDY
Since it has been found that the Respondent has engaged in and is engaging
in certain unfair labor practices affecting commerce, I shall recommend that it
cease and desist therefrom and take certain affirmative action in order to effectu-
ate the policies of the Act.
It has been found that the Respondent, by discharging and failing to reinstate
Smith, Pollock, Hazel, Green, Miller, and Raynor, discriminated against them in
regard to their hire and tenure of employment in violation of Section 8 (a) (3)
of the Act. I shall therefore recommend that the Respondent offer to each of
said employees immediate reinstatement to their former or substantially equiva-
lent positions, 21 without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay they may have suffered by reason of the
discriminatory action afore-mentioned by payment to each of them of a sum of
money equal to that which she would normally have earned less her net earnings,''
which sum shall be computed" on a quarterly basis during the period from the
discriminatory discharge to the date of a proper offer of reinstatement. It is
also recommended that the Board order the Respondent to make available to
the Board upon request payroll and other records to facilitate the checking of
the amount of back pay due.'
It has been further found that the Respondent, by threats and promise of
benefit, and by interrogation concerning union activities, interfered with, re-
strained, and coerced its employees in violation of Section 8 (a) (1) of the Act.
zs The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65
NLRB 827
"Crossett Lumber Company, 8 NLRB- 440. See also Republic Steel Corporation v.
N. L. R. B, 311 U. S. 7.
'I F. W. Woolworth Company, 90 NLRB. 289.
24 Ibid. -
SPARTAN AIRCRAFT COMPANY 73
a shall therefore further recommend that the Respondent cease and desist
therefrom.
The unfair labor practices found herein indicate a purpose to limit the lawful
concerted activities of the Respondent's employees. Such purpose is related to
-other unfair labor practices, and it is found that the danger of their commission
is reasonably to be apprehended. I shall therefore recommend a broad cease-and-
desist order, prohibiting infringement in any manner upon the rights guaranteed
in Section 7 of the Act.
For the reasons stated in the subsection entitled "The alleged violation of Sec-
tion 8 (a) (3)," I shall recommend that the complaint be dismissed insofar as it
:alleges the discriminatory discharge of Whitfield and Davis.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. Amalgamated Clothing Workers of America, CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Viola
Smith, Mabel Pollock, Cora Hazel, Mary Green, Hazel, Miller, and Estelina
Raynor, thereby discouraging membership in the Union, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of
:Section 8 (a) (3) of the Act.
By such discrimination and by interrogating, threatening, and promising
benefits to its employees in connection with union activities, thereby interfering
with, restraining, and coercing them in the exercise of 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. The aforesaid labor practices are unfair labor practices affecting commerce
wi=thin the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent has not engaged in unfair labor practices within the meaning
of the Act by discharging Gladys Whitfield and Clara Belle Davis.
[Recommendations omitted from publication in this volume.]
SPARTAN AIRCRAFT COMPANY and TRANSPORT WORKERS UNION OF
AMERICA , CIO, PE'rmTIONrR . Case No. 16-RC-844. February 13,
1959
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Elmer Davis, hearing officer.
The hearing officer's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Houston and Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
J8 NLItB No. 19.