Southwest Shoe Exchange Co.

National Labor Relations Board - Board Decisions

Mar 13, 1962

136 N.L.R.B. 247 (N.L.R.B. 1962)

SOUTHWEST SHOE EXCHANGE COMPANY 247
Southwest Shoe Exchange Company and International Brother-
hood of Boilermakers , Iron Ship Builders , Blacksmiths, Forg-
ers and Helpers , AFL-CIO , Subordinate Lodge 96
Exchange Parts Company and International Brotherhood of
Boilermakers , Iron Ship Builders, Blacksmiths, Forgers and
Helpers , AFL-CIO, Subordinate Lodge 96
Rebuilders Service Company and International Brotherhood of
Boilermakers, Iron Ship Builders , Blacksmiths, Forgers and
Helpers, AFL-CIO, Subordinate Lodge 96. Cases Nos. 16-CA-
1451, 16-CA-1475, 16-CA-1475-2, 16-CA-1483, 16-CA-1489, 16-
CA-1504, and 16-CA-1503. March 13, 1962
DECISION AND ORDER
On November 8, 1961, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled consolidated proceeding,
finding that Southwest Shoe Exchange Company, Exchange Parts
Company, and Rebuilders Service Company, herein called the Re-
spondent, had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. The Trial Examiner also found that the Respond-
ent had not engaged in certain other unfair labor practices and recom-
mended that the complaint be dismissed with respect to such allega-
tions. Thereafter, the Respondent and the General Counsel each
filed exceptions to the Intermediate Report with supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in these cases, including the Intermediate Report and the excep-
tions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the additions and modi-
fications noted.'
The Trial Examiner found that Respondent violated Section
8(a) (1) of the Act by discharging Phyllis Buck, a supervisor, because
1 In "The Remedy" section and Appendix A of his Intermediate Report, the Trial Examiner
indicates that Bobby Isom is entitled to reinstatement as well as backpay However, Isom
lost only part of a day's pay as a result of the discrimination against him and, as the Trial
Examiner proposed in his Recommendations we shall order only that Isom be made whole
for the discrimination against him Contrary to the contention of the General Counsel, we
do not find that Respondent's institution of an incentive pay arrangement in certain de-
partments, which was the subject matter of an announcement to the employees prior to the
inception of the Union's organizational campaign, violated Section 8(a) (1) of the Act.
136 NLRB No. 25.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she had refused to follow Respondents' instructions, which he found
to be illegal, to try to talk employees out of voting for the Union.
The only evidence contained in the record which relates to instruc-
tions to Phyllis Buck regarding this matter consists of her testimony
that during a conversation with another supervisor, at the conclusion
of a foreman's meeting on May 4, she stated, "They are handing us all
of this stuff about trying to talk to people out of voting for the union-
if they wait on me to talk people out of voting for the union they will
have a hell of a long wait because I am going to help talk it in if I
can." Even assuming, however, that Phyllis Buck was instructed by
the Respondent to talk people out of voting for the Union, as alleged
by Buck and found by the Trial Examiner, we do not adopt the Trial
Examiner's unfair labor practice finding in her case.
If Buck was discharged for failing to follow the instructions, the
Respondent did not violate the Act for, unlike the Trial Examiner, we
do not find that those instructions were unlawful. Respondent,
through its supervisors, was privileged to try to dissuade employees
from supporting the Union, so long as threats of reprisals or promises
of benefit were not employed,' and there is nothing in the record to
suggest that Respondent instructed Buck to engage in illegal conduct
on its behalf .3
But there is a more basic disagreement that we have with the Trial
Examiner in Buck's case. It is that we are not persuaded that Buck
was discharged because of the position she took on May 4. She was
not discharged until 2 weeks later. And between May 4 and the dis-
charge, she twice permitted the employees in her department to leave
before quitting time, contrary to instructions and earlier warnings, the
last time being on May 16. Her discharge fol]owed on May 17. In
these circumstances, and upon the entire record, we are unable to find
that Buck was discharged for a discriminatory reason. Inasmuch as
the General Counsel has thus failed to sustain the burden of proof
incumbent upon him in this case, we shall dismiss the complaint inso-
far as it pertains to the discharge of Buck.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the Act, the National Labor Relations Board hereby orders that
the Respondent, Southwest Shoe Exchange Company, Exchange
Parts Company, and Rebuilders Service Company, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership or activities in International Broth-
erhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers
2 Brookside Industries, Inc, 135 NLRB 16
3 Cf Jackson Tile Manufacturing Company, 122 NLRB 764 , 767, enfd 272 F 2d 181
(C A. 5).
SOUTHWEST SHOE EXCHANGE COMPANY 249
and Helpers, AFL-CIO, Subordinate Lodge 96, or any other labor
organization, by discriminatorily discharging or discriminating in any
other manner in regard to the hire and tenure of employment or any
term or condition of employment of its employees.
(b) Attempting to interfere with, restrain, or coerce employees
in the exercise of their rights guaranteed by Section 7 of the Act by
giving them written or oral warnings.
(c) In any other manner interfering. with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Help-
ers, AFL-CIO, Subordinate Lodge 96, or any other labor organi na-
tion, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purposes
of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Offer to Winford Blackstock and Howard R. Hunt immediate
reinstatement to their previous or substantially equivalent positions
and make each of them and Bobby Isom whole for any loss of earnings
they may have suffered as a result of the discrimination against them
in the manner set forth in the Intermediate Report under the section
entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its plants in Fort Worth, Texas, copies of the notice
attached hereto marked "Appendix A."' Copies of said notice, to be
furnished by the Regional Director for the Sixteenth Region, shall,
upon being duly signed by Respondent's representative, be posted by
it immediately upon receipt thereof, and be maintained by it for 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 Regional Director for the Sixteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
* 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."
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, as amended, we hereby notify you that :
WE WILL NOT discourage membership in, or activities on behalf
of, International Brotherhood of Boilermakers, Iron Ship Build-
ers, Blacksmiths, Forgers and Helpers, AFL-CIO, Subordinate
Lodge 96, or in any other labor organization, by discriminatorily
discharging or laying off any of our employees, or by discriminat-
ing in any other manner in regard to their hire and tenure of em-
ployment or any term or condition of employment.
WE WILL NOT attempt to interfere with, restrain, or coerce any
of our employees in the exercise of their rights guaranteed by
Section 7 of the Act by giving them written or oral warnings.
WE WILL NOT in any manner interfere with, restrain, or coerce
employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist International Brother-
hood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers
and Helpers, AFL-CIO, Subordinate Lodge 96, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in any other concerted
activities for the purposes of collective bargaining or other mu-
tual aid or protection, or to refrain from any or all such activities.
WE WILL offer reinstatement to their same or substantially
equivalent employment to each of the following-named employees
and make each of them and Bobby Isom whole for any loss of pay
they may have suffered by reason of the discrimination practiced
against them.
Winford Blackstock
Howard R. Hunt
All of our employees are free to become, remain, or to refrain from
becoming or remaining members of the above-named or any other labor
organization.
SOUTHWEST SHOE EXCHANGE COMPANY,
EXCHANGE PARTS COMPANY,
REBUILDERS SERVICE COMPANY,
Employers.
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.
Employees may communicate directly with the Board's Regional
Office (Room 2093, Federal Center, 300 West Vickery, Fort Worth 4,
Texas; Telephone Number, Edison 5-5341, extension 284) if they have
any questions concerning this notice or compliance with its provisions.
SOUTHWEST SHOE EXCHANGE COMPANY 251
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges and amended charges duly filed on various dates from January 23
to June 28, 1961, by International Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, AFL-CIO, Subordinate Lodge 96, hereinafter
called the Union or Charging Party, the General Counsel of the National Labor
Relations Board, hereinafter called the General Counsel' and the Board, respective-
ly, by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued
its complaint dated May 1, 1961, and its consolidated complaint dated July 20,
1961,2 against Southwest Shoe Exchange Company, Exchange Parts Company, and
Rebuilders Service Company, herein called Respondent. The complaints alleged
that Respondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1), (3), and (4) and Section 2(6)
and (7) of the Labor-Management Relations Act, 1947, as amended, herein called
the Act. Copies of the charges, amended charges, complaint, amended or con-
solidated complaint, and notice of hearing thereon, were duly served upon Respond-
ent and the Union.
Respondent duly filed its answer admitting certain allegations of the complaint but
denying the commission of any unfair labor practices.
Pursurant to notice, a hearing thereon was held at Fort Worth, Texas, on June 27
and 28 and July 31 through August 4, 1961, before the duly designated Trial Ex-
aminer. All parties appeared at the hearing, were represented by counsel or rep-
resentative, and were afforded full opportunity to be heard, to produce, examine,
and cross-examine witnesses, to introduce evidence material and pertinent to the
issues, and were advised to their right to argue orally upon the record and to file
briefs or proposed findings and conclusions or both. Oral argument was waived
No briefs have been received.3
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Southwest Shoe Exchange Company, Exchange Parts Company, and Rebuilders
Service Company are, and have been at all times material herein, corporations
duly organized under, and existing by virtue of, the laws of the State of Texas. At
all times material herein Respondent Exchange has maintained its principal office
and place of business at 2500 West Vickery, in the city of Fort Worth, State of
Texas, and Respondent Rebuilders and Respondent Southwest have maintained their
principal office at 2500 West Vickery, in the city of Fort Worth, State of Texas,
and their plants at U.S. Highway 81, South, city of Fort Worth, State of Texas,
and 809 Craddock, city of Fort Worth, State of Texas, respectively, and all
Respondents have been at all times material herein engaged at said plants and
locations in the manufacture, sale, and distribution of rebuilt automotive parts and
related products. Respondent Exchange, Respondent Southwest, and Respondent
Rebuilders are separate corporations but operate as and constitute a single integrated
enterprise .4
It is admitted that each of said corporations, in the course and conduct of its
business operations during the past 12-month period, purchased parts and equipment
consisting principally of automotive parts valued in excess of $50,000, of which
i This term specifically includes the attorney appearing for the General Counsel at the
hearing
2 This so-called consolidated complaint was in fact an amended complaint required to be
filed by the Trial Examiner after the first 2 days of hearing herein
3It appears to this Trial Examiner that, If the Geneial Counsel considers a case of suffi-
cient moment to be tried for a period of 7 days and to encompass a transcript of over
1,200 pages, the case should be of sufficient import for General Counsel to file a brief This
is especially so in a case, such as this, where much of the testimony produced by the
General Counsel is of such a tenuous character as to give this Trial Examiner, at least, con-
siderable difficulty in determining the theory upon which it was produced and made part
of this record
4 Respondent Rebuilders was added as a party Respondent in the amended consolidated
complaint without objection by Respondent because of the fact that Respondent admitted
that Respondent Rebuilders was part of a single integrated enterprise
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more than $50,000 worth were shipped in interstate commerce to its plant from
points outside the State of Texas and that more than $50,000 worth of finished goods
were shipped in interstate commerce from its plants to points outside the State of
Texas.
The complaint alleges, the answer admits, and the Trial Examiner finds that the
integrated Respondent is engaged in commerce within the meaning of the Act as is
each of its parts.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Boilermakers , Iron Ship Builders , Blacksmiths,
Forgers and Helpers, AFL-CIO, Subordinate Lodge 96, is a labor organization ad-
mitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES INVOLVED
A. History
In order to make this report at all understandable it is necessary to set down here
a small part of the history of the Union's attempt to organize Respondent.
The Union first began its attempt to organize Respondent's employees prior to
November 9 or 10, 1959, for on that day the Union wrote Respondent claiming to
represent a majority of its employees. As a result of an R petition filed by the Union,
the Board on March 18, 1960, conducted a representation election among the Re-
spondent's employees (not published in NLRB volumes). The Union lost
On June 10, 1960, the General Cousel issued a complaint against Respondent based
upon a charge filed by the Union which was heard together with objections to the
aforementioned election in September 1960 (not published in NLRB volumes). At
this hearing employee M. D. Townley was the only witness for the General Counsel
whereas C. V. McDonald, then Respondent's general manager who died in February,
1961, was Respondent's only witness.
The Trial Examiner and the Board both found that Respondent had committed
unfair labor practices by unilaterally making certain wage increases. Thereafter
the Union requested and was permitted to withdraw its objections to the 1960 elec-
tion. This unfair labor practice finding is now before the Circuit Court of Appeals
for the Fifth Circuit on enforcement proceedings.
On May 24, 1961, the Union filed another representation petition involving Re-
spondent's employees. Although the Union held a small organizational meeting on
April 6, 1961, the first general meeting held on April 23, 1961, for the employees
was announced by handbills passed out to Respondents employees on April 21, 1961.
B. Interference, restraint, and coercion
1. Alleged photographing
The complaint alleges that on or about May 2, 1961, Respondent photographed
persons distributing handbills for the Union in order to interfere with, restrain, and
coerce its employees.
On or about May 2, 1961, at a time when the Union was distributing leaflets to
Respondent's employees leaving its plant on Highway 81, Superintendent Glen Mc-
Donald and three or four employees, including one "Torch" Phillips, who was to act
as Respondent's observer at the election of June 23, were standing on the loading
dock where McDonald was observed holding an instrument looking like a camera to
his eyes and apparently taking pictures of the event.
McDonald and the employees present testified that McDonald was in fact looking
through an Argus viewfinder at pictures taken by an employee of the recently com-
pleted move of Respondent Rebuilders into the new factory which was then being
handbilled. These witnesses all denied that McDonald or anyone else was taking
pictures at the time.
While McDonald's actions may have appeared to those doing the handbilling to
be that of a man photographing their activities in front of the plant, that suspicion is
overcome by the direct testimony of those present.
Accordingly, the Trial Examiner will recommend that this allegation of the com-
plaint be dismissed.
2. Warning slips
The complaint alleges that on or about December 8, 1960, Respondent began a
practice of issuing written warning slips to employees timed so as to "coincide with
the union organizational campaign and for the purpose of discouraging membership
in and activity on behalf of the Union." The complaint then named 13 employees
with the date on which they received such written warning slips.
SOUTHWEST SHOE EXCHANGE COMPANY 253
The evidence shows that the Respondent began its practice of giving employees
written warning slips for actions which Respondent considered warranted such
reprimands to its employees as early as 1957 or 1958. Thus it is clear that the prac-
tice, being in existence prior to the advent of the Union, could not have been con-
ceived for the purpose of combating union organization.
However, after the Union began its organizational drive among the Respondent's
employees, Respondent received the following advice, according to its personnel
manager, from its attorneys: ". . I will say that Mr. Karl and Harold Mueller
did advise us to put it in writing if possible whenever we did issue warnings, because
we were going to be questioned about what had happened and we were going to be
charged with unfair labor practices, and in order that our skirts might be clean that
we should have the evidence in the file in the form of written warnings. . . . We
began to be more careful about getting the warnings in writing, we certainly did."
It was Respondent's practice to make these written warning slips out in duplicate.
One copy was given to the employee and one was to be signed by that employee and
returned to Respondent's general file.
This general file, in which all written warnings issued were supposed to be filed,5
indicated 1 such warning had been issued in 1958, 38 in 1959, 97 in 1960, and 44 to
June 29, 1961.
Hence it is quite clear that, whereas this reprimand system had been established
without regard to the Union, the system underwent a considerable change in both
character and purpose with the advent of the Union's organizational drive.
As might have been expected, some of these written warnings appeared to have
been no relation to union activity whereas others appeared to have been very defi-
nitely attributable to that activity.
As an example of the former, there are the written warning slips issued by
Respondent on May 12, 1961, to Willie Craft and on June 14, 1961, to Elbert
Bowman. The slip to Craft indicates that he has not been securing enough produc-
tion on the glue machine and is, therefore, being transferred to another job upon
his return from his vacation. The slip to Bowman referred to an incident in the
plant when Bowman made a comment within the hearing of Foremen Cleophus
Williams and Victor Taylor that the "white shirts" (supervisors) were bothering
him by watching him too much. The warning slip refers to this as "insubordinate
and disrespectful conduct."
At the very most the issuance of these slips would seem to indicate that Respondent
may have been a nasty, mean, or overly strict employer. But this record indicates
no connection between the issuance of these slips and any union activity. Under
this Act an employer may be just as mean, hateful, or overly strict as he may care
to be so long as his activity is not for the purpose of coercing employees to abandon
their union activities. Accordingly, the Trial Examiner recommends the dismissal
of the complaint as to these two written warnings.
On the other hand the warning slips issued by Respondent on June 24, 1961, to
Bobby Isom, Jimmy Bryant, Kinney Vines, Clara Walden, Velma Wade, and Don
Massey seemed to have been issued directly as a result of their participation in union
matters on or about the day of the National Labor Relations Board election. Two
of these employees, Bobby Isom and Don Massey, were known to Respondent to
have acted as union observers at this election. The others were accused of "idle
conversation" on the morning of the election.
The Isom and Massey cases will be discussed herein while numerous other written
warning slips will be discussed in the discharge cases which follow.
About 9:30 a.m. on June 22, 1961, the day before the representation election,
Assistant Superintendent Lucher told Foreman Murray Wright that employee Bobby
Isom was to be a union observer at the election and was to check out at 10 a.m.
the following day for a preelection conference.6
About 15 minutes thereafter Wright told Isom, "Bobby, your damn buddy wants
to see you in the morning. I want you to get your card and punch out at about 5
minutes to 10 and go see him." When Isom asked, "What buddy," Wright answered,
"The union organizer. ..."
About 2 p.m. that same afternoon, Wright returned to Isom's working place just
as Isom missed a blow with a hammer and nearly hit himself causing Isom to curse
6 Respondent's witnesses were not sure that this file did contain all of the warnings
issued.
6 Wright attempted to maintain that he did not receive this information until 11 or
11 :30 a.m that morning , I e., after the episode began The facts and Locher both disprove
this claim
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and then laugh with fellow employee Jimmy Bryant, who was working at the same
table. Wright said, "Slim, you and Jimmy, I want to tell you something, you all are
going to have to knock it off or go home."
A little while later, Isom came across a certain type of carburetor center and, as
he had been ordered, approached Leadman Clyde Howard who told Isom:
Let me tell you, boy, you are grabbing at a damn golden apple. . I will tell
you what you do, you are not in a working mood anyway. You just punch out
and go home.
Hence, Isom lost a part day's work. Bryant was not disciplined.
On June 24, the day after the election at which Isom was a union observer, How-
ard and Wright gave Isom and Bryant written warning slips allegedly for having
engaged in "idle conversation" and, in the case of Isom, for "disregarding instruc-
tions" and "insubordinate conduct toward Foreman Clyde Howard." Neither Isom
nor Bryant would sign these warning slips.
Don Massey missed work on June 17. When Massey returned to work on June 19
his foreman, Kiker, reprimanded Massey for not having reported that he would be
absent on June 17. Massey explained that he thought that his landlady had reported
his absence. Although Massey worked the whole of the week beginning June 19,
nothing further was said about this episode even when Massey acted as a union
observer at the election on June 23. At the end of that week Massey went on a vaca-
tion lasting until July 5. During his vacation Massey attended the present hearing
on June 27 and 28. When he returned to work on July 5, Kiker handed him a
written warning slip in regard to his having been off work on June 17 without per-
mission, a matter about which he had last spoken to Massey on June 19.
The Trial Examiner is convinced and therefore finds that Isom and Massey were
given written warning slips by Respondent only because they acted as union observ-
ers at the election and/or attended the National Labor Relations Board hearing in
the instant matter, and in an effort to discourage such activities on their part.
C. The discharges
1. William C. Cragg
On the day after the election when it was known that the Union had won, Super-
visor Murray Wright called the employees of the carburetor department together
and spoke of the election as follows:
We have had a lot of discussion going on here, there, yonder; the accident rate
has gone up, everybody being shook up about this thing. Our defective percent-
age has been climbing. Our working conditions are not as they should be.
The efficiency of each individual operation has fallen down. Production has
fallen off, and since all this thing is over we have got to get back to work and
look for the future as bright as it might be, or as dull as it might be, we hope
it will be the best. . I hope that you have gotten what you want. I hope
you are satisfied with it. I think if they do as good a job, or try to do as good
a job as management has, fulfill as many of their commitments or obligations
or promises that management has, that we all have a worthwhile thing and
we will be pleased with it. The best thing is to just get on the ball and let's
knock this conversation off during working hours, and do the job we are ex-
pected to do, and everything will roll right along.
Wright added that he had heard that the Union had made a statement that the
average employee in the automotive rebuilding industry was getting $2.37 an hour,
and that, if the Union achieved that wage, he "would start working with" the em-
ployees. He also informed the employees to "stay at their work stations and do
their job, and if they had to talk to anyone or needed to know anything about the
units on which they were working, to ask either Clyde Howard or" himself. He
told the employees that there would be no leaving the department without permission
with the exception of going to the restroom.7
Despite the alleged falling off in production referred to by Wright in his talk
to the employees of the carburetor department, 4 days later on June 28 Respondent
laid off six employees of that department, including William C. Cragg, who was
another union observer at the election. The alleged reason for these layoffs was
'r The General Counsel dismissed an allegation in the complaint regarding this talk by
Wright It is found here only as an explanation for the issuance of the various warning
slips.
SOUTHWEST SHOE EXCHANGE COMPANY 255
that inventory was too high. Before these layoffs stopped on July 25, some 12
employees in all had been laid off.
The complaint alleges the layoff of William C. Cragg to have been in violation
of Section 8(a)(3) of the Act. Cragg himself did not testify.
There is evidence in the record of some strange sounding transfers of newly hired
employees in the carburetor department at or about this time which, apparently,
resulted in the layoff of Cragg as the last man on June 28. However, the evidence
regarding these other transfers is so nebulous and so obscure in its connection with
the Cragg layoff, that this Trial Examiner is unable to make any finding, without
indulging in speculation, that the layoff of Cragg was in fact discriminatory. The
Trial Examiner will, accordingly, recommend that the complaint as related to
Cragg be dismissed.
2. M. D. Townley
Townley was hired by Respondent in March 1957, and by the time of his discharge
on January 23, 1961, was the highest paid employee in the brakeshoe department.
For most of his employment in that department under Supervisor George McGee,
Townley had been a wheelabrator operator.
Townley acted as a union observer at the March 18, 1960, National Labor Rela-
tions Board election so that his union adherence was well known to Respondent.
On or about September 26, 1960, Superintendent Hardin and Supervisor McGee
transferred Townley, over his obectjion, to the job of inspector in the brakeshoe
department. This was a new job having been originated at this time because of
the fact that Respondent was receiving so many complaints from customers as to
imperfections of the brakeshoes being sold by Respondent.
Clem Gober, quality control supervisor, and McGee orally instructed Townley
in his new duties which included, among many other things, testing each Power
Duty shoe, Respondent's premium brand, for are and thickness of lining and spot
checking Respondent's other brands.
On December 8, 1960, Respondent gave Townley a written warning for having
passed defective brakeshoes. Townley complained that he had had no written
instructions as to allowable tolerances, which, incidently, Respondent had changed
from those permissible in the manufacturer' s manual . Sometime about Christmas
time Respondent did, in fact, give Townley ,a written manual, with permissible tol-
erances, of his varied duties as inspector.
On January 13, 19161, Gober noticed that the operator of the adhesive machine
had placed several hundred strips of braking material to which adhesive had been
applied preparatory to bonding same to the shoe too closely together on the drying
racks. The operator of the adhesive machine on this occasion was a substitute but
experienced operator.
As a result on January 17 Respondent gave Townley another written warning slip
for his "admitted" failure to check these strips. Townley refused to sign the writ-
ten warning on the ground that it was not true inasmuch as he had not admitted to
Gober his failure to check these strips. It is noteworthy that the substitute operator
of the adhesive machine who had placed the strips was not given a warning slip for
his part in this incident.
When Townley refused to sign this slip, he was taken before Superintendent
Hardin and Personnel Director Meador where he again refused so sign for the same
reason above given. Meador inquired if Townley was calling Gober a liar.
Townley agreed that, if Gober said that Townley had admitting not checking these
strips as noted in the reprimand, then it was a lie. Meador demanded that Townley
sign a statement to that effect. He wrote one out on the back of the reprimand
slip which Townley signed on Meador's orders. Then Townley was permitted to
return to his work.
On January 20 Respondent handed Townley another warning slip reading as
follows:
Yesterday you signed a statement in which you called Clem Gober, our quality
control supervisor, a liar. This is to advise you that this sort of thing will
not be tolerated, and any subsequent indulgence of this character on your part
will result in your immediate termination.
Again Townley refused to sign.
On that same day Operations Manager Don League ordered Brake Engineer
Holbrook to equip a customer's oar with Respondent's Power Duty brakes as a test.
According to reports received thereafter by League, Holbrook was required to use
three sets,of Power Duty brakes (enough to equip three cars) in order to equip this
customer's car due to the number of defective shoes which had passed inspection
and were packaged in the three sets of brakeshoes he had. Thereupon League
ordered Gober to spot check the packaged sets of Power Duty brakeshoes then-in
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stock. According to the testimony of Gober, that Saturday he checked 45 sets of
such packaged shoes and found 22 of those sets to have defective shoes therein.
Thereupon Gober wrote a report to League and Hardin to this effect and recom-
mended the discharge of Townley.8
On January 23 Respondent discharged Townley giving him at the same time the
following written notice of disciplinary action:
The Company has been very lenient in regard to your mistakes in the important
job of department inspector. However in December 1960 it was necessary to
tell you in writing that you were not handling your job properly (after a number
of verbal warnings). After this December written warning you were furnished,
at your request, a manual outlining your exact duties and responsibilities. After
about a month, during which no improvement was shown, you were again
warned in writing (January,17, 1961). In connection with this warning, you
called Clem Gober, our quality control supervisor, a liar. This can not be
tolerated and it was necessary to give you another written warning regarding
this incident. We have now come to the conclusion that you are either delib-
erately passing substandard merchandise or are grossly negligent in your duties.
In either event in fairness to the Company, our customers and other employees,
we must terminate you, and, as of now, you are discharged, for the reasons
stated above.
The cynical might note the complete omission of any reference to the whole epi-
sode of the January brakeshoes upon which Respondent appears to rely so heavily.
The cynical ,might wonder at this apparent omission, especially in view of the tech-
nique used by Meador in forcing Townley into referring to Clem Gober as a "liar."
The whole episode as conducted by Respondent seems to indicate a determination
on the part of the Respondent to be rid of Townley for some undisclosed reason.
However, although Respondent made the offer to produce these January sets of
brakeshoes so that the General Counsel could test the sets contained therein in order
to satisfy himself that the sets passed by Townley did in fact contain defective brake-
shoes, General Counsel made no effort to avail himself of the proffered opportunity.
Hence, on this record, Townley's deficiencies as an inspector stand, in effect, un-
denied. In this view of the record the Trial Examiner must find that Respondent
discharged Townley for cause.
3. Winford Blackstock
Blackstock was employed by Rebuilders Service Company in September 1959,
and worked steadily until he was discharged April 5, 1961.
He signed a union authorization card in November 1959, and wore a union
button around the plant before the March 1960 election so that Respondent well
knew of his union affiliation.
On January 9, 1960, Don League gave Blackstock a written warning regarding
complaints he had received from two women employees about Blackstock's actions
On December 12, 1960, Glen McDonald placed a memo in the personnel files to
the effect that he had given Blackstock a verbal warning about being "away from
his job talking. . ."
In September 1960, after the election, the Board subpenaed Blackstock to appear
at the other hearing involving the Respondent. Blackstock secured permission from
McDonald to attend but was later informed that the hearing had been postponed.
Blackstock never testified.
About February 23, 1961, Blackstock received a written warning slip from Mc-
Donald accusing him of engaging in "idle conversation" because of a short conversa-
tion he had with an employee named Skipwith a day or so before which McDonald
happened to see. On this occasion Skipwith had stopped Blackstock and made a
couple of remarks critical of Respondent. Promptly at the conclusion of the con-
versation McDonald asked Blackstock what Skipwith had been talking about but
Blackstock was unable, or unwilling, to tell him the subject of the conversation.
The warning slip of February 23 resulted. It was also the last day Skipwith worked
for Respondent.
s Subsequently, according to the testimony of Gober, Gober was ordered to, and did, check
all the packaged brakeshoe sets manufactured during the month of January which were
still in stock There are in evidence several divergent stories as to the result of this check:
One being that 33 percent of the packaged sets were found to contain at least 1 defective
brakeshoe, another being that from the 400 sets of brakeshoes then in the warehouse Re-
spondent was able to make up 100 sets containing merchantable shoes, and a third being
that all 400 of these sets were still impounded in Respondent's warehouse.
SOUTHWEST SHOE EXCHANGE COMPANY 257
On April 4, 1961, Union Organizer James Scott notified Blackstock by telephone
at his home that the Union was going to seek another election at Respondent's
plant and that there would be a meeting of a few selected employees held on
April 6.
Blackstock reported for work as usual on April 5. Before work he informed a
number of his fellow employees of the facts he had learned from Scott the evening
before. Sometime at or about breaktime that morning he spoke to employee Weaver
telling him the same facts and asking if he was going to attend the April 6 meeting.
A few minutes after this conversation Weaver spoke to one "Torch" Phillips, an
old-time employee who later was to act as company observer at the June 23, 1961,
election, asking if Phillips was going to the union meeting and indicating some fear
that he, Weaver, might be in trouble for having spoken to Blackstock. Phillips
promptly reported what he had learned from Weaver to Foreman Doyle Kiker.
Kiker immediately approached Weaver saying that he had heard from Phillips that
Weaver had been invited to a union meeting and inquired who had invited him.
Weaver finally acknowledged that it had been Blackstock. Kiker then carried this
information to Personnel Manager Meador because Supervisor McDonald was out
of the plant until the next morning when Kiker reported the incident to McDonald.9
About 5 o'clock that same evening Meador discharged Blackstock in his office for
allegedly engaging in "idle talk." Meador not only refused to name the person to
whom Blackstock had allegedly been talking but also to permit Blackstock to pro-
duce witnesses that he had not done so.
The next morning Meador, Hardin, McDonald, Kiker, and others were present in
Meador's office when Blackstock was brought in and given his final checks. Meador
contended that Blackstock had to be discharged because the warning slip of Febru-
ary 23 had contained the following last paragraph:
Blackstock, this is your last final warning. If you are not going to work while
you are on company time, you will be discharged. You will not receive an-
other warning, either written or verbal. Please do not make it necessary for
us to terminate you.
On April 10, 1961, the Union filed a charge with the Board alleging the discharge
of Blackstock to have been discriminatory.
On April 12, Meador interviewed and took a statement from employee Weaver
regarding Weaver's conversation with Blackstock on April 5. Meador admitted that
during this interview Weaver told him that Blackstock had been talking to him
about the Union. In this statement as reduced to writing by Meador and signed
by Weaver, Meador described this conversation about the Union as "some conversa-
tion having nothing to do with my job or his job." Meador significantly omitted
all mention of the Union. Blackstock was discharged for soliciting for the Union
and not for engaging in "idle conversation" as Meador attempted to make it appear.
The evidence leaves no doubt but that Respondent, learning that the Union was
going to make another attempt to organize its employees, decided to give the em-
ployees an example of the dangers involved in engaging in union activity by ridding
itself of the known union adherent Blackstock. Engaging in "idle conversation"
was not a dischargeable offense.
Consequently the Trial Examiner is convinced and, therefore, finds that the
Respondent discharged Winford Blackstock on April 5 because of his known mem-
bership and activities on behalf of the Union in violation of Section 8(a) (1) and (3)
of the Act.io
4. Howard R. Hunt
In April 1961 things seemed to be in good shape at Respondent's warehouse as
work at least was up to date and where Cecil Barker, who had been warehouse
supervisor since April 1960, had given out only one warning slip by his own estimate
since his tenure there began.
0 Both Phillips and Kiker denied that the Union had been mentioned in any of these con-
versations although Phillips finally admitted that it was "possible" that Weaver had men-
tioned the Union to him . Phillips maintained that Weaver had come to him in an effort to
keep out of trouble with Respondent for having engaged in idle conversation with Blackstock
during working hours. For reasons which become obvious hereinafter , the Trial Examiner
is unable to credit these denials by Phillips and Kiker and must credit the testimony of
Weaver who gave all the appearances of being an honest forthright witness.
10 Under these circumstances the Trial Examiner sees no reason to make any finding re-
garding a possible violation of Section 8(a) (4) of the Act.
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Then, on the evening of Friday, April 21, leaflets advertising a union meeting
on April 23 were handed out to the employees at quitting time. Barker learned about
this activity on Saturday, April 22.
Employee Howard Hunt, whom Barker himself had hired in July 1960, and
employee Vernon Sampley decided to, and did, attend the advertised union meeting
on April 23.
On Monday, April 24, employe James Van Den Bosch began wearing a union
button again as he had done prior to March 1960 election and also, according to
Barker, "made no bones" about talking for and soliciting other employees to become
members of the Union. Sampley also began wearing a union button at the plant
which had been given to him by Van Den Bosch. Hunt and Sampley had also
brought union authorization cards from the April 23 meeting which they handed
out to employees while soliciting new members for the Union.
On Wednesday, April 26, Barker assembled the warehouse staff and told them
that "We was in awfully good shape there and then all of a sudden in 2 or 3 days
there, we was way behind" in the work and exhorted them to "cooperate" in greater
efforts for Respondent.
An hour or so later Barker admittedly caught Hunt looking out an open ware-
house door. The only difference between the two witnesses was as to the length of
time Hunt spent in that endeavor.
Later that day Barker telephoned to Personnel Manager Meador who was at the
Vickery Street address and had him prepare four written warning slips- (1) One for
Howard Hunt for "loafing on the job" and for "very poor attitude regarding" his
job and supervisor; (2) two such slips for Vernon Sampley, the first for "tardiness"
and the second for excessive errors on the check stand"; and (3) one for Robert
Finch also for "excessive errors on the check stand."
When typed all four of these warning slips bore the date of April 26, 1961. But
it was not until 3 to 5 p.m. on April 27 that Meador and Barker delivered them to
the employees."
About 3:30 p m. on April 27 Barker and Meador called Sampley, who had been
wearing a union button since the meeting of April 23, into the office and gave him
the two warning slips which the Respondent had prepared for him, i e., one for
tardiness and the second for "excessive errors" on the check stand Barker informed
Sampley that he had already given Finch a similar warning slip because of "ex-
cessive errors." 12 During this interview Barker asked Sampley if he was for the
Union. When Sampley admitted that he was, Barker replied that unions were all
right but not the Boilermakers in this case because the Boilermakers knew nothing
about the automotive business. Thereafter Sampley signed the two warning slips
as requested and was permitted to return to work.
Then Hunt was called into they office Earlier that day Barker had noted the
union button which Hunt was wearing for the first time that day and made mention
of the fact that Hunt was "wearing his colors." Upon his entrance into the office
Barker handed Hunt the warning slip dated April 26 and asked him to sign the same
Hunt refused to do so on the ground that the warning slip was only partly true.
After some discussion as to whether or not Hunt had actually been "loafing," Barker
commented that he had not known that Hunt was prounion until he had seen the
union button that Hunt was wearing. Then followed a discussion about what Hunt
called Respondent's "cold attitude" toward the distribution of union leaflets on
April 21. Barker then had Hunt repeat the critical comments Hunt had previously
made about his job and the Respondent Company in general at the time Barker
caught Hunt allegedly "loafing." After Hunt had reiterated these comments, Meador
11 Runt testified that the warehouse meeting and his receipt of the warning slip all oc-
curred on the same day Barker and Meador however , testified that the meeting was held
April 26 that the slips were prepared on Barker 's instructions on the afternoon of April 26
when Meador delivered them to Barker at the warehouse . It is admitted that the slips
were not distributed to the employees until the afternoon of April 27 Although somewhat
confused , the evidence of Barker and Meador seemed to be that Meador took the prepared
slips to the warehouse on the afternoon of April 26 and then returned the following after-
noon in order to be present when the slips were delivered to the employees Why it was
necessary for Meador to make two trips to the warehouse on 2 separate days on a Tingle
mission creates some doubt as to the accuracy of that testimony However , this conflict
does not appear important enough to the Trial Examiner to require its resolution so that
the Trial Examiner has accepted , without deciding , the date given by Respondent
19 Finch and Sampley had been working as a team on the check stand so that , if errors
had been made , the errors might have been by either one and , therefore , logically both
should receive warnings
SOUTHWEST SHOE EXCHANGE COMPANY 259
stated that Barker had proved Hunt's "bad attitude" toward Respondent He then
demanded that Hunt sign the warning slips. Hunt again refused to do so as he had
not been loafing. Meador then demanded to know if Hunt was calling Barker a
"liar." Hunt answered this by saying that, if Barker stated that he had been loafing,
then he was. Meador rejoined "Well, you can't call a supervisor down here a liar.
You are discharged." 13
Sometime after the discharge of Hunt on April 27, Barker requested John Bruegger,
the son of Respondent's president who was then learning the warehouse part of the
business as the unannounced assistant to Barker, to give him a letter about having
found Hunt asleep during working hours, a matter which Barker testified Bruegger
had reported verbally earlier. This letter addressed to Barker and signed by John
Bruegger was introduced into evidence by Respondent. Barker had never seen it
prior to the hearing. It was dated "March 21, 1961." Admittedly the very few
minutes Hunt had overslept the lunch hour at the plant was of so little import that
no reprimand, either verbal or written, had been given Hunt at the time of its
occurrence.
The facts here are clear beyond cavil that Respondent was in fact using written
warning slips in order to discourage the employees from engaging in union activity.
Promptly after learning of the rejuvenation of the Unions organizational effort, Re-
spondent's supervisor, who had only gotten out one prior written warning during his
year's tenure as warehouse supervisor, almost immediately handed out four written
warning slips on 1 day with three of them addressed to men who had attended the
union meeting, had been soliciting fellow employees to join the Union, and were
wearing union buttons at work. The other man, Finch, had to be included in the
warning slips because he and Sampley had been the team working at the check stand
so that, if Sampley received a slip for errors made there, so must Finch. Finch was
merely unfortunate.
The written warning slips were here used by Respondent, as in the cases afore-
mentioned, to interfere with, coerce, and restrain its employees in the exercise of
their right to engage in union activities in violation of Section 8(a) (1) of the Act.
Admittedly Respondent had not intended to discharge Hunt when he was called
into the office on April 27. Meador and Barker merely intended to scare Hunt out of
his union activities. Meador obviously became convinced during the interview that
Hunt was not scaring as expected. So when it became apparent to Meador that Hunt
intended to remain prounion, Meador used the familiar "liar" routine and discharged
him. The discharge was obviously discriminatory and in violation of Section 8(a) (1)
and (3) of the Act. The Trial Examiner so finds.
It is interesting to note that, despite Respondent's supervisors' reluctance to admit
that they ever used the word "union" even among themselves, Barker acknowledged
that he had previously reported to Meador that Van Den Bosch "made no bones
about" his prounion sympathies and activities. It is also noteworthy that Barker's only
written reprimand prior to April 26 was given to Van Den Bosch who, up to the
time of the present hearing, had accumulated at least four such written reprimands.
This would seem to corroborate the finding made above.
5. Phyllis Buck (Underwood)
Buck was first employed by Exchange Parts Company in April 1954 in its fuel
pump department. About 9 months thereafter Buck became the "production super-
visor" or "foreman" of that department.14 Under either title Buck was in charge of
the department for Respondent.
Due to one of the innumerable organizational chart changes which, in this case,
required that Buck report to William Lucher as her superior, Buck quit Respondent's
employ in January 1960. About 3 weeks later Buck was induced by Production
Manager Don League to return to Respondent's employ as the foreman in charge of
the fuel pump department reporting directly to League instead of to Lucher.
Each department in Respondent's plant is supposed to be under a "production super-
visor" with a "foreman" (leadman) to take charge in the absence of the production
supervisor. About a year before the hearing Buck named employee Roy Montgomery
to be the foreman of her fuel pump department. When Buck announced Mont-
gomery's promotion to Lucher, then assistant to League, Lucher stated that the Re-
13 It is undisputed that Respondent had no intention of discharging Hunt when Hunt was
called to the office The "liar" routine used by Meador here is very reminiscent of the same
technique used by Meador in the Townley discharge
11 Respondent's organizational chart changed so frequently as to make it impossible at
any one given moment to know a supervisor's exact title
641795-63-vol. 136-18
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent would not make Montgomery a foreman because he was known to be active
on behalf of the Union. Thereafter Montgomery acted as such leadman but without
official recognition from the Respondent.
About April 1961, Dub Hardin replaced League as Respondent's production
manager. Sometime thereafter Hardin made Murray Wright production supervisor
over Buck and her fuel pump department, as well as of his own carburetor depart-
ment. Buck was unhappy at this change. Wright, however, requested her to stay
and help him run the department as he knew nothing about fuel pumps. Buck agreed
to do so.
On May 4, 1961, at the conclusion of a supervisors' meeting at which the union
organizational campaign had been discussed, Buck, who had joined the Union after
Murray Wright had been made her production supervisor, informed Lucher as they
were leaving the meeting that, far from trying to talk the employees out of voting for
the Union as had been suggested at the meeting, she was going to try to talk the em-
ployees into joining the Union.
About 2 weeks later, on May 17, Buck was sent into Hardin's office, where Hardin
told her "one thing I will not tolerate is somebody not following instructions. You
are discharged," and handed her the following long letter:
May 17, 1961.
Mrs. Phyllis Buck
Fuel Pump Department
You are hereby discharged, effective at 5:00 PM today, May 17, 1961.
The primary reason for your discharge is your repeated failure to follow in-
structions given you by management and designated supervisory personnel,
including myself.
Back in April 1958 it was necessary to lay you off for one week and tempo-
rarily reduce your pay rate as a disciplinary measure due to your being absent
without notification or permission and failure to follow long standing instruc-
tions for employees to call in to explain absences.
In October 1959 it was necessary to give you a written warning for being
absent without notification or permission, again failing to follow instructions
to call in.
In July 1960 it was necessary to give you and all the members of your fuel
pump buildup crew under your supervision a written warning regarding quitting
work before the designated time. You were told at that time that the situation
must be stopped immediately and permanently. This has not been done.
In August 1960 it was necessary to give you a written warning for absence
without permission, again failing to follow instructions to call in.
In December 1960 it was necessary to give you a written warning for absence
without permission, again failing to follow instructions to call in.
In March 1961 it was necessary to give you a written warning for failure to
follow instructions to have your department clean for a plant tour by important
customers.
Only a few days ago it was necessary to give you a verbal warning regarding
the same matter of allowing your department to quit work early, mentioned
above in connection [with] written warning of July 1960.
In addition to these specific examples shown above, it had been necessary
on many, many occasions to warn you verbally and reprimand you verbally
regarding your attendance, your tardiness record, your poor attitude and
conduct, your method of operating your department and handling people, and
other matters.
We have now come to the point where we cannot, in fairness to the Company,
other supervisory personnel, your own employees, our customers and even to
yourself, continue your employment here. And, as is mentioned in the first
line of this memorandum, we are regretfully terminating your employment here.
(S) C. W. Hardin,
C. W. HARDiN-Plant Manager.
This long dossier of Buck's shortcomings is notable for two things: (1) The
fact that her last previous warning for failure to follow instructions was in March
1961 for her failure to have her department clean for important visitors; and (2) the
omission of any mention of her last failure to follow instructions on May 4, 1961,
to wit, her stated refusal to try to talk employees out of voting for the Union.15 At
u This omission is reminiscent of Meador's omission from the weaver statement of
April 12, 1961.
SOUTHWEST SHOE EXCHANGE COMPANY 261
the time of this March cleaning episode Buck was only one of five supervisors who
had failed to have their departments cleaned for these important visitors. But it
is undenied that Lucher, when he handed Buck the written warning slip for her
failure, apologized to her for having to give it to her on the ground that he himself
had given the supervisors incorrect instructions.
Something triggered the explosion which resulted in Hardin 's precipitant discharge
of Buck. There is nothing in the long dossier nor in Hardin 's testimony which would
have caused his sudden explosion because the events referred to in both were events
which had happened months before the discharge of May 17.
On the other hand , Respondent knew that less than 2 weeks before Buck had
publicly stated that she would not follow Respondent 's instructions to keep the
employees out of the Union . The Trial Examiner is convinced and, therefore, finds
that it was Buck 's refusal to follow these illegal instructions which caused Respond-
ent to discharge her on May 17 in violation of Section 8(a)(1) of the Act.16
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate , and substantial relation to trade , traffic, and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in certain unfair labor
practices , it will be recommended that it cease and desist therefrom and that it
take certain affirmative action designed to effectuate the policies of the Act.
It having been found that the Respondent discriminated in regard to the hire and
tenure of employment of Bobby Isom by laying him off on June 22, 1961, of Win-
ford Blackstock by discharging him on April 5, 1961, of Howard R. Hunt by
discharging him on April 27, 1961, and Phyllis Buck (Underwood) by discharging
her on May 17, 1961, the Trial Examiner will recommend that Respondent offer to
each of them immediate and full reinstatement to his former or substantially equiva-
lent position , without prejudice to his seniority or other rights and privileges, and
make each of them whole for any loss of pay he may have suffered by reason of
said discrimination against him , by payment to him of a sum of money equal to
that which he would have earned as wages from the date of the discrimination
against him to the date of his reinstatement, less his net earnings during such period
and in accordance with the formula set forth in F. W. Woolworth, 90 NLRB 289.
Because of the variety of the unfair labor practices engaged in by Respondent, the
Trial Examiner senses an attitude of opposition to the purposes of the Act in general,
and hence deems it necessary to order that the Respondent cease and desist from
in any manner infringing upon the rights guaranteed its employees in Section 7 of
the Act.
CONCLUSIONS OF LAW
1. International Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths,
Forgers and Helpers , AFL-CIO, Subordinate Lodge 96, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By laying off or discharging Bobby ' Isom , Winford Blackstock, Howard R.
Hunt , and Phyllis Buck (Underwood) and refusing to reinstate said employees
thereby discriminating in regard to their hire and tenure of employment, and dis-
couraging union activities among its employees , Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1)
of the Act.
3. By giving written warning slips for the purpose of discouraging the employees
from engaging in union activities , Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed to them in Section 7 of the Act, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act.
16In view of the Board 's numerous decisions regarding the discharge of supervisors for
failing to follow similar illegal instructions , it cannot be here found that Buck, as a super-
visor, was discharged in violation of Section 8 (a) (3) of the Act. N L R B. v. Talladega
Cotton Factory, Ino., 213 F. 2d 208 (C.A. 5).
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Respondent has not violated Section 8 (a) (1) or (3) of the Act by discharging
M. D. Townley or William C. Cragg.
6. The aforesaid unfair labor practices are unfair labor, practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
St. Clair Lime Company and United Cement , Lime & Gypsum
Workers Local Union No. 396, AFL-CIO, and United Cement,
Lime & Gypsum Workers International Union , AFL-CIO.
Case No. 16-CA-1430. March 1 4, 1962
SUPPLEMENTAL DECISION
On October 25, 1961, the Board issued its Decision and Order (133
NLRB 1287), in part requiring the Respondent to reinstate all unfair
labor practice strikers upon application.
Thereafter the Respondent filed a "Motion To Vacate Decision
and Order," in part on the ground that the reinstatement order de-
prived the Respondent of its right to establish picket line misconduct
as a defense to the reinstatement of specific strikers. The Union filed
a memorandum in opposition.
Our Order in this case is not to be construed as requiring reinstate-
ment of those not entitled to it. The Respondent is required to rein-
state only such strikers as are lawfully entitled to reinstatement if
and when they apply for reinstatement. In view of the facts in this
case we deem it advisable to defer to the compliance stage of the pro-
ceedings herein the opportunity, which the Respondent is entitled to,
for, the substantiation of its claims regarding the picket line miscon-
duct of strikers who may apply for reinstatement. If the issue is not
settled between the Respondent and the Regional Director, it may
be referred to, the Board for determination, by hearing if necessary.
In sum, however, we find the Respondent's motion raises nothing
not previously considered, and furnishes no ground to vacate our
above-mentioned Decision and Order.
Accordingly, we deny the motion.
MEMBERS FANNING and BROWN took no part in the consideration of
the above Supplemental Decision.
136 NLRB No. 27.
Thomas W. Moylan Company , Inc. and Sheet Metal Workers
International Association , Local Union No. 102, AFL-CIO.
Case No. 5-CA-1915. March 14, 1962
DECISION AND ORDER
On December 13, 1961 , Trial Examiner George A. Downing issued
his Intermediate Report in the above-entitled proceeding, finding that
136 NLRB No. 22.