Tennessee Leather Products, Inc.

National Labor Relations Board - Board Decisions

Nov 28, 1972

200 N.L.R.B. 495 (N.L.R.B. 1972)

TENNESSEE LEATHER PRODUCTS 495
Tennessee Leather Products , Inc. and International
Association of Machinists and Aerospace Workers,
AFL-CIO. Case 10-CA-9466
November 28, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On July 19, 1972, Administrative Law Judge'
Robert E. Mullin issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions 2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Tennessee Leather
Products, Inc., Jacksboro, Tennessee, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order.
conceded certain facts with respect to its business
operations, but denied all allegations that it had committed
any unfair labor practices.
At the trial all parties were represented. All were given
full opportunity to examine and cross-examine witnesses,
to introduce relevant evidence, and to file bnefs. The
parties waived oral argument. Briefs were submitted by the
Respondent and the General Counsel on June 14 and June
19, 1972, respectively.
Upon the entire record in the case, including the briefs of
counsel, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Tennessee corporation with its
principal office and place of business located at La
Follette, Tennessee, is engaged in the manufacture of
leather and suede garments. The raw materials are shipped
from New York City to the plant at La Follette where the
leather is processed into suede coats and thereafter the
finished products are returned to New York. This work is
performed, on a contract basis, for one or more other
corporations controlled by Mr. and Mrs. Irving Feinrider,
who have two plants in New York and one in Turkey. All
the stock in the respondent corporation is held by Dennis
Feinnder, their son, who is the president of Tennessee
Leather Products, Inc. During the past calendar year, a
representative period, the Respondent performed services
valued in excess of $50,000 for customers located outside
the State of Tennessee and shipped goods valued in excess
of that amount to customers located outside that State.
Upon the foregoing facts, the Respondent concedes, and
the Trial Examiner finds, that Tennessee Leather Products,
Inc., is engaged in commerce within the meaning of the
Act.
i The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing his findings However,
Chairman Miller, in accepting the Administrative Law Judge's credibility
resolutions, expressly would note he finds it unnecessary to consider the
Administrative Law Judge's application of N L R B v Wallick & Schwalm
Co, 198 F 2d 477 (C A 3)
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN , Trial Examiner . The trial of this
case was held in Jacksboro, Tennessee, on May 17 and 18,
1972, pursuant to charges duly filed and served by the
International Association of Machinists and Aerospace
Workers, AFL-CIO (hereinafter known as the Union, or
IAM),1 and a complaint and notice of hearing issued on
April 20, 1972. The Respondent filed an answer wherein it
i All charges were filed in 1972, the original charge on March 7, a first
amended charge on March 17, and a second amended charge on March 29
II. THE LABOR ORGANIZATION INVOLVED
The Respondent concedes, and the Trial Examiner finds,
that the IAM is a labor organization within the meaning of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The Respondent's plant was opened in the spring of
1971. Thereafter it quickly went into full production.
During the summer months of that year it had from 100 to
200 employees engaged in the manufacture of suede coats.
From September through December the number of
employees remained at a level in excess of 200. Shortly
before Christmas there was a substantial layoff. By
January 14, 1972, the employment level was down to 151.
By January 28, it had dropped to 134 and by March 24, it
had fallen to 116. Thereafter, however, it began to rise and
in May 1972, the Respondent had 174 employees. Mr.
Irving Feinnder and Plant Manager George Messing
200 NLRB No. 73
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credibly testified that this cyclical fluctuation in the
number of the Respondent 's employees occurred regularly
and was necessitated by the seasonal character of the
business.
The IAM began an organizational campaign early in
January 1972.2 On January 18, the Respondent discharged
Ove Shoup and laid off Joseph R . Douglas and Hattie Sue
Massengill , as well as others . The General Counsel alleges
that the Respondent discriminatorily terminated the three
aforenamed employees . These allegations are denied by the
Respondent in their entirety.
B. The Alleged Violations of Section 8(a)(1);
Findings and Conclusions With Respect Thereto
Early in January 1972, representatives of the IAM
arrived in La Follette and sought to enlist support for that
union among the Respondent 's employees . On about
January 10, Union Representative Harry F. Duncan and
an associate called on employee Ove Shoup at his
residence . After Shoup signed an authorization card for the
organizers, he accompanied them thereafter on visits to the
homes of several other employees in the La Follette area.
The General Counsel alleged that at various times
supervisory personnel stated that the Respondent would
close the plant if a union was selected to represent the
employees. Thus, Ove Shoup testified that on an occasion
about 3 to 4 months before his discharge in January he was
assigned to drive Plant Manager George Messing3 from La
Follette to the Knoxville airport. According to Shoup,
during the course of this trip, Messing told him that several
employees had come to his office recently to inquire about
a union and that he had told them that if a union came to
the plant not only would they have a substantial obligation
in dues payments but that the Company would move the
plant so that no one would have any work. Messing denied
that he had ever made the remarks attributed to him by
Shoup. The latter, however, was credible in this regard.
On January 18, employee Hattie Sue Massengill was laid
off under circumstances that are an issue in this case. She
was notified of the layoff by her supervisor, Cleo
Moneymaker. According to Mrs. Massengill, the supervi-
sor told her that she was being laid off because the Union
was trying to come in and that the plant would probably
move . Ruby Chapman, an employee working at a nearby
machine testified that she overheard part of this conversa-
tion and that she heard Mrs. Moneymaker state that the
"The Company wouldn 't have a union ." Supervisor
Moneymaker conceded that in her conversation with
Massengill she had mentioned that there was "going to be
trouble," but she denied that she had mentioned the Union
or the prospect of the plant closing . Mrs. Massengill was a
credible witness and so, too, was Ruby Chapman, who at
the time of the hearing was still in the Respondent's
employ The denials of Supervisor Moneymaker, on the
other hand , were unpersuasive, for reasons that are
discussed more fully hereinafter . Consequently, it is the
conclusion of the Trial Examiner that the account of this
conversation , as given by Massengill and Chapman, was
the more accurate.
Paul Massengill testified that in January, he was referred
to the Respondent's plant by the Tennessee State Employ-
ment Service and that on about January 25 he had an
employment interview there with Supervisor Doyle
McCauley. According to Massengill, McCauley questioned
him as to how he felt about a union and when he
(Massengill ) gave a noncommittal response , McCauley
told him that the Company had no union "and ... we
don't want one either ."4 The Respondent never called
McCauley as a witness and offered no explanation for his
nonappearance . Massengill 's testimony stands undenied
and uncontradicted . Since it was credible, the Trial
Examiner concludes and finds that the conversation with
Supervisor McCauley occurred substantially as Massengill
testified.
Junior Norman, an employee during the time in
question , testified that during the early part of January,
Garland Parrot, a supervisor in the cutting department,
questioned him about the Union . According to Norman,
Parrot asked him "when the new union was moving in
..." Norman testified that in his reply to the supervisor he
disclaimed any knowledge of the Union. Parrot admitted
that "sometime in January" he "heard talk that there was
going to be a union coming in ." When asked if he heard
that from employee Norman he replied , "No sir, I can't say
strictly Norman ." Nevertheless , Parrot denied that he had
questioned Norman about the Union and testified that
since he was a supervisor he had no interest in unions.
Parrot's asserted lack of interest in the subject of the
employee organizational campaign was totally implausible.
It is the conclusion of the Trial Examiner that , as Norman
testified , Parrot did interrogate the employee early in
January as to when the IAM was "moving in."
On an evening in mid -February, the Union held an
organizational meeting at a nearby Holiday Inn in
Caryville, Tennessee . The General Counsel alleged that
this meeting was the subject of unlawful surveillance by
several of the Respondent 's supervisory staff . This motel is
flanked on one side by a recently completed interstate
highway and on the other side by the road which the new
highway replaced . The old road, although not abandoned,
no longer carries any volume of traffic, particularly at
night . It was on this route that the alleged surveillance
occurred. Junior Norman testified that while standing in
the motel parking lot before the meeting opened, he saw
Supervisor Don Pierce drive by. According to Norman,
Supervisor Ben Gibson and Plant Manager George
Messing were also in the same car. Norman testified that
about an hour later when the meeting was over, he
observed the same car parked on a hill a short distance
away from the motel . Norman conceded, however , that on
this latter occasion he could not identify anyone who was
in the automobile.
George Messing denied that he had ever been in the
vicinity of the Holiday Inn during this period and he
denied that he was in Pierce 's car on the night in question.
2 All dates hereinafter are for the year 1972 , unless specifically noted the Respondent 's plant
otherwise 4 The quotation is from Massengdl's testimony
3 George Messing and his brother Robert Messing were comanagers of
TENNESSEE LEATHER PRODUCTS 497
Pierce and Gibson denied all knowledge of any union
meeting and denied having made any attempt to spy on
employee activities at such a meeting Messing's denial that
he was with Pierce during the union meeting was
completely credible. The denials of both Pierce and Gibson
that they had sought to observe the employees as they
gathered at the Holiday Inn or thereafter were likewise
credible. At the time, both Pierce and Gibson were young,
unmarried men They conceded that while together on
social occasions they had driven along the deserted
highway that bordered the motel and that they might have
done so at various times during the month of February. It
is the conclusion of the Trial Examiner that even if Pierce
and Gibson drove by the Holiday Inn while the union
meeting was in progress and thereafter parked their car
along the roadway, whatever their objective might have
been on that evening, there is unsufficient evidence in this
record to establish that at such time they were engaged in
unlawful surveillance or industrial espionage
On the foregoing facts, the Trial Examiner concludes
and finds that the Respondent engaged in interference,
restraint, and coercion within the meaning of the Act and
thereby violated Section 8(a)(1) by Plant Manager George
Messing's comment to Shoup that if a union came to the
plant the Company would move and by Supervisor
Moneymaker's statement to employee Massengill that she
was being laid off because the Union was trying to come
in, that the Company would not have a union, and that the
plant would probably move. In the context of these threats,
the Respondent likewise violated Section 8(a)(1) of the Act
when, on about January 25, Supervisor Doyle McCauley
interrogated employee applicant Paul Massengill as to his
attitude about a union, and earlier that month when
Supervisor Garland Parrott questioned employee Junior
Norman as to when "the union was moving in "
C. The Alleged Violations of Section 8(a)(3),
Findings and Conclusions With Respect Thereto
I Ove Shoup
a. The issue as to supervisory status
Shoup was employed in May 1971 and was terminated
on January 18, 1972. He began work in the shipping and
receiving department at the rate of $1 60 an hour.
Sometime within a month or two before his termination he
received a 5-cent raise.
When Shoup was first hired he worked with employee
Russ Ellison. Sometime later, Ellison quit and then, for 2 to
3 months, Shoup was alone. In September or October, two
new employees, Robert Wright and Leonard Franklin,
joined him. Shoup testified that he received all his orders
from George Messing and that, when the two last named
employees started to work, Messing told him to teach them
how to do the job. According to Shoup, he and the two
others were responsible for selecting suede coats to fill
customers' orders, packing the coats for delivery, and
thereafter shipping them out. Shoup testified that he and
his two fellow employees all did the same type of work and
rotated working at these three different jobs during the
course of each day. Occasionally they were assisted by one
or two of the truckdnvers.
Shoup credibly testified that he had no authority to hire
or discharge, suspend, transfer, discipline, grant time off,
promote, or effectively to recommend such action Shoup
further testified that he was never told by management that
he had any of the foregoing authority and that he never
attended the meetings held for supervisors. According to
Shoup, he performed the same duties as other employees in
the shipping and receiving department and until a short
time before his termination, when he received a 5-cent
increase, he received the same pay as his coworkers.
The Respondent contends that Shoup was, in fact, a
supervisor in charge of the shipping and receiving
department. Plant Manager George Messing testified that
after Ellison quit in June 1971 he told Shoup and one
Kenneth Gibson "to take charge"5 of shipping and
receiving and that later, when Gibson was transferred to
another department, he put Shoup in sole charge of
shipping and receiving. However, Messing could not recall
when he purportedly took this action. Messing conceded
that Shoup's pay was lower than that of any supervisor in
the plant, but explained that "The other supervisors had
more people to take care of 10 to 12 where he [Shoup] only
had two or possibly three."6 Messing likewise acknowl-
edged that Shoup did not have the power to hire or
discharge, but testified that if Shoup was dissatisfied with
an employee he could recommend a transfer. Messing
conceded, however, that Shoup never reported to him that
he was dissatisfied with anyone in the shipping and
receiving department.
It is well settled that the statutory definition of a
supervisor7 must be construed in the disjunctive. Ohio
Power Co. v. N.L R.B, 176 F.2d 385, 387 (C.A. 6), cert.
denied, 338 U.S 899. It is equally well established that it is
the existence of supervisory authority in the individual
which is determinative, regardless of the title which he may
hold. Mississippi Valley Barge Line Co., 151 NLRB 676,
678, enfd. 353 F.2d 904 (C.A.D.C.); Red Star Express
Lines, of Auburn, Inc. v. N. L. R. B., 196 F.2d 78, 79-80 (C.A.
2). In N.L.R.B. v. Southern Bleachery & Print Works, Inc.,
257 F.2d 235, 239 (C.A. 4), cert. denied, 359 U.S. 911, the
Court there stated, with reference to this issue , "It is . . .
clear . . . that the employer cannot make a supervisor out
of a rank-and-file employee simply by giving him the title
and theoretical power to perform one or more of the
enumerated supervisory functions. The important thing is
the possession and exercise of actual supervisory duties
and authority and not the formal title." So here, notwith-
standing the Respondent 's contention that Shoup was a
supervisor, it is the conclusion of the Trial Examiner, on
the findings set forth above, that: (1) Shoup's duties and
his responsibilities in connection with new employees did
5 The quotation is from Messing's testimony promote, discharge, assign, reward, or discipline other employees, or
6 The quotation is from Messing's testimony responsibly to direct them, or to adjust their grievances, or effectively
7 Section 2(l 1) of the Act reads as follows to recommend such action , if in connection with the foregoing the
The term "supervisor" means any individual having authority, in the exercise of such authority is not of a merely routine or clerical nature,
interest of the employer, to hire, transfer, suspend, layoff, recall, but requires the use of independent judgment
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not go beyond "the customary control of an experienced
workman over his less skillful helpers." Southern Bleachery,
supra, at p. 238; and (2) that, among the two or three
employees in the shipping and receiving department,
Shoup was at most a leadman, and that he neither had the
statutory authority of a supervisor, nor did he exercise it.
b The discharge
As found above, about January 10, Shoup signed an
authorization card for the IAM, and thereafter accompa-
nied the union organizers on visits to the homes of other
employees.
Shoup was discharged in the middle of his shift on
January 18. According to the employee, at about 12:45 that
day, George and Robert Messing came up to him while he
was at work. Shoup testified that George Messing
thereupon abruptly declared that he was fired and then
told him to collect his belongings and report to the office.
Shoup testified that as he and George Messing went for the
office,8 Messing told him " . you think we're stupid
here-you think we don't know about the union... .
Shoup testified that when he attempted to say something,
Messing ordered him to be quiet and then told him that he
[Messing] was saving his life because, if the Union came in
and caused the factory to move, the employees would kill
Shoup for having closed the plant. According to Shoup, on
arriving at the manager's office, he noticed an IAM card
on Messing's desk and at that point Messing commented
"you think we don't know about the IAM" and then told
Mrs. Ivy, a secretary in the office, to prepare Shoup's
discharge slip and attribute his termination to unsatisfacto-
ry work. Shoup testified that throughout the course of this
incident whenever he endeavored to respond to Messing's
remarks, the latter ordered him to be quiet and that, as
soon as Mrs. Ivy completed his termination slip he left the
plant.
Whereas the Respondent contends that several employ-
ees, including Hattie Massengill and Joseph Douglas, were
laid off during this period, George Messing9 acknowledged
that Shoup was discharged and that he was the only
employee to be dismissed at that time. Messing denied that
he mentioned the Union at any point during his confronta-
tion with Shoup and testified that the employee was
terminated as the result of dissatisfaction with his work
over a long period of time. According to Messing, for
months there had been complaints that Shoup had not
been filling orders properly, that he was making mistakes
on shipments, and that he was wasting time talking to the
girls in another department. Supervisor Annie Haynes
corroborated Messing in the latter respect and testified that
she considered Shoup a nuisance in connection with his
practice of visiting with her employees. Miss Haynes
testified that she had complained both to Shoup personally
about this habit and had spoken to Messing about the
matter.
Messing testified that the decision to discharge Shoup
was made in September and had not been effectuated
earlier because that was the busy season and Shoup would
have been hard to replace. He denied that union activities
had anything to do with Shoup's termination and attribut-
ed the discharge solely to dissatisfaction with Shoup's
working habits.
Although Messing testified that Shoup's termination was
delayed until the end of the rush season, the Respondent's
evidence as to the plant's production established that the
slack period began long before January 18. During
September, October, and most of November, the Respon-
dent was cutting a weekly total of from 2,000 to 2,800
coats. The first 2 weeks in December this total dropped to
about 1,800 coats and the last 2 weeks of that month no
coats were cut During the first 3 weeks in January the
weekly production total ranged from 331 to 676. A
substantial layoff of employees occurred in December
1971, and early in January the number of employees was
down to 151 as compared to well over 225 in December.
From these statistics it would appear that if Shoup's
termination was decreed in September, as Messing testi-
fied, it would have been effected in December when the
seasonal decline first began. Instead, no action was taken
and the employee was kept for another month, or more. If
Messing were to be believed, it also would appear likely
that in late December or early January, Shoup would have
been laid off at the end of a pay period. Instead, weeks
after the seasonal decline had begun, Plant Manager
Messing abruptly discharged him in the middle of a shift
and ordered him off the premises. iO It is the conclusion of
the Trial Examiner that Messing was not credible when he
testified that the decision to discharge Shoup was reached
in September, and that his termination was delayed only to
await the beginning of the seasonal slump in the Respon-
dent's operations. During the cross-examination of Shoup,
counsel for the Respondent elicited testimony that, in
addition to Mrs. Ivey, the plant secretary, several other
coworkers and office personnel were present during the
conversational exchange when Plant Manager Messing
discharged Shoup. The Respondent, however, never called,
nor did it offer any explanation for not calling, any of these
employees to corroborate Messing's version of what
occurred. The failure of the Respondent to call these
witnesses who were still in its employ and within its power
to produce would tend to indicate that had they testified
they would not have corroborated Messing. N L.R.B. v.
Wallick & Schwalm, Co, 198 F.2d 477, 483 (C.A. 3).ii
In the light of the foregoing considerations, the Trial
Examiner concludes that Shoup's account of his dismissal
is the more credible. From this testimony it is clear that
when Messing told Shoup he was being discharged, he
plainly stated his awareness of that employee's union
activities ("you think we're stupid here-you think we
don't know about the union"); the plant manager further
declared that if the Union came in the plant would be
closed and he also told the employee that if this occurred
Shoup would be the one responsible.
It may be that Shoup, as an employee, left much to be
8 Shoup testified that at this point Robert Messing left and went about iO See N L R B v Shovel Supply Company, 257 F 2d 88, 92 (C A 5),
his duties where the Court considered it significant evidence of discrimination that the
9 For the balance of the discussion of the Shoup discharge references to discharges in question occurred in midweek and not on a regular payday
"Messing" are to George Messing only 11 See also Interstate Circuit, Inc v. United States, 306 U S 208, 226
TENNESSEE LEATHER PRODUCTS
desired. On the other hand, the numerous complaints as to
his work about which Messing and Miss Haynes testified
had been registered over a period of many months and
although, from their accounts, he had been reprimanded
orally several times, he had never been subjected to any
more serious discipline. Nor was any particular incident
offered to explain what triggered his sudden termination in
the middle of a shift on January 18. It is the conclusion of
the Trial Examiner, on the facts set forth above, that
Shoup's conduct "apparently became intolerable only after
he had joined the union." N L R B v. Electric City Dyeing
Co., 178 F.2d 980, 983 (C.A. 3).12 Accordingly, the Trial
Examiner finds that the reason offered by the Respondent
for his termination was a pretext and that the real motive
for his abrupt dismissal was Shoup's identification with the
IAM. In taking this action, the Respondent violated
Section 8(a)(3) and (1) of the Act.
2. Hattie Sue Massengill
Mrs. Massengill was employed by the Respondent in
October 1971 and was laid off on January 18, 1972. Before
being hired by the Respondent, Mrs. Massengill worked at
another plant in the vicinity where, during the course of a
long strike, she was terminated. Robert Messing testified
that he knew about this part of her background at the time
he hired her, but that had it been a matter of no concern to
him.
Shortly after being employed, Mrs Massengill was
assigned to work on facings, a part of the inside of each
coat. Two other employees, Wanda Evans and Mabel Hill,
also worked on this specialty. Hill was laid off in
December and was not recalled. Evans was kept on the job
after Massengill was laid off. Floorlady Cleo Moneymaker,
Massengill's immediate supervisor, testified that on Janu-
ary 18 the latter was laid off for lack of work and that she
was selected for layoff by Robert Messing. Both Messing
and Moneymaker conceded that Massengill was very
competent. Mrs. Moneymaker described her as a "very
good worker. Fast worker and good."
In mid-January, when the union campaign began at the
plant, Mrs. Massengill signed an IAM authorization card.
From her own testimony, however, it appears that the rest
of her union activity consisted only of talking about the
IAM with her fellow employees.
Mrs. Massengill testified that just before quitting time
on January 18, Floorlady Moneymaker came to her
machine and told her that she was being laid off "because
the Union's trying to come," that she had been given
orders to lay Massengill off, and that the plant would
probably move. As found earlier Massengill's testimony
was credible and it was corroborated in part by Ruby
Chapman, a coworker at another machine in the area.
According to Chapman, during the conversation with
Massengill the floorlady also stated to her (Chapman) that
"The Company wouldn't have a Union."
On about January 20, Mrs Massengill and her sister-in-
law, Louise Massengill, returned to the plant where she
sought out Robert Messing to inquire as to when she could
12 See also Hugh H Wilson Corp v NLRB, 414 F 2d 1345, 1352 (C A
3), cert denied 397 U S 935, and Edward G Budd Mfg Co v N L R B, 138
499
expect reemployment. Mrs. Massengill testified that she
asked Messing whether he had laid her off because of the
Union, and that he answered "no, I didn't say that it was
because of the Union. I do have problems with the Union
and . . I didn't come here for problems . . and [if ] I
don't have any problems solved by the end of the week I
plan on moving." Mrs. Massengill testified that, during the
conversation , Messing reminded her that she was not the
only one to be out of work and that 25 to 30 others had
been laid off also. Louise Massengill corroborated the
testimony of her sister -in-law . According to the former,
Messing concluded their meeting with the statement, "I
have problems with unions. I didn't come down here with
problems and I don't intend to have problems. If I can't get
my problems settled maybe I'll move."
Robert Messing acknowledged having had a conversa-
tion with Mrs. Massengill on about January 20. He at first
denied having made any reference to the Union, but on
cross-examination admitted that he did not recall whether
the Union was mentioned . Mrs. Moneymaker denied that
at the time she made the layoff announcement to
Massengill there had been any mention of the Union. She
conceded, however, that she had said that "there was going
to be trouble," but without specifying what kind of trouble
she had in mind. Mrs. Moneymaker testified that she could
not recall any conversation at all with Chapman.
Notwithstanding her denials that the Union had been
mentioned in her discussion with Massengill and Chap-
man, Mrs. Moneymaker testified that the advent of the
Union advanced the date of the seasonal layoff at the
plant. According to the floorlady, the night before
Massengill was laid off, three employees had come to her
home and told her that the following day the workers were
going to picket the plant and close it down. She testified
that immediately after this visitation she telephoned Annie
Haynes, another floorlady. The latter confirmed having
had such a conversation with Moneymaker and Robert
Messing testified that the next morning Miss Haynes
relayed to him the substance of her conversation with
Moneymaker.
Mrs. Moneymaker testified that on the morning of the
layoff several of the employees were stationed outside the
plant. This appears to have been an abortive attempt at
setting up a picket line. In any event, it proved ineffective
in preventing any employee from reporting for work, for
Mrs. Moneymaker testified that it did not interfere with
the normal operation of the plant that day. On the other
hand, she testified that the prospect of a shutdown because
of picketing slowed production and "we had to lay off
some people because we didn't know exactly from one day
to the next what was going to happen ...." She further
testified that the date of the layoff was advanced because
of this union activity. On cross-examination she was asked
the following question and gave the answer which appears
below:
Q. So that the whole layoff was moved closer
because these three employees came to your house and
told you that . . . there was going to be trouble?
A. Yes.
F 2d 86, 90, cert denied 321 U S 778
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From Mrs. Moneymaker's testimony, both on direct and
on cross-examination, it is apparent that on January 18 she
was very alarmed as to the prospects of the plant being
closed because of the picketing about which she had been
informed the night before. In view of the floorlady's
evident preoccupation with this likelihood and the fact that
Hattie Massengill and Ruby Chapman were credible
witnesses , the Trial Examiner concludes and finds that
Mrs. Moneymaker made the statements which they
attributed to her. It is likewise the conclusion of the Trial
Examiner that Hattie and Louise Massengill were credible
witnesses as to the subsequent conversation with Robert
Messing on January 20.
On the foregoing evidence, the Trial Examiner finds that
on January 18, Floorlady Moneymaker told Hattie
Massengill that the latter was laid off "because the Union's
trying to come in" and that the plant would probably
move. The Trial Examiner further finds that 2 days later
when Massengill and her sister-in-law talked with Plant
Manager Robert Messing, the latter told them that he had
problems with the Union and that if they were not solved
he planned to move. From Moneymaker's own testimony
it is evident that whereas the layoff of Massengill might
have occurred at some later time,13 the date was advanced
because of the advent of union "trouble." In telling
Massengill that she was being laid off "because the
Union's trying to come in" Mrs. Moneymaker was acting
within the scope of her employment as a floorlady and the
employee was entitled to assume that the statement fairly
set forth the reason for her termination. Allegheny Pepsi-
Cola Bottling Company v. N.L.R.B., 312 F.2d 529, 530-531
(C.A. 3); Federal Tool Corporation, 130 NLRB 210,
220-221. Consequently, the Trial Examiner concludes and
finds that the Respondent violated Section 8(a)(3) and (1)
in laying off Massengill on January 18. It was a further
violation of Section 8(a)(1) for Plant Manager Robert
Messing to tell the Massengills on January 20 that his
problems with the Union might cause him to leave, thereby
implying that if he left, the plant might be closed.
3. Joseph R. Douglas
This employee, a truckdnver, was among those laid off
on January 18. Douglas himself was never called as a
witness and the General Counsel stated that he had been
unable to contact Douglas or secure his return for the trial.
The General Counsel's case as to this employee rested on
the testimony of two former employees, Junior Norman
and Willis Walden, both of whom were truckdrivers who
were laid off the same day as Douglas.
According to Norman, on January 18, and after he
learned of Shoup's discharge, he telephoned Douglas who
13 Several weeks after her layoff Massengill was, in fact, offered
reinstatement She did not accept, however, having found other employ-
ment
i4 Walden did not give McCauley's first name , but, presumptively, it was
Doyle McCauley whom he meant, the latter named being an admitted
supervisor Doyle McCauley was not called as a witness and did not testify
James McCauley, a truckdriver and a witness for the Respondent, credibly
testified that he had not eavesdropped on this conversation
is This is apart from the proposal for concerted action, which, if Norman
is to be credited, Douglas suggested on January 18 George Messing
testified that on an occasion after the layoff of Douglas, Norman and
was not at work that day. Norman testified that Douglas
was not at home when he first called, but that a short time
later, Douglas returned the call and had him paged at the
plant. According to Norman, he answered the call on a
plant telephone and after he told Douglas of Shoup's
discharge, Douglas proposed that the employees should
protest the dismissal of their coworker by staging a walkout
or a strike. Willis Walden testified that while Norman was
engaged in this telephone call with Douglas, he (Walden)
was near the plant office and that he observed four
supervisors, namely Robert Wishoun, Don Pierce, Ben
Gibson, and McCauley,14 listening at three different
telephones in the plant office.
Norman testified that only a few minutes after he
concluded his telephone call with Douglas, Plant Manager
George Messing came to where he was working and
announced that he, Walden and Douglas were being laid
off. According to Norman, when he sought to inquire as to
the reason for the layoff, Messing cut off any discussion
with the statement "I am very angry, do not talk with me
anymore."
George Messing testified that he laid off Norman,
Walden, and Douglas on this occasion because there was
no work available. He further testified that selections for
the layoff were made so that James McCauley, the oldest
driver in point of service, was the only one kept. Messing
denied having any knowledge of the telephone conversa-
tion between Norman and Douglas. Supervisors Wishoun,
Pierce, and Gibson all denied that they had listened in on
any conversation between the two employees.
There was no evidence in the record that prior to his
layoff Douglas had engaged in any union activity.15 The
three supervisors, Wishoun, Pierce, and Gibson, were
credible when they testified that they had never eaves-
dropped on the conversation of Douglas and Norman.
Since Douglas was not available and did not appear as a
witness, the record is lacking whatever light he might have
provided as to this incident. is
Even if the testimony of Norman and Walden is
credited, the record offers no proof that the Respondent's
management learned of Douglas' proposal for a walkout to
protest Shoup's discharge or, whether, if Plant Manager
Messing had such knowledge, the Respondent acted on it
in selecting Douglas for layoff. It is the conclusion of the
Trial Examiner that the evidence and the sequence of
events here involved fail to establish that the layoff of
Douglas was discriminatory. Consequently, the Trial
Examiner will recommend that the complaint be dismissed
Walden, the three last named and other employees were picketing outside
the plant entrance until they were dispersed by the police. Apart from this
reference , there is nothing in the record to establish that Douglas engaged in
any activity on behalf of the IAM prior to the layoff
16 The original charge alleged that Junior Norman and Willis Walden
were discnmmatorily terminated The General Counsel, of course , is vested
with discretion as to what allegations in a charge he will prosecute It is of
some interest that in this instance, the complaint did not name as
discnminatees either Norman or Walden, both of whom were available as
witnesses and who testified, while the whereabouts of Douglas , who was
named in the complaint, were unknown
TENNESSEE LEATHER PRODUCTS 501
insofar as it alleges that Douglas' layoff was in violation of
Section 8(a)(3) 17
CONCLUSIONS OF LAW
I The Respondent is engaged in commerce and the
Union is a labor organization , all within the meaning of the
Act
2 By discriminating in regard to the hire and tenure of
Ove Shoup and Hattie Sue Massengill , thereby discourag-
ing membership in the Union, the Respondent has
engaged, and is engaging , in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
3 By interfering with , restraining , and coercing its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondent has engaged, and is
engaging, in unfair labor practices within the meaning of
Section 8 (a)(1) of the Act.
4. The aforementioned unfair labor practices are unfair
labor practices affecting commerce within the meaning of
Section 2 (6) and (7) of the Act
5 The layoff of Joseph Douglas was not a violation of
Section 8 (a)(3) of the Act, as alleged by the General
Counsel , nor did the Respondent violate the Act other than
as herein specifically found
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, the Trial Examiner will
recommend that the Respondent be ordered to cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act
Having found that the Respondent discriminatorily
discharged Ove Shoup, the Trial Examiner will recommend
that the Respondent be ordered to offer Shoup immediate
and full reinstatement without prejudice to his seniority or
other rights and privileges, and make him whole for any
loss of earnings that he may have suffered from the time of
his suspension and discharge to the date of the Respon-
dent's offer of reinstatement Having found that the
Respondent discriminatorily laid off Hattie Sue Massen-
gill, the Trial Examiner will recommend that the Respon-
dent be ordered to make her whole for any loss of earnings
that she may have suffered from the time of her
discriminatory layoff until the date that she declined to
accept reemployment with the Respondent. The backpay
of the foregoing employees shall be computed in accord-
ance with the formula approved in F W Woolworth Co, 90
NLRB 289, with interest computed in the manner and
amount prescribed in Isis Plumbing & Heating Co, 138
NLRB 716, 717-721 It will also be recommended that the
said Respondent be required to preserve and make
17 The Respondent also offered some evidence that, during the course of
his employment as an over-the-road truckdnver, Douglas falsified his travel
money account by overstating the actual expenses he incurred on trips from
Tennessee to New York City James McCauley, another driver who was
Douglas' partner on many of these trips, credibly testified as to the
procedure which Douglas followed McCauley's testimony would tend to
prove that the latter regularly padded his expense account during the
summer and fall of 1971 Plant Manager George Messing readily conceded
that this evidence was not discovered until after January 18, 1972, and that
it had not been the cause of Douglas' layoff The evidence was offered to
explain why Douglas had not been recalled to work and to establish that by
available to the Board or its agents, on request, payroll and
other records to facilitate the computation of backpay due.
As the unfair labor practices committed by the Respon-
dent are of a character striking at the root of employee
rights safeguarded by the Act, it will be recommended that
the said Respondent be ordered to cease and desist from
infringing in any manner upon the rights guaranteed in
Section 7 of the Act N L.R.B. v. Entwistle Mfg. Co., 120
F.2d 532, 536 (C A 4)
Upon the foregoing findings, conclusions, and the entire
record, and pursuant to Section 10(c) of the Act, the Trial
Examiner issues the following recommended:
ORDER 18
Tennessee Leather Products, Inc., its officers , agents,
successors, and assigns, shall.
I Cease and desist from:
(a) Discharging, or otherwise discriminating against any
employee because of membership in, or activity on behalf
of, International Association of Machinists & Aerospace
Workers, AFL-CIO, or any other labor organization.
(b) Coercively, or otherwise unlawfully, interrogating its
employees as to their union activities.
(c) Threatening to close its plant or take other reprisals if
its employees choose a collective- bargaining representa-
tive.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist any labor organiza-
tion, to bargain collectively through representatives of their
own choosing, or to engage in concerted activities for the
purpose of collective bargaining or other mutual aid, or to
refrain from any or all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Ove Shoup immediate and full reinstatement
to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges.
(b) Notify the above-named employee, if presently
serving in the Armed Forces of the United States, of his
right to full reinstatement upon application, in accordance
with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after
discharge from the Armed Forces.
(c) Make whole Ove Shoup and Hattie Sue Massengill in
the manner set forth in the section of the decision entitled
"The Remedy."
(d) Preserve, and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
his conduct in this regard, Douglas disqualified himself for reinstatement
The latter issue, however, need not be decided, because of the Trial
Examiner's conclusion that the General Counsel did not establish that
Douglas' layoff was discriminatory
18 In the event no exceptions are filed as provided in Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessary or appropriate to analyze the amount of backpay
due.
(e) Post at its plant in La Follette , Tennessee , copies of
the attached notice marked "Appendix." 19 Copies of the
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by the Respondent's
authorized representative , shall be posted by it fora period
of 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that said notices are not altered,
defaced, or covered by any other material
(f) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of the receipt of this
Decision , what steps the Respondent has taken to comply
herewith.20
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
19 In the event that the Board ' s Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board "
20 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read
"Notify the Regional Director for Region 10, in writing , within 20 days
from the date of this Order , what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Interna-
tional Association of Machinists & Aerospace Workers,
AFL-CIO, or any other union, by discharging, or
otherwise discriminating against our employees be-
cause of their union or concerted activities.
WE WILL NOT coercively, or otherwise unlawfully,
interrogate employees as to their umon activities.
WE WILL NOT threaten to close our plant or take
other reprisals if our employees choose a umon to
represent them.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of their
right to self-organization , to form, join , or assist the
above-named union , or any other labor organization, to
bargain collectively 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 such
activities.
WE WILL reinstate Ove Shoup to his former job, or if
that job no longer exists, to a substantially equivalent
position , without prejudice to his seniority or other
rights and privileges.
WE WILL make whole Ove Shoup and Hattie Sue
Massengill for any loss of pay suffered as a result of the
discrimination against them.
TENNESSEE LEATHER
PRODUCTS, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board 's Office , Peachtree Building, Room
701, 730 Peachtree Street , N.E., Atlanta, Georgia 30308,
Telephone 404-526-5760.