Terri Lee, Inc.

National Labor Relations Board - Board Decisions

Dec 28, 1953

107 N.L.R.B. 560 (N.L.R.B. 1953)

560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The foregoing findings would ordinarily require the ex-
clusion of individuals affected from any unit found appropriate.
If we did this here, however, the unit which would remain
would be so much smaller and so substantially different from
that originally sought by the Union that, on this record, we do
not believe that entertainment of the petition would serve any
useful purpose. r,
In view of the foregoing decision, we shall set aside the
election , without ascertaining the results thereof, and shall
dismiss the petition . The Regional Director for the Eighteenth
Region is hereby directed to destroy all the ballots cast in
the April 26, 1953, election.
[The Board set aside the election of April 26, 1953, and
dismissed the petition.]
6Oklahoma Trailer Convoy, Inc., 99 NLRB 1019
TERRI LEE, INC. and MRS. MARCELLA FREED
VI GRADWOHL; TERRI LEE, INC.; TERRI LEE OF CALI-
FORNIA; and CONNIE LYNN MANUFACTURING CORPORA-
TION and SOUTHERN CALIFORNIA OUT-OF-TOWN
DEPARTMENT OF THE INTERNATIONAL LADIES'
GARMENT WORKERS' UNION, A. F. OF L. Cases Nos. 21-
CA-1593 and 21-CA-1622. Decenh ber 28, 1953
DECISION AND ORDER
On June 18, 1953, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above - entitled proceeding , finding
that the Respondents had engaged in and were engaging in cer-
tain unfair labor practices and recommending that they cease
and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.
The Trial Examiner also found that the Respondents had not en-
gaged in certain other unfair labor practices alleged in the com-
plaint and recommended that these allegations be dismissed.
Thereafter , the Respondents and the charging Union each filed
exceptions to the Intermediate Report, and the Respondents
filed a supporting brief.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed . The Board has considered the Intermediate Report,
the exceptions and brief , and the entire recordin the case, and
hereby adopts the findings , conclusions , and recommendations
of the Trial Examiner, except to the extent that they are incon-
sistent herewith.
1. With respect to the discharges of October 9, 1952, we
disagree with the Trial Examiner's findings that Respondents
107 NLRB No. 141
TERRI LEE, INC. 561
violated Section 8 ( a) (3) of the Act as to complainants Howard,
Haugen, and Freed, and we agree with his conclusion that the
Respondents did not violate Section 8 ( a) (3) of the Act as to
complainant Thompson.
The Essential Facts
The Respondents commenced doll -manufacturing operations
in Apple Valley , California , in April 1952 . The labor force at
this plant was made up in substantial part of housewives and
pax't-time employees having little or no employment experience,
and included soldiers from a nearby army base. Particularly
in the early months of its operations , the Respondents at this
plant were troubled with the problem of widespread absenteeism
on the part of their employees . In September and October of
that year the Respondents were under considerable pressure to
deliver dolls already on order for the Christmas season. They
were also concerned with complaints from customers that
dolls which had been shipped were of poor quality.
On September 23, General Manager Hamilton made a speech
to the employees which, among other things , clearly evidenced
the Respondents ' strong determination to remove absenteeism.
Although the four complainants who were discharged on October
9 all testified they did not hear this speech by Hamilton, they
admitted knowledge of a company rule requiring advance per-
mission, or notice to the Respondents , for an absence.
During the weekend of October 4, certain employees, in-
cluding the artists and wiggers,weremovedbythe Respondents
to an additional newly constructed plant in the area. On Monday,
October 6, the artists and wiggers were informed by the
Respondents of a piece - rate cut of 1 cent per unit, with the
stated objective of improving the quality of their work. This
sum was to be paid to an inspector , specially assigned under the
new arrangement . The artists were particularly aggrieved by the
cut in pay and evidenced their resentment . On Tuesday morning,
October 7 , there had materialized a plan among certain of the
employees to absent themselves from work the next day to visit
the Labor Temple in San Bernardino for the purpose of con-
sulting a labor union with respect to the cut in piece rates. Thus,
on that morning, Howard requested permission of Colbern,
her supervisor , to be absent the next day assertedly to pay
respects to the family of her husband's aunt who had died;
Thompson asked for the day off because " she thought she was
going to be sick "; Porter requested the time off to go shopping
with her husband for brushes to be used in her work. All of
these reasons were false. Howard ' s request was granted;
Thompson's request was not denied at this point ; and Porter's
request was refused , because her excuse was "insufficient,"
and she was told that if she took off "the next day she would be
discharged.
Colbern spoke to Thompson again later in the afternoon that
day, stating , "I understand you are going to consult the union
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tomorrow." Thompson replied , ". . . . we are not going to start
a union or anything. We would just like to find out." Colbern
then stated " . . . I don't believe Mrs. Gradwohl [the Re-
spondents ' president ] will like that, because she is very much
against unions ." Cobern then told Thompson that she had a
right to go to the "Labor Board " about the rates but that she
would have to do it on her own time , and that if she took off
the next day , she would not have a job when she came back.
After work that Tuesday, outside the plant, certain of the
employees , including Porter and Haugen , gathered around
Freed's car . Porter informed the gathering of the circum-
stances of her request for leave and of Colbern ' s warning of
discharge if she took the time off . Haugen somehow inferred
from this that Porter had already been discharged . Haugen
thereupon decided to accompany the girls the next morning
to the Labor Temple . Porter also agreed to go along. On
Tuesday evening , Cuddy likewise decided to make the trip with
the others the next day, because she was discontented with
her wage rate at the old plant . Accordingly , on Wednesday,
October 8 , employees Howard , Haugen, Freed , Thompson, and
Cuddy, took the day off from work to visit the Labor Temple in
San Bernardino . Porter , changing her mind, reported to work
at the plant . Haugen testified she knew beforehand of Colbern's
warning to Thompson of discharge if she took the day off to
go to the Union . The others were not questioned on this point.
At about 5:30 p. m. that Wednesday, after their visit to the
Labor Temple, the five employees stopped at Porter ' s house
on their return trip . They related to Porter in full their
experience at the Labor Temple. Later that evening , Porter
and her husband happened to meet Gradwohl, Hamilton, and
Colbern at the Apple Valley Inn, and informed the group that
the girls had gone to the Labor Temple that day, mentioning
specific names. Colbern credibly testified that the names
mentioned by Porter were Howard , Haugen, Freed, and
Thompson . The Trial Examiner found that nothing was said
about Cuddy. On Thursday morning, October 9, when Howard,
Haugen, Freed, and Thompson reported back to work, they
were discharged . Cuddy, however , was not discharged.
Conclusions
We agree with the Trial Examiner that the four complainants
in question did not on October 8 engage in a strike or other
concerted withholding of work. We find rather that they merely
intended to take the day off to obtain information from the
Union, without any purpose thereby of protesting the cut in
piece rates or of seeking any concession from the Respondents. 1
Unlike the Trial Examiner, whose findings as to Thompson
differ from those as to Howard, Haugen, and Freed, we believe
that all of these individuals were discharged essentially under
'Cf. Kaiser Aluminum and Chemical Corp., 104 NLRB 873.
TERRI LEE, INC. 563
the same circumstances and for the same reason . The facts
show that , with respect to granting employees time off the
next day for the purpose of consulting the Union, the Respond-
ents on Tuesday, October 7, adopted and evinced a clear
position on the question . Thus , the explicit request for such
leave which was made that day by Thompson was refused by her
supervisor , who told her that such matters should be trans-
acted on nonworking time, and that if she nevertheless took off
the next day she would be discharged . Moreover , the record
warrants the finding, which we make, that Howard, Haugen, and
Freed were aware of the Respondents ' position respecting
such leave and of the warning of discharge to Thompson. On
Wednesday evening, the Respondents received convincing--and
accurate--information, from Porter at the Apple Valley Inn,
that the reason these employees had been away from their
job that day was to visit the Labor Temple at San Bernardino.
Consequently , as the situation appeared to the Respondents
before the return to work of these absentees the next day,
October 9--not only had Howard, Haugen, and Freed, as well
as Thompson, violated the Respondents' prohibition and warning
of discharge about taking the day off to visit the Union, but
Howard and Freed , at least, had also lied as to the excuses for
their absence.
With respect to Cuddy, who was not discharged, some dis-
cussion appears necessary. The Trial Examiner sought to
reconcile the Respondents' failure to discharge Cuddy on the
ground that, according to Hamilton's testimony, Cuddy told
Hamilton she did not go into the Labor Temple. We do not accept
this view. It appears to us rather that Cuddy's disclosure to the
Respondents that she did not go into the Labor Temple, though
she admittedly remained away fromworkwith the others to visit
the Union, could hardly serve to distinguish her from the other
absentees in the eyes of the Respondents insofar as her union in-
tentions were concerned if, as found by the Trial Examiner, the
Respondents were inclined to discriminate against these em-
ployees because of their union activities. Moreover, it is signifi-
cant in any explanation of the Respondents' comparative treat-
ment of Cuddy, that Cuddy was not named in Porter's information
to the Respondents. Contrary to the Trial Examiner, therefore,
we cannot regard the Respondents' failure to discharge Cuddy as
evidence that the Respondents were discriminatorily motivated
in discharging Howard, Haugen, and Freed.
We now reach the issue of whether the Respondents were ille-
gally motivated in refusing to grant, on October 7, time off from
work the next day to visit the Union, and in discharging on Octo-
ber 9 the four complainants for taking such time off without
leave.
The question of granting employees time off from work, it
seems to us, is peculiarly a matter of management perogative
and judgment. Particularly in the circumstances as they
arose in this case , we recognize the Respondents' dis-
cretion in deciding whether to grant time off, and which of
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the reasons for absence offered by the employees would be
acceptable.z Where such discretion exists and is exercised,
the area for inference of unlawful motivation, within the
proscription of Section 8 (a) (3) of the Act, is necessarily
narrowed. More particularly, where, as here, the Employer
specifically refuses advance requests of employees for time
off to engage in employee activities customarily performed
on nonworking time, we believe that a finding of unlawful mo-
tivation with respect to the Employer's conduct in disciplin-
ing employees for disobeying its orders, must be supported
only by the most clear and compelling facts.3 In the light of
these considerations, we conclude that the evidence in this
record does not support the allegation in the complaint that
the Respondents unlawfully discharged Howard, Haugen,
Freed, and Thompson in violation of the Act.
As we also find, in agreement with the Trial Examiner,
that the Respondents did not discriminatorily discharge
complainant Inez Thomas on October 14, 1952, we shall dis-
miss the allegation in the complaint that the Respondents
violated Section 8 (a) (3) of the Act.
2. The Trial Examiner found that the Respondents commited
independent violations of Section 8 (a) (1) of the Act in two
respects, i. e., Hamilton's _promise of benefit to employees
in his speech on October 20, 1952, and Colbern's threat of
discharge to Inez Thomas.
(a) On October 20, Hamilton stated to the employees in a
speech, generally on the subject of the employees' union
rights, that the Respondents "had in mind" for them group
insurance benefits. In this speech, Hamilton mentioned other
particular promises of benefit, but these were not found un-
lawful by the Trial Examiner, as they had specifically been
announced by the Respondents in earlier speeches before the
inception of the union organizational movement. Also in these
earlier speeches, the Respondents had made general promises
of improved working conditions. We are not wholly satisfied,
therefore, that Hamilton's reference to group insurance
benefits, as another item in a listing by him of a series of
specific benefits, significantly added to the various other
benefits previously promised and again mentioned in the
October 20 speech.
(b) As credited by the Trial Examiner, Colbern stated to
Inez Thomas sometime before her discharge on October 14,
1952, that she was a union agitator and would be discharged
if it were not stopped. Colbern testified that his statement
was intended to admonish Thomas for her excessive talking
to other employees around a common table, which was inter-
fering with production. The record otherwise reveals no
evidence that Thomas was a leader among the employees in
the union movement or that she was particularly active or
2See N L. R B. v. Superior Company, 199 F. 2d 39 (C. A. 6), reversing 94 NLRB 586
3Gulf Coast Oil Company, 97 NLRB 1513; N. L. R. B v. Superior Company, ibid.
TERRI LEE, INC. 565
outstanding in this connection . As indicated above, the Trial
Examiner concluded that Thomas' discharge shortly after the
statement in question was made, was not discriminatory.
As we entertain sufficient doubt respecting both of the above
instances of alleged violations of Section 8 (a) (1) of the Act,
and no other violation having been found in the case, we
believe it will not effectuate the policies of the Act to issue a
cease-and - desist order against the Respondents . Accordingly,
we shall dismiss the complaint in its entirety.4
[The Board dismissed the complaint.]
4Board Member Rodgers agrees that a cease-and- desist order should not be predicated
upon the independent violations of Section 8 (a) (1) alleged in the complaint He believes,
however , that the Board should make explicit findings that the Respondents did not violate
the Act by the conduct alleged . He would find that Hamilton 's reference to group insurance
benefits was not unlawful, being at most an explication of the earlier promises of improved
working conditions which the Trial Examiner found to be permissible . He would also find
that Colbern 's statement was, in the circumstances , a proper admonishment to Thomas
and was therefore not unlawfully coercive.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Charges were filed in the above -entitled cases , by Marcella Freed on January 12, 1953,
and by Southern California Out-of- Town Department of the International Ladies' Garment
Workers' Union, A. F. of L , herein called the Union, on February 26, 1953, against the
respective Respondents named above Upon such charges, the General Counsel of the National
Labor Relations Board, the latter called hereinafter the Board , by the Regional Director for
the Twenty - first Region (Los Angeles , California), issued a consolidated complaint on
February 27, 1953, against said Respondents, alleging that they had engaged in and were
engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1)
and (3 ) and Section 2 (6) and (7) of the National Labor Relations Act, as amended , 61 Stat 136,
hereinafter called the Act Copies of the charges , the consolidated complaint , the order
consolidating cases , and notice of hearing were served on all parties hereto
With respect to the unfair labor practices, the complaint alleged in substance that the
Respondents on October 9, 1952, discharged and thereafter failed and refused to reinstate
Marcella Freed , Patricia Thompson , Fannie Howard , and Jeannette Haugen because they
had authorized the Union to represent them or because they had engaged in lawful concerted
activities for their mutual aid and protection or because they had engaged in a lawful ab-
stention from work for a lawful purpose , on October 24, 1952, discharged and thereafter
failed and refused to reinstate Inez Thomas and Oliver Bray because of their membership or
activity or because they had engaged in lawful concerted activities for their mutual aid and
protection , in October and November 1952, and thereafter to the date of the issuance of the
complaint , had interfered with, restrained , and coerced their employees in the exercise of
their rights guaranteed in Section 7 of the Act by specified verbal acts The Respondents
filed an answer denying commission of the alleged unfair labor practices
Pursuant to notice , a hearing was held before me at Apple Valley , California , on April 14,
15, and 16, 1953 , at which all the parties appeared Full opportunity was afforded them to
be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon
the issues On the third day of hearing , counsel for the General Counsel moved to amend
the complaint by deleting the name of Oliver Bray , one of the employees allegedly discharged
discriminatorily The motion was granted without objection . At the close of the hearing,
counsel for the General Counsel moved to amend the complaint to conform to the proof with
respect to formal matters This motion was likewise granted Counsel for the Respondents
stated an intention to file a brief, the date of May 5, 1953 , was set for the filing thereof, and
was later extended . The brief was received and has been considered.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 23, 1953, I received from counsel for the Respondents an application to take the
deposition of an additional witness On the same date, I denied the application but issued an
order reopening the hearing for the purpose of taking the testimony of said witness and duly
notified all parties that the reopened hearing would be held in San Francisco, California, on
May 1, 1953.
On the latter date, the reopened hearing was held before me as scheduled. Only counsel
for the General Counsel and counsel for the Respondents appeared The Respondents adduced
the testimony of the additional witness and counsel for the General Counsel had full oppor-
tunity to cross-examine. No other evidence was offered by the parties At the close of the
hearing on May 1, the date for filing of briefs was reset for May 11, 1953, but time was
later extended. From my observation of the witnesses and upon the entire record in the case,
I make the following:
FINDINGS OF FACT
L THE BUSINESS OF THE RESPONDENTS'
Terri Lee, Inc., is a Nebraska corporation, engaged in the manufacture, sale, and distribu-
tion of doll garments Its principal place of business is in Lincoln, Nebraska, but it has a
place of business in Apple Valley, California From the latter location it annually ships
goods valued in excess of $ 25,000 to points outside the State of California. Doll garments
from both the Lincoln, Nebraska, and the Apple Valley operations are supplied to Terri Lee
of California.
Terri Lee of California, herein sometimes called the partnership, is the duly registered
fictitious game under which Violet Gradwohl and Grace Hast, copartners, do business The
partnership was formed in April, and in May 1952 it set up a factory in Apple Valley where,
until the incorporation of Connie Lynn in November 1952, it engaged in the processing of
doll parts and in the assembling (including painting of features, wigging, and costuming), sale,
and distribution of dolls Since November 1952 it has not processed parts The partnership
annually ships goods valued in excess of $ 25,000 from its plant in Apple Valley, San Bern-
ardino County, California, to points located outside the State of California.
Connie Lynn Manufacturing Corporation was incorporated about November 1, 1952, as a
California corporation and commenced business about November 4, 1952 It took over those
operations of the partnership dealing with the processing of parts and the assembly of dolls.
The corporation annually sells goods valued in excess of $ 50,000 to said partnership
The Respondent, Violet Gradwohl, has an interest in each of the foregoing businesses The
extent of her interest in Terri Lee, Inc , is not disclosed by the record but according to the
undenied allegations of the complaint, it is a controlling interest With an 80 percent interest
in the partnership and a 75 percent ownership in Connie Lynn, of which she is president, she
also controls these businesses
I find that the several Respondents are engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Southern California Out-of-Town Department of the International Ladies' Garment Workers'
Union, affiliated with the American Federation of Labor, is a labor organization admitting to
membership employees of the Respondents.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent partnership (hereinafter called the Respondent, inasmuch as only employees
of the partnership are involved herein) commenced business in April 1952 in Apple Valley, a
sparsely settled community in San Bernardino County, California. It drew its labor forces
from the locality and from towns within a radius of about 20 miles. Most of the employees
were women, many of them housewives Because of its location, the Respondent experienced
'The findings herein are based in part on allegations in the complaint which are undenied
in Respondents' answer and which, therefore, are admitted by the Respondents, in part on
stipulations, and in part on testimony of witnesses.
TERRI LEE , INC. 567
some difficulty in getting an adequate supply of labor During the fall of 1952, to augment its
force, it employed on a night shift servicemen from nearby bases
Many of the employees had no previous experience in a factory and were merely seeking
to earn a little Christmas or pin money . As a consequence , the Respondent had some difficulty
with regularity of attendance and with acquiring a permanent staff . During June , July, and
August, 1952 , employees would frequently stay away from work without reporting and some
would even leave work in the middle of the day without word . Although the Respondent sought
to educate the employees to report expected absences , it was not inclined to be strict during
the summer of 1952, presumably because of the difficulty of getting replacements However,
in early September the Respondent did discharge two employees who were guilty of chronic
absenteeism after warning and following an occasion when they left at noon one day without
their supervisor ' s knowledge . Another employee , who had been guilty of absenteeism and
who had displayed a lack of interest inher work , was discharged toward the end of September
During September the backlog of orders grew to such proportions that the Respondent quit
taking new orders Orders for the Christmas trade in the East would be delivered late if
not shipped before December 1.2 Aside from Gradwohl , management in the latter part of
September and during October was divided between Raymond Colbern , production engineer,
and Spencer Hamilton, general manager , the boundaries of whose authorities appeared to
overlap . Although Hamilton testified that Gradwohl told him when he was employed in mid-
September of 1952 that his duties were to step up production and to take care of orders and
shipment , but that he was not to have supervision of production , which was under Colbern,
he assumed certain prerogatives in dealing with employees
Shortly after his employment , Gradwohl requested Hamilton to speak to the employees in
an effort to reduce the number of absences On September 23, 1952, about noon, Hamilton
made a speech to the employees at the plant announcing the institution of a new bonus plan
which, he said , would be explained in greater detail later by Mrs. Gradwohl . At this time
the Respondent was building a new plant several miles from the existing one, Hamilton told
the employees that work was being pushed to get the new plant in operation and that the
crowded condition at the old plant would be relieved when the new one was ready, at which
time part of the operations would be transferred there He said that certain conveniences,
such as a restroom and lunchroom , a coffee urn , and a new drinking fountain , would be
provided for those who remained at the old building . He also spoke critically of smoking,
loafing , and absenteeism With respect to the latter, an issue was raised as to whether or not
Hamilton stated that discharge would be the penalty. In resolving this issue , I have carefully
considered Hamilton ' s testimony on direct examination and on cross -examination with relation
to testimony of other witnesses and other evidence At critical points, Hamilton ' s testimony
impressed me as not reliable. In some instances , I noticed a tendency on his part to draw
together things that happened at separate times, whether carelessly or intentionally, and I
received the impression that Hamilton stopped short of full disclosure in critical spots. With
respect to absences , he testified on direct examination that he said in his speech on September
23 "that one thing I was going to be severe about, that I wanted the employees to be on the
job every day of the week , and that while I was going to be severe about it, that I realized that
when you employ women you are faced with additional reasons for being absent, and that no
one would be refused a right to be absent if they had a good and reasonable excuse or if an
emergency came up, if they would please have the courtesy to call us and tell us that they
could not be in and when they would be in, and we could make arrangements either just to
leave the job open or get somebody on the job to keep up the production , but we would not
stand for unexplained absences , and that I did not like to be lied to, and that if when they
told me they were being absent for some reason , I expected it to be the truth, and if I found
out different from that I would take action." At this point in his testimony he did not say that
he told the employees specifically that they would be discharged for an unexcused absence,
although on cross-examination he was emphatic in asserting that he had so informed the
employees Testimony of other witnesses was in conflict . General Counsel ' s witnesses were
uniform in testifying that Hamilton did not at this time say anything about discharge as a
penalty for absence One witness for the Respondent testified that Hamilton said they would
be automatically discharged if they just took off and made no effort to report in, while another
witness for the Respondent testified that he said he "would like for everyone to call in or let
them know when they were to be absent and that the repeated absenteeism would not be--it
2 Presumably the Respondent was not aware of this , because it received a return of a
substantial quantity of merchandise because of late delivery.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would just be automatically a lay-off or fire." Hamilton made other speeches on absenteeiim
but the memory of these witnesses about the contents of the other speeches was poor and
there is a possibility that in the memory not only of these two witnesses but of Hamilton,
himself, the contents of Hamilton's September 23 speech may have merged with the state-
ments made in his October 9 and 10 speeches, following the discharges of October 9, herein-
after related, when Hamilton did specifically announce that unexcused absences would in the
future be cause for discharge. Upon a careful consideration of all the evidence, I find that
on September 23, when he first spoke of absenteeism, Hamilton did not state that discharge
would be the penalty for an unexcused absence.
B. The alleged discriminations
1. Employment records of those discharged on October 9
Patricia Thompson was employed by the Respondent on Friday, August 22, 1952, as an
artist to paint dollfaces. During succeeding weeks prior to the week of her discharge she had
a good attendance record, only once putting in as little as 40 hours per week,3 excluding the
few days worked in the weeks of her hire and discharge. She started at 75 cents per hour
and in her second week was put on a piecework basis. Sometimes she would take doll heads
home with her to paint. From payroll records in evidence I note that her production rate
was consistently the highest of the artists.4
Fannie Howard was employed on Tuesday, September 9, 1952, as an artist painting heads,
and she put in 40 hours that week. Her attendance record was good. 6In her second week she
was put on piecework, and in the week before that of her discharge she averaged 145 heads
per day.
Jeannette Haugen was employed as an artist on Thursday, Sel:ember 11, 1952, at the hourly
rate of 75 cents. She remained on an hourly rate to the time of her discharge. Before the
week of her discharge, her attendance record was good, with two 48-hour weeks and one
40-hour week.
Marcella Freed was employed on Wednesday, September 3, 1952, at 75 cents per hour. She
spent 2 days in the shipping department and then was put on cementing of right arms, a job
on which she continued, when she worked, until her discharge. After about a week on this
job she was put on piecework at a penny per arm. She made about 400 to 500 at the outset.
During her third week she made about 840 arms per day. In the week before her discharge
3 Although the Respondent often worked 6 days a week, I notice from the payrolls, in evi-
dence, that a majority of the women did not work 48 hours per week regularly if at all. Of
86 hourly paid employees, including a number of men, on the payroll for the week ending
October 11, the week in which the discharges occurred, only 25 (6 of whom were men) worked
as much as 48 hours; 5 worked 44 to 48 hours; 18 worked an even 40 hours, and the remain-
ing 36 worked less than 40 hours. The last group includes those who worked on the night
shift, which did not work a full 8-hour shift, but there were many on the day shift in this
group too An example of a poor attendance record was that of Margaret Moses, who, in a
10-week period, put in the following number of hours: 28, 40, 32, 16, 32. 0, 16, 36, 40, 32.
This might be accounted for on the grounds of health, but at least the record indicates that
the Respondent was willing to tolerate such irregularity.
4For the week ending October 4, 1952. the average daily production of heads by the artists
was:
Patricia Thompson
Frances Porter
Ann Ramsey
Irma O'Bryant
June Deutschman
Fannie Howard
254
251
161
87
146
145
Jeannette Haugen was not on piecework; so the records do not show her actual production,
but Colbern estimated her production rate at 80 heads per day Haugen testified that she was
up to 100 heads per day when she was discharged.
5 Second week, 48 hours; third, 47-1/4 hours; fourth, 40 hours. She was discharged in her
fifth week.
TERRI LEE, INC. 569
her average was about 970 per day , and for the 2 days worked in the week of her discharge
she averaged 1,015 arms per day . On Tuesday, September 23, in the fourth week of her
employ , she was taken ill while at work . She was absent for the rest of that week and part
of the next.6 She testified that she did not hear Hamilton 's speech on September 23, and I
find that this is true.
2. Events leading to the discharges
The new plant , usually referred to as the dollhouse , was ready for production early in
October. Stock from the old plant was transferred over the weekend of October 4 and 5. On
Monday , October 6, artists , wiggers , dressers , packers , labeler, and the shipping department
commenced operations there . The assembly of parts remained at the old plant.
After the morning "break" on the first day, Hamilton assembled the employees of the
dollhouse and said that because the place was new, some things would not run as smoothly as
the Respondent desired and that he realized they were being slowed down some , but he asked
them to be patient, and said that the Respondent would "get all the bugs out of the system"
as fast as possible . He told them that he hoped they could speed up production for him, that
he was charged with filling orders , and that the only way that could be done was for them to
give him their full cooperation and stay on the job.
At that time there were 7 artists who painted the dollfaces and there were wiggers, most
of whom were paid on a piece - rate basis . They were started on an hourly rate of 75 cents
per hour and after they had attained a sufficient speed they were put on piecework . On October
6 the piece rate for artists was 8 cents a head . The speed of the artists ranged from about
80 to 250 heads per day , which resulted in an aggregate of 1,000 or 1,100 heads per day.
Gradwohl had set a quota of 1,500 finished dolls per day , hoping thereby to get 1,000 per day.
The two fastest artists were Patricia Thompson and Frances "Diz" Porter . On October 6
Gradwohl told Colbern that the work on the heads was not up to required standard in quality.
With the object of improving the quality of work, she directed Colbern to call the artists and
wiggers together and tell them that the piecework rate was to be reduced 1 cent per head.
One of the artists and one of the wiggers were to be inspectors of the work, and they were to
receive the 1 cent per head which was taken from the others . At quitting time that day Colbern
made the announcement as instructed.
Those affected were very much upset by Colbern 's announcement of the cut and they engaged
in a discussion outside the building as they left . It was the feeling amongst them that the
poor quality was the result of the speed of the fastest artists and wiggers and that it was
unfair to penalize all of them . One of the artists , Fannie Howard, was picked up in her car
by Marcella Freed , who worked in the old plant. Howard told Freed that the place needed a
good union . As they drove home to Oro Grande they discussed the subject of a union. Freed,
whose husband was an officer of the union local at a cement plant in Oro Grande , offered
to learn the proper channels for contacting a union.
That evening , Freed talked with Jack Kast, T secretary of the cement local, who said he
would find out the next day through the Labor Temple in San Bernardino to whom they should
speak.
Freed reported this to Howard and on Tuesday morning , October 7, before work , Howard
repeated it to Thompson and Porter , saying that she would go to the Labor Temple the follow-
ing day to see what could be done about the rate cut . During the morning rest period there
was further discussion of the topic and other artists began to give thought to going to the
Labor Temple in San Bernardino with Howard . Colbern noticed the restiveness of the artists
and told Gradwohl that the artists were not gong to take the cut lying down and that he thought
they were going to quit. Gradwohi said she would take her chances and instructed Colbern to
look at the applications to see if he could hire more artists.
6 Freed testified that she could remember only one period of absence and that was 4 or 5
days when she was ill. The Respondent 's records for the week ending October 4 do not show
the daily attendance , but Freed is shown as having worked 32 hours, or 4 days , that week.
Which 4 days that would be is not certain , but on the basis of Freed 's testimony and other
evidence, I find that her absences that week were either on Monday and Tuesday or on Monday
and Saturday . As some of the plant was being moved that Saturday , a full staff may not have
been asked to work. I notice that a great many employees that week worked 40 hours or less
7 This is the spelling shown in the record . As pronounced by Freed, it sounded to me more
like Kave.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At about 10:30 a. m. on October 7, Howard told Colbern that she had bad news, that there
had been a death in the family (her husband's aunt had died on Sunday and the funeral was set
for Wednesday), and that she wanted to be off on Wednesday to pay her respects. Colbern
granted her request. Thompson also asked Colbern for the day off on Wednesday. Thompson
gave Colbern as her reason for the request that she thought she was going to be sick. Thompson
testified that Colbern said, "All right." Colbern testified that he gave a noncommittal
answer. In any event, he did not at this point deny the request. Porter, who did not testify,
apparently told Colbern that her brushes were worn out and that she wanted to go to San
Bernardino with her husband on Wednesday, his day off, to get new ones.8 Colbern testified
that he told her that that was not a sufficient excuse and that if she did not come in the next
day she would be discharged. Because Porter did not testify, the circumstances of her re-
quest and Colbern's refusal were not covered so fully as with the others. From all the evidence,
however, I infer and find that Colbern's threat to discharge Porter if she did not work or
Wednesday was made late on Tuesday. Colbern was evidently suspicious of the number of
requests. Sometime Tuesday afternoon Colbern reported to Gradwohl that Thompson and
Porter "were going to be absent and that another had a good excuse," and Gradwohl told him
that Howard's absence was all right but that if any of the artists were absent without excuse
they were to be fired.
Jeannette Haugen, another artist, testified that Porter had told her that despite Colbern's
refusal to give her the day off she was going anyway. That evening, as Porter was leaving, she
said to Haugen and others, "Well, good-bye, girls. It has been nice knowing you." 9 From this,
Haugen and others assumed that Porter had been discharged.
On Tuesday evening after work, Colbern called Thompson outside and, according to
Thompson's credited testimony, said, "I understand you are going to consult the union
tomorrow." 10 Thompson replied, "Well, I had decided tomorrow to see what could be done."
Colbern said, "Well, I wouldn't do that if I were you." Thompson explained, "Well, we just
wanted to find out. We are not going to start a union or anything. We would just like to find
out." Colbern cautioned, "Well, I don't believe Mrs. Gradwohl will like that, because she is
very much against unions ." Thompson repeated , "Well, we are just going to find out." 11 At
some point in the conversation Colbern told Thompson that she would be cutting her own
throat and he said that if she went down she would not have a job when she came back.
Thompson asked if he was threatening her, and Colbern replied, "You heard what I said."
Colbern testified that be told Thompson she had a right to go to the Labor Board about the
rates but that she would have to do it on her own time. I find that he made some such statement.
He reported this conversation to Gradwohl.
Freed was waiting outside in her car on Tuesday evening and a group gathered there which
included Howard, Haugen, Porter, and two other employees. Haugen testified that, believing
Porter had been discharged , the group was sympathizing with her, and Haugen apparently
decided then to go with the others to the Labor Temple the next day. Howard asked Porter
if she, too, were coming with them, and when Porter said she might as well go along for the
ride, they arranged to meet at the high school in Victorville at 8 o'clock Wednesday morning.
In Oro Grande Tuesday night, Freed learned from Kast the name of the man to see at the
Labor Temple in San Bernardino. That same night Doris Cuddy, wiio was employed at the
old plant where Freed worked, learned from a Betty Reed that Reed had just been employed
by the Respondent at a rate higher than she herself was then receiving. Cuddy thereupon
decided to join the others on the trip to the Labor Temple in San Bernardino.
On Wednesday morning, Freed, Howard, Haugen, Cuddy, and Thompson met at the Victor-
ville high school. Cuddy, who had been absent with Colbern's permission on Tuesday to go to
the hospital for a treatment and to visit a lawyer concerning injuries she had received in an
automobile accident, decided to report her absence for Wednesday. So before they left, Cuddy
had her daughter, Viola, telephone the old plant to say that she would be absent again. Viola
Cuddy testified that Haugen was about to telephone in, too, that she offered to report Haugen's
8In view of later events it is doubtful whether Porter intended to go with Howard to the
Labor Temple. Some evidence leads to an affirmative inference. some to a negative inference
I make no finding thereon.
9 There is some reason to believe that Porter may have been play- acting
10 The most probable source of Colbern's information was Porter.
lColbern's account of this conversation was shorter and differed in that he testified
Thompson said she wanted to go to the Labor Board and find out if something could not be
done about the conditions that existed, referring, I deduce, to the rate cut He omitted all
reference to union or unions in his account of the conversation.
TERRI LEE , INC. 571
absence at the same time she telephoned for her mother, and that she did so. Colbern ac-
knowledged receipt of notice from Cuddy but denied having received notice from Haugen.
The situation regarding Freed was somewhat similar. As I believe the result would not have
been different even if Haugen and Freed had made the reports they testified to, I find it
unnecessary to decide whether or not the Respondent actually received notice of Freed's or
Haugen's intended absence,
Porter failed to appear at the high school, having reported for work at the doll factory;
so the other five employees , after waiting a while for Porter , drove to the Labor Temple in
San Bernardino. On returning that evening , they stopped at Porter 's house and reported what
they had done . Reference was made to the holding of a union meeting . Later on Wednesday
night, October 8, at the Apple Valley Inn , where Gradwohl , Colbern , and Hamilton had been
spending some time after dinner, Porter and her husband appeared . After preliminary
greetings , Porter informed the group that four of the employees , Howard, Haugen, Freed,
and Thompson , had gone to the Labor Temple in San Bernardino . iz Nothing was said about
Cuddy.
3. The discharges of October 9
Hamilton and Colbern had breakfast together on Thursday morning and it was then decided
that Colbern should discharge Howard, Haugen , and Thompson and that Hamilton would instruct
Foreman Sauers to discharge Freed . At about 7:30 a. m. that morning Hamilton so instructed
Sauers . On direct examination , Hamilton , in relating the circumstances leading to Freed's
discharge , gave the impression that he discovered Freed 's absence as a result of checking
up on production and finding the wheel for the right arm idle. (Freed did not work on the
grinding wheel but cemented right arms . I am uncertain whether Hamilton was in error or
not.) He testified that he asked girls working there where the operator was and that they said
she was off for the day . Apparently he did not investigate the absence of other employees or
their reasons therefor , as for example Cuddy , whom he had not yet learned was with the
group that went to San Bernardino , or Irene Ferguson, who testified she was absent that day.
Hamilton testified that he then asked Colbern the name of the employee who was making right
arms, that Colbern gave him Freed 's name , that Hamilton then recalled Sauers ' having talked
to him about Freed's having been absent before , referring to the absence when Freed had
taken ill in the fourth week of her employment and worked only 10i hours that week and 32
hours the following week. 13 Hamilton 's testimony continues , "... so I debated during the day
in my own mind what I was going to do about it; it seemed I was being flaunted . So I went
down the next day and told Mr. Sauers to terminate Mrs. Freed." Hamilton did not testify
at this point that he had asked Sauers if he had notice from Freed or if she had given an
excuse for being absent . On cross-examination Hamilton testified that he had asked Sauers
if Freed had any excuse for being absent and that Sauers said he had not talked with her.
Hamilton made it appear that this occurred at 5:30 p. in. on Wednesday . None of this portion
of Hamilton 's testimony about the investigation of Freed's absence rang true. According to
Sauers' testimony he did not speak with Hamilton on Wednesday about the fact that Freed
was absent . He testified that Hamilton had come over Thursday morning and told him he had
decided there would be no more time lost for inexcusable reasons and that Sauers was to
take Freed 's card from the rack and terminate her, not let her start work. I conclude that
if Hamilton inquired of Sauers if Freed had given an excuse , he did not do so before Freed's
discharge . I am convinced and find that the decision to discharge Freed was not made before
the Respondent learned that she was with the artists when they visited the Labor Temple in
San Bernardino.
12 Here again , Colbern quoted Porter , as he had Thompson , as using the expression "Labor
Board." At one point in his testimony , Hamilton testified that he heard something about
Howard , Haugen, and Thompson going to San Bernardino to talk to someone about dissatis-
faction in rates. Whether or not Thompson or Porter used the expression Labor Board
rather than labor council or Labor Temple , I find that the Respondent understood before
Thursday morning that the group of employees had gone to consult a union
13 The Respondent 's payroll records in evidence do not show the daily attendance for the
latter week; so it cannot be determined whether or not Freed was absent at the beginning
of the week, as a continuation of her absence of the week before , or whether her absence
occurred later in the week. Freed thought she had had only one period of absence.
or,
5 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Each of the three artists was told by Colbern as she appeared for work Thursday morning
to pick up her things and leave the building. When Colbern said to Haugen that she was
absent the day before, Haugen replied, "Yes, I was, but it was reported in." Colbern did not
ask Haugen to whom it had been reported or what her excuse was. He merely said, "Ab-
senteeism is inexcusable. Will you please pick up your things and leave."
According to Howard, who was waiting for Colbern to open the door on Thursday morning,
she said, "Good morning, Ray." He did not answer her greeting but said, "Are you ready to
get your things, pack up your brushes and leave? " Howard said, "Ray, you know that I had
permission to take the day off yesterday." Colbern, according to Howard, refused to discuss
the matter with her, merely repeating his request that she get her things and leave. Accord-
ing to Colbern, he accused Howard of giving a false reason for her absence but he could not
remember the rest of the exchange of words. In any event, he asked for no explanation and
did not ask if Howard had done what she said she was going to do when she asked for the day
off. If Colbern had information which led him to believe that Howard had not taken time to
pay her respects to the bereaved family as she had said she intended to, he must have received
a much more detailed report from Porter than he testified to, for Howard in fact did not
call in person on the family.
Within a few days after this, each of the employees discharged returned to pick up her
paycheck and to ask the reason for her discharge. Two asked if they could get their jobs
back. None was reemployed. In Haugen's case, she and her husband spoke with Hamilton on
October 11. Hamilton testified:
She asked me why she had been fired, and I told her that so far as I knew it was for
being absent, and that I had talked since that time with Mr. Colbern and he told me he
had fired several from the new plant for being absent, and she said that she had called in.
I said that part of the discussion I couldn't get into, because the call should have been
placed with the other plant, if it was placed--she worked at that plant--and that Mr.
Colbern at that time was supervising up there, and that we had the artists' supervisor
and the call should have gone up there, if it came in, and that was not part of my particu-
lar assignment at that time. [From Hamilton's testimony, it is not clear how he knew that
the call went to the old plant. In view of his testimony that he had received the call about
Cuddy, I infer that he also received the call about Haugen. If the new factory at that
time had a telephone, Cuddy did not know it and it is doubtful that the other employees
would.]
Mr. Haugen wanted to know if there was any chance of his wife getting her job back,
and I said that I couldn't answer. I said Mrs. Gradwohl would have to make the decision
on that, and I said, "If you want to talk to Mrs. Gradwohl I would suggest that it be
handled through her and then have it come back to me, and I will see that you get a
chance if you really want to talk to her." I said, "I am not going to say that you can't
have your job back or anything about it, because I didn't discharge you and I don't know
the circumstances, all of them, and I would prefer that you talk to Mrs. Gradwohl." I
said, "The final decision would have to come from her anyhow."
If Hamilton was correct in his last statement,I would deduce that Gradwohl made the decision
to discharge these employees in the first place and that when Hamilton and Colbern had
breakfast together on October 9, it was not to decide whether or not to discharge the four
employees but was only to decide how to handle the discharge. Colbern's testimony seems to
corroborate this.
According to Haugen's testimony, when she asked Hamilton why she was discharged,
Hamilton asked if she was not one of the girls who went to San Bernardino. Haugen answered
that she would not deny that she was in the car. Haugen then testified that Hamilton said,
"Well ... that is why you were fired, because you went to the Labor Temple and you jumped
the gun. Mrs. Gradwohl didn't approve." Haugen's husband testified to the conversation. He
did not remember mention of Mrs. Gradwohl's name but he substantiated Haugen's testimony
of the reason Hamilton gave for discharging Haugen. I do not believe that any of the three
remembered exactly what was said, but I find that Hamilton did ask Haugen if she were not
one of the girls who had gone to San Bernardino the day before and that he had said that that
was the reason she was discharged.
Howard and Freed, together, asked Colbern why they were discharged and Colbern just
said, "It doesn't make any difference." Gradwohl came up as they were speaking to Colbern,
TERRI LEE, INC. 573
and the latter turned to Gradwohl and said, "'Ilse girls would like to know why they are fired.
There are two, one a witness for the other." Gradwohl said , "They know why they were
fired. Terri Lee employees have always done as they were told, always have and always will.
That is how Terri Lee is run." Howard said, "Thank you, Mrs. God," and she and Freed left.
After that, Thompson and her mother came in and spoke with Colbern. They asked to speak
with Gradwohl but Colbern said that she had been upset by two of the girls who had been in
and that she would not speak with anyone any more. When Thompson asked why she had been fired,
he answered in substance that it was for absenting herself on Wednesday, October 8, after
he had told her that she would not have a job when she came back if she did as she intended.
4. Events following the discharges of October 9
On Thursday morning, after the discharge of Freed, Hamilton spoke to the employees at
the old plant, told them that he had had Sauers discharge an employee for being absent, that
there had been too much absenteeism, that it could not go on the way it was, that too many
of the girls were being absent, that they would have to settle down and not be absent so much,
and that "as fast as they persisted in being absent from the job without proper excuse they
were going to get discharged ." He made a similar speech at the new plant at closing time
Friday night . As he testified in greater detail concerning this speech , his testimony of what
he said is quoted at length:
You know and it is no particular secret that there has [sic] been some people fired out
of the organization this week for not being on the job ... I warned you before and I am
going to warn you once more there is to be no more of it then. If you don't give us an
excuse for being absent and be here steady and take care of your job , we are just going
to have to get girls who do. I want you to thoroughly understand I am not going to tolerate
your being absent without proper excuse ... According to what I find out from Mr. Col-
bern, there were a lot of excuses given that were untrue ... That is one thing that I am
not going to tolerate ... I just want you to get that in your mind once and for all, that
from now on if you are absent and you don't call in, you are fired; if you call in and give
me an excuse and I find out it is a lie, I am going to fire you for lying to me.
He made further speeches the following Tuesday at noon to the day shift and that night to
the night shift at the old factory, telling the employees that, after coming down there and
finding the plant about half-manned on Monday , it appeared they were having absenteeism
again, and that he had gone in Monday night to the night shift and there were 3 people there;
that they could not afford to run a night shift for just 3 people. He told them, "I have instructed
Mr. Sauers to hire more people and fill this plant and keep it running , and I want you people--
I don't want to lose anybody, I don't want to lose a person out of this plant. But ... if you
persist in being absent you are just going to be replaced."
On cross-examination Hamilton testified that his speeches on October 9 and 10 stopped
absenteeism . In explaining the apparent inconsistency , Hamilton testified , "We had some loss
of employees." From the payroll records in evidence, however, I find no evidence of separa-
tions of employees who were absent the full week of October 13 to 18, from which I conclude
that no employees quit without working at least 1 day that week, 14 and no employees were
summarily discharged for being absent on Monday. On the payroll for the week ending
October 4, there were 77 production employees; for the week ending October 11, excluding
the 4 who were discharged on October 9, there were 86; for the week ending October 18,
there were 90. Excluding new employees, at least 48 employees worked 40 hours or less. As
the daily attendance record is not shown, no conclusion can be drawn as to whether or not
all 48 were absent on Monday. However, from Hamilton's testimony I conclude that there were
absences on Monday, October 13, of which the Respondent did not approve. It is fairly in-
ferable from this and other evidence that employees were absent that day either without notice
or without excuses which the Respondent found adequate. It is inconceivable that the Respondent
would have approved so many absences on 1 day. As the records do not show any discharges
as a result, I conclude that Hamilton's threats of summary discharge for unexcused absences
were not intended to be acted on as an inflexible rule.
uIf I read the Respondent 's record correctly , there were not terminations at all during the
week of October 13 to 18, although there were five the following week.
3 37593 0 - 55 - 38
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Following the discharges of Thursday morning, October 9, Hamilton received a telephone
call from someone who gave no name. The anonymous caller asked Hamilton why he allowed
certain girls to be discharged when one that was with them was not discharged. Hamilton
asked the name of the girl referred to. and the caller named Doris Cuddy. That evening
Hamilton called Colbern and Cuddy into his office. According to Hamilton's testimony, he
asked Cuddy if she had been sick on Tuesday and Wednesday. >s She replied that she had been.
Hamilton then asked if she had told Colbern she was going to San Bernardino to see a doctor.
She replied that she had. Then Hamilton asked, "On Wednesday did you go down to San
Bernardino with a group of girls? " Cuddy replied, "I went along, I was in the car, but I
didn't go in the Temple." Hamilton made no further investigation. Cuddy continued to work.
5. Conclusions with respect to October 9 discharges
The General Counsel takes the position that the discharged employees were engaging in
protected concerted activities in not working on Wednesday, October 8, because their purpose
in not working was to use the time to consult the union about rates of pay. It is, however,
quite clear that the employees were not striking or withholding their services to enforce
their demands. They just wanted to consult with a union, two of them about the rate cut of the
artists, the others for their individual reasons. They sought, except for Thompson, to conceal
the true reason for absence. Such is not the nature of a strike or concerted refusal to work. i6
Thompson was told that she should consult the Union on her own time, that she would be
discharged if she absented herself. I have found that there was no preexisting rule that an
employee would be discharged for one unexcused absence. Of course, even if there had been
no such rule before, the Respondent might initiate such a rule for legitimate business reasons
and enforce it after proper notice. The real question in such a case is, was the rule adopted
for legitimate business reasons with intent to apply it uniformly to all, or was it adopted or
enforced only to interfere with organization or union activities? In this case the Respondent
had a genuine interest in keeping people on the job, and it might be deemed to have been
justified in adopting and enforcing a rule that anyone with one unexcused absence would be
discharged. Before October 9 it had not, I have found, adopted such a rule and had never
acted in so summary a fashion. There was good reason for the Respondent not to bind itself
to a rule that one unexcused absence would result in a discharge. In the first place such a
rule might result in a discharge of some of the most efficient employees, and valuable time
would be lost in training replacements. But in the second place, the Respondent knew that
labor was not in plentiful supply. It was scraping the bottom of the barrel when it hired
servicemen part time. It was the nature of the residents of the area, many of whom were in
circumstances where a job was not a necessity, to take time off frequently. So with the
scarcity of replacements, the Respondent was well aware that if it discharged everyone who
took an unexcused absence it might be faced with a more serious shortage of help than if it
put up with a certain number of absences. Under these circumstances, the normal policy (and
the one which I am convinced the Respondent was committed to following before October 9 )
would be to try to develop a consistent staff of trained employees, using a few warnings or
threats (but being careful to avoid sawing off the limb the Respondent was on) with a view
to "educating" the employees to the importance of steady production, and discharging only
those employees whose frequent absences indicated an indifferent interest in working for the
Respondent.
Before October 9, 3 girls had been discharged, 2 on September 3 and 1 on October 3. The
first 2 had a record of chronic absenteeism (absences without notice), and on the day before
their discharge, they had left work at noon without word to anyone. They were discharged
when they reported for work the next morning. The 1 discharged in October had started work-
ing on September 9, had absences on Tuesday, September 23, Wednesday, October 1, and
apparently was discharged after working 3 hours on Friday, October 3. According to Colbern
she had a poor record and showed a lack of interest in her work. I find that her absences
were not the immediate cause of her discharge.
Ii Hamilton testified that he had received the call from Mrs. Cuddy's daughter Wednesday
morning telling him that Cuddy was still sick.
t6Cf Buzza-Cardozo, 97 NLRB 1342, where theBoard found that employees had concertedly
withheld their services to enforce their wage demands.
TERRI LEE , INC. 575
With this background in mind, let us consider the case of the girls discharged on October 9.
Three of the four discharged were artists . With 1 of the 7 artists acting as inspector for the
others , as arranged on October 6, the inspector either would not produce at all or would
produce less than before . Only 6 would be devoting full time to painting faces . The discharge
of 3 artists would, therefore , cut the staff in half. Unless they could be replaced quickly,
production would be seriously threatened at a time when the Respondent claims it needed
production badly . Whether or not they were actually replaced quickly does not appear, but a
comparison of the production for the week ending October 4 (4,910 dolls shipped ) with that
for the week ending October 11 (3,151 dolls shipped) indicates the probable effect of the loss
of services of the 4 girls who were discharged on October 9. A day's absence would be ex-
pected to cause no more than about a sixth less production even if there were no backlog of
finished parts or heads on hand to fill the gap.
Freed was the only employee making right arms on the day shift. It does not appear exactly
how many were produced by the night shift but , at the time of her discharge , Freed was making
about 1,015 arms a day . According to Gradwohl , about 80 percent of those would go into
finished dolls . The rest, even if properly made by Freed, stood to be damaged by the grinder.
This means that on Monday and Tuesday Freed alone made enough arms for the average of
800-odd dolls that were being finished per day. With arms being made on the night shift, too,
there must have been a backlog of arms produced . Colbern was quite confused in his testimony
about the existence of a backlog of parts . At one point he testified that during the week ending
October 4, when 4,910 dolls were shipped , the Respondent must have been drawing on inevntory
if there was one . But then he testified that there was little or no room for a backlog of parts.
He testified that the night shift had been started to overcome the difficulty caused by the
wide fluctuations in the production of parts caused by absenteeism . As it was not likely that
each of the employees making parts would be absent at the same time, and as the night shift
would make some of each part, it would stand to reason that a certain surplus would be built
up when the employee on the day shift producing such part was not absent. I am not convinced
that Freed 's absence on Wednesday , October 8, would have affected production much, if at
all, and certainly not as much as it would have before the night shift had been started. Fore-
man Sauers , himself, presumably would not have discharged Freed. He testified that her
discharge was not his idea. Apparently her absence was not of such consequence as to cause
Sauers to complain to Hamilton , for Hamilton did not even know of it until late on Wednesday,
and then not as a result of Sauers ' complaint. Hamilton testified that he learned of Freed's
absence as a result of his own investigation, and that he noticed a vacancy at the position for
making right arms . 17 His testimony on that matter was not convincing , however, and I have
found that he was not aware of her absence until informed by Porter that Freed was with the
3 artists who went to San Bernardino . Freed's production rate of 1,000 arms per day was not
equaled by her successor for about a month . Her successor started with a rate of about 500
arms a day and in 10 days had increased to 600 . According to Gradwohl , only about 50 percent
of the arms produced by a new employee would be used in finished dolls, in contrast to 80
percent in Freed's case . The result of Freed 's discharge was obviously to retard production
much more than Freed 's 1 day 's absence retarded it.
Of course , it may be argued that the Respondent may have been so concerned about absences
that it decided to act in this apparently irrational manner and cause a loss to production in a
drastic effort to eliminate unexcused absences . To me it seems extremely unlikely that an
employer in the Respondent 's situation would make such a decision without additional reason,
such as a determination not to permit a union movement to get started . If it were going to
make a discharge merely to set an example , one discharge would suffice , and then an Em-
ployer would be expected to select an employee whose production record was not above
average.
Evidence that the Respondent was not likely to injure itself by discharging so many neces-
sary employees at once may not alone prove that its motive in making the discharges was to
nip the union movement in the bud. However , additional factors convince me that such was
one of the motivations . Although Hamilton had said he was going to be severe on absenteeism,
I have found that he did not , before October 9 , say that he would discharge an employee for
one unexcused absence. Ordinarily one thinks of absenteeism as a practice of being excessively
absent, especially with inadequate excuse , rather than being absent only on one occasion.
The Respondent relied upon the past record of attendance only in the case of Freed , and upon
17 Other employees were absent at that time, but Hamilton did not indicate that he checked
up on them.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her record with unjustifiable emphasis. Freed had had a period of absence, it is true, but it
was because of illness and therefore was presumably excused. Foreman Sauers for the Re-
spondent testified that Freed was probably the most flagrant example of a person losing tune
in that period. But he was not considering the reason for her absence. He was considering
only the percentage of time she had been absent in relation to her total time of employment.
If excused absences are to be counted in calling a record of attendance bad, Freed's would
look bad only because she had been employed for a relatively short time. A cursory examina-
tion of the payroll, however, would show other "flagrant" examples. 18 It appears to me that
the Respondent was pointing to Freed's record only as makeweight and not as anything
actually considered in her discharge. Some of Hamilton's testimony tended to create the
impression that Sauers spoke with Hamilton about Freed's record and loss of production on
right arms just before her discharge. Sauers probably did talk with Hamilton during the period
of Freed's illness but not as a complaint against Freed. I deduce from Sauers' testimony
that he was not asking Hamilton to get rid of Freed but was asking for more employees so
that the absence of one employee would not so seriously affect production.
Freed testified that she attempted to speak with Sauers on Tuesday night, October 7. to
tell him she expected to be off the next day, but that Sauers was busy signing up a new em-
ployee and that she therefore left word with another employee to be passed on to Sauers.
Sauers did not receive such message. Her excuse for being absent was, like Howard's, one
thought up for the occasion, with just enough factual basis to keep it from being 100 percent
fabrication. In view of the testimony concerning Howard, it seems likely that Freed would
have been discharged even if Sauers had received word from Freed. Although a false excuse
would be no better than none at all if the Respondent learned that the excuse was false, I
note that the Respondent assumed, without attempt to investigate, that Howard's reason was
false. But so far as the Respondent knew she could have done what she said she was going to
do (pay her respects to the bereaved) and still go to the Labor Temple with the others. But
when she arrived at work on October 9 Colbern did not ask her to explain. He just discharged
her without questions. Haugen testified that she had caused a message of her absence to be
telephoned to the Respondent at the same time that Cuddy's message was telephoned in.
Hamilton testified that he received Cuddy's call but that he did not remember receiving
word of Haugen. Haugen testified that on October 9 when Colbern was discharging her, she
told him that she had called in. Colbern did not remember this, but he admitted that he had
not checked with anyone to see if a message had been received by anyone from Haugen because
he did not think it was necessary as he "had been instructed to lay anyone off that was absent,"
and he did not think that he could have changed that decision. Apparently, then, nothing that
Howard or Haugen could say would have influenced Colbern. Presumably, therefore, even
if Howard had visited the bereaved family and paid her respects as she said she intended to,
Colbern would have discharged her anyway just because she was with the others who went to
the Labor Temple.
Why, then, was Cuddy not discharged when it was learned that she had gone to San Bernar-
dino with the others? After the Respondent had been informed that Cuddy was with the four
who had been discharged it had just as much reason to suppose that the message telephoned
in on her behalf might be false or only partly true as in the case of Howard's excuse. The
fact that the Respondent gave Cuddy a chance to explain, whereas it did not give Howard
such a chance, may in part be accounted for by the fact that Cuddy had been absent on Tuesday,
also, and the Respondent had accepted her reason for Tuesday's absence. But, according to
Hamilton, Cuddy admitted having gone to San Bernardino with the other girls. This would
put her in exactly the same position as Howard. Each could explain the trip to San Bernardino
as for a reason other than to visit the Labor Temple but each had ridden down with the group
interested in the Union. Hamilton testified that he asked Cuddy, when be called her into his
office, if she had gone to San Bernardino with the group of girls on Wednesday, October 8,
and that she had answered, "I went along, I was in the car, but I didn't go in the Temple."
That was the last said in that interview. The Respondent could easily have ascertained that
181 have already given the record of Margaret Moses. Also may be considered that of
Lillian Stratton. She put in 5 weeks with 40 or 48 hours Then she was away for 3 weeks.
Following that she worked only 8 hours in each of the last 2 payroll periods among those in
evidence. Hence she worked only about 50 percent of the time in that 10-week period. Freed's
absence would be around 20 percent, counting her period of illness Moses' employment ended
in the week of October 24. There is no evidence that Stratton left the payroll.
TERRI LEE, INC. 577
Cuddy had not visited the hospital or a doctor on October 8, but apparently it was content to
drop the investigation right there because Cuddy had not gone into the Temple.
On the entire record, I am led to the conclusion that the Respondent would not, on October
7, have become so strict about giving permission to be off if it had not suspected that some-
thing was brewing in the nature of concerted activity and to the conclusion that it would not
have discharged so many employees at once but for the fact that they had gone to the Union
on October 8. Although I consider it unlikely that Thompson would have been denied a day
off for slight reason on another occasion when the Respondent was not apprehensive of con-
certed activity , I am unable to overlook the fact that in her case , and only in her case, she
was told that her absence the next day would result in her discharge . Unless she absented
herself in a strike or concerted refusal to work , she would not normally be protected against
such consequences, and I have found that she was not absent for such purpose. If the Re-
spondent in the interest of maintaining production , denied permission to take a day off to
visit a union, I would not question its right to do so. If it denied such permission to prevent
union interest or activity when it would not have denied permission otherwise , that in itself
would be discrimination . The fact that both interests (keeping up production and discouraging
union organization) may have motivated the Respondent on October 7 makes a decision diffi-
cult in Thompson 's case. Although I believe that Thompson might have been granted leave to
be absent for a day on another occasion when union activities were not involved , I do not
find that the Respondent would have granted her permission even then if another artist had
already been given permission to be off for that day, as had Howard , and when to grant such
permission to a second artist would more seriously affect production . It is possible , therefore,
that on October 7, 1952, the Respondent might, even without an antiunion motive , have denied
Thompson permission to be off on October 8. But absent an antiunion motive , would the
Respondent have threatened Thompson with discharge if, despite denial of permission, she
had stated it as her intent to be absent anyway? I am skeptical that it would have, but I am
not convinced that it might not have. In this state of uncertainty , I must resolve the doubt
in favor of the Respondent and find that as Thompson had specific warning of the consequences
of her absence, her violation of that specific instruction and warning was the cause of her
discharge.
Howard. Haugen, and Freed were not given such specific warnings . Furthermore , the Re-
spondent exhibited an arbitrary attitude toward them as a result of Porter 's tale bearing,
an attitude which it did not exhibit in Cuddy 's case . Howard, Haugen , and Freed were given
no opportunity to explain their absences . They had been tried in absentia and found guilty.
But Cuddy was not only given an opportunity to explain ; her word was accepted without
question when she said she had not gone into the Temple . On the record as a whole I conclude
and find that the Respondent discharged and thereafter failed and refused to reinstate Howard,
Haugen, and Freed because of their union interest and activity in violation of Section 8 (a) (3)
of the Act.
6. Hamilton 's speech concerning the Union
On a day in the week beginning on October 20, 1952 , Hamilton made another speech to the
employees . According to his account , which is credited as far as it goes , he told the employees
that there had been rumors of union agitation going on , that some people had signed cards and
some had not , and that there was a rather lively discussion about the Union . Hamilton said
that he was not speaking for the management of the plant , but that as far as he was concerned
he would not care whether the employees "were union or whether they weren 't," that his
principal concern was production . But he said that he did not think it would be fair to his
employer if he did not point out a few of the benefits she had in mind for the employees, such
as group insurance , bonus, lunchrooms, all the conveniences that the Respondent "could
possibly give them in Apple Valley ." With regard to the bonus plan, he said that the checks
were going into the Hollywood Savings and Loan for the employees ' money and that they could
draw it out or leave it there as they pleased. Hamilton also said that no one would be dis-
charged because he had or had not signed a union card . He said that the final decision was
theirs , that if they chose to have an election and have the Union , the Respondent would "run
union." Witnesses for the General Counsel testified to certain statements made by Hamilton
which were not in his own testimony . According to the General Counsel's witnesses , Hamilton
said that it did not matter if the plant went union or not but that if it did go union it would go
all the way and be a closed shop "because it would be easier for the company to operate
under a union shop." Several witnesses testified that Hamilton said there would be a closed
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shop Hamilton denied speaking of a closed or union shop From the quotation above I infer
that the witnesses may have confused the terms "union shop" and "closed shop." I find that,
if Hamilton did not use the expressions "closed shop" or "union shop," he gave the employees
reason to believe that if there was to be a union, the plant would go all the way and be a
union shop. Hamilton also said that the employees should bear in mind that with a union the
employees would no longer come in to talk with the employer personally, that they would
deal through a stewardess, a representative of the Union; and he said that wages would be
regulated by the Union, that girls making high wages would in all probability make less and
the girls that were not making very much might get a little more, but that, with union dues
and initiation fees, it would turn out to be about the same as they then had
With the exception of group insurance, all the benefits mentioned in Hamilton's speech had
been previously announced before any interest in the Union had been shown. Although Hamilton
was no doubt enumerating these benefits to show what the Respondent had planned or given
the employees without a union he did not say that these benefits would be withheld if the
Union were chosen by the employees as their bargaining representative I find it rather
peculiar that Hamilton, the general manager, was particular to point out that he spoke for
himself and not for management in saying that it was immaterial whether the employees
were "union" or whether they were not. In view of that, the promise of such benefits as
group insurance might sound to the employees like an inducement to forego a union. Such
promises of benefit have been repeatedly held to constitute interference, restraint, and
coercion in violation of Section 8 (a) (1) of the Act. On the basis of such precedents I so find
it here.
7 The discharge of Inez Thomas
Inez Thomas, hired about May 15, 1952, was among the first on the payroll when the Re-
spondent opened its business in Apple Valley She started at the rate of 75 cents an hour as
a packer. Later she was made an inspector. After a week's absence between August 17 and
23, she was raised to 85 cents. Colbern testified that he gave Thomas this increase, without
Gradwohl's knowledge or approval, because the Respondent needed help badly and because
Thomas was one of the older employees 19
It appears to be an uncontested fact that Thomas was not a fast worker and would not have
been capable of doing piecework She did her work conscientiously but slowly and she some-
times tended to delay the work of others She was described by Eloise Carpenter, her
supervisor, as childlike, as having a one-track mind, and as being difficult to explain things
to Extremely sensitive, she would burst into tears if spoken to sharply or critically. However,
Thomas had a very good memory for the code numbers of the dolls and did not have to keep
referring to the list as other employees did on the labeling job Because of her shortcomings,
supervisors had, on occasion, suggested to Gradwohl that Thomas be let go, but Gradwohl
would not agree to this At the hearing the Respondent sought to picture Thomas as stubborn
and as refusing to obey orders. The evidence indicates, however, that if Thomas appeared to
be stubborn, or insubordinate, it was because she believed the instructions of her super-
visors to be contrary to those of Gradwohl, whose word Thomas accepted unquestioningly On
a few occasions the supervisor, in frustration, would go to Gradwohl to complain of inability
to handle Thomas Gradwohl would then go to Thomas and explain, as she would to a child,
what she wanted done and Thomas would comply. One such incident occurred when Thomas,
as an inspector, refused to pass a number of dolls that were short of perfect Even after
Carpenter and Colbern had told her to let them go through, Thomas was not satisfied and
lsColbern testified that "she was given a raise along with several of the others," The
payroll does not confirm this testimony. During the week ending August 9, 1952, no hourly
rate for a woman exceeded 75 cents per hour except in the case of one Wood, who received
24 hours' pay at 75 cents and 12 hours' pay at 85 cents. But her rate was back at 75 cents the
following week. During the week ending August 16, 1952, 3 women, Ferguson, Pulliam, and
Williams, are shown with an 85-cent rate This amounted to an increase for Williams but
Ferguson and Pulliam had apparently been on piece rate the week before, and at 85 cents per
hour their earnings were actually reduced. In the week ending August 23, Wood and Williams
appear to have been on piece rate Aside from Ferguson and Pulliam, the only female em-
ployees paid an hourly rate in excess of 75 cents were those I deduce to be officeworkers who
were actually on a weekly rate. For the week ending August 30 only Thomas is shown to have
received an increase.
TERRI LEE, INC. 579
hesitated to do so until instructed by Gradwohl Another fault found with Thomas was that
when her own work was slack, she did not look for other work to keep herself occupied as
the other women did I infer that Thomas lacked imagination and initiative rather than that
she was lazy; she was apparently the type that does not readily cope with situations that vary
from the north I also infer that if she were assigned to a new task , it might be necessary to
give her a graphic explanation
Because of her good memory for the code numbers of the dolls, Thomas was given the job
of labeler when the new dollhouse began operating on October 6. On this job she sat at the
foot of the production line belt, receiving the boxed dolls from the boxers, and putting the
proper number on the box . She also helped box dolls when the boxers would get behind Boxing
dolls consisted of putting a "collar" in the box, laying the doll on that, putting another collar
over the doll , tying a string that was in the bottom of the box around the doll's ankle, and
fastening a booklet on the doll ' s wrist Colbern testified that 3 or 4 times he had come by and
found the belt stopped and that he had asked Thomas what the matter was or asked her to
start the belt On one or more occasions Thomas had apparently stopped the belt because
she was behind Although the switch for starting and stopping the belt was purposely put at
the foot of the belt so that the labeler could control it, a stop of more than a few seconds
tended to throw the production line out of coordination because the doll dressers would con-
tinue to work and to put the dressed dolls on the belt and, when the belt was started again, the
accumulation of dolls on the belt would flood the boxers and throw them behind
On the evening of October 14, following the discharge of Freed and the three artists, Thomas
attended a union meeting at Freed's house and signed an application card for the Union. By
nature talkative , Thomas talked about the Union to the other girls as she worked on the
production line, and word that Thomas might be interested in the Union reached Carpenter
from some of the other girls On about October 21 at 11 a m , Colbern called Thomas outside
the dollhouse and, according to Thomas, told her that she was a union agitator and if it was
not stopped she would be discharged Colbern admitted having talked to Thomas, but he denied
having said she was a union agitator or said that if she did not stop it she would be discharged
Rather, he testified , he told her that because of her actions in her work she was irritating
and agitating the girls and that he wanted it stopped I note that this incident occurred at
close to the same time as Hamilton made his speech iii which he said that " there had been
rumors in the plant that there was union agitation going on and there was a lively dis-
cussion about the union " Hamilton explained what he meant by union agitation:
Well, some of the employees were nervous and wrought up about the fact that if they
signed a card for the union , that it would be against them and that if they didn' t they were
not agreeing with their friends , and certain arguirents were being placed against them
and general unrest, indicative of the fact that they might lose their job from the fact
that they had applied for membership in the union
This he heard from several girls in the doll-dressing department and from a couple of girls
in the shipping department Although several of the girls from Thomas' department testified,
none was asked whether or not she had been irritated or agitated by Thomas On all the evi-
dence I find that Colbern spoke rn substance as Thomas testified
On Friday, October 24, at about 9.30 a. in , the Respondent ran out of the type of shoes
called for by the order being worked on It decided to shut down the production line Rather
than send the girls home when a situation such as this occurred , the Respondent tried to find
other work to keep them busy, but the girls had the option of going home if they preferred.
On the morning of October 24, Carpenter, supervisor of the girls on the belt, went to Hamilton
and asked whether she should send the girls home or should do something else Hamilton
told her he did not want the girls to lose time and, after discussing the shipping situation,
told her to have somebody seal boxes and put them in shipping cartons Carpenter permitted
some of the doll dressers to continue dressing dolls except for the shoes. Others she told to
go to the shipping department or to make booklets One girl suggested to Carpenter that it
might be a good time to fill the bins with doll clothes Carpenter agreed and told the girl
when she finished filling the bins she could keep busy making books (the booklets that were
to be attached to the dolls' wrists) or to go to the shipping department to help Carpenter
individually gave Thomas instructions, the wording of which is in dispute , to do some kind of
work at the adjacent shipping department . The work to be done in the shipping department was
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on a shipment to a large mail-order company The customary pasteboard boxes were not
used for this order Instead, it was necessary to tape together corrugated pasteboard boxes
which came knocked down It was the taping of these boxes that Carpenter had in mind After
giving her instructions, Carpenter did not remain but returned to the office. Carpenter
spent only a part of her time supervising the dressing line. She apparently spent a good deal
of time in the front office where she had other duties
When Thomas finished her regular duties after the belt was stopped, she did not join the
girls in the shipping department. The testimony of Thomas and of Carpenter differs in the
reason for this Carpenter testified that when she told Thomas to go to the shipping depart-
ment to help, the latter had said that that was not her job Carpenter testified that she told
Thomas, "Well, regardless of what you were hired for, this particular time we want every-
one possible to help in the boxing department " It was at this point that Carpenter left. Some
15 or 20 minutes later, according to Carpenter's version, she returned and found Thomas
still at her desk doing nothing or pretending to be lacing shoes which were on her desk She
asked Thomas why she was not "helping with the boxing," and Thomas replied again, "I
wasn't hired for that " Carpenter againsaid, "Weare all working together, and will you please
go over and help " Then Carpenter left and went to Hamilton to say that Thomas was "being
uncooperative, as usual." Hamilton told Carpenter that she should speak to Thomas again
and if she did not then do as she was told, they would have to discharge her Carpenter
returned and again told Thomas to go to the shipping department. Thomas became angry,
threw down her pencil on the table, and started for the shipping department. Carpenter walked
away but turned around and saw Thomas returning to her desk So Carpenter then went to
Hamilton and told him what had happened Hamilton said to discharge Thomas and to tell
her to come to him at noon for her check.
Thomas' version differed principally in what was said by her and Carpenter. According to
her version, Carpenter told her to "pack the dolls," but that she could not get the boxes to
pack the dolls because there were too many girls packing. She went to get the boxes and she
packed what boxes she could get, and when she could not get boxes she started lacing shoes
and that she made a few books The last time that Carpenter came around, she said to Thomas,
"Goddam it, I told you to get thoseboxes and pack them," and this made Thomas a little mad.
She answered that she would get the boxes and pack them when they were available 20
Resolution of this conflict will be deferred until a few remaining facts are related. It was
about 11 a in. when Carpenter told Thomas to see Hamilton at noon to receive her check
When Thomas went to Hamilton's office, Hamilton told her she was being discharged for being
sassy and not doing as she was told
From the testimony of Carpenter, Hamilton, and Thomas, I might conclude either that
Thomas was stubbornly following her one-track mind, disregarding instructions, or that
Carpenter's instructions, although perhaps adequate for the average employee, were mis-
leading to Thomas, who required a more graphic explanation. In testifying, both Hamilton
and Carpenter at times used the expression "box dolls" in relating the instructions Carpen-
ter gave to Thomas To Thomas, this could easily have meant putting the dolls in boxes as
she would do when she would assist the boxers on the production line And from Thomas'
testimony, I conclude that this was Thomas' understanding Not once in her testimony did
Carpenter say she instructed Thomas to make boxes or to tape boxes
But assuming that Carpenter's instructions were ambiguous and that Thomas was unjustly
discharged for misunderstanding her instructions, that would not prove an unfair labor
practice unless, with intent to discharge Thomas because of her union sympathies, the Re-
spondent plotted to confuse her in order to lay the foundation for her discharge; that is to
say, gave her instructions which the Respondent knew Thomas would lack intelligence to
carry out by herself.
There is evidence in the record which arouses considerable suspicion that all was not
20 Hamilton testified that he went out once to speak to Thomas , that he asked her what she
was doing, that she answered that she was tying booklets, that he asked her if she had not
been asked to box dolls, and that she had replied that that was not her job. He told her to get
over and do what Carpenter had told her to Neither Thomas nor Carpenter testified to
Hamilton's speaking to Thomas like this. Except for the words used, it is not important
whether or not Hamilton also spoke to Thomas.
TERRI LEE, INC. 581
as innocent as it appeared on the surface. 21 Carpenter testified that Thomas might have
done a few booklets when she was not watching her, but "at that particular point we were
not in need of books but we were in need of having boxes made ready " Asked if the dolls
that were coming through that day were for the mail-order house for which the corrugated
boxes were being assembled, Carpenter replied, "We were going to prepare Montgomery
Ward dolls." From this indirect answer, and other portions of Carpenter's testimony, I
infer that the dolls for such order had not been prepared but that it was desirable to have
the boxes waiting for the dolls when they should be made. The fact that the dolls had not
yet been made, however, and the fact that several of the girls were permitted to continue
with odd jobs in the dressing department leads me to believe that the need for such boxes was
not extremely urgent and that having the girls tape boxes was just a way to find work for the
girls. Carpenter also testified that everyone in the department had instructions (general
instructions, I assume) that if her particular job ran out, she could pick up any of the other
things to be done, just to keep busy The making of booklets was something that many em-
ployees did in their spare time Carpenter explained that they always needed more booklets.
"That was something that Inez, or any other girl, could always pick up and do if they ran
out of their specific job." In the light of such evidence, it might be inferred that the only
reason why Carpenter insisted on sending Thomas to the shipping department instead of
permitting her to make booklets or lace skating shoes was to create a situation which she
knew might present a chance to discharge Thomas But this is not the only inference that
might be drawn. This was not a case of one employee's running out of work and picking up
such odd jobs All the girls on the line were held up by lack of shoes and other girls were
making booklets too, so it was not essential that Thomas also do such work. And having told
Thomas to go to the shipping department, even if there was no great need for Thomas there,
Carpenter may have felt obliged to enforce her order. If Thomas did in fact fail to under-
stand Carpenter's instructions, she did not so indicate to Carpenter. Carpenter may have
mistaken Thomas' lack of comprehension for stubbornness and decided not to give in to it.
This could explain Carpenter's making an issue of it. Whether or not Thomas on this occa-
sion said, "That is not my job," I believe that on some prior occasion she may have so
stated A memory of this could lead Carpenter to the conclusion that Thomas was assuming
such an attitude here
There is other evidence which also raises suspicions of the Respondent's motives. There
is the evidence that Thomas became interested in the Union and spoke openly about it, to
the knowledge of the Respondent, that Colbern warned her that if she did not stop agitating
for the Union she would be discharged, and that Gradwohl had previously refused to permit
Thomas' discharge but did not prevent her discharge on October 24 Before the reopened
hearing, the evidence made it appear merely that Hamilton had acted on his own in dis-
charging Thomas while Gradwohl was away and that she had returned to an accomplished
fact Carpenter testified, however, that at sometime in October Gradwohl, Colbern, Hamilton,
and she had discussed Thomas, "and her uncooperativeness," and Gradwohl had said that if
Thomas gave any more trouble they would have to let her go. It is possible to infer that
Gradwohl's attitude toward Thomas changed when Thomas began to show interest in the
Union On the other hand, as there is evidence that supervisors had previously wished to
discharge Thomas, it is possible that the supervisors had finally convinced Gradwohl that
Thomas should not be given preferential treatment but should stand or fall like any other
employee independent of union considerations. Carpenter testified that Thomas' failure to
pitch in and help others when she was caught up herself gave rise to complaints from some
of the other girls. This does not appear altogether improbable. Some of the dressing depart-
ment girls testified that they saw Thomas at times during the morning of October 24 and she
appeared to be doing nothing I find that Thomas was not then creating a picture of industry.
Although Colbern was present when Thomas was paid off, there is no evidence that he
participated in the incidents leading to Thomas' discharge. And while Colbern's warning a
few days before the discharge (that Thomas would be discharged if she did not stop agitating
21 The payroll shows that five employees, including Thomas, were terminated in the same
week. Except for the week including October 9, when four girls (whose discharges were
previously related ) were discharged, this number of terminations is unusually large. Aside
from Oliver Bray, whose name was dropped from the complaint, the others terminated in the
same week with Thomas were all on the same production line. Although this arouses curiosity
and some suspicion, no inferences are drawn therefrom, as no reason is shown for the
termination of the other girls
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the Union) bears a close connection with the discharge in point of time, there is no evi-
dence to show that Thomas ignored the warning and continued to "agitate" in favor of the
Union, so it does not appear that the condition upon which she was threatened to be dis-
charged came about. To find an unfair labor practice in Thomas' discharge, it would be
essential to find a conspiratorial planning to create the situation which gave rise to Thomas'
discharge Although the evidence raises strong suspicions that such might have been the
case, it does not sufficiently preponderate to justify a finding of an unfair labor practice I
therefore find that the Respondent did not discriminate in regard to Thomas' hire or tenure
of employment However, by the threat that Thomas would be discharged if she did not stop
agitating for the Union, the Respondent interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in the Act
IV, THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, to the extent that they have
been found to constitute unfair labor practices, occurring in connection with the operations of
the Respondent described in section 1, above, have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce, as defined in Section
2 (6) and (7) of the Act.
V. THE REMEDY
The unfair labor practices, herein found to have been committed, were committed by the
Respondent Terri Lee of California, of which the Respondent Violet Gradwohl is the principal
partner. The Respondent Connie Lynn Manufacturing Corporation is a successor to part of the
partnership business, having taken over one of the partnership's plants, with its employees
and the operations thereof, without substantial change. Each of these Respondents should be
bound by any remedial order herein. Terri Lee, Inc , was not involved in the unfair labor
practices here found Although controlled by Gradwohl, it had separate employees. Its opera-
tions were carried on in part in Nebraska and in part in Apple Valley, California. In the
latter location they were started in a separate building but were later transferred to the
dollhouse, which was occupied principally by the partnership. Its functions were to make doll
clothes used by the partnershipon thedolls it sold But there is no evidence of common super-
visors or of any practice of interchanging employees Aside from Gradwohl, there is no
evidence of integrated management On these facts I do not believe the policies of the Act
require a remedial order against Terri Lee, Inc , I but I shall recommend the usual remedy
with respect to the other Respondents
Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1 Southern California Out-of-Town Department of the International Ladies' Garment
Workers' Union, affiliated with the American Federation of Labor, is a labor organization
within the meaning of Section 2 (5) of the Act
2 By discriminating in regard to the hire and tenure of employment of Fannie Howard,
Jeannette Haugen, and Marcella Freed because of their union interest and activities, the
Respondents (excepting Terri Lee, Inc.) have engaged in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act
3 By the conduct mentioned in paragraph numbered 2, above, as well as by Hamilton's
speech by which the Respondent held out the prospect of group insurance, and by the threat
of discharge made to Thomas, the same Respondents have interfered with, restrained, and
coerced their employees within the meaning of Section 8 (a) (1) of the Act
4 The Respondents have not discriminated in regard to the hire and tenure of employment
of Patricia Thompson and Inez Thomas
[Recommendations omitted from publication.]
22 Van Leer Chocolate Corporation , 90 NLRB 535.
TEXTRON PUERTO RICO (TRICOT DIVISION)
APPENDIX A
NOTICE 'TO ALL EMPLOYEES
583
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board,
and in order to effectuate the policies of the National Labor Relations Act, as amended, we
hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain , or coerce our employees in
the exercise of the right to self-organization , to form labor organizations , to join or
assist Southern California Out-of-town Department of the International Ladies' Garment
Workers ' Union, A. F. of L., 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 , except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the National Labor Relations Act, as amended . We will
not discriminate in regard to hire or tenure of employment or any term or condition of
employment against any employee because of membership in or activity on behalf of any
such labor organization.
WE WILL offer to the employees named below immediate and full reinstatement to
their former or substantially equivalent positions without prejudice to any seniority or
other rights or privileges previously enjoyed, and make them whole for any loss of pay
suffered as a result of the discrimination.
Fannie Howard
Jeannette Haugen
Marcella Freed
TERRI LEE OF CALIFORNIA,
Employer.
Dated ................ By..............................................................................................
(Representative) (Title)
CONNIE LYNN MANUFACTURING CORPORATION
Dated ................ By..............................................................................................
(Representative) (Title)
VIOLET GRADWOHL
This notice must remain posted for 60 days from the date hereof , and must not be altered,
defaced, or covered by any other material.
TEXTRON PUERTO RICO ( TRICOT DIVISION ) and TEXTILE
WORKERS UNION LOCAL 24 , 877, ILA-AFL . Case No. 24-
CA-424 . December 28, 1953
DECISION AND ORDER
On August 31, 1953 , Trial Examiner Thomas N. Kessel
issued his Intermediate Report in the above - entitled proceed-
ing, finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative
107 NLRB No. 142.