Thompson Industries Co., Inc.

National Labor Relations Board - Board Decisions

Jun 22, 1967

165 N.L.R.B. 804 (N.L.R.B. 1967)

804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thompson Industries Co., Inc. and Ramona
Rose Doyle. Thompson Industries Co., Inc.
and International Brotherhood of Firemen
and Oilers , AFL-CIO. Cases 10-CA-6687 and
10-CA-6692.
June 22, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On April 14, 1967, Trial Examiner Gordon .J.
Myatt issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. He also found that Respondent had not
engaged in certain other alleged unfair labor
practices and recommended dismissal of these
allegations of the complaint. Thereafter, the General
Counsel, the Respondent, and the Charging Union
filed exceptions to the Trial Examiner's Decision
and briefs in support of their exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in these cases, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Thompson
Industries Co., Inc., Stone Mountain, Georgia, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Trial Examiner : In Case
10-CA-6687, a charge was filed on September 8, 1966,' by
Ramona Rose Doyle. An amended charge was filed on
November 2. In Case 10-CA-6692 , a charge was filed on
September 12, an amended charge was filed on
October 13, and a second amended charge was filed on
October 31, by the International Brotherhood of Firemen
and Oilers , AFL-CIO (hereinafter called the Union). Upon
the aforesaid charges, the Regional Director for Region 10
of the National Labor Relations Board (hereinafter called
the Board), on November 4, issued a consolidated
complaint on behalf of the General Counsel of the Board
against Thompson Industries Co., Inc. (hereinafter called
the Respondent), alleging violations of Section 8(a)(3) and
(1) of the National Labor Relations Act, as amended
(hereinafter called the Act). The Respondent duly filed an
answer denying the commission of any unfair labor
practices.
Pursuant to notice , a hearing was held before me at
Atlanta, Georgia, on December 19, 20 , and 21, 1966, and
January 17 and 18 , 1967. The General Counsel, the
Respondent, and the Union were represented by counsel
and were afforded full opportunity to be heard and to
introduce relevant evidence . All parties represented by
counsel filed briefs which have been fully considered by
me in arriving at my determination in this matter.
Upon consideration of the entire record , the briefs of the
parties, and upon my observation of each of the witnesses,
I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
The Respondent is engaged in the manufacture, sale,
and distribution of styrofoam cups. The Respondent's
home office is located in Phoenix , Arizona, and it
maintains production plants in several States of the United
States. The Respondent's plant located at Stone
Mountain, Georgia, is the only facility involved in this
matter.
During the past calendar year, the Respondent
manufactured and shipped products valued in excess of
$50,000 from its Stone Mountain plant directly to
customers located outside the State of Georgia.
Accordingly , I find that the Respondent is engaged in,
and at times material herein has been engaged in, a
business affecting commerce within the meaning of
Section 2 (6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Firemen and Oilers,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
In Case 10-CA-6687, the central issue is whether the
Respondent violated Section 8(a)(3) of the Act by
discharging Ramona Rose Doyle, a leadgirl. Encompassed
in this issue is the question of whether Doyle is an
employee or a supervisor within the meaning of the Act.
In Case 10-CA-6692, the foremost issue is whether the
Respondent violated Section 8(a)(3) by refusing to recall or
rehire female production workers when production was
resumed at its Stone Mountain plant in September 1966.
A. Background Facts
In its most simple form, the Respondent's operation at
the Stone Mountain plant consists of expanding
' Unless otherwise indicated, all dates herein refer to 1966
165 NLRB No. 126
THOMPSON INDUSTRIES CO., INC.
polystyrene beads by heat and steam, and molding the
resultant mass into styrofoam cups of various sizes. The
cups pass along a conveyor belt, where they are inspected
and defective ones are removed. They are then bagged in
stacks of 25 and placed into cartons for storage and
shipment.
Prior to February 3, the work force consisted of
approximately 60 employees, the majority of whom were
female production workers. Male employees operated the
molding machines, made repairs on the machinery and the
conveyor belt, and performed the warehousing and
shipping duties. The plant operated on a three-shift basis 6
days a week. A fourth shift worked on Sundays. Each shift
was manned by 3 male machine operators, and 10 to 12
female employees who inspected, bagged, and packed the
cups.
On February 3, the plant was destroyed by fire. Having
determined that Stone Mountain was ideally suited to
satisfy the needs of its southeastern market, the
Respondent decided to construct a new plant in the area.
During the months between the fire and the completion of
the new plant, the male employees remained on the
Respondent's payroll. These employees salvaged
equipment from the destroyed plant , transferred to
temporary assignments in other plants of the Respondent,
and finally, assisted in the installation of machinery and
equipment in the newly constructed plant.
The female production employees, however, did not fare
as well. The leadgirls and several senior employees were
kept on the Respondent's payroll for approximately a
month; performing odd jobs at the Respondent's
temporary office in Decatur, Georgia. The other female
employees either secured jobs elsewhere or collected
unemployment compensation.
Production was resumed at the new plant sometime
during the first week in September 1966. The issues
involved here primarily concern events which occurred
after the fire in February and before the resumption of
production in September.
B. The Charge Involving Ramona Rose Doyle
1. Doyle's duties as a leadgirl
Ramona Doyle started to work for the Respondent in
March 1964. She began her employment as an inspector-
packer.2 Sometime in the fall of 1964, Doyle was promoted
to the position of a leadgirl.
As a leadgirl, Doyle no longer worked on the production
line, except when she relieved a female employee for
lunch or for a break. It was the leadgirl's responsibility to
keep the women supplied with materials , to make certain
that the women properly performed their assigned duties
as inspectors and packers, and to check on the printing
machine3 when it was being operated by a female worker.
2 There is no indication in the record that the term inspector-
packer is an official job title used by the Respondent The
witnesses , however, repeatedly employed this term, and I find
that it adequately described their job duties I shall , therefore,
adopt its use where warranted throughout this Decision
3 This machine was only used when the customer required his
name to be punted on the cup. The record shows that on occasion
male employees ran this machine
4 According to Doyle, the leadgirls frequently did the cleaning
up because it was a chore that the production workers sought to
avoid
5 Although Livingston usually left the plant around 5 p.m., she
was available to handle problems on all shifts, and she would
805
On each shift the women divided their time between
inspecting and packing. It was the leadgirl's responsibility
to make specific job assignments , and to determine when
the employees would change assignments . The leadgirl
would also select employees to clean up the work area and
the lunchroom at the close of the shift.' Leadgirls also had
the authority to call in part- time workers when the regular
employees did not show up or when additional employees
were needed. The names of the part-time employees were
taken from a list supplied by the floorlady, Nancy
Livingston. While the leadgirls had no authority to add to
or delete names from the list, they frequently determined
which person would be called. For example, Doyle
testified she would not place a call to any woman on the
list who had repeatedly refused to come in when asked.
Weekly meetings were held between the leadgirls and the
floorlady in which production problems, performance of
employees, and observance of plant rules were discussed.
After these meetings , each leadgirl would meet with the
female employees on her shift and pass on instructions
given by the floorlady. Leadgirls could not hire, fire, or
discipline any of the female employees. When confronted
with a situation which warranted discipline , the leadgirl
only had authority to switch the offending employee from
one job to another. If this proved unsuccessful, then the
leadgirl would call in Floorlady Livingston to handle the
problem.5 Leadgirls were required to submit reports on
production and employee performance to the floorlady at
the end of each shift. When confronted with technical
problems involving production, leadgirls were instructed
to call in the shift bosss to straighten out the matter. If the
shift boss could not solve the problem, then a call was
placed to the plant manager. All leadgirls wore red smocks
as contrasted to blue smocks worn by the girls on the
production line. Leadgirls were paid 20 cents more an hour
above the top pay of the female production workers.
2. Doyle's prior union activities'
During the latter part of October and the first part of
November 1965, Doyle spoke to at least four employees
about joining a local of the International Brotherhood of
Teamsters. According to Doyle, officials of the Company
became aware of her activities, and she was called into the
plant manager 's office by Ron Hunts, Respondent's vice
president in charge of production. According to Doyle,
Hunts stated she was a "troublemaker," and he placed her
on 6 months' probation to give her an opportunity to
"straighten herself out and start working for the
Company."s Doyle testified that sometime after her
conversation with Hunts, she attended a meeting between
Livingston and the female employees. Doyle stated that
Livingston told the employees "that the Union wouldn't do
them a bit of good and that the ones that were pushing for
the Union were usually the ones that were the first to go."
return to the plant in the evenings if called by the leadgirl.
6 The shift boss was the title given the lead machine operator.
The shift boss asserted no immediate or direct supervision over
the female employees
' Testimony concerning Doyle's activities on behalf of the
Teamsters Union was strenuously objected to by the Respondent
as being outside of the 10(b) period . This objection was overruled
and the testimony was allowed as background evidence to explain
conduct alleged to have occurred within the statutory period.
9 The above is based on the uncontroverted testimony of Doyle,
whom I credit as a reliable witness Hunts, no longer with the
Respondent 's organization , did not testify at the hearing.
299-352 0-70-52
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Doyle, Livingston stated that " the Company
would find some reason to get rid of the supporters of the
Union ," and would "even go so far as to close the plant to
keep the Union from coming in." After the meeting ended,
Livingston asked Doyle to remain . Doyle testified that
Livingston then stated that she was "disappointed" in
Doyle and that Doyle could not belong to a union. The
union campaign only lasted about 2 weeks, and was
unsuccessful.
3. Doyle's treatment after the fire
After the destruction of the plant on February 3, Doyle
met with Livingston and Hunts at the Respondent's
temporary office in Decatur , Georgia . Hunts informed
Doyle that she would be kept on the payroll for 30 days,
and that she would perform small chores for the
Respondent as needed . Two weeks of this 30 -day period
was to be considered Doyle's vacation . Approximately 2
weeks after this meeting, Doyle and Livingston went to
lunch . Livingston informed Doyle that Hunts was insisting
that Doyle be fired because of her activities on behalf of
the Teamsters Union.
On March 8 , Livingston called Doyle into the
Respondent 's office and fired her . Livingston told Doyle
that it was because of the Union.9
Livingston , an alleged discriminatee in Case
10-CA-6692, testified concerning her part in these events
relating to Doyle. Livingston stated that the Respondent
learned of the Teamsters Union campaign, in
October 1965, from Betty Bowen , one of the production
workers. Bowen called Livingston at home and told her of
the union activities at the plant. Livingston and Bob
Baubie, Respondent 's chief of production , subsequently
met with Bowen at a local coffee shop . At this meeting
Bowen informed them of the names of the employees,
including Doyle, who were involved in activities on behalf
of the Union . Bowen agreed to keep Livingston informed
about the union campaign . According to Livingston,
Baubie stated at this meeting that the Respondent could
not have a union in the plant . Livingston testified that
shortly thereafter Hunts came to the plant from the home
office in Phoenix and spoke to the employees . While there,
he had a private conversation with Livingston in which he
informed her that the Respondent would have to break the
Union . He instructed Livingston to listen in on phone calls
made by employees at the plant to find out who was active
on behalf of the Union and to report the names to Perry
Thompson , father of the then owner of the Company.
According to Livingston, she was instructed by Hunts in
November 1965, to get rid of Doyle after the union activity
had died out. Livingston testified that after the fire in
February 1966 , Hunts told her that "the fire has taken care
of a lot of our problems ," and that she and Hunts
discussed getting rid of a lot of employees they did not
want to keep . Livingston stated that Hunts was in favor of
discharging Doyle at that time, however , she prevailed
upon him to keep Doyle on the payroll for a month with the
other leadgirls because to do otherwise would "look so
obvious."
Livingston testified that during the month after the fire
she tried to prepare Doyle for her eventual discharge. For
0'1 he last paycheck received by Doyle was dated March 3 The
Respondent contends that this was in fact the date of Doyle's
discharge , and that the allegations relating to Doyle are barred by
Section 10(b) I do not agree In my judgment , Doyle was not
discharged until she was so advised by Livingston on March 8
10 The Respondent states in its brief that Krutulis was
this reason she went to lunch with Doyle and informed her
that Hunts was insisting upon her discharge . Livingston
further testified that at the urging of Hunts, she called
Doyle in on March 8 and discharged her. Livingston told
Doyle she was fired because of the Union.
C. Case 10-CA-6692
As noted above, all of the female employees with the
exception of the leadgirls and the top seniority girls, were
taken off the Respondent's payroll after the fire. These
employees were advised by Hunts and Livingston that
they would return to work when the plant was rebuilt, and
that they would be reemployed at the same rate of pay with
the same seniority they possessed at the time of the fire.
Livingston and Office Manager Robbie Brown were the
only female employees who were never removed from
Respondent's payroll while the new plant was under
construction.
In July 1966 the Respondent transferred William
Krutulis, a shift foreman at the New Jersey plant, to the
Stone Mountain plant and made him the production
superintendent.10 Krutulis reported to Stone Mountain
about August 1. Shortly thereafter, Krutulis met with
Livingston and informed her that he would do all the hiring
and firing in the new plant. He told Livingston that she
would be back in the plant as a leadgirl. Livingston
became upset over what she considered to be demotion,
and as she left the plant she engaged in a conversation
with three male employees; Sidney Williams, Hollis Frost,
and Eddie Mitchell. These employees expressed some
dissatisfaction with Krutulis and during the course of the
conversation someone mentioned the possibility of getting
a union in the plant. Livingston told the male employees
that she was scheduled to go to Shreveport, Louisiana, to
assist in opening a new plant, and that she would see E. J.
Macchia, vice president in charge of manufacturing, while
there. Livingston promised to discuss the problem
concerning Krutulis with him. In Shreveport, she was kept
busy interviewing, hiring, and training for the Respondent.
She eventually got an opportunity to engage in a brief
discussion with Macchia concerning the Stone Mountain
plant. Macchia told Livingston to call the male employees
and try to "smooth things over." Macchia stated that he
would be at the Stone Mountain plant in a few weeks and
assured her that everything would be all right. Dissatisfied
with Macchia's response, Livingston called Mitchell and
Frost from Shreveport, and told them that she was in favor
of the Union. She suggested that they contact her husband
and he would direct them to a union official. 11
After Livingston returned from Shreveport, Krutulis
told her that he was aware that she had spoken to Macchia
and that he had also heard rumors of a union. Krutulis
asked Livingston to "please try to sway the girls to give
him a chance" and "not to tie his hands." Livingston did
not inform Krutulis of her involvement in the Union and
agreed to work along with him. On August 26, Livingston
was asked by Krutulis if she thought she would be happy
working out in the plant. Krutulis told her of a situation in
another plant where a supervisor was placed back in the
plant and it caused him considerable embarrassment.
transferred to the Stone Mountain plant as a shift foreman The
record, however, shows that Krutulis was promoted to production
superintendent at the time of his transfer
11 Livingston's husband was formerly an officer in a local of the
Charging Party Union
THOMPSON INDUSTRIES CO., INC.
Krutulis suggested that Livingston think the matter over
during the weekend. The following day, Livingston called
Office Manager Brown at her home and told her that she
would accept a leadgirl job in the plant, and that she felt
that the male employees were just "using" her. Livingston
told Brown that she was not going to help bring a union
into the plant.
The following Monday, August 29, Krutulis approached
Livingston in the plant and said that he assumed that she
was going to stay with the Company as she had not
indicated otherwise. Livingston stated that she was happy
and intended to stay. Krutulis then told Livingston to start
calling the girls for a meeting. Livingston testified that
Krutulis said that he was going to reinstate them.12 The
next day at 9 a.m., approximately 22 women, who had been
employed at the old plant, appeared for the meeting with
Krutulis. Krutulis told the women that they would be
rehired with their old seniority and at the same rate of pay
they received prior to the fire. He informed them that the
Respondent had need for all of the women present, "and
then some." He handed out employment applications so
that the women could pass them along to friends who
might be interested in working for the Respondent. He
also instructed Livingston to make a note of the names of
all the women present, their preferences concerning days
off, and the shifts they preferred to work. Krutulis also
took the women on a tour of the plant to show them all of
the improved features and working conditions. He told the
women that they would be called in 2 or 3 days.
During the tour of the plant, Livingston took Betty
Bowen aside and told her that an assistant superintendent,
no longer connected with the Respondent, had intended to
discharge Bowen before the fire because of her excessive
absences.13 Livingston told Bowen that she would say
nothing about this matter to Krutulis. During this
conversation Bowen questioned Livingston about the
Union and asked her for a union card. Livingston agreed to
see Bowen later at her home.
Bowen, concerned over Livingston's disclosure, called
the plant office and spoke to Brown after she left the
meeting. Livingston was in Brown's office at the time.
Bowen asked Brown if she had been terminated before the
fire, and Brown denied that this had occurred. Bowen then
told Brown of her conversation with Livingston, including
the discussion concerning the Union. Brown advised
Bowen not to quit her present job until she (Brown) had
checked into the entire matter. Brown then turned to
Livingston and stated that she thought Livingston had
dropped "that business about the Union." She asked,
"How can you do the Company like this?" Brown then left
Livingston and went into Krutulis' office. Krutulis
subsequently called Livingston into his office and began to
discuss the matter with her. Livingston told Krutulis that
she didn't want Brown or anybody else talking to her about
the Union. Krutulis replied that under some
circumstances, Livingston would have to expect to talk to
people about the Union, but that he would see that Brown
said nothing more to her about it.
At approximately 4 p.m. that same day, Krutulis
held another meeting with as many of the women who
attended the morning meeting as could be contacted. He
told them that he had heard that union cards were being
12 When testifying on this point , Krutubs admitted that he told
Livingston to call the women, but denied that he said he intended
to reinstate them
807
passed out. He asked that those who had not signed cards
to wait until they had a chance to meet with Macchia, who
was flying in from Phoenix. He told the women that they
would be contacted when Macchia arrived.
On September 1, Macchia held a meeting with the male
employees at the plant. Livingston and Shirley Davis, a
leadgirl , were also present at this meeting. Macchia told
the employees that the plant was being automated and that
it would involve the use of machinery which women would
not be able to handle. Therefore, the Respondent had
decided to use only male employees. Livingston
interrupted by saying that the women had been reinstated
by Krutulis. Macchia asked Krutulis if this were so, and
Krutulis denied it. Livingston then accused Macchia of
hiring men because the women had been involved in union
activities. Macchia denied this, and he told all of the
employees present that they had a right to join the Union if
they wanted to but to get a good union. He also told the
employees that the Respondent would not tolerate anyone
being threatened by a supervisor or by an employee
concerning a union. Livingston continued to interrupt
Macchia, and he told her to leave the meeting as she would
no longer be an employee with the Company. After the
meeting was over, Macchia took Livingston to one side and
offered to transfer her and Davis to another plant.
Livingston refused and she and Davis were subsequently
terminated.
D. The Change in the Plant's Operations
There is voluminous testimony in the record concerning
the change in the Respondent's production process
brought about by the installation of the new machinery.
The production process in the old plant began with the
placement of the polystyrene beads into a preexpander
where they were expanded by steam and heat. After the
beads passed through this process, they went into hoppers
and were fed into molding machines. These machines
operated vertically and the cups were ejected by a blast of
air. Frequently, the cups were blown out in every
direction, and the Respondent used tennis and volley ball
nets to catch them. According to the testimony, many of
the cups would go off the net onto the floor and would have
to be discarded. The ejected cups fell onto a flat conveyor
belt and were in every conceivable position. As the cups
passed along the belt, the women performing the
inspecting operation were required to physically lift each
one, inspect it, and place it in an upright position on the
belt. The cups were then manually counted and bagged in
stacks of 25 and placed into cartons which were then taped
and stacked for storage in the warehouse area.
In the new plant, the process is essentially the same,
except that certain phases of the operation have been
modified by the use of new machinery. The polystyrene
beads are now sifted through a "screener" at the
beginning of the operation" and then forced into the
preexpander. The expanded beads are then blown into
hoppers located above the molding machines and are fed
into the machines through an automatic bead feeder. The
molding machines are now horizontal as contrasted to the
vertical machines used in the old plant. The use of the new
molding machines has resulted in a shorter "cure cycle" of
11 At the time of the fire, Bowen had been absent from work for
a week due to illness
14 This enables the Respondent to screen out defective beads
before the material goes into the preexpander
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the raw material, thereby allowing for greater production
of cups.15 The cups are ejected from the molding
machines by means of an air blast, and are blown down a
trough onto a split-conveyor belt. This allows most of the
cups to fall onto the conveyor belt in an upright position.
Cups which are not upright are oriented by jets of air
located at strategic points as they pass along the belt. As
the cups pass along the belt, they are inspected visually
and are not handled manually, except when defective cups
are removed.16 After inspection, the cups are blown
through a tube leading to the automatic counters. The
automatic counter releases the cups in a catch tray in
stacks of 25. An employee then places the stacks in
polyethylene bags," seals them, and places the bagged
cups into cartons which are taped and stacked.
Concluding Findings
At the risk of belaboring the obvious, it is evident that
the common bond between these two cases is Nancy
Livingston. As floorlady, Livingston was privy to
management 's plans to combat the organization of the
employees by the Teamsters Union in October and
November 1965, and, if believed, she engaged in unlawful
conduct in order to help defeat that organizational effort.
When her own position was jeopardized, Livingston just as
enthusiastically engaged in activities on behalf of the
Charging Party Union, and was the chief movant in the
attempt to organize the employees before production
commenced in the new plant. I am aware that testimony
from an individual who has affected the protected
activities of the employees in such a checkered and heavy-
handed fashion-both as an antagonist and a
protagonist-must be approached with caution and
examined most carefully in conjunction with other
relevant evidence and testimony. Nevertheless, I find that
Livingston's account of her own role, and that of higher
management, in the events set forth is substantially
accurate and worthy of belief. Having observed Livingston
closely during her lengthy examination by counsel, I am of
the opinion that she was completely candid concerning her
part in this entire drama. Her testimony is supported not
only by the testimony of other credited witnesses, but also
by independent documentary evidence. For example,
Doyle, whose testimony was unrefuted and whom I credit,
testified that during the Teamsters Union's campaign she
was called into the office by Vice President Hunts and told
that she was a "troublemaker," and she was placed on
probation for 6 months to "straighten herself out" and
"start working for the Company." The record shows that
Livingston filled out a personnel report on Doyle on
October 28, 1965, in which Doyle was described as being
"hard to handle" and she was placed on probation. When
questioned about this, Livingston freely acknowledged
that in her opinion, at that time, any employee in favor of
the Union was a troublemaker, and that she filled out the
personnel report on Doyle pursuant to instructions from
15 While this phase of the operation has never been performed
by female employees , its description is necessary in order to
present a complete picture of the production process
16 Employer witnesses testified that the Respondent intends to
install an automatic inspector at this point on the production line
This machine was not in operation , however, at the time of the
hearing
IT The Respondent is developing an automatic bagger which
will bag and seal the stacks of cups As in the case of the
automatic inspector , this machine was not operational at the time
of the hearing
Hunts.16 Again, Livingston testified that she informed
Doyle a few weeks before her discharge on March 8, that
Hunts was insisting that she be fired because of her prior
activities on behalf of the Teamsters Union. Livingston's
testimony in this regard is corroborated by Doyle and also
by a letter, from Doyle to Hunts, appealing for
reconsideration of her discharge.
Thus, on the basis of the credited testimony and
relevant evidence, I find that Doyle was in fact discharged
because she played an active part in the brief organizing
campaign. This does not mean , however, that Doyle's
discharge violated the Act. The central question at this
point is whether Doyle, as a leadgirl, is entitled to
protection under the Act. I find that she is not. Although
Doyle and the other leadgirls could not hire or fire, or
recommend the hiring or firing of female employees, the
evidence indicates that these individuals did responsibly
direct the women in the performance of their duties. The
leadgirls assigned the female employees to their work
stations as inspectors or packers and determined when the
employees should switch these duties, they assigned
employees to clean up the lunchroom and the work area,
they determined which of the part-time employees named
on the list received from the floorlady would be called
when additional help was needed, they made daily reports
on employee performance, and they attended weekly
meetings with the floorlady in which productivity and
employee performances were discussed. In addition, while
leadgirls had standing instructions to allow employees to
leave work in case of emergencies, they were given wide
latitude in determining what constituted an emergency.
On this state of the record, I find that the leadgirls were
the first line supervisors over the female production
workers and that they responsibly directed these
employees in the performance of their duties. N.L.R.B. v.
Charley Toppino and Sons, Inc.,332 F.2d 85,86 (C.A. 5). It
follows, therefore, that the discharge of Doyle, whom I find
to be a supervisor, in these circumstances, does not
constitute a violation of the Act. National Freight, Inc.,
154 NLRB 621, 622; Roselon Southern, Inc., 152 NLRB
1173. Accordingly, I shall recommend that the allegations
contained in the complaint relating to the discharge of
Ramona Doyle for discriminatory reasons be dismissed in
their entirety.
As I have found that leadgirls are supervisors within the
meaning of the Act, it follows that the allegations of the
complaint alleging the unlawful discharge of Nancy
Livingston' 9 and Shirley Davis, and the unlawful failure to
recall or reinstate leadgirls Eula Peters and Clarice
Sumner must also be dismissed in their entirety.
The issue involving the alleged discriminatory failure to
recall or reinstate the female production employees
presents a far more difficult problem. The evidence clearly
indicates that these employees had every reason to expect
that they would be reemployed by the Respondent when
the new plant became operational. Every expression of
18 There is every indication that Livingston was in complete
accord with these instructions
' The General Counsel and the Charging Party contend that
Livingston was "demoted " when she first met with Plant
Superintendent Krutuhs It was during this meeting that Krutulis
informed Livingston that she would become a leadgirl in the plant
and would no longer have the position of floorlady I find it
unnecessary to determine whether Livingston had in fact been
demoted for she would have held a supervisory position in any
event
THOMPSON INDUSTRIES CO., INC.
management, beginning with the meetings with Hunts and
Livingston immediately after the fire and continuing
through the first meeting with Krutulis on August 30,
served to reinforce this expectation. Hunts and Livingston
told the employees that they would be rehired as soon as
the plant was rebuilt, at the same rate of pay and with the
same seniority. Krutulis also made this clear to the
employees on August 30, and he informed them that he
needed all of the women present "and then some." He not
only noted their preferences concerning shifts and days
off, but also gave them applications to pass on to friends
who might be interested in working for the Respondent.
Two days later, however, Macchia announced
management's decision to hire only male employees.
Normally, a management decision to institute a change
in production operations for business reasons would not be
subject to question in these circumstances. Open to
question, however, is whether the business considerations,
wise or unwise, "are honestly envoked" and are
responsible for the change, N.L.R.B. v. Savoy Laundry,
Inc., 327 F.2d 370 (C.A. 2), or whether the change is the
result, in whole or in part, of a desire to defeat employee
rights given protection by the Act. N.L.R.B. v. American
Manufacturing Company of Texas, 351 F.2d 74 (C.A. 5);
N.L.R.B. v. E.S. Kingsford d/b/a Kingsford Motor Car Co.,
313 F.2d 826 (C.A. 6). In my judgment, the Respondent's
decision not to rehire the female workers was inspired, at
least in part, by a desire to prevent the organization of its
employees by the Union.20
Macchia testified that until the third or fourth week in
August, he was uncertain as to whether the Stone
Mountain plant would begin production on a
semiautomated basis, requiring the use of some manual
labor, or whether the production process would be fully
automated. Consequently, he gave Krutulis authority to
compile a list of the names of the women to insure a supply
of available production workers in the event that the plant
had to open on a semiautomatic basis.21 Macchia further
testified that the new machinery proved workable
sometime in August, but that he did not inform Krutulis of
the personnel needed for the operation until September
1- several days before production commenced.
Krutulis testified in the same vein. I find this testimony
singularly unconvincing. It strains the imagination to
accept at face value testimony which seeks to convey the
impression that higher management of a nationwide
business enterprise would fail to inform a plant
superintendent of the kind of personnel deemed necessary
to operate that plant; especially where, as here, a new and
improved production process was being installed and the
plant was soon to commence production. Moreover, the
facts do not support the testimony of Macchia and Krutulis
in this regard. The new machinery had already been
shipped, assembled, and installed before Macchia's
announcement of the decision to hire only males. Until
that time, every act and utterance of management
indicated that the Respondent contemplated using female
production workers at the new plant in conjunction with
the new machinery. Thus, I do not credit the testimony of
Macchia or Krutulis wherein they state that Krutulis was
not aware of the manning requirements of the Stone
20 The Respondent contends that the women are not to be
considered employees as they had not been rehired at the time of
Macchia' s announcement . I do not accept this view In the
circumstances of this case, I find that the women fall within the
broad definition of "employees" set forth in Phelps Dodge Corp v
N.LRB,313US 177,191,192
809
Mountain plant until September 1. I have observed these
witnesses carefully while they testified, and I have
reviewed the record fully. I consider their testimony in this
connection to be highly improbable and in the nature of
afterthought. I find, therefore, that the Respondent fully
intended to reemploy the female production workers, and
the decision not to do so was prompted, at least in part, by
a desire to stave off the threat of unionization of all of the
production employees at the Stone Mountain plant.
My conclusions in this regard are strengthened by a
review of the testimony of one of the male employees22
hired to work in place of the women on the production line.
This employee, J. W. Jackson, was hired December 12.
His previous work experience was that of a brickmason.
Jackson's description of his duties indicates that the utility
men were concerned with the same two phases of the
operation as were the women; inspecting the cups on the
conveyor belt, and bagging and packing them. According
to Jackson, the utility men sit on cushioned barrels when
they inspect the cups, and the inspection is visual. The
cups are not handled manually except when a defective
cup is removed from the belt. There are five utility men on
each shift. Two inspect and three perform the bagging
operation. Bagging involves taking the stacks of cups from
the drop tray at the base of the automatic counter, placing
them in polyethylene bags, sealing the bags, and stacking
them into cartons. The cartons are then taped and
tacked. The utility men frequently switch duties during
the course of a shift, as did the female employees in the old
plant. Jackson's testimony shows that the utility men
perform essentially the same duties previously performed
by the women; except that it is no longer necessary to
handle each cup on the belt, nor is it necessary to count
the cups before bagging them. If anything, these duties are
now less arduous and are performed in greater comfort.
The only job now performed which was not previously a
part of the operation is the periodic sanding of the tube
leading to the automatic counter. This is accomplished by
taking a piece of sandpaper and sanding the inside of the
tube. Sanding is required because the cups have a
tendency to stick in the tube.
All repairs to the belt, the tubes, and the automatic
counters are made by the machine operators; similar to
the arrangement employed in the old plant. Although the
Respondent contends that the women were not rehired
because of the need for production workers to maintain
and repair the equipment, Jackson's undisputed testimony
discloses that it was not until several weeks after he was
hired that Krutulis told the utility men they would have to
learn to repair the machinery, "sometime in the future."
Thus, the maintenance work on the equipment was not in
fact performed by the utility men, nor was it announced as
a job requirement by the Respondent until sometime in
December 1966.
It is apparent from the foregoing that the Respondent's
asserted reason for not rehiring the female workers in
September 1966, is not supported by the substantial
evidence contained in this record. Rather, the evidence
compels the conclusion that the Respondent's decision
was motivated primarily by a desire to prevent the
unionization of the production employees at the Stone
21 According to Macchia, the Respondent was still testing the
new machinery at its research laboratory in Phoenix, in order to
determine its feasibility in a production setup
22 These male employees are classified as "utility men" by the
Respondent.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mountain plant . Accordingly, I find that the Respondent
has violated Section 8 (a)(3) of the Act. N.L.R.B. v.
American Manufacturing Company of Texas, supra;
N.L.R.B. v. Savoy Laundry, Inc., supra.
CONCLUSIONS OF LAW
1. Thompson Industries Co., Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Brotherhood of Firemen and Oilers,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. Leadgirls employed by the Respondent at its Stone
Mountain plant prior to February 3, 1966 , were supervisors
within the meaning of Section 2(11) of the Act.
4. The Respondent did not violate Section 8(a)(3) of the
Act by discharging Nancy Livingston , Shirley Davis, and
Ramona Doyle, and by deciding not to reemploy Eula
Peters and Clarice Sumner.
5. By its decision in September 1966 not to recall or to
rehire female production workers, employed at the time of
the destruction of the plant on February 3, 1966, for the
reason that these employees were engaging in
organizational activities on behalf of or were being
organized by the Union , the Respondent has violated
Section 8 (a)(3) and ( 1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(3) and (1) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
As I have found that the Respondent's decision not to
rehire the female production workers was, in part,
motivated by discriminatory reasons, I shall recommend
that the persons comprising this class of employees be
made whole for the losses they have suffered as a result of
the discrimination against them in a manner consistent
with the Board's policies set forth in F. W. Woolworth
Company, 90 NLRB 289. Interest on backpay shall be
computed as set forth in Isis Plumbing & Heating Co.,138
NLRB 716. Since the evidence discloses that the
Respondent has now made the repair and maintenance of
the equipment a job requirement for employees working
on the production line, I shall not recommend that the
female production workers be rehired. I shall, however,
recommend that backpay be awarded to the women
available for work on September 1, 1966, in the order of
their seniority as of the time of the fire on February 3,
1966. Which of the women in this class would have been
employed initially, how many would have been added as
the operations expanded, and the exact date that the
Respondent imposed the requirement that maintenance
work be performed by production workers are all matters
21 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
for determination at the compliance stage. The sole issue
here, as I view it, is the question of liability . Cf. Tidelands
Marine Service , Inc., 140 NLRB 288, enfd . 338 F.2d 44
(C.A. 5).
Because the impact of the unfair labor practices found
here affect the female workers who were not rehired as
well as the current employees , I shall recommend, in
addition to the customary posting of the notice in the plant,
that the Respondent publish the notice for a 2-week period
in the Decatur-Dekalb News. I recommend this newspaper
as it serves the area in which the Respondent 's plant is
located and the record shows that Respondent used it for
recruiting purposes.
Upon the basis of the above findings of fact , conclusions
of law, and the entire record in the case , and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended , I recommend the following:
RECOMMENDED ORDER
Respondent Thompson Industries Co., Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to reemploy or rehire female production
employees because they have signed union cards or
because they are being organized by the International
Brotherhood of Firemen and Oilers, AFL-CIO.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Make whole the female production employees, in the
manner set forth in the section of this Decision entitled
"The Remedy," who would have been hired but for the
discriminatory decision not to do so when production
commenced at the new plant in Stone Mountain, Georgia.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its plant in Stone Mountain, Georgia, copies
of the attached notice marked "Appendix."23 Copies of
said notice, to be furnished by the Regional Director for
Region 10, after being duly signed by Respondent's
authorized representative, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Publish in the Decatur-Dekalb News for a period of
2 weeks, copies of the attached notice marked
"Appendix."
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.24
be substituted for the words "a Decision and Order "
24 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read- "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
THOMPSON INDUSTRIES CO., INC. 811
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order 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 refuse to reemploy or rehire female
production workers, formerly employed by us,
because they have signed union cards, or because
they are supporters of, or have engaged in
organizational activities on behalf of International
Brotherhood of Firemen and Oilers, AFL-CIO, or any
other union.
WE WILL NOT in any like or related manner
interfere with our employees in the exercise of their
right to join or assist a labor organization, to bargain
collectively, or to engage in concerted activities for
their mutual aid or protection, or to refrain from any
or all such activities.
WE WILL make whole the female production
workers, whom we would have hired in September
1966, for any loss they may have suffered as a result of
our discrimination against them.
All of our employees are free to become or remain, or to
refrain from becoming or remaining, members of the
above Union or any other labor organization, except to the
extent that such right may be affected by an agreement
authorized by Section 8(a)(3) of the Act.
THOMPSON INDUSTRIES CO.,
INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 528 Peachtree-
Seventh Building, 50 Seventh Street, NE., Atlanta,
Georgia 30323, Telephone 526-5760.