Tri-State Casualty Insurance Co.

National Labor Relations Board - Board Decisions

May 25, 1949

83 N.L.R.B. 828 (N.L.R.B. 1949)

In the Matter of TAI-STATE CASUALTY INSURANCE COMPANY and
BUILDING SERVICE EMPLOYEES ' UNION, LOCAL 245, AFL
Case No. 16-CA-71.Decided May 25, 1949
DECISION
AND
ORDER
On February 21, 1949, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (1) and (3) of the Act, as
amended, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
-exceptions to the Intermediate Report and a supporting brief. The
Respondent's request for oral argument is hereby denied, as the record
and brief, in our opinion, adequately present • the issues and the
positions of the parties.
• The Board 1 has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the additions and modifications
noted below. •
1. The Respondent, although conceding that the Board is em-
powered to assert jurisdiction in this case, urges that as a matter of
policy, the Board should not take jurisdiction because of the insub-
stantial effect on commerce of the Respondent's operations. The
Respondent argues that the decision of the Board in the Midland
Building case,2 in which the Board refused to assert jurisdiction where
" Pursuant to the provisigns of Section 3 (b) of the National Labor Relations Act, as
amended, the National Labor Relations Board has delegated its powers in connection with
this proceeding to a three -member panel [ Chairman Herzog and Members Houston and
Murdock].
2 Matter of Midland Buildsng Co ., 78 N. L. R. B. 1243.
83 N. L. R. B., No. IN.
828
TRI-STATE CASUALTY INSURANCE COMPANY 829
the Employer was solely engaged in the operation of a general office
building, is controlling, here. We do not agree. Although the
Respondent operates an office building, its principal business is the
writing of casualty insurance and the building houses its offices with
the remaining space being let to tenants. In connection with its
insuranc3 business the Respondent has 334 "agents," 84 of whom are
located in 14 States outside the State of Oklahoma, soliciting busi-
ness. for the Respondent on an independent contractor-commission
basis. In 1947 the premiums obtained from policies sold by the 84
out-of-State "agents" amounted to about $237,000 and in this same
period the Respondent paid out about $11,000 in claims on out-of-
State policies. In addition, the Respondent, in 1947, paid out nearly
$100,000 in premiums to its reinsurance agent, General Reinsurance
Company of New York City. The Respondent owns $420,000 in bonds
of the Government and businesses engaged in interstate commerce
and stocks worth $76,000 in business of Nation-wide scope a In these,
circumstances, we, like the Trial Examiner, find that the Respond-
ent's operations affect interstate commerce, and that it will effectuate
the policies of the Act to assert jurisdiction in this case.
2. We agree with the Trial Examiner that the Respondent inter-
fered with, restrained, and coerced its employees in violation of Sec-
tion 8 (a) (1) of the Act by interrogating Rutledge at the time he
was hired, and Orcutt shortly after Sommars' discharge.
The Trial Examiner further found that the remarks of Superin-
tendent Wilson to Maxwell and Tabor, "Well, you both belong to the
Union now," constituted a violation of Section 8 (a) (1). We do not
agree. In our view, the record fails to establish that the remark was
posed as a question designed to elicit information about union mem-
bership,4 or that-it contained any other coercive implication. Accord-
ingly, in finding that the Respondent violated Section 8 (a) (1) we
do not rely on this remark.
3. We agree with the Trial Examiner that Sommars was discrimina-
torily discharged in violation of Section 8 (a) (3) of the Act. We
are persuaded that the record as a whole warrants the inference drawn
by the Trial Examiner that the Respondent was aware of Sommars'
union activity and that this activity was the real cause of her discharge.
In this respect, we consider as particularly significant the conference
between Swain and Beam, the Union's business agents. As testified
The Trial Examiner stated in his Intermediate Report that of the $1,150,000 of stocks
owned by the Respondent approximately $ 1,000,000 was in business of Nation -wide scope.
The Respondent excepts to this finding. The record discloses, and we find, that the actual
amount of stock owned by the Respondent is approximately $225,000 , of which $76,000
is in business of Nation-wide scope
' Cf. Matter of bohio Pipe Line Company, 75 N. L . R. B. 858.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to by Beam, ' Swain, referring to Sommars ' discharge, remarked,
"... I fired her because she joined the union' and if any of the rest
of them join the union I will fire them." Although Swain's version
of this conversation differed radically from the version offered by
Beam , it was Beam who was credited by the Trial Examiner. We
find no basis in the record for concluding that the Trial Examiner was
clearly erroneous in this resolution of the credibility of the witnesses
whose demeanor on the witness stand he observed.5
4. The Respondent's illegal activities, including the discrimina-
tory discharge of employee Sommars, go to the very heart of the Act
and indicate a purpose to defeat self-organization of its employees.
We are convinced that the unfair labor practices committed by the
Respondent are potentially related to other unfair labor practices
proscribed and that danger of their commission in the future is to be
anticipated from the Respondent's conduct in the past. • The pre-
ventive purpose of the Act will be thwarted unless our order is co-
extensive with the threat. Accordingly, in order to make effective
the interdependent guarantees of Section 7 and thus effectuate the
policies of the Act, we shall, in accordance with the recommendations
of the Trial Examiner, order the Respondent to cease and desist from
in any manner infringing upon the rights of employees guaranteed
by the Act."
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Tri-State
Casualty Insurance Company, Tulsa, Oklahoma, its officers, agents,
successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in Building Service Employees'
Union, Local 245, A. F. L., or in any other labor organization of its
employees, by discriminatorily discharging, refusing to reinstate, or
by discriminating in regard to their hire or tenure of employment, or
any term or condition of employment;
(b) Interrogating its employees concerning their union affiliations,
activities, or sympathies, or in any other manner interfering with,
restraining, or coercing its' employees in the exercise of their rights
to self-organization, to form labor organizations, to join or assist
6 In this connection, we note that the Respondent 's assertion in its brief that the Trial
Examiner credited only witnesses of the General Counsel in this case is not supported by'
the record or the Intermediate Report.
6 May Department Stores v. N. L. R. B., 326 U. S. 376; N. L. R. B. v. Entwistle Manu-
facturing Co., 120 F . ( 2d) 532. ( C. A: 4).
TRI-STATE CASUALTY INSURANCE COMPANY 831.
Building Service Employees' Union Local 245, A. F. 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 of such activities except to the extent that
such right may be affected by an agreement requiring membership in a
labor organization.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Pearl Sommars immediate and full reinstatement to her
former or substantially equivalent position, without prejudice to her
seniority or other rights and privileges T and make her whole for
any loss of pay she may have suffered by reason of the Respondent's
discrimination against her by payment to her of a sum of money equal
to that which she normally would have earned as wages from April
29, 1948, the date of the Respondent's discrimination against her,
to the date of the offer of reinstatement, less her net earnings 8 and less
willful- losses, if any, incurred by her during such period;
(b) Post at its building in Tulsa, Oklahoma, copies of the, notice
attached hereto, marked "Appendix A." 9 Copies of the notice, to be
furnished by the Regional Director for the Sixteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and maintained
by him for a period of at least sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material ;
(c) Notify the Regional Director for the Sixteenth Region in writ-
ing within ten (10) days from the receipt of this order what steps the
Respondent has taken to comply herewith.
7 In accordance with the Board ' s consistent interpretation of the term , the expression
"former or substantially equivalent position" is Intended to mean "former position wher-
ever possible and if such position is no longer in existence then to a substantially equiva-
lent position " See Matter of The Chase National Bank of the City of New York, San
Juan, Puerto Rico , Branch, 65 N L. R. B 827.
B By "net earnings" Is meant earnings less expenses , such as for transportation, room,
and board , Incurred by an employee in connection with obtaining work and working else-
where, which would not have been incurred but for this unlawful discrimination and the
consequent necessity of his seeking employment elsewhere. Matter of Crossett Lumber
Company, 8 N. L R. B. 440. Monies received for work performed upon Federal , State,
county, municipal ; -or other work -relief projects - shall- be considered earnings . Republic
Steel Corporation v. N. L. R. B., 311 U. S. 7.
B In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be Inserted in the notice, before the words : "A DECISION AND ORDER,".the
words : "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that in all other respects the complaint
herein be, and it hereby is, dismissed.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees in any manner con-
cerning their union activities, views, or sympathies, or in any other
manner interfere with, restrain, or coerce our employees in the
exercise of their right to self-organization , to form labor organ-
izations, to join or assist BUILDING SERVICE EMPLOYEES' UNION,
LOCAL 245, 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 bar-
gaining or other mutual aid or protection, or to refrain from
any or all of such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Sec-
tion 8 ( a) (3) of the amended Act.
WE WILL OFFER to Pearl Sommars immediate and full reinstate-
ment to her former or substantially equivalent position without
prejudice to any seniority or other rights and privileges pre-
viously enjoyed, and make her whole for any loss of pay suffered
as a result of the discrimination.
All our employees are free to become, remain, or refrain from
becoming, members of the above-named union or any other labor
organization except to the extent that this right may be affected
by an agreement in conformity with Section 8 (a) (3) of the
amended Act.
WE WILL NOT discriminate in regard to hire or tenure of employ-
ment or any term or condition of employment against any em-
ployee because of membership in or activity on behalf of any such
labor organization.
TRI-STATE CASUALTY INSURANCE COMPANY,
Employer.
By ---------------------------------------------
Dated------------------------
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
TRI-STATE CASUALTY INSURANCE COMPANY 833
INTERMEDIATE REPORT
Mr. Charles Y. Latimer, for the General Counsel.
Coffey & Coffey, by Mr. A. Langley Coffey and Mr. Perry D. Inhofe, of Tulsa,
Okla., for the Respondent.
STATEMENT OF THE CASE
Upon a first amended charge duly filed by the Building Service Employees'
'Union Local 245, A. F. L., Tulsa, Oklahoma, herein called the Union, the General
Counsel of the National Labor Relations Board,' by the Regional Director for the
Sixteenth Region (Fort Worth, Texas), issued his complaint dated September 10,
1948, against the Tri-State Casualty Insurance Company, Tulsa, Oklahoma,
herein called the Respondent, alleging that the Respondent had engaged in and
was engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (a) (1) and (3) and of Section 2 (6) and (7) of the National Labor
Relations Act, as amended, herein called the Act. Copies of the complaint, the
first amended charge, and the notice of hearing were duly served upon the
Respondent and the Union.
With respect to the unfair labor practices the complaint alleged in substance
that the Respondent : (1) questioned its employees on numerous occasions regard-
ing their union affiliation and warned them of its opposition to their becoming or
remli ining members of the Union and kept under surveillance meetings between
employees and union representatives; (2) on or about April 28, 1948, discrimina-
torily discharged Pearl Sommars because of union activities and for that reason
has failed to reinstate her; (3) by these acts interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7 of the Act.
In its answer dated October 11, 1948, the Respondent denied that it had engaged
in the unfair labor practices alleged, and affirmatively alleged that "Pearl Som-
mars was discharged because of (1) her indifference to and neglect of her work;
(2) her sullen and uncooperative disposition and attitude toward her job and her
supervisor, and (3) the unsatisfactory manner in which she performed the duties
of her job...."
Pursuant to notice, a hearing was held at Tulsa, Oklahoma, from October 19
to 21, 1948, inclusive before the undersigned Trial Examiner, duly designated by
the Chief Trial Examiner. The General Counsel and the Respondent were repre-
sented by counsel. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded all parties.
At the beginning of the hearing a motion by the Respondent was granted for
the segregation of witnesses with certain exceptions. At the end of the General
Counsel's case-in-chief motions by the Respondent to dismiss the complaint in
its entirety on the grounds of jurisdiction and failure to make a prima Pacie case
were denied, but ruling on Respondent's motion to dismiss certain 8 (a) (1) alle-
gations of the complaint was reserved. At the end of the hearing the motions
to dismiss the complaint in its entirety were renewed by the Respondent. Rulings
on these motions were reserved and are disposed of as indicated herein. A motion
by the General Counsel to conform the complaint to the proof in-formal matters
was allowed without objection.
Both counsel waived the opportunity to argue orally. Although leave was
granted to file briefs, proposed findings of fact and conclusions of law, none has
been filed.
1 The General Counsel and his representative at the hearing are referred to herein as
the General Counsel , and the National Labor Relations Board as the Board.
834 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Tri-State Casualty Insurance Company is an Oklahoma corporation with its
'principal and only office in Tulsa, Oklahoma ' It writes the major types of
casualty insurance such as automobile liability , collision , and comprehensive
and also workmen 's compensation.' This business is solicited only through local
agents acting as independent contractors who are paid a commission on the
business transmitted . These agents may and usually do represent a number of
other companies and exercise complete discretion as to whether they place their
business with Respondent or with other companies . Respondent has approxi-
mately 334 such agents of which 84 are located in 14 States-outside the State
-of Oklahoma.
The direct premiums on business written during 1947 was $993 ,258.65 for
Oklahoma and $237 ,059.92 outside of Oklahoma . For the same period $304,134.55
.was paid out in claims on Oklahoma business and $11 ,059.16 on out-of-State
business.
The total assets of Respondent were $3,024 ,690.45.` With the possible excep-
tion of the office building itself, these assets were comprised of the following :
Bonds : $447 ,328 of which $319,529.21 were in Government and the remain-
der substantially in all business engaged in interstate commerce , chiefly rail-
roads.
Stocks : Approximately $1,150,000 of which approximately $1,000 ,000 was in
businesses of Nation-wide scope.
Cash : As of the end of September 1948, approximately $1,465,000 all on deposit
in Oklahoma banks.
In addition to the above , Inhofe ( upon whose testimony the entire foregoing
is based ) testified that "something less than $100 ,000" in premiums was paid
during 1947 by Respondent to its reinsurance agent, General Reinsurance Com-
pany of New York City.
During 1947 some $7 ,586 worth of supplies were purchased locally by Re-
spondent. These included blank policies, other printed matter and general office
materials . There is no indication where these supplies originated . For the same
period $2 ,325.98 was expended in telephone and telegraph charges, approximately
. 5 percent of which involved service outside Oklahoma.
The company owns a 7-floor office building in Tulsa of which it occupies the en-
tire 7th floor and part of the 6th floor. This constitutes its home and only office
space . The remainder of the building is rented out for general office purposes.
There are approximately 50 tenants in the building , some of whom are . engaged
in interstate commerce.
2 From November 1, 1947, to October 1, 1948, a branch office was maintained in St.
Louis, Mo. This office did not have underwriting authority and was engaged in servicing
soliciting agents: It was discontinued because the amount of business involved did not
warrant its continuance.
a Tri-State Casualty is sole owner of the Tri-State Fire Insurance Company, which writes
fire insurance, but is licensed to do business only in Oklahoma.
* The record does not reveal if this figure includes the office building owned by Re-
spondent and valued at $260,627.57, but a computation of the investment figures testified to
by Perry D. Inhofe, Respondent's President, would seem to indicate that it does not.
These figures were the latest readily available.
TRI-STATE CASUALTY INSURANCE COMPANY 835
. -Although Respondent contends otherwise , I find that Respondent at all times
herein relevant was engaged in interstate commerce. within the meaning of the
Act.5
II. THE ORGANIZATION INVOLVED
,The Building Service Employees' Union, Local 245, AFL, is a labor organiza-
tion admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent employs a total of 12 people in the service and maintenance of
its building : 4 elevator operators, 5 cleaning women, 1 vacuum cleaner man,
1 mop man and 1 day maintenance man. The 5 cleaning women and the clean-
ing men all work nights. One of the cleaning women is required to handle an
elevator from 9:30 to 11:40 p. in. In charge of the service, maintenance and
engineering of the building is John S. Wilson who has original responsibility
for the hiring and firing of the service employees .6 Also connected with the
service and maintenance of the building by reason of his responsibility for the
leasing and collection of rents therein is Lloyd A. Swain. Swain is a stock-
holder in the Company and also is in charge of its collection department.
What, if any, authority Swain has over Wilson or the service employees will be
discussed later. Perry D. Inhofe, President and Chairman of the Board,
unquestionably has complete and final authority over all matters of Company
policy including hiring and firing of all employees.
This case involves the Union's attempt to organize the building employees,
the alleged unlawful interference by the Company therewith, and the alleged
discriminatory discharge of Pearl Sommars, one of the cleaning women. As
already indicated, the Respondent contends that Sommars was fired for cause
and denies the commission of any other unfair labor practice. Practically
all the action takes place during the month of April with the climax during the
last few days of the month. Except for the three above officials of the Com-
pany, Respondent's main witnesses were two fellow employees of Sommars, one
Charles Louis Lowry, a 74-year-old vacuum cleaner operator and Josephine
Sherwood, an elevator operator and cleaning woman who temporarily took
Sommars' place when she Was fired. Neither of these was a protagonist of the
Union. Except for the union officials, Beam and Bierdstedt and Sommars her-
,self, the main witnesses for the General Counsel were Sommars' fellow
employees, Willard Stevens Rutledge, a man who appears to be in his middle
60's, who was the mop man, and Gussie Maxwell, an elderly cleaning woman.
Of these two Rutledge was a member of the Union.
B. The hiring, tenure, and discharge of Pearl Sommars
1. The hiring
At 5: 00 p. in. on February 10, 1948, Pearl Sommars first started working for
Respondent , her duties being those of a cleaning woman . Earlier in the day she
5 Matter of Polish National Alliance, 42 N. L. It. B. 1375, 322 U. S. 643; Matter of Butler
Bros., 41 N. L. It. B. 843, 134 F. (2d) 981, cert. denied 320 U. S 789.
6 While this exposition is in the present tense it is to be understood that reference to all
persons herein relates to the period of time covered by the pleadings and that the events
all occurred in 1948 unless otherwise stated
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had applied in person to Wilson and had filled out an application blank.? Admit-
tedly she preferred elevator work to cleaning and so stated. She was informed
that there was no opening , but was requested to leave her number because she
might get a chance at a' little extra work in case of an emergency. She then
inquired who was in charge of night work ( cleaning ) indicating that she would
be interested in that type of work if she could not get on as an elevator operator.
Wilson replied that there might be an opening for that type of work very soon
and took her home phone number. Wilson called her that afternoon and left a
message that she was to report for work that day at 5: 00 p. in. Sommars re-
ported and was assigned to cleaning the 6th floor and in addition was to clean the
rest rooms and elevator doors from the 7th floor down, the bannisters from the
penthouse down and clean up and dust in the lobby. In addition to this assign-
ment of work she was told either in her application interview or at the time she
reported for work that there was no night foreman or supervisor, that she was
on her honor and that it was up to her to take care of her job. Wilson testified
that Sommars claimed to have had several years of experience. She testified
credibly to 7 years' experience in cleaning work at the National Bank of Tulsa.
2. The tenure and complaints
Sommars' work apparently brought forth no notice or comment of any kind
until about the first of April. About that time Wilson had occasion to ride as
a passenger in an elevator operated by Sommars during a day that she had
been assigned extra work as an elevator operator. She missed the floor by
about 4 inches. Wilson mentioned to her how important it was to level the car.
She made no reply 8 The next occasion for comment arose at about the same
time. Swain complained to Wilson that the elevator doors were dirty. Wilson
mentioned it to Sommars although he did not testify what his exact statement
to Sommars was. Her testimony was that Wilson merely said, "Watch your
elevator doors." Whatever was said by Wilson it apparently did not go beyond
a terse statement. The fact that Sommars made no reply tends to support
this version.
Not necessarily as a chronological event but simply because of the general
nature of the observation, next to be considered is Swain's only personal con-
tact with and resulting estimate of Sommars. He testified that the first time he
saw Sommars was on an occasion one evening when, accompanied by his wife,
he came to the office and was taken to the 7th floor by Sommars. At that time
whether Sommars knew who Swain was is not clear but Swain testified cate-
gorically she did not. At any rate she did not speak to the Swains and on that
basis Swain "thought to (himself) she was very sullen." On several other
occasions Swain had the feeling that Sommars was sullen but he made no men-
tion of it to anyone including Sommars. Since Swain never mentioned the
matter to anyone its relevancy as such in connection with Sommars' discharge
is obviously lacking.
According to Wilson's direct testimony, after the "elevator doors" incident
he had no occasion to talk to Sommars in connection with her work until the
7 There is a conflict in Wilson's and Sommars' testimony as to the time of day that the
application was made, Sommars stating it was about 2: 30 or 3 • 00 p. in., Wilson maintain-
ing it was 11 : 30 a. in Sommars was not definite about the hour. Wilson is credited.
8 This is based on Wilson's testimony which I credit ; Sommars denied the incident. He
further stated that Sommars gave him a "look as who in the devil are you" and also that
she "gave me a dirty look." These latter remarks are not credited. In all probability
Sommars was nervous (Wilson testified it was the first and only time he rode with her)
and Wilson probably misinterpreted her look.
TRI-STATE CASUALTY INSURANCE COMPANY 837
question of extra elevator work came up. It is not clear what assurance , if any,
was given Sommars that she would get such extra work, but on the basis of
both Wilson's and Sommars' testimony it is clear that there was a strong in-
tonation that she would get some of that type of works I find that she had
reasonable reason to believe and did believe she would be assigned the extra
elevator work. In any event the real issue is what was the effect of the failure
to be assigned to this work. On this point there was no conflict. Sommars
admitted she was' "a little peeved at Mr. Wilson there for a while" and that she
"didn 't go out of -(her) way to speak to him."
It is not definite when- the difficulty arose as to the assignment of the extra
elevator work. Wilson was unable to set the date any closer than sometime
between the 1st and 19th of April. Sommars testified, on cross-examination,
.that she made application to join the Union after her misunderstanding about
the assignment of extra elevator work. According to her testimony, she made
this application about the 6th of April. I credit her testimony in the above
matter and find that the elevator work misunderstanding occurred shortly be-
fore the 6th of April. On the 19th of April Sommars was transferred to the 7th
'floor to relieve the regular cleaning woman on that floor, a Mrs. Arnold, who
was ill.
Wilson's testimony as to the incidents that directly lead to Sommars' discharge
can be summarized as follows :
(1) On April 24 he received a request from an unidentified girl on the 7th
floor for "six dust rags" with the explanation that "our desks are so dusty we
can't work on them," whereupon he had his assistant, McKelvey, deliver six
dust rags to the 7th floor; (2) the following morning Wilson made an inspection
on the 7th floor and, finding dust under an unspecified number of letter trays
made identifying marks before replacing the trays. These marks were untouched
on the 29th when Wilson made a follow-up inspection; (3) on the same day that
Wilson made marks under the letter trays another request came for a dust rag
from a Mr. Palmer on the 7th floor with the statement that his desk had not
been dusted for 2 nights (whether this was before or after the above inspection
is not clear) ; (4) in addition to the above, Wilson corroborated complaint about
a dusty desk testified to by Swain and supported by a memorandum dated April
26 from a stenographer.
Based on Wilson's attitude and demeanor on the witness stand and the follow-
ing analysis of his testimony I am unable to credit any but the last complaint of
the above four.
On cross-examination, when questioned as to the identity of the person who
presumably made the request for the six dust rags he testified, "I don't know
who made the complaint. They called me by telephone and they didn't give me
any name." Questioned further as to who the person was he answered, "I don't
know, I didn't ask her name." Then asked where her desk was located he
unhesitatingly and precisely identified it as having come from the "second desk
from the north window in Mr. Earl's department." This sudden certainty on
the part of Wilson in the wake of considerable previous vagueness did not impress
me as being truthful. Several other such answers appeared in Wilson's testi-
mony having a similar tone.
Testifying on cross-examination that Sommars worked on the sixth floor before
being transferred to the seventh, Wilson claimed he had "probably a half dozen"
Sommars testified that Wilson told her at the time she had her application interview
that she "was the kind of a woman they needed there. When they need an elevator girl,
extra one, I would be there ." I credit this testimony . It was not denied by Wilson.
844340-50-vol. 83-54
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaints about her work from the sixth floor. But when pressed for details
he was unable to clearly identify the one specifically alluded to and finally
admitted "that (one) was all." The only complaint he testified to on direct
examination originating on the sixth floor was one about the rest rooms which on
his investigation proved to be groundless.10
With respect to the markings allegedly made by Wilson in the dust under the
letter trays, he testified that when he found them untouched on April 29, he went
to Swain's office to inform him of his decision to fire Sommars :
I said, "Now in case she comes to you with a howl about being discharged,
I would like for you to know just what the complaint is and what caused it"
and I took him over there and raised a few of these letter trays and showed
him and he saw it with his own eyes. He said, "Well, that is pretty bad and
it is up to you whatever you want to do. I have got nothing to do with it."
Swain's testimony with respect to this incident was as follows :
Q. What did he (Wilson) say to you? A. He said that he let Mrs. Som-
mars go. [Emphasis supplied.] He had this notation here and he said
. . . It asked him about . . . if he had checked anything else and he said
yes, he had gone around to the various desks and I think he said a week or
so before or possibly longer, lifted up a letter box, made a mark in the dust
under the letter box, and went back later, possibly, I wouldn't fix the time,
but maybe a week or so, and it was still there. Q. Did he say where that
desk was? A. He didn't identify any one desk but said it was quite general.
It'is apparent, contrary to Wilson's testimony, that if Swain is to be believed
Wilson did not show him the dust markings. Since Swain's testimony is believed
and in view of Wilson's marked tendency to magnify and exaggerate, as demon-
strated above, it is difficult to ascertain where fact begins and fiction ends. I
therefore cannot credit Wilson's testimony as to the dust marking incident.
The foregoing constitutes the major evidence regarding the temperament of
Mrs. Sommars and the caliber of her work. In addition there were two or three
miscellaneous incidents. Josephine Sherwood testified that a woman on the
6th floor complained to her that the wash bowl had not been scoured and that
the cleaning work was not being done like it should be or used to be. Sherwood
mentioned it to no one. Since the Respondent was not aware of it, I find it to have
had no effect on her discharge.
Sherwood also testified as to the conditions she found on the 7th floor the night
she took over Sommars' duties. With the exception of dust under letter trays
(with no mention of rings or dates) and small things being dusty on desks, none
of the things she referred to were touched upon by Swain or Wilson in their
testimony regarding Sommars' work or the grounds for her discharge.' Obvi-
ously Respondent was not aware of them at the time Sommars was discharged and
I so find.
Wilson testified that Gussie Maxwell, a cleaning woman, on or about the 20th
of April, complained that she was "delayed 5 or 10 minutes leaving for home one
night on account of Mrs. Sommars being off in a room asleep. That was the
30 In connection with the restrooms , when questioned on cross-examination if it were
not true that she had a complaint or complaints about the restrooms, Sommars not only
denied it but replied that in fact she had asked Wilson, "if the rest rooms didn't look a
lot better than they did when (she) went to work there, and he said they did." This was
undenied by Wilson. I credit Sommars.
11 Sherwood -testified that there was lint under the desks and that the window sills had
not been touched for several days ; also some machinery that was-supposed to have been
dusted had not been touched.
TRI-STATE CASUALTY- INSURANCE COMPANY 839
only complaint I ever had about her sleeping on duty." There was no other
comment by Wilson on direct examination concerning this incident. On cross-
examination, at the suggestion that It was "all right for these girls to take a
nap occasionally," Wilson replied, "Well, what is the use if they' re going to sleep,
you can't keep them from it. I knew she was working on a day shift anyway
aad I thought she probably needed the sleep and I thought, let her have it." The
matter was not mentioned to Sommars. According to Wilson, it was about that
time that he made up his mind to fire her although he wanted "to wait until Mrs.
Arnold returned to that floor." Nowhere in Maxwell's testimony is the incident
alluded to. Sommars explained the incident on the basis that she was late in
'picking up a group of employees one night (presumably on the elevator) and as
an excuse she told them she had been asleep. On the witness stand she denied
that she had actually been asleep. I am unable to credit Sommars in this respect.
Neither do I credit Wilson in his. statement that he had made up his mind at
this point to fire Sommars.
Some question was raised about Sommars using the telephone. She admits she
'did on about three or four occasions during a period when her daughter was ill,
,the purpose being to inquire about her condition. There appears to have been
'no rule against the use, of the'telephones and there Is evidence that other
'employees used the telephones.
3. Union activities of Sommars, the events of the night of April 28th, and her
discharge
The activities to organize Respondent's buildin_ g service employees began during
the first part of April.
It was also in the first part of April, according to Sommars' testimony, that
she went to the union office and joined the Union. Thereafter she talked to all
the employees she came in contact with about the Union and signed up two mem-
bers before she was discharged" Among the people she talked to was Lowry who
was not in favor of the Union. The record reveals an anxiety about the Union on
the part of Lowry. He testified that when he started working for the Respondent,
he asked Wilson "did (he) have to join a Union to get a job," and that he told
Swain "that if I had to join a Union I didn't want the job, that I had a job where
I was at and didn't want to join the Union." He further testified that he told
the union organizer that "I was too old to join the Union and I didn't want to
join it because if we had a strike and I didn't go' out with the bunch, I would
feel like a heel and if I did go out with the hunch, I was too old to ever go back and
I was going to hold my job as long as I could, the way it was." Lowry had
been working for Respondent about a year and a half at the time of the union
activity pertinent herein. He had discussed the Union with fellow employees
on various occasions,13 and-had been sufficiently interested in and aware of
some connection on the part of Sommars with the Union to specifically ask
her if she belonged to the Union." That she refused to answer him categorically
12 Sommars testified on cross-examination, and I credit the testimony, that there were
7 in the night crew and she talked about the Union to all but one.
13 When questioned as to whom he discussed the Union with Lowry answered, "Well, I
heard it talked about quite a bit." Besides talking about the Union to Maxwell, whom
be asked about her Union membership, he also testified, "I might have talked to several,
but I don 't recollect any certain one."
14 This statement is based on the credited testimony of both Lowry and Sommars. The
credible evidence shows that Lowry not only asked $ommars if she belonged to the Union,
but also asked Sherwood if she knew whether Sommers belonged to the Union.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but stated in reply 'that'she "was 100 percent for organized labor" does not, in
my opinion, detract from, or minimize his estimate as to her identity with
the Union campaign. At this point, it is appropriate to examine the events
of the night of Anril 28th'and the part played therein by Lowry. It is the
contention of the General Counsel that Lowry informed the respondent of the
union membership or activity of Sommars on the night in question. There. is
a direct conflict between the witnesses for the General Counsel and the wit-
nesses for the Respondent as to what occurred that evening. The testimony
of Sommars and Rutledge will be summarized first.
Sommars testified that on 'the night of April'28, the union organizer came to
the building and talked to her and Rutledge on the 7th floor, at which time
Rutledge signed a union card. Then Sommars and the organizer went to the
6th floor and tried unsuccessfully to sign up a woman,there. Sommars then
went back to her work on the 7th floor and the organizer continued his rounds
of the building, Sommars thereafter "seeing him on the elevator a time or two"
'with one of the other employees. Some time later, Lowry came up to the 7th
floor with his cleaning equipment and Sommars told him he could not go in -to
clean Inhofe's office because he was in there with his wife and another man
and • woman . Lowry replied that he wanted' to see' Inhofe and entered the
office. Then both he and Inhofe came out and went into another office where
they remained for about a half an hour. After that, Sommars took the Inhofe
party down to the street floor. About 30 minutes later, Swain arrived at
the building and one the way up in the elevator asked Sommars where Lowry
was, referring to him as that "old man," because he could not remember his
name. Seeing Lowry on the 5th floor as they went by he said, "There is the
man I want to-see," and got out of the elevator, Sommars continuing to the
7th floor. In a few minutes Swain and Lowry came up to the 7th floor by
another elevator and went into Swain's office and closed the door. They re-
mained there about 30 or 40 minutes. When they came out, Sommars took
them to the street floor.
Rutledge corroborates Sommars ' testimony that he and Sommars had a con-
versation with the union organizer on the 7th floor at which time he signed a
union card. He also testified that shortly thereafter he saw Lowry and the
organizer together in a room on the 5th- floor and that a few minutes after the
organizer left him, Lowry got into an elevator and left the floor. Sometime later
Rutledge saw Lowry return to the 5th floor and work there for almost 30
minutes when he was joined by Swain and Wilson who took him with them into
the elevator.
Lowry, Inhofe, Swain, and Wilson all deny that any of the above events in which
they allegedly figured took place. Lowry denies that he ever talked to Inhofe at
any length in his office or anywhere else about anything. He testified that the
only time he ever mentioned anything about the Union to Inhofe was on an occa-
sion late one evening when he was bringing Inhofe and his wife down in the
elevator. Although he was not definite as to the date, his best recollection was
that it was before Sommars' discharge. A union organizer had been in the
building talking to him that night. Lowry mentioned that fact to Inhofe and
said "I don't want to join if I can help it." Inhofe's reply was "You don't have to
unless you want to." That was the extent of the remarks on either side. Lowry
also denied ever mentioning the Union to Swain except at the time he was hired
as indicated previously, and he denied that Swain alone, or in company with
Wilson, ever came and got him or that he spent any time with either of them or
both of them on any occasion. As for any mention of this to Wilson, Lowry
TRI-STATE CASUALTY INSURANCE COMPANY 841
admitted on cross-examination that the night after the organizer had been in
the building, he told Wilson about it and that the latter walked away.
Swain also , denied the events of the night of April 28. Asked whether Lowry
ever discussed the fact that there was a union organizer on the premises he
answered, "Not to my knowledge. I never asked him." '6 He testified that no one
ever reported to him that Sommars joined the Union or that she had been active in
organizing a Union. However, he did state that an unidentified person on the
elevator one morning, did mention the fact that the union organizer had been in
the building and that this took place before Sommars was discharged. In this
connection he said, ". . . I never gave it any thought particularly, because
anybody who wanted to could come in the building any time they wanted to."
Wilson who, like Swain and Inhofe, was in the court room all during the
hearing denied the truth of Rutledge's testimony about him as to the night of
April 28. He claimed not to have been in the building after 5:30 p. m. on that
day.
As for Inhofe, his testimony was that not only did he not know anything of
Sommars' firing until the notice of hearing was called to his attention, but
up to that point, he was also unaware of her even having worked for the Company:
With respect to Union activity in the building, or concerning the Respondent,
Inhofe stated that on only two occasions was the subject ever touched upon by
him in any manner with employees. On one occasion, unidentified as to time,
an elevator operator made a remark to him in the elevator presumably in a
jokipg way,, to the effect that she guessed that they would all join . the Union.
Inhofe "just grinned and went off the elevator." Referring to this occasion
on cross-examination, Inhofe stated, "I didn't pay any attention to it." The
other occasion judged by Inhofe as having occurred in the first part of May
was an encounter with Lowry late one night as Inhofe was leaving the building
with his wife. Lowry had unlocked the door for them and they had stepped
outside the building. Mrs. Inhofe had started over to the car and Lowry stopped
Inhofe to ask him if it would be necessary to join the Union to keep his job.
What Lowry's exact words were does not appear from Inhofe's testimony. He
did state, however, that Lowry "indicated that maybe the employees were going
to be unionized or at least I got that impression." Inhofe's reply was, "Oh. I
don't think, Mr. Lowry, you have to join anything in the world to keep your job
unless you want to," adding, "you are not going to lose your job around here." 1°
That was the extent of the encounter. On redirect examination, Inhofe described
it by saying that Lowry "made a quick remark and I made a quick answer, and
we went in,the car and went on."
is Swain's testimony did not have a positive tone. For instance, on direct examination,
when asked whether the incident of his and Wilson's getting Lowry into his office hap-
pened, he replied, "No, I don't think it did, I don't ever remember of having done so," or
as to whether the incident of his having gone alone to get Lowry happened, his reply was,
"Not that I remember of." Again on direct examination, when asked, "Did Mr. Lowry
ever 'make any reports to you that an organizer was on the premises?" he answered, "As
far as I know, Mr. Lowry never even discussed the matter with me."
11 On cross-examination Inhofe denied he made the statement regarding his impression
from Lowry about the prospects of becoming unionized and denied that Lowry made any
remark other than to ask if he had to join a Union to keep his job. As to the details of
the incident he stated that "he didn't actually stop me, Mr. Latimore , he just made the
remark or asked the question as we were going out on the sidewalk, whether or not he was
going to have to join the Union in order to keep his job." Explaining the last part of his
remark- to Lowry, Inhofe said, "Frankly, I made, that,kind.of, explanatory remark . because
be is an old man and he does worry about his iob."
842, DECISIONS -OF NATIONAL 'LABOR RELATIONS BOARD
Except for the above; the substance of.Inhofe's testimony is that he nevers
discussed the question of unionization of his employees with anyone connected.
with the Company. To this effect, he :testified that he never, at any time,
discussed the Union with Swain, that personnel matters are never discussed.
at staff 'meetings, that- the Labor Management Relations Act of 1947, or any,
part of it, was never discussed at staff meetings, and that personnel problems are
never discussed at Board' meetings or with department heads. On the other.
hand, he made it clear that.as President of the Company, and Chairman of the,
Board, he decides and directs the policy of, the Company in all matters, including
employee relationships if such come to his attention. The authority to hire
and fire building employees he delegated exclusively to Wilson, allowing him;
presumably complete discretion in that respect. He did testify, however, that
department heads have no "discretion that would 'lead to the point of involving
the Company as a whole or other departments."
The foregoing summarizes the conflicting testimony regarding the events of,
the night of April 28, including such other testimony of the witnesses involved
as may be of value in analyzing and resolving the conflicts. In the main, Sommars'.-
testimony impressed me as being forthright, plausible, and truthful. This im-a
pression was not appreciably affected by her cross-examination. On the other
hand, Respondent's witnesses , by and large, raised enough doubt in certain aspects
of their testimony to prevent my crediting them where. direct conflict as to
the above events exists. Thus, as indicated, in almost all of his answers regarding.
these events Swain was not definite in spite of the fact that the acts alleged oc-
curred only 6 months before the hearing and certainly must have involved circum-
stances so unusual as far as •his•customary duties were concerned that they should
have evoked definite answers one way or the other. .
The occasion of Inhofe's encounter with Lowry at -the door while of itself
not.necessarily inconsistent with Sommars'-testimony, does raise some question;
As already mentioned, on direct examination Inhofe stated that Lowry "indicated'
that maybe the employees were going to be, unionized or at least, I got that
.impression." On cross-examination, he denied that he said that or that Lowry
had so indicated. '
The conclusion is apparent from Inhofe 's testimony that he did not have
occasion to become acquainted with the building employees. When asked how
long he had known Lowry as an employee of the building, he replied, "Well, it
depends entirely on the definition- of know. I have seen him around there it
seems to me like a couple of years. As far as actually knowing him is concerned,
I have barely known his name. I don't spend a lot of time up there at night and
when I do, I am usually busy." In spite of this, Inhofe incongruously explained
the remark he volunteered to Lowry to the effect that he was not going to lose
his job by saying "Frankly, I made that kind of explanatory remark because
he is an old man and does worry about his job." It would seem that to know a
man's'attitude or thoughts in this respect, it would be necessary to be better-
acquainted with him than Inhofe was acquainted with Lowry, judging from the
former's testimony.
The Respondent is a small company, small enough to enable its president to_
decide and "direct the policy of anything the Company has." Even where
authority was delegated by him to others it was clear that such authority did not
-carry with it "discretion that would lead to the point of involving the company as
a whole, or other departments." Under these circumstances, it is difficult to
believe that Inhofe's first knowledge of Sommars' discharge came.with the service
of the complaint and notice of hearing in this case. Inhofe's utter nonchalance
TRI-STATE CASUALTY INSURANCE COMPANY 843
in the face of remarks by employees regarding being compelled.to join a Union
and his avoidance of the subjects of personnel and unionism in his Board and,
staff meetings and conferences with department heads is difficult to credit.
- As for Lowry, in' view of the position taken by him at the start of his employ-
ment regarding joining a Union and his very understandable reason for that
attitude throughout his employment, it would seem that his restraint in mention-
ing the Union to his superiors on only two occasions in the cursory manner he
did, is exceeded in its incredibility only by -Inhofe's demonstration of restraint
To the extent that Lowry's testimony substantially corroborates the testimony
of Inhofe, Swain, and Wilson, as to the events of the night of April 28, it will
necessarily be affected by the credibility attached to the pertinent testimony of
those witnesses . Having been unable to accept their version over Sommars' ver-
sion, I am, of course, unable to accept Lowry's.
There is another matter regarding the testimony on these events to be men-
tioned, namely, Rutledge's testimony that Wilson came with Swain to the 5th
floor to get Lowry. This is not necessarily inconsistent with Sommars ' testi-
mony since Wilson could have been in the building even though she did not see
him. However, in view of Wilson' s denial and Sommars' statement I do not
credit Rutledge's testimony that he saw Wilson on the evening in question. He
was not too positive in his recollection at times and on more than one occasion
suggested the possibility that he might have his "wires crossed."
One important bit of testimony remains to be resolved. Rutledge testified,
that on the night of April 28th after the incidents about which he had testified,
had occurred, Lowry told him that he had been conferring with Inhofe, Swain and,
Wilson and that Respondent came near firing Sommars the first time the union,
organizer was there and that Respondent would certainly fire her this time.'
Respondent strenuously objected to the receipt of this testimony as being hearsay
and moved to strike it. Ruling was reserved on the motion. The motion to
strike is hereby denied. I believe the testimony is admissable not for the
purpose of showing Respondent's intention regarding Sommars, since such
statement is clearly hearsay and not binding on Respondent, but for the purpose
of determining the credibility of Lowry. An important issue in this case is
whether or not Lowry conferred with some of respondent's officials on the night,
of April 28th about Sommars' union activities. Testimony indicating, contrary
to Lowry's positive denial, that he did have such a conference is clearly admis-
sable." Although I have not credited Rutledge concerning Wilson's presence in
the building on the evening in question nevertheless I do credit Rutledge' s testi-
mony that Lowry told him that he, Lowry, had conferred with Inhofe and Swain
that evening.
Based on the foregoing analysis of the record as a whole it seems to me the
essentials of Sommars' story are more worthy of belief than Respondent's denial
thereof. Accordingly, I find that Lowry was closeted with Inhofe for about
30 minutes in an office on the 7th floor on the night of April 28, shortly after
having left the presence of the union organizer ; 4e that some 30 minutes after
Inhofe left the building, Swain arrived, asked where he could find Lowry, and
seeing him on the 5th floor left the elevator there and picked up Lowry taking him
to the 7th floor where he was closeted with him in his office for about 30 minutes.
14
Respondent's motion to strike the testimony of Rutledge that Orcutt told him she saw
Lowry go into Inhofe's office and that Sommars told him that Lowry was talking to Swain;
and Wilson is hereby stricken as being hearsay.
"'This part of the finding is based on the credited testimony of Rutledge.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The following night, April 29, when Sommars reported for work , she was
discharged. Wilson called her in and gave her a check with the statement,
"Well, I guess you are through." She asked, "What is the matter?" He
answered, "Well, your work is not satisfactory," whereupon she replied, "Mr.
Wilson, you know better than that, it is something else besides my work." Up
to this point, both Sommars' and Wilson's versions are in substantial agreement.
Wilson, however, testified that that was all that was said, while Sommars
testified that in reply to her last remark he shrugged his shoulders and said,
"That is what they say." It seems to me that Sommars' remark normally
would be expected to evoke an answer. I credit Sommars' statement as to
Wilson's reply to her to the effect "That is what they say."
In this connection, Maxwell testified that Wilson told her he hated to let
Sommars go, but that it was orders and he couldn't do anything about it. Of
all the witnesses , it was my conviction that Maxwell was the most objective
and reliable to the extent that her memory served her. She was, an elderly
woman still employed by Respondent and gave the impression of a tired detach-
ment that could not have resulted in deliberate misrepresentation. I credit her
in the above statement.
Concluding findings as to the discharge
It is certainly unquestioned that an employer has the right to discharge an
employee for any reason or no reason, as the inclination strikes him, provided,
of course, that he does not violate applicable law in so doing. However, it is
also clear that even where cause exists for an employee's discharge, such dis-
charge may not be condoned under the Act, if, in fact, it is found that the real
or ultimate reason for the discharge of that employee was union or concerted
activity or the exercise of other rights established under Section 7 of the Act 19
In the case of Pearl Sommars, various reasons were alleged by the Respond-
ent for her discharge. While all of the evidence adduced to support these allega-
tions was not credited, there remained some credible evidence upon which to
predicate a logical theory in that respect. Thus, starting with the elevator
levelling incident, we find an indication on the part of Respondent, justified or
otherwise, that Sommars' attitude was uncooperative. There is no doubt that
Sommars' reactions toward Wilson, immediately after the extra elevator work
incident, could not be described as cordial. Just how important or real the
question of Sommars' attitude was in Respondent's evaluation of its personnel
relationships is not clear. But, due to the course of events and the superficial
basis of Respondent's observation on this point, I conclude that whatever it was,
it was not considered by Respondent as a serious impediment to a continuing
relationship with Sommars 20 In fact, some weeks after the occurrence of the
two incidents which are the basis of allegations of uncooperativeness serious
enough to be set forth as a ground for her discharge, Sommars was transferred to
19 Matter of Spencer Auto Electric Inc., 73 N. L. R. B. 1416.
20 Except for the "levelling" and "elevator doors" incidents involving Sommars' work
neither of which was of sufficient magnitude to merit more than a passing comment on the
part of Wilson as to Sommars' attitude, there is nothing in the record to indicate that any
other mention was ever made to Sommars by anyone connected with the management as to
the caliber of her work or her attitude. Under these circumstances, I find that, except
for the purely personal relationship between Sommars and Wilson , there is no basis con-
nected with Sommars' work other than the two incidents, cited to support Wilson's analy-
sis as , to the manner in which Sommars , was,uncoopprative . Moreover , with the exception
of Swain's testimony , referred to previously , there is no evidence that Sommars displayed a
sullen attitude in the performance of her duties.
TRI-STATE CASUALTY INSURANCE COMPANY 845
the 7th floor. Whether or not this transfer resulted in more difficult work for
her, it certainly added to her responsibilities In that, besides her cleaning, she
had the duty of determining who should be admitted Into the building and
resj'on'sitiility for' the operation of the elevator. Although Respondent's. esti-
mate of Sommars' attitude may rest on an insubstantial basis, it can be assumed
that her attitude may have left something to be desired. In addition, although
the evidence is meager and the incidents trivial, it can be assumed that the
caliber of her work may also have left something to be desired. Against these
factors must be weighed the union activity of Sommars, culminating in the
presence of the union organizer in the pursuit of his functions in the building
the night before Sommars was abruptly discharged, the circumstances sur-
rounding her discharge, and the reasons assigned therefor.
The Board has inferred an employer's knowledge or suspicion of the union
activity or membership of a discharged employee under circumstances indicating
open union activity among a small, distinct group of employees 21 In this case
a stronger inference is available on the basis of Lowry's contacts with Inhofe
and Swain on the night of April 28. In view of Lowry's concern about having to
join a union, the interest he displayed in Sommars' connection with the Union,
and the presence of the organizer in the building on the night of April 28,-the
fortuitous presence of Inhofe in the building on that night presented Lowry with
an opportunity to disclose what he knew about the organizing efforts of the
Union and part played therein by Sommars. This information undoubtedly
resulted in Swain's arrival on the scene with orders to get complete details
from Lowry preparatory to appropriate disposition of the matter. I find such
to have been substantially the facts.
It is significant that the reason given Sommars for her discharge was solely
unsatisfactory work. Nothing was said to her about her sullen or uncooper-
ative attitude. It is undenied that there was no warning in connection with
her discharge. In this respect, it seems to be Respondent's position that because
there was no night supervision it was understood by the employees that there
could be no customary or reasonable expectation of warning in case of dissatis-
faction with their work. Yet the record is clear that criticisms and instructions
about the manner in which the work was performed were constantly being
communicated to the employees. The only difference between Respondent's
method of operation and one involving normal supervision was a delay of about
24 hours on the part of Respondent in calling to the attention of its employees
things that otherwise might have been called to their attention as they arose.
Thus, by its course of action, it would seem Respondent obviated any under-
standing on the part of its employees that their position with regard to warning
would be any different than the position normally taken in that respect by em-
ployees whose work might be subject to immediate supervision.
Regarding the caliber of the work of Sommars' fellow employees as re-
flected by the complaints brought to their attention by the Respondent, and the
Respondent's action thereon, the record reveals a significant contrast in the
disposition of Sommars' case. It would appear that the complaints about Som-
mars ' work were no more serious or numerous than average. Thus we find
that Sherwood, the woman who was called upon to take Sommars' place on
21 Matter of Bremer Tanning Company, Inc., 50 N . L R. B. 894.
22 Wilson, on cross-examination , testified he told Swain he was going to discharge Som-
mars "because of poor work ." Nothing was said about her attitude. Swain's testimony
about the incident was to the same effect-that the discharge was predicated solely on the
basis of complaints about her work.
846 DECISIONS , OF .NATIONAL LABOR RELATIONS BOARD
-the seventh floor for a matter of 3 days until Mrs. Arnold came back to work, was
criticized in practically the same words •Sommars was , i. e., "Watch the little
mop boards in the rest rooms." Also, she had a complaint from Swain about
.using too much oil on the floors . When asked if she had heard of any complaints
from floors other than the sixth and seventh, she replied, "Well, I have heard
several complaints ." When asked about them , she relied , "I don't see where
they have any bearing."
From Swain 's testimony, on cross-examination , it appears that he had two
,complaints from the seventh floor , one about 2 weeks prior to the 26th of
April involving a dusty desk , and another undescribed complaint about 2
•weeks prior to that. Since Sommars was not transferred to the seventh floor
until the 19th of April, these complaints obviously did not pertain to her work
and presumably did pertain to the work of Mrs . Arnold who was working on
the seventh floor immediately prior to Sommars ' transfer to that floor, and who
- returned to that floor about 3 or 4 days after Sommars was discharged.
Taber had a complaint about a telephone that looked like it had been wiped
with a greasy rag. Maxwell testified that "Mr. Wilson always tells us when
we get a complaint ... " Maxwell also testified that a former cleaning woman, a
Mrs. Kennedy , had had complaints about her work on the seventh floor. That they
must have been numerous is borne out by the following testimony by Wilson :
Q. (By Mr . Latimer.) How long did Mrs. Kennedy work on the 7th floor?
A. Oh, not very long, a short time.
Q. Well, in a couple of months?
A. Yes, probably one month.
Q. About a month or two?
A. Yes.
Q. Not more than two months probably , would you say?
A. I don't think over 30 days.
Q. And you said she had plenty of complaints about her-
A. Yes, sir.
Q. And about how many complaints would you say you had about Mrs.
Kennedy?
A. About five or six.
Q. As a result of these complaints, what did you do about it?
A. Well, I talked to her and she said she would take care of It and not
let it happen again, and it did happen again and I asked her, told her, she
would have to do better or I couldn 't use her and she asked to be trans-
ferred to the 2nd or 3rd floors which were still harder floors, and she worked
there about a week and quit.
Q I see. But you did transfer her from the 7th floor down to the 2nd or
3rd floors?
A. Yes, at her request.
Q. You didn't discharge her?
A. No, she quit of her own accord."
23 After the above testimony , when it was suggested that no one other than Sommars had
ever been discharged for failure to dust desks , Wilson 's retort was that 6 or 8 had been
so discharged . When asked to name any of them , he was unable to do so, saying he would
have to get the information from his records. This he did not do. There were several
instances in the testimony of both Swain and Wilson such as this where, faced with an
admission that would probably be damaging to respondents ' case, they made broad con-
trary assertions which they were unable to support with facts . I do not credit •W11son on
this instance.
TRI-STATE `CASUALTY INSURANCE ' COMPANY . 847
It 'is "apparent from the record as a whole, and I find, that employees •with a
work record no better than Sommars' were not discharged. ,In view of the
precipitant nature of her discharge coming immediately after the union repre-
sentative's visit to the building and Sommars' active role on behalf of the Union
I am convinced on the basis of all the findings made herein that Sommars was
discharged for her union membership or activities. Strongly supporting this
conclusion is an admission by Respondent as to the discharge attributed to
r$wain by Beam, the union representative. This admission was made in Swain's
office a day or two after Sommars' discharge on the occasion of Beam' s meeting
with Swain in an unsuccessful attempt to get Sommars reinstated to her job.
It was Beam's testimony that he called Swain on the telephone on or about
April 30 informing him that the union had been in the process of organizing
the employees and that one of them had been discharged. Beam requested a
conference with Swain and met the latter at his office. After introducing him-
self to Swain Beam asked him whether or not Sommars had been fired because
of her union activity. Swain replied, "You goddamned right I fired her because
she joined the union and if any of the rest of them join the union I will fire
them."
Although admitting the meeting with Beam, Swain denied making the above
remark. His version was that Beam had not called to arrange a conference and
that the first he knew of Beam's presence was when the receptionist told him a
Mr. Beam was there to see him. Shown into Swain' s office Beam, without intro-
d5lcing himself or without any preliminary remarks whatsoever- said , "I under-
stand Mrs. Sommars has been fired," to which Swain replied, "Yes, that she
had been fired for inefficiency, and if there was any more like her they would
go too." Swain testified that at the time this exchange took place he did not
know, or have the least idea, who Beam was. To him Beam was a total and
complete stranger. In Swain's words, he didn't know "who (Beam) was or what
connection he had with Mrs. Sommars at all," adding, "I couldn't figure out why
it was any of his concern." Yet in spite of this Swain volunteered the informa-
tion as to why Sommars had been fired. It does not seem credible that a man
in Swain's position wondering as he did what connection Beam had with Som-
mars would have volunteered the information he claims to have volunteered. It
would seem more likely that the normal reaction, under the circumstances, would
be to ascertain what Beam 's connection was before discussing the matter with
him in any manner. For this reason, plus what I have previously stated in regard
to Swain's credibility, I credit Beam's version 24
24 That Sommars' discharge was actually executed by Wilson does not vitiate the effect
of this admission . While Respondent contended that Swain had no authority over the
building employees or over Wilson, and attempted to limit Swain's interest therein solely
to the interest of the tenants, the evidence leads to a different conclusion. Thus, contrary
to Swain's evasive denial that Wilson pretty generally took instructions from him, it ap-
Tears that Swain on more than one occasion issued independent orders or instructions
either to Wilson or directly to the employees. It is undenied that both tenants and em-
ployees of the Company came to him with complaints. There can be no doubt that it was
generally understood in the building that Swain's function in this connection was ulti-
mately more than to act as a mere conduit for such complaints in their transmission to
Wilson . Swain was a responsible executive of the Respondent . Besides being rental and
lease agent for the building, he was also collection manager for the Respondent, was a
stockholder in the Company, and signed the employees ' checks with Mr. Earl , the treasurer.
Wilson , when asked if he ever had had any instructions from Inhofe or anybody among
his super̀fors, ( emphasis 'sUpplied )' regarding company policy with respect to hiring or-firing
-where a question oif union activity was involved , answered that "they" never gave him
any such instructions . Asked to identify who he meant by "they" he answered, "Mr.
848 DECISIONS OF 'NATIONAL; LABOR RELATIONS-BOARD
In view of the foregoing, and considering the record as a whole, I.f(nd that a
preponderance of the evidence establishes that the reasons for Sommers' dis-
charge were not the reasons alleged in Respondent's answer, but that Sommars
was, in fact, discharged because of her union membership or activity, in viola-
tion of Section 8 (a) (1) and (a) (3) of the Act.
Interference, restraint, and coercion
The General Counsel adduced no evidence to support a finding that Respondent
kept its employees' union activities under surveillance or- warned them against
union membership as alleged in the complain. Whatever findings there are re-
garding Lowry's contacts with Respondent and the disclosures of Sommars' union
activity therein are found to have been solely on the basis of Lowry's own initia-
tive. Finding thus that Lowry's acts were unsolicited by Respondent and en-
tirely voluntary on his part, they cannot be considered a violation of the Act by
Respondent.
There is, however, credible and substantial evidence that Respondent did ques-
tion several of its employees about their union membership and activity. With
the exception of Rutledge who was asked by Wilson at the time he was hired if
he belonged to the Union, all of the interrogation occurred shortly after Sommars
was discharged. A few nights after the discharge, Wilson asked Tabor if she
belonged to the Union.
On cross-examination Wilson testified that a night or two after Sommars' dis-
charge he was "kidding" with Tabor and Maxwell about the Union and said,
"Well, you both belong to the Union now" (emphasis supplied). The remark
posed as a question regarding their union membership, constitutes, as does all
such questioning, a per se violation of Section 8 (a) (1) of the Act 2' Along the
same line was Wilson's testimony on direct examination to the effect that either
on the night Sommars was discharged or the following night he was "kidding
with a bunch there asking them if they belonged to the Union, and they said no ;
there wasn't one that would own up to even talking to the union man." This is a
clear admission as to interrogation by Respondent of its employees' union mem-
bership and activities. Throughout his testimony after admitting that he made
various remarks attributed to him, Wilson invariably passed them off as having
been made in a joking or kidding vein. I am convinced and find that they had
an undertone serious enough to be disturbing to the employees.
Occurring after Sommars' discharge was the occasion of Swain's calling Orcutt
to his office where she was questioned as to the presence of the union organizer
in the building and her membership in the Union. Swain admitted the question-
Inhofe or Mr. Swain, or anyone else who has authority of the building or the Company."
That Wilson himself looked to Swain as his superior is further supported by Wilson's
report to Swain regarding Sommars' discharge . As stated by Swain , he ". . . was
telling me about it so that the Company would know what went on ." Obviously, to
Wilson, Swain represented a superior level in the company hierarchy. Wilson's explana-
tion, in effect , was that he told Swain only for his personal convenience in knowing what
to expect in case Sommars came to him (Swain) "with a howl about being discharged,"
explaining that he had had several cases where discharged employees went to Swain about
the discharges, Wilson's version serves no purpose other than to indicate that the em-
ployees regarded Swain as having ultimate authority over them as well as over Wilson.
While the nominal authority to supervise , hire and fire and discipline the building em•
ployees was in Wilson, the foregoing substantial evidence shows that Swain was generally
considered as being in a supervisory or managerial category . See International Associa-
tion of Machinists, Tool and 'Die Makers , Lodge No. 85, et al . v. N. L. R. B., 110 F. (2d)
29, affirmed 311 U. S. 72.
25 Matter of Sewell Manufacturing Company, 72 N. L. R. B. 85.
TAI-STATE CASUALTY INSURANCE COMPANY 849
ing but attempted to explain it all on the basis of its possible connection with the
stealing that had been going op in the building. I find little merit in his
explanation.
In view of the foregoing and considering the record as a whole I find that a
preponderance of the evidence establishes that In addition to discharging Som-
mars»with the restraining and coercive effect,,on.her- fellow. employees' and her-
self, Respondent, by questioning Its employees as to their union membership and
activity, interfered with, restrained, and coerced Respondent's employees in the
exercise of rights guaranteed them under Section 7 of the Act thus violating Sec-
tion 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, in connection
with its operations described in Section I, above, have a close, intimate, and sub-
stantial relation to trade, traffic, and, commere e,^among the, several States and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, the Trial Examiner will recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent discriminatorily discharged Pearl
Sommars because of her Union activity. It will therefore be recommended that
the Respondent offer to this employee immediate and full reinstatement to her
former or substantially equivalent positional without prejudice to her seniority
or other rights and privileges, and make her whole for any loss of pay she may
have suffered by reason of the Respondent's discrimination against her by pay-
ment to her of a sum of money equal to that which she normally would have
earned as wages from the date of her discharge to the date of the Respondent's
offer of reinstatement, less her net earnings during said period.
Upon the basis of the above findings of fact and upon the entire record in the
case, the Trial Examiner makes the following :
CONCLUSIONS OF LAW
1. Building Service Employees' Union, Local 245, A. F. L., is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Pearl
Sommars, thereby discouraging membership in Building Service Employees'
Union, Local 245, A. F. L, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
11In accordance with the Board's consistent interpretation of the term, the expression,
"former or substantially equivalent position," is intended to mean "former position wher-
ever possible and if such position is no longer in existence then to a substantially equivalent
pgsition.",, See Matter of The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 N L R. B. 827.
850 DECISIONS•.OF NATIONALI LABOR "RELATIONS 'BOARD
5. Respondent has not kept its, empl6yeeW under surveillance or warned them
regarding their - union - activities within the, meaning . of Section 8 (a) (1) of
the Act.
RECOMMENDATIONS
Upon the above findings of fact and conclusions of law, upon the entire record
in the case, and pursuant to Section 10 (e) of the amended Act, the Trial
Examiner recommends that Tri-State Casualty Insurance Co., Tulsa, Oklahoma„
its officers, agents, successors, and assigns.shall;
1. Cease and desist from : -
(a) Discouraging membership in Building Service Employees' Union Local
245, A. F. L., or in any other labor organization of- its employees, by- discrimi-
natorily discharging, refusing to reinstate, or liy discriminating in regard to
their hire or tenure or employment, or any term or condition of employment;
(b) Interrogating its employees concerning their union affiliations, activi-
ties, or sympathies, or in any other manner - interfering with, restraining, or
coercing Its employees in the exercise of the rights to self-organization, to form
labor organizations, to join or assist Building Service Employees' Union Local
245, A. F. 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 protectipn, as
guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Trial Examiner finds
will effectuate the policies of the Act :
(a) Offer to Pearl Sommars immediate and full reinstatement to her former
or substantially equivalent position, without prejudice to her seniority or other,
rights and privileges, and make her whole in the manner set forth in Section V
above, entitled "The remedy" ;
(b) Post at its building in Tulsa, Oklahoma, copies of the notice attached
hereto, marked "Appendix A." Copies of the notice, to be furnished by the
Regional Director for the Sixteenth Region, shall, after being duly signed by
the Respondent's representative, be posted by the Respondent immediately
upon receipt thereof, and maintained by him for a period of at least sixty (60)
consecutive days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced, or cov-
ered by any other material ;
(c) File with the Regional Director for the Sixteenth Region within twenty
(20) days from the receipt of this Intermediate Report and Recommended
Order, a report in writing setting forth in detail the manner and form in which
the Respondent has complied with the foregoing recommendations.
It is recommended that the allegations in the complaint as to surveillance of
its employees' union activities and warnings regarding union membership of
its employees by Respondent be dismissed.
It is further recommended that unless on or before twenty (20) days from
the receipt of this Intermediate Report and Recommended Order, the Respond-
ent notifies said Regional Director in writing that he will comply with the fore-
going recommendations, the National Labor Relations Board issue -an order
requiring the Respondent to take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, Series 5, effective August 22, 1947, any party may,
within twenty (20) days from the date of service of the order transferring the
11
TRI-STATE CASUALTY INSURANCE COMPANY, 851
case to the Board, pursuant to Section 203.45 of said Rules and Regulations,
file with the Board, Rochambeau Building, Washington 25, D. C., an original
and six copies of a statement in writing setting forth such exceptions to the
Intermediate Report or to any other part of the record or proceeding (including
rulings upon all motions or objections) as he relies upon, together with the orig-
inal and six copies of a brief in support thereof ; and any party may, within the
same period, file an original and six copies of a brief in support of the Inter-
mediate Report. , Immediately upon the filing of such statement of exceptions
and/or briefs, the party filing the same shall serve a copy thereof upon each of
the other parties. Proof of service on the other parties of all papers filed with
the. Board, shall be promptly made as required by Section 203.85. As further
provided in said Section 203.46, should any party desire permission to argue
orally before the Board, request therefor must be made in writing to the Board
within ten (10) days from the date of service of the order transferring the case
to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and becomes its findings , conclusions,
and order , and all objections and exceptions thereto shall b@ deemed waived for
all purposes.
Dated at Washington, D. C., this 21st day of February 1949.
EunENE E . DIxoN,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant tb 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, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations , to join or assist BUILDING SERVICE EMPLOYEES' UNION LOCAL
245, A. F. 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.
WE WILL OFFER to Pearl Sommars immediate and full reinstatement to her
former or substantially equivalent position without prejudice to any seniority
or other rights and privileges previously enjoyed, and make her whole for
any loss of pay suffered as a result of the discrimination.
All our employees are free to become or remain members of the above-
named union or any other labor organization. We will not discriminate in
regard to hire or tenure of employment or any term or condition of employ-
ment against any employee because of membership in or activity on behalf
of any such labor organization.
TRI-STATE CASUALTY INSURANCE COMPANY,
Employer.
Dated------------------- By-----------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered , defaced, or covered by any other material.