Western Fishing Lines Co.

National Labor Relations Board - Board Decisions

Apr 2, 1953

103 N.L.R.B. 1408 (N.L.R.B. 1953)

1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WESTERN LACE & LINE CO ., D/B/A WESTERN FISHING LINES COMPANY
and TEXTILE WORKERS UNION OF AMERICA , CIO and WESTERN EM-
PLOYEES ASSOCIATION , PARTY TO THE CONTRACT
WESTERN LACE & LINE CO ., D/B/A WESTERN FISHING LINES COMPANY
and INTERNATIONAL ASSOCIATION OF MACHINISTS and WESTERN
EMPLOYEES ASSOCIATION , PARTY TO THE CONTRACT . Cia8e8 Not. 21-
CA-1280 and 21-CA-1332. April 2,1953
Decision and Order
On December 23, 1952, Trial Examiner Herman Marx 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 the Act, and recommending that it cease
and desist therefrom, and take certain affirmative action as set forth
in the copy of the Intermediate Report attached hereto. The Trial
Examiner also found that the Respondent had not engaged in certain
other alleged unfair labor practices, and recommended dismissal of
these allegations of the complaint. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this proceeding to a three member panel [Chairman Herzog and
Members Murdock and Peterson].
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
Respondent's exceptions and brief, and the entire record in this pro-
ceeding, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner.
Order
Upon the entire record in this proceeding, and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondent, Western
Lace & Line Co., d/b/a Western Fishing Lines Company, Los Angeles,
California, and its officers , agents , successors , and assigns , shall:
1. Cease and desist from :
(a) Interfering with the formation of any labor organization;
dominating or interfering with the administration of, or contribut-
I The Respondent 's request for oral argument is hereby denied as the record , Respond-
ent's exceptions and brief , in our opinion , adequately reflect the issues and the positions
of the parties.
103 NLRB No. 131.
WESTERN LACE & LINE CO. 1409
ing support to, the Western Employees Association or any other labor
organization; and giving effect to the agreement with the Western
Employees Association, dated December 28, 1951, additions thereto,
or modifications, extensions or renewals thereof, or to any successor
agreement with the Western Employees Association.
(b) Recognizing the Western Employees Association as the repre-
sentative of any of the Respondent's employees for the purpose of
contracting, negotiating, or otherwise dealing with the Respondent
with respect to wages, rates of pay, hours of employment, or any other
terms or conditions of employment.
(c) Discouraging membership by any of its employees in the Tex-
tile Workers Union of America, CIO, or the International Association
of Machinists, or in any other labor organization, by discriminating
in any manner in regard to the hire, tenure of employment, or any
term or condition of employment of any of its employees.
(d) Interrogating employees concerning union activities or their
union preferences, sympathies, or membership; threatening any em-
ployee with discharge or other reprisal if they do not induce other
employees to refrain from union activities; threatening employees
with discharge or other reprisal because of their union membership,
activities, preferences or sympathies; making statements to employees
that they would benefit or not be discharged if they form, assist, sup-
port, or join any labor organization which the Respondent dominates
or supports or in the formation or administration of which it inter-
feres; and discriminating among its employees in granting or denying
them privileges to engage in union activities on the Respondent's
property.
(e) In any manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to join or assist the Textile Workers
Union of America, CIO, or the International Association of Machin-
ists, to bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and to refrain from any or
all 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 Section 8 (a) (3) of the
Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Withhold and withdraw recognition from Western Employees
Association as the representative of any of the Respondent's employees
for the purpose of contracting, negotiating, or otherwise dealing with
the Respondent with respect to wages, rates of pay, hours of employ-
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment, or any other terms or conditions of employment; and completely
disestablish the Western Employees Association as such representative.
(b) Offer to Ruth S. Racine and Jeanne Garner, as set forth-in
section V, entitled "The Remedy," of the Intermediate Report at-
tached hereto, immediate and full reinstatement to their respective
former, or substantially equivalent, positions without prejudice to
their seniority and other rights and privileges, and make each of them
and Mary Gabrish whole in the manner prescribed in the said section.
(c) 'Post at its plant in Los Angeles, California, copies of the notice
attached to the Intermediate Report and marked "Appendix A." s
Copies of such notice, to be furnished by the Regional Director for
the Twenty-first Region of the Board, shall, after being duly signed
by the Respondent's Representative, be posted by the Respondent im-
mediately upon receipt thereof and be maintained by it for 60 con-
secutive 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 covered by any other material.
(d) Notify the Regional Director for the Twenty-first Region in
writing within ten (10) days from the date of this Order what steps
the Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that so much of the complaint be dismissed as
alleges that the Respondent unlawfully discharged and refused to
reinstate or reemploy Audrey Crain.
x This notice shall be amended by substituting for the words "The recommendations of
a Trial Examiner," the words "A Decision and Order." In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order."
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
On November 28, 1951, Textile Workers Union of America, CIO (referred to
herein as TWU), filed a charge in Case No. 21-CA-1280 with the National Labor
Relations Board (designated herein as the Board) against Western Lace & Line
Co., doing business as Western Fishing Lines Company (also referred to herein
as the Respondent or the Company). Various amendments to the charge were
subsequently filed with the Board by the TWU. On January 31, 1952, the Inter-
national Association of Machinists (referred to herein as IAM) filed a charge
with the Board against the Respondent in Case No. 21-CA-1332. The two cases
were subsequently duly consolidated pursuant to Section 102.33 (b) of the Board's
Rules and Regulations, Series 6. Based upon the charges and the amendments
referred to above, the General Counsel of the Board, on May 1, 1952, issued a
complaint in the consolidated cases alleging that the Respondent had engaged in
and was engaging in unfair labor practices affecting commerce within the mean-
ing of the National Labor Relations Act, as amended (61 Stat. 136), also referred
to herein as the Act. The General Counsel issued an amendment to the complaint
4
WESTERN LACE & LINE CO. 1411
on July 3, 1952. All parties to this proceeding have been duly served with copies
of the charges, the amendments to the charge filed by the TWU, the complaint
and amendment thereof, and the order consolidating the cases.
With respect to the claimed unfair labor practices, the complaint, as amended
on July 3, 1952, alleges in substance that : The Respondent, in violation of Sectiolt
8 (a) (1) of the Act, through various acts and statements of two named super-'
visors, interfered with, restrained, and coerced its employees in the exercise of
rights guaranteed to them by the Act; in violation of Section 8 (a) (1) and'
8 (a) (3), the Respondent discriminatorily discharged six employees, Ruth
Racine, Jeanne Garner, Mary Gabrish, Eleanor Gabrish, Audrey M. Crain, and
Roberta Epplen, and subsequently refused to reemploy them, because the said
employees exercised rights guaranteed to them by the Act ; the IAM, on or about
December 5, 1951, and the TWU, on or about December 28, 1952, respectively filed
petitions with the Board, each seeking certification of the filing union as collec-
tive bargaining representative of a unit of the Respondent's employees ; the Re-
spondent was notified of the pendency of the said petitions which raised valid
questions of representation ; the Respondent, in violation of Section 8 (a) (1) and
8 (a) (2), in December 1951, "did inaugurate, sponsor, promote and form" a labor
organization known as the Western Employees Association (referred to herein
as the Association), and has since dominated and interfered with the Association
and contributed support to the organization ; and, although previously notified "of
the pendency of the petition" filed by the IAM, the Respondent violated Section
8 (a) (1) and 8 (a) (2) by entering into a written agreement with the Associa-
tion on December 28, 1951, dealing with conditions of employment of the Respond-
ent's employees, and establishing the Association as the exclusive bargaining
representative of the employees, which agreement still remains in full force and
effect.
The Respondent and the Association filed separate answers. That of the
Respondent, as amended, admits the filing of the petitions by the IAM and TWU
and the execution of the agreement with the Association, but denies all of the
other allegations of the complaint, as amended, describing the alleged unfair
labor practices set out above. The Association's answer avers that : It is an
independent organization ; it was not inaugurated, sponsored, promoted, or
formed by the Respondent ; and the Respondent has not dominated, interfered
with, or contributed support to, the Association'
Pursuant to notice duly served upon all parties, a hearing was held on various
dates between July 22, and July 31, 1952, at Los Angeles, California, before me
as duly designated Trial Examiner. The General Counsel and the Respondent
were represented by counsel; the IAM and TWU by business representatives
respectively employed by them ; and the Association by the chairman of its board
of directors. All parties participated in the hearing and were afforded a full
opportunity to be heard, to examine and cross-examine witnesses, to adduce
evidence, to submit oral argument, and to file briefs. The General Counsel moved
during the early part of his case-in-chief for leave to amend the complaint to
set forth allegations that the Respondent had violated Section 8 (a) (1), 8 (a)
(3) and 8 (a) (4) of the Act by refusing to reemploy Crain because a charge
had been filed on her behalf with the Board. The Respondent opposed the motion
on the ground that it was not timely and prejudicial to the Respondent's rights.
The motion was granted. In so doing, I pointed out that the complaint already
1 Neither answer is under oath, as required by Section 102.21 of the Board' s Rules and
Regulations, Series 6 I have, however, treated the answers as though they conformed
to the requirements of Section 102.21.
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleged that the Respondent had discriminatorily refused to reemploy Crain in
violation of Section 8 (a) (1) and 8 ( a) (3), and that the amendment requested,
substantially sought to conform the allegations of the complaint to evidence
which had previously been adduced by the General Counsel, and that if at any
time during the course of the proceeding the Respondent found that it was at
a disadvantage because of the granting of the motion , it would be appropriate
to move for additional time in which to prepare its case and its application would
be given such equitable consideration as the circumstances warranted. The
Respondent did not thereafter apply for any continuance or additional time in
which to address itself to the amendment ? The General Counsel also made
motions, without objection , to dismiss so much of the complaint as alleges that
Eleanor Gabrish and Roberta Epplen were discriminatorily discharged and
denied reemployment ; to conform the pleadings to the evidence with respect to
matters of form such as dates and the spelling of names and places ; and to
amend all pleadings to substitute for the name "Western Fishing Lines Com-
pany" wherever it appears therein, that of "Western Lace & Line Co., d/b/a
Western Fishing Lines Company ." The motions were granted . After the close
of the evidence , the Respondent moved to dismiss the allegations of the complaint
bearing on the alleged discharge and refusal to reemploy Audrey M. Crain.
Decision was reserved on the motion for disposition in the Intermediate Report.
Findings and conclusions set forth below dispose of the motion . The parties
waived oral argument upon the evidence . The General Counsel and the Respond-
ent have filed briefs which have been read and considered . The charging parties
and the Association have not filed briefs.
Upon the entire record and from my observation of the witnesses , I make the
foil )wing :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
iVestern Lace & Line Co. is a corporate enterprise which is engaged, at Los
Angeles, California, under the firm name and style of Western Fishing Lines
Company, in the manufacture of cords, lines, and ropes. In 1951, the Company
manufactured such products at a value in excess of $100,000, employing approxi-
inately 120 persons in its enterprise. During that year it manufactured material
for use as parachute rip cords at a value in excess of $50,000, and sold the same
to the United States Government. The Respondent and the Association do not
c ispute, and I find, that the Company is, and has been at all times material to
I his proceeding, engaged in interstate commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Textile Workers Union of America, CIO; International Association of Macliin-
ists ; and Western Employees Association admit persons employed by the Re-
spondent to membership and are labor organizations within the meaning of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
Among the Company's departments are two which are respectively known as
the braiding and twisting departments . The Company uses 3 shifts of employees
in the braiding and twisting operations ( the record does not establish the extent
2 In connection with the motion for amendment , see American Newspaper Publishers T_
N. L. R. B ., 193 F. 2d 782 (C. A. 7).
WESTERN LACE & LINE CO. 1413
to which the practice prevails in other departments). During relevant periods in
the fall of 1951, the hours of the day shift were from 7: 30 a. in. to 3: 30 p. m. ;
those of the swing shift from 3: 30 p. in. to 11: 30 p. in.; and those of the grave-
yard shift from 11:30 p. in. to 7:30a. in. As of December 18, 1951, 57 employees
were employed on the day shift ; 34 on the swing shift ; and 32 on the graveyard
shift. The operations in the braiding and twisting departments are continuous,
and the machines, which are power-driven, are not shut off with each change of
shifts. To facilitate continuous operation, operators on a given shift in these
departments, at least, are required to be at their work stations a few minutes
before the preceding shift ends.
The name of the president of the Respondent is David Lippey. He controls
the operations of the Company, including its production, personnel, and labor
relations policies. The superintendent of the plant, prior to the end of his em-
ployment in 1952, was Frank Zimmerman . He had authority to hire and dis-
charg-, employees and was in charge of the Company's production operations
under Lippey's supervision. The plant does not appear to have employed a day-
shift foreman, and during that shift Zimmerman performed the functions of a
foreman. At least during the fall and winter of 1951, the swing and graveyard
shifts each had foremen who responsibly supervised and directed the employees
on their respective shifts and had authority to discharge them. The swing-shift
foreman, prior to his transfer to another position in the plant in 1952, was a man
named Frank Hall. John Cross, who is still employed in that capacity, was fore-
man of the graveyard shift. Although Zimmerman usually left the plant before
the end of the swing shift and arrived after the graveyard shift ended, he exer-
cised supervision over Hall and Cross. It is undisputed, and I find, that Zimmer-
man, Hall, and Cross were, in the exercise of their functions described above,
supervisors within the meaning of the Act.
In accordance with plans developed previously, the Company, on or about No-
i ember 10, 1951, installed an incentive system upon which the compensation of
braiding operators was based. At or about the same time, the Company desig-
nated some of the operators (who were all women) as "supervisors." Those
appointed for the twisting department, either at that time or in any event prior
to December 18, were Claribel Hiersemann on the day shift ; Joyce Hediger on the
swing shift ; and Olive Wright on the graveyard shift. Mary Davis and Helen
Davis (apparently no relation to Mary) were respectively appointed as braiding-
department supervisors for the swing and graveyard shifts. The evidence indi-
cates that in the fall of 1951, each of the 2 departments, at least on the swing
shift, employed about 8 persons, in addition to the so-called supervisor, although
some of the evidence suggests a smaller number for the braiding department at
one point in November (see Racine's testimony). The work of the twisting and
braiding operators does not require any special skill. In the main, the operators'
duties consist of watching their machines as the nature of the operations requires,
keeping the machines supplied with thread, and, in the braiding department,
inspecting the product for defects. The individuals designated as supervisors
were paid at hourly rates. In the braiding department, operators on the swing
shift earned more than the employee classified as a supervisor (the record does
not reflect a comparison of the earnings of other operators and those designated
as their supervisors).
One of the issues in this proceeding is whether the women appointed as super
visors were in fact such within the meaning of the Act. The functions of the
employees designated as braiding-department supervisors substantially consist
of instructing employees unfamiliar with the machines in the method of operation
and the type of supplies required ; helping operators to locate defects in their
257965-54-vol. 103-90
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
machines or telling them where the difficulties lay if machines "went wrong" ;
bringing thread to the operators; inspecting the braid for defects; taping the
braid to identify such faults, and repairing it if feasible ; requesting the oper-
ators, where necessary, to "watch the work a little better" ; making a record at
the end of the shift, on forms supplied for that purpose, of the number of defects
attributable to each operator's work, noting whether she or the machine had
been at fault; and working at the machines as relief for operators during lunch
and rest periods. The duties of the individuals classified as twisting-department
supervisors are to "see that they (the operators) have their thread and get their
spools"; request the foreman to substitute a "utility girl" for any absentee;
assign the substitute furnished by the foreman to the absentee's machines ; inspect
the thread ; oil the machines ; relieve operators and work at the machines during
lunch and rest periods and absences (if no utility girl is available) ; weigh the
thread produced by operators ; and record the production of the operators, as well
as related matters, on worksheets at the end of the shift, so that their earnings
could be subsequently computed by the Company a
The fact that the Company classified the employees in question as supervisors
is not decisive of their status. The factors which control are their functions
and duties, and the authority which they exercise.' From the record as a whole,
it is evident that once the operators became familiar with their duties, as
Hiersemann put it in describing her department, "the girls usually knew what
they were supposed to do." In that setting, bearing in mind the repetitive and
substantially routine nature of the operators' functions, although the so-called
supervisors held a status somewhat superior to that of the operators, the record
will not support it conclusion that those classified as supervisors "responsibly"
directed the work of other employees, nor that they performed any of the other
functions described by Section 2 (11) of the Act as supervisory in nature.'
Viewing the record as a whole, I find that the employees, who were classified
as supervisors in the braiding and twisting departments, were not supervisors
within the meaning of the Act
B Baokground of opposition by the Respondent toward unionization of its
employees
The nub of the General Counsel's claims concerning the Association is that
the Respondent promoted and supported the Association to defeat the employees'
right of self-organization and to frustrate independent union activities in the
plant. In support of that and other contentions, the General Counsel presented
testimony that the Company was hostile toward participation by its employees
in union activities and implemented its hostility with unfair labor practices.
In or about the early part of 1951, the IAM engaged in some organizational
activity among the employees. Mary Davis, her sister, who was then in the
S I have based the findings with respect to the duties of the braiding- and twisting-
department supervisors on applicable portions of the testimony of Joyce Hediger, Helen
Halls, Mary Davis, and Claribel Hiersemann.
* Among other cases, see Cinch Manufacturing Co., 98 NLRB 781.
a Foreman Hall stated at one point that Mary Davis "could recommend firing" employees
Hall described no instance when Davis made such a recommendation, and she testified
that she had no such authority and made no recommendations that any employees be dis-
charged. In the absence of any evidence that Davis in fact made such recommendations,
and in the light of the record as a whole, the weight of the evidence does not establish
that Davis could "effectively" recommend discharges
For reasons of convenience, and in order to avoid confusion, the employees designated
by the Company as supervisors will be referred to below as "lead girls." The Respondent
asserts that that title describes their status.
WESTERN LACE & LINE CO. 1415
'Company's employ, and Joyce Hediger signed cards for the IAM (presumably
authorizing the union to represent them) . On February 6, 1951 the Respondent
sent a letter, signed by Lippey, to substantially all of its employees. Among
other things, the letter stated: "Let us solve our problems among ourselves. We
alone are best qualified to understand these problems. Do not let outsiders tell
you otherwise." (The emphasis appears in the original letter.) The communi-
cation made no specific reference to unionization, but it may be noted that it
was sent at or about the time that the IAM was endeavoring to organize the
plant, and it is quite clear from the tenor of conversations Lippey had with em-
ployees shortly after the letter was sent out that its intendment was to urge
employees to give no heed to the organizational efforts then in progress.
The letter was followed by private interviews with employees whom Lippey
summoned to his office for that purpose. There was some discussion, at least
with some of the employees who testified, concerning working conditions and
their opinion of the shop foremen, but the interviews were not limited to such
matters. During the course of the conversations, he interrogated employees
concerning their attitude toward unions or whether they had signed union cards.
He asked Mary Davis how many employees had signed union cards, telling her
that he "wouldn't fire any girl at all," but "just wanted to know how many
had signed the card."' In talking to Davis, he made reference (not elaborated
in the record) to the "good" and "bad points about the union," but stated that
he did not "want any union in the plant" and that he "could work out things
better" for the employees. Hediger told Lippey, in response to his inquiry, that
she "had sent in a card to the union," to which he replied that it did not matter
whether she had sent in a card, that she could "always change" her mind, that
the Company did not "want a union in here," and that "we can work out our
own problems among ourselves." Similarly, during the course of the interview
with an employee iianied Dorothy Gingery in February 1951, he asked her if she
"had heard any talk about any union," to which she replied that she "had heard
some." He then inquired how she "felt about a union," and she responded that
she "didn't particularly care about a union in the shop." He thereupon stated
that he "couldn't have a union . . . wouldn't have a union, and it had to be
stopped."' The record does not establish the full scope of the union activity
at the plant during the general period of the interviews in the early part of 1951,
but the evidence indicates, as Mary Davis put it, that "later on . . . the union
just completely faded out."
The IAM resumed its organizational efforts at the plant in the fall of 1951.
The evidence does not establish precisely when it began again to try to interest
7I make no findings that Lippey's interrogation of the employees described above vio-
lated Section 8 (a) (1). It may be noted that the interviews occurred more than 6 months
prior to the filing of the first charge and are thus controlled by the limitation contained
in Section 10 (b) The findings made, however, are relevant to the Respondent's attitude
toward unionization of its employees and as background of the formation of the Associa-
tion, and the Company's relations with the organization, in a setting of later efforts of
the IAM and TWU to organize the employees.
8 Findings with respect to the interviews held by Lippey, shortly after the letter of
February 6, 1951, was sent to the employees, are variously based on testimony given by
Joyce Hediger, Helen Halls, Mary Davis, Jeanne Garner, and Dorothy Gingery It may
be noted that this phase of their testimony is uncontroverted. Lippey entered no denial
,of the relevant statements imputed to him. He described some conversations with
employees in or about November 1951, but it should be borne in mind that his testimony
is silent with respect to interviews held shortly after the letter was sent, and I am unable
to assume that the conversations to which Lippey testified were those held some 9 or 10
months earlier , as described in the testimony of the employees Be that as it may, the
testimony of Hediger, Halls, Mary Davis, Garner, and Gingery impressed me as credible
and I have made my findings accordingly.
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees in unionization, but there appears to be no dispute that such efforts
were in progress during the early part of November. Among other activities, the
union engaged in the distribution of leaflets or other literature to employees in
front of the plant. Toward the latter part of November, the TWU also com-
menced organizational activity among the employees, passing out leaflets to
them outside the plant. These were first distributed on or about November 20.'
As Lippey testified, he witnessed the distribution of union leaflets, "on lots of
occasions" in November.
On November 21, 1951, the Company received in the mail a registered envelope
from the IAM, containing a letter dated November 19, 1951, and addressed for
Lippey's attention, which stated that the union represented a majority of the
Company's employees, and requested recognition and a meeting for bargaining
negotiations. Lippey claims that he did not personally see the letter and that
it was forwarded unopened to the Company's attorney (whether such a claim
is credible need not be decided at this point). The IAM local incorporated the
substance of its letter in a statement addressed to the Respondent's employeeg
and sent it to Jeanne Garner, one of its active adherents in the plant, who posted
it on the plant bulletin board on or about November 20. The posted material
was removed by some unidentified person the following day.
Ruth S. Racine, an employee who was an adherent of the IAM early in 1951„
as well as in the fall of that year, during the second period of the union's
activity, placed a "stack of (its) cards" (from the context of the testimony,
apparently cards authorizing the union to represent employees) in the rest-
room." The cards were subsequently transferred to the lunchroom. Foreman
Hall found them there and destroyed them, stating "Who put these goddam thing&
here?"" It is unnecessary to dwell in detail on the matter at this point, but as
will appear later, the evidence establishes that the Company, to say the least,
accorded favored treatment to the Association, while discouraging the organiza-
tional efforts of the JAM and the TWU. Among other things, foremen in one
form or another evidenced an attitude of favoritism toward the Association;
lead girls, whom the Company classified and held out as supervisors, were active
within the plant in the formation of the Association or facilitated its activities ;
and several employees freely used the lunchroom, as well as working areas, of
the plant in seeking adherents for the Association. In that setting, I find that
Hall's destruction of the cards, and his statement while doing so, violated Sec-
tion8 (a) (1) of theAct.12
On the evening preceding the first distribution of leaflets by the TWU, Hall
had a conversation with the lead girls, Joyce Hediger and Mary Davis, who
worked under his supervision. He summoned the two women from their work
9 Garner expressed the belief that the distribution occurred on the Tuesday preceding-
her termination on a Saturday . Counsel stipulated that she was discharged on Saturday,
November 24. The preceding Tuesday fell on November 20.
1° It is not clear from Racine 's testimony precisely when this occurred . Her testimony
suggests at one point that she became active again for the IAM in or about the second
or third week in October. She expressed uncertainty as to the date. At all events, I find'
that the Incident in question occurred at some point during the IAM's second period of
organizational activity.
11 Findings respecting the placement and destruction of the cards are based on Racine's
credited testimony. Hall denied that he destroyed any union literature In the lunchroom
It may be noted that Hall testified at one point that he "was told to beware of all unions"
and that the management "didn't want any." For reasons which will appear later, I do
not credit his denial.
12 N L. R B v. M. E Blatt Co., 143 F. 2d 268 (C. A. 3), certiorari denied 323 U. S 774 ;
N. L. R B. v. Peyton Packing Co., 142 F. 2d 1009 (C. A 5), certiorari denied 323 U. S_
730 ; N. L. R B v. Harbison-Walker Refractories Co., 135 F. 2d 837 (C. A. 8) ; N. L. R. B_
v American Furnace Co., 158 F. 2d 376 (C. A 7).
WESTERN LACE & LINE CO. 1417
to the plant lunchroom and told them that this was a personal conversation and
that Lippey would not know about it. Hall expressed disapproval of unions
and stated that Lippey was "pretty disturbed" about "this union business." He
pointed out that Hediger and Davis were "company girls," and suggested that
they "talk those girls (the employees) out of joining the union," and he proposed
that they find out what the employees "really wanted" and talk to Lippey who
"would straighten things out for us and see that we would get what we wanted."
Hediger stated that she "didn't particularly care to go in and talk to him"
because she had done so once before, and "it didn't do any good." Hall's reply
-was that the management believed that Hediger's mother, who worked on the
day shift, was involved in union activity, and he asked Hediger whether she
wanted her mother "to get in bad with Mr. Lippey." Hediger was surprised by
the statement concerning her mother, but said nothing. Hall then excused the
two women and they returned to their work."
The next evening Lippey called Davis and Hediger Into his office. The
employees' accounts of what was discussed differ substantially from Lippey's
version. As it appears in the testimony of both employees, or in one or the
other of their versions, the following is a summary of significant aspects of their
accounts of the discussion: Lippey told Davis and Hediger that he wished
to discuss union matters with them, and the reaction of the plant's employees to
the incentive plan and other working conditions. He asked what "the girls would
like," and Hediger replied that there was some dissatisfaction because employees
on the day shift were earning more under the incentive plan than those on the
other shifts, and Davis expressed the thought that because of the 6-day week
in effect, the employees would like to have an additional day off during the
month. Lippey stated that he would look into the matters and see what could
be done about them. During the course of the conversation, he displayed a
"CIO" pamphlet or circular which had been distributed to employees earlier
in the day and expressed disapproval of unions, pointing out that a union had
organized a certain plant, that he had investigated the matter, and had found
"an awful mess" which he did not wish "to happen at my place." He stated
that the Respondent's plant did not need a union, asserting that "we could
work out our own problems." He pointed out that he had given Davis and
Hediger appointments as supervisors, that he had confidence in them and that
they were a part of management and could not belong to a union, and he proposed
that they "talk the company up to the girls," stating that if they did not wish
to do so, he "would get somebody else that would." Lippey also stated that he
would have to discharge some of the "older girls and bring in new ones because
of this trouble that is always going on." Pointing out that "this union is a bad
deal" he told Davis that "we had one instance here and we had to get rid of your
sister" (Irene Long who had formerly worked for the Company). Hediger
stated that she had heard that her mother had been "accused" of union activity
Is Findings concerning the conversation with Hall are based on a synthesis of credited
testimony by Hediger and Davis. Hall's testimony contains no description of a conversa-
tion with Hediger and Davis jointly, although he denied in blanket fashion that he had had
any conversation with Davis "with respect to union activity." As will appear, it is
undisputed that Davis and Hediger were subsequently jointly summoned to Lippey's office
where they discussed union activity with him, although Lippey's version differs substan-
tially from the accounts of Davis and Hediger. This circumstance contributes plausibility
to the claim of both women that Hall discussed union activity with them and proposed
that they talk to Lippey about it. Moreover, as noted earlier, Hall testified that he "was
told to beware of all unions ," and that the Company "didn't want any." I do not credit
Hall ' s denial . For reasons which will be set forth later , I regard the testimony of Hediger
and Davis as credible , and attach no decisive weight to variances between their versions,
and I have drawn upon the testimony of both as a basis for findings.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that she might be discharged for that reason. Lippey replied, in effect„
that he would require proof of such activity before he would discharge am
employee.
Lippey's version of the conversation is contained in the following excerpt from,
the record :
THE WITNESS: Well, I pointed out to these girls that night that I consid-
ered them being supervisors, as a part of management, that I saw no reason,
why I could not express my mind to my management, and that I did not
think that they should take part in any of the union activity that existed.
At least, I didn't think that they were eligible to join any union, and that
they had a certain amount of authority in their departments which made
them a part of management.
I also recall in the conversation, after requesting them what was wrong
among the girls, what is it that perhaps could be improved for their benefit.
And I don't recall whether it was Mary or Joyce, or maybe both of them, I
think both of them, that stated that girls are tired of working six days a
week, that they want to work five days a week. I remember that part of it.
I stated that we couldn't afford to cut down at that time because we were
so far behind, but we would try to figure out some means of allowing the
girls off one day, one day off a month, or some manner, to give them some
additional time for themselves. That is all I recall about that conversation.
s s s s s s •
Q. (By Mr. Collins) Did you express to them what your personal attitude
was toward unions and the employees joining unions?
A. I think I made a general statement in most of my statements in regard
to it, that, especially when I spoke to supervisors or foremen, they must
always remember that the company cannot in any shape, way or form take
part in any of the union activity. They can't coerce anybody to join or not
to join any of the unions. I remember saying that to them.
Q. Did you tell them what your personal feelings were towards a union?,
A. Well, I told them unions were all right. As far as I knew, in many,
cases they had done a lot of good. I didn't know how particularly they were
important to our plant and whether we needed it, but that was just a per-
sonal opinion.
On the issue of credibility, some comments concerning Davis, Hediger, Lippey,
and their testimony are appropriate. In evaluating Davis' testimony, I have
given consideration to the fact that she once signed a card for the IAM and
evinced an interest in unionization of the plant by that organization. It may be
noted, however, that the record suggests that she voluntarily quit her job and
that there is no evidence of a current connection with either charging union. She
impressed me as a forthright witness. Moreover, much of her testimony is sub-
stantially corroborated by Hediger. Although Hediger had also evinced an
interest in unionization, it may be noted that she is still employed by the Company
in a preferred position. The fact that Hediger testified adversely to the Respond-
ent's interest, while so employed, contributes substantial weight to her testimony.
There are facets of Lippey's testimony, viewed as a whole, which militate
against acceptance of his version. His testimony on direct examination con-
tains a considerable amount of self-serving generalization which conveyed the
impression that he was disposed to treat evasively with the vital Issues in the
case rather than to give an objective and forthright account of events in which
he was involved. There were a substantial number of occasions during his
cross-examination when he professed an inability to recollect events, although
WESTERN LACE & LINE CO. 1419
it appeared to me, in the light of his evasive demeanor, that his recollection
was substantially better than he would admit. Substantial portions of his
testimony conveyed a note of reservation or qualification, either in tone or con-
tent, which, in the light of his demeanor, suggested a lack of frankness. For
example, on the important question whether the Company had recognized the
Association, notwithstanding its receipt from the Board of a copy of the IAM's
petition for representation, he was asked if a copy of the document came to his
attention, and he replied : "I don't recall this document." He was then asked
whether he recalled the receipt of "any document or group of documents" from
the Board early in December 1951, and he responded : "I recall some communi-
cations, I think from the National Labor Relations Board . I think I remember
a couple of them remained unopened for awhile. I think I subsequently turned
them over [unopened] to Mr. Collins" (Respondent's counsel). Later, after it
was indicated to him that it had been stipulated by counsel that copies of the
petition for representation had been received by the Company's mail clerk in
the regular course of mail, he testified without any note of reservation that he
had instructed the clerk to send all communications from the Board unopened
to Collins, and that such mail was sent to the attorney. It may be noted in
passing that he recalled "some registered letters, I think" from the Board, that
he was aware that they were from an agency of the Government, and that
notwithstanding these circumstances, he explained that he did not open the
envelopes from the Board because "I didn't attach any importance to them."
One more facet of his testimony may be noted here. On the question whether
he was aware of union activity in his plant when he wrote the letter of Febru-
ary 6, 1951, he was asked what prompted him to make the reference in the letter
to "outsiders," and he testified : "It is hard to remember that far back. But it
is possible that some of our problems were created by some interference from
people who knew nothing about our business. Perhaps some of our people were
being talked to by baseball players or race track operators, to tell them how they
ought to work in a plant manufacturing shoe laces. . . ." To a subsequent
question whether in his reference to "outsiders" he had in mind organizational
activity by a union, he replied : "I don't know, sir. I don't think so," and
when asked again what caused him to refer to "outsiders," he testified: "I
think it is a phrase that is used quite frequently by my wife, to be quite frank
with you. When outsiders attempt to interfere in family affairs, she says `Why
let outsiders interfere with what is none of their business?' " Then to an in-
quiry whether any "outsiders" had attempted to interfere with his affairs or
the employees, he responded, "I don't know, sir." The evasive tenor of Lippey's
testimony with respect to the letter is quite apparent and requires no additional
comment. In sum, I regard Lippey as an evasive witness and, in the light of
my appraisal of Davis and Hediger, I am unable to credit his version of his
conversation with them.
In determining what passed between Lippey and the two employees, I have
taken into account differences between the versions of Davis and Hediger, al-
though it may be noted that there is substantial accord between the two with
respect to most features of the conversation. The fact that one employee
touches upon a matter which the other omits, or that they differ in phrasing
their descriptions, does not mean that any significant portion of the testimony
of either witness should be rejected. Identical accounts by witnesses to a given
event are often rendered suspect precisely because of complete agreement be-
tween the witnesses in their descriptions, and, conversely, variances between
them frequently suggest an absence of rehearsal and thus contribute weight
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the testimony. Both Davis and Hediger are credible witnesses, and with
respect to their versions, respectively describing their conversations with both
Lippey and Hall, I am convinced that the statements described by each (Davis
and Hediger) were made in substance, notwithstanding the fact that one de-
scribes a statement which the other omits or that they paraphrase statements
in different terms. Basing my conclusions on a synthesis of the credited testi-
mony, I find that the summary of the combined versions of Davis and Hediger,
outlined above, reflects substantially what was said and done in Lippey's office
during the discussion.
In November 1951, after the TWU had begun its organizing efforts, Lippey
approached Dorothy Gingery, while she was at work on the swing shift as a
braider operator, and asked her if she had been "bothered by the union boys."
She replied "not particularly," and he made the observation that he had infor-
mation that union representatives "were visiting a lot of the homes, seeking
out the girls to get them to join." Gingery asserted that she had not "been both-
ered." The noise made by the braiding machines interfered with the conversa-
tion, and Lippey asked Gingery to step "outside" (apparently out of the build-
ing). When they were outside, he asked Gingery if she "knew of any of the
girls that were for a union." She replied, "That is something, Mr. Lippey, I
couldn't tell you, if I did know it," but she also stated that "there are some
girls that are for a union." Lippey then asserted that he would not have a
union in the plant and would "do anything to prevent" its establishment there.
He also stated that he had "moved down from San Francisco because of union
activities up there." She replied, "Well, Mr. Lippey, that is your affair. But
that is something you can't do, is suppress people from speaking their minds."
The conversation ended after a statement by Lippey that he wanted "to weed
out everyone I feel that is for any union," and that "it is hard to know who to
weed out." 14
Some of the statements made by Lippey and Hall to Davis and Hediger, and
by Lippey to Gingery, were violative of the Act. I find that the Respondent
violated Section 8 (a) (1) of the Act as a consequence of Lippey's proposal to
Davis and Hediger that they "talk the company up to the girls" and his intimation
14 Findings respecting the Lippey-Gingery conversation are based on Gingery's testimony.
She agreed that she was "active in attempting to organize either the AFL or the CIO at
one time" (in the plant, from the context of her testimony). In evaluating her possible
interest, I have also given consideration to the fact that she is currently employed by the
Company, and is now a member of the Association and one of its shop stewardesses. I
think it plausible that Lippey sought her out for the type of conversation she describes,
for it may be recalled that about 10 months earlier she informed him, in response to his
interrogation , that she had heard some talk about a union and that she "didn't particularly
-care about a union in the shop." Lippey gave a version of a conversation with Gingery
in November 1951, but claims it occurred in his office. He denied that he said anything
about "weeding out" union members or preventing the organization of the plant, and he
expressed the thought that Gingery first brought up the subject of unions The gist of
his version is that she told him that she had been a "war nurse" in the "Far Pacific," that
she had seen men die "like flies" because of lack of medical supplies caused by strikes,
that she "hated unions" ; and that she recommended a friend to handle the Company's
labor relations . In rebuttal , Gingery stated that she had been a WAVE, and had so
informed Lippey on a much earlier occasion ; and that she had served as a radio operator
and not as a nurse or in a hospital ; and she denied that she expressed "any opinion about
unions, strikes and the war effort ," or that she had ever said anything to Lippey about
"supplies getting out in the Pacific ." Lippey's version strikes an implausible note. For
all that appears in his account , the conversation appears to have consisted primarily of a
tirade by Gingery with almost no participation by him in the discussion, although he
claims that he summoned Gingery like many others , " individually or in pairs," to discuss
"problems relating to our production ." I do not credit Lippey 's version.
WESTERN LACE & LINE CO . 1421
that they would be replaced if they failed to do so ; " his statement in effect that
Davis' sister had been discharged for union activity ; his assertion in connection
with Hediger's claim that her mother had been unjustly accused of union activity
that he would not discharge anyone for that reason in the absence of proof of
such activity, thus conveying the meaning that where sufficient proof of union
activity by an employee was present, be would discharge such an individual ;
his interrogation of Gingery whether she "had been bothered by the union boys"
and whether she "knew of any of the girls that were for the union" ; and his
statements to Gingery that he would "do anything to prevent having a union
in the plant" and that he wanted "to weed out everyone I feel that is for any
union." The sense of the credited evidence of Hall's conversation with Davis
and Hediger is that after Hediger expressed a disinclination to talk to Lippey,
he intimated that her mother would suffer some reprisal for purported union
activity. Viewing the conversation as a whole, as in the case of Lippey's some-
what similar statements on the following day, I find that the Respondent violated
Section 8 (a) (1) as a result of Hall's proposal that Davis and Hediger "talk
the girls out of joining the union," and his intimation that Hediger's mother
would be subject to reprisal because she had engaged in union activity.
C. The formation of the Association and the Respondent's relations with the
organization
The Respondent presented testimony that the plan of forming the Association
was conceived by two employees, Pete Smith and Valeria Painter, both of whom
were employed on the day shift. Smith and Painter denied in effect that the
Company rendered any assistance to the Association, and it is the position of
both the Respondent and the Association that the latter is an independent labor
organization which was formed, and has since existed, without any support,
assistance, or interference by the Respondent. Reference has already been made
to the General Counsel's claim concerning the Association. The several con-
tentions may be appraised not only against the background of the evidence dis-
cussed above, but in the light of a series of events which followed the receipt by
the Company of the IAM's letter of November 19, 1951. These events will be
discussed below.
On December 5, 1951, the IAM filed a petition with the Board requesting cer-
tification as the collective bargaining representative of the Company's produc-
tion and maintenance employees. A copy of the petition was sent to the Com-
pany by regular mail and received by it on December 10, 1951. As noted above,
Lippey claimed at the hearing, as he did in the case of the IAM's letter, that
he could not "recall" a copy of the petition, testifying at a later point that he
had instructed the mail clerk to send all mail from the Board "unopened" to
the Company's attorney. It may also be noted that on December 26, 1951, the
TWU also sent a registered letter to the Company, stating that the union repre-
sented a majority of the employees and requesting recognition and collective
bargaining negotiations. That letter, which was addressed to "Mr. David Lip-
16 Lippey's request that Davis and Hediger "talk the company up to the girls" was at
least by implication a proposal that they use their status to discourage the other employees
from becoming interested , or engaging , in union activity. It is unnecessary to determine
whether such a proposal, without more, would violate Section 8 (a) (1). Lippey's request
was coupled with a warning that Davis and Hediger would be replaced if they failed to-
comply, and made in a setting of intimations that employees engaging in union activity
would be discharged. In such circumstances, it seems clear that Lippey's request was
part of a course of conduct which would reasonably tend to interfere with, restrain, and
ooarce Davis and Hediger in their right to exercise their statutory guarantees.
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pey Western Fishing Lines Co." ( the envelope is not in evidence ), was delivered
in the mail to the Company's mail clerk at the plant on December 27, 1951.
On December 28, 1951, the TWU also filed a petition for certification with the
Board, and a copy which was thereafter sent to the Company was received at
the plant by its mail clerk on January 2, 1952, in the ordinary course of mail.
As in the case of the IAM's letter and petition, Lippey asserted at the hearing
that he could not "recall" the TWU's letter and its petition, and that envelopes
containing these documents were forwarded by the mail clerk , under his in-
structions , to the Company 's attorney . Later reference will be made to this
phase of Lippey's testimony.
Between the beginning and middle of December 1951, Painter solicited signa-
tures from employees in the plant to a document which she had typed (the record
refers to the instrument as a petition and will be so designated here for con-
venience of reference). The petition sets forth certain objectives such as in-
creased wages and improved working conditions and purports to be a designa-
tion of the Association by the signatories as their bargaining representative,
and an application for membership by those signing it 1° Painter was assisted
in soliciting signatures by others , including Ruth Swallow 1T and Marion Dis-
berry, who worked on the swing shift, and Helen Davis, the braiding room lead
girl on the graveyard shift. Painter did not confine her organizational efforts
to the day shift, but solicited signatures from employees in the lunchroom and
restroom at night. The sense of testimony by Painter and Swallow is that they
did not, respectively, seek to interest other employees in the Association during
the working time of such employees. The credible evidence is to the contrary.
"The actual date in December when circulation of the petition began is uncertain.
Painter placed it in the "first part of December." Ruth Swallow, who helped circulate
it, expressed the belief that Painter gave her the petition about December 1. Geneva
Fletcher testified that Painter broached the subject of "a little organization " to her about
the middle of December . Gingery stated that the petition was circulated about a week
before a certain meeting of the Association which was held on December 18. It is undis-
puted that the signatures were solicited after the IAM and TWU began their organizing
efforts, and , as will appear , that the actual incorporation of the Association ( about De-
cember 14 ), its written request for recognition ( December 12), its first meeting ( Decem-
ber 18 ), and its bargaining meetings with the Company which culminated in an agreement
with the Company on December 28, came after the Company received the IAM 's request
for recognition and a copy of its petition for certification.
1T Mary Davis and Dorothy Gingery gave testimony in which each asserted that from
her work station she saw Swallow and Lippey in conversation during the swing shift near
Lippey's office It is not clear whether Davis and Gingery purported to describe the
same occasion. Davis testified that she saw Lippey hand Swallow a document ; that a
short while later that evening Swallow asked her to come to the lunchroom to talk about a
"company union "; that she ( Davis ) accompanied Swallow to the lunchroom before the
regular rest period ; and that upon arrival there Swallow asked her to sign the petition.
Gingery testified that she did not see Lippey give Swallow anything and that later that
evening Swallow solicited her signature in the lunchroom during her ( Gingery's) rest
period which was scheduled at a different time from Swallow ' s regular rest period. Swal-
low testified that Painter , and not Lippey , gave her the petition and that Lippey did not
ask or encourage her to circulate it. The evidence is voluminous with respect to the
respective positions and opportunities of Davis and Gingery to observe I .ippey and Swallow
as they assert they did. The record includes an "extremely rough" sketch ( so described
by Respondent 's counsel ) and some photographs ( Respondent 's Exhibits Nos. 6, 9, 10,
and 13 ), taken many months after the circulation of the petition , which are at least
of doubtful value in resolving the issue The perspective reflected in the photographs
is inadequate , and the relevant exhibits do not, in certain respects such as establishing
lighting conditions and the location of some machines and supplies , sufficiently represent
the plant's interior as of the period in question . Be that as it may, apart from any issue
of credibility , the General Counsel's evidence with respect to the Lippey -Swallow incident
does not establish that Lippey gave Swallow the petition or that they discussed it, and I
base no findings on the evidence describing their alleged meeting.
WESTERN LACE & LINE Co. 1423
Fainter circulated the petition among day-shift employees in the twisting de-
partment in the presence of the supervisor, Claribel Hiersemann , while both
Hiersemann and the employees in the department were at work. Hiersemann,
who subsequently became an officer of the Association, signed the petition on
that occasion at Painter's solicitation. Painter, who was employed in the shoe-
lace department , also discussed the formation of the Association (although not
by name ) at about 11: 30 one morning with Geneva Fletcher, the lead girl in
the fish-line department, while Fletcher was at work at her machine. Painter
solicited and secured Fletcher' s signature to the petition on that occasion.' In
describing the incident, Fletcher expressed the thought, although stating that
she was "not sure," that the conversation occurred during Painter' s "working
time."
Swallow was employed as a "utility girl" under the direct supervision of Frank
Hall , foreman of the swing shift. Her function was to relieve other operators
when they were absent or during lunch and rest periods. Swing-shift employees
had two 10-minute rest periods and were divided into groups for that purpose.
During the earlier part of the evening, one group began its period at 5: 50,
another at 6, and a third at 6: 10. For their second rest period later in the eve-
ning, groups of employees successively took 10-minute rest periods in similar
staggered fashion between 9: 50 and 10: 20. Swallow's regular rest periods
were from 5: 50 to 6 and 9: 50 to 10.
Mary Davis testified that at about 20 minutes before her regular rest period
,(10 to 10: 10) one evening, Foreman Hall told her that Swallow would like to
talk to her in the lunchroom ; that shortly thereafter, Swallow invited her to the
lunchroom, stating that she would like to talk to her there "about a company
union" ; that she went with Swallow to the lunchroom about 7 minutes before the
start of her (Davis') rest period ; and that after their arrival there Swallow
showed her the petition, which did not as yet bear any signatures, and requested
her to sign at the top of the space reserved for names, so that, because of her
seniority, "the rest of the girls would follow suit." Hall denied making the
statement imputed to him. Swallow's testimony contains no denial that she
solicited Davis, nor did she furnish any details of any circumstances under which
she asked Davis to sign or of any conversation they had about the matter. Swal-
low admittedly took an additional rest period one evening in order to solicit
signatures. True, she stated that she took the additional time because she had
not taken one of her rest periods on the preceding evening , but she admitted
that she did not request Hall's permission to take the extra time." Significantly,
18 Findings concerning solicitation in the twisting department are based on testimony
by Hiersemann who was called as a witness by the Respondent . I do not credit Painter's
testimony to the contrary. Painter variously testified with some self -contradiction that
she secured Hiersemann 's signature "just before working hours," "around lunch ," "before
lunch," and "during the lunch hour , but just before she ( Hiersemann ) went back to
work" With evasive demeanor she testified that she could not remember where she
secured the signatures of Hiersemann and other employees in the twisting department.
The findings respecting the solicitation of Fletcher are based on Fletcher 's credited
testimony.
xs Gingery 's first rest period followed that assigned to Swallow . Swallow solicited the
signature of Gingery and other employees in the lunchroom on one occasion during Gingery's
rest period Swallow remained in the lunchroom , together with Disberry , after Gingery
left to return to work. According to Gingery, while at her work station, she saw Swallow
come from the direction of the lunchroom after the end of the rest period assigned to the
third group of employees ( 6: 10 to 6: 20). Gingery 's testimony suggests that Swallow
remained in the lunchroom for three successive periods. The evidence, however, will not
support such a finding, since the lunchroom is out of eight of Gingery's work station, and
Swallow conceivably could have been somewhere else between 6' 10 and 6' 20 , as, for
example, the rest and telephone rooms which are near the lunchroom and located in the
same corridor.
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also, according to her testimony, Swallow shifted her lunch period one evening
to enable her to talk about the petition to employees who had a different lunch
period from the one regularly assigned to her. She asserted that she did this
with Hall's permission but that she did not tell him her purpose, replying in the.
affirmative to his inquiry whether she "had a good reason" for the change. When
it is borne in mind that the Respondent's machines , at least in some departments,
operate continuously throughout the 24 hours, and that one of Swallow's duties
is to relieve other operators during their lunch and rest periods, even Swallow's
testimony at points suggests that, like Painter, she took greater liberties with
her working time than she would admit in other porions of her evidence, and
thus contributes some corroborative weight to Davis' account. I credit Davis.
Two days after Swallow's conversation with Mary Davis, the latter asked
Foreman Hall in the lunchroom "what good a company union would do." He
replied, "I can 't advise you or anything but ... if a company union gets is
here I can do an awful lot for you girls." Z0
There is credible evidence, also, that Helen Davis and John Cross, foreman of
the graveyard shift, in one form or another encouraged employees to sign the
petition n Some of the relevant evidence is undisputed. Helen Davis, as she
put it, "tried to organize them (employees) a little bit." Employees who worked
on the graveyard shift usually gathered in the lunchroom before the start of their
shift. Davis "asked all the girls" in the room on one such occasion to sign the
petition. Among those she solicited was an employee named Helen Halls. Halls,
when asked to sign, told Davis that Lippey was opposed to unions, and she
inquired whether Lippey was aware of the circulation of the petition. Davis
replied that he did not know about it, and Halls declined to sign . Several nights-
later, Painter spoke to her in the lunchroom and inquired why she had refused
to sign . Hall's reply was similar to that she gave Davis. About a half-hour-
later, after she began her shift, because she was concerned about Lippey's at-
titude toward the petition, Halls approached Foreman Cross, because at that
time he "was the only one there of any authority," and asked his opinion "about
my signing" the petition. She expressed concern that her job might be "jeopard-
ized" if she signed. He replied that he knew of a similar organization in a place
where he had once been employed; that he had been "in favor" of, had "liked,"
and had "benefited" from, the organization ; that she "would not be sorry" if she
signed the petition ; and that she "would not be fired for signing for this union." 22
It may also be noted that on one occasion (described by Katherine Lenarth,
an employee) the petition was lying on Cross' desk, and that some employees
signed it there at about 7: 30 a. in. (at the end of the graveyard shift). Cross
was not present at the time. The record contains no explanation of the circum-
stances under which the petition was placed on Cross' desk.
"Findings respecting this conversation are based on Mary Davis' credited testimony.
Hall's testimony contains no denial of the specific remarks imputed to him. He denied,
however , that he had ever had any conversation with Mary Davis "with respect to union
activity." I do not credit his denial.
n After the completion of Gingery's shift one evening. Painter solicited her signature In
the restroom. Gingery declined to sign and departed about 11.35 p. in., after the grave-
yard shift had started , leaving Painter In the restroom . As Gingery was leaving the rest-
room she saw Lippy nearby talking to two graveyard shift lead girls, Olive Wright and
Helen Davis. While so engaged , Wright was motioning two twisting department operators
toward the restroom where Painter had remained with the petition. Although It was not
customary for Lippey to be in the plant so late, and the time was one when the operators
should have been at work , I draw no inference from the incident , since there is no evi-
dence that Lippey knew that Painter was in the restroom.
"Findings with respect to Helen Halls ' conversations with Painter, Helen Davis, and
Cross are based on Halls' credited testimony.
WESTERN LACE & LINE CO. 1425
After an unspecified number of employees had signed the petition, the Associa-
tion requested the Company to bargain with it. Lippey testified that Smith
and Painter submitted an oral request to that effect about December 10. Accord-
ing to Smith, the oral request was made about December 12. Both Lippey and
Smith testified in effect that the former told the two employees that he would
require satisfactory proof that the Association represented the employees before
he would recognize and bargain with it. Smith also stated that to support
the claim of representation he told Lippey about the existence of the petition,
proposing that the signatures be verified as genuine ; and that the petition was
thereupon shown to Lippey in accordance with his request. According to Smith,
be offered no objection to Lippey's request, and he testified that he had no
concern about revealing the names of those who had signed and that he had no
"reason to fear" that any of the signatories would be discharged. Lippey, on the
other hand, asserted that he did not "think they (Smith and Painter) had the
petition" when they spoke to him. He identified a letter, dated December 12,
1951, addressed to him as the Company's president, requesting that the Company
recognize the Association as "the sole bargaining agency" of the employees.
The letter is subscribed with the name of the Association and those of seven
employees, including Smith, Swallow, Helen Davis, Painter, and Disberry.
According to Lippey, the envelope containing this letter was opened, unlike those
enclosing communications from the Board and the IAM and TWU. Lippey
stated that he gave the letter to the Company's personnel manager with instruc-
tions "to contact this group" in order to determine whether "they represented
the majority of our workers." It may be noted that the alleged requests for
recognition and bargaining negotiations were made before the incorporation of
the Association and prior to the date (December 18) when Smith claims he was
designated by "unanimous decision by voice" at a meeting of employees "to take
over and handle all the business ends of the Association."
Smith convened a meeting of employees on December 18 at a vacant building
across the street from the plant. Approximately 100 attended, including the
lead girls, Hiersemann, Wright, Helen Davis, and Fletcher. Those in attendance
consisted mainly of graveyard and day-shift employees. The meeting was
scheduled for about 7: 30 a. in., a time which coincided with the end of the
graveyard shift and the beginning of the day shift. Smith's apparent purpose
in selecting the time of the meeting was to secure the attendance of the graveyard-
shift employees and to notify those on the day shift as they arrived for work.
According to Smith's testimony, no employee besides himself, Painter, Disberry,
and possibly Helen Davis, knew the purpose of the meeting before it started.
He gave some self-contradictory testimony in connection with the arrangements
for the meeting. First, he asserted that Painter was the only one he informed
of the impending meeting; that he did so at approximately 7: 15 a. in., shortly
before the meeting began ; and that he told Painter "to tell everybody we were
meeting across the street." Later, he testified that he told either Disberry or
Helen Davis about the matter on the preceding afternoon, and then when it was
pointed out to him that Helen Davis works on the graveyard shift, he stated that
it was Disberry whom he had informed about the meeting on the preceding day.
It is unnecessary to pass on the credibility of Smith's testimony, but it may
be noted, as will appear, that others of varying positions of authority in the
management hierarchy knew of the impending meeting in advance and facilitated
the attendance of employees. Be that as it may , according to Painter, she
stationed herself in the lunchroom where day-shift employees customarily gath-
ered before the start of their shift and told them that there would be a meeting
across the street. She also testified that she posted herself at the time clock
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the graveyard-shift employees were punching out and informed them of the
meeting. When employees inquired the purpose of the meeting, according to her
account, she declined to tell them the purpose, making responses that they would
"find out when we get there" and that "we are going to discuss something."
According to her testimony, she did not identify the auspices under which the
meeting was to be held.
Substantially all or most of the day-shift employees punched in at the time
clock and then proceeded across the street without punching out. Lead girls
who attended did not request the permission of their superiors to leave their
departments unattended or to go to the meeting. Hiersemann noticed, while near
the time clock, that one or two of the employees in her department were not
among those preparing to go to the meeting, and she went to her department
to try to locate any missing employees in order "to fetch them" for the meeting.
She also wanted to determine whether those missing would be absent for the day.
Machines, at least in some departments such as the twisting and braiding
sections, are supposed to operate around the clock during the workweek, stopping
only for repairs, adjustments, and replenishment of supplies. To facilitate con-
tinuous operation, operators on one shift are required to be at their machines a
few minutes before the preceding shift ends It is undisputed that the machines,
which are power driven, were shut down at or shortly before the end of the
graveyard shift.
Lenarth, a twisting-machine operator, testified that at 7: 30 on the morning
of the meeting, contrary to the usual practice, Wright, the lead girl in the
twisting department instructed the twisting operators to shut off their machines,
and told them that "there was going to be a meeting across the street" and that
"everybody (should) appear across the street." Lenarth's testimony is undis-
puted, and I credit her.
According to Helen Halls, a utility girl, and Margaret Leach, a braiding
operator, Foreman Cross instructed them shortly before 7: 30 a. in. to shut off
the machines they were operating. Halls testified that Cross informed her
that there was going to be a meeting, that he did not state where, that he left
for another part of the plant, and that she complied with his instructions.
Leach stated that when she asked Hall for the reason for his direction, he replied
that there was going to be "some kind of a meeting" and that he "didn't know
what it was " According to Leach, she shut off her machines and went to a
phone to call her home and leave word that she would be delayed. She testified
that by the time she completed her call, there were no employees in the building
who could direct her to the meeting. According to her testimony, she left the
building at about 7:4G or 7 :45 and saw Cross near one of the entrances. Leach
asked him, she testified, where the meeting was being held, and he pointed to a
building across the street and told her, "They went that-away."
Cross denied that he told any employees to shut off their machines, and
the sense of his testimony is that he left for his home shortly after the end of
his shift without discussing the meeting with anyone. According to Cross, his
duties ended at 7: 30 a. in., and he asserted that, as was his custom, he looked
over some reports, and then went to the dressing room where he washed and
changed his clothes. He stated that he then went home, "probably" leaving
the building at 7: 35, although at a later point he testified that he got to the
dressing room at about 7 : 35. He asserted that as he went to the dressing room,
he "noticed there was nobody on the job," and he added, "Of course, that wasn't
my affair," later stating that what happened in the plant after 7: 30 did not
concern him. The machines were operating at the end of the shift, he testified,
but he said that he could not remember whether they were in operation when
WESTERN LACE & LINE CO. 1427
he left for the dressing room . As he left the building, he stated, he "noticed
people going across the street" and "heard someone say something about some
kind of meeting across the street," and that because "two CIO men were at the
gate," he "took it for granted a CIO meeting was going on."
Much of Cross' relevant testimony is implausible. First, it is undisputed that
the machines were shut off, and it is quite improbable that employees, who knew
nothing more than that there would be a meeting of some undefined kind, if any
of them indeed knew that much before they arrived at the time clock, would shut
off the machines in the absence of instructions they regarded as authoritative.
Second , Cross admittedly saw that no one was at work when he left the dressing
room and passed within a few feet of machines that make substantial noise when
in operation. I find it difficult to believe that he would recollect that the ma-
chines were in operation when the shift ended, but not remember whether they
were shut off when he left the dressing room a short while later. Third, Cross'
disclaimer of any responsibility or concern over the condition of the shop strikes
a strange note in the light of testimony Lippey gave. Lippey testified at length
concerning the patriotic nature of the plant's work and its importance, and the
emphasis he placed in talking to employees about the need for maintaining pro-
duction schedules and care in manufacturing parachute braid upon which "lives
depended." Moreover, Lippey stated that it was customary for shift foremen
"to give up their duties when the next shift foremen arrived on the job." He
expressed "doubt" that the plant would be left without supervision before the
arrival of Frank Zimmerman , the superintendent, who usually arrived between
7: 30 and 8 a. in., and he stated that it was Zimmerman's function to "take over
when he came to work from the man (Cross) who was in charge at nights." In
that connection, it may be noted that Zimmerman testified that he arrived at about
S a. in., although lie also stated that Cross was not there at that time. Be that as
it may, I think it improbable that, unless Cross knew the machines would be shut
down and the reason for it, he would be indifferent to the fact that no one was at
work. Moreover, if he assumed that the machines were operating, such indiffer-
ence would be equally implausible since Cross himself stressed the need for close
attention by braiding operators to their machines, admitting , as he did, that
defective braid could result from unattended machines and that such braid "would
be a loss to the company." I do not believe Cross' relevant denials, and I credit
Halls and Leach 23
Smith presided at the meeting which lasted until about 9 a. in. The principal
business transacted appears to have been the election of officers and of members
of a negotiating committee. According to Smith, those present "by voice" unani-
mously vested him with authority "to handle all the business ends of the Associ-
ation." After the meeting the employees returned to the plant and operations
were resumed. No deductions were made from the pay of the day-shift employees
who attended the meeting, and they were subsequently paid for the time so spent.
Swing-shift employees who had not done so at the meeting voted later that
day. The balloting took place in the lunchroom during lunch and rest periods.
Swallow and Disberry supervised the balloting. After employees marked their
21 According to Geneva Fletcher, a former lead girl who was called by the General Counsel,
she arrived at the plant at 8 a. in and saw Cross standing near an entrance to the plant.
She did not enter, she stated, but asked Cross "what has happened " Cross, according to
her account, replied, "I don't know. They sic all across the street." Cross denied that
the incident occurred Fletcher's testimony does not explain how she knew anything
unusual had " happened" before she entered the plant Fletcher ' s demeanor reflected some
reluctance in giving her testimony. Be that as it may, I find it unnecessary in the light
of findings made above, to resolve the issue of credibility between Fletcher and Cross or to
determine what, if anything, passed between them.
1428 D)lCISIONS OF NATIONAL LABOR RELATIONS BOARD
ballots, they handed them to Disberry who placed them in a pile and listed the
names of the employees on a sheet of paper. During the course of the evening,
Disberry carried some ballots into a room which houses the plant's machine and
dye shops and joined Foreman Hall and Swallow. The three engaged in con-
versation while handling the ballots. M
According to testimony presented by the Respondent , Lippey and others iden-
tified with the management , including Superintendent Zimmerman and Irving
Miller , the personnel manager , arrived at the plant while the meeting was in
progress . As noted above, Zimmerman testified that he arrived at about 8
a. in. Lippey asserted that he came to the plant at about 8 : 30. At one point,
Lippey expressed the thought that Cross was among those in the office upon
his arrival , but he later denied that he had testified that Cross was present.
Be that as it may, drawing upon the testimony of Zimmerman and Lippey, the
following is a substantial summary of what one or the other asserts he said
and did after he arrived at the plant and found that the employees were absent :
As Zimmerman arrived, he "noticed some CIO organizers" in the street. Upon
entering the plant, he noted that "everything was quiet " and that there "wasn't a
wheel turning ." He then looked across the street and saw "some people . . .
over at the vacant building ." He inquired of those in the office , "What goes
on in the plant ? Why aren't the machines running?" and one individual (whom
he could not identify ) replied that he did not know. Those present then "sat
around and started chewing the fat." No one did anything to ascertain what was
going on across the street . When Lippey arrived , he asked why the plant was
not operating. Zimmerman replied that the "entire force" was at a meeting.
Lippey asked , "What meeting ?" and Zimmerman said he did not know . Lippey
then inquired why Zimmerman did not do "something about it," and the latter
responded that nothing could be done. Lippey "angrily" observed that he did
not think that the employees should be paid for their period of absence, and
Zimmerman pointed out, "There is nothing you can do about it. You better pay
them or else." Miller remarked that Lippey "would have had to pay them if it
were the CIO or IAM or some other union ," and Miller added, "If you don't (pay
the employees ), you will have a strike on your hands."
Zimmerman testified that as employees returned from the meeting he demanded
an explanation from "various people" of the reason for their absence, and of
their whereabouts ; and that he was "very curtly and shortly informed that it
was an employees ' meeting" and given no other information . He was asked at
the hearing to identify the "various people" and he said "several of the girls,"
and that he could not "recall just exactly" who they were . In response to addi-
tional questioning , he "belleve [ d]" that Painter and Smith were among the
14 Findings with respect to the balloting activities of Swallow and Disberry, and the
handling of the ballots by them and Foreman Hall, are based on Gingery's credited testi-
mony. Hall denied handling or "having anything to do with ballots." On the night in
question Gingery was employed on a winding machine opposite the entrance to the room
which houses the plant's machine and dye shops . Gingery's machine has since been moved.
According to Gingery, her work station was in line with the entrance to the room, so that
she could see the place, about 30 feet distant from her, where Hall, Swallow, and Disberry
were standing It is unnecessary to review the voluminous evidence bearing on the loca-
tion of Gingery's machine, the contents of the machine and dye shops , and Gingery 's oppor-
tunities for observation. From my own Inspection of the plant, made pursuant to the
stipulation of counsel, and Gingery's testimony, which was given in part at the plant, I am
satisfied that she was in a position to see Hall, Swallow, and Disberry. As will appear,
various facets of Hall's testimony are unreliable. Moreover, Gingery's account of the
"handling" of the ballots is consistent with other evidence of the pattern of assistance
which the Respondent gave the Association. Gingery impressed me as a credible witness,
and I have made my findings accordingly.
WESTERN LACE & LINE CO. 1429
employees he interrogated but he could not identify any others . He stated that
he "probably" questioned "two or three or four." Painter 's somewhat more ex-
tensive version is that he asked her what was "going on here" ; that she replied
that she had been to a meeting across the street ; that he stated that she knew
she was "not supposed to do this" ; and that she said, "Well , the majority of us
went, didn't we?" and walked away. She was asked why she walked away,
without an answer, after putting a question to Zimmerman , and then requesting
time to think , she corrected her testimony by stating that Zimmerman made an
affirmative reply to her question about a "majority," and that she then walked
away.
Smith asserted that after he returned from the meeting , Lippey asked nim
"what the idea was of taking everybody across the street" ; and that he replied
that "we went across the street to elect our officers ." Smith stated that he could
not remember Lippey 's response . Later that morning , according to Smith, he had
a "heated discussion" with Lippey and Miller, during which Miller Anted that
employees who had absented themselves from work for the meeting would not be
paid. Smith replied, according to his account, that the employees would strike
if they were not paid. Lippey's version of what Smith termed a "heated dis-
cussion" is somewhat different. Initially, claiming a failure of recollection,
Lippey expressed the thought that Miller told him on the afternoon of the day of
meeting or on the following day that Smith had made his demand for payment to
him (Miller). Later Lippey testified that Smith put his demand for payment
either to him or Miller, but that he did not "remember exactly." Because of
some difficulty in securing a responsive answer from Lippey, concerning what
Smith, and not Miller, had said to him, Lippey was asked again what Smith had
said to him with respect to payment, and he replied : "Yes, I was approached
by Mr. Smith just about that time, the next day or day after, in relation to their
work stoppage. I don't remember exactly what he said to me at that time." At
another point in his testimony, Lippey stated that Smith told him on the day of
the meeting that the employees would strike "unless we negotiated a contract."
There are some implausible aspects to the descriptions by Lippey and Zimmer-
man of what allegedly took place in the office while the meeting was in progress ;
to Lippey's claim that Smith threatened him with a strike "unless we negotiated
a contract" ; to Smith 's assertion that he had a "heated discussion " with Lippey
in which he told Lippey that there would be a strike unless the employees were
paid for their period of absence ; and to the testimony that employees responded
"very curtly" to Zimmerman 's alleged efforts after the meeting to ascertain
why they had absented themselves.
At the hearing, Lippey placed considerable emphasis on the important and
patriotic nature of the Company's enterprise in manufacturing parachute bra id.
Yet, according to Superintendent Zimmerman, after he arrived at the plant and
saw that the plant was virtually empty and that there "wasn't a wheel turnin ;,"
he joined others identified with the management in the office, inquired of he
group why the plant was not in operation, was informed by one of them that he
did not know the reason, and then "sat around" in the office with the others "and
started chewing the fat." Although Zimmerman claims that he looked across
the street and "saw some people . . . over at the vacant building" (the record
does not explain what prompted him to look in that direction), neither he nor
any other member of the group took the trouble to cross the street to ascertain
whether the "people" there were day-shift employees or why they were not at
work. Bearing Lippey's emphasis on the plant's production activities in mind,
it is strange behavior for a plant superintendent and other management per-
sonnel , in such circumstances , to devote their time to "chewing the fat." I am
257965-54-vol. 103-91
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unable to conclude from Zimmerman's testimony that the reason he did nothing
more than he described to ascertain the cause of the employees' absence was
because he assumed a union meeting was in progress and he did not wish to
violate the law by interfering with it The sense of the Respondent's evidence
is that the management knew nothing about the meeting before it actually took
place, and Zimmerman asserts that the person who answered his inquiry in the
office told him that he did not know why production had stopped. True, Zim-
merman testified that, as he entered the plant, he "noticed some CIO organizers"
in front of the building, but, significantly, when the question of payment of the
employees was allegedly discussed after Lippey's arrival, according to Lippey,
Miller pointed out that the Company "would have had to pay them if it were the
CIO or JAM or some other union" (emphasis supplied). It is apparent, if Miller
indeed made that statement, that there is no substantial evidence that those in
the office believed that a "CIO or IAM" meeting was in progress across the street.
If anything, Lippey's testimony suggests that those in the office did not assume
that it was a "CIO or IAM" meeting, and, in the light of the professions by Lippey
and Zimmerman of disinterest in the Association and of lack of advance infor-
mation concerning the meeting, it is curious that Lippey's testimony reflects an
assumption by those in the office that the absent employees were not attending a
"CIO or IAM" meeting. It is pertinent to inquire how the management officials
would know that the employees were not in fact attending such a meeting, and
the apparent assumption suggests greater knowledge by at least some of the man-
agement personnel concerning the meeting than the claims of Lippey and Zim-
merman would indicate.
According to Lippey and Zimmerman, the former raised the question of pay-
ment for the employees' period of absence when Zimmerman told him that the
"entire force" was at a meeting, although how Zimmerman would know that in
the light of the information he received in the office, even if he did see "some
people . . . over at the vacant building," is not quite clear. Now no one had
as yet asked Lippey for payment, and, as already noted, Zimmerman asserts that
he was unable, upon inquiry from the group in the office, to ascertain the reason
for the absence of the employees. In that setting, it is not quite plausible that
Zimmerman should advise Lippey that he had "better pay them or else" ; and
that the discussion should be conducted in a context of assumptions that the
Company "would have had to pay them if it were the CIO or IAM or some other
union."
As noted above, Smith claims that he threatened Lippey with a strike in a
"heated discussion" unless the employees were paid. However, in his testimony,
Lippey professed an inability to recollect whether he learned about Smith's
alleged demand for payment from Miller or whether Smith had spoken to him
(Lippey) about the matter. It would seem that, had there been a "heated dis-
cussion," as Smith claims, Lippey would recall it, particularly as the latter
asserts that he "angrily" stated, after his arrival at the office while the meeting
was in progress, that the employees should not be paid for their period of absence.
Be that as it may, much of Smith's testimony was characterized by an evasive
demeanor, a guarded choice of phrasing, and professions of inability to recollect
significant matters which it seemed to me he should have been able to recall,
all of which reflect on the reliability of his claim concerning the "heated
discussion."
The evidence bearing on the alleged conversations in the office while the meet-
ing was in progress, Smith's claim of his "heated discussion" with Lippey con-
cerning payment, and Lippey's assertion that Smith threatened him with a strike
"unless we negotiated a contract," reflects qualities which militate against an
WESTERN LACE & LINE CO. 1431
acceptance of the relevant claims of Lippey, Zimmerman , and Smith. The same
may be said of Zimmerman 's testimony that "various people" "probably" num-
bering "two or three or four," including Smith and Painter, "very curtly and
shortly informed" him that they had been to an employees' meeting when he
allegedly questioned them after their return to the plant. On that score,
although the evidence bearing on the matter has not yet been discussed, as will
appear later, Zimmerman discharged an employee (Mary Gabrish) because she
engaged in union activity. It is not quite credible that Zimmerman would be
as passive as his testimony suggests lie was in the face of the curt treatment he
describes.''
True, the relevant testimony of Lippey, Zimmerman , and Smith, discussed
above, is not disputed, but the evidence, in the very nature of things, is not readily
susceptible to direct refutation. It consists, in the main, of declarations by
individuals who were either identified with the management in controlling super-
visory capacities (Lippey and Zimmerman) or were among the founders of the
Association (Smith and Painter). No adversary party or person I can regard
as truly disinterested was present when the alleged declarations were made.`
Bearing the interest of each of the several witnesses in mind, a proper measure
of their credibility requires its consideration in the light of the whole record.
So considered, the testimony in question is not quite compatible with the credible
evidence of the acts of assistance to the Association by lead girls (for whose
conduct the Company is accountable for reasons to be discussed later) and the
foremen ; Lippey's hostility toward self-organization of the employees ; his unfair
labor practices ; and, as will appear later, the speed with which he recognized,
dealt, and contracted with the Association, a celerity in which I am convinced
no threat by Smith played any role. Viewing the record as a whole, I am unable
to place any credence in the testimony of Lippey, Zimmerman, and Smith in
question.'
According to Smith, several days before the meeting, he telephoned the Los
Angeles office of the California State Conciliation Service in order to secure
its services in verifying for the Respondent's satisfaction the genuineness of the
signatures on the petition. Smith stated that he made an appointment for him-
self and Miller to appear at the Conciliation Service's office at 3 p. in. on Decem-
ber 18. Smith testified that he could not remember who had suggested the use
of the Conciliation Service. He was asked if "any member of management" had
suggested it, and he replied, "It might have been, but I am not sure." He asserted
that he could not recall whether Miller proposed the use of the Board's procedures
to determine the representation issue. Smith agreed that before he communi-
cated with the Conciliation Service, he had heard of the National Labor Rela-
tions Board and of the fact that it held elections to determine representation
issues. He was then asked why he had not requested the Board to hold an
election, and he replied that "we are not recognized by the Board until we sign
slips saying we are non-Communist" (apparently meaning until compliance with
the filing requirements of Section 9 (f), (g), and (h) of the Act). He explained
that he did not seek to comply because he had assumed that the Association
2' Similarly, in the light of the evidence as a whole, I am unable to credit Painter's
description of her alleged conversation with Zimmerman after she returned from the
meeting.
"Zimmerman is no longer in the Respondent's employ. It is appropriate to note, how-
ever, that he is currently manager of a division of a concern which is a customer of the
Respondent.
2' Even If Smith made the demand for payment he claims, such payment to the employees,
in the light of the other evidence in this proceeding, constituted an unlawful act of
assistance to the Association.
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"legally (had to be) a corporation to file," and the incorporation papers had not
yet been "returned from Sacramento" when he and Miller met with the Concilia-
tion Service on December 18. Smith was asked why he had not made inquiry
at the Board's office about the filing requirements and he replied he "never
thought of it at the time." Smith "guess [ed]" that he knew of the existence of
an office of the Board in Los Angeles at the time he went to the State Conciliation
Service. It may be noted that only a short while later, during contract nego-
tiations between the Association and the Company, Smith visited the Board's
Los Angeles office to inquire about the filing procedure. He agreed that "the
procedure was very easy" and "disposed of very quickly."
According to Smith, he and Miller met with the Conciliation Service at the
appointed time on December 18, and presented the petition and some material
for use in verifying the signatures. Smith testified that the Conciliation Service
was not informed by either him or Miller of any claim of representation by other
labor organizations or of the distribution of leaflets by them. On the same day,
the Conciliation Service issued a written statement addressed to the Company
and the Association, certifying to a "cross-check" of the signatures. The state-
ment certifies, presumably as a result of the comparison of signatures, that there
were 114 names on the payroll in the "Bargaining Unit" ; that 93 "authorization
cards" had been submitted for the "cross-check"; and that 90 employees on the
payroll had signed such cards.
Smith asserted that he presented the certificate to Lippey shortly after its
issuance, that he asked Lippey to meet with the Association's negotiating commit-
tee for bargaining negotiations, and that Lippey agreed. Lippey testified that
Miller gave him the certificate from the Conciliation Service on or about Decem-
ber 18; and that he then consulted an attorney, Cecil W. Collins, and thereafter
made arrangements to meet with the Association' s representatives Rt
The Respondent presented evidence to the effect that Smith and Lippey agreed
to hold the first meeting on December 21, and that Lippey met with the negotiat-
ing committee on that date, on December 23 or 24, and on December 28, when an
agreement between the Company and the Association was signed. The following
is a summary of events at the meetings as described by one or another of the wit-
nesses (Hiersemann, Lippey, Painter, and Smith) called by the Respondent.
Lippey and Collins represented the management at the first meeting, 29 and a group
of 11 employees, including Smith, Painter, and Disberry, and 2 lead girls, Hierse-
mann and Fletcher, appeared for the Association. Collins produced and gave
the Association's representatives some sample forms of collective-bargaining
agreements. Some of the employees had with them proposals which they had
written on slips of paper for incorporation in an agreement. These "were the
usual demands" (according to Lippey) and covered such matters as sick leave,
a general wage increase, seniority, and vacations. There was some discussion
concerning the proposals. Lippey and Collins left the room at one point, at the
employees' request, so that the committee members could discuss their own pro-
posals privately. Lippey asked the Association's representatives whether they
wished to have their proposals put in the form of a contract. They assented,
gave Lippey the written proposals, and he agreed to have a form of contract
prepared. Collins subsequently prepared a draft, and it was presented to the
28 Lippey gave contradictory testimony concerning the retention of Collins . He stated
that he retained Collins after the first negotiating meeting on December 21; later he
asserted that it was before the meeting.
26 Hiersemann described Collins as not "representing anybody ." The sense of Lippey's
testimony is to the contrary, particularly as Lippey retained Collins as the Company's
attorney.
WESTERN LACE & LINE CO . 1433
Association's representatives either at the second meeting or at the final one
held on December 28.'0 The meeting of December 28 was attended by Lippey,
Collins , and all of the Association' s representatives . On this occasion, also,
Lippey and Collins left the room, upon request, while the Association' s repre-
sentatives discussed Collins' draft. During the course of the meetings, Lippey
stated that "he would be more than willing to give the girls a raise" if the Wage
Stabilization Board approved. The committee agreed . The upshot of the meet-
ings was that Lippey, on the Company's behalf, and the Association' s representa-
tives, on behalf of the Association, signed an agreement which provided for a
term of 2 years. The contract gave the employees ( in Hiersemann 's phrase)
"everything that we (the Association's representatives) asked for," with the
qualification that the question of the amount of a wage increase was left open for
subsequent submission of the matter to the Wage Stabilization Board.
A detailed description of the agreement is unnecessary, but it is appropriate to
make separate mention of three of its provisions. First, it accords exclusive
recognition to the Association as collective bargaining representative of a de-
scribed unit of the production and maintenance employees (article I, par. 1).
Second, a "maintenance of membership" clause (article I, par . 2) requires those
who were members of the Association at the time of the execution of the contract,
and employees who subsequently become members, to maintain their member-
ship in good standing, for the duration of the agreement, as a condition of employ-
ment. The third provision (article VII, rule 5, par. 2) obligates the Company
to audit its books to determine whether a wage increase is permissible under
wage stabilization regulations, and provides for a future addition to the agree-
ment of a "permissible" wage increase, if the Wage Stabilization Board approves
the increase; and that such an increase be retroactively applied to the date of
the agreement. A "permissible" wage increase was subsequently given to the
employees.
Smith was asked at the hearing whether any Association representative sug-
gested the language or substance of the "maintenance of membership" clause, and
he replied, as he did in substance with respect to other significant matters, "not
that I remember." As to whether he proposed it, he said: "I don't think I did.
I-that I couldn't say. I don't remember." He asserted that the clause was in
one of the sample forms produced by the Company, and later, with evasive and
guarded demeanor , he testified : "I think, reading over the other contracts, I think
I stipulated that we wanted practically the same as the other, except for our other
benefits that we wanted in there." He admitted that the clause was not among
the proposals which had been written down by the Association's representatives.
At a subsequent point, Smith "believe[d]" that Disberry said during the negotia-
tions that "if we wanted to maintain our membership we should ask everybody
to join," but he agreed that nobody said that "one should be a union member
as a condition of employment," that that was not mentioned prior to the produc-
tion of the samples by Collins, and that there was no discussion of the matter
after Collins presented the samples . However, Smith then testified that the sub-
ject was discussed by the employees at the first meeting "when we ordered him
(Collins) out of the room." The significant point to note here, without further
w According to Smith , Collins was not at the second meeting which was adjourned, after
some discussion , because many of the committee members were absent . Smith stated that
the contract was presented on December 28. Hiersemann and Lippey testified that Collins
was at the second meeting and that the draft was produced at that time . According to
Lippey's version , those present went over the draft ; Collins and he were requested to leave
the room while the committee members discussed the draft privately ; and the meeting was
adjourned because the proposed contract "required rewriting" for reasons which he could
not recall.
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reference to the quality of Smith's testimony, is that from his account, it is plain
that the Association's representatives did not initiate either the language or sub-
stance of the "maintenance of membership" clause and that in practical effect,
if no more, it originated with the Company, at least as the result of the production
of a sample form by Collins, the Respondent's attorney.
According to Smith and Painter, the Agreement was submitted to, and approved
by, members of the Association at a meeting held on January 6, 1952. Painter
testified that she notified only day-shift employees of the meeting, passing out
notices to them at the plant gate, and that she gave some notices to Swallow
(there is no testimony describing what Swallow did with them). According to
Painter, a majority of the members attended the ratification meeting, and "they
all approved" the agreement. At another point, she testified that approximately
45) attended.
D. Conclusions with respect to the Association and the Respondent's relations
with it
The credible evidence establishes that the Association was not an independent
labor organization. Reasons which amply support that conclusion are set out
below.
The reliability of the disclaimers of assistance to the Association may be meas-
ured by the sequence of events in the plant which followed hard upon the heels
of the activities of the IAM and the TWU, the request for recognition by the
former organization, and the filing of its petition for representation. The timing
of the formation of the Association and of the Respondent's relations with it is of
revealing significance.
Lippey was well aware of the organizational activities of the IAM and the TWU
in November 1951. He admittedly witnessed leaflet distribution by the latter
,,on lots of occasions." Smith, too, it may be noted, had some awareness of
organizational interest in the plant by the IAM prior to the formation of the
Association, and by the TWU at some point before his visit with Miller to the
State Conciliation Service for the "cross-check." " Lippey's awareness of interest
by other organizations than the Association in representing the employees did
not stem merely from his knowledge that leaflets were being distributed to
employees. The Company admittedly received a registered letter, requesting
recognition, from the IAM on November 21, and a copy of its petition for certifi-
cation on December 10. Lippey's claim that he had no personal knowledge of
these documents because he instructed the mail clerk to forward all such mail
unopened to Collins strikes an unconvincing note. His justification for not open-
ing registered mail from unions and official business envelopes from an agency
of the Government is that he attached no importance to them, that he "had a
business to run," and that he "didn't know what it was all about" and "didn't
want any part of . . . all this union business and all this Labor Board activity
81 As on other occasions, Smith gave self-contradictory testimony on this subject. He
first stated that he did not "remember" any leaflet distribution prior to December 18.
Then he "remember[ed]" a pamphlet distributed by the TWU which "referred to some-
thing about joining the union ." He disclaimed knowledge of any other organizational
activity. D. A Gordon, a representative of the IAM, testified that he gave some union
literature to Smith at the plant gate prior to the IAM' s request for recognition. Smith
denied ever seeing Gordon in front of the plant On the question of the plausibility of
Gordon's recollection , it may be noted that Smith was one of the few male employees in
the plant It is undisputed that Gordon distributed literature in front of the plant, and
it may be observed that he is of unusual dimensions , standing 6 feet in height and weighing
470 pounds I do not credit Smith's disclaimer that he saw Gordon in front of the plant,
and I credit Gordon's testimony.
WESTERN LACE & LINE CO. 1435
and all these reports„ rumors, noise and what not." Significantly, his treat-
ment of the Association's recognition request of December 12 was quite different,
although he attempted to explain the difference by recalling that the envelope
containing that letter was "plain" and addressed for his personal attention. Be
that as it may, that envelope was opened and not forwarded to an attorney, but
turned over to Miller for handling with the Association. It is apparent that that
letter did not fit his conception of "all this union business and all this Labor
Board activity and all these reports, rumors, noise and what not." On that score,
it may also be observed that while he chose, as he now claims, to attach no
importance to the mail from the Government and the IAM (as well as from the
TWU), it is quite plain that he attached so much importance to the possibility
of organization of the employees that he resorted to unfair labor practices in
order to abridge rights guaranteed to employees by the Act. In connection with
Lippey's claim that he did not open the envelopes containing the IAM's letter
and copy of its petition, but had them forwarded to Collins unopened, it is well
to note the period when he claims he retained Collins. The sense of his testimony
on the subject, although conflicting and contradictory at points, is that he retained
Collins after December 18, or as he put it at one place "somewhat a little time
before" the first negotiating meeting held on December 21. Now the IAM's let-
ter was received at the plant on November 21, and the copy of its petition on
December 10. Bearing these dates in mind and Lippey's manifest interest in
the progress of union activities in the plant, I think it quite unlikely that he
would passively ignore registered mail from the IAM and an envelope from the
Government, apparently related to labor matters, and that the Company would
retain them unopened for a number of weeks prior to the time Lippey retained
Collins. Lippey's disclaimer of personal knowledge of the 1 AM's letter and of
its petition is implausible. I do not credit it and find that he became aware of
both within the usual course of mail distribution at the plant after the respective
dates on which they were received by the mail clerk, and, particularly that he
was aware of the IAM's request for recognition before the formation of the
Association, and of the IAM's petition for certification before such formation
was completed, if not indeed before it began.
The formation of the Association began soon after the IAM and the TWU
manifested an interest in organizing the employees The record does not con-
lusively establish the date on which Painter began the circulation of the
petition, but what is certain is that she circulated it some time between the
beginning and middle of December and that the solicitation of signatures thus
followed shortly after the Respondent received the IAM's request for recogni-
tion, and, as will appear later, soon after the unlawful discharge (on November
24) of Jeanne Garner, because of her efforts in the plant to interest employees
in the lAM. Despite Lippey's hostility to organization of the employees, it
is plain that Painter encountered no opposition from the management in her
efforts, although she solicited signatures from employees at their work stations,
and came to the plant at night to circulate the petition in the lunchroom and
restroom. Similarly, Swallow took Mary Davis away from her work to talk
`about a company union" and to solicit her signature for the petition. It is
evident that Foreman Hall laid the ground work for Swallow's talk with Davis
by telling the latter that Swallow wished to speak to her in the lunchroom.
Moreover, Hall told Davis 2 days later that "if a company union gets in here,
I can do an awful lot for you girls." In the light of the Company's prompt
reactions to organizational efforts by the IAM and TWU, and of the unfair
labor practices the Respondent engaged in to discourage union activities by its
employees, it is difficult to believe that the Company was not substantially
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aware, to say the least, of the activities of Painter and Swallow. One need
only to recall, in that regard, Hall's handling of the ballots ; his conversation
with Mary Dvvis ; the approval of the Association by Cross in his conversation
with Helen Halls ; Cross' assurance to the employee that she would not be
discharged if she signed the petition ; Cross' knowledge that there would be
r, meeting on December 18; and his activities to facilitate attendance at the
meeting. From the evidence as a whole, I am convinced that the Respondent
was sutstantially aware, and tolerated the use, of its premises and facilities
by Painter and Swallow in furthering the organization of the Association.
Such toleraticn, when contrasted with Hall's destruction of the IAM cards,
the Company's manifest hostility toward the IAM and the TWU, and the unfair
labor practices it committed to implement its opposition, constituted unlawful
assistance to the Association.
Similarly, the conduct of both foremen, referred to in the preceding para-
graph, unlawfully aided and facilitated the formation of the Association or its
activities. Moreover, among the acts of assistance by the foremen were state-
ments which separately violated Section 8 (a) (1) of the Act. These were
the approval by Foreman Cross of the Association in his conversation with
Helen Halls and the assurance he gave her that she would not be discharged
if she signed the Association's petition ; and Foreman Hall's statement to Mary
Davis that "if a company union gets in here, I can do an awful lot for you
girls." as
The activities of the lead girls in the formation of the Association and in its
administration play a significant role in any appraisal of the Company' s rela-
tions with the Association. Helen Davis, a lead girl on the graveyard shift, was
active in organizing women employed on her shift for the Association, and in
soliciting their signatures , for the petition. Hiersemann , a day shift lead girl,
was solicited by Painter and signed the petition while at work, and Painter
circulated the petition among employees in Hiersemann 's department, and in her
presence, while the employees were working. On the morning of December 18,
when Hiersemann noticed that not all of the women in her department were
among those waiting to go to the meeting, she went in search of those missing
in order to fetch them for the meeting, as well as to determine whether they were
to be absent for the day. Wright, the lead girl in the twisting department on the
graveyard shift, directed the operators, just prior to the meeting on December 18,
to shut off their machines, contrary to the established practice, and told them
that "everybody should appear across the street" at the meeting. Hiersemann
was elected vice president of the Association at the meeting of December 18, and
became its president in April 1952, and both she and Fletcher were among the
group who negotiated the agreement with Lippey. In that connection, it may
be noted that Hiersemann was not elected to the negotiating committee which
consisted of only four individuals, including Fletcher, although the group which
negotiated with Lippey numbered 11 persons."
ax Although the complaint does not allege any statements by Cross as violations of Sec-
tion 8 ( a) (1), the incident in question was fully litigated and may be made the subject
of a separate finding that the Respondent violated the Act. See Olin Industries, Inc., 86
NLRB 203, enforced 191 F. 2d 613 (C. A. 5) ; American Newspaper Publishers v. N. L.
R. B., 193 F. 2d 782 (C. A. 7).
ss Smith, Painter, and Disberry were members of the group, according to Smith, although
they had not been elected to the committee. Smith testified that officers and members of
the Association's board of directors "were invited to attend the first negotiating meeting."
It may be noted that, according to the Respondent's evidence, they also attended the meet-
ing which resulted in the signed agreement. The Respondent 's evidence does not clearly
indicate the identity of all those who attended the second meeting, but Smith stated that
he was there , and Hiersemann testified that she, Smith , Disberry, and Fletcher attended.
WESTERN LACE & LINE CO. 1437
It does not necessarily follow from the mere fact that the lead girls were not
technically supervisors within the meaning of the Act that the Company is ab-
solved of legal responsibility for the assistance which these employees gave the
Association, and the role they played in it, nor is it decisive that there is no
evidence that the Company actually authorized the conduct of the lead girls.
It is important to remember that they were classified by the management as
supervisors and held out as such to the employees. Lippey regarded the lead
girls as "a part of management," to use the terms he employed in describing his
conversation with Davis and Hediger. In such circumstances, it would be only
natural for rank-and-file employees to take a similar view of the lead girls in
relation to the activities in which the latter engaged on behalf of the Associa-
tion. The lead girls were thus in a strategic position to translate management
policy and wishes for the other employees, and it is significant that, with respect
to union activities by the employees, that is essentially what Lippey and Hall
besought Mary Davis and Hediger to do. Moreover, the activities of Hierse-
mann, Helen Davis, and Wright were of a piece with the pattern of behavior of
Hall and Cross in assisting the Association. In the circumstances presented,
the Company must accept responsibility for the conduct of the lead girls in the
formation and administration of the Association" The various activities of
Hiersemann, Helen Davis, Wright, and Fletcher, either in the formation of the
Association or in its administration, constituted unlawful assistance to the or-
ganization by the Respondent.
The natural tendency of the Respondent's payment to employees for the time
during which they absented themselves from work to attend the meeting of
December 18 would be a demonstration to them that the Company approved their
membership in the Association and participation in its affairs. The payment
constituted unlawful support of the Association.
The Respondent did not inform the State Conciliation Service of the IAM's
request for recognition and pending petition for certification, nor did either
Smith or Miller tell the State agency that both the IAM and the TWU had mani-
fested an interest in organizing the employees. The customary procedures,
established by the Board under the Act, for the investigation of a claim of repre-
sentation and an election to resolve such an issue in a proper case were not fol-
lowed. It is unnecessary to pass on the motivation in seeking the "cross-check,"
rather than in awaiting the outcome of the Board's action on the IAM's petition,
nor is it necessary to determine Smith's purpose in not filing a petition for cer-
tification with the Board. The important point is that the Respondent, with re-
vealing celerity, having full knowledge of the IAM's claim of representation and
the fact that a petition to determine that question had been filed with the Board,
contributed support and assistance to the Association, interfered with its forma-
tion and administration, and recognized and contracted with it, despite the Com-
pany's manifest hostility toward the self-organization of its employees. Illumi-
nating light is also shed on the Respondent's purposes by the fact that the Com-
pany speedily agreed to substantially all of the negotiating committee's proposals,
with the necessary modification that a wage increase be submitted to the Wage
Stabilization Board for approval; in a practical sense, at least, originated the
"maintenance of membership" clause which would serve to shore up the Associa-
tion by requiring its members to maintain their membership as a condition
of employment; and granted a significantly timed wage increase, the natural
34 Among other cases, see Red Arrow Freight Linea, Inc., 77 NLRB 859, enforced 180
F. 2d 585 (C A. 5), certiorari denied 340 U. S. 523; our City Brewing Co ., 82 NLRB
1061 ; Olin Industries , Inc., 86 NLRB 203, enforced 191 F. 2d 613 ( C. A. 5), certiorari
denied 340 U. S. 970.
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tendency of which would be to dilute the interest of employees in labor organiza-
tions other than the Association . As the Court of Appeals for the Seventh Cir-
cuit has pointed out, the obligation of an employer to maintain a "strictly neu-
tral" attitude in matters concerning the self -organization of his employees is
"especially " required "where the adherence of the employees is being sought by
rival labor organizations " ( Harrison Sheet Steel Co. v. N. L. R. B., 194 F. 2d 407).
It is plain that the Company 's relations with the Association were anything but
"strictly neutral." In the circumstances presented , to permit the recognition of
the Association as the exclusive bargaining representative of the employees and
to sustain the validity of the agreement , in the face of the Respondent's prior
knowledge that a petition filed with the Board raised an issue of representation,
would constitute a frustration of the policies of the Act and a denial of the right
of the employees to self-organization . The agreement is unlawful and by entering
into it the Respondent violated Sections 8 (a) (1) and 8 ( a) (2) of the Act.
Viewing the record as a whole, the evidence bespeaks not merely acts of assist-
ance and support contributed by the Company to the Association , but domination
of the organization and interference with its administration .^ Accordingly, I find
that the Respondent dominated and interfered with the formation and admin-
istration of the Association , and contributed support to it, and that the Re-
spondent thereby violated Sections 8 ( a) (1) and 8 ( a) (2) of the Act.
E. The discharge of Ruth S. Racine
Racine was employed as a braiding-machine operator on the swing shift. She
began her employment in January 1951 and was discharged by Foreman Hall on
November 9, 1951.
The braiding department is divided into 5 aisles lined with braiding machines.
The aisles are consecutively numbered from 1 to 5. Aisles 1, 2, and 3 are in
one-half of the braiding room and 4 and 5 are opposite in the other half, with a
passageway which intersects the room, running between the 2 groups of aisles.
The passageway leads to the plant's so-called main aisle which runs from the
braiding department for most of the length of the plant toward the front of
the building. Each of the numbered aisles consists of 2 rows of machines. There
are 32 or 34 machines in an aisle (both figures are used in the record), con-
sisting of 16 or 17 machines in each row. A braiding operator is assigned to an
aisle for the purpose of attending the machines which line it. Racine was
regularly assigned to aisle 5.
The machines automatically process thread into braid which feeds into bar-
rels, adjacent to the machines, as the braiding process is completed. The opera-
tor's functions, in the main, are to keep the machines supplied with spools or
bobbins of thread, watch for machine breakdowns and defective thread and
braid, and to inspect the braid at given intervals after it is deposited in the
barrels. The operator secures the bobbins of thread from the area of the wind-
ing machines (which wind the thread) which are located outside the braiding
room and are near or adjacent to the main aisle.
Racine discussed union activity with other operators in the plant during
the first of the two periods of the IAM's organizational efforts. When the
union resumed its organizational activity in or about the fall of 1951, she signed
one of its cards and sent it to the organization. As stated earlier, it was she
who placed the "stack of cards" in the restroom, which were subsequently trans-
ferred to the lunchroom where Hall destroyed them.
35 See The Carpenter Steel Company, 76 NLRB 670 ; Fogel Refrigerator Company, 82
NLRB 1302; and Harrison Sheet Steel Co., 94 NLRB 81, enforced 194 F. 2d 407 (C. A. 7).
WESTERN LACE & LINE CO. 1439
Prior to the start of Racine's shift on the day of her discharge, another em-
ployee (unidentified in the record) suggested to Racine that a union meeting be
held at her home. Racine agreed, and the other employee gave her "some cards
and names" and requested her to communicate with "the rest of the girls and
have them come to the meeting."
After the start of her shift that day, Racine invited other employees to the
meeting. Her testimony does not clearly establish all of the places in the plant
in which she spoke to others about the matter. She testified, "I started off im-
mediately and talked to what girls I could find in the restroom and in the
lunchroom, and also during my rest periods and lunch hour I talked to them."
She agreed under cross-examination that she had "some conversation (with,
other employees) with respect to the union . . . sometime around November"
during her lunch period in the lunchroom. Asserting that there was "no ruling
against talking in the plant," she stated, without at that point specifying the
date or dates of the occasion, that while she was at work, "when they brought up
a discussion of what had been said during the lunch hour, I said there were
cards available for everybody." The sense of her testimony is that she did this
while standing at the end of her aisle at the point where it meets the passage-
way. She testified that she "couldn't say positively" to how many of the other
four braiding operators she talked (presumably about union matters), and said
she recalled only one, Eleanor Gabrish Her testimony suggests that she talked
to Gabrish on November 9. The record does not establish what she said to
Gabrish. According to Racine, she asked Gabrish "one question" consisting of
no more than a few words. Hediger testified that Racine invited her to the
meeting a few minutes before the latter was discharged. According to Hediger,
the invitation was extended to her in the twisting department which is adjacent
to the main aisle Hediger was unable to state "how she [Racine] happen[ed]
to be there." Racine denied that she had ever walked away from the end of
her aisle to talk to anybody.
The following is a summary of Racine's version of two incidents involving
Hall shortly before her discharge, of her dismissal by the foreman, and of her
subsequent conversations with Zimmerman and Lippey : At approximately &
p. in. on November 9, she went to the winding machines to fetch some thread
for her machines. While she was standing in the winding department waiting
for some thread, which was then in short supply, to be wound, and "helping (to)
take the spools off the winder" to fill a box she had, Hall called her away and
told her to return to her machines. She stated that she was "only down after
yarn," and he replied, "I know what you are up to." She then began to pick
up the yarn, but put it down, went over to Hall and said, "If I have to go back
to my machines, bring me up the yarn." He told her to pick up the yarn, because
that was her duty and to return to her machines. She was at work in aisle 4,
to which she had been assigned as relief for the regular operator while the
latter was taking her 10-minute rest period. Upon her return, she spread out
the spools of thread in both her regular aisle and aisle 4. Within a few min-
utes after her conversation with Hall, he came to aisle 4, which is not over 4
feet wide, entered it, walked toward Racine as she was walking toward him,
and as he reached her, he "deliberately" pushed her out of his way, so that she
fell against a machine and hurt herself. She rebuked him angrily telling him
that he "had no business to be in the aisle while someone was in it, when it
was so crowded." Hall then discharged her without stating any reason. She
protested that she understood that only Lippey could dismiss her. Hall sum-
moned Zimmerman who asked her if she was leaving, and she replied: "Yes. I
am not satisfied. I was dismissed without charge, and I would like to speak to
1440` DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Lippey." Zimmerman told her that she was free to do so. She came to
the plant the following day and protested her discharge to Lippey. He "seemed
surprised" and "didn't seem to know about the occurrence." She told him that
she had been fired for no reason, and that the only reason she could think of
was that she "had been engaged in union activities." He replied that he would
"have to stand in back of his foreman," and that he did not think that Hall was
a type of man who would push anybody ae
Mary Davis, the braiding room lead girl, who had apparently been appointed
to that position shortly before Racine's discharge, testified that Hall told her
on the day of the discharge," that Racine "was doing an awful lot of talking that
night," and that she replied that it was her feeling that the operators were "able
to talk" (apparently meaning that it was not objectionable) "as long as the
girls ' machines were running." According to Mary Davis, Hall told her later
that evening that he had "had to let Ruth Racine go because she was talking
too much about the union." Hall's testimony contains no denial, in terms, that
he made the statements imputed to him by Mary Davis, although he denied gen-
erally that he had ever had any conversations with her "with respect to union
activity."
Hall asserted that he was unaware of Racine's union membership, and he
denied that any union activities by her were the cause of her dismissal. The
following is a summary of Hall's version of the discharge : Because of the
importance of the Company's production of parachute cord, he had occasion
"from time to time" to request Racine "particularly" to "stay on her line" (aisle
of machines). On the evening in question, because he noticed that "she was
going around over the plant," he kept his "eye open" and as a result saw her
in another department. "She was talking to other girls." He said to her, "Ruth,
please stay back in your own department. . . . Talk to the girls in your own
department. Don't bother these outside." She replied that she would talk to
whom she pleased and that it was none of his business. He turned and walked
away. A few minutes later she came to him, and asked, "If I am not allowed
here, how can I get my material?" He replied that it was permissible for her to
leave her department to get material, and instructed her to "go back on your
job." She said, "Thank you Mr. Boss Man," and returned to her department.
He then had occasion to go to aisle 4 in the braiding department to place a belt
on a machine . While he was at work, Racine was talking to another operator in
aisle 4. Racine "made it her business" to pass him, while he was working on
the machine, and as she did so, she used her hip to give his hip "a boost." After
she passed him, he followed her and asked, "Ruth, do you know what you are
doing?" She replied, "There is not enough room in this aisle for you to be in
with the girls." He returned to the machine to resume his work and Racine
"went back to work." While he was at work on the machine, he "got thinking
it over," and decided "that this must be it." He walked over to Racine and told
her to punch her time card because "we don't need your services any more." She
said that she wanted to see Superintendent Zimmerman, and he agreed. He sum-
moned Zimmerman on the telephone. The latter came to the plant and upheld
Hall. She thereupon left.
M Lippey 's version of the conversation is simply that she came in to ask him the reason
for her discharge , and that he told her that he did not know.
37 The evidence is that the incentive system came into existence on or about November
10 and that so-called supervisors , including Mary Davis , were appointed when the incen-
tive system was installed . As the record does not establish the precise date of the start
of the incentive system and the appointment of the supervisors , and there is no denial that
Mary Davis had such an appointment by November 9, the evidence thus indicates that the
supervisors were appointed, and the incentive system established , somewhat before
November 10.
WESTERN LACE & LINE CO. 1441
Hall also assigned as a reason for Racine's discharge that "new help" found
her uncooperative and "hard to get along with."
Swallow testified that she saw the encounter between Racine and Hall. Ac-
cording to her, she was at work that evening on a thread -winding machine, which
was part of a group of machines called uptwisters . This group was located, she
said , outside the braiding room and separated from it by a wall , and was adjacent
to or near the main aisle, which as noted above, leads to the braiding room and
the passageway which intersects it. An iron railing which parallels the main aisle
outside the braiding room for a short distance separated the aisle from the group
of machines where Swallow was then employed. As the main aisle passes the
area of the uptwisters toward the braiding room it rises on a ramp to reach the
room which is located on a higher level than the rest of the plant. According
to Swallow, thread with which she kept her machine supplied was located on
the ramp underneath the railing. At the point of location of the supplies, the
ramp is about a foot higher than the floor on which Swallow 's machine stood,
and one can pick up the supplies by reaching under the railing and without step-
ping up on the ramp by stooping under the railing or going around it.
According to Swallow, on the occasion in question, she stooped under the rail-
ing, mounted the ramp, picked up an "armload of spools" of thread and stood
facing in the direction of the braiding room. The sense of her testimony is that
the aisle in which the encounter occurred is something over 20 feet from where
she was standing, and she testified that she was in a position where Racine and
Hall "were clearly visible (to her) . . . at all times." Swallow asserted that
after she picked up the spools, she faced toward the braiding room, glanced at it
for "a second or two," and saw Hall enter the aisle of machines where Swallow
was then standing and begin to put a belt on one of the machines. According to
Swallow, Racine was then located farther up the aisle talking to another operator
who was also in the aisle. Swallow testified that Racine "glanced down and
noticed Frank (Hall) and she (Racine) started down the aisle" toward Hall ; that
as he was leaning over the machine on which he was working (facing in Swallow's
direction and with his side toward Racine), Racine "came down the aisle (toward
the foreman) sort of bumped Mr. Hall, and in doing so she knocked herself on the
other side of the line (aisle), hurting herself on the machines." Swallow stated
that when Racine got to Hall's place in the aisle, she "sort of pushed over" toward
Hall, with her hip and that the foreman did not touch Racine "with his hand at
any time."
Some confusing aspects of Swallow's testimony may be noted. At one point
she testified that the machines to which Racine was "customarily" assigned were
in "Line (aisle) 2." At other points, Swallow testified that Racine was regularly
assigned to aisle 5 (which was actually the case). The Hall-Racine encounter
occurred in aisle 4. However, Swallow initially described the incident as taking
place in aisle 5, but her later descriptions place it in aisle 4.
Be that as it may, there are other features of the evidence which militate
against an acceptance of Swallow's account. The machines in aisle 4, as in
other aisles, are behind a plastic splash cloth which protects the thread from
machine oil, and horizontally runs the length of the row of machines (see Re-
spondent's Exhibit No. 11 for a photographic view of the machines in question and
a splash cloth). The bottom edge of the cloth is about 2 feet from the floor, and
the top, approximately 4 feet, 6 inches. As Racine and Hall were in the aisle,
first the splash cloth and then the machines, in that order, were in the line of
vision between Swallow and those in the aisle, more than 20 feet away. The sense
of Swallow's testimony is that Racine "pushed over" toward Hall with her hip,
and this, it may be noted, is what Hall also claims Racine did. At the time in
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question, according to Swallow, Hall's head and the upper part of his shoulders
(he is about 5 feet, 3 or 4 inches tall) were visible above the cloth, and one of his
hands was "between the machines" while he was putting on the belt. Swallow
stated that she did not observe what he was doing with his other hand. She
described the splash cloth as "transparent" and "brand new," although she also
estimated that it had been on for a week at the time of the encounter, and she
claimed that the cloth was clean enough for her to see what she described in her
testimony, asserting that at the top third or fourth of the cloth, "there is almost
no oil," because it usually splashes below that area. Pursuant to a stipulation of
counsel, I inspected the machines in question (the inspection is described in the
record). It is unnecessary to speculate whether the cloth I saw had more oil on
it than the one in use at the time of the Hall-Racine encounter. From what I
saw at the plant, I am persuaded that whether the cloth is free of oil or not, one
can see an object through it at Swallow's distance only if it is held quite close
to the cloth, and then its identification might well depend on the viewer's pre-
conception or knowledge of what the object is The cloth is far from being as
"transparent," whether "brand new" or not, as portions of Swallow's testimony
would lead one to believe. She admittedly saw no physical contact between Hall
and Racine because the cloth obscured her vision. She also agreed that she was
unable to see one of Hall's hands, and in the light of my inspection, I am not at all
persuaded that, from her position, she would have been able to see the hand
"between the machines."' It is plain, even from Swallow's account, that she was
unable to see what Racine did with her hip. Racine is 5 feet, 6 inches in height.
That means that little more than her head was visible above the cloth. I am un-
convinced that with so little of Racine's body in view, Swallow would be able to
observe that Racine, behind the splash cloth and the machines, "sort of pushed
over" toward Hall with her hip. Be that as it may, it is quite apparent that very
little of what Hall and Racine did was "clearly visible" to Swallow at the time
of the encounter, and I am unable to place any reliance on Swallow's assertion,
which she firmly made under direct examination, that Hall did not touch Racine
"with his hand at any time."
Swallow's testimony concerning the incident reflected a spirit of advocacy
rather than objectivity. She admitted that she did not know whether Racine's
duties required her to be in aisle 4 at the time in question. Yet when Swallow
was asked if she knew of her own knowledge whether Racine had business in
aisle 4, she replied in substance that Racine had no right to be in the aisle
"because that is not her work, or her line." In that regard, it may be observed
that the evidence establishes that it was customary for one braiding operator
to look after the machines of another during rest periods, and that the sense of
the undisputed evidence is that the incident occurred during the time of the
staggered rest periods. In connection with the claim that Racine was talking
to another operator in aisle 4, Swallow was asked whether it was "inconsist-
ent" for the two to be working and talking "at the same time," and she replied :
"Well, that is not the point. She was off her line. She should be on Line (aisle) 5
and she was down on Line 4 talking to the girl on Line 4" (emphasis supplied).
Swallow is no longer employed by the Company, but it is also relevant to note,
on the question whether her testimony is disinterested, that she was active in
the formation of the Association, that she, Hall and Disberry handled the Asso-
28During the inspection , Swallow took up the position she claims she was in at the
time of the Ball-Racine incident I placed my hand about 5 inches from the cloth, and
Swallow testified that she was unable to see it, although she later stated that she could
see a blue sleeve I wore after a suggestion was made in her presence that the sleeve be
rolled up and that "the blue color is different from the flesh color."
WESTERN LACE & LINE Co. 1443
ciation 's ballots on one occasion , that she and Hall's wife are close friends, and
that she (Swallow) and her husband "socially visit" Hall and his wife. For
reasons which will be stated later, I do not credit the claim that another oper-
ator, to whom Racine was talking, was present with her in aisle 4 at the time
in question, and the quality of Swallow's testimony is such that I am unable
to regard her relevant account as a credible corroboration of Hall's version of
his encounter with Racine.
Hall's testimony contains some implausible features. All of the production
employees on the swing shift worked under his supervision, and he was vested
with authority to discharge them. According to his account, Racine met his
request that she "please" stay in her own department and "talk to the girls"
there, with an insolent and insubordinate response, that she would talk to whom
she pleased and that it was none of his business . In view of Hall's status and
authority, it is difficult to believe that he would simply turn and walk away,
ignoring the nature of Racine's alleged response. A few minutes later, accord-
ing to Hall's account , he saw Racine talking to another operator in aisle 4. If
this is true it is fair to assume, from the Respondent' s evidence , that one or
the other of the two operators had no business in the aisle . Hall himself
stressed the need for application by the braiding operators to their work. Yet
for all that appears in Hall's testimony he admonished neither operator, ignored
their presence in the same aisle, and busied himself with the machine adjust-
ment until Racine pushed him. It seems implausible that Hall would ignore
Racine's presence in the wrong aisle and her inattention to her work, particu-
larly in the light of Hall's claim that she had only a few minutes earlier made
an insolent and insubordinate response to his request that she attend to her
work.
Another feature of Hall's testimony which may be noted pertains to his
claim that one of the reasons for Racine's discharge was her inability to get
along with new employees. He furnished no details to support his claim. How-
ever, its quality may be considered in the light of testimony he gave about an-
other employee, Garner, whose foreman he had once been. Garner, too, ac-
cording to Hall was responsible for difficulties with other employees. He stated
that "girls would come to me and say, `I want to get on another shift' (to get
away from Garner) or 'I don't want to eat lunch while she is in there'" (ap-
parently while Garner was in the lunchroom). Hall was asked later to identify
the "girls" who, because of Garner, "asked for transfers to other break periods,"
and be identified only one. Questioned about this employee's complaint, Hall
replied, "Well, this girl was very nervous and overweight and she got so bored
she went into the girls work room and ate her lunch until I changed her." Hall
was asked again to describe the difficulty between Garner and the other employee,
and he stated, "Well, you know how girls are. One will tell you something on
the other and the other will say it is not true, or something like that." In the
light of testimony of this quality, I can regard Hall's claim that Racine was
uncooperative with "new help" as no more than a vague generalization, and
I am convinced that it was not a factor in her discharge.
Aside from the claim that Racine was talking to an operator in aisle 4, the
Respondent produced no evidence concerning the rest period assignments of
the operator who was regularly assigned to that aisle. The sense of Racine's
testimony is that her encounter with Hall occurred a few minutes after 6 p. in.
There is no controversy on that point. Her claim that she was relieving the
operator in aisle 4 seems plausible in the light of the uncontroverted evidence
that it was among a braiding operator's duties to relieve other operators during
the latter's rest periods, and that employees took 10-minute rest periods in stag-
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gered shifts between 5: 50 p. in. and 6: 20 p. in. I credit Racine's testimony that
she had been assigned to look after the machine in aisle 4 during the absence
of the operator regularly assigned to the aisle. Similarly, in the light of the
implausibilities in Hall's account, his vague and insubstantial assertion that
Racine was uncooperative with "new help," and other unreliable testimony he
gave, I credit Racine's version of her conversation with Hall in the area of the
winding machines, and of the encounter in aisle 4.
The aisle is narrow and it is apparently impossible for two persons of the
proportions of Hall and Racine to pass each other abreast in the space pro-
vided. Whether Hall pushed Racine to make room for his passage or as an
expression of animus toward her, or for both reasons, need not be decided. The
important question is why he took the occasion of her remonstrance to discharge
her.
The credible evidence establishes a hostility by the Respondent toward self-
organization by its employees, and that Lippey sought to determine which of
the employees were union sympathizers, and expressed a determination to "weed"
them out and "to do anything in order to prevent having a union in this plant."
That Lippey made such statements after Racine' s discharge is beside the point,
for his relevant remarks were part of the pattern of his hostility toward unioni-
zation of the employees, which antedated the discharge . Moreover, I do not
accord controlling weight to Racine's impression that Lippey seemed surprised
when he was informed by Racine of her dismissal. It may mean no more than
that he was personally unaware of Racine' s union sympathies. Be that as it
may, Lippey did not discharge Racine, and the problem is not whether he was
personally aware of the cause of the discharge, but whether Hall discharged
Racine for union activities.
Significantly, Hall testified: "I was told to beware of all unions. We didn't
want any." As set forth earlier in this report, he engaged in unfair labor
practices which implemented the Respondent's policy of defeating its employees'
right of self-organization. Racine was active in the plant on behalf of the
IAM, and it is significant that her discharge occurred soon after she spread the
word among employees that there was to be a union meeting at her house. If
Mary Davis' account of what Hall told her concerning Racine' s discharge is
credible, it is apparent that Hall had a substantial awareness of Racine's activi-
ties. It may be noted in passing that there is no inevitable inconsistency between
Racine's denial that she left her work to talk to other employees and Hediger's
testimony that Racine spoke to her in the twisting department about the meeting
a few minutes before 6 p. in. As noted above, some of the employees took their
rest period between 5: 50 p. in. and 6 p. in. The record does not establish when
Racine took her rest period, and the record will not support an inference that
it was not during her rest period that she spoke to Hediger. Racine named
Hediger as among a group of employees to whom she spoke in the lunchroom
about the meeting. Hediger's testimony made no reference to this occasion, and
Racine's account does not mention a conversation with Hediger in the twisting
department. However, it does not follow that the testimony of either is untrue,
for it may be that they spoke about the meeting on both occasions . In any event,
if the Respondent discharged Racine because she informed other employees of
the meeting at her home, either during their working time or her own, the dis-
charge would still be discriminatory because of the different standards applied
to Racine, on the one hand, and to those who, without reprisal, solicited the
interest of employees in the Association during the working time of such em-
ployees. Moreover, it may be observed, Wright and Cross, both regarded by
the management as supervisors , were not discharged as a result of their instrue-
WESTERN LACE & LINE CO. 1445-
tions to employees to shut off their machines on December 18, thus facilitating
attendance by day-shift employees at the meeting; Hiersemann and Fletcher,
also classified by the Company as supervisors , were not discharged as a conse-
quence of their attendance at the meeting ; and the day-shift employees were paid
for their period of absence on December 18.
With respect to Mary Davis' account of her two conversations with Hall on
the day of Racine's discharge, it may be borne in mind that the Company regarded
Davis as a supervisor, and that not long after the discharge, Hall proposed to
Davis and Hediger that since they were "company girls," they should talk em-
ployees "out of joining the union." In that setting, it is plausible that Hall
would tell Davis that he had discharged Racine "because she was talking too
much about the union." I credit Davis.
I find that the Respondent, in violation of Section 8 (a) (1) and 8 (a) (3)
of the Act, discriminatorily discharged Racine because of her union activities.
As Mary Davis was not in fact a supervisor within the meaning of the Act, I
also find that the Respondent violated Section 8 (a) (1) as a result of Hall's-
statement to Davis concerning the reason for Racine's discharge.
F. The discharge of Mary Gabrish
Mary Gabrish began her employment with the Respondent in July 1951 as a
braider operator on the swing shift in the manufacture of fish lines. She was
transferred at her own request to the day shift several weeks before her dis-
charge . Superintendent Zimmerman discharged her on November 24, 1951.
The Company reemployed her in May 1952 under circumstances to be described
later. At the time of the hearing, she was still in the Respondent's employ,
braiding fish lines and parachute cord. There is no contention that she was not
reemployed in her former position, or a substantially equivalent one, and it may
be assumed that the General Counsel does not seek an order directing her
reinstatement.
Gabrish was an adherent of the TWU prior to her discharge. She discussed
union matters with other employees. The record does not establish the extent
of the discussion or the number of employees to whom she spoke. On the day
preceding her discharge, a few minutes before the end of her shift, while at her
machines, Gabrish asked her sister-in-law, Eleanor Gabrish, who was employed
on the swing shift, to give her some "union cards" of the TWU. Eleanor secured
the cards from another part of the plant and gave them to Mary at the latter's
machines. Later that day Mary Gabrish gave the cards to another employee in
the Company's parking lot which is adjacent to the plant and within its gates.
Gabrish gave the following version of her discharge : About 10 minutes before
the end of her shift on November 24, Zimmerman came to her work station and
said, "I hate to do this, but I have to let you go." She was "kind of shocked,"
and asked the superintendent for the reason for her discharge. He said, "I
can't explain. I will just have to let you go." She inquired, "Is it my work?"
and he replied, "No, you are a good worker. You will just have to draw your
own conclusions. I will have to let you go." After the whistle blew, she sought
out Lippey in his office. Zimmerman was present when she spoke to Lippey.
She complained that she had received no prior notice of her termination and
had been given no reason for her dismissal. Lippey replied that he was sure
the superintendent "had good reason," and Zimmerman said , "I told you at your
machines , Gabrish," and he added, "due to some changes we are going to put an
older girl on your machines." She left after Lippey said that he was busy,
was unable to talk to her then, and would discuss the matter with her later.
257965-54-vol . 103-92
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Zimmerman asserted that when he discharged Gabrish he did not know whether
she was a union member "or had done any work for any union." The reason
for her discharge, he stated, was that "she was not an efficient worker." He
testified that he had "noticed on various occasions that her equipment was not
running and that she had not inspected her work as she was supposed to, and
that she was sitting down reading a magazine while the machine was down."
He stated that he had observed her reading "several times," and that a few days
before her discharge, he had "talked to her and asked her not to do it." Accord-
ing to Zimmerman, there were occasions when he saw Gabrish away from her
machines "in places in the plant where she had no business to be," and he
pointed out that she had to attend to 150 machines which required her undivided
attention "the biggest share of the time." He agreed, however, that the machines
did not require her attention when they were all running. He asserted that
when he discharged Gabrish, he "had in mind" that several other employees had
told him that Gabrish "spent a lot of time in the restroom when she was supposed
to be on the job working." He also stated that he had been told by the "night
foreman" that the condition in which Gabrish left her machines at the end of her
shift was "very poor." Zimmerman said that what he meant by that was that the
machines were left with "a lot of run out bobbins, thus causing them to stop,
and that "just general," the machines, as they were left, were "not up to what
they were supposed to be." The superintendent agreed that the request for a
transfer to the day shift had originated with Gabrish. According to Zimmerman,
when he discussed the question with Gabrish's foreman (Hall), the latter said
that her work was "mediocre."
Describing his conversation with Gabrish at the time she asserts she was
discharged, Zimmerman testified, "I told her that due to the neglect of her job,
and due to the fact that she had been warned about it and she didn't show any
improvement, that we would have to lay her off temporarily, and with the
possibility of rehiring her at a later date if she can prove to us that she is willing
to do her work the way she is supposed to do and the way she is asked to do it."
She replied, according to Zimmerman, "that she wasn't satisfied with that, that
she wanted to see Mr. Lippey," and he stated that that was her privilege and
that she could see Lippey at any time.
In rebuttal, Gabrish denied that Zimmerman had ever criticized her for her
work or had told her that she was taking too much time in the restroom. She
testified, without dispute, that on the swing shift she was initially assigned to
work with another employee, who instructed her, on 350 fish-line braiding ma-
chines ; that after the passage of a week, Hall assigned the other employee to
other work; that she (Gabrish) expressed some doubt to Hall that she could
operate so many machines by herself, but he encouraged her to try it, expressing
himself as "well satisfied" with her work ; that about a month later Hall com-
plimented her again on her performance ; that she operated the machines by
herself for about 3 months, and was then "transferred to the super grade fish
line" ; that she instructed two employees to operate the 350 machines as her
successors ; and that these two then did the work which she had formerly done
alone.
As stated above, the Company reemployed Gabrish. On May 6, 1952, it wrote
her a special delivery letter, stating that "we have a job available for you,"
requesting her to report at the plant on the following day, and specifying that
if she did not report by the time fixed in the letter, her failure to do so would
"indicate that you are not interested in employment" by the Company. She
came to the plant the next day and spoke to Irving Miller, the personnel man-
WESTERN LACE & LINE Co. 1447
ager . He told her that he would be "very frank" with her , that the Company
was "having trouble with the Labor Board and that they didn't want any
trouble"; that Zimmerman was no longer with the firm ; that he (Miller ) did not
know why she "was let go," but that was no concern of his ; and that the job
"might not be permanent because he didn't know how things are going to be,"
but that the Company would "try [her] out." 39
The weight of the credible evidence , some of it undisputed , does not support
Zimmerman's claim that he discharged Gabrish for the reasons he assigned in his
testimony. Neither his testimony nor that of Lippey controverts her version of
the conversation in Lippey's office after her discharge. It is thus undisputed
that she complained there that Zimmerman had given her no reason for her
dismissal, and this tends to support her version of her previous conversation
with Zimmerman. It is also undisputed' that in the office Zimmerman responded
to her complaint by stating, "I told you at your machines," and then adding,
"Due to some changes we are going to put an older girl on your machines." The
record , in the light of Gabrish 's demeanor as a witness , presents no reason to
reject her testimony concerning the conversation in the office, and I credit her
description of what occurred there.
It is also noteworthy that the picture Zimmerman drew of Gabrish as an
employee who was inefficient, neglected her machines, leaving them in a "very
poor" condition, read while at work, reportedly spent too much time in the
restroom, and absented herself from her work station to visit places in the
plant where she had no business, is not quite compatible with Zimmerman's claim
that he told Gabrish that her layoff was temporary and that there was a "possi-
bility" that she might be employed at a later date if she could "prove" that she
would do her work properly. He sought to explain the matter by stating that
in his long experience, he had found that "if you take and lay a person off and
show them that you mean business and leave them out for a week or so, .. .
you have a better employee ." The explanation has an implausible flavor in
Gabrish's case. First, Zimmerman admitted that he never attempted to reem-
ploy Gabrish, and this suggests that his purpose was not to let her go "for a
week or so." Second, he gave some curious testimony in relation to what Gabrish
would have to do to "prove" that her performance would be better as a condition
of reemployment. With respect to such proof, he asserted that be would discuss
the matter with the personnel department and consult its records to determine
the "quality" of her past performance (it may be observed that this testimony
is not responsive to the question of what Gabrish would be required to "prove").
However, it turned out that such records relate only to such matters as attend-
ance, absenteeism and tardiness , that these factors did not enter into the decision
to discharge Gabrish, and that he had not discussed his action with the per-
sonnel department. When this became apparent, Zimmerman was asked again
how he would expect that Gabrish "would prove her efficiency" later as a condi-
tion of reemployment. He replied that "simply by virtue of the fact that if she
came back and asked for the job and we had an opening for her, I would be
willing to take her back with the assurance that she was going to mend her ways
and do a job and do it right. That is the only way I had to find out whether she
could or not." Aside from the fact that this "only way" does not square with
Zimmerman's assertion that he would seek to prove Gabrish's worthiness by
se Gahr:sh's version of her conversation with Miller is undisputed Miller did not testify
upon advice of a doctor because of a heart condition. It may be noted, however, that
some 10 days after Gabrish testified to the conversation, the Respondent, under a stipula-
tion of counsel, introduced an affidavit by Miller giving his version of certain controverted
evidence . The affidavit makes no reference to the conversation with Gabrish
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consulting the personnel department and its records , it may be observed that
the sense of Zimmerman 's testimony is that his admonitions to Gabrish had,
had so little result that he had had to lay her off, and it would thus appear, if his
testimony is credible, that her assurance would constitute an infirm basis for
her reemployment, even with the aid of a layoff to demonstrate the need to her
for mending her ways. Be that as it may, I think it implausible that Zimmerman
would only "temporarily" lay off Gabrish, if her performance was as poor as
be claims it was. When it is borne in mind that Gabrish's testimony concerning
her performance on the swing shift is undisputed except for Zimmerman 's claim
that Hall had told him her work was "mediocre," I can perceive no credible basis.
in Zimmerman's testimony to warrant the conclusion that her work became
substandard on the day shift.
Zimmerman's claim that Gabrish was laid off only "temporarily" suggests
an effort by the Respondent to reconcile the claim of her inefficiency with the
hard fact that she was reemployed some 6 months after her discharge. Whether
such is the case or not, the claim that she was inefficient is not supported by
evidence that I can regard as credible, in the light of the implausibilities in
Zimmerman's testimony, Gabrish's undisputed evidence describing her single
attendance on the fish-line machines while on the swing shift, the credible evi-
dence of the variance between the justification Zimmerman gave in Lippey's
office for the discharge and what he now asserts were the reasons for a temporary
layoff, and Gabrish's reemployment by the Company. I credit Gabrish's version
of her conversation with Zimmerman at the time of her discharge.
Gabrish's discharge soon followed her open receipt of the "union cards" and
their transfer to another employee. Zimmerman's initial refusal to give her
any explanation for her discharge and his admonition that she would have to.
draw her "own conclusions" concerning her dismissal are quite meaningful, in
the light of the record as a whole. It is evident that he either knew or assumed
that she was a union adherent or had engaged in union activity. Moreover, the
reason for the discharge which Zimmerman gave in Lippey's office was no more
than an improvisation to conceal the real reason for the dismissal, and such
concealment plausibly suggests that the hidden motivation was hostility toward
Gabrish's union sympathies or activities. The timing of the discharge is quite
significant. It came soon after the IAM requested recognition and the TWU had
begun its distribution of leaflets, and occurred in a setting of apparently height-
ening efforts by one or the other union to organize the employees. Significantly,
also it came in a setting of other unfair labor practices by the Company, and
shortly before the dominated Association was formed. I have no doubt that
Gabrish's discharge was a product of the Company's resolution, expressed by
Lippey, to "weed out" union adherents and to prevent the organization of the
plant. Accordingly, I find that the Respondent discharged Gabrish because of
her union sympathies and activities. The Respondent thereby violated Section
8 (a) (1) and 8 (a) (3) of the Act.
G. The discharge of Jeanne Garner
Jeanne Garner 's employment by the Company began in August 1950. She
worked on the graveyard shift throughout her employment . Until May 1, 1951,
her function was to reel thread used in the manufacture of parachute cord.
She was transferred on that date to the braiding department where she worked
as a braiding operator.
The work of a braiding operator is more responsible than that of a reeler. Cross
proposed the transfer to Garner and she agreed . In suggesting it, the foreman,
WESTERN LACE & LINE CO. 1449
told Garner that he had discussed the matter with Lippey and another manage-
ment representative named Henry Levore ( Levore set up the incentive system),"
and that both Lippey and Levore had described her as "capable and ambitious"
and "never absent.'P 41
Garner actively engaged in union activities in the plant. So far as the record
indicates , her activities began on November 10, 1951 , with attendance at a meeting
which was held at Racine 's house on the day after that employee 's discharge.
The arrangements Racine made for the meeting have been described above.' The
purpose of the meeting was, in Garner 's words, "to decide if there were enough
girls interested to call in the union to represent us." The upshot of the meeting
was that those present delegated Garner "to talk to the union ," as she put it. She
communicated with the IAM and requested one of its representatives to "come to
the plant or visit us" in connection with the organization of the employees."
Garner "handed out authorization cards for the union ," talked during lunch
periods to other employees concerning union benefits, handprinted a few leaflets
setting forth what she thought were the benefits of unionization , and placed them
in the restroom and lunchroom . The IAM prepared a circular addressed to "The
Employees of the Western Fishing Lines Company ," summarizing the contents
of its request for recognition , stating that the request had been sent to the Com-
pany, and urging employees to sign authorization cards. The union sent a copy
to Garner , and she posted it on the plant bulletin board shortly before her shift
began on November 20, 1951 , together with one of her handprinted leaflets. The
bulletin board is near the women 's restroom . As Garner finished posting the
material , Helen Davis , the lead girl in Garner 's department , came out of the
restroom. When Garner came in the following day, she saw that both aucuments
were gone from the bulletin board . As noted earlier , the record does not identify
the person who removed them.
+e Levore is referred to in the record at points as the plant 's "production manager." The
sense of the evidence at other places is that he is an efficiency or industrial engineer who
supervised the installation and operation of the incentive system.
42 Cross described Garner 's performance on the reelers as "fair ." Although agreeing
that a braiding operator 's work was more "responsible" than that of a reeler , he stated
that he transferred Garner because she was having a "great deal of trouble " with the
twisting and reeling operators . He testified that he told Garner that as a braider, "she
would be all by herself " and that the transfer "would be better for herself and the com-
pany ." The findings made with respect to the transfer are based on Garner 's testimony.
Her testimony sounds a plausible note in the light of the emphasis placed by the Respond-
ent on the great care required of braiding operators . Moreover , it is undisputed that
shortly before the incentive system went into effect , Levore complimented Garner as a
"good operator." I do not credit Cross ' account of the reasons for the transfer.
"Garner expressed the belief that the meeting was held on November 8. However, she
stated that it was held on a Saturday . November 10 fell on a Saturday . In the light of
that fact , and from the context of Racine's testimony , I have concluded that the meeting
was held on November 10, and was the one to which Racine invited employees on November
'9, the day of her discharge.
43 Racine's testimony is to the effect that she signed a card for the TAM and distributed
that union 's cards prior to her discharge , and thus before the meeting at her house. I
have given consideration to the question whether Racine 's testimony is inconsistent with
-Garner 's concerning the purpose of the meeting . Racine's account does not indicate where
she got the cards, nor does it establish whether she had any personal contacts with
representatives of the TAM In the fall of 1951 , prior to her discharge . She participated
in organizational activities during the TAM 's efforts early in 1951 , and it may be that
her possession and distribution of cards in the fall were an outgrowth of her earlier inter-
est. In the state of the record , I am unable to conclude that Racine's account of her
activities is inconsistent with Garner 's description of the purpose of the meeting and
what occurred there. It may be noted that the IAM's request for recognition came about
10 days after the time when Garner asserts she was delegated to communicate with the
union . I credit her account of the meeting and what she did as a result of it.
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About 2 days later, Helen Davis told Garner that she and Wright had been
talking to Lippey in the lunchroom, and that Lippey was "mad about the union
activities." As Davis related her conversation with Lippey to Garner, he had told
the two lead girls that he had no objection to a "decent union," but that one of
the IAM's representatives was a "hoodlum" and "racketeer" who would "take our
money and give us no benefits." Davis also quoted Lippey as asking Wright and
herself "how many girls were interested in a union." Garner remarked to Davis,
"Helen, I hope you won't be foolish enough to tell him." Davis asked Garner,
"How do you feel about it?" and Garner replied, "Helen, you know how I feel
about it. You know my attitude." "
Foreman Cross discharged Garner at the end of her shift on November 24,
1951. Garner testified that Cross told her : "Jeanne, I have some bad news for
you. I have to lay you off. There are many things in life a person don't like to
do, and this is one of them. I hate to let you go, but I have orders." When she
asked for the reason, according to her account, Cross recollected that she had
been "talking about the six cents bonus" and a "rumor" that "the day shift got
that differential" (from the context of the evidence, apparently a rumor that
the day-shift employees had received an increase to equal the differential paid
employees on the other shifts), and the foreman stated, in substance, that the
reason for her discharge was that she had been "talking too much" about the
matter. She agreed, she testified, that she had "talked about it," and pointed out
that "everybody on the shift was talking about it, including yourself," to which
('ross replied that such was the case. Then Garner stated, she asked Cross
whether Lippey had issued the orders for her discharge, and Cross replied that
they had come from Lippey. According to Garner, the conversation closed with a
statement by her that she would talk to Lippey about her discharge. Garner also
testified that later that morning she spoke to Lippey, telling him that she had
"received quite a shock" when Cross had discharged her "with no reason" after
she had worked for the Company for 15 months ; that Lippey denied that he had
told Cross to discharge her; that she asked Lippey whether she could return to
work if the foreman approved ; and that Lippey said, "You better skip it," and
turned and walked away.
44 Findings concerning the conversation between Helen Davis and Garner are based on
the latter's testimony Davis' testimony contains no denial of the terms of the conversa-
tion with Garner. Davis testified, however, that at the time when she was appointed a
supervisor, Lippey summoned her and Wright, that he asked them if they "had heard any
rumors about union activity"; that he said that "if the girls wanted unions," he "was all
for it" ; that he said that because they (Davis and Wright) were "part of management,"
they "would be interested in something of that sort (the union activity) that was taking
place in the plant", and that he would not "try to stop" them from joining a union, but
that he did not believe that they would be allowed to join because of their supervisory
status. Davis' claim that Lippey said that he "was all for" unions, if the employees
"wanted unions" is not quite consistent with Hall's testimony that he was "told to beware
of all unions" and that the management "didn't want any " Be that as it may, Garner's
version of her conversation with Davis was received over the objection of the Respondent.
The Respondent moved to strike the relevant testimony, and decision was reserved on the
matter. The fact that Helen Davis was not a supervisor within the meaning of the Act
does not, under the particular circumstances of the case, render the evidence inadmissible.
As already pointed out, the Company classified her as a supervisor, held her out as such,
and regarded her, like the other lead girls, as a part of management Significantly, both
Lippey and Hall, only a few days prior to the incident in question, requested Hediger and
Mary Davis to discourage union sympathies among the employees, invoking the status of
the two lead girls as a justification for the request Moreover, Helen Davis was among
those who only a short time later helped to organize the Association, which the Company
dominated. In the setting of the evidence as a whole , Garner's testimony is admissible
and relevant, among other things, to the question whether the Respondent is chargeable
with knowledge of Garner's "attitude" toward unionization of the employees. The motion
to strike the testimony is denied.
WESTERN LACE & LINE Co. 1451
Cross testified that he neither knew nor cared about Garner' s union activities.
He denied that he informed her that he was discharging "her for spreading a
rumor about a six cent raise," asserting that he told her that "she had been
talking too much and raising too much commotion." He stated that "she did
start a couple" of rumors but that such conduct did not enter into his decision
to discharge her. According to his testimony, he discharged Garner on his own
initiative and without prior instructions from any of his superiors.
Stressing the need for great care in the manufacture of parachute cord, and
the requirement that braiding operators apply themselves closely to their du-
ties, Cross described the considerations which prompted him to discharge Gar-
ner. Initially he testified that "she was away from the machines a lot . . .
was causing a lot of trouble among the twisters, and quarreling with the girls."
He asserted that he "told her that she should be on the job and shouldn't be
quarreling with the girls," estimating that this admonition was first given to
Garner in August or September 1951, although "it might have been earlier." The
last time he spoke to her "about the matter," he testified, was about a week
before her termination when he "talked to her about being away from the
machines and spending too much time in the dye house talking to the man who
does the dyeing." Cross added at that point in his account that "at times" he
"would walk into her line (aisle of machines) and she would be reading a maga-
zine or paper and she wouldn't be at her machines," that when a belt comes off
a machine, it is the operator's duty to turn on a light which is a signal to him
"all over the plant" to come and fix the machine; and that there were occasions
when he observed that Garner had failed to turn on lights when "several belts"
were off her machines. The foreman also stated that about 2 weeks before her
termination, he noticed Garner sitting at the end of her aisle, looking "kind
of tired," and he asked her, "What's the matter, Garner? Don't you feel good" ;
that she replied that she was "feeling pretty good" ; that he then inquired
whether she was tired ; and that she answered, "Yes. You know, after I leave
here I go on another job. I do research work at du Pont. I earn $15.00." After
the foregoing testimony, Cross asserted that the "main reason for terminating
Garner was that she was causing trouble, not being on the job that she should
be on, and I felt that holding two jobs, that it was impossible to give the com-
pany the proper attention to her work." Helen Davis testified that at "various
times" Garner would leave her machines and go to other departments and
would do so "maybe two or three times a night" to talk to other employees;
and that Garner would not inspect her braid properly. Davis stated that she
informed Cross that Garner left her machines unattended and did not inspect
her braid properly.
Garner denied that she left her machines in order to talk with other em-
ployees after the incentive system went into effect. The sense of her testimony
is that during that period, the machines were speedier and greater in number
than was the case prior to the installation of the system, and that in these cir-
cumstances an operator had to be "alert" in order "to make a bonus" and that
"there was no time to go and gossip." The pace was more leisurely, according
to her testimony, prior to the establishment of the bonus system, and the
sense of Garner's testimony, as well as that of other witnesses (Mary Davis,
Helen Davis, and Racine) is it was not unusual for braiding operators, when
their machines were running smoothly, to stand in the passageway at the end of
their aisles and engage in conversation. Garner testified that in those circum-
stances, when her machines were running and she had "a moment or two" and
"wasn't actually busy on the operation of the machines," she talked with other
operators while standing in the passageway. " On occasions ," she agreed,
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she would cross to another operator's aisle and talk to her. The import of
Garner's testimony is that she was never criticized for this practice. On one
occasion, Garner stated, in the summer of 1951, Cross told her "to be sure and
check (her) braid once an hour." Aside from that instance, Garner testified,
no criticism of her work was ever voiced to her either by Cross or any other
"representative of management." She also stated that "as close to the hour as
I could I checked my braid, at regular intervals," and that, in addition, because
of the relief system in effect, she inspected the braid both before and after her
rest and lunch periods. She was never told that she was discharged because of
improper inspection, she testified, nor was she ever criticized, according to her
account, for employing the periodic inspection method described above.
Garner's version of her discussion with Cross about other employment is that
the conversation occurred in the lunchroom 4 or 5 months before her discharge;
that amid a discussion between her and the foreman concerning stock market
reports and du Pont, whose products the Respondent uses, she told Cross that
she "had done advertising research for du Pont" and had "earned very good
money" ; and that she did not tell him that she was then employed in such work.
According to Garner, she had held the job for 2 or 3 months after she began to
work for the Respondent and she asserted that at the time of her conversation
with Cross, she was not employed by du Pont ; that neither Cross nor any other
management representative had ever criticized her for such employment or
requested her to discontinue it; and that the matter was not mentioned at the
time of her discharge.
In support of its claim that Garner produced defective braid, the Respondent
introduced 15 forms purportedly reflecting production data for the braiding
operators on the graveyard shift for a period of 14 days between November 6
and 23, 1951, inclusive, which constituted the department's working days dur-
ing the indicated period. There are 2 sheets for November 6 (a matter to which
later reference will be made). Each sheet lists the names of all the braiding
operators with columns for the insertion of data applicable to each employee.
One column is labeled "Defects," and another "Yards Lost" (presumbaly be-
cause of defects). The "Defects" column is divided into 2 parts, 1 reflect-
ing defects attributable to the operators' machines, and the other to record de-
fective work chargeable to her. The notations in the "Defects" column, where
they appear, consist simply of small vertical pencil strokes, each one apparently
representing one defect for the operator opposite whose name it is placed. The
column for "Yards Lost" does not distinguish between loss of yardage charge-
able to the operator and that for which the machines were responsible. By
means of the pencil strokes, the forms reflect defects chargeable to Garner on
every one of the days covered by the period. Some of the sheets contain more
than 1 such pencil stroke for Garner. For future reference, it may be noted that
4 appear for November 12; 3 on each of the forms for November 19, 20, and 21;
and 2 on the form for November 23. The records reflect no defects chargeable
to any other operator, except as shown by 1 pencil stroke opposite the name of
June Glenn on the sheet for November 10, and 1 for Marie Watson on the record
for November 12. It was the function of the lead girl on each shift to fill out
such forms. Helen Davis gave no testimony authenticating the pencil strokes
or verifying their truth or accuracy.45 Later reference will be made to the docu-
ments in question.
16 The records were received in evidence after the parties stipulated that if called as a
witness, Irving Miller, the personnel manager, would testify that they "were kept in the
ordinary course of business , and were kept under his custody and control ." As stated pre-
viously, Miller did not testify upon advice of a physician.
WESTERN LACE & LINE CO. 1453
According to Garner, she and the other operators were "very conscious" of
imperfections in the parachute braid they produced, "always" discussing them
among themselves and comparing notes about them. She stated that she and
the other operators, except Margaret Leach, each averaged about 5 or 6 defects
a week (it is not clear from Garner's testimony at this point whether the defects
she described were those attributable to the machine or the operator, or to
both). According to Garner, Leach had a greater number because she used
some "old machines" which had been "overhauled." Garner was shown the pro-
duction forms. Referring to the one for November 12, which attributes 4 defects
to her , she expressed the belief that there were 1 or 2 occasions when she was
responsible for 4 defects in 1 night, but that she could not remember that par-
ticular day. She stated, in effect, that an operator is aware in the course of a
shift of the number of errors chargeable to her because of the role she plays with
the supervisor in the repair of defective braid ; that November 19, 20, and 21
stood out in her memory because they were 3 of her last 4 days of employment ;
that the records for those dates, which reflect a total of 9 defects chargeable to
her, are inaccurate because she has never had that many in any week of her
employment ; and that she had "possibly" a "total of 3 defects" for the 3 dates
in question.
Cross testified that another factor in Garner's discharge was that she cheated
the Company by interfering with the operation of meters which are connected
to the braiding machines and register information used to compute the incentive
earnings of braiding operators. The meters record time factors, while a machine
is stopped, which "register against" the operator, so that it is to her advantage,
as Cross put it, "to hurry and get their machine going, because that is counting
against them." Machines may stop or be shut down for various reasons, as when
depleted spools are removed and replaced with threaded ones, or defects develop
in the thread. Sometimes a machine stops, or is shut down by the operator, be-
cause of its malfunction. In that event, it is the operator's duty to notify the
foreman, through the light signals mentioned above, so that he may come and
make the necessary repairs. While a machine is shut down, the meter can be
prevented from registering by propping the machine handle with bobbins or
other objects, referred to in the record as "cheaters." According to Cross, Garner
engaged in "cheating" by using such props to prevent meters from registering.
He said that he had not seen Garner place the props in position, but he asserted
that he had observed them on her machines. The foreman stated that he, too,
used such props, "so the girl wouldn't be losing anything," while the machine was
being repaired or adjusted by him, and he admitted that there were "times when
the girls would have to wait as long as half an hour" before he could attend to
machines which required his services. Similarly, according to Cross, if the
supervisor is not available to turn off the meter, "when the machine isn't able
to run and it is registering against her, and when it isn't the operator's fault,"
the operator "has a right to put something under the handle so that the machine
don't register." He said that Helen Davis "should"' have known about the oper-
ator's "right to stop the registration of the meter" in such circumstances. Cross
agreed that Garner used the props on occasions when machines were awaiting
his attention, but he stated that she used the props "many times" when machines
did not need adjustment or repair by him. At another place in his testimony he
stated that he saw the props in use on Garner's machines 3 times in all and that
they were used on 2 or 3 machines on each occasion. He testified that he had
"caught" other employees propping their machine handles on "several" occasions,
that he spoke to them about the matter, and that he did not see them engaging
in the practice thereafter. According to Cross, he did not report Garner or the
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other employees to his superiors because the matter was his responsibility.
About 3 weeks before he discharged Garner, Cross testified, he told her not to
engage in the propping practice "because that was cheating on the company."
After attributing this practice to Garner, Cross was asked whether that was
one of the reasons for Sher discharge , and he testified, "Partly, yes. There were
several things I discharged her for. This not the main one."
Helen Davis also asserted that she saw handles on Garner's machines "propped
up," stating that she could not remember when she observed this. Davis testified
that she "didn't want to see it, because that is cheating." She named two other
operators in her section who had engaged in the practice, but she did nothing
about the matter, she testified, and reported it to none of her supervisors, although
she knew that she was regarded as a "part of management." There was "no
special reason," according to her testimony, why she failed to report the "cheat-
ing" by Garner and the others.
According to Garner and Leach, the use of a prop under a machine handle to pre-
vent the meter from registering was common among the braiding operators.
Both employees agreed that they used such props either when it was necessary
to stop a machine in order to check its spools or bobbins, or because a machine
became defective. "Sometimes," as Garner put it, "the mechanic was busy with
things and couldn't answer your trouble light," and in such circumstances, she
stated, she and other operators would prop the machine handle until the
"mechanic" arrived, and he would then turn off the meter switch. In connection
with checking spools, Garner testified that she used a prop when it was necessary
to locate a tight spool of thread (which may result in defective braid) ; that in
some situations it may take 10 or more minutes to check the 34 spools on a
machine by testing some yardage on each spool, then rewinding them; that
meanwhile other machines may be requiring attention ; and that she would there-
fore prop the handle of the machine with the tight thread until she could return
to locate the trouble after attending to her other machines. Garner denied, in
effect, that she ever propped the machine handle under any circumstances than
those outlined by her, and she asserted that she was never criticized for the prac-
tice either by Cross or any other management representative, and that neither
Cross nor anyone else ever informed her that she had been discharged for prop-
ping machine handles to prevent meters from registering. Garner also testified
that about 2 weeks prior to her discharge, because one of the braiding operators
had been propping machine handles for other reasons than those described above,
Helen Davis told her and another operator, "If you use a cheater, set up your
thread, just honestly. If you do it too much your points are so low that it is very
obvious that you are cheating." According to Garner, Helen Davis also said at
the time, "If any of the girls are using cheaters, just be sure Henry (Levore)
doesn't see you use them." Leach testified that after she observed other opera-
tors using "cheaters," she asked Helen Davis where she could secure them, and
that Davis offered to bring her one, and subsequently did. According to Leach,
the handle props were first used only when a machine broke down, but the prac-
tice was then extended, she testified, until it "rather snowballed." Because it
became too extensive, Leach stated, Helen Davis said that "some of the girls
were running their scores so low that the company couldn't hell) but notice that
they were using them to the extent they were," and that the "cheaters" should not
"be used that much." Helen Davis said nothing, according to Leach , "about
stopping their use altogether."
Both Davis and Cross described conduct by Garner, which according to them,
resulted in difficulties with other operators. Cross testified that throughout
Garner's employment on his shift she caused complications with other employees
WESTERN LACE & LINE CO. 1455
because of her practice of turning on ventilating blowers in the braiding room,
causing other employees to complain to him. He was asked when the difficulty
occurred, and initially he replied that he could not remember, but he subse-
quently asserted that the "trouble involving" the blowers "was going on all
the time ; all while she (Garner) was on the shift." He stated that he could
not remember the names of the employees who complained. His attention was
directed to the month of November, and he repeated his claim of a lack of recol-
lection of the names of those who complained. He was then informed of the
names of the braiding operators who were employed in November on his shift,
and he identified only June Glenn as one who complained, but he said that he
could not remember whether she did so during November. Helen Davis testified
that the controversy over the blowers developed before she was designated as a
supervisor, and that it continued after her appointment. There were "various
disputes," according to Davis, between Garner and other employees because
Garner would turn the blowers on, stating that she was warm, over the pro-
tests of others who complained of the cold air from the blowers. Davis stated
that she "couldn't stand" the blowers, and that Garner turned them on "prac-
tically" "every other night or so." During the period after she was appointed
as supervisor, Davis testified, "the girls didn't holler as much" ; one employee
"told her (Garner) off, but the other girls wouldn't say anything. They would
grin and bear it." Davis also stated that she reported the matter to Cross
(apparently after her designation as supervisor) ; that he "said everyone was to
leave the blowers alone except himself or me" (Davis) ; that she told Garner
about his instructions ; that Garner did not "leave the blowers alone" ; and that
she (Davis) did nothing about the matter, "except tell him (Cross) again."
At a later point in her testimony, Davis stated that at the time of the "discus-
sion or dispute" over the blowers between Garner and other operators, the
braiding room did not yet have five aisles of braiding machines. From the
context of the record as a whole (see, for example, the testimony of Racine,
Swallow and Hall concerning the number of aisles on November 9), this would
suggest that the "discussion or dispute" occurred before the incentive system
was installed (on or about November 10). Davis agreed that the ventilation
at Garner's work station "wasn't any too good," but she asserted that she and
Gross suggested that Garner exchange aisles with another employee, and that
Garner declined to do so. According to Davis, the suggestion was made "before,
^or right around that time, when I came a supervisor." According to Davis
and Cross, Garner caused difficulties for other employees by taking an undue
proportion of large spools of thread for her machines, leaving spools with less
thread on them for other operators, so that there would be minimal interruption
to her production necessitated by changing depleted spools, thus enabling her
to maintain her incentive earnings at the expense of other operators46 Cross
asserted that he also saw Garner replace depleted spools during her shift with
.spools containing relatively little thread, with the result that the replacements
would run out during the next shift, placing a "material burden" on the day-
shift operator who succeeded Garner at the machines. Cross said that as a
result, "when the other shift would come in there would be an awful lot of com-
plaints." Such complaints were made "several times," Cross stated. When
" On one occasion, according to Davis, Garner "lined up pan after pan" of spools at
her machines, and Leach, who "had none," took the pans, as a result of which Garner
"wouldn't speak to" Leach. Leach was asked a question (apparently not responsive to
the incident described by Davis) by the Respondent's counsel whether Garner had ever
taken any bobbins from Leach. She replied that Garner had not done so. The matter
was not pursued further.
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked to identify the individuals who complained, he said that he was unable to
remember "who they are." He also testified that all the day-shift operators
complained that small spools had been left on the machines in their respective
aisles, although it may be noted that Garner was regularly assigned to aisle 1.
With respect to the blowers, Garner testified that she turned them on because
she was situated "in an extremely warm part of the room," and there "was no
cross-ventilation." None of the operators, she asserted, complained to her or
engaged in any controversy with her about the matter, but Helen Davis, she
testified, "was always after me about putting the blowers on. Every time she
came in to inspect our braid she would turn the switch off." According to Garner,
she had only one conversation with Cross about the matter, and that was about 3
months before her discharge, after she noticed that a sign had been placed over
the blower switch, stating "Do not turn these blowers on." Garner testified that
she inquired of Cross about the matter in the braiding room ; that he stated that
he had posted the sign because he had "been informed that other braiders are-
bothered from the blowers" ; that she told Cross that she had "asked the girls
and they said it did not bother them" ; and that one of the other operators in-
formed Cross that the blowers Garner turned on did not "affect our side of the
room" and that she was not bothered by them. Aside from Helen Davis, accord-
ing to Garner she received no criticism from anyone after that with respect to her-
use of the blowers, nor was she informed at the time of her dismissal that she-
was discharged because of her use of the blowers or any controversy concern-
ing them. Without any description of the circumstances, Garner agreed that
Cross offered her a change of aisles.
With respect to the condition in which she left her machines for the day-shift
operator in aisle 1, Garner testified that she received no complaint from that
employee. She also asserted that Cross never told her that he had received
complaints concerning the condition of her machines.
Although not reflected in his initial versions of the reasons for Garner'&
dl scharge, according to later portions of Cross' testimony, a factor that entered
into his decision to discharge Garner was that she had made statements (to
other employees) that she would "slap the face of her supervisor," Helen Davis.
According to Cross, Davis reported the incident to him, and in a conversation
he had with both, he testified, Garner denied making the statements, calling
Davis a liar, but when Davis "proved" Garner "was a liar," the latter apologized.
Cross asserted that he could not recall how long before the discharge this incident
occurred. Davis described some words she had with Garner about the matter,
stating in substance that she dared Garner to slap her face but that the latter did
not do so. Contrary to Cross' claim, Davis testified at one point that she did not
report the incident to anyone, intimating in her testimony that she did not do
so because she regarded it as a personal matter. Later Davis stated that she
could not recall whether she informed any management representative of the
incident. However, at still a later point she testified that she reported her
conversation to Cross and that "he just let it go at that". She stated that she
discussed the incident with the foreman "maybe a week" before Garner's dis-
charge. One witness, Patricia Maxey, who left the Respondent's employ on
October 5, 1951, resuming her employment some months after Garner's discharge,
testified that she heard Garner state to employees in the lunchroom, with respect
to Davis, that she (Garner) would not take orders from "any goddam woman."
Maxey quit her employment before Davis was designated as a supervisor. Her
testimony concerning the period when the alleged remark was made is self-
contradictory and confused. At first she expressed the thought that the state-
ment was made in June 1951; then she testified that it was made "after certain
WESTERN LACE & LINE CO. 1457
girls were appointed to be supervisors." In that regard, it will be recalled that
the supervisory classifications were not established until November, about a
month after Maxey's termination. It may also be noted, parenthetically, that
Maxey, in referring to an alleged "argument" between Davis and Garner in
the coffeeroom about "the union" in April 1951, described Davis as a "little
bit of a boss over the braiders.s97
On the issue whether Garner had made a statement that she would take no
orders from "any goddam woman," Garner described a conservation between
herself, Davis, and Cross prior to Davis' designation as a supervisor. Prior to
that appointment, Davis' job was to insp.,ct braid produced in the plant.
According to Garner, Davis had found a tight thread in some braid processed by
Garner and had reported to Cross that Gainer had not inspected the braid.
This led to the discussion, Garner asserted. The substance of the conversation,
as described by Garner, was that Cross asked her if she was inspecting her
braid "at regular intervals" ; that she told Cross that she inspected it "at least
once an hour" in accordance with her instructions; that she questioned Davis'
knowledge about the matter because the latter "was in all different parts of the
plant" ; and that Davis stated that she "could not take it upon herself to inspect
everybody's braid and be responsible for it." Garner also testified that she had
no recollection ever stating that she would take no orders from "any goddam
woman," but that she might have made the remark in that conversation. She
denied that she made the statement on "the occasion of some lady being appointed
a supervisor." Garner admitted that about 6 weeks before her discharge she
made a statement to other employees in the lunchroom that she would slap
Davis' face. The record does not establish whether the statement was related to
Davis' report to Cross that Garner had not properly inspected braid she had
processed.
Before a resolution of the controlling credibility issues in the case of Garner
is set down, it is well to note some significant discrepancies in the claimed justi-
fications for Garner's discharge. Turning first to Cross, his first summary of any
reasons for the discharge (as distinguished from his account of his observations
about Garner's work) was his statement: "The main reason for terminating her
was that she was causing trouble, not being on the job that she should be on, and
I felt that holding two jobs, that it was impossible to give the company the
proper attention to her work." He testified later that the alleged "cheating"
was a partial factor in the dismissal, and "not the main one." Toward the close
of his evidence, he was asked by the Respondent's counsel to state "all the reasons
that you had in mind when you let Miss Garner go," and the foreman testified :
A. Yes. Because she was causing trouble among the girls. She didn't
tend to her work. She was talking when she should have been at her ma-
chines. And she sassed the supervisors and was in the dye room too much
talking to the man who does the dyeing at night. And she didn't want to
check her braid, as told by the supervisors. And she was standing around
at times reading magazines when she should have been walking up and down
the aisle watching her braid.
17 Maxey testified to other alleged incidents involving Garner and, in the main, herself.
According to Maxey's testimony, all of these occurred in or about April 1951 (or earlier)
some 7 months before Garner's discharge, if not more. It is unnecessary to pass on the
Incidents or on Maxey's credibility. The record does not establish that Cross was aware
of any of the alleged incidents ; they are remote in time from the date of the discharge ;
and the substantial and credible evidence will not support a conclusion that they had
anything to do with Garner's discharge.
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is noteworthy that in the recital of "all the reasons" there is no mention of
the claim that Garner held "another job," a factor which Cross appeared to stress
earlier in his testimony, nor is there any mention of the "cheating" allegation.
I am unable to conclude that the omissions were a mere oversight of meritori-
ous reasons for Garner's discharge, for they are of a piece with a pattern of shift-
ing positions which the Respondent has advanced in connection with Garner's
termination. After her dismissal, Garner applied to the California Department
of Employment for unemployment compensation. The Respondent opposed her
application on the ground that she had been discharged for "misconduct." The
Department made a determination that there was "no evidence of misconduct in
connection with her work.s4e The Company appealed from the determination,
and to that end filed a document entitled "Application For Appeal To A Referee."
Specifying the "grounds for appeal," the "Application" states :
We desire to question the claimant's eligibility for unemployment com-
pensation as our investigation discloses ample and valid reasons for her
discharge. The foreman (Cross) of that department reports that she has
been warned several times regarding circulation of malicious rumors and
insubordination.
The foreman also reports that she has been a poor influence on other
departments which resulted in lower morale among them. This cannot be
tolerated in our plant because of our highly critical production for the
National Defense effort.
The allegations of "misconduct" in the application vary significantly from the
reasons advanced in this proceeding for Garner's discharge. It may be noted
that the "Application" makes no mention of any claim that Garner cheated the
Company, nor is there any allegation that Garner wandered away from her
machines or neglected them, although Cross affirmed at the hearing in the instant
case, in response to a somewhat leading question, that in the State proceeding he
gave "testimony as to the neglectfulness of Miss Garner with respect to her
duties in running her machines."
Another significant facet of the State proceeding is the allegation that Garner
had "been warned several times regarding circulation of malicious rumors." Its,
plain implication is that Garner was discharged for that reason, among others.
The Respondent presented testimony in the instant case that Garner spread a
"rumor" in the plant to the effect that Foreman Hall and Swallow had an
improper relationship. The sense of the Respondent's position in the instant pro-
ceeding is that this was a factor in Cross' decision to discharge Garner. Never-
theless, Cross specifically testified he did not discharge Garner because she had
allegedly spread such a rumor." Moreover, despite the imputation to him in the
"Application" that he "reports" that Garner had "been warned several times
regarding circulation of malicious rumors," he admittedly gave no testimony in
the State proceeding "about any rumors." Cross' admission that he did not dis-
charge Garner because of the alleged rumor, and his failure to give any testimony
at the State hearing on the question, both strongly suggest that any claim that
Garner spread such a rumor and that it was a factor in her discharge is only an
afterthought to bolster the contention that Garner was terminated for lawful
98 See par . 4 in G. C. Exh. 13.
48 It may be observed , in passing , that witnesses called by the Respondent fix the time
of the alleged rumor at a substantial period before Garner's discharge . The sense of
Swallow's testimony is that she was aware of the rumor in October 1951. Maxey imputes
a statement to Garner about Hall and Swallow as far back as June 1951 . At another
point, under cross-examination , Maxey's testimony contains an intimation that Garner
made the statement in question in April 1951.
WESTERN LACE & LINE CO . 1459 ,
cause. The injection of the claim into this proceeding, since it is clear that
Garner was not discharged because of any alleged rumor, reflects on the reliability
of the reasons advanced by the Respondent for the discharge, particularly if it is
borne in mind that Cross, upon whose alleged "reports" the "Application" was
based, gave no testimony in the State proceeding to support the allegation in the
"Application" that Garner had "been warned several times regarding circulation
of malicious rumors."
The conclusion of unreliability of the Respondent's claims concerning Garner,
and the testimony adduced to support them, is given added support by the
Respondent's omission in the "Application" to make any mention of "cheating."
The "Application" is dated December 5, 1951, less than 2 weeks after Garner's
dismissal , a time when the reasons for the discharge must have been fresh in
Cross' mind. Significantly, the "Application" purports to be based upon an
"investigation" by the Respondent of Garner's alleged "misconduct." In the face
of the date of the "Application" and the claim of an "investigation," the omission
of any allegation concerning "cheating" is singular , if there is any truth in the
claim . But the omission becomes quite explicable if it is no more than an after-
thought to give a belated appearance of legality to Garner's discharge.
The sense of Davis' testimony, even though not clearly expressed , is that she
regarded all propping of handles to stop the meter as "cheating." Yet Cross
asserts that she "should" have known that operators had a "right" to prop the
handles in some circumstances. Moreover, after her designation as supervisor her
duties were, in the main, confined to the braiding room, where there were only
five operators during her shift. It is highly improbable that she should not
have known of the existence of a "right" which Cross concedes existed. I am
convinced not only that Davis was aware of the "right," but that she aided
Leach to secure a prop, had the conversations with Leach and Garner which
the 2 employees describe, and condoned the use of the "cheaters" in circumstances
in which both Leach and Garner assert they used them. Cross' assertion that
the use by Garner of props was not "the main reason" for her discharge is quite
revealing, as is testimony by Zimmerman that he regards the alleged "cheating"
as the least serious of 4 claimed derelictions in Garner's work (the other 3 in
order of importance in his judgment were "imperfection in the braid," "neglect of
duty," and "argument with fellow employees"). While on the subject of Zimmer-
man, it is well to note the quality of testimony he gave on the subject of Garner's
alleged dereliction. It is undisputed that the meters came into use with the
establishment of the incentive system, only about 2 weeks before Garner's
discharge. Yet Zimmerman testified that Cross complained to him on several
occasions concerning Garner's "cheating" over a period of 6 months, a manifest
impossibility. True, at a subsequent point Zimmerman estimated that the
incentive system came into effect in June or July 1951, but that does not detract
from the conclusion that his testimony is unreliable. The fact remains that he
testified that Cross reported the cheating over a 6-month period and it is quite
implausible that the Company would permit an employee to go on cheating for
so long a time without discharging her. When the implausibility of the claim
became apparent, Zimmerman was asked the leading and suggestive question,
"So any cheating you are referring to is after the bonus (incentive ) system went
into effect?" and be replied, "That is right." Viewing Zimmerman's testimony
as a whole , I am unable to regard such testimony as a straightforward correction
by the witness of his palpably untrue testimony that Cross reported the "cheating"
to him "on a number of occasions" over a 6-month period, and in the light of the
quality of his testimony, and the omission of any reference to "cheating" in the
"Application," I do not credit Zimmerman 's claim that Cross told him that Garner
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"had done all the cheating that she possibly could."" Concededly, according to
Cross, the braiding operators had a "right" to prop the machine handles in given
circumstances to stop the meters, and the only question is whether Garner did
so on other occasions. I am unable to accord significant weight to Cross' gen-
eralization that Garner used the props improperly "many times," in the face
of his testimony that he saw such props on 2 or 3 of her machines on 3 occasions
in all, and I do not credit his claim that he told Garner not to use the props.
If Garner were in fact cheating the Company, it would be natural to expect the
Respondent to take a very serious view of the matter ; for her foreman to
include it in the "main" reasons for discharging her ; and to specify it as miscon-
duct in opposing her application for unemployment compensation. Looking at
the whole record, I find that Garner was not "cheating," that in propping the
machine handles, she was doing no more than what Davis and Cross condoned,
that she was not discharged for that reason, and that the claim that she was
dismissed on that account is no more than a belated attempt to advance a justi-
fication for the discharge which did not exist when Garner was terminated.
Cross made no claim that Garner's discharge was specifically grounded on the
defects in braid purportedly reflected in the production forms, and it may be
assumed that the purpose of these, as evidence, is to corroborate the claims of
Garner's inefficiency. There are factors about the forms which raise a sub-
stantial question concerning their efficacy as corroborative evidence of the
Respondent's claims concerning Garner's performance. The forms were in-
troduced in evidence some days after Helen Davis had completed her testimony.
She was not recalled either to authenticate the entries or to give any specific
testimony concerning the particular defects they purport to reflect. This may
be borne in mind in appraising certain features of the production sheets. As
noted earlier, there are 2 sheets for November 6, each purporting to furnish data
for the day in question. One sheet (Respondent's Exhibit No. 22A) purports
in the "Defects" column to attribute 2 defects to Garner's work for the date in
question. The other (Respondent's Exhibit No. 22 0) charges her with 1 defect,
60 Zimmerman testified that Cross "complained about Garner on numerous occasions
over a long period of time," and he estimated the period at "six or eight months, or a
year." He asserted that on these "numerous occasions," Cross told him that Garner
"had arguments with some of the other help" ; that "she had done all the cheating
she possibly could" ; that "she would do things in her department to keep her machines
going, which were very unorthodox"; and that "she would take off, go to the various
parts of the plant and yak with some of the other help." Zimmerman stated that he
told the foreman on a number of occasions "to let her go" if she "couldn 't get along"
with the foreman and other employees and "could not take care of her job ." Zimmerman
also testified , in effect, that he made many inspections of braid produced by Garner, and
that during the entire time of her employment in the processing of parachute cord (ap-
proximately 7 months), her work was "below average." The unreliable nature of Zim-
merman's testimony on the subject of "cheating," as well as on other matters has already
been noted . As in the case of his account of Racine 's performance , it is evident to me
that his picture of Garner's performance and the reports he received is untrue. It is
significantly at variance with the undisputed testimony that Levore told Garner as late
as November 1951, before her union activity began, that she was a "good operator."
Moreover , in the light of the emphasis placed by the Respondent upon the great care
which must be taken by the braiding operators in processing parachute cord, upon which
"lives depended ," it is quite implausible that a supervisor of Zimmerman 's status would
permit, for some 7 months, the continued employment in such critical duties of an individ-
ual of the incompetence be attributes to Garner, irrespective of the claim made by
Zimmerman that Cross told him on one occasion that he had not previously discharged
Garner because she "needed the work and the money ." I am unable to accept Zimmer-
man's testimony as a credible corroboration of the claim that Garner was discharged for
lawful cause.
WESTERN LACE & LINE CO. 1461
attributable to her work for November 6. Moreover , it is apparent to the naked
eye that 1 of the 2 pencil strokes, for defects chargeable to Garner, in the first
sheet (Respondent's Exhibit No. 22A) is somewhat different in depth of color
from the stroke beside it. But passing the question raised by the difference in
the 2 strokes, the record contains no explanation of the reason for 2 sheets, each
containing different quantities of pencil strokes in the "Defects" column for
Garner , as well as other operators . It is unnecessary to speculate as to the
circumstances which made for the introduction of both sheets. The question is,
which of the 2 forms accurately reflects the production defects, whether charge-
able to the machines or the operators, for November 6. The issue posed is larger
than the mere problem of determining Garner's defects for November 6, for the
question presented is the reliability of the relevant evidence. No witness was
produced, after the exhibits were proffered, who could answer the question
whether any additional sheets exist for other days than November 6. Moreover,
entries for other days pose the issue of reliability of the forms. In the sheets
for November 16 and 17 (Respondent' s Exhibits Nos. 22F and 22G) the texture
and depth of color of the pencil strokes representing the defects attributable to
Garner appear to be different from those reflecting defects chargeable to her
machines . The same condition may be observed in the difference between the
two strokes purportedly reflecting defects chargeable to Garner on November 10
(Respondent's Exhibit No. 22L). The sense of the evidence is that the forms
were made up daily. Whether all the entries on a given sheet were made at the
same time or on different occasions during an applicable shift does not appear.
On that score, it is well to note that Hediger , although she kept different types
of records for the employees in the twisting department than those the braiding
room lead girls were required to keep, made much of her entries, if not all, at
the close of her shift. I am unable to determine Helen Davis' practice in that
regard. It is enough to note that differences in short pencil strokes for the
same employee for the same day, in the face of the evidence as a whole, are
matters which must be taken into account in evaluating the weight to be given
to the forms.
Now, it may be that there is some valid explanation for the existence of the
two sheets for November 6 and for the differences in the pencil strokes noted,
but on that score, I can make no finding one way or the other. The point is that
these documents, like other evidence, must meet tests 4,)?, reliability and probative
weight. The person who could have furnished some answer. to the questions
raised was not produced to verify the truth or accuracy of the information re-
flected in the records, and of the circumstances under which the strokes were
made. On the other hand, Garner took the stand in rebuttal, admitted that, on
1 or 2 occasions she was responsible for 4 defects in braid in 1 day, although
she could not specify the occasion, and subjected herself to cross-examination
on her claim that the entries for November 19, 20, and 21 were inaccurate. In
the light of Garner's testimony, and of the characteristics of the forms noted
above, I am unable to accord the entries Controlling weight as a reliable
guide to Garner's performance and that of other employees for the period iii
question. I credit Garner's testimony with respect to the weekly "average"
number of defects of herself and other operators and the extent of the defects
resulting from her work on November 19, 20, and 21. Cross testified that Garner
turned out some "bad braid" on her last night of employment. I have no doubt
that there were imperfections in her braid from time to time, as in that of other
operators, but I am unable to conclude from the credible evidence, as will appear,
that she was discharged for that reason.
257965-54-vol . 103--93
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record presents much generalization and little documentation by Cross in
connection with the "quarreling," "commotion," and "causing too much trouble,"
which he attributes to Garner , and with respect to the complaints he says he
received from other employees concerning the blowers , the disproportionate use
by Garner of large spools , and the placement of little spools on her machines
during her shift . On several occasions , he pleaded a loss of memory concerning
the names of those who complained , and his testimony is notably lacking in
specificity with respect to the times when such complaints were made. There
is no denial in Garner 's testimony of the claim that she took a disproportionate
share of the large spools , but I am persuaded , as will appear , that this had no
connection with her discharge . On that score , it is well to note that there is
significant implausibility in Cross' claim that all the day -shift operators com-
plained because of the condition in which she left her machines . Each braiding
operator is regularly assigned to a given aisle. It is apparent that if Garner
left her machines with small spools, the day-shift operator who would be affected
would be the one who was assigned to that aisle. Yet Cross testified that all
the day-shift operators complained , although it Is plain that Garner did not work
in their aisles , except , possibly , as relief during short rest and lunch periods,
and would thus have minimal opportunities , if any, to make a practice of placing
small spools on machines in aisles other than her own . As will appear, I do
not credit Cross' version of his conversation with Garner concerning her work
for du Pont , but quite apart from the credibility issue , his claim that be dis-
charged Garner because she had "another job" strikes a nebulous and insub-
stantial note . The same holds true for testimony concerning the blowers, and
on that score, if the matter was as important as the Respondent now claims, one
may well inquire why Cross did not assert his authority to transfer Garner to
another aisle, irrespective of her wishes in the premises . There is little more
documentation in Davis' testimony concerning Garner 's alleged difficulties with
other employees than there is in Cross' account , notwithstanding the fact that
Garner had some controversy with Davis , and the claim by the latter that Garner
had a dispute with Leach , and that one named employee rebuked Garner because
of her use of the blowers. I am persuaded that Garner 's controversy with Davis
over braid inspection , as well as Garner 's statement that she would slap Davis'
face, took place a substantial period of time before Davis was designated as
supervisor , and it may be observed that Maxey fixes the month when she says
she heard Garner say that she would not take orders from "any goddam woman"
as June 1951 , a period substantially before Davis' designation as a supervisor.
In short , there is no substantial evidence which I am able to credit to support
a finding that Garner was discharged because she "sassed her supervisors" and
was "insubordinate."
In addition to the credibility findings already made , in the light of my impres-
sion of Garner as a witness , of the quality of testimony given by Zimmerman,
Davis, and Cross , and of the shifting positions advanced by the Respondent in
connection with the claimed justifications for Garner 's termination , I credit
Garner 's testimony with respect to the period she worked for du Pont and her
conversation with Cross concerning the matter ; her version of her discussion with
Cross at the time of her discharge ; her account of the use by her of the blowers
and conversations relating to them ; her denial that she neglected her machines
and left them , contrary to the standard practices prevailing in the braiding room,
to talk to other employees ; her assertion that she followed instructions in inspect-
ing her braid ; and her version of her controversy over braid inspection with
Davis.
WESTERN LACE & LINE CO. 1463
The Respondent had a large turnover of employees.63 By contrast, Garner
worked for the Company for a relatively substantial period of time. The evidence
is undisputed that as late as the early part of November, before Garner com-
menced her union activity, Levore complimented her as a "good operator." In
that setting, and in the light of the credible evidence, and against the background
of the Respondent 's shifting positions , I am convinced , and find , that the several
justifications advanced by the Respondent for Garner's termination were not the
reasons for her discharge.
The significant facts are that she was actively and openly engaged in union
activity in the plant; that she was considered a "good operator" only a short
while after she became active in organizing employees ; that she fitted the cate-
gory of employees whom Lippey was determined to "weed out" to prevent unioni-
zation of the plant; that she was discharged amid heightening efforts by the
IAM and the TWU to organize the plant,'and only a few days after the former
requested recognition ; that her dismissal, like that of Gabrish who was dis-
charged on the same day, followed soon after she overtly manifested her in-
terest in the IAM by posting its leaflet on the plant bulletin board ; and that
the Respondent was opposed to the organization of its employees, and gave ex-
pression to its opposition with extensive unfair labor practices, including the
domination and support of the Association which was formed not long after
the Company discharged Gabrish and Garner. The credible evidence fully war-
rants the inference, contrary to the Respondent's contention, that it had a sub-
stantial awareness of Garner's interest in unionization of the employees. Sig-
nificantly, Helen Davis, regarded by the Company as a supervisor and as a "part
of management ," was aware of it, but even if one ignores that fact , it is well
to note that there were little more than 30 employees on the graveyard shift, and
in a setting involving so small a number of employees, and in the light of Cross'
behavior and his implementation of the Respondent's other unfair labor prac-
tices, I do not credit his claim that he was unaware of Garner 's interest in union
activities and cared nothing about them. Moreover, in the final analysis, the
reason for Garner's discharge rests within the peculiar knowledge of the Res-
pondent . No one can know more than it does concerning its motivation. Yet,
the record does not reflect a straightforward and consistent adherence to reasons
the Company has advanced to justify the discharge. Reasons stated by Cross at
one point were omitted elsewhere in his testimony ; justifications urged in this
proceeding were not included in the "Application" filed with the Department of
Employment. Such shifting positions, particularly when viewed in the light of
the credible evidence , bespeak concealment of the Respondent 's real motivation.
I find that the Respondent had a substantial awareness of Garner's interest in
unionization of the employees ; that it discharged her because she exercised rights
guaranteed to her by the Act; 67 and that it thereby violated Section 8 (a) (1)
and 8 (a) (3) of the Act.
m The employment of approximately 300 persons was terminated for 1 reason or another
between January 1951 and June 1952 . It seems to be the Respondent 's claim that because
it is alleged that only 3 of these ( not counting Crain for reasons which will appear) have
been discriminatorily discharged , the fact of the large turnover negates any conclusion
that Racine , Gabrish , and Garner were unlawfully terminated . The contention lacks
merit . There is no evidence to establish that those terminated , other than the 3 named
employees , engaged in union activity or that the Respondent was aware of such activity.
The evidence of the large turnover is quite remote from the basic question of the reason
for the discharge of Racine, Gabrish , and Garner.
69 In her application for unemployment compensation , Garner stated that she was "laid
off for discussing a rumor concerning a e¢ raise ." The Respondent apparently contends
that this statement tends to negate the claim that she was discharged for union activities.
The reason set forth in the application was no more than what Cross told Garner at the
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. The refusal to reemploy Audrey Crain
Audrey Crain was hired by Irving Miller as a winding-machine operator for
the graveyard shift on November 20, 1951. Foreman Cross discharged her at
the end of the shift on Saturday morning, November 24. In terminating Crain,
the foreman told her that her work was "good" and had no connection with her
discharge. He informed her that another employee who had been away for 7
weeks was returning to work, that the dismissal was based on grounds of
"seniority," and that there was no "machine available for (Crain) right then."
Crain inquired whether the Company would call her "back in case of an open-
ing," and Cross replied, "Yes. We have your telephone number and name, and
we will call you for the first opening." "
According to Crain, she made subsequent efforts to secure employment with the
Company. The following summarizes her relevant testimony : She was scheduled
to pick up her paycheck on the regular payday, Wednesday, November 28. On the
preceding evening, she called Zimmerman, whom she had known for 6 years,
at Fletcher's home and asked him if she would be reemployed. He replied that
he would do "some checking" first, and told her to see him at the plant at 2: 30
p. in. on the following day. She came to the plant at the appointed hour to
pick up her check and to see Zimmerman. Upon inquiry, she was told that
he was not there. Crain then spoke to Miller, and asked him why she had been
discharged, and he replied that he did not know, that "Mr. Zimmerman had that
authority; that he (Miller) hired and Mr. Zimmerman fired." As a result of
the conversation with Miller concerning Zimmerman , Crain called the latter again
on the following night (Thursday, November 29). She asked him "why he laid me
off," and he replied, "Well, that is a reason I can't explain." She then inquired
whether it was "on account of the union," and he responded, "I won't talk about
it. I can 't take a chance. I have several reports." She asked, "What kind of
reports?" to which he answered, "I don't care to discuss it." The conversation
ended after he told her, in response to her inquiry, to put "temporary layoff" in
her application for unemployment compensation. Crain made no further effort
to secure employment with the Respondent until April 1, 1952. On that date she
called Miller on the telephone and told him that she understood that Zimmer-
man was no longer with the Company, and asked "to be rehired and have a
chance, which I didn't before." Miller replied, "I have no place for you. The
CIO union turned your name in to the Labor Board and I can't use you." She
said, "I don't know anyone in the CIO union or any of the representatives
that could have turned my name in." Miller responded, "I don't know anything
time of her discharge , and it was not unnatural for her to make the relevant statement.
If anything, the wording of the application, written only a few days after her discharge,
tends to corroborate her version of the conversation . In any event , the central question
is the Respondent 's motivation for the discharge, and not what Garner at one time might
have assumed it to be. I find no merit in the Respondent 's contention.
a Cross testified that he "didn 't exactly discharge her, but ... told her that ... she
was slow , and ... would have to let her go , and in case we had a job she could handle,
she could call up sometime and maybe we could place her." His claim that he "let her go"
because she was "slow" is not quite consistent with Zimmerman 's testimony that Crain was
terminated on a seniority basis "because we had too much help ," as a result of "over-
hiring" by the pei sonnel department and the return to work of "one of our regular em-
ployees who had been ill " ; that Cross did not tell him anything about Crain's output, but
asked him "what to do with his excess help" ; that there was insufficient time to judge
Crain 's performance because of the short duration of her employment ; and that there was
nothing "particularly wrong" with her work "because she was very new." Significantly,
Cross also testified that Crain became a surplus employee when an employee who had been
absent because of illness returned to work . This testimony by the foreman , and that
given by Zimmerman , tend to corroborate Crain' s version of her conversation with Cross. I
credit her account of the conversation with Cross.
WESTERN LACE 6c LINE CO. 1465
about that. All I know is that your name was turned in to the Labor Board
and I have no place for you." She then inquired whether he would "consider
(her) at all ," and he responded that he would not do so.
The sense of Zimmerman's testimony is that he had only one telephone con-
versation with Crain in November after her termination. Describing the con-
versation, he testified : "She wanted to know if there was a job open for her,
and I told her no, there wasn't, that we were full ; that is, we had all the em-
ployees that we needed. And she wanted to know if I would give her a chance
at a later date, and I said that I surely would."
Miller, who did not testify, upon advice of a physician, because of a cardiac
condition, submitted an affidavit which was received in evidence, pursuant to
stipulation of counsel, as his version of his conversations with Crain after her
termination. He denied that he ever spoke to Crain on the telephone, and de-
scribed two conversations with her, one when she called for her paycheck, and
the other when she "returned again at a later date." According to Miller, both
conversations took place at the plant. On the first occasion, he stated, "She
asked me why (she) was discharged and I told her that I would check into the
matter." With respect to the second conversation, Miller's affidavit states: "She
returned again at a later date to inquire if there was an opening for a job. I
explained that I had checked into the matter of her termination and was in-
formed that she was not suitable for our kind of work. That is the information
that was given to me by the foreman of her shift. We were also overstaffed at
that particular time." In his affidavit, Miller denies, in substance, that he ever
told Crain that he would not reemploy her because a charge had been filed.
During the course of the hearing the General Counsel abandoned the claim,
alleged in the complaint, that Crain had been discriminatorily discharged. The
basic question with respect to Crain, therefore, is whether she was discrimina-
torily denied reemployment. The resolution of that issue depends, at least in
large measure, on whether the evidence warrants the acceptance of her version
of an alleged conversation with Zimmerman on November 29, and of her account
of the claimed telephone conversation with Miller. As Miller gave no evidence
in person, no opportunity was afforded to appraise his demeanor. Another fac-
tor to be taken into account is that his affidavit does not fix any date, approxi-
mate or otherwise, when the second alleged conversation at the plant occurred.
Nevertheless, I am persuaded that the preponderant weight of the evidence does
not support Crain's version of either the alleged conversation with Zimmerman
on November 29 or of the application she claims she made on April 1.
Crain made no claim in her testimony that she was either interested, or had
engaged, in any union activity during her brief period of employment, and there
is no other evidence of any participation by her in any organizational movement
afoot in the plant. The charge filed by the TWU on November 28, 1951, and
served upon the Company by mail on the following day, does not allege that she
was unlawfully discharged, nor does it mention her name in any respect. There
is no contention now that her discharge was unlawful, and the evidence supports
the Respondent's claim that there was no ulterior motive in discharging her, not-
withstanding my conclusion concerning Cross' testimony with respect to the
reason for her termination. In that setting, I am unconvinced that Zimmerman
would on November 29, even if he was then aware of the charge, answer her
inquiry concerning the reason for her termination with the apparently guarded
statement, "Well, that is a reason I can't explain." For all that the record
indicates, he had a proper explanation, and it seems somewhat implausible that
he should ignore it and, instead , assume a reserved attitude toward Crain's
inquiry. It may be that Crain was prompted to inquire whether she had been
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terminated "on account of the union" because of the discharge of Gabrish and
Garner, but there is no evidence that such was the case or that she was even
aware that they had been dismissed. There may be some plausible explanation
:for such an inquiry by her on November 29, but if there is her testimony does
.not reflect it. I am unconvinced that she made such an inquiry of Zimmerman
and that he told her that he had "several reports" (meaning, apparently, from
the context of her testimony, "reports" concerning some union activity). Zim-
merman's version of what he told Crain after her termination is consistent with
the testimony he gave concerning the reason for her termination and with her
own account of what Cross told her. I credit Zimmerman's account of what
passed between him and Crain after her discharge.
Miller's inability to testify precludes the advantage of an appraisal of his
demeanor in resolving the issue joined by Crain's testimony and his affidavit.
However, the record includes some evidence involving Gabrish and Miller which
should be taken into account in a resolution of the question. It will he recalled
that when Gabrish was interviewed by Miller in May 1952 in connection with
her reemployment, he told her that the Company was "having trouble with the
Labor Board and they (the Respondent) didn't want any trouble." I have some
doubt that he would express a wish to Gabrish to avoid "trouble with the Labor
Board," but use the occasion of a telephone call from someone he apparently did
not know well to create such "trouble" by making the statements Crain imputes
to him. Coupling that doubt with the resolution of the issue of credibility be-
tween Crain and Zimmerman, made above, the preponderant weight of the evi-
dence does not support Crain's claim concerning her second conversation with
Miller after her discharge. I shall accordingly recommend that so much of the
complaint be dismissed as alleges that the Respondent violated the Act in refus-
ing to reemploy Crain.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and such activities as have been found to constitute
unfair labor practices tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent has interfered with, and restrained, and
coerced its employees in the exercise of rights guaranteed to them by Section 7
of the Act, I shall recommend that it cease and desist from such conduct.
Having found that the Respondent has dominated, interfered with the forma-
tion and administration of, and has contributed support to, the Association, and
that the agreement dated December 28, 1951, is unlawful, I shall recommend that
the Respondent cease and desist from giving effect to the said agreement, addi-
tions thereto, or modifications, extensions and renewals thereof, or to any suc-
cessor agreement with the Association ; " that the Respondent withhold and with-
45 Nothing herein shall be construed as requiring the Respondent to withdraw, vary, or
abandon any benefits acquired by the employees under the agreement , or any modification
thereof or addition thereto, pertaining to wages, rates of pay , paid holidays , hours of
employment, vacations or vacation pay, sick leave or payments for absences due to illness,
seniority , shift differential payments , or bonuses of any kind.
WESTERN LACE & LINE CO. 1467
draw all recognition from the Association as the representative of any of the
Company's employees for the purpose of contracting , negotiating , or otherwise
dealing with the Respondent with respect to wages, rates of pay, hours of em-
ployment , or any other terms or conditions of employment ; that the Respondent
completely disestablish the Association as such representative ; and that the Re-
spondent cease and desist from interfering with the formation of any labor organ-
ization, and from dominating, interfering with the administration of, or contribu-
ting support to , the Association or any other labor organization.
Having found that the Respondent has discriminated in regard to the tenure of
employment of Ruth S . Racine and Jeanne Garner , I shall recommend that it
offer to each of them immediate and full reinstatement to her former , or a sub-
stantially equivalent , position 0 without prejudice to her seniority and other
rights and privileges , and make each of them 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 the amount of wages she would have
earned from the date of her discharge to the date of a proper offer of reinstate-
ment to her , the said sum to be computed in the manner set forth below. As it
has been found that the Respondent discriminated in regard to the tenure of
employment of Mary Gabrish by unlawfully discharging her on November 9, 1951,
and that it reemployed her on May 12, 1952 , It will be recommended that the
Respondent make her whole for any loss of pay she may have suffered by reason
of the discrimination against her, by payment to her of a sum of money equal to
the amount of wages she would have earned in the Respondent 's employ , but for
her discharge , between November 9, 1951, and May 12 , 1952 , the said sum to be
computed as hereafter set forth . Loss of pay for each employee shall be computed
on the basis of each separate quarter , or portion thereof, during the period
applicable to her as described above . The quarterly periods shall begin with the
respective first days of January, April, July , and October . Loss of pay shall be
determined by deducting from a sum equal to that which the employee normally
would have earned in each such quarter , or portion thereof , her net earnings," if
any, in other employment during that period . Earnings in one quarter shall
have no effect upon the Respondent 's back-pay liability for any other quarter.
The Respondent will be required , upon reasonable request , to make available to
the Board and its agents all records pertinent to an analysis of the amount due
as back pay or to the reinstatements recommended herein.
51 In accordance with the Board 's interpretation of the term , the expression "former or
substantially equivalent position " is interpreted to mean "former position wherever pos-
sible and if such position is no longer in existence , then to a substantially equivalent
position." See The Chase National Bank of the City of New York , San Juan, Puerto Rico,
Branch, 65 NLRB 827.
W See Crossett Lumber Company, 8 NLRB 440 for a construction of the term "net earn-
ings." That construction is applicable here. In that regard , note should be taken of
an item of expense Garner incurred as a result of her discharge . There is undisputed evi-
dence, and I find, that she has 2 children , one 9 , and the other 4, years of age; that
during Garner 's employment at night she furnished a room in her home to a woman in
exchange for services in looking after the children at night; that after her discharge,
Garner looked for, but was unable to find, a night job ; that on January 4, 1952 , she made
arrangements to board the younger child away from home in order to enable her to seek
work during the day, that since that date she has incurred expense in paying for the
child's board ; and that she found a day job on or about January 14, 1952 . In computing
Garner 's "net earnings ," deduction should be made from wages she earned during the
period of discrimination for the expense she has incurred in boarding the child. That
expense, in turn, should be computed by deducting therefrom the reasonable value of the
accommodations Garner would normally have continued to supply in her home , but for
her discharge, to a person as exchange for services in looking after the younger child at
night.
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that the Respondent did not contravene the Act by discharging
Audrey Crain and denying her reinstatement or reemployment , I shall recom-
mend that so much of the complaint be dismissed as alleges that she was unlaw-
fully discharged and denied reinstatement or reemployment.
Upon the basis of the foregoing findings of fact, and upon the entire record in
these proceedings , I make the following:
CONCLUSIONS OF LAW
1. Textile Workers Union of America, CIO ; International Association of Ma-
chinists ; and Western Employees Association are labor organizations within the
meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing employees, as found above, in
the exercise of rights guaranteed to them by 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.
3. By dominating, interfering with the formation and administration of, and
contributing support to, the Western Employees Association, as found above, and
by entering into the agreement dated December 28, 1951, the Rospondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) and 8 (a) (2) of the Act.
4. By discriminating in regard to the tenure of employment of Ruth S. Racine,
Mary Gabrish, and Jeanne Garner, thereby discouraging membership in labor
organizations, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) and 8 (a) (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
6. The Respondent has not engaged in unfair labor practices with respect to
the discharge of Audrey Crain and the refusal to reinstate or reemploy her.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interfere with the formation of any labor organization ; domi-
nate, interfere with the administration of, or contribute support to, the
WESTERN EMPLOYEES ASSOCIATION or any other labor organization.
WE WILL NOT give effect to the agreement with the WESTERN EM-
PLOYEES ASSOCIATION, dated December 28, 1951, additions thereto, or
modifications , extensions , or renewals thereof, or to any successor agreement
with the WESTERN EMPLOYEES ASSOCIATION , but this is not to be
construed as requiring us to withdraw, vary, or abandon any benefits acquired
by our employees under this agreement, or any modification thereof or addi-
tion thereto , pertaining to wages, rates of pay , paid holidays , hours of
employment, vacations or vacation pay, sick leave or payments for absences
due to illness, seniority, shift differential payments, or bonuses of any kind.
WE WILL withdraw and withhold recognition from the WESTERN EM-
PLOYEES ASSOCIATION as the representative of our employees for the
,WESTERN LACE & LINE CO . 1469
purpose of contracting, negotiating or otherwise dealing with us with respect
to wages, rates of pay, hours of employment, or any other terms or condi-
tions of employment.
WE WILL completely disestablish the WESTERN EMPLOYEES ASSOCIATION
as such representative.
WE WILL NOT discourage'.inembership by any of our employees in the
TEXTILE WORKERS UNION OF AMERICA, CIO, or the INTERNATIONAL ASSOCIA-
TION OF MACHINISTS, or any other labor organization, by discriminating
in any manner in regard to the hire, tenure of employment, or any term or
condition of employment of any of our employees.
WE WILL offer to Ruth S. Racine and Jeanne Garner immediate and full
reinstatement to their respective former, or substantially equivalent, posi-
tions without prejudice to their seniority or other rights and privileges pre-
viously enjoyed, and make each of them and Mary Gabrish whole for any
loss of pay suffered as a result of the discrimination against them.
WE WILL NOT interrogate ours employees concerning union activities or
their union preferences, sympathies, or membership; threaten any of our
employees with discharge or other reprisal if they do not induce other
employees to refrain from union activities; threaten any of our employees
with discharge or other reprisal because of their union membership, activi-
ties, preferences, or sympathies ; make statements to our employees that
they will benefit or not be discharged if they form, assist, support, or join
any labor organization which we dominate or support or in the formation
or administration of which we interfere ; and discriminate among our em-
ployees in granting or denying them privileges to engage in union activities
on our property.
WE WILL NOT in any other manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to form,
join, or assist labor organizations, to join or assit the TEXTILE WORKERS
UNION OF AMERICA, CIO, or the INTERNATIONAL ASSOCIATION OF MACHINISTS,
to bargain collectively through representatives of their own choosing, and
to engage in concerted activities for the purposes of Oollective bargaining
or other mutual aid or protection, and to refrain from any or all of such
activities, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of employ-
ment, as authorized in Section S (a) (3) of the Act.
All our employees are free to become or remain members of any labor organi-
zation , except to the extent that this right may be affected by an agreement
conforming to the applicable provisions of Section 8 (a) (3) of the Act. We
will not discriminate in regard to hire or tenure of employment, or any term or
condition of employment, against any employee because of membership in or
activity on behalf of any such labor organization.
WESTERN LACE & LINE CO. n/R/A
WFRTERN FISHING LINES 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,