Wolverine Shoe & Tanning Corp.

National Labor Relations Board - Board Decisions

Apr 30, 1965

152 N.L.R.B. 307 (N.L.R.B. 1965)

WOLVERINE SHOE & TANNING CORPORATION 307
bility of court of appeals and even Supreme Court review, it is not unreasonable to
estimate that the election may be pending for 2 or even 3 years. Fluctuations in the
cost of living or in the labor market or in other factors affecting the employer's
business may well occur during this period, rendering wage adjustments advisable or
necessary . I cannot believe that Ambox or any other decision requires a holding
,that any such adjustment made while a second election is pending is automatically
an unfair labor practice.
I find that the granting of benefits on May 1 was an exercise by the Company of
business judgment unrelated to union activity and it did not violate the Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of the Act.
2. The Union and the Employee Grievance Committee , are labor organizations
within the meaning of the Act.
3. Respondent has engaged in no unfair labor practices cognizable in this pro-
ceeding which would warrant the issuance of a remedial order.
RECOMMENDED ORDER
The complaint herein should be, and hereby is, dismissed.
Wolverine Shoe & Tanning Corporation and American Federa-
tion of Labor-Congress of Industrial Organizations
Wolverine Shoe & Tanning Corporation and International Union,
Allied Industrial Workers of America , AFL-CIO. Cases Nos.
7-CA-4545, and, 7-CA-4601. April 30, 1965
DECISION AND ORDER
On February 4, 1965, Trial Examiner John P. von Rohr issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with this
case to a three-member panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings,' conclusions, and recom-
mendations of, the Trial Examiner.
1 The Trial Examiner found that Robert E. Splane 's union activity was a contributing
factor leading to his discharge . On the record before us , we find that Splane s union
activity was the motivating factor for the discharge.
152 NLRB No. 19.
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recommended
by the Trial Examiner and orders that Respondent, Wolverine Shoe
& Tanning Corporation, Rockford, Michigan, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the Trial Exam-
iner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges duly filed, the General Counsel for the National Labor Relations
Board, for the Regional Director of Region 7 (Detroit, Michigan), issued a consoli-
dated complaint on May 4, 1964, against Wolverine Shoe & Tanning Corporation,
herein called the Respondent or the Company, alleging that it had engaged in certain
unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and
(3) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the
Act. The Respondent's answer denies the allegations of unlawful conduct as alleged
in the complaint.
Pursuant to notice, a hearing was held in Grand Rapids, Michigan, on June 22,
23, 24, and 25, 1964, before Trial Examiner John P. von Rohr. All parties were
represented by counsel and were afforded an opportunity to adduce evidence, to
examine and cross-examine witnesses, and to file briefs. A brief has been filed by
the Respondent and it has been carefully considered. No brief was received from
the General Counsel.'
Upon the entire record in this case, and from my observation of the witnesses, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSION
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Michigan corporation engaged in the manufacture, sale, and
distribution of shoes, gloves, and related leather products. Its principal office, plant,
and place of business is located at Rockford, Michigan.
During the calendar year preceding the hearing herein, Respondent shipped prod-
ucts manufactured by it in excess of $10,000,000 from its Michigan plants to points
and places outside the State of Michigan. During the same period, it purchased and
received goods and materials valued in excess of $1,000,000 at its Michigan plants
from points and places located outside the State of Michigan.
The Respondent concedes, and I find, that it is and has been engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
American Federation of Labor-Congress of Industrial Organizations and Interna-
tional Union, Allied Industrial Workers of America, AFL-CIO, are labor organi-
zations within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Respondent, principally known as the manufacturer of Hush Puppy shoes, has
plants located in Rockford, Ithaca, Greenville, Big Rapids, and Reed City, all Michi-
gan cities . It also has a warehouse in Sparks, Nevada, and one in New Jersey. The
facilities involved here are restricted to those located in Rockford and Ithaca,
Michigan.
The Rockford facility includes a shoe factory, a sole plant, a tannery, two ware-
houses, the sales and administrative office, and a research and development center.
1 The General Counsel failed to file a brief notwithstanding my request that he do so.
I am impelled to state that the failure to file a brief in this complicated factual situation
was a distinct disservice to this case.
WOLVERINE SHOE & TANNING CORPORATION 309
The American Federation of Labor-Congress of Industrial Organizations, a labor
organization, undertook an organizational campaign among Respondent's Rockford
production and maintenance employees beginning in August 1963. According to
Arlo B. Strohpaul, field representative, these organizational activities continued
through April or May 1964, at which time they ceased.
At Ithaca, Respondent maintains a shoe plant which produces men's Hush Puppy
shoes. Approximately 550 employees work at this plant in departments which
include cutting, fitting, lasting, finishing, and inspection. The Allied Industrial
Workers Union commenced its organizational campaign among the Ithaca employ-
ees on October 30, 1963. The last of numerous union organizational meetings which
followed took place on March 28, 1964. Prefatorily, it should be stated that the
complaint alleges and the answer admits that the following persons constitute the
official hierarchy; that is, these persons are vested with supervisory authority over
all of Respondent's plants: A. K. Krause, president; Gordon C. Krause, executive
vice president; Robert Young, general supervisor; Dewey Hutson, plants manager;
and Robert Lathrop, plants supervisors.
It may be stated at the outset that the Respondent, in a series of letters to the
employees beginning on September 17, 1963, made no bones about the fact that it
was strongly opposed to the Unions' organizational efforts. Without detailing all of
the statements made in opposition to the Unions in each of these letters,2 I need only
refer to the opening statement of "The Company's Position on Labor Unions"; this
is a 3-page document sent to all of the Respondent's employees with an accompanying
letter signed by President A. K. Krause. This statement read as follows:
So you may clearly and frankly answer questions from employees, we want you
to know our company position on labor unions. We feel very strongly that a
labor union would be undesirable in the Wolverine Shoe and Tanning Corpo-
ration.
A. The Rockford plant
While not all supervisors at Respondent's Rockford facilities are involved in the
incidents of alleged unfair labor practices, those so mentioned in the testimony and
their line of supervisory authority are as follows- Lowell Gurner, Rockford ware-
house superintendent; Allen Hunting, Rockford plant superintendent; Richard Solo-
mon, superintendent, warehouse 41; Stanley Six, foreman, warehouse 41, Jack
Tanner, superintendent, warehouse 45; Arnold Botts, plant foreman.
1. Interference, restraint, and coercion at the Rockford plant
As will be noted throughout the entire discussion of this case, the Respondent
engaged in numerous, flagrant, and all manner of violations of Section 8(a)(1) of
the Act, practically all of which are undemed. The incidents at the Rockford plant
which I set forth below involve only those employees who are not alleged as dis-
criminatees herein. Additional incidents where the Respondent infringed upon the
rights of employees guaranteed under Section 7 of the Act will be included in my
consideration of the cases of the individuals who are alleged to have been discharged
in violation of Section 8(a) (3) of the Act
From the credited and unrefiited testimony of the employee witnesses involved,
I find that the following incidents occurred:
1. In about the middle of September 1963, employee Leonard Potter, who worked
in warehouse 41, was told by Warehouse 41 Superintendent Richard Solomon to
report to the main office of Lowell Gurner, superintendent over the two Rockford
warehouses He did so. Present in the office were Rockford Warehouse Superin-
tendent Gurner, together with Plants Supervisor Robert Lathrop. Gurner asked
Potter if he had passed out union cards and Potter replied that he had. Gurner
thereupon referred him to the Company's no-solicitation rule (concerning which
more will be said later). After some further discussion about the Union, during
which Gurner said that some notation would be made in Potter's personal file, Potter
finally said he would discontinue passing out union cards. Gurner and Lathrop
thereupon told Potter that they knew a union meeting was coming up and asked
Potter if he would attend and let them know "what went on " Potter replied that
he would. Thereafter, Potter in fact did attend a union meeting which was held in
the Veteran's Hall at Edgerton, Michigan. About a week after the foregoing con-
2 There is no allegation in the complaint that these letters or any statements contained
therein were in violation of Section 8(a) (1) of the Act. Indeed, the complaint makes no
reference to these letters at all
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
versation, Gurner and Warehouse 41 Superintendent Solomon came out to Potter's
home and asked him how many persons had attended the meeting. Potter said there
were almost 20. Then they asked him to tell them the names of the employees who
had attended, but Potter declined to disclose this information. At this point, Garner
stated that this was not really necessary since they had the license numbers of the
cars that were parked in the area of the Veteran's Hall. Additionally, Potter was
queried as to what transpired at the meeting, but Potter merely replied that "it was
like a sales meeting." I might note here that neither Gurner nor Lathrop were called
to testify at the hearing.
2. In October 1953, James Andrews, a warehouse 41 employee, was summoned
to the office of Lowell Gurner with Plants Supervisor Lathrop also present. Gurner
began by telling Andrews that he knew who was passing out union cards, including
Andrews, as Andrews in fact had done. Gurner thereupon proceeded to ask Andrews
to name the employees who were distributing cards, but Andrews declined. Stating
then that whatever Andrews said "would be strictly kept right there," Gurner requested
that Andrews bring back information about a union meeting that was to be held the
next day. When Andrews asked what was wanted. Gurner replied that he wanted
the number and names of employees who attended and "the plants the union had
gone into." The meeting concluded with Lathrop telling Andrews to have him paged
at the office on the following day so that they could arrange for a further meeting
to be held at Lathrop's home. The next day Andrews did attend the union meeting,
following which he went to the office and told Lathrop that anything he had to say
would be said "right there" rather than at Lathrop's home Continuing, Andrews
stated that he could not give out any information and still keep his "head up" among
the employees. Lathrop asked if he could not at least divulge the number of employ-
ees in attendance, but Andrews refused and the discussion ended.
3. Woodrow Turner, a warehouse 45 employee with top seniority, was given an
authorization card shortly after the organizing started by Robert Splane, one of the
alleged discriminatees herein. Thereafter Lowell Gurner came up to Turner while
he was at work and asked if he had sent his card in to the Union.3 Turner replied
that he had sent the card back in an envelope but that he did not sign it.4 On another
occasion when Gurner spoke to Turner about the Union he referred to the fact that
Turner was an older employee. He then asked Turner to speak "against the Union"
to the younger employees who "didn't know what the score was."
During the fall of 1963, while working together with Warehouse 41 Foreman
Stanley Six, Turner was also questioned by Six on several occasions as to what he
knew about the Union.
4. Robert Matthews, a warehouse 41 employee, attended various union meetings
in latter 1963 through February 1964, these being held in Edgerton and Cedar Springs.
Stanley Six questioned Matthews about a dozen times during this period to ask if he
attended the meetings and how many other employees had attended. On one such
occasion Six asked Matthews if he planned to attend a meeting he said was scheduled
for the following Sunday. At the beginning of the following week, Six told Matthews
that he had "bad information" on it, that a meeting had not been held that Sunday 5
On one occasion Six asked Matthews if he had signed a union card. When Matthews
replied that "maybe" he had, Six countered by saying that he "knew" that he had.
On at least one occasion Six asked Matthews what he thought about the Union and
on another occasion he spoke derogatorily against the Union. In this latter instance,
Six stated that "the Union wasn't any good" and that a union had run 10 shoe com-
panies out of business He also told Matthews that he "wouldn't get much more
money [with a union]," and that the employees would not get more than a 15-cent
raise in 2 years with the Union.
5. On several occasions in early 1964, Six approached Harold Martin, a ware-
house 41 employee, asked if he had attended any union meetings, and asked him to
name those who had attended.°
3 Although Gurner Indicated to Turner that he knew Turner had a card, it appears that
he did not elaborate.
'Turner was a neutral witness. He never signed a card and at the hearing he testified
that he was neither for nor against the Union
3 This incident reflects the extent to which Respondent followed the union activities
of its employees and becomes particularly significant when the case of James H. Skibinski,
an alleged discriminatee, is considered infra.
Martin testified that in fact he had not attended any union meetings As in the
other instances cited in this section, Martin's tesimony is undenied.
WOLVERINE SHOE & TANNING CORPORATION 311
6 Lawrence Noonan, employed at Respondent's main shoe plant in Rockford,
attended union meetings held in Edgerton and Cedar Springs. On an afternoon while
driving on a highway on his way back to the plant from a union meeting in Edgerton,
Noonan observed Rockford Plant Superintendent Allen Hunting, who had pulled
up in his car at an intersection. Noonan testified that Hunting observed him as he
drove by. This intersection was located about 11/2 miles from Edgerton. Later that
day in the plant Hunting came up to Noonan and said, "Did you make any money
at the card party today?" When Noonan replied in the negative, Hunting theieupon
said that he "couldn't figure out, a guy making $120 a week doing something like that."
On another occasion, Noonan's foreman, Arnold Botts, appioached Noonan at
work, said that he had heard there was a good deal of union activity going on, and
asked if Noonan knew anything about it. When Noonan ieplied that he heaid a
"little bit" about it, Botts asked Noonan what he thought about the Union. Noonan's
response to this interrogation need not be detailed here.
2. The discharges at Rockford
a. James H. Skibinski
James Skibinski worked for the Respondent in warehouse 45 under Supeiintendent
Jack Tanner from September 16 until December 9, 1963, at which time he was
discharged. When he was first hired Tanner asked how he felt about the Union
Skibinski replied that he "thought the Union had its good points, but it took people
to make a union, that the people had to stick together to make a union." 7 Skibinski
testified that about a month later Tanner took him aside and again asked what he
thought about the Union. Skibinski stated that he thought it had its good points and
that a union would get them equal pay for equal work.
Although Skibinski signed a union card during the first week of his employment,
it does not appear that he was particularly active on behalf of the Union around the
plant. However, on the evening of Friday, December 7, Skibinski attended a union
meeting which was held in Edgerton, Michigan. At this meeting, which included the
attendance of 5 of the 13 warehouse employees, Skibinski arose to his feet and spoke
vigorously on behalf of the Union. Without detailing all that he said, his talk
included a critical denouncement of a certain wage policy advocated by Lowell
Gurner, whom, it will be recalled, was top supervisor of both Rockford warehouses.
On the Monday following this meeting, December 9, Skibinski was discharged. He
was notified of his discharge by Tanner at quitting time, and was told, according to
Tanner, that "he was not performing his job to the best of his ability." When so
notified, Skibinski voiced the protest that he was "getting it" and departed.
Conceding that Skibinski was a good worker for the first 11/z months of his
approximate 3 months of employment, Tanner testified that Skibinski's woik "slacked
off" during the latter half of his employment and that this, in essence, was the ieason
for his termination. In testimony that was more conclusionary than specific, Tanner
testified that "during this period I felt that his work was slacked off and that this
employee was coming to work in my opinion tired out from late hours or something
of this nature and that his work was suffering, and he was a good boy, as I recall
and made this known to him." Turner testified that on one occasion he spoke to
Skibinski about this alleged deficiency, including the fact that Skibinski talked with
other employees which, he said, "impaired our production." Respondent states in
its brief that as a result of an injury which occurred on Wednesday, December 4,
Tanner reviewed the record again and then decided to terminate this employee
Concerning this injury, the Respondent's compensation repoit states, "While clearing
a power conveyer, employee bumped back on the metal fire door." Tanner testified
that it was his "belief" that this accident occurred because Skibinski came in tired
and was not alert. However, the fact of the matter is that Tanner did not witness
this accident, for Skibinski only reported the incident to him and requested that he
be sent to a doctor. Moreover, since Tanner acknowledged that Skibinski did not
lose any time from work as a result of the accident, it is apparent that the injury was
at best but a minor bump. In short, I do not credit Tanner's testimony to the effect
that Skibinski became such a poor worker during the last 11/z months of his employ-
7Alhough Skibinski quoted Tanner as asking about "the Union," It appears more likely
that this discussion referred to unions In general rather than to the Charging Union. In
fact, Skibinski testified that he was unaware that any union was organizing at the time
he was hired.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment that it became necessary to discharge him. At best, I am persuaded that his
generalized testimony as to Skibinski coming to work tired was grossly exaggerated.
Tanner admitted that Skibinski was a good employee for the first 11/2 months and
I do not believe that he changed overnight. There is testimony to so reflect. Employ-
ees Robert Splane and Woodrow Turner, the latter a neutral and older employee,
testified that they worked with Skibinski in the warehouse and found him to be as
good at his job as any of the other employees. It is undisputed that while new
employees in this job were entitled to a 5-cent automatic increase after 30 days,
Tanner gave Skibinski a 5-cent increase after his first 3 or 4 weeks. Respondent also
has a Pal plan, which is a form of bonus to its employees Tanner nominated
Skibinski's full participation in this plan and told him that he would get him in the
plan 5 days earlier than the required 45 days' waiting period because he was doing
such a good job. It is undisputed that Tanner was voted as a participant in the plan
on October 31.8 Skibinski also testified that he received several compliments about
his work performance from Tanner.
Upon all the evidence in this case, I have little difficulty in concluding that Skibin-
ski was discharged because he became an active adherent of the Union. It is true
that there is no direct evidence of Respondent's knowledge of the meeting which
Skibinski attended on the Friday prior to his discharge where he spoke so strongly
on behalf of the Union and so critically of Gurner's policies. On the other hand,
from all the unrefuted evidence in this case the inference is inescapable, and I find
that the Respondent in fact did become apprised of Skibinski' s union activities and
attitude. Thus, as set forth in the preceding section, and more of which will be
described hereinafter, Respondent engaged in a deliberate and extensive campaign
to ascertain which of its employees were active in the Union. As noted, Respond-
ent's supervisors not only interrogated its employees concerning their union activities
and the activities of the others, but it even went so far as to solicit employees to
attend union meetings for the purpose of reporting back the names of those who did
attend. As we have also seen, prominent among the supervisors who engaged in
these activities was Lowell Gurner, Tanner's superior and the man in charge of both
Rockford warehouses. Indeed, it will be recalled that Gurner admitted to employee
Potter that he had the license numbers of the cars parked at one meeting place. As
to Tanner, who denied any knowledge of Skibinski's union activities, I can hardly
credit such testimony. As will be noted when discussing the case of Robert Splane,
Tanner was present on an occasion when Gurner took Splane aside and asked him
to give the names of employees who were active in the Union. When Splane refused,
Gurner stated that others were "good enough" to give him his (Splane's) name as
being active in the Union. This testimony, it may be noted, is undenied.9
In view of all the foregoing, including the Respondent's strong opposition to the
Union, the timing of Skibinski's discharge,10 and the unbelievability of the reasons
8 Respondent introduced testimony that Skibinski was approved for the Pal plan on
October 31, 1963, but that he did not enter the plan until November 2 However, it is
still unrefuted that Tanner in substance advised Skibinski that he would be voted in
earlier than usual because he was such a good worker.
Further, it is undisputed that new employees may be voted into the plan at less than
100-percent participation, this dependent upon the quality of their job performance.
Skibinski was voted in at 100-percent participation Employee Woodrow Turner, who
was on the Pal plan committee, testified that not only did Tanner nominate Skibinski
for the Pal plan, but also that at a meeting, with Tanner present. "it was generally
decided we would bring up Jim ahead of time because he was such a good worker."
8 Skibinski testified that on the Monday morning when he was discharged he observed
that employee Larry O'Donnell went away from the employees and held a private discus-
sion with Tanner and Gurner. O'Donnell had attended the union meeting on the preced-
ing Friday. Robert Splane testified that on several Monday mornings following Friday
evening union meetings he observed O'Donnell go off in a corner and hold discussions
with Tanner and Gurner. He testified that he never observed them meet in this manner
on any other occasion Tanner conceded on cross-examination that O'Donnell advised
him that he was against the union. While I infer company knowledge from the entire
record in this case, I do not rely on this testimony as in itself establishing company
knowledge insofar as Skibinski is concerned
to While not relying on this alone. I think it is more than coincidental that Skibinskr
was discharged on a Monday morning after attending the union meeting held on the
preceding Friday evening. If Respondent had determined to terminate Skibinski for the
reasons asserted, it may be reasonably concluded that such termination would have been
made at the end of the workweek. Respondent offered no explanation as to why the
discharge was not made until the following Monday
WOLVERINE SHOE & TANNING CORPORATION 313
advanced for Skibinski's termination," I conclude and find that Skibinski was dis-
-charged to discourage membership in the Union and that Respondent thereby violated
Section 8(a) (1) and (3) of the Act.12
b. Duane A. Miller
Duane Miller was employed by the Respondent from August 1, 1962, until he was
discharged on February 14, 1964 During this period he performed general ware-
house work in Rockford warehouse 41 under the supervision of Foreman Stanley Six
The superintendent in charge of this warehouse was Richard Solomon
Miller signed a union card at the outset of the organizing campaign In the follow-
ing months he attended five or six union meetings which were held in Cedar Springs
and Edgerton Miller testified without contradiction that throughout this period and
continuing up to the month of his discharge, Foreman Stanley Six approached him
on numerous occasions ('sometimes twice a day") to question him about his union
activities. During these occasions he was usually queried as to where and when the
union meetings would be held and if he planned to attend. On at least one occasion
during these discussions Miller told Six that he was "all for the Union " Six told
Miller that the Union was "no good " Miller recalled one occasion about a month
prior to his discharge when Six sat next to him for about one-half hour as he was
bailing cartons and talked to him about the Union Concerning this incident, it was
Miller's undemed testimony, which I credit, that Six asked him to "find out" the
names of the employees who were attending union meetings. Miller told Six that
lie had signed a union card but that he could not disclose the names of the other
employees who were active in the Union.
Respondent conceded that Miller was a good worker. With an unblemished rec-
ord for the first 13 months of his employment, Miller was given his first warning slip
by Stanley Six on November 14, 1963. The warning slip noted that it was being
given for "too much time spent in restroom." Concerning this incident, Miller testi-
fied that on the day in question he was suffering from an open cyst at the base of his
spine and that he had to go to the bathroom three times, for about 10 minutes each,
to treat the wound to stop it from bleeding. Miller testified that he explained this
situation to Six when he was given the warning slip and at the same time requested
that he be given a week or two off for an operation on the cyst. Miller said that
Six replied he could not give him such permission All of Miller's testimony con-
cerning the foregoing is uncontroverted and credited.
On November 19 (5 days after the above warning) Miller was given a second
warning slip by Six, this for being absent without calling in within the first hour of
work In this regard, it is undisputed that Respondent's work rules 13 requires that
in event of absence employees are to notify their supervisor not later than 1 hour
after the start of the shift It is also undisputed that on this occasion Miller, whose
shift started at 7 a in. and who stayed at home because he was ill, did not call in until
around 10 or 10 30 a.m. Miller testified that upon receiving the warning slip he
went to Superintendent Richard Solomon and told him that he did not have a tele-
phone at his home.'} According to Miller, Solomon at this time advised him that
since he did not have a telephone he did not have to call in until he got around to it,
"but to try to call before noon." Although Solomon denied that he discussed Miller's
11 Woodrow Turner, the neutral witness who was employed in the warehouse for 16 years,
testified that he could recall but three or four discharges among warehouse employees
during this entire tenure of employment His undenied testimony reveals that these
included such obvious reasons for discharge as stealing and falling asleep on the job
It may be also noted that when Turner asked Tanner why Skibinski was discharged,
Tanner refused to give this senior employee the reason, stating only that, "I don't have
to tell you."
12 According to Respondent's rule, Skibinski, having been employed for less than 90 days,
was still a probationary employee Contrary to Respondent's apparent assertion, it is
well settled that probationary employees are employees within the meaning of the Act
and fall within its protection
11 Designated as "Rules of Conduct." these rules are set forth in an employee hand-
book, a copy of which is given to each employee at the time of his hire
14 It is undisputed that Miller did not have a telephone. When lie did call in, he
used the telephone of his aunt who lived next door. Miller testified that his aunt worked
nights and he explained that her sleep would be disturbed by her dog's barking if he
tried to use her telephone early in the morning
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
telephone situation with Miller and that he excused Miller from the reporting-in
requirement, I credit Miller's testimony as aforesaid.l5
On February 13, 1964, Miller was ill and remained at home. He called in to
report his absence around 10:30 a.m. Upon reporting to work the next morning
Stanley Six took him to Solomon's office. Solomon read Miller the rule about
reporting in, handed him a third warning slip (which was signed by Solomon), and
told him he was discharged for violating the rule about reporting in.16
Contrary to Respondent's assertion that Miller was terminated in keeping with its
policy that employees be discharged upon receipt of a third warning slip,17 upon all
the evidence in this case I find that Respondent's discharge of Miller was in violation
of Section 8(a) (1) and (3) of the Act. Respondent's intense hostility to the organi-
zation of its employees has been amply shown. More will follow. Miller, in par-
ticular, was constantly harassed and interrogated by his foreman, Stanley Six. Yet,
in answer to these interrogations, Miller made it clear to Six that he was "for the
Union" and that he had signed a union card, but he also refused to disclose to Six
the names of the other union adherents as Six had requested. It was in November,
in the midst of the organizing campaign and during the period in which Six interro-
gated Miller about the union meetings that Six handed Miller his first warning slip.
It hardly can be seriously argued that there was any real basis for this warning.
Miller had a perfectly valid reason for his visits to the men's room and he made this
clear to Six. Yet Six let this warning stand While the second warning slip was
made in accordance with a rule that employees call in within the first hour, Miller
advised Solomon that he had no telephone, to which Solomon replied that in the
future he should try to call in before noon or as soon as possible. Taking Solomon
at his word, Miller did call in before noon at the occasion of his latest absence.
Notwithstanding, he was discharged by Solomon for purportedly violating a company
rule.18 Solomon, it will be recalled, was an active participant in Respondent's cam-
paign against the Union-witness the occasion , as heretofore noted, when he accom-
panied Lowell Gurner, his superior, to the home of employee Potter where Potter
was questioned concerning the identity of employees who had attended union meet-
ings. It was on this occasion that Potter was notified by these supervisors that
Respondent had the license numbers of cars parked at a union meeting
In sum, Respondent's reasons for discharging Miller-its three warning slips and
the reasons therefore-do not withstand analysis.19 Rather, it is clear to me and
I find that the discharge of this known union adherent was predicated upon antiunion
considerations and that as such it was a part and parcel of Respondent's other unlaw-
ful acts and conduct in combating the unionization of its employees.
c. Robert E. Splane
Robert Splane began working for the Respondent on November 28, 1961, and
thereafter remained continuously employed until he was discharged on February 28,
1964. During this period he performed work as a warehouseman in Rockford ware-
house 42 under the supervision of Jack Tanner and Lowell Gurner, the latter Tan-
ner's superior There is no question but that during this period Splane was a good
worker, for Tanner conceded that "he did his job very well." Indeed, Splane's hourly
rate of pay increased from $1 .25 at the beginning to $1.75 at the time of his discharge.
15 From my observation of him while on the stand , Miller impressed me as an honest
and credible witness. Miller, who was engaged in physical warehouse work, had rela-
tively little education and can hardly read or write. However, I am convinced that he
was telling the truth and that his disputed testimony above was not fabricated
16 Miller did not protest the discharge at this time but apparently took it with
resignation
17 Respondent 's handbook states : "In case an employee 's conduct is such that discharge
is deemed too severe the employee will first receive a reprimand If the situation con-
tinues, the employee will then receive one additional reprimand or time off . Separation
will then be the final step."
18 Miller spent most of his time working in the warehouse basement . It may be noted
that there is no evidence to show that Respondent suffered any particular loss of produc-
tion due to the lateness of his calling in.
19 Further proof of the pretextual nature of Miller's discharge is evidenced by Respond-
ent's disparate treatment of Larry O'Donnell, the antiunion employee . Thus, the record
disclosed that although O'Donnell in October 1963 reported late to work three or four
times during a 2- to 3-week period , he received but an oral reprimand therefore (Re-
spondent's Exhibit No 10 )
WOLVERINE SHOE & TANNING CORPORATION 315
Splane took a very active part in the organizing campaign from the outset. This
included the passing out of union cards to other employees in the.warehouse during
his lunch hour as well as visiting employees at home for the same purpose Addi-
tionally, he spoke to other employees at the plant on behalf of the Union until the
time of his discharge.
In the latter part of September 1963, Splane passed out union leaflets to employees
in the company parking lot. This leaflet, for reasons indicated therein, contained a
photostatic reproduction of a return mail receipt of a letter in which the Union
notified the Respondent that it was organizing the employees. A few weeks later
Gurner came up to Splane and asked if the letter referred to in the leaflet was stolen
by union personnel working in the office before President Krause had an opportunity
to read it.
Several weeks after the organizing began, Gurner and Tanner summoned Splane
to the upstairs of the warehouse away from the other employees Splane's entne
testimony concerning this incident is undenied and is credited. Guiner had a note-
book and blank authorization cards of each of the two Charging Unions Showing
Splane the cards, Gurner asked if he was familiar with them. Splane said that he
was. Gurner then referred him to Respondent's no-solicitation rule as stated in the
employee handbook. Splane stated that he had not violated the rule, that he had
not solicited on company time. Stating that he was aware of this, Gurner then asked
Splane if he would be willing to give him the names of the employees who were
involved with the Union and who were active in the union organizational campaign.
Splane replied that he would not give him these names. Gurner countered by say-
ing that other employees had been "good enough" to give him (Gurner) his
(Splane's) name when he asked them. Splane responded, "If they want to they can,
I won't give the names myself." The conversation concluded with Gurnee advising
Splane that he was making a mistake and that he should think things over.
On an occasion after this, Tanner came up to a group of employees, including
Splane, who were eating lunch. Referring to an antiunion letter which Respondent
had mailed, he asked the employees if they had received it. Splane said that they
had but that "he didn't think much of it." Tanner proceeded to tell the employees
that he regarded unions as Communist inspired and that they could do better with-
out another Umon.
Still later in the organizing campaign, the date of which is undisclosed, Gurner
approached Splane while he was working and asked how the Union was coming
along. Splane said that things were coming along fine and that they had a "big turn-
out." Splane testified that at this point, "I told him again some of the things I
thought were wrong." Gurner thereupon told Splane, "If I were you and I was dis-
satisfied working for this Company as you seen) to be, I would have quit and gone
some place else a long time ago. In fact . . . you should quit because you are of
no further use to the Company." When Splane replied that he was doing his job
and doing it very well, Gurner said only that "you know what we are talking about."
The conversation ended with Gurner stating to Splane that he did not have "guts
enough to quit." Splane's testimony as aforesaid, which I credit, stands undenied on
the record.
Turning now to Splane's termination, Respondent states in its brief that "Bob
Splane was discharged because of his continued violation of company rules."
It is undisputed that on October 3, 1963, Splane was given an oral reprimand for
reporting to work late. He was not, however, given the customary written warning
notice.20 On October 11, Splane awoke with a toothache and proceeded to a dentist.
Having no telephone at home, he stopped at a telephone booth along the way and
called Respondent's main office to ascertain the telephone number of the warehouse.21
He then called the warehouse and gave notice that he would be in late. Since the
call was made 20 to 25 minutes after the first hour of work, it may be stated that
this was at least a technical violation of Respondent's rule that notification be given
within the first hour. Upon reporting to work that day, Tanner gave Splane a writ-
ten warning notice for calling in late. Splane testified that he was "put out" about
this action and that he protested to Tanner that the warning was being issued because
of his union activities. Splane said, however, that Tanner denied this.
xo On October 4 , Tanner placed a written notice in Splane's personnel file concerning
this reprimand . Floyd Beeson , another employee who came in late with Splane, was
orally reprimanded at the same time. Tanner testified that a similar notice was placed
in Beeson 's file. '
2' The warehouse at this time was located in Grand Rapids, Michigan . It was sub-
sequently moved to Rockford.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tanner testified that he discharged Splane after he received written complaints
from four employees concerning Splane 's excessive use of profanity . Although theseemployees (Floyd Beeson, Lawrence O'Donnell, Jerry Dickerson , and Duane Peter-son) did not testify , the complaints referred to were introduced in evidence. Thecomplaints of Beeson and O 'Donnell were dated February 28, 1964, the day of
Splane's discharge Those of the others were not dated, but Tanner testified that he
received them about 4 to 7 days earlier. Illustrative of these complaints is O'Don-
nell's which stated:
Robert Splane 's attitude toward our warehouse and methods of shipping,
policies, rules and regulations is very poor . I find it hard to work around this
man.
Splane's griping and finding fault seems to have a discouraging effect on every-
one in the warehouse.
His swearing and bad language is very disturbing to me and why can't some
action be taken to correct this?
Leaving these complaints aside for the moment , Tanner testified that in March
1963, he spoke to Splane about "his constantly complaining and griping and use of
profanity ." Splane denied that Tanner ever spoke to him about his use of profanity.
Rather, Splane testified that Tanner only spoke to him on two occasions concerning
his attitude and complaints toward company policy. Recalling one specific occasion,
Splane said that Tanner spoke to him critically about his "attitude toward company
policy." Concerning this incident, Splane testified that it occurred during the period
of his union activities He said that Tanner did not explain what he meant about
his "attitude toward company policy" and that he did not press the matter because
"I figured I knew what he was talking about " I . credit Splane 's testimony that Tannerdid speak to him about his attitude and his complaints, but in view of Tanner 's other
conversations with Splane as set out above , the inference is inescapable , and I find
that this criticism had direct reference to his union activities .''-=' While I am also
inclined to credit Splane's testimony that Tanner did not speak to him about his use
of profanity , assuming that such did occur , I am constrained to believe that it was
done in a casual manner In any event , the record is clear that Splane did not
receive a written warning slip for this reason.
There can be no doubt that Splane in fact did, as contracted to the other employees,
engage in excessive use of vile language . Woodrow Turner , the neutral witness whose
testimony I credit throughout, testified that "Bob Splane 's language is probably the
worst of anybody I have ever heard talk , working for Wolverine ." However, it is
also a fact that swearing was not uncommon among the other warehouse employees
Thus, with reference to these other employees , Turner also testified "they are swear-
ing and cussing all of the time . . the language [ in the warehouse ] is generally bad." 23
Moreover , Tanner conceded that on occasion he also engaged in swearing
Without at all condoning the use of swearing or obscence language, the real issue
posed here is whether Respondent in fact discharged Splane for this reason or whether
the discharge was motivated-in all or in part-because of Splane's union activities.
Returning to the written complaints from the four employees , it may be noted that
in addition to complaining about Splane 's swearing , a common thread in each of the
notes was a reference to Splane's "griping " and to his attitude toward Company poli-
cies. Thus, it is apparent that the purported reason for the submission of these com-
plaints was not swearing alone. Indeed, it seems rather strange that four employees,
at least one of whom was shown to have been an antiunion employee,24 would sud-
denly, within a period of a few days , decide to take such action . I also note an
inconsistency in Tanner 's testimony concerning this matter . Thus, Tanner first testi-
fied that following his receipt of all four notes he reported the matter to Gurner; that
Gurner told him to do as he saw fit; and that he thereupon wrote up Splane's separa-
tion notice . He later testified that he spoke to Gurner 2 or 3 days prior to Splane's
discharge , this after having received but two of the notes, the others having been
22 As also previously noted, Superintendent Gurner suggested that Splane quit his job
because of his dissatisfaction with company policy. Significantly, however, this sug-
gestion was made in the context of Gurner's quizzing a group of employees about their
union activities and Splane's response thereto.
24 Turner credibly testified that he was a religious person and that he himself did not
engage in the use of any profanity.
24 Lawrence O'Donnell. The record does not disclose the attitude of others toward
the Union.
WOLVERINE SHOE & TANNING CORPORATION .317
subsequently handed to him on the day of Splane's termination. But without specu-
lating further as to the strange coincidence of the four employee complaints,25 I am
convinced, and I find, that the discharge of Splane, known by the Respondent to be
an active union adherent, was at least in substantial part motivated because of his
union activities. Although Respondent made much of the fact that Splane was
warned on two occasions for calling in late (one oral and one written), it has been
previously noted that Larry O'Donnell, the antiunion employee, received but one
oral reprimand for being late three or four times within a 2 to 3 week period.26 As
to Splane's swearing, it has been previously found that he never received a repri-
mand therefor.
In sum, and in view of all the foregoing, I find that Splane's union activities were
at the very least a contributing factor in his discharge. Accordingly, I find that
Respondent thereby violated Section 8(a)(1) and (3) of the Act.27
d. Dale Loiee
Dale Loree worked for the Respondent in shoe factory A (Rockford) as a sole-
cutter from June 1962 until March 31, 1964, at which time he was discharged. Dur-
ing this period Loree's hourly rate of pay progressively advanced from $1.25 to $2.32.
Working on the night shift with hours from 4:30 p.m. to 12:30 a.m., his foreman was
Barry Bell. Allen Hunting, previously a supervisor in Respondent's factory B, was
transferred to the sole plant as the plant superintendent on March 9, 1964.
Loree and Ron Allen were the two most active union employees on the night shift.
Loree's union activities, in addition to attending union meetings and signing a union
card himself, included the signing up of other employees during his lunch period
and talking to them on behalf of the Union. These activities continued into March
1964.
Loree testified that with one exception 28 no supervisor spoke to him about the
Union or his union activities until Hunting came to the plant in March.29 It was
Loree's undenied testimony that shortly after Hunting arrived, his wife came to the
plant and Hunting introduced him to her as "young Jimmy Hoffa." Loree said that
thereafter Hunting gave him the nickname of "Jimmy Hoff a" and that on one occa-
sion Hunting asked whether he liked spending his money on Hoffa's trial. On
another occasion Loree was in the office with Hunting, Foreman Bell, and employee
Ron Allen. Hunting asked Loree if he had been to a union meeting and how the
meeting had progressed. Bell spoke up to say, "All these damn idiots go to union
meetings."
It was Loree's further undenied testimony that on or about March 15, 1964,
Hunting came by his work station accompanied by Lyle Sipple, the division man-
ager.30 As they passed by Hunting referred to Loree and said, "Here is the guy
getting cards signed at nights." Sipple remarked, "I hope you are joking," and they
walked off.
In December 1963, Loree was given a warning slip by Foreman Vanderarc for
knocking soles off the line. Loree conceded that he had been fooling around at the
time and that he was at fault.
On March 17, 1964, Loree and Ron Allen reported to work 2 minutes late and
were called into Hunting's office. At this time Loree was given a warning slip which
stated that he was being warned for defective work, lateness, attitude, and careless-
:5 Splane was twice elected by the employees of the warehouse to be their representa-
tive in the Respondent 's Pal plan. The last time he was so elected occurred only a
few weeks before his discharge . Clearly this would indicate that Splane's fellow em-
ployees regarded him with no little respect up to and within the approximate time of
his discharge.
2' It may be noted that Splane received a written warning on October 10, 1963. Yet
O'Donnell, who violated this rule more frequently during this same period, received only
an oral warning on October 14, 1963.
27 "If employees are discharged partly because of their participation in a campaign
to establish a union and partly because of some neglect or delinquency , there is nonethe-
less a violation of the Act." N.L.R.B. v. Jamestown Sterling Corp., 211 F. 2d 725, 726
(C.A. 2).
As to the exception , Loree testified that John Vanderarc, a foreman who left the
Company in December , asked him if he had attended a union meeting.
20 Loree testified that he was acquainted with Hunting before the latter came to the
sole plant as superintendent.
30 Sipple ranked over Hunting in Respondent' s supervisory hierarchy.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ness.31 In giving his explanation as to the reason for this warning slip, Hunting
testified only concerning certain defective work allegedly produced by Loree. In
this connection, Hunting testified that earlier on the evening of March 17 he was
asked to attend a supervisory meeting at plant B, which included the presence of
Division Manager Lyle Sipple.32 According to Hunting, at this meeting a complaint
was made concerning the quality of work produced by the sole plant; viz, that "they'd
been having a lot of trouble with crooked heels, wrong marking on boxes, wrong
colors, wrong sizes." Continuing, Hunting stated that three or four boxes of samples
of defective work were on display, all of which bore the stamp of operator 55.
Hunting testified that he picked up several pair of soles to which the heels were
crookedly attached,33 took them back to the sole plant, and there ascertained for the
first time that the identity of operator 55 was Dale Loree. He thereupon had Barry
Bell make out a warning slip which he (Hunting) gave to Loree when the latter
reported for work. Significantly, Foreman Bell testified when he was instructed to
writeup the warning slip, Hunting told him to keep the defective heels and "to be
sure to stick them somewhere so that we'd have them."
There is no doubt about the fact that Loree, who denied that he produced the
defective work in question, was quite perturbed about receiving the warning slip for
his alleged defective work. In fact, when handed the slip by Hunting he tore it up
and threw it in the wastebasket. Hunting said that "he was very angry-[said] he
didn't do the work-and he cussed us out a little bit." Later that evening Loree went
up to Hunting and asked if he would check through the order numbers 34 to ascertain
who was responsible for the defective heels. Hunting said that he would do so the
next day. Loree said that thereafter he broached Hunting on a number of occasions
about making a check on the order numbers and that finally Hunting told him he
would be fired if he ever mentioned the matter again.
I credit Loree's testimony that he did not produce the defective work which Hunt-
ing brought to him on March 17. One of the defective articles was introduced in
evidence . The heel was attached at such a crooked angle that the defect would
immediately become apparent to even a novice. In fact Loree testified , "They [the
heels] were on pretty near sideways on the soles. They had to have purposely been
done like that." As indicated, I am convinced this was not Loree's work and I dis-
credit much of Hunting's testimony concerning this entire matter. As previously
noted, Hunting told Bell on March 17 to be sure to save the defective articles "so that
we'd be sure we'd have them." (Possibly to be used as evidence at some future
date'? 35 Indeed, upon further questioning Hunting conceded that the defectii e soles
could have been produced as much as a month before the March 17 supervisor's
meeting. In addition, Hunting testified that "we had a lot of trouble" with oper-
ator 55 back when he was night superintendent of factory A and that he complained
about operator 55 at that time to Lem Paul, then manager of the sole department
in factory B, as well as to Foreman Bell. Yet, Hunting testified that with all this
alleged "trouble" he never ascertained the identity of operator 55 until the evening
of March 17, this after he became Bell's supervisor at plant B. I regard this testi-
mony as incredible on its face.
Loree testified that within several days after the March 16 warning incident he
was again broached by Hunting who started to talk to him about the Union Loree's
entire testimony concerning this incident is uncontroverted and credited. During
the course of this conversation Loree mentioned to Hunting that the employees had
been promised a 71/2-cent raise, but never received it. He then told Hunting, If we
would have had a union in there we would have got that raise." Hunting, thereupon
stated , "If you don't like it here why don't you quit" Loree, replied that he would
"not give him the satisfaction of,quitting," and suggested that 1'le be fired 'if he was
"wanted ... out of there." To this Hunting responded, "When I fire you I want
to have an air tight case."
On March 30, 1964, the day. before Loree was discharged, the employees of the
sole plant were advised that their method of pay was being changed-that they were
being taken off "day work" (pay by the hour) and that thenceforth they would be
a' Loree credibly testified that Allen was not given a warning slid: at this time.
82 Hunting said he normally was not asked to attend the plant B supervisor's meetings.
-The soles and heels were of rubber composition, the heels being atttached by glue
' Loree testified , "Each order has got a number on it-the order number . . . and
whoever runs - this order, their clock number was on it " There were eight production
lines in shoe factory A which ran this same operation at this ,time.
35 As noted hereinafter , Hunting told Loree that he wanted an "airtight case against
him."
WOLVERINE SHOE & TANNING CORPORATION 319
paid on a piecework basis. Explanation of this change in the method of pay was
made to the employees by the supervisors who spoke to them individually or in small
groups.36 Dale Loree was one of the employees who was called into the office indi-
vidually. Present were Supervisors Hunting, Frey, Bell, and Ralph Buddy. When
the new method of pay was explained to him, Loree protested vigorously, claiming
that the new rates would result in a substantial reduction of his take home pay. As
the discussion proceeded, Loree finally suggested that a "union time study" be made
of the operation which he performed. According to Loree's uncontroverted and
credited testimony, Hunting at this point spoke up and said, "There never has been
a union in here and never will be." Loree testified that he replied, "There would be
if I had anything to do with it," whereupon he was sent back to work.
Within an hour after reporting to work on the following day (March 31), Foreman
Bell gave gave Loree a written warning slip which was signed by Hunting. Loree
asked Bell if this meant he was discharged. Bell said that he did not know but that
he should go to the office and speak to Hunting. I note first that the warning slip,
which was introduced in evidence, had checked in appropriate boxes that the "nature
of violation" consisted of "conduct", "attitude", and "disobedience". Under
"Remarks", the written statement appeared, "Employees Handbook Rules # 13 and
and # 19". Rule # 13, as appearing in the handbook, states as follows
Abuse of company's property or records; abuse or deliberate destruction of
another employees property, took or equipment.
Rule # 19 states:
Making false or malicious statements about employees, the Company or its
supervisors or products.
Loree testified that he checked the employee handbook to ascertain the meaning
of rules # 13 and # 19 and that he then proceeded to Hunting's office. Upon enter-
ing, he asked what Hunting meant by "destroying company, tools, records and
property." According to Loree, Hunting replied, "Remember that warning slip you
got in February or March, where you tore that warning slip up? That was destroy-
ing company records." Loree testified that he then asked if he was fired , Hunting
replied in the affirmative, and he thereupon departed. Loree said that he did not
ask Hunting concerning rule # 19 (false and malicious statements) because, "I just
figured that was about me asking about the union time study in there the day before."
Hunting gave a different version as to Loree's discharge. First, I note that Hunt-
ing's testimony concerning the March warning slip, described above, was confusing,
brief, and undetailed. Hunting testified that this warning slip was given to Loree
shortly after starting time on March 31, but that this took place before the meeting
during which he and the other supervisors spoke to him about the change in pay
rates. In this Hunting was in error, for I have no hesitancy in crediting Loree's
concise and detailed testimony that his meeting with the supervisors occurred on
March 30, the day before he was handed the warning slip. But even more vague
was Hunting's testimony concerning the reason why the warning slip was issued at
all. Thus, his testimony concerning this warning slip was intermingled and con-
fused with his testimony concerning a second warning slip which he wrote up after
Loree's discharge, which is referred to hereinafter. The best I can make of Hunt-
ing's testimony is that he claimed to have issued the warning slip in question
because of Loree's constant complaints to him that he "didn't do the damn [defec-
tive] soles." In short, I find that Hunting failed to give any satisfactory explanation
as to his reason for handing Loree the warning slip on the day of his discharge.
But returning to Hunting's version of Loree's discharge, Hunting testified that Loree
came to, his office after having received the warning slip from Bell and asked if it
meant that he was discharged. Hunting testified that he replied in the negative,
whereupon Loree stated, "This is a real chicken. .. outfit, and you have a bunch of
ass-supervisors working,for you." Hunting testified that at this point he discharged
Loree for abusive language; and further that Loree uttered an obscenity as he left
the office. At,some time subsequent to Loree's departure, Hunting wrote up a warn-
ing slip which stated as follows:
Gave Dale Loree warning slip for article # 13 and #'19 from Employee Hand
Book . Dale Loree came to talk about warning slip, told him he was not dis-
charged . Dale became abusive and was discharged Rule # 24. _
38 While there is no need to further detail the change in the method oP'pay„Edward
Frey, Respondent's standard engineer, testified that the change was. made as a result
of time studies which ` had been conducted in the sole plant. Except for the sole plant,
all of Respondent 's other plants had worked on a piece-rate basis.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based upon my observation of the witnesses, and upon all the testimony, I credit
Loree's version of the discharge incident, including his version of the discharge con-
versation, over that of Hunting's. I am further persuaded and find that Loree's dis-
charge was motivated for reasons prescribed by the Act and that it was made in
violation of Section 8(a) (1) and (3) thereof.37 Without restating all that has been
previously said, Respondent's resolution to defeat the Union, as well as its particular
animus toward this employee because of his union activity, was again clearly mani-
fested in Hunting's (and to some extent Sipple's) questioning, harassment, and
threatening of Loree concerning his union activities. Indeed, it has been found that
Hunting stated he wanted an "air tight case" to justify the discharge of this employee.
But as far as the Respondent is concerned, its asserted reasons for Loree's discharge
do not withstand the test of scrutiny; and its case can hardly be said to be "air tight."
B. The Ithaca plant
1. Interference, restraint, and coercion at the Ithaca plant
As at the Rockford plant, the uncontested evidence shows that the Respondent also
committed numerous acts in manifest violation of Section 8(a)(1) of the Act at its
plant located in Ithaca, Michigan. In accordance with the credited and unrefuted
testimony, I find that such unlawful acts and conduct consisted of the following: 38
1. Employee Ruby Schmidt attended a union meeting held sometime between
February 7 and 21, 1964. Before attending this meeting, and while at the plant, she
asked Walter Rosenberry, supervisor of the cutting department, whether it would be
all right if she attended the meeting. Rosenberry replied that it was none of his busi-
ness, that he could not advise her whether or not to go, but added, "If you do go, I
would like to know who was there, who comes, and what they want." On the Monday
following the meeting, which was held on a Saturday, Schmidt complied with Rosen-
berry's request and gave him the names of those employees with whom she was
acquainted who had attended the meeting.
2. Employee Kathleen Wingle, who worked in the finishing department, attended
several union meetings and signed an authorization card. On a Monday in February
1964, her foreman (Carlton Phillips) told her during working hours that Foreman
Jack Wingle 39 wanted to see her "privately" in the coffee room. Upon entering,
Wingle stated that "her name was among those who were known to pass out cards,"
that he was talking to her because he did not want her "to get in trouble," and that he
wanted to give her "the facts" relating to the Union. He proceeded to state that the
Union was "no good," that it was run by racketeers, and that the Union was primarily
concerned about "the dues they would get from each person in a union shop." Wingle
then brought up the name of employee Alton Mitchell,40 stating that Mitchell would
mislead her, that she had better stop talking to him because he would get in trouble,
and that he would also get her in trouble. At one point during the conversation, Miss
Wingle brought up the fact that the Company's Pal plan had been discussed at the
union meetings and that the Union had given her assurance that the Pal plan "could'
not be taken away." To this Foreman Wingle responded that the Company could
drop the Pal plan the following day or at any time that it chose. At another point,
Foreman Wingle referred to employee Howard Kenny whom he said had attended
several union meetings . Characterizing Kenny as a young farm boy, Wingle pro-
ceeded to state that "it is such young people like yourself that want the union in."
On the day following the above conversation, Miss Wingle went up to Foreman
Wingle and asked what had prompted the conversation of the day before. The fore-
man replied that Elogene Cowdrey, a floorlady, had advised him in the morning that
she (Wingle) was passing out union cards, that they were both worried about her, and
that he thought he had better talk to her about it "before it went any further."
37 Even assuming Loree did use some profanity at the time of his discharge , I would
find that any such utterance by him was a spontaneous reaction which was provoked
by the issuance to him of what I have found to be an unjustifiable warning slip. As to-
the postdischarge warning slip , I am convinced and find that this was made as an
afterthought.
88 Again, further conduct violative of Section 8(a) (1) will be noted in my discussion,
of the additional alleged discriminatees whose cases are considered in subsequent sec-
tions of this decision
39 Foreman Jack Wingle is an uncle of Kathleen Wingle. The complaint alleges, and
the answer admits, that Wingle is a foreman in the Ithaca plant . The record does not
disclose the department where Wingle held this position
40 Mitchell was very active in the Union and passed out 20 to 25 union cards.
WOLVERINE SHOE & TANNING CORPORATION 321
3. Sometime in March 1964, Jerry Schaub, foreman of the finishing department,
came up to employees Charles Turner and Jay Wiseman and asked if they were
"talking union." When Turner replied in the negative, Schaub stated, "You know
you can get fired for talking union." Turner testified without contradiction that on
either this or another occasion Schaub also told him that he could be fired for attend-
ing union meetings.41
4. As noted above, employee Alton Mitchell was an active union adherent at the
Ithaca plant. In addition to signing a card and attending union meetings, Mitchell
obtained the signatures of 20 to 25 employees to union authorization cards. Accord-
ing to Mitchell's undenied and credited testimony, it was shortly after this activity
began about December 1964 that Foremen Jack Wingle and William La Freniere
called him "Jimmy Hoffa" as they passed by his place of work.
At another point in December 1964, Mitchell was asked by Robert Young, the
general supervisor of the Ithaca plant, if he was organizing on behalf of the Union and
what he thought about the Union 42 During the next several weeks, Young
approached Mitchell at least once a week to ask how the union campaign was coming
along and if he had attended the union meetings. Mitchell responded generally that
he "didn't think the Union would do too much good in there."
5. In the early afternoon of Saturday, March 14, 1964, employee Mitchell entered
the Marble Inn, a restaurant-tavern, accompanied by employee Manuel Rangel.
After being seated at the bar, these employees observed that Foreman William La
Freniere was seated in a booth where he was eating with his children. Mitchell went
over to talk to La Freniere and was shortly joined by Rangel. As the conversation
started,43 La Fremere referred to the fact that General Supervisor Robert Young was
in Florida on vacation and that Young had written asking about the Union. Con-
tinuing, La Fremere addressed Mitchell and said that he would have to "write back"
and tell Young that he [Mitchell] was one of the ringleaders in the Union, that Young
would "feel bad" about it, but that there was nothing he could do. Turning then to
Rangel, La Freniere stated, "You are going to get in trouble if you keep associating
with this fellow." Mitchell thereupon told La Freniere not to pick on Rangel, that
Rangel had nothing to do with the Union. La Freniere responded by telling Mitchell
that "he was going to get it first." When Mitchell asked what he meant by that,
La Freniere replied that he was going to be fired in 2 weeks, adding that everyone who
had signed a card would be fired.
Following the above conversation, Mitchell and Rangel departed to attend a union
meeting which was being held that afternoon.44 After the meeting, Rangel returned
to the Marble Inn and found La Freniere still present. Concerned about the conversa-
tion which had occurred earlier, Rangel asked La Freniere to repeat what he had said
about employees being fired in 2 weeks. La Freniere said that he did not recall
what he had said earlier, but asked if he had attended the union meeting. Range]
replied that he had not. La Freniere then asked Rangel what he had to gain by going
with the Union. Rangel stated that he was not sure about the Union but that he was
concerned about better wages, i.e., that he was making $1.35 for the operation of
repairing crippled shoes. La Freniere responded that he would see to it that Rangel,
who was then working in a different operation , would be paid $1.50 per hour for
repairing cripples.
On the following Monday morning Rangel approached La Freniere as he was
talking to Randy Ball, La Freniere' s assistant . When La Freniere observed Range]
he turned to Ball and stated, "Watch this guy pretty close today." Later in the mom-
11 Employee Turner also testified that he was interrogated concerning his union activities
by Harold Bailey, whom he described as his "foreman ." Respondent 's answer admits
the supervisory status of 17 of the 18 persons alleged to be supervisors in the complaint,
the sole exception being Bailey, whom the answer described as being "a maintenance man
rather than the foreman " Since the General Counsel adduced no evidence to show that,
Bailey was in fact a supervisor within the meaning of the Act , I shall recommend dis-
missal of the allegations in the complaint pertaining to any Section 8(a) (1) violations
alleged to have been committed by Bailey.
'3 The remainder of this conversation adds nothing to the case and need not be detailed
here.
+3 This conversation , as herein related , is based upon the substantially corroborative
and uncontradicted testimony of Mitchell and Rangel.
a At this meeting Mitchell wrote out a statement concerning the conversation which has
just occurred with La Freniere at the Marble Inn.
7 89-730-66-vol 152-22
,322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing La Freniere came up to Rangel and stated that Mitchell had told him that he
[Rangel] had attended the union meeting and that he had signed a statement concern-
-ing the Marble Inn conversation.
On this same Monday, La Freniere came up to employee Mitchell and asked,
-"How did the union meeting go?" When Mitchell asked, "What union meeting?"
La Freniere replied, "I know all about it Manuel [Rangel] told me." At this point
Randy Ball came along. Referring to Mitchell and to Rangel, the latter at this time
.also being in the vicinity, La Freniere told Ball, "You see that Manual and Alton
make shoes like the samples or I will fire them both myself."
Approximately 2 weeks later, and at a time when Rangel was back repairing
cripples, Rangel approached La Freniere and said that he was to remind him about
being raised from $1 35 to $1.50 for the job of repairing cripples. La Freniere replied
that he "did not think" he would give him the raise because he had been attending
union meetings.
6. In the early part of February 1964, Foreman William La Freniere told employ-
ees John Andrews and Jerome Binfet during the lunch period that they could not
-solicit anywhere on company property, including the parking lot as well as the plant,
or they would be discharged.45 When Andrews asked La Fremere what he meant by
-"no solicitation," La Freniere replied "Talking people into your way of thinking."
7. Employee Terry W. English testified that La Freniere spoke to him about the
'Union on three or four occasions in the first part of 1964.46 On one such occasion
La Freniere asked him "who was pushing the union so hard." English refused to
-divulge any names. On another occasion La Freniere told English that he could not
solicit for the Union during break periods "or any time we was on Wolverine Com-
pany grounds."
Although my general conclusions concerning the Section 8(a)(1) allegations are
-stated in a later section of this decision, I deem it necessary here to refer to the allega-
tion in paragraph 8(1) of the complaint that, "About January and February, 1964,
Respondent, by its agent La Freniere, forbade its employees at its Ithaca plant to
-engage in activities on behalf of Allied [the Union] during nonworking time on
Respondent's property." Clearly, this allegation in the complaint is fully supported
by credited and undenied testimony, set forth above, to the effect that La Freniere in
fact made such statements to employees John Andrews, Jerome Binfet, and Terry
English. Accordingly, I find that Respondent thereby violated Section 8(a)(1) of
the Act, for it is well settled that, absent special circumstances not present here, an
.employer may not prohibit solicitation on company property during the employees'
nonworking time 47 However, it should be mentioned here that the General Counsel
introduced evidence showing that Earl Fortney, a former foreman but a non-
-supervisory employee at all time material herein, circulated an antiunion letter at the
plant, attached to which was a form providing for a request to withdraw signed
•union authorization cards. Fortney testified that he prepared and circulated these
.documents at his own behest without any assistance from the Respondent and there
is no evidence to the contrary. When queried by me as to the purpose of this evi-
dence, the General Counsel merely stated it related to the allegation in the complaint
quoted above and then vaguely added "the question of disparity in treatment." How-
ever, since there is no allegation in the complaint concerning a disparity of treatment,
'I shall make no finding in this regard.48 As to the allegation alleged in paragraph
8(1), it has been found that other evidence amply sustains this allegation.
45 The substantially corroborative and uncontroverted testimony of Andrews and Binfet.
Andrews credibly testified that at the time of this conversation he had union authoriza-
tion cards in his front shirt pocket which were visibly displayed.
40 Although English could not recall the dates, he otherwise impressed me as a credible
-witness. Moreover, his testimony concerning the matters related herein is undenied.
47 The General Counsel does not attack the Respondent's solicitation rule as it is set
forth in the 'employees' handbook. Since this rule apparently prohibits solicitation
.during the employees' working time only, it apparently is valid But even assuming the
validity of this rule, the violation found above is predicated upon the foreman's oral
amplification of the rule See Montgomery Ward & Co., Inc., 145 NLRB 846.
48 In any event, the evidence concerning this matter is borderline. While Fortney's
circulation of the antiunion letter at the plant appears to have been open and wide-
-spread and possibly could warrant the inference that it was thereby condoned by the
'Respondent it is equally true that Fortney testified without contradiction that he was
-told by the foreman that he could distribute the letters only during his off-work hours,
-"the same as the ones trying to get union signers " - -
WOLVERINE SHOE & TANNING CORPORATION 323
2. Alleged discrimination at the Ithaca plant
a. Jerome Bznfet
Jerome Binfet was employed by the Respondent as a cutter in the cutting depart-
ment from March 19, 1962, until February 21, 1964, when he was discharged. The
Respondent concedes that Binfet was a good worker-in fact, his piecework earnings
reflect that he was one of the higher paid production employees. Buffet worked under
the immediate and alternate supervision of Foreman Walter Rosenberry and Floor-
lady Elogene Cowdrey. The latter were subordinate to Myrle May, the night
superintendent.
There is no question but that Binfet, who signed a union card early in the campaign,
was one of the most active union supporters at the Ithaca plant. His activities, which
began in December 1963, and continued until his discharge, included the passing out
of union authorization cards to other employees before and after work on company
property and the attending of all but one of the union meetings.
There is also no question but that Respondent had knowledge of Binfet being an
active union adherent. In January 1964, Binfet became involved in a discussion
about the Union while in a tavern with Foremen La Fremere, Merv Paradise, and
Jerry Schaub. According to Binfet's undenied and credited testimony, La Fremere
finally told him, "I will have to get you aside some place and give you some serious
talking to, because these people are feeding you nothing but a bunch of bull, buf-
faloing you about the Union, a bunch of nothing that is true " Further, and as noted
in the preceding section, in about the first or second week in February, Foreman
La Freniere told Binfet and employee John Andrews that any employees caught
soliciting on company property, including the parking lot, would be fired. Further
evidence of company knowledge of Binfet's union activities and its antipathy toward
this particular employee by reason thereof is noted in proper sequence below.
Constance Binfet, an office employee at the Ithaca plant and Jerome Binfet's wife,
was discharged on February 7, 1964, without being given any reason by the Respond-
ent. As reflected hereinafter, it is found that Mrs. Binfet was discharged in violation
of Section 8(a)(3) of the Act. Binfet testified without contradiction that when he
reported to work on the night of his wife's discharge (she worked on the day shift)
four foremen stood around him and watched him closely-these were Foremen
La Freniere, Jerry Schaub, Merv Paradise, and Myrle May, the latter the night plant
superintendent. Later that evening, during a break period, Binfet went to the lasting
department and spoke to several employees about his wife's discharge. Observing
Foreman La Freniere in the vicinity, Binfet turned to him and asked why his wife
was fired. The foreman replied that he did not know. Binfet began to insist that he
in fact did know, but at this point the break period ended. According to Binfet's
undenied and credited testimony, he started to walk back to his department with
La Fremere at his side when suddenly La Freniere spoke up and said, "You know,
we heard you were one of the ringleaders."
It is undisputed that Respondent never made known to either of the Binfets the
reason for Mrs. Binfet's discharge. On February 10, after the night shift had ended,
Binfet went up to Plant Manager Carl Shaver who stood in a hallway locking up the
plant. With him at this time were employees John Andrews and Howard Kenny.
Binfet asked Shaver the reason for his wife's discharge . Shaver said there was no
reason. Binfet said there had to be a reason. Shaver answered that whatever the
reason, he did not have to tell Binfet. Binfet persisted and said that Shaver "would
have to tell somebody." Shaver's response was, "Well, Jerry, I am not going to tell
you." At this point, as Shaver started to walk away, Binfet stated to Shaver, "You
know, I ought to take that damn necktie and wrap it around your neck." Shaver
responded by doubling up his fist and saying that "He should come on and try it."
At this point employee Kenny grabbed Binfet by the arm and suggested they leave.
With this Binfet and the two employees left the plant 49 The following day Binfet was
given a warning notice for his conduct of threatening Shaver on the evening before.
1While there is no substantial dispute as to the conversation between Binfet and
Shaver on this occasion , there is a difference in Binfet 's version from that of the other
two employees as to how the incident began. Binfet testified that they "bumped into"
Shaver as they were leaving the plant, whereas Kenny and. Andrews testified that they
had first gone to the parking lot but then went back into the plant to seek out Shaver,
this for the express purpose of ascertaining from Shaver the reason for Mrs Binfet's
discharge While I am inclined to believe the version given by Kenny and Andrews in
this regard , I do not regard this as determinative of the issue of Binfet 's discharge. The
fact is that Binfet conceded that be threatened to wrap Shaver ' s tie around his neck
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Several days later (or about 4 or 5 days before Binfet's discharge) Foreman Rosen-
berry approached Binfet and asked why he was not in favor of a grievance com-
mittee.50 Binfet replied that he was not in favor of a grievance committee because
he did not think it would work and that if the employees chose to select a grievance
committee, the Company would fire apyone who mentioned the word "union."
We turn now to an incident which I must assume is asserted by the Respondent
as a reason for Binfet's discharge. I say assume because, as will be noted, Respondent
witnesses gave evasive, undetailed, and a hodge-podge of reasons for his termination.
I must further emphasize that the exact date of this incident was not established in
the record. Binfet testified that it occurred in the early part of February. Plant
Manager Carl Shaver testified that he was told about the incident about a week after
the incident of February 10. Even if Shaver be given the benefit of the doubt and
his testimony to this effect be accepted, this would place the incident as having
occurred at least 4 days prior to Binfet's discharge. Now to the incident.51 After
the dinner hour on the evening in question, employee Sharon Ballinger, who worked
in the cutting department, found two union cards in her lunch basket. These cards
were placed there by Louis Harrier, an employee who also worked in the cutting
room.52 Ballinger accused Binfet of having taken this action, but Binfet told her
that he did not put the cards in her lunch basket. However, Ballinger continued to
accuse Binfet, whereupon Binfet asked if she intended to sign a card and mail it in.
She answered that it was none of his business. Binfet told her "not to feel so grouchy
about it." According to Binfet, about this time "the kids around there started teasing
her." 53 After Sharon had some further conversation with employees Louis Harrier
and Joann Ebright, she finally complained to Rosenberry. According to Rosenberry,
Ballinger told him that Binfet was annoying her "about the Union ... about joining
the Union." However, Rosenberry testified that he did not question her about what
was bothering her because, as he testified, "She was a little distraught and partly, in
my own mind, I attributed that, to some extent, to her condition." (Ballinger had
returned to work after a recent pregnancy.) In any event, Rosenberry said he took
Ballinger back to work and told Binfet to leave her alone. According to Binfet (who
told Rosenberry he was not pestering Ballinger), Rosenberry at this time also told
Joann Ebright not to talk to Ballinger. A little later in the evening, according to the
credited testimony of Binfet, Joann Ebright once again said something to Ballinger.
Ballinger at this point began to cry and went to the restroom. She then again went
to Rosenberry and told him she could not continue working. Rosenberry took her to
the coffee room where she waited for her husband until he finished work 54 It may
be stated here that no supervisor ever spoke to Binfet about this incident again at
any time prior to his discharge.
On February 19, which was the last day he worked at the plant, Binfet approached
Foreman Rosenberry, told him that employee Earl Fortney had written an open
antiunion letter and posted it in the racks in the shop, and asked Fortney, "Why I
can't write an open letter of things for the Union, what the Union can do for us and
pass them all over the shop and pass them out to people." Rosenberry answered that
he could do so as long as it was on his own time. Binfet thereupon told Rosenberry,
"All right, tomorrow night I will have about 500 copies and be sure everyone gets
them."
On the following day, February 20, Binfet stayed home because of illness.55 Upon
reporting to work the next day, February 21, Binfet was summoned to the office by
Rosenberry. Present in addition to Rosenberry were Plant Manager Carl Shaver,
so It may be noted that about this time employee Earl Fortney was proposing to the
employees that they have a grievance committee rather than the Union.
"Respondent's answer, beyond a general denial of having violated the Act, merely
stated that the alleged discriminatees were terminated "for one reason or another." At
the outset of the hearing, counsel for the Respondent , declined to disclose the reasons for
the discharge of the various discriminatees . The testimony concerning the above incident
was brought out primarily through the General Counsel's direct examination of Binfet,
apparently in anticipation that it would be asserted as a reason for Binfet's discharge.
51 The credited testimony of Harrier.
53 Ballinger was not called as a witness and did not testify.
54 Binfet also testified concerning a conversation he had later that evening with
Rosenberry and Ballinger's husband. However, I will not burden this report with this
conversation since no Respondent witness testified concerning it nor did any Respondent
witness attribute this conversation as having any bearing upon Binfet's discharge.
cs Respondent concedes that his absence on this occasion played no part in his discharge.
WOLVERINE SHOE & TANNING CORPORATION 325
Night Superintendent Myrle May, and Foreman William La Freniere. May handed
Binfet his final check and stated that he was no longer needed. Binfet asked for a
reason, but May said there was no reason. When Binfet persisted, May finally stated
that his "conduct hadn't been too good the last couple of months." Thus Binfet's
termination.
Respondent's reasons for the discharge of Binfet do not stand up under scrutiny.
Referring first to Respondent's brief, Respondent terminates its discussion of Binfet's
discharge by relating its version of the Sharon Ballinger incident. This is followed
by the simple conclusionary statement that "The Company at this time [the time of
the Ballinger incident] felt that Binfet's continued misconduct could no longer be
tolerated and therefore terminated his employment " The fact is, however, that the
Ballinger incident occurred at least 4 days or more prior to Binfet's discharge.
Respondent offered no reason whatsoever as to why, if this in fact constituted the real
reason for the discharge, it postponed taking this action until 4 or more days after
the incident occurred. In short, and also in view of the testimony of Respondent's
witnesses which I turn to now, I am convinced that the Ballinger incident was but an
afterthought and was not the real reason for the termination.
Myrle May, the night superintendent, testified that it was his decision to discharge
Binfet. But when queried as to the reasons for this discharge, May's testimony is
most vague, generalized, unspecific, and in many respects incredulous. Thus, May
testified that in latter January or early February he received reports from Floorlady
Cowdrey that Binfet was talking to other people while at work, "bothering them and
pestering them." Beyond this hearsay testimony he did not elaborate. Mrs. Cowdrey
did not testify. May next stated that he was absent from the plant during the first
part of February, but that Plant Manager Dewey Hutson "filled him in" upon his
return and told him that he (Hutson) had learned from Shaver that Binfet was
"still interfering with other employees " Hutson, who as plant manager over all of
Respondent's plants was in the top supervisory hierarchy, did not testify. In any
event, May testified that upon being so apprised by Hutson (hearsay upon hearsay),
he called Binfet into his office and terminated him With reference to the reports
he allegedly received from Mrs. Cowdrey, May testified that she did not disclose
what Binfet was talking about to the other employees. But more important, not
only did May deny he knew anything about Binfet's union activities or inclinations.
he further denied that he ever received any reports from Cowdrey, Rosenberry, or
any other supervisor to the effect that Binfet was talking union to the other employ-
ees. This testimony by May was completely contradicted by other of Respondent's
own supervisory witnesses Thus, Foreman Rosenberry, who testified that Ballinger
reported to him that Binfet was annoying her about joining the Union, testified
also that he reported all the details of this Ballinger incident to May. Further,
Plant Manager Shaver also testified that May had been made aware of the Ballinger
incident prior to Binfet's termination.
The testimony of Plant Manager Shaver concerning Binfet's discharge, already
shown to have been at odds with that of May's, was equally confusing and uncon-
vincing Shaver testified that the decision to discharge Binfet was made by himself,
Hutson, and May, but that he told May, "He's working for you. You take care of
him." Although he testified that Rosenberry reported the Ballinger incident to him,
he testified on direct examination that Rosenberry only told him that Binfet was
"pestering" her, but that he could not recall that Rosenberry told him any more
details of the incident. On cross-examination, Shaver testified that he heard that
cards had been placed in Ballinger's dinner pail and that Binfet was "egging her"
about this. When queried as to how he received this information, Shaver testified
only that, "It come up through the shop there. I don't just recall who spoke to me
about it." Significantly, Rosenberry, the only supervisor directly involved in the
Ballinger incident, testified that Ballinger did not tell him about finding union cards
in her lunch basket until a few days before the hearing in this case.56
Upon all of the evidence, I conclude and find that Binfet was discharged because
of his union activities in violation of Section 8(a)(1) and (3) of the Act. My
rejection of Respondent's defenses, including the testimony of the supervisors involved,
ae Although the question which adduced this testimony referred to "union cards in her
purse," it is obvious, and I find, that the question referred to the cards found in Bal-
linger's dinner bucket and that it was so understood by Rosenberry
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has been set forth above and need not be reiterated here.57 The fact is, not only has
Respondent's hostility to the Union been shown throughout this Decision, but there
is direct evidence that Binfet, known by it to be a leading union adherent at the
Ithaca plant, was for this reason a particular thorn in Respondent's side. Without
restating all of the evidence in this regard, suffice it to refer to the occasion of Mrs.
Binfet's discharge when Foreman La Freniere told Binfet, "You know, we heard you
were one of the ringleaders." This incident occurred but 2 weeks before Binfet's
discharge. Moreover, it will be recalled that it was on the last day that he worked
at the plant that Binfet advised Foreman Rosenberry of his intention to draft a pro-
union letter and to circularize it among the employees. Whether or not this was
the straw that broke the camel's back as far as the Respondent is concerned, the
weight of the evidence leaves no doubt, as I have found, that Binfet was discharged
because of his union activities.58
b. Constance Binfet
Constance Binfet, the wife of Jerome Binfet, was employed with the Respondent
as a payroll clerk from July 10, 1962, until February 7, 1964. Under the supervision,
of Wilma Ecker, she worked with two other girls on the day shift. Two female
payroll clerks also worked on the night shift. It is undisputed that Mrs. Binfet did'
not take any part in the union organizing campaign. In fact, the Union was not
seeking to organize the payroll office staff 59
Mrs. Binfet testified that in November or December 1963, she and the other girls
were taken to the office of Plant Manager Shaver where they were told that "anything
in the office was confidential and should not leave the office " On this occasion
Shaver also stated that he did not care whether or not they worked for the Union
or how they felt about the Union because "he knew the majority of the shop wasn't
for it."
On February 7, 1964, Mrs. Binfet attended a special luncheon for one of the girls.
At the end of the day she was called into Shaver's office. Shaver handed her her
paycheck and simply told her that, "We don't need you anymore " When Mrs.
Binfet asked the reason for her discharge, Shaver shrugged his shoulders and said
"there wasn't any reason " Mrs. Binfet answered that "it was a damn poor way
to run the place" and walked out. It is undisputed that Mrs. Binfet was never given.
any reason for her discharge.
At the hearing and in its brief the Respondent asserts that Mrs. Binfet was dis-
charged because she was suspected of leaking payroll information to the Union.60
As noted below, the unbelieveable testimony of Shaver concerning Mrs. Binfet's
discharge does not support even this contention. But first, I find from the credited
testimony of Mrs. Binfet that she in fact never did disclose any payroll or any other
office information or data to any outside party-nor is there any evidence whatso-
ever to indicate that in fact she ever leaked any information to the Union.
67Although I certainly do not excuse Binfet or any of the other employees for their
conduct in the Ballinger incident, the fact is that Respondent condoned this conduct by
not taking any further action other than Rosenberry's talking to the employees on the
night in question. Moreover, Rosenberry was aware that other employees beside Binfet
were involved in the incident. Thus, employee Harrier testified without contradictiom
that "Rosenberry came back and told its not to talk to her about the Union any more "
Likewise, Binfet testified that Rosenberry came back and cautioned employee Joann,
Ebright about the matter. Yet, and notwithstanding the involvement of these other
employees, it is clear that Respondent took no further action as to any of them.
69 Binfet testified without contradiction that he ushered with La Freniere at church
on the Sunday following his discharge and that La Freniere on this occasion teased him,
about the Union and asked him how the Union was "coming on." It having been found
that Binfet at this time retained his status as an employee of the Respondent, I find
that this conduct of La Freniere's constituted an independent violation of Section 8(a) (1)
of the Act.
69I have nothing from the General Counsel, on the record or otherwise, as to his
theory of Binfet's case.
60 In discussing this case, I do so under the assumption that the unauthorized "leak-
ing out" of confidential information is an unprotected activity It follows that if this
factual defense be sustained, especially where, as here, Binfet did not engage in any
protected A41pa activity, her discharge would not be in violation of Section 8(a) (3) of
the Act,
WOLVERINE SHOE & TANNING CORPORATION 327
Shaver testified that he and Plants Manager Dewey Hutson decided to discharge
Mrs. Binfet "there was just confidential information going out of the office ' and
that "because the information I got back pointed to her." As to this alleged informa-
tion leak, Shaver's only explanation was, "I heard that they had a list of 480 names."
He did not testify as to the source of this alleged intoiination The sequence of
Shaver's testimony now becomes important. On direct examination, and immediately
following his testimony that Mrs. Binfet was discharged because she was suspected
of leaking out information, Shaver was asked this question: "Why did you think it
was Mrs. Binfet [who was leaking out the information]?" In response to this ques-
tion, Shaver referred to an occasion when Jerome Binfet came to him and asked
why he was not being paid time and one-half on a Saturday, as were some other
employees who worked that day.6' Continuing, Shaver testified that Binfet must
have received this information in advance because the checks had not been dis-
tributed at the time Binfet spoke to him about the matter. However, when queried
about this incident later in his testimony, it came to light that this conversation with
Jerome Binfet had occurred on October 20, 1963, which was approximately 31/2
months prior to Mrs. Binfet's discharge. This incident, it must be emphasized, was
the sole reason which Shaver could give in support of his asseition that he suspected
Mrs. Binfet of leaking information. That Shaver would suddenly discharge Con-
stance Binfet based upon a suspicion that allegedly had occurred some 3i/2 months
prior thereto is utterly beyond belief. In fact, near the conclusion of his testimony
Shaver was asked the following:
TRIAL EXAMINER' Was there anything new that came to your attention on
February 6th, or right at the time of her discharge, that made you discharge her
at that particular time?
The WITNESS. Not to my knowledge.
In short, I do not credit Shaver's explanation as to the reason for Mrs. Binfet's
discharge and find that at best it was a pretext or an afterthought.e°
What then was the real reason for Mrs. Binfet's discharge? Upon a consideration
of all the evidence in this case, particularly that pertaining to the discharge of Mrs.
Binfet's husband as set forth in the preceding section, I am convinced and find that
Mrs. Binfet was discharged as a lesson to her husband and for the purpose of
deterring him from engaging in any further union activities.63 As heretofore related,
Respondent not only was waging a broad and unlawful antiunion campaign at the
time of Mrs. Binfet's discharge, but, as set out in the preceding section, at this time
it also was aware that her husband was an active union adherent. But the link here
is even more definite Thus it will be recalled that four foremen stood near Jerome
Binfet and watched him in the early evening of his wife's discharge But of greater
revelation is Binfet's conversation with Foreman La Freniere later that evening when
he asked the foreman the reason for Mrs. Bmfet's discharge. While La Freniere
first evaded the question, he finally responded saying, "You know, we heard you were
one of the ring leaders." I can but regard this response as tantamount to an admis-
sion that Constance Binfet was discharged for the reason herein found
In sum, I find that Constance Binfet was discharged for the purpose of discourag-
ing union activities in violation of Section 8(a)(3) of the Act, and that by such
conduct Respondent also restrained and coerced its employees in the exercise of the
rights guaranteed them in Section 7 of the Act, thereby violating Section 8(a)(1)
thereof.64
c. Earl R. Elliott
The complaint alleges that Earl Elliott was discharged on March 6, 1964, in
violation of Section 8(a)(3) of the Act. The evidence does not support this
allegation.
6i Respondent does not pay time and one-half on Saturday If employees are absent
during the week . It appears that Binfet was out 1 day that week , as apparently were
the others to whom he referred.
62 Plants Manager Dewey, named by Shaver as participating in the decision to terminate
Binfet, did not testify.
63 It is possible that Respondent may have regarded itself immune from any unfair
labor practices when it discharged Binfet inasmuch as she had not engaged in any
union or concerted activities . However , my conclusions which follow are not predicated
upon this speculation.
e4 For an analogous situation, see Murray Golub, et at., d/b/a Golub Bros. Concessions,
140 NLRB 120.
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Elliott was employed by the Respondent on February 1, 1961, and last worked
as heel assembler in the lasting department. Although Elliott signed a union card
on November 2, 1963, he did not otherwise participate in the organizational cam-
paign. While there is no evidence that Respondent had any knowledge that Elliott
had signed a card or was at all interested in the organizing campaign, Elliott testified
that about a week prior to his termination he told Foreman La Freniere that he did
not belong to the Union which was organizing at the plant but that at one time in
the past he had belonged to a Teamster's local. Elliott conceded that he volunteered
this information to the foreman as he walked down the aisle and that the foreman
continued on without comment.
The evidence is clear, indeed Elliott admitted, that within the last year he had
become involved in several arguments with other employees and that he had engaged
in fisticuffs with employee Butch Kench. It is undisputed that in November he
received an oral warning from Superintendent May about his inability to get along
with other employees. In March 1963, Elliott received a written warning slip for
arguing and fighting. Further, the credible evidence reflects that during the week
preceding his termination he became involved in arguments with at least three
different employees. All this culminated with an altercation Elliott had with
employee Kench on the evening of his termination. This argument involved a
rack of shoes on which Kench had begun to work. Although Kench explained that
this was his own rack and that he had begun to work with it, Elliott persisted in
physically trying to take the rack away from Kench Foreman La Freniere came
up to intervene and told Elliott that he had been causing trouble all week. At this
point Elliott told La Freniere, "If you don't like it, you can go get my check" 65
La Fremere then departed and had Elliott's paycheck made out. When he returned
to present it to him, Elliott stated that he did not want to quit. However, La
Freniere told Elliott that it was too late now-and with this Elliott was terminated.
Apparently the General Counsel contends that Elliott was discharged because of
his statement to La Freniere that he had belonged to a union in the past. I find
the evidence insufficient to support this contention. As noted Elliott was not active
in the current organizational campaign and there is no evidence that Respondent
suspected him of any such activity. In fact, Elliott told La Freniere that he did not
belong to the organizing union Moreover, from my observation of Elliott it was
apparent to me that the Respondent had little to fear that Elliott would have any
influence among the other employees one way or the other. I do not believe that
his remark to La Freniere had any bearing upon his discharge As indicated above,
Elliott had caused considerable disturbance among the employees with his quarreling
and fighting. Indeed, the termination of Elliott occurred spontaneously with his
altercation with employee Kench,66 a factor which in itself is strongly indicative that
the termination was of nondiscriminatory character I find and conclude that
Respondent did not violate Section 8(a)(1) and (3) of the Act by its termination
of Elliott and I shall recommend that this allegation be dismissed.
d Marguerite Graham
The complaint alleges that "On March 12, 1964, Respondent informed Marguerite
Graham, an employee at its Ithaca plant, that she would not be considered for, nor
be transferred to, a higher-paying job; namely, eyeleting, when such a job became
available." The conclusionary paragraphs of the complaint allege that the Respond-
ent thereby violated Section 8(a)(1) and (3) of the Act, although at the hearing
the General Counsel stated, "As to whether or not she is technically an 8(a)(3) I
don't know. I do know that we are asking in our remedy that she be given prefer-
ence for the next job opening in eyeletting. 1167
I might state at the outset that while I do not question Graham's credibility,68
she was a voluble and rambling witness and I have considerable difficulty in piecing
together certain aspects of her testimony.
Graham started with the Respondent on February 2, 1962, and first worked on a
job called "skiving" in the fitting department. At some later point in her employ-
ea There is no dispute as to what occurred on this occasion, La Freniere's version being
substantially the same as Elliott's.
11 The evidence is clear, and I find, that Elliott was at fault for this altercation
87 Without benefit of brief, I have no way of knowing General Counsel's theory in
this regard.
In fact, here testimony in pertinent part is largely undenied
WOLVERINE SHOE & TANNING CORPORATION 329
ment she was placed on a job called eyeletting, a higher paying job. However, it
appears she was put on this job to replace one Betty Baker, who was on a leave of
absence due to an injury. It further appears that when Baker returned, Graham
was transferred back to her job of skiving, where apparently she made less money.
I shall not dwell on this transfer because the General Counsel at the hearing specif-
ically disavowed any contention that this transfer was of a discriminatory character.
Graham, who protested her transfer from the eyeletting job, testified that her fore-
man, Dewey Smith, spoke to her about the Union on several occasions. She specif-
ically referred to a conversation which occurred with Smith in the lunchroom on
March 10, 1964. Graham's testimony concerning this conversation, however, came
in on a piecemeal basis and she shifted her testimony as to the sequence of -the
events discussed. In any event, her testimony began as follows: "He said that they
were hiring a lot of new girls, and there were openings in different jobs, and if I
wasn't satisfied with my job on skiving that I had a choice then to go on to some
other jobs. He named a few. We discussed wages [etc.]" Apparently later in the
conversation, according to Graham, Smith stated, "The trouble with you is that you
just want your eyeletting job back. With your attitude lately I wouldn't for the
world put you back on eyeletting." Graham further testified that at some point
during the conversation, and her testimony here shifted as to when it occurred,
Smith stated that he had heard she signed a union card and asked her if she did.
She replied that she would not answer the question. The conversation ended.
Graham testified, with Smith telling her that she had been a nice girl who was
always smiling and that he would like to see "some more of those smiles."
While the matter is not above suspicion, I find that Graham's testimony does not
support the allegation in the complaint as set forth above. In view of Graham's
rather confusing testimony, I agree with Respondent's contention that Smith's com-
ment concerning Graham's attitude very well could have been in reference to her
attitude toward her job.69 At the very least, any inference that Smith referred to
any union activity on Graham's behalf is no greater than the inference that he
referred to her job complaints. Moreover, there is no evidence that Respondent had
any eyeleting job available at the time of the above conversation. I credit Smith's
testimony to the effect that he would give Graham due consideration for any eye-
leting job that would occur in the future.
I do, however, find that Smith's questioning of Graham as to whether she signed
a union card to be in violation of Section 8(a)(1) of the Act.
C. Conclusions of law as to Section 8(aXl)
I have hereinbefore set forth the incidents wherein I have found the Respondent
to have engaged in conduct violative of Section 8(a)(1) of the Act. It is found
that such conduct consisted of the following: coercively interrogating employees
respecting their union activities, sympathies, and desires; threatening employees
because of their union activities, sympathies, and desires; promising employees eco-
nomic benefits to induce them from refraining in engaging in union activities; 70
engaging in surveillance of the union activities of its employees; 71 giving the employ-
ees the impression that their union activities were under surveillance; soliciting the
services of employees to spy upon the union activities of their fellow employees
(attendance at union meetings) and to report such information to the Respondent;
and orally advising employees that they may not engage in union activities on com-
pany property during their nonworking time.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection 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 tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
69 There is other testimony, which need not be detailed here, that Graham complained
to Smith about her transfer from the eyeletting job. As noted, there is no contention
that this was a discriminatory transfer.
vu The La Freniere-Rangel incident of March 14. 1964.
i1 As admitted by Supervisor Lowell Gurner to employee Leonard Potter in Sep-
tember 1963.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Respondent having been found to have engaged in unfair labor practices, it will
be recommended that it cease and desist from them, under a broad decision, since
the nature of the conduct goes "to the very heart of the Act." N.L.R.B. v. Entwistle
Mfg. Co., 120 F. 2d 532, 536 (C.A. 4) It will also be recommended that Respond-
ent take the requisite remedial action of offering immediate and full reinstatement
to the six discriminatorily discharged employees to their former or substantially
equivalent positions (The Case National Bank of the City of New Yolk, San Juan,
Puerto Rico, Branch, 65 NLRB 827), without loss of seniority and other rights or
privileges, to make them whole, with interest, for the pay they lost because of their
discharges (F. W. Woolworth Company, 90 NLRB 289; Isis Plumbing & Heating
Co., 138 NLRB 716), and post appropriate notices.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding, I make the following:
CONCLUSION OF LAW
1. Wolverine Shoe & Tanning Corporation is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2 American Federation of Labor-Congress of Industrial Organizations and Inter-
national Union, Allied Industrial Workers of America, AFL-CIO, are labor orga-
nizations within the meaning of Section 2(5) of the Act
3. By coercively interrogating employees respecting their union activities, sym-
pathies, and desires; by threatening employees because of their union activities,
sympathies, and desires; by promising employees economic benefits to induce them
from refraining in engaging in union activities; by engaging in surveillance of the
union activities of its employees: by giving the employees the impression that their
union activities are under surveillance; by soliciting the services of employees to spy
upon the union activities of their fellow employees and to report such information
back to the Respondent; and by orally advising employees that they may not engage
in union activities on company property during their nonworking time, Respondent
has interfered with, restrained, and coerced employees in the exercise of rights guar-
anteed them by Section 7 of the Act, and has thereby engaged in unfair labor prac-
tices in violation of Section 8 (a) (1) of the Act.
4. By discharging James A. Skibinski, Duane A. Miller, Robert E. Splane, Dale R.
Loree, Constance Binfet, and Jerome Binfet because of their union activities and
their support of the Union, Respondent discriminated in respect to their hire and
'tenure of employment, discouraging membership in the Union, and thereby engaged
-in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act
5 The above unfair labor practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
6. Respondent has not discriminated against Earl Elliott or Marguerite Graham
in violation of Section 8(a) (3) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in this proceeding, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, I recommend that the Respondent, Wolverine Shoe &
Tanning Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against employees because of mem-
bership, support, or activity on behalf of American Federation of Labor-Congress of
Industrial Organizations; International Union, Allied Industrial Workers of America,
AFL-CIO; or any other labor organization.
(b) Interrogating employees respecting their union activities, sympathies, and
desires, threatening employees because of their union activities, sympathies, and
desires; promising employees economic benefits to induce them from refraining and
engaging in union activities; engaging in surveillance of employees' union activities;
giving employees the impression that their union activities are under surveillance,
soliciting services of employees to spy upon the union activities of their fellow
employees and to report such information back to the Respondent; and advising
employees that they may not engage in union activities on company property during
their nonworking time.
WOLVERINE SHOE & TANNING CORPORATION 331
(c) In any other manner interfering with, restraining, or coercing employees in
the right to self-organization, to form, join, or assist any labor organization, to bar-
gain collectively through representatives of their own choosing, to engage in con-
certed activities for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities, except to the extent that such
right may be affected by an 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 it is found will effectuate the poli-
cies of the Act.
(a) Offer immediate and full reinstatement to James A. Skibinski, Duane A.
Miller, Robert E. Splane, Dale R. Loree, Constance Binfet, and Jerome Binfet to
their former or substantially equivalent positions, without loss of seniority or other
rights and privileges, and make them whole, with interest, for the losses in pay sus-
tained by reason of their discharge in the manner set forth in the section entitled
"The Remedy."
(b) Notify any of the above-named employees if presently serving in the Armed
Forces of the United States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records relevant to compliance
with the backpay and reinstatement provisions as provided herein.
(d) Post at its plants in Rockford and Ithaca, Michigan, copies of the attached
notice marked "Appendix." 7 2 Copies of such notice, to be furnished by the Regional
Director for Region 7, shall, after being duly signed by Respondent's representative,
be posted immediately upon receipt thereof, and be maintained by it for a period
of 60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 7, in writing, within 20 days from
the date of the receipt of this Decision, what steps the Respondent has taken to
comply herewith 73
It is further recommended that the complaint be dismissed as to any unfair labor
practices which are alleged but not herein found.
ii If this Recommended Order is adopted by the Board, the words "the Decision and
Order" shall be substituted for the words "the Decision and Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of it United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Oider"
731n the event that this Recommended Order is adopted by the Board, the written
notification will be within 10 days from the Order, In the event of court enforcement,
it will be 10 days from decree.
APPENDIX
NOTICE TO ALL EMPLOYEES
The Decision and Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that.
WE WILL NOT discourage membership of our employees in American Feder-
ation of Labor-Congress of Industrial Organizations, or International Union,
Allied Industrial Workers of America, AFL-CIO, or any other labor organiza-
tion, by discriminating in any manner in regard to hire, tenure, or any other
term or condition of employment, except as authorized in Section 8(a)(3) of
the Act.
WE WILL NOT threaten our employees with reprisals because of their union
activities.
WE WILL NOT question any of our employees regarding their attendance at
any union meeting or otherwise coercively question them concerning their
union activities, sympathies, or desires.
WE WILL NOT solicit the services of any of our employees to spy upon the
union activities of their fellow employees,
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT engage in surveillance of union meetings of our employees or
create the impression that we are engaging in and have engaged in such
surveillance.
WE WILL NOT promise our employees economic benefits for the purpose of
inducing them not to engage in union activities.
WE WILL NOT tell our employees that they may not engage in union activities
on company property during their nonworking time.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the right to self-organization, to form, join, or assist the above-
named or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in concerted activities for the pur-
pose of collectively bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such right may be
an agreement requiring membership in a labor organization as a condition of
employment, in conformity with Section 8(a)(3) of the Act.
WE WILL offer to the following employees immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority and other rights and privileges, and make them whole for any loss
of pay they may have suffered by reason of the discrimination against them:
James A. Skibinski
Duane A. Miller
Robert E. Splane
Dale R. Loree
Constance Binfet
Jerome Binfet
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of the above-named or any other labor organizations.
WOLVERINE SHOE & TANNING CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 226-3210,
if they have any questions concerning this notice or compliance with its provisions.
Perl Pillow Co. and International Union of United Brewery,
Flour, Cereal, Soft Drink & Distillery Workers of America,
AFL-CIO . Case No. 23-CA-1756. April 30, 1965
DECISION AND ORDER
On December 22,1964, Trial Examiner Thomas S. Wilson issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the Act, and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the Respondent filed
exceptions to the Decision and a supporting brief, and counsel for the
General Counsel filed a brief in support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
152 NLRB No. 20.