Brady Aviation Corp.

National Labor Relations Board - Board Decisions

Sep 24, 1954

110 N.L.R.B. 25 (N.L.R.B. 1954)

BRADY AVIATION CORPORATION 25
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. We find that the following employees of the Employer consti-
tute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act:
All production and maintenance employees at the Employer's 1933
West 60th Street, Los Angeles, California, plant, excluding office
clerical employees, professional employees, guards, and supervisors
as defined in the Act.ll
[Text of Direction of Election omitted from publication.]
CHAIRMAN FARMER and MEMBER BEESON, dissenting :
We would dismiss the,petition. While we agree that the election
of October 15, 1953, was an invalid one and, for this reason, does not
bar an immediate election under the ban of Section 9 (c) (3), of the
Act, we nevertheless believe that where a union is certified after an
election and thereafter the Board, upon finding that the union has
omitted officer designations from its constitution for the purpose of
evading the filing requirements of Section 9 (h) of the Act, revokes
its certification, the Board should, as a deterrent to such deliberate
evasion, deny a new election to the union for a period of 1 year from
the date of the prior invalid election. Such a rule would, in our
opinion, effectuate the provisions of Section 9 (h) of the Act. Other-
wise, we accomplish nothing by revoking the prior certification except
to incur for the public the trouble and expense of holding a second
election.
u The parties agree as to the unit , except that the Employer would exclude clerical em-
ployees generally . However, as the Board customarily includes plant clerical employees
in plantwide units , we will exclude only the office clerical employees . See Mrs Tucker's
Products, Division of Anderson, Clayton & Company, Inc, 106 NLRB 533. The Em-
ployer also made a request for the inclusion of the plant address in the unit description,
which was opposed by the Petitioner on the ground the plant might be moved. However,
as Board unit findings, in any. event , relate only to existing operations, we have specified
the present plant location.
BRADY AVIATION CORPORATION and INTERNATIONAL UNION, UNITED
AUTOMOBILE , AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA , (UATV-CIO). Case No. 16-CA-640. September 24,
1954
Decision and Order
On December 29, 1953, Trial Examiner Stephen S. Bean issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
110 NLRB No. 13.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent and the
General Counsel filed exceptions to the Intermediate Report and sup-
porting briefs.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations, with the additions and modifications noted
below.
1. The complaint alleged that during December 1952, the Respond-
ent discharged Jacoby and laid off Haynes, Hemphill, and Moore and
thereafter refused them reinstatement in violation of Section 8 (a)
(3) and (1) of the Act. The Trial Examiner found on the basis of
conflicting evidence that the Respondent had no knowledge of the
union activity of the complainants at the time of their discharge or
layoff, as the case may be, and therefore no violation of the Act could
be predicated thereon. We see no reason to disturb this finding. The
Trial Examiner further found on undisputed evidence that subsequent
to their layoff the Respondent learned that Haynes, Hemphill, and
Moore, together with Jacoby, constituted the entire union organizing
committee for the clerical employees and concluded, on the basis of
the record as a whole, that Haynes, Hemphill, and Moore were there-
after discriminatorily denied reemployment. We also agree with
that finding.
Haynes, Hemphill, and Moore were clerical employees, classified as
department clerks "B." Admittedly these employees had capably
served the Respondent. In fact, Haynes and Moore were told shortly
after their layoff that they would be the first to be called back. Pre-
viously, but unbeknown to the Respondent, Haynes, Hemphill, and
Moore, together with Jacoby who had been discharged, constituted the
entire union organizing committee which was seeking to obtain ad-
herents among the unorganized clerical employees. Prior to January
28, 1953, the date they formally applied for reemployment, the Re-
spondent learned of their union activities. These employees have
never been offered employment, even though between the period of
their layoff and June 1953, some 18 new employees were hired for
clerical work and 2 former clerical employees were reemployed in
clerical positions. Neither of the 2 former clerical employees, 1 of
whom was laid off at approximately the same time as the complainants,
were members of the union organizing committee.
As fully set forth in the Intermediate Report, the record shows
that the Respondent manifested its opposition to the organization of
its clerical employees and its antipathy to clericals who embraced the
BRADY AVIATION CORPORATION 27
Union. While most of these overt acts and statements occurred before
the 6-month period preceding the filing of charges, and cannot, there-
fore, form a basis for an unfair labor practice finding, nevertheless
such conduct may be regarded as background evidence for the purpose
of appraising ambiguous acts by the Respondent.' However, during
the operative period of the charge, the Respondent, as found by the
Trial Examiner, violated Section 8 (a) (1) of the Act by intimating
to Hemphill that her chances of reemployment would be improved
if she withdrew her unfair labor practice charge against the
Respondent.
In our opinion, the foregoing facts are sufficient to make out a
prima facie case of discrimination in the failure to reemploy the 3
complainants for any of the 20 clerical openings which were filled
since their layoff. To rebut this prima facie case, the Respondent
contends that none of the complainants were qualified to fill any of
the 20 clerical positions which subsequently became available.
In support of its contention that none of the complainants was
qualified for any of the vacancies in question, the Respondent intro-
duced in evidence an "analysis" purporting to give the job require-
ments of each vacancy and the reason why the complainants were not
reemployed for such vacancy. As fully set forth in the Intermediate
Report, this "analysis" was prepared in the main by Glover, after
the filing of the instant charges, on the basis of what appears to be
certain alleged informal company records, apparently made by some
unidentified person or persons. While we have no reason to doubt the
accuracy of the job requirements set forth in this document, we, like
the Trial Examiner, attach little weight to it, except in obvious in-
stances, insofar as it purports to assign the reason for not reemploy-
ing the complainants. Aside from the hearsay, self-serving, and con-
clusory nature of the reasons assigned, its general unreliability is
otherwise indicated by the record. Thus, as set forth in the Interme-
diate Report, the "analysis" states that Hemphill was not considered
for a vacancy filled on April 28, 1953, because of her plans to move to
Abilene, Texas, in July, whereas credible testimony shows that the
Respondent was not informed of the contemplated move until May 11,
1953. In this state of the record, we must appraise the Respondent's
contention of lack of qualification of the complainants as the reason
for their nonemployment in light of their established and proven quali-
fications as evidenced by their satisfactory work performance for the
Respondent and the job requirement of the vacancies.
Haynes was employed as a clerk in the production department and
her duties consisted of keeping records of rate changes, classifications,
transfers, terminations, compiling daily reports, and performing gen-
' General Shoe Corporation , 90 NLRB 1330 , enfd. 192 F. 2d 504 ( C. A. 6) ; Axelaon
Manufacturing Company, 88 NLRB 761.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eral office work. Hemphill was employed as a clerk in the parts con-
trol department and her duties consisted of clerical work in connection
with the receipt of parts, taking care of personnel files for two depart-
ments, typing, and performing other general office work. Moore
worked temporarily as a secretary, but prior thereto she did various
types of clerical work in the tool and die department, including
typing and the maintenance of records dealing with personnel, hours
worked, and production. The Respondent adduced evidence that
Moore lacked proficiency as a secretary; consequently, only her other
clerical qualifications will be deemed material. As fully set forth in
the Intermediate Report, subject to the above exception, the work of
all 3 complainants was highly regarded by management and they,
accordingly, were given merit increases, and 2 of the 3, Haynes and
Moore, were assured shortly after their layoff that they would be
among the first to be recalled. Moreover, the record also discloses that
in their June 1953 meeting, during which Glover, who apparently at
the time was serving in the capacity of vice president in charge of all
administrative functions other than the accounting department, placed
before Hemphill her application for reemployment and asked that she
withdraw the pending unfair labor practice charge, he stated to her
that if he had known she wanted a job he would have given her one.
This indicates that the Respondent not only regarded her past per-
formance as satisfactory but also considered her qualified for a new
job, as her old job had been abolished at that time.
From the "analysis" in evidence, it appears that the vacancies in
question consisted of 5 secretary positions and 15 clerk positions.
There is no substantial evidence that the complainants were qualified
to fill the secretarial positions. However, the various duties of the
clerk positions, which apparently are included in the same wage classi-
fication as the positions formerly held by the complainants, do not, on
the whole, indicate the need for any highly specialized skills or train-
ing. For example, the work of the personnel clerk in department 62
involved "handling of rates and classifications, weekly personnel re-
ports, sixteen week review" ; the clerk in department 70 was "re-
sponsible for posting on release and raw stock record cards, all receipts,
completions, reworks, rejections. . . ." Upon consideration of all
the evidence, we, like the Trial Examiner, are not satisfied that the
complainants were not qualified for any of the vacancies in question.
Indeed, we are of the opinion that the type of work formerly done by
the complainants somewhat parallels and compares favorably with the
job requirements of some of the positions for which they were denied
employment.
We, like the Trial Examiner, are convinced by the record as a whole,
especially in view of the fact that the Respondent's new clerical
personnel were entirely unfamiliar with its operations, that the com-
RRAIY AVIATION CORPORATION 29
plainants were denied reemployment not because they lacked the
necessary job qualifications, but because the Respondent's opposition
to the unionization of its clerical force would best be served by not
returning the Union's organizing committee to the plant. However,
unlike the Trial Examiner, we are not entirely satisfied in view of
relatively few openings, that all the complainants would normally
have been recalled by February 2,1953. But we do believe that absent
discrimination they would have been recalled by March 9, 1953, at
which time the Respondent had filled 8 nonsecretarial vacancies. We
shall accordingly commence back pay from that date.
If the dissenting opinion had registered disagreement with us only
as to the "weight" to be given the "analysis" prepared by the Respond-
ent and the inference of facts to be drawn therefrom, we would have
been content to rest on the record without further comment. How-
ever, our dissenting colleagues have gone much further in construing
our opinion and by apparently abandoning the "pretext" theory of
discrimination which has been uniformly approved by the courts.
In giving controlling significance to the fact that 70 other em-
ployees were also laid off for economic reasons and that the record fails
to disclose whether they were ever rehired, the dissent fails to point
out that those 70 employees were production employees who were
already organized and who are not involved in this proceeding, where-
as here we are concerned with discrimination against clerical em-
ployees whose organizational activity the Respondent opposed. In
these circumstances the absence of evidence as to the subsequent treat-
ment of laid-off production employees is hardly relevant. Moreover,
it is well settled that it is not necessary to find discrimination against
all union adherents in order to find individual discrimination among
active union members.
More serious, however, is the unfounded charge of the dissent (1)
that under the majority's holding "all that need be proved to establish
a violation of the statute when an employer does not hire applicants
for employment is that the employer knew the applicants were union
adherents," and that "an employer cannot without risk of an 8 (a)
(3) violation reject one job applicant and prefer another applicant if
the employer knows the rejected applicant has been a union sympa-
thizer"; (2) that the majority relied exclusively on the Trial Examin-
er's "illuminating observations" as the basis for concluding that the
camplainants were discriminated against; (3) and that in rejecting
the Respondent's defense the Board is substituting its judgment for
the Respondent's as to the qualifications of the complainants.
As indicated in our main discussion, the real issue here is what in
fact motivated the Respondent in denying employment to these com-
plainants. Motivation is a subjective matter which, if found, must be
inferred from objective circumstances established by the record after
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duly considering all countervailing evidence. A reading of our opin-
ion clearly shows, contrary to the suggestion of the dissent, that our
inference of discrimination is based not only on the Respondent's
knowledge of the union prominence of the complainants but also upon
the combination of additional factors, including the Respondent's
opposition to organization of the clericals; the recall of one laid-off
clerical who was not a member of the Union; the fact that the com-
plainants had previously satisfactorily performed clerical work for the
Respondent and, prior to knowledge of their union activity, two of
them had been promised reemployment; and the subsequent availa-
bility of jobs. Our conclusion that the complainants were qualified
for some of these available jobs does not constitute a substitution of
our judgment for that of the Respondent's, but reflects our reasoned
conclusion based on a detailed and objective analysis of the record,
which although set forth above is not adverted to in the dissenting
opinion. Illustrative of this is the fact that we found on the record
that the complainants were not qualified for secretarial work and, ac-
cordingly, secretarial openings were not considered in arriving at our
ultimate finding. Under the dissenters' apparent concept of the law,
the Board would be bound to accept, to avoid the charge of substitu-
tion of judgment, the Respondent's unsupported economic conten-
tion. This would lead to the absurd result that no discrimination
could ever be found unless the employer openly admitted it. In con-
clusion, we wish to state affirmatively that although we cannot con-
trol the hazard of litigation which is a natural concomitant of doing
business, no employer need fear an adverse finding by the Board
simply because he rejects a known union adherent, provided his de-
cision is in fact based on economic and not union considerations.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Brady Aviation
Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Union, United
Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica, (UAW-CIO), or any labor organization of its employees, by re-
fusing to reinstate any of its employees because of their membership
in or activities on behalf of any labor organization, or by discriminat-
ing in any other manner in regard to hire or tenure of employment
or any term or condition of employment.
(b) Inquiring whether employees have instigated charges against
it or requesting the signing of statements withdrawing such charges,
BRADY AVIATION CORPORATION 31
or in any other manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Union, United
Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica, (UAW-CIO), or any other labor organization, to bargain col-
lectively through representatives of their own choosing, to engage
in concerted activities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from any or all such ac-
tivities, except to the extent that such rights may be affected by all
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the purposes of the Act :
(a) Offer to Josephine Haynes, Mary Engdahl Hemphill, and Bette
Moore immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority or
other rights and privileges and make them whole in the manner set
forth in the Intermediate Report in the section entitled "The Remedy,"
as modified herein.
(b) Upon request make available to the Board or its agents, for
examination and copying, all payroll records, social-security pay-
ment records, timecards, personnel records and reports, and all other
records necessary to analyze the back pay due and the right of rein-
statement under the terms of this Order.
(c) Post at its plant at Brady, Texas, copies of the notice attached
to the Intermediate Report marked "Appendix." 2 Copies of said
notice, to be furnished by the Regional Director for the Sixteenth
Region, shall, after being duly signed by the Respondent, be posted
immediately upon receipt thereof and be maintained by it for sixty
(60) consecutive days thereafter in conspicuous places including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Sixteenth Region, in
writing, within ten (10) days from the date of this Order, as to what
steps the Respondent has taken to comply herewith.
CHAIRMAN FARMER and MEMBER RODGERS, dissenting :
We do not agree with our colleagues' conclusion that the General
Counsel has made out a prima facie case of discrimination. We dis-
9 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner ," in the caption thereof, the words "A Decision and Order" In the
event that this Order is enforced by a decree of a United States Court of Appeals, there
shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant
to a Decree of a United States Court of Appeals, Enforcing an Order "
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agree with their rejection of the Respondent's defense to the General
Counsel's case.
So far as we can perceive, the General Counsel established affirma-
tively that these 3 clerical employees were laid off, along with close to
70 employees, for solely economic reasons. Thereafter, the Respond-
ent learned that they had been among the organizers of the Union.
Finally, the Respondent did not rehire them, nor did it hire anyone
else to take the jobs previously occupied by them, which were never
filled. The Respondent did hire clerical employees in other jobs.
The record does not show how many of the 70-odd other laid-off em-
ployees were ever rehired. On these operative facts, and by rejecting
the Respondent's asserted reasons for not hiring Haynes, Hemphill,
and Moore and for hiring what clerical employees it needed in other
positions from other applicants in preference to them, the Trial Ex-
aminer found, and our colleagues agree, that the Respondent violated
Section 8 (a) (3) of the Act .3
The reasoning of the majority necessarily means that all that need
be proved to establish a violation of the statute when an employer
does not hire applicants for employment is that the employer knew
the applicants were union adherents. That is the sum and substance
of the "prima facie case" established by the General Counsel here.
The fact that the Respondent testified that it preferred other appli-
cants to the three in question is considered by the Trial Examiner to
be a "pretext" because the Trial Examiner "had the illuminating
opportunity of seeing and listening to these young ladies." This led
the Trial Examiner to find that the three young ladies were "fitted
for the positions given others in their stead," and my colleagues agree
with this estimate. But the Trial Examiner's, or this Board's, judg-
ment of these applicants' clerical capabilities and qualifications is
hardly a substitute for the Respondent's judgment based on their em-
ployment record with the Respondent, and the Respondent's knowl-
edge of their work on the job. And it cannot in any event serve to
rebut the Respondent's preference for other applicants, for even as-
suming the correctness of the majority's conclusion that Haynes,
Hemphill, and Moore were qualified for some of the positions, there
is no evidence at all to show that those employed in preference to the
complainants were not more qualified.
3 The majority also relies upon certain conduct of the Respondent antedating the charge
herein by more than 6 months , and therefore not subject to an unfair labor practice find-
ing, and a single 8 (a) (1) finding after the charge was filed The earlier conduct, although
it might be considered for the purpose of "appraising ambiguous acts," as the majority
states, does not serve to rebut unambiguous and uncontroverted testimony of the Respond-
ent as to the reasons for its choice of personnel to fill the relatively few vacancies that
occurred The single 8 (a) (1) is itself based on inference and assumption ; it consisted
of the perhaps suspicious , but by no means conclusive , circumstance of having an employ-
ment application in view at the time the Respondent asked the complainant if she would
withdraw her charge . This action , coining after the charge of 8 (a ) ( 3) was filed, does
not evidence the Respondent 's motives , or support the allegations of the earlier -filed charge.
BRADY AVIATION CORPORATION 33:
We are particularly concerned with the implications of the ma-
jority's holding in this case. Apparently, an employer cannot with-
out risk of an 8 (a) (3) violation reject one job applicant and prefer
another applicant if the employer knows the rejected applicant has.
been a union sympathizer. If he does, to exculpate himself he must
prove that he had a valid reason for his preference by satisfying a
Trial Examiner or this Board that they too would have chosen in the
same manner. This unfair burden has, in our opinion, been met by
the Respondent in this case, by introduction of extensive and precise
reasons why other applicants were preferred to the complainants.
But the Trial Examiner and our colleagues attach "little weight" to,
the analysis prepared by the Respondent because it was a "self-serving
document, prepared for purposes of exculpation."
As we are unable to find that the General Counsel has established
a prima facie case, and therefore the Respondent had nothing to rebut,
and because we believe that the Respondent's reasons for having hired
others in preference to the alleged 8 (a) (3)'s must be accepted as true,
because they are uncontroverted by any evidence other than the Trial
Examiner's "illuminating observations," we would reverse the Trial
Examiner's 8 (a) (3) finding herein.
Intermediate Report
STATEMENT OF THE CASE
A charge having been duly filed by International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America, (UAW-CIO), herein
called the Union, on May 26, 1953, and served on May 27, 1953, and a com-
plaint and amendments thereto and a notice of hearing thereon having been duly
served, and an answer having been filed by Brady Aviation Corporation, herein
called the Respondent, a hearing involving allegations of unfair labor practices in
violation of 8 (a) (1) and (3) of the National Labor Relations Act, as amended,
61 Stat. 136, herein called the Act, was held in Brady, Texas, before me, the duly
designated Trial Examiner, on September 21 and 22, 1953.
In substance the complaint, as amended, alleges and the answer denies, that in
December 1952, Respondent discriminatorily discharged Juanice Jacoby and laid
off or discharged Josephine Haynes, Mary Engdahl Hemphill, and Bette Moore
(collectively referred to herein as complainants), and has since refused to reinstate
them despite their application for reinstatement, because they joined or assisted
the above-named Union or engaged in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection; (2) interrogated its employees
concerning their union affiliations and threatened and warned its employees to refrain
from assisting, becoming members of, and remaining members of, the union; and
(3) that by such conduct Respondent interfered with, restrained, and coerced
employees in the exercise of right conferred by Section 7 of the Act.
At the hearing all parties were represented, were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce evidence pertinent to
the issues, and to file briefs and proposed findings of fact and conclusions of law.
The parties waived oral argument. Respondent filed a brief on October 23, 1953.
1. FINDINGS OF FACT RELATING TO THE BUSINESS OF RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Respondent is and has been since October 1, 1951, a corporation duly organized
under and existing by virtue of the laws of the State of Texas, having its principal
office and place of business at Curtis Field, in the city of Brady, Texas, and is now
and has been at all times herein mentioned continuously engaged at said place of
338207-55-vol. 110-4
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business in the assembling of detailed parts into major part assemblies, for the use
of the Air Force and Navy of the United States of America. During the year 1952,
Respondent's gross receipts were in excess of $50,000. Respondent is now and for
some time past has been under contract with Intercontinental Mfg. Co., Inc., a Texas
corporation, to supply labor for the purpose of assembling detail parts and other
material furnished by the latter company. During the year 1952, Intercontinental
Mfg. Co., Inc. shipped directly from its Garland, Texas, plant, finished products
amounting to in excess of $25,000 and paid Respondent in excess of $50,000 for
the services of labor it supplied. All services supplied and sales made by Respond-
ent were for the ultimate use of the Air Force and Navy of the United States. In
Case No. 16-RC-1227 decided April 20, 1953, the Board found (citing Westport
Moving and Storage Company, Crate Making Division, 91 NLRB 902), that
Respondent falls within that category of enterprises "substantially affecting national
defense" and that it will effectuate the policies of the Act to assert jurisdiction.
I find that Respondent is engaged in commerce within the meaning of the Act.
International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, (UAW-CIO), is a labor organization within the meaning of
Section 2 (5) of the Act.
II. THE ISSUES AND THE EVIDENCE RELATING TO THE ALLEGED UNFAIR LABOR
PRACTICES
A. The General C'ounsel's case and evidence relating to 8 (a) (1) allegations
The 4 complainants were among 6 employees, including, also Bonnie Jo Stevens
and Diamitia Pennington, who had attended 1 or both of 2 evening meetings on
November 13 and December 4, 1952, at the home of Juanice Jacoby for the purpose
of organizing a bargaining unit among Respondent's clerical employees, a subject
which had been discussed since before a walkout in October Stevens resigned from
the group on December 4 and Josephine Haynes was terminated on December 5.
Bobby Lee Miller, president of Local 1181, representing Respondent's production
and maintenance workers, upon learning of Haynes' layoff, told W. C. Beck,
Respondent's then director of labor relations, George Cantrell, Haynes' immediate
foreman, and Earl Tomerlin, Respondent's manufacturing superintendent, that
Haynes was.the main cog in an office clerical employees' organizational group, and
asked that she and other girls instrumental in the union drive be retained in
Respondent's employ. Cantrell said he and Tomerlin would like to have a list of
the girls so nothing of a nature similar to what had happened to Haynes would
occur in the future. Miller then wrote in green ink the names, Haynes, Bette Moore,
Mary Engdahl (Hemphill), Jacoby, and Bonnie Jo Stevens on a paper torn from
a notebook and laid it flat on Cantrell's table. Miller told Moore, Tomerlin's
secretary, what he had done and Tomerlin glanced at the paper. On December 19,
1952, Miller protested to Cantrell the discharge of Jacoby on that date, stated the
list had been given in good faith, and Cantrell returned the list to him.
Charles L. Glover, a former vice president of Respondent,' stated to Miller, just be-
fore the first meeting he held with the grievance committee after he took over the han-
dling of labor relations for Respondent, that the Company could operate much easier
and much more profitably if it did not have to contend with the Union, that if he did
not have to waste his time he could be out obtaining additional business for the
Company, and that one of his primary objects, as labor relations man, was to bust
the local union half in two. While having coffee with Jacoby in the plant cafeteria,
shortly after a walkout that had taken place in late October or early November 1952,
Cantrell discussed with her the situation of five production and maintenance em-
ployees who had been laid off, and whom the Company had more or less been
forced to rehire, and told her that these employees would get it again sooner or
later and that Respondent would eventually end up by getting Miller too. After
the walkout, Haynes having been asked to become temporary secretary of the local,
Cantrell asked her if she had taken over as secretary and she replied, "No." About
the same time, Ray Wells, who was in supervision, told Haynes he thought she was
too open with the Union, too radical about it, and she should not be talking too
.much. Similar discussions were engaged in by Supervisors Bill Crew, Norman West,
and Arville Ludwig, who said they liked Haynes, her work was satisfactory with
them, and they wanted her to stay but did not think she would. Crew said that
i Glover was in Respondent's employ from November 16, 1952, to August 12, 1953. He
was initially in charge of sales only and later assigned to all administrative functions other
than those of.the accounting department.
BRADY AVIATION CORPORATION 35
she should be careful and people whom Haynes understood to be members of super-
vision, superior to Crew, were all after her.
Tomerlin called Haynes into his office and told her in the presence of his secretary,
Bette Moore, he thought unions were a racket getting employees' money, and never
doing anybody any good; that if she had any contacts she should tell employees
they were not helping themselves and he could not understand why the girls were
sympathizing. About a week after December 5, 1952, the day she was laid off,
Haynes asked Cantrell is she was laid off for union membership and he asked her if
she had been mixed up with it.
On June 1, 1953, through her husband, one of Respondent's employees, Glover,
called Hemphill (who had been laid off on December 17, 1952, had signed a letter
dated December 30, 1952, applying for reemployment, and whose name appeared
on an unfair labor practice charge filed May 26, 1953) into his office from her home,
asked her if she knew about her reemployment application (which he showed her),
and asked her if she knew the charge (which he also showed her), was going to be
filed. Glover also asked Hemphill if she would sign a statement withdrawing the
charge and have nothing more to do with the Union. In November 1952 Lorene
Wright, Respondent's personnel interviewer, who the Board stated in Case No.
16-RC-1227 was shown by the record to do the actual hiring and in direct charge
of Respondent's personnel department, told Pauline Turner, an employee in the
personnel section, that the department was overloaded, she thought another girl
was needed, and that Beck had told her that he would not have a girl in personnel who
belonged to the Union. On an unstated date employee Betty Jean Kensing, an
accounting department clerk, overheard Troy Gates, Respondent's captain of the
guard (comprising a group of 10 employees) since about May 1953, state to employee
Jonell Stewart, sitting at the same desk with her, that 4 girls (mentioning Jacoby,
Hemphill, and Moore) had been fired on account of the Union, and if Stewart
wanted to work for the Company until she got ready to quit and get married, she had
better stay out of the Union and keep her nose clean. In February 1953, Blotner,
Respondent's executive vice president, on the morning after the granting of a plant-
wide cost-of-living increase, came into the accounting department where the em-
ployees were talking about the increase. He spoke to the group and said that they
could see that they did not need a union to get what they wanted, that they had
gotten the same privileges as the production and maintenance employees and did not
have to pay dues .2
B. The General Counsel's case and evidence relating to (8) (a) (3) allegations
1. The discharge of and refusal to reinstate Juanice Jacoby
Jacoby went to work for Respondent on May 8, 1952, as the 343rd employee hired
plantwide. Her original wage was $1 an hour, increased automatically to $1.05 at the
end of 16 weeks and meritoriously to $1.15 on November 1, 1952. She first worked
as a department clerk under Miller where she kept a file on production and main-
tenance employees, posted timecards, and did routine typing. About July 1, 1952,
she was moved to a newly established accounting department where she worked under
T. J. McQueen, performing, in addition to her former duties, the task of keeping and
helping make ready B cards for the timekeepers each day. Her duties did not require
shorthand. She held two union or unit organizational meetings at her home on
November 13 and December 4, 1952. On December 19, about half an hour before
quitting time, she was called into Beck's office where, in the presence of McQueen,
Beck stated her employment possibly and probably was to be terminated and sug-
gested that she resign. Jacoby refused to resign and asked why she was being ter-
minated. Beck and McQueen stated the matter was above their heads, and upon
being pressed by Jacoby, said the reason was exposure of confidential information;
that she had been told that Robert Simpson, a timekeeper, had been made a super-
visor. Jacoby was thereupon discharged. About a week before her termination,
Jacoby was in the personnel office leaving some papers when she spoke to Simpson
who was getting a red button (the insignia of a supervisor) and a half hour later,
when she was back in her office, she told Timekeeper Clarence Geistman that Simp-
son was wearing a red button. On December 19, Jacoby told Beck and McQueen,
who did not answer, that she could not see why Simpson's promotion was confidential
2 Following the direction of elections in Case No. 16-RC-1227, an election was held on
May 20, 1953, among the office clerical employees which resulted in tally of 7 votes for the
Union, 25 against the Union, and 1 vote challenged.
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since he was wearing the red button on his belt where it could easily be seen. Pre-
viously, McQueen had told Jacoby and Stevens ( who it will be recalled resigned from
the organizing committee ) that some information had gotten out, that he did not
know who was responsible , but that they should not give out anything and if in
doubt they should contact him. No one in a supervisory position told her that she
should not disclose the fact of promotions to fellow workers and she never received
instructions as to what was considered to be confidential . Although she signed a
letter, dated December 30, 1952, mailed January 27 , 1953, and received by Respond-
ent on January 28 , 1953, applying for reemployment , Jacoby has not been reinstated.
2. The layoff of and failure to reinstate Josephine Haynes
Haynes went to work for Respondent on March 19, 1952, as the 150th employee
hired plantwide . Her original wage was $1 an hour, increased automatically around
July 12 and meritoriously 5 cents an hour further sometime in August 1952 She
first worked as a production clerk under A. B. Currey and after 2 months Cantrell
became her supervisor . Her duties , which did not involve taking dictation, consisted
in compiling the records of the production and maintenance employees of the whole
plant and carried her from one department to another . Her work was frequently
complimented and never criticized . In November 1952 Haynes was asked by some-
of the girls , who had not received the 16-week automatic pay increase , to organize-
a bargaining unit. She spearheaded the drive to form a union for the clerical em-
ployees, selected the committee , and attended the two meetings at Jacoby's house on
November 13 and December 4, 1952. She was laid off on December 5, 1952, when,
in her estimation , between 1 , 200 and 1,300 persons were employed by Respondent,
which to her knowledge was the peak or high level of employment since the time-
she was hired . When Haynes reported for work on the morning of December 5, 1952,
she found she had no office and was informed by Cantrell that he had orders to move
it to the personnel department and was informed by Tomerlin that he did not know
where she was going . At 3 o'clock , upon learning from two fellow employees that
she had been laid off , she went to Beck's empty office where she found , and took,
her termination papers and paycheck and proceeded to the empty office of Tomerlin,
who when he saw Haynes there , went through another office to the other end of the
plant. Haynes' termination notice , signed by Cantrell, ascribes her termination to the
closing of a department and states "her work was excellent-well satisfactory."-
Haynes signed a letter applying for reemployment which was dated December 30,
1952, given to Miller, and received by Respondent on January 28, 1953. She was
told by Cantrell , about a week after her separation , that he thought she would be
back to work in about 3 weeks and was told by Beck, around the last of January or
the first of February 1953 when she went to the plant and asked for a job, that when
Respondent started rehiring she would be the first to be hired because she was the-
first to have been laid off. Haynes has not been reinstated.
3. The layoff of and failure to reinstate Mary Engdahl Hemphill
Hemphill (then Engdahl ) went to work for Respondent on June 16, 1952, as-
the 544th employee hired plantwide . Her original wage was $1 an hour and she
received a 5-cent merit increase in September 1952. She has a high school and a busi-
ness college training , has taken a secretarial course, and completed a shorthand course
in the 100 -word class . She worked in the parts control department , first under
C. B. Young and later under Walter Hargess. She was the first girl hired into the
department and set up some of the files. Dorothy Talley and Dorothy Taylor were
hired into the department later. Hemphill filed paper work that came in with the
parts , cared for personnel files of two departments , and did typing and other gen-
eral office work . She was complimented , but never reprimanded. by any of her
supervisors. She attended the first organizational meeting at Jacoby's home on No-
vember 13 , 1952, but not the second , and was a member of the organizing committee
of the clerical employees . She was laid off, without notice, on December 16, 1952,
a day-when she was out sick. Respondent 's termination notice gives "no work" as the-
cause. Taylor , not a member of the organizing committee and who never worked
on the personnel files, was also laid off at the same time , but recalled on February 23,
1953. Talley, who told Hemphill she had been tried out on dictation and had been
decided against as Beck's possible secretary , was not laid off. On December 17
Beck and McQueen told Hemphill there had been a general layoff of about 30 peo-
ple. Hemphill applied for reemployment by letter dated December 30, 1952, and
received by Respondent on January 28, 1953. She visited Beck the same day Hayne-,.
BRADY AVIATION CORPORATION 37
-saw him 3 and he told her there had been a general layoff on December 16, that
there were no openings then, and the whole thing was over his head. On June 1, 1953,
Glover told her (in addition to what has been related in section II A, above) her
application for reemployment was in the dead file, that if he had known she wanted
a job and had come to him he would have given her one, and that the only way
she could help him was to sign a statement withdrawing the charge and have nothing
more to do with the Union. Hemphill moved to Abilene on June 30 , 1953, and re-
newed her application for reemployment by a letter she neglected to sign, which
was replied to by a letter dated July 10, 1953 , from Glover, stating Respondent was
interested in determining whether Hemphill had written the letter . Hemphill has
not been reinstated.
4. The layoff of and failure to reinstate Bette Moore
Moore went to work for Respondent on April 11, 1952, the 201st employee hired
plantwide, at $-1 an hour, received an automatic raise of 5 cents an hour after 16
weeks, and a merit increase of 5 cents an hour about November 22, 1952. She
worked in the tooling and dieing department under Tomerlin and, when he was
advanced to the position of manufacturing superintendent , undertook additional duties
as Tomerlin's secretary. After Haynes' layoff on December 5, 1952, Moore, al-
though she was very busy and tried to have the personnel department care for the
work, was obliged to type the daily production reports that had formerly been written
by Haynes She did some typing for, and took dictation from, Glover who as well
as Marcus Yates, the head man in the tool department, told her she was doing
a good job. On November 13, 1952, she attended the organizational meeting at
Jacoby's home and was a member of the organizing committee which then comprised
Haynes, Jacoby, Hemphill , Stevens, and herself. On December 19, 1952, the daily
production reports were not brought to her and Tomerlin told her they were going to
be discontinued . About 1:30 that afternoon she was handed her termination papers
by one of the girls from the accounting department and at 2 p. in. Tomerlin told
her that there was a general layoff and perhaps when rehiring started in the fall she
could be reinstated . In January 1953 she saw Beck at the plant, asked him what her
chances were of being reinstated , was told production and contracts were falling off,
and she told Beck that the statement in her termination notice that she was laid
off because of no work was untrue because she was busier than she ever had been.
She signed a letter dated December 30, 1952, applying for reemployment , which was
received by Respondent on January 28, 1953, and has not been reinstated.
5. Hirings and separations of clerical employees
Of the 20 women clericals hired by Respondent between December 29, 1952, and
June 15, 1953, 5 had resigned by August 21, 1953, 4 had been laid off by Sep-
tember 4, 1953, and 1 was terminated for prolonged absence on September 14, 1953.
Eight women clericals, in addition to the complainants , were laid off by Respondent
between December 17, 1952, and July 17, 1953; of these, Taylor ( referred to above
as having been laid off on December 17, 1952) was recalled on February 23, 1953,
1 was laid off on December 19, 1952, and the other 6 (all of whom had entered Re-
spondent 's employment on dates between August 1, 1952, and June 15, 1953) were
laid off on dates subsequent to July 2, 1953.4 Fifteen other office clerical employees,
who had been hired on various dates between April 1, 1952, and December 29, 1952,
resigned on divers dates between December 19, 1952, and July 17, 1953.
C. Respondent's case and evidence in refutation 8 (a) (1) allegations
Respondent asks the Board to find that the complainants were laid off for cause
and that there is no showing in the record that management knew about the or-
ganizational meetings attended by the complainants or that it restrained , coerced, or
interfered with its employees ' rights under the Act.
3 Hemphill, Haynes , Moore, and Jacoby went to the plant together on this day and
Hemphill, Haynes , and Moore talked to Beck individually after they had indicated they
wanted to see him in a group.
* There was no evidence disclosing the average length of service, as of the period January
Y to 19, 1952 , of the 4 complainants in comparison with that of those of the 33 office cleri-
cals who were either in Respondent's employment during the December 1952 period or
voted in the May 23, 1953, election.
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Glover did not state to Miller that one of his primary objects as labor relations man.
was to bust the Union and Gates did not tell Stewart that four girls had been fired
on account of the Union and if Stewart wanted to continue working for the Com-
pany she had better not become involved in union activity. Tomerlin did not know
of Haynes' and Moore's union activities until after their layoff and did not know
who the organizing group was until after the first of the year. Management meet-
ing discussions were to the effect that no one should be discriminated against because
of union activities. Miller, stating, "I'm going to give you this list before you get
them all," offered Tomerlin, who was alone in the office, a list of people interested
in forming a union; after December 19, 1952, to the best of Tomerlin's knowledge,
and after Moore and Haynes had been laid off and Tomerlin refused the list, it was.
folded and he could not see the names. Sometime after December 19, 1952, Miller
handed Cantrell a list containing Haynes' name and some other names which he does
not recall. The list of names, written by Miller on a three-cornered triangular scrap
torn from a piece of plain white stationery lying on Cantrell's desk, were kept by
Cantrell in his billfold for 2 days when upon Tomerlin's instructions he returned it to
Miller. Tomerlin was not present when Miller handed Cantrell the list and though
the list presented by Miller at the hearing may have contained the same names
as those appearing on the list handed Cantrell, the list Cantrell received was not
written on the same paper as that offered in evidence. Cantrell heard no discussion
at management-supervisory meetings to the effect that the Company was inclined to
support a union among production and maintenance workers but opposed a unit of-
office clerical workers. The desire of Respondent's present director of personnel,
labor relations, and public relations, who assumed his position July 15, 1953, has
been to encourage the development of the Union and see that the Union gets a square-
deal so that the Company may have good relations with labor. The general com-
munity feeling in Brady, where people work mainly on farms and ranches, was that
local residents were being unduly harassed and continuously stirred up by the Union.
D. Respondent's case and evidence in refutation of the 8 (a) (3) allegations
1. The discharge and nonreinstatement of Juanice Jacoby
Jacoby acted as a clerk in the timekeeping department and when that department
was consolidated with the accounting department she was moved into the latter divi-
sion and performed her duties rather well. McQueen, supervisor of the accounting
department from May 20, 1952, until March 15, 1953, imparted to employees, includ-
ing Jacoby, the necessity of keeping information confidential. On one occasion
McQueen stated to Jacoby and another employee that some information detrimental
to the interests of the Company had leaked out of the accounting department, that
he did not know how it had gotten out, and generally warned them in a mild way
that information the department had access to was not to leave the bounds of the
department. He cannot specifically name any other instance of cautioning her.
Jacoby was the only one who left (walked out of) the personnel department when
Simpson was getting his button and the knowledge of his promotion preceded his
arrival at another part of the premises where he was confronted by some timekeepers,
with some unfavorable remarks, and quite a bit of confusion (which probably would
have happened even though the knowledge of Simpson's promotion had not been
otherwise revealed, because everyone would know about it by his wearing a red but-
ton) was brought up.
McQueen could err in his judgment that the appointment of a supervisor was con-
fidential information and had not instructed the girls in his department that promo-
tions were confidential. McQueen discharged Jacoby on his own initiative without
consulting others because news of the promotion spread from a confidential depart-
ment by means of her statements. McQueen did not know of any union activities on
Jacoby's part. When Glover testified the cause of the necessity to eliminate Jacoby
was that all work of a personnel nature was being transferred as fast as possible to.
the personnel office, he meant Haynes and Jacoby's statement in her application for-
unemployment compensation was false. She was not laid off and Beck wrote the:
commission that she was fired.
2. The layoff of and failure to reinstate Josephine Haynes
Haynes' job was abolished. It was decided that it was unnecessary and undesirable
to maintain duplicate personnel records in the production department as well as in
the personnel office. Since the removal of personnel functions would cut down her
duties to about an hour a day in preparing a production report , it would not be
BRADY AVIATION CORPORATION 39
economical to retain Haynes for that amount of work. An effort was made to locate
another position for her and there was no position available after Haynes' layoff. Fol-
lowing her layoff the preparation of merit increases, transfers, rate changes, and so
forth went to the personnel department, the filing of extra copies of records was
eliminated, and the production report was prepared by Moore until she was termi-
nated on December 19. The personnel department was pretty badly snowed under
and Respondent replaced 2 girls there with 2 girls who would work, since the budget
provided no money to add anyone to the personnel department. Mary Frances
Findley, who could take shorthand and do typing but who was not experienced enough
for secretarial work, was hired on November 24, 1952, to work with Haynes and was
transferred to the purchasing department on December 3, 1952. The personnel
records indicate that Haynes was incapable of taking shorthand. Taylor was re-
hired as production control clerk in preference to Haynes for the reason that Haynes
had no previous experience in that type of work and Taylor had. After Haynes had
been laid off Miller rushed into Tomerlin and said, "Here, I want to give you a list
of our organizing committee before you lay them off." Tomerlin refused the list
because he did not want it and he did not look at it. Cantrell did not know that
Haynes was part of a union organizing group until after she was laid off. Her job
has never been reactivated.
A typed analysis, dictated by Vice-President Glover in June 1953 after the filing
of the charge, of his determination as to why the girls "in the subject case" could
not fill the positions given 17 of the 20 office clericals hired after the discharge of the
4 girls named in charge, and a typed job analysis, prepared by Rudder from the
records of the Company of 3 girls hired on January 9, 1953, June 2, 1953, and June
16, 1953, state, insofar as they affect Haynes, that: (1) Eloise Mahan, hired Feb-
ruary 2, 1953, had a history of experience and ability in handling rates and classifica-
tions, weekly personnel reports, 16 weeks' review, etc., and Haynes possessed no
experience qualifying her for that type of work; (2) Haynes did not have the ex-
perience possessed by Grace Turpin, who was hired February 16, 1953, to perform
work involving knowledge of calculating machines, and the ability to accumulate
and present charts and graphs; (3) Haynes did not have the qualifications or
experience required to do work involving secretarial ability and knowledge of filing
systems, specifications, labor graphs, charts, etc., which Barbara Pittard, who was
hired on February 16, 1952, performed until July 31, 1953; (4) on February 16,
1953, Geraldine Vick was hired as personnel clerk, a position obviously requiring
more than average intellectual ability, poise, and personality, and Haynes was not
considered qualified to fill this position which Vick occupied until May 29, 1953;
(5) Dorothy B. Taylor was rehired on February 23, 1953, rather than Haynes because
she had previously performed the functions to which she was assigned and considered
better qualified therein than Haynes; (6) Haynes' personnel record does not indicate
any experience in handling PBX or teletype machines where as Joahn H. Tetens,
hired February 25, 1953, and laid off July 17, 1953, was utilized 1 day per week,
as relief switchboard operator; (7) Haynes' application shows some 7 months'
experience as an invoice checker at J. C. Penney Company and since that Company
was unable to substantiate her statement, it was assumed that Haynes did not have
the qualifications for the position of accounting clerk for which Thelma J. Fowler
was hired on February 25, 1953; (8) Haynes did not possess the knowledge of
accounting procedures and various business machines involved in the accounting
clerk position for which Wanda Lankford was hired on February 26, 1953; (9)
Jonell Stewart, hired February 26, 1953, had 3 years' bookkeeping experience and
Haynes was not qualified to handle daily extension on timecards, rate changes, ter-
minations , and reclassifications as an accounting clerk which Stewart performed
until August 21, 1953; (10) Elsie M. Dumas' application for employment showed
5 years of excellent varied background for handling the position of posting clerk,
her personnel test indicated a very high mentality, and she was considered better
suited for posting receipts, completions, reworks, rejections, losses, etc., than Haynes;
(11) Haynes was not considered qualified to take the job as accounting clerk,
responsible for checking invoices and the preparation for payment and posting of
accounts payable, given Wilhemina McBee on March 3, 1953, and performed by her
until May 14, 1953; (12) Haynes was not considered qualified to take the job of
accounting clerk, involving basically the extension of earnings and deduction of union
dues, given Genevia L. Johnson, a person of approximately 8 years' experience, hired
April 7, 1953, and terminated September 14, 1953, for absenteeism; (13) Anna Lea
Patterson, hired April 13, 1953, and laid off September 4, 1953, had duties requir-
ing absolute accuracy and responsibility with a minimum of supervision as a planning
clerk and Haynes was not considered to have the background or experience qualify-
ing her for this position ; (14) Haynes was not qualified for the duties performed by
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alice L. Turpin , hired April 20, 1953, of preparing , as assistant to the secretary of
the vice president in charge of sales, sales letters including other material , and in-
volving such functions as maintenance of various charts, relief teletype and PBX
operator , and fill -in industrial nurse, ( 15) it was determined by the purchasing agent
that Betty Z. Carothers , hired April 28, 1953, and laid off July 3, 1953, was better
qualified for the job of handling and typing purchase orders and the maintenance of
logs, etc., than Haynes; ( 16) Martha J. Sessom, hired May 18, 1953, who had been
a night manager for Western Union, was considered to be more experienced and
reliable under minimum supervision under the conditions of her job of maintaining
Kardex records than Haynes, ( 17) Haynes was not considered as well qualified as
Martha J. Keeler, a 120 -word per minute stenographer and a neat and accurate 60-
word per minute typist, hired May 18, 1953, for a job requiring secretarial ability
together with knowledge of statistical quality control charts and data; ( 18) Doris
Sayles was hired December 29, 1952, as secretary to the sales manager and resigned
January 9 , 1953 ( no reason is specifically stated for employing Sayles rather than
Haynes ), ( 19) Barbara Brock, who had worked for Respondent from May until
September 1952, was rehired June 2, 1953 , as secretary to the purchasing agent, a
job requiring secretarial ability and experience to assure accuracy ( no reason is
specifically stated for employing Brock rather than Haynes ); and (20 ) Jewell T.
Paul, with 13 years' experience as a cashier , bank teller , and bookkeeper , was hired
as a clerk to post records and check invoices against original purchasing records on
-June 15, 1953 , and laid off on July 3, 1953 ( no reason is specifically stated for em-
ploying Paul rather than Haynes).
3. The layoff of and failure to reinstate Mary Engdahl Hemphill
Glover, Respondent 's vice president , who, as above indicated served only from
November 16, 1952, until August 12, 1953, has no personal knowledge of Hemphill's
functions . Her separation slip signed by Hargess , representing Glenn L. Martin
Company to whom approximately 20 to 26 employees had been assigned, indicated
"layoff-no work ." The number of Martin representatives was reduced to some
5 or 6 in November 1952. A copy of Hemphill 's unemployment compensation appli-
cation bears by check-mark the reason for her termination as "I was laid off," and in
printed writing the explanation of her separation as "reduction in force." It never
registered with Glover that Engdahl and Hemphill was one and the same person
until some time before June 1, 1953. On that date he asked her if she were interested
in employment and whether or not she was aware that an unfair labor practice charge
had been filed , whether it had been filed at her instigation and request, and if she
would sign a statement to the effect that she was not desirous of pursuing an unfair
labor practice charge; Glover made no statement to Hemphill relative to her ceasing
union activities . Of the three girls in the parts control where Hemphill worked at
the time of her layoff, one who was hired subsequent to Hemphill 's hiring date was
retained . Hemphill had some experience in the work Dorothy B. Taylor was re-
hired to do February 23, 1953; the department head preferring Taylor to Hemphill.
On the Monday or Tuesday before Friday , May 29, 1953, Glover talked with
Hemphill's husband about getting him a part-time job in Abilene when he went back
to school-the job was procured for him between May 27 and May 29. In consider-
ing Hemphill for reemployment Glover figured she would leave when her husband
went to Abilene and he was surprised in July to receive her change of address notice
and continuing application for employment . Otis Lickman , assistant supervisor in
the parts control department where the system of keeping detail records had to be
changed in December because complete accuracy was not being obtained , knows that
Dorothy Talley was retained , Hemphill and Taylor were laid off, and Talley was
kept because she was the most efficient ; he does not know why Taylor was recalled
and Hemphill was not since Taylor had more experience than Hemphill . Hemphill
was in charge of the personnel file and no other girl touched it ; Taylor did work
more comparable to that of Talley, who was not required to take dictation . It would
be hard to say whether Talley or Hemphill were the more efficient because they
performed different duties. Talley kept more accurate records than Hemphill but it
would not be said that Hemphill was inefficient . Part of the work Hemphill did
was eliminated after the layoff: the expediters were allowed to keep their own
records and the detail status book was eliminated. Taylor's and Hemphill's duties
were eliminated before they were laid off.
The Glover and Rudder analyses state , insofar as they affect Hemphill , that: (1)
Eloise Mahan was hired February 2, 1953, due to her history of experience and
ability in handling rates and classifications, weekly personnel reports, 16 weeks'
review, etc ., and Hemphill possessed no experience qualifying her for that type of
BRADY AVIATION CORPORATION 41
work; (2) Hemphill did not have the experience possessed by Grace Turpin, who
was hired February 16, 1953, to perform work involving knowledge of calculation
machines, and the ability to accumulate and present charts and graphs; (3) Hemphill
did not have the qualifications or experience required to do work involving secretarial
ability and knowledge of filing systems, Air Force specifications, labor graphs,
quality control charts, etc., which Barbara Pittard, who was hired on February 16,
1952, performed until July 31, 1953; (4) on February 16, 1953, Geraldine Vick was
hired as personnel clerk, a position obviously requiring more than average intellectual
ability, poise, personality, and ability to meet the public, and Hemphill was not
considered qualified to fill this position which Vick occupied until May 29, 1953;
(5) Dorothy B. Taylor was rehired on February 23, 1953, because she had previously
performed the functions to which she was assigned and considered better qualified
therein than any other person unfamiliar with these details; (6) Hemphill's per-
sonnel record does not indicate any experience in handling PBX or teletype machines,
whereas Joahn H. Tetens, hired February 25, 1953, and laid off July 17, 1953, was
utilized 1 day per week as relief switchboard operator and the rest of the time handled
inspection log books, reports, and quality control charts; (7) Hemphill did not have
any experience in the position of accounting clerk for which Thelma J. Fowler was
hired on February 25, 1953; (8) Hemphill did not possess the knowledge of account-
ing procedures and various business machines involved in the accounting clerk
position for which Wanda Lankford was hired on February 26, 1953; (9) Jonell
Stewart, hired February 26, 1953, had 3 years' bookkeeping experience and Hemphill
was not qualified to handle daily extension on timecards, rate changes, terminations,
reclassifications as an accounting clerk, which Stewart performed until August 21,
1953; (10) Elsie M. Dumas' application for employment showed some 5 years'
background for handling the position of posting clerk, her personnel test indicated
a very high mentality, and she was considered better suited for a job involving
posting receipts, completions, reworks, rejections, losses, etc., for which she was
hired on March 9, 1953, than Hemphill, (11) Hemphill was not considered qualified
to take the job of checking invoices and the preparation for payment and posting of
accounts payable, given Wilhemina McBee, who had 8 years' office work experience,
on March 3, 1953, and performed by her until May 14, 1953; (12) Hemphill was
not considered qualified to take the job involving the extension of earnings and'
deduction of union dues, given Genevia L. Johnson, a person of approximately 8
years' experience, hired April 7, 1953, and terminated September 14, 1953, for
absenteeism; (13) Anna Lee Patterson, hired April 13, 1953, and laid off September 4,
1953, had duties requiring absolute accuracy and responsibility with a minimum of
supervision as a planning clerk and Hemphill was not considered to have the back-
ground or experience qualifying her for this position; (14) Hemphill was not qualified
for the duties performed by Alice L. Turpin, hired April 20, 1953, of preparing,
as assistant to the secretary of vice president in charge of sales, sales letters includ-
ing other material, and such functions as maintenance of various charts, relief tele-
type and PBX operator, and fill-in industrial nurse during emergencies; (15) Betty
Z. Carothers, hired April 28, 1953, and laid off July 3, 1953, was employed rather
than Hemphill when it was learned the latter proposed to move out of town; (16)
Martha J. Sessom, hired May 18, 1953, who had been night manager for Western
Union, was considered to be more experienced and reliable under minimum super-
vision under the conditions of her job of maintaining Kardex records than Hemphill;
(17) Hemphill was not considered as well qualified as was Martha J. Keeler, a 120-
word-per-minute stenographer and a neat and accurate 60-word-per-minute typist,
hired May 18, 1953, for a job requiring secretarial ability together with knowledge
of statistical quality control charts and data; (18) Doris Sayles was hired Decem-
ber 29, 1952, as secretary to the sales manager and resigned January 9, 1953 (no
reason is specifically stated for employing Sayles rather than Hemphill); (19)
Barbara Brock was rehired June 2, 1953, as secretary to the purchasing agent, a job
requiring secretarial ability and experience to assure accuracy (no reason is spe-
cifically stated for employing Brock rather than Hemphill); and (20) Jewell T.
Paul, with 13 years' experience as a cashier, bank teller, and bookkeeper, was hired
as a clerk to post records and check invoices on June 15, 1953, and laid off on
July 3, 1953 (no reason is specifically stated for employing Paul rather than
Hemphill).
4. The layoff of and failure to reinstate Bette Moore
The specifications in Moore's termination notice that she was laid off on account
of (no) work require some qualifications: When Glover and Tomerlin shared adja-
cent offices it was necessary for the two to share the services of a secretary. Moore
did some work for Glover and when it was determined she would not be suitable
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or satisfactory as his secretary, and Glover had to secure a secretary, it was no
longer necessary to keep her. A part of Moore's job included certain work relative
to the personnel records of the tooling department and the transfer of all work of a
personnel nature, as fast as possible to the personnel office, caused a partial reduc-
tion in the work Moore was handling. The production report which Haynes had
been doing before her separation was prepared by Moore during the remainder of
her time with the Company. Taylor, rather than Moore, was rehired because Moore
had no previous experience as a clerk in production control. The circumstances
of Moore's layoff were that she had been employed as a department clerk in tooling
and when Tomerlin moved to his new duties of manufacturing superintendent he
carried Moore along with him to try her out as his secretary. Glover also tried
her as a secretary. She did not prove efficient for that job, the duties which she had
been performing as a departmental clerk were also eliminated, and she was laid
off for lack of work. Moore was not laid off for union activities. Tomerlin did
not know of her union activities at the time of her layoff, but he did know about
such activities after her layoff and this knowledge did not affect any decision he
might have made with reference to trying to find a position for her on rehire. About
November 22, 1952, Tomerlin approved the payment of a merit increase to Moore.
The Glover and Rudder analyses, insofar as they affect Moore, state that: (1)
Eloise Mahan, hired February 2, 1953, had a history of experience and ability in
handling rates and classifications, weekly personnel reports and reviews, and Moore
possessed no such experience; (2) Moore lacked the experience possessed by Grace
Turpin, who was hired February 16, 1953, to perform work involving knowledge
of calculation machines, and the ability to accumulate and present charts and graphs;
(3) Moore did not have the qualifications or experience required to do work involving
secretarial ability and knowledge of filing systems, specifications, labor graphs and
charts, which Barbara Pittard, who was hired on February 16, 1952, performed
until July 31, 1953; (4) on February 16, 1953, Geraldine Vick was hired as personnel
clerk and Moore was not considered qualified to fill this position which Vick held for
31/z months; (5) Dorothy B. Taylor was rehired on February 23, 1953, because
she was considered better qualified therein than any person unfamiliar with her
work; (6) Moore's record does not indicate any experience in handling PBX or
teletype machines on which Joahn H. Tetens, hired February 25, 1953, and laid off
July 17, 1953, was utilized 1 day per week, as a relief; (7) Moore did not have the
qualifications for the position of accounting clerk for which Thelma J. Fowler was
hired on February 25, 1953; (8) Moore did not possess the knowledge required
in the accounting clerk position for which Wanda Lankford was hired on February
26, 1953; (9) Jonell Stewart, hired February 26, 1953, had 3 years' bookkeeping
experience and Moore was not qualified to handle daily extension on timecards,
rate changes, terminations, and reclassifications which Stewart performed until
August 21, 1953; (10) Elsie M. Dumas' application for employment showed some
5 years of excellent varied background for handling the position of posting clerk,
her personnel test indicated a very high mentality, and she was considered better
suited for posting receipts, completions, reworks, rejections, losses, etc., than Moore;
(11) Moore was not considered qualified to take the job handled by Wilhemina
McBee from March 3, 1953, until May 14, 1953; (12) Moore was not considered"
as qualified for a job of accounting clerk, involving basically the extension of earn-
ings and deduction of union dues, as was Genevia L. Johnson, hired April 7, 1953,
and terminated September 14, 1953, for absenteeism; (13) Anna Lee Patterson was
hired April 13, 1953, and laid off September 4, 1953, and Moore was not considered
to have the background or experience qualifying her for the position given Patterson;
(14) Moore was not considered to have the potential to immediately qualify her
for the duties performed by Alice L. Turpin, hired April 20, 1953, of preparing sales
letters including other material, maintaining various charts, and acting as relief
teletype and PBX operator and nurse; (15) it was determined by the purchasing
agent that Betty Z. Carothers, hired April 28, 1953, and laid off July 3, 1953, for
a job for which Moore was considered, was the better qualified for the handling
and the neat and accurate typing of purchase orders and the maintenance of logs;
(16) Martha J. Sessom, hired May 18, 1953, was considered to be more experienced
and more reliable in maintaining Kardex records than Moore; (17) Moore was
not considered as well qualified as Martha J. Keeler, a stenographer and typist hired
May 18, 1953, for a job requiring secretarial ability together with knowledge of
statistical quality control charts and data; (18) Doris Sayles was hired December 29,
1952, as secretary to the sales manager and resigned in 2 weeks (no reason is spe-
cifically stated for employing Sayles rather than Moore); (19) Barbara Brock, who
had worked for Respondent from May until September 1952, was rehired June 2,
1953, as secretary to the purchasing agent (no reason is specifically stated for em-
BRADY AVIATION CORPORATION 43
ploying Brock rather than Moore); and (20) Jewell T. Paul was hired as a clerk to
post records and check invoices on June 15, 1953, and laid off within 3 weeks (no
reason is specifically stated for employing Paul rather than Moore).
5. Respondent's general employment situation
Respondent's total employment figures have been fluctuating for the 8 or 9 months
before September 22, 1953. The peak of employment was in the vicinity of 1,200 in
March, 1953, a decline to around 700 at the time of the hearing, and there were
.approximately 70 layoffs in December 1952.
III. MATERIAL FINDINGS OF FACT, DISCUSSION, CONCLUSIONS
A. Alleged interference, restraint, and coercion
1. The facts
It is not denied and I find that: (a) Cantrell stated to Miller that the Company
could operate much easier and much more profitably if it did not have to contend
with the Union and that if he did not waste his time he could be out obtaining addi-
tional business; 5 (b) Cantrell told Jacoby that five employees laid off after a walk-
out, whom the Company had more or less been forced to rehire, would get it again
sooner or later and would eventually get Miller; (c) Cantrell asked Haynes if she
had taken over as secretary of the local, (d) Wells told Haynes he thought she was
too open and radical about the Union and should not be talking too much; (e) Crew,
West, and Ludwig told Haynes they thought she would not stay and Crew told her
she should be careful because people in supervision, superior to him, were after her;
(f) Tomerlin told Haynes he thought unions were a racket and getting employee's
money, never doing anybody any good, and that if she had any contacts she
should tell employees they were not helping themselves; he could not understand
why the girls were sympathizing; (g) Cantrell, in response to Haynes' inquiry if she
had been laid off for union activity, asked her if she had been mixed up in it;
(h) Glover called Hemphill's attention to her application for reemployment and
asked her if she know about it and was aware that an unfair labor practice charge
had been filed, if it had been filed at her instigation and request, and if she would
sign a statement to the effect that she was not desirous of pursuing an unfair labor prac-
tice charge; 6 (i) Wright informed Turner that Beck had told her he would not have a
girl in the personnel department who belonged to the Union; and (j) Blower told
the accounting department employees they could see they did not need a Union
as they received the same privileges as production and maintenance employees and
did not have to pay dues.
2. Discussion and conclusion
None of the above statements or inquiries made by Wells, Crew, West, Ludwig,?
Tomerlin, or Wright were shown to have been made within 6 months of the filing
and service of the charge. In fact it affirmatively appears that most, if not all, of
them were made before November 27, 1952. Without deciding then, whether any
,of them were of a sufficient character to constitute interference, restraint, or coercion
within the meaning of Section 8 (a) (1) of the Act, Section 10 (b) of the Act pre-
cludes the making of any unfair labor practice finding based upon such inquiries
and statements. Nor does the General Counsel claim otherwise. This is not to say,
however, that the statements and inquiries may not be considered for the purpose
of determining whether the attitude of Respondent toward the Union and those em-
ployees seeking the establishment of an office clerical unit therein was one of ap-
proval, opposition, or mere tolerance. The only statement as shown to have been
made after November 27, 1952, by Cantrell, who indeed did not become general
I credit Cantrell's denial of Miller's testimony that Cantrell said one of his primary
objects as labor relations man was to bust the local union half in two.
6 Hemphill's testimony concerning this conversation was substantially the same as
Glover's except In two respects : She testified, and Glover did not deny it, that he asked
her about her reemployment application ; she testified, and Glover did deny it, that Glover
asked her to have nothing more to do with the Union I accept Glover's denial.
7 The General Counsel made a prima facie showing, which was not rebutted, that these
four men were supervisors sufficient to warrant a finding that their statements should be
attributed to Respondent.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foreman until about December 1, 1952, was elicited from him by Haynes sometime
after December 5, 1952, when she was laid off. The complaint contains no allega-
tions that Respondent 's officers or agents interrogated employees concerning their
union affiliations at any time before April 1953 and I perceive no adequately unlawful
element of restraint , coercion , or interference inherent in this question , prompted as
it was by the employee herself , which would justify the conclusion that Cantrell en-
gaged in an unplead violation of Section 8 (a) (1).
A quite different situation confronts us, as we come to consider the formally plead
allegation that Glover threadened and advised Hemphill to withdraw her charge and
to sign a statement that she would refrain from union activity . As I have already
pointed out , the General Counsel has not convinced me that Glover asked what is
contained in the last part of this allegation , to wit, that Hemphill should sign a state-
ment agreeing to refrain from union activity in the future . But, on the other hand,
the General Counsel has satisfied me that Glover engaged in an even greater act of
interference and coercion than that specifically alleged in the remainder of the alle-
gation , in that he has shown that Glover 's request to the effect that Hemphill sign
a statement withdrawing the charge was not only coupled with an inquiry as to
whether she instigated the charge , but indeed more significantly , was accompanied
by the placing before Hemphill of her application for reemployment . True, as Hemp-
hill's husband testified , Glover did not say in so many words that if Hemphill signed
the paper he would give her a job, but the fact remains that she refused to sign, and
despite her two written and , one personal , applications for reemployment , this ac-
complished young lady has never been reinstated . Standing alone, I should not re-
gard the inquires as to whether or not Hemphill knew about the charge and had re-
quested that it be filed or had instigated its filing and the request that she sign a
statement withdrawing the charge as it applied to her, as singularly grievous acts of
coercion , restraint , and interference. But when one considers that the interroga-
tions and the request were combined with a reference to the reemployment applica-
tion, the implication immediately becomes apparent that a purport of Glover's re-
marks was to induce Hemphill to refrain from union activity in return for being con-
sidered for reemployment and to threaten her with the improbability of reinstate-
ment should she decline to disavow , and refrain from , union activity . Respondent
may not exculpate itself on the claim that Glover believed Hemphill might not desire
reemployment because she had moved away from Brady , for her third application
for reemployment came from her new address within a short time after Glover had
talked with her on June 1 of this year. As late as September 21, 1953, Hemphill
still awaited a job offer. Clearly residence away from the range of an employer's
operations where Hemphill had gone with her husband , who wished to attend school
and work part time , is not a relevant factor to be considered under the circumstances
presented here . Cf Southern Furniture Manufacturing Company, 91 NLRB 1159.
It has not been alleged that Respondent violated Section 8 (a) (4) of the Act. But
to interfere with, restrain , or coerce an employee in the exercise of the right to join
or assist a labor organization is just as much a violation of the Act as is discrimina-
tion against an employee who has filed charges . Because of the aggravated nature
of this violation and its involvement in the failure to reinstate Hemphill it cannot,
in my opinion , be brushed aside as so isolated in character that no useful purpose
would be served by issuing a cease and desist order based on Glover's conduct in
the premises.
The General Counsel alleged that Troy Gates , a supervisor , threatened an em-
ployee with the loss of her job if she did not refrain from union activity. Gates
became captain of the guard about May 25, 1953 . He comes from the same small
town as Jonell Stewart, who worked in Respondent 's accounting department from
March to August 1953, is an intimate friend of Stewart 's parents , and has known the
daughter all her life. As is natural , he frequently chatted with Stewart as he made
his rounds . Kensing apparently believes she overhead the remarks set forth above
in the latter part of section II. Gates and Stewart, the direct participants in con-
versation-and it is frankly admitted they held many-are of course in a far better
position to know what was said than is a person who merely overheard a part of
their talk . Both deny that Gates made the statements attributed to him by Kensing
or that they ever talked together about a union . Leaving aside the question as to.
whether or not Gates was a supervisor within the meaning of the Act, I credit the
denials of Gates, whose appearance and demeanor impressed me favorably, and
of Stewart, a girl no longer in Respondent 's employ, who did not engage in union
activity , and, who from ought that appears is on friendly terms with Kensing and
the various complainants . I therefore find that the General Counsel has not sustained
the burden of proving that, through Gates, Respondent threatened an employee with
the loss of her job if she did not refrain from union activity.
BRADY AVIATION CORPORATION 45
B. Alleged discrimination
1. Union activities of the complainants
The matter of forming a bargaining unit among office clericals had been under
discussion since October 1952 and the four complainants comprised the entire or-
ganizational committee at the time of their separations from employment.
2. The discharge of and refusal to reinstate Jaunice Jacoby
a. The facts
It is not denied and I find, that: (1) Jacoby, the 343rd employee hired by Re-
spondent, worked from May 8, 1952, to December 19, 1953, first in the timekeeping,
and later in the accounting department; (2) she performed her duties rather well
and received two pay increases, (3) she held the two organizational meetings at
her home; (4) before Decembor 19, 1952, McQueen, her supervisor, told Jacoby
and other employees in the accounting department that some information had gotten
out of the department, they should not disclose any detrimental or confidential in-
formation, and if they were in doubt they should contact him; and (5) about a
week before December 19., 1952, Jacoby, while in the personnel department, observed
Simpson, a timekeeper, putting on a red button which indicated he had been pro-
moted to a supervisory position and upon her return to the accounting office told
another timekeeper that Simpson was wearing a red button.
I further find on disputed or divergent testimony, that: (1) Upon learning of
the fact that the knowledge of Simpson's promotion coming indirectly to other time-
keepers had created an unfavorable reaction, although an equal amount of con-
fusion probably would have been caused had the information been otherwise re-
vealed, and upon his conclusion that the news could have emanated in no other
way than through Jacoby, McQueen decided on his own initiative, and without con-
sulting others, to discharge Jacoby, (2) at the time he made this decision, McQueen,
who has not been employed by Respondent since March 15, 1953, had no knowledge
of any union activities on Jacoby's part even though they included the holding of
the two meetings at her home; and (3) thereafter on December 19, 1952, Beck
and McQueen asked Jacoby to resign and upon her refusal, she was informed that
she was being discharged for exposure of confidential information in telling an em-
ployee that the timekeeper in question had been made a supervisor.
b. Discussion and conclusions
I have found that McQueen was unaware of Jacoby's union activity at the time
he decided to discharge her. It is admitted that at some time in December 1952,
Tomerlin and Cantrell had definite knowledge of the union activities of all the com-
plainants. There is evidence which is disputed, that on December 5, 1952, knowledge
of their activities came to the attention of Tomerlin and Cantrell. Miller testified
that on December 5 he told Beck, who was with McQueen when the actual discharge
took place, that Haynes was the main cog in the office clerical employees organiza-
tion group. There is no direct evidence that Beck, who, has left Respondent's em-
ploy and who was not called as a witness, ever knew that Jacoby was interested in
organizational matters Tomerlin and Cantrell say in substance that they knew
nothing about any of the complainants being involved in union activities until after
December 19, the day Jacoby was discharged. In a subsequent subsection relat-
ing to the alleged discrimination against Haynes, Hemphill, and Moore, I shall con-
sider in more detail the question of Respondent's knowledge of union activities on
the part of all four complainants. Suffice it to say here, that the General Counsel
has not convinced me that McQueen's decision to discharge Jacoby, made at a time
when he was not aware of any union proclivities on her part, was transmogrified by
Beck (who had expressed opposition to the organization of personnel department
employees-not employees in the accounting department where Jacoby worked-
and who had previously told Miller on another occasion that the matter of separa-
tion was completely out of his hands and under the control of the appropriate im-
mediate foreman) into an ultimate unlawfully discriminatory act of actual discharge.
It is not incumbent upon an employer to show that an employee has been discharged
for cause when it has not been established that he has been discharged for union
activities. Yet when a discrimination issue is left hanging in the balance, an em-
ployer may offer reasons for a discharge which are so implausible and pretextuous
as to swing the scales in favor of a person discharged. At first blush, a claim that
the reason for a discharge is that in the telling of one employee by another that a
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
person, plainly wearing the insignia of supervisorship for all to see, has become a:
supervisor, the narrator has divulged confidential information, seems ridiculous in-
the extreme. This is not to say that an employer does not have the right to dis-
charge a worker for the cause McQueen ascribes to the discharge of Jacoby in this
case, but simply that such a reason may be so implausible as to cast doubt upon
its genuineness. Yet an employer may, without violating any provision of the Act,
discharge or otherwise discriminate against an employee for any reason, whether ab-
surd or sound, provided the action is not motivated by antiunion considerations. All
the Act proscribes is discrimination because of union activities. McQueen had been
disturbed by the fact that information had leaked from the department he headed and'
perplexed by his inability to determine the source of the disclosures. Undoubtedly
he felt that management was holding him accountable for the failure to confine
confidential information to his department and was at a loss as to what correc-
tive measures he might take. It is reasonably implicit from McQueen's testimony
that when it came to his attention that Jacoby had revealed information which, al-
though scarcely confidential in itself, but which nevertheless came from an employee
under his charge in a department which was considered sensitive, he reasoned that
Jacoby, whom he had previously cautioned, was the type of employee who might be
likely to impaft to others, knowledge of a more definitely confidential character
acquired in her work. McQueen admits that he may have erred in his judgment and
as a purely philosophical proposition it would seem that a person of calmer delibera-
tion would not have reacted as did he. But his was the responsibility of solving-
a problem that had become an enigma. The first and only straw in the wind he,
perhaps desperately, grasped. By penalizing one employee and impressing on others.
the disastrous results attendant upon disclosures of so-termed confidential informa-
tion considered detrimental to the interests of the Company, McQueen placed him-
self in a position to satisfy his superiors that he was alert to the need of detecting
the source of, and preventing recurrences of, such revelations.
So, on more mature reflection, the reason advanced by Respondent for the dis-
charge does not seem so absurd as at first glance nor so implausible as to be palpably
fictional and hence tangentially supportive of a claim of discrimination. The only
issue within the Board's province to decide is whether Jacoby was discriminated
against because of her union activity-not whether she was accorded harsh or un-
justified treatment or whether she was the innocent victim of circumstances. It is.
my conviction that the General Counsel has not sustained the burden of proving that
Jacoby was discharged because of her union activities or that Respondent was aware
of her union activities and that he has not sustained the burden of disproving that
she was discharged for cause.
3. The layoffs of and refusal to reinstate Josephine Haynes, Mary Engdahl Hemphill,
and Bette Moore
a. The facts
It is not denied and I find that: (1) Haynes, Hemphill, and Moore went to work
for Respondent on May 17, June 16, and April 11, 1952, and were laid off on Decem-
ber 5, December 16, and December 19, 1952, respectively; (2) they all received pay
increases during the course of their employment; (3) Haynes and Moore were given
ratings of "good" 8 on July 12, and November 22, 1952, respectively, and recom-
mendations that they be retained; (4) Haynes was asked by other employees to
organize a bargaining unit, led the drive to form a union for clerical employees and
selected the organization committee, and attended both meetings thereof and
Hemphill and Moore were members of the organizational committee and attended the
first meeting; (5) all 3 applied for reemployment by letters received by Respondent
on January 28, 1953; (6) all 3 applied in person for reemployment in January or
February 1953 and Hemphill again applied for reemployment in July 1953; (7) 20
employees were hired to work in office clerical positions between January 9 and
July 3, 1953, of whom 10 resigned or were otherwise terminated before September
15, 1953; (8) 2 girls hired by or before September 25, 1952, neither of whom were
members of the organizing committee, were laid off on December 19, 1952, and I of
them was recalled on February 23, 1953; (9) 3 others, who were hired on or before
October 8, 1952, were laid off in July 1953; (10) 3 others hired in February, April,
8 Moore's testimony that Yates said the reason he gave her "fair" Instead of "good"
ratings in "skill" and "production" (2 of the 6 attributes on which the competency and
ability of employees are evaluated), was that since "skill" related to men working on parts
and that department clerks are not engaged in "production," he marked her card "fair,"
Is undenied.
BRADY AVIATION CORPORATION 47
and June, 1953, were laid off in July 1953; (11) 15 more office clericals, who were
hired on various dates between April 1 and December 29, 1952, resigned on different
dates between December 19, 1952, and July 17, 1953, (12) only 1 of the girls among
the 5 members of the organizing committee, who had resigned therefrom on Decem-
ber 4, 1952, was not separated; (13) the only clerical employee not a member of the
organization committee, who had attended either meeting, was not laid off but
resigned on July 17, 1953; and (14) there were approximately 70 plantwide layoffs
in December 1952 followed by the attainment of the highest level of employment in
the plant's existence in March 1953.
b. Discussion and conclusions
The chief dispute between the parties in relation to the layoffs is whether, as the
General Counsel contends, Respondent knew of Haynes', Hemphill's, and Moore's
union activities as early as December 5, 1952, or as Respondent contends, it was
unaware of them until after December 19, 1952. It is within the realm of possibility
that a union officer should disclose to an employer the names of all employees lead-
ing a self-organizational movement when he suspects discrimination against one of
them, and that thereupon an employer should deliberately discriminate against all
employees whose activities were thus revealed. The General Counsel would have
us believe that such is the probability in this case. Tending to give force to this
thesis is not only the fact that 4 of the 6 clerical employees separated in December
comprised the entire organizing committee as it existed from December 5 to Decem-
ber 19, but also such background factors as Cantrell's statement concerning the un-
profitability of dealing with a union, his prophecy concerning the fate of the 5
employees rehired after a walkout, and inquiries as to whether an employee had
accepted a union office and had been involved in union affairs, Tomerlin's character-
ization of unions as rackets and expression of incomprehension of their support by
employees; Glover's request of withdrawal of a charge; the warning by Wells and
others of the likely results of open union support; Wright's repetition of the state-
ment attributed to Beck that no union members would be allowed to work in the
personnel department; and, Blotner's assertion of the needlessness of unions. How-
ever, the fact that a laid-off employee may be engaged in union activities at the time
of his layoff does not per se constitute substantial evidence of a layoff as a result of
such activities. There must be something more than this combination of circum-
stances. The General Counsel has attempted to supply this requisite proof by under-
taking to show that on December 5, 1952, Miller informed Tomerlin and Cantrell, by
virtue of writing their names on a slip and leaving the paper on a desk in front of
them, that Haynes, Hemphill, and Moore, among others, were engaged in an organi-
zational drive.9 Tomerlin and Cantrell deny that Miller gave them this information
until after December 19 when the last of the three had been laid off. For several
reasons I feel these denials bear the stamp of veracity; first, it is most difficult for
me to believe that Miller would gratuitously expose to possible discrimination the
names of employees who were engaged in the very activity as that which he was
protesting was the cause of Haynes' layoff, second, it is extremely improbable that
Cantrell would say, as Miller claims, that he and Tomerlin would like to have the
names of the girls who were conducting the drive in order that they would not be
laid off and then, apprehending full well what the consequences might be, deliberately
lay them off within 2 weeks; third, it is unlikely, if Cantrell had been informed by
Miller on December 5 that Haynes was engaged in union activities, that he should
ask her when she went to his home about a week later and brought up the subject,
if she had been mixed up with the Union; fourth, apart from Haynes, Hemphill, and
Moore, it is not even faintly suggested that any of the approximately 70 other plant-
wide employees who were all laid off at about the same time, were discriminated
against because of union activities; and fifth, the reasons advanced for laying off
Haynes because her job was abolished, Hemphill because the number of employees
assigned to Glenn L. Martin Company was reduced from approximately 20 to some
5 or 6, and Moore because of the transfer of personnel work from the tooling depart-
ment to the personnel section, which reasons are no more than indirectly denied, if
at all, have not been shown to be pretextuous (and the burden is that of the General
Counsel) and may not lightly be ignored.
The question here is a close and perplexing one, but so are most of the questions
arising under this section of the Act. There are suspicious circumstances that cast
doubt upon the benignity of Respondent's motives. But I am unconvinced that the
9
He also apparently suggests that through the four young men who visited the organizers
at the end of their November 13, 1952, meeting, their union activities may have been dis-
closed to management
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men who were responsible for these layoffs then knew of Haynes', Hemphill's, and
Moore's activities. Were I to conclude that these three young ladies were laid off
in violation of the section involved, inference would be stretched too far and
speculation substituted for that substantiality of evidence upon which alone are
founded findings' footholds.
We now turn to the refusals to reinstate these three girls. As pointed out above,
it is admitted that Respondent was aware of their union activities shortly after
December 19, 1952. All three applied for reemployment at least once in person
and at least once in writing. The alltime record high of employment in the plant
was reached in March 1953, 3 months after their layoffs. Although at least 17 office
employees, who had worked with the 3 before they were laid off, have resigned
and at least 20 others-some 10 of whom are no longer with the Company-have
been newly hired since December 19, 1952, Respondent has failed to reinstate
Haynes, Hemphill, and Moore. A week after her layoff Cantrell told Haynes he
thought she would be back to work in about 3 weeks and that she should not worry
about it and Beck told her she would be the first one hired when Respondent started
rehiring. Tomerlin told Moore that perhaps when they started rehiring in the fall
she would be placed on again. Beck told Hemphill he would recommend her for a
job in town. Although Glover told Hemphill that if she had come to him and
informed him that she wanted a job, he would have given her one, her applications,
including her last request made after she refused to withdraw her name from the
charge, remain unheeded.
Respondent presented evidence, seeking to show that the clerical employees hired
after December 29, 1952, had qualifications superior to those possessed by Haynes,
Hemphill, and Moore. This evidence was in the form of a compilation, prepared
after the charge had been filed, and largely consists of a disparagement of their
ability, as contrasted with that which the 20 new acquisitions in their applications
for employment attributed to themselves. It is worthy of note that only 2 of the
20 newly hired clerks had previously worked for Respondent and the appraisal of
their allegedly superior qualifications was based upon their own avouchments rather
than upon observed performance. There is a notable dissimilarity between the
conclusions set forth in the compilation prepared long after the layoffs, and the
other evidence, much of it coming from Respondent's own records, relating to
attributes of responsibility, mentality, mental application, skill, production, and
attendance displayed by Haynes, Hemphill, and Moore during the course of their
employment and before the layoffs. Thus it must be noted that the work of all
three girls had frequently been praised and they had been told their work was
satisfactory and liked; their performance had never been criticized, that they had
received merit pay increases; Haynes' termination notice was marked "excellent"
and "eligible for rehire" and her review card "good" throughout; Moore's review
card was marked "good" with respect to the factors of responsibility, mentality,
mental application, and attendance and her termination notice was marked "eligible
for rehire"; and Hemphill's supervisor considered her "efficient " 10
But when we scrutinize the "analysis" made 6 months after the layoffs by Glover
and Rudder of their "determination as to why these girls that were laid off could
not fill the positions of the newly hired employees," we see quite a different picture.
There we observe a series of conclusions invidiously replete with such words as
"accuracy," "initiative," "responsibility," "experience," "ability," "knowledge," "per-
sonality," "poise," "intellect," "qualification," "background," "mentality," "poten-
tial," "reliable," and "satisfactory." That not all of the clerical employees hired
after the layoffs in question proved to be paragons of all these virtues is manifest
from the fact of the discharge of 1 of them as unsatisfactory and the fact that none of
9 others lasted more than 5 months. True it is that the record does not show the
reason for the layoffs or resignations of these 9. It may be, although one cannot
tell, that some of them were separated for lack of work. It may be, although still
one cannot tell, that some of them were asked to resign, as was Jacoby, to avoid
being discharged. But there is no point, even if one properly could be made, to
be gained by indulging in such surmise. For the salient fact remains that Respondent,
despite their applications for reemployment, did not see fit to give work to Haynes,
Hemphill, and Moore either when these many openings were filled or when they
were vacated. The "analysis" is palpably a self-serving document, prepared for pur-
poses of exculpation in face of litigation on secondhand information and hearsay
evidence by men who had little or nothing to do with either the layoffs or the
hirings. We are repeatedly reminded, and it is required by the Act, that findings
of'fact must be predicated on reliable and substantial evidence. To clothe Respond-
'o Lickman's precise words were, "I wouldn' t say she was inefficient."
BRADY AVIATION CORPORATION 49
ent's conclusive conspectus with the dignity of reliability and substantiality , would,
I believe, flout the fundamental established principle of objective fact finding.
An extended discussion of each of the multitude of explanations advanced by
Respondent for not reemploying these three clerks and a detailed punctuation of
their several incongruities , have their places more properly in argument of counsel
than in a fact -finding functionary 's report. It should suffice to say here , that in my
opinion, Respondent 's "reasons" in general are but pretexts , illustrated by its
claim-to cite but one example-that it decided to hire Carothers in April , rather
than to reemploy Hemphill because "it was determined that she ( Hemphill ) and her
husband proposed to move to Abilene in early July ." and "that the nature of
this position makes it highly undesirable to train a girl who would only be a temporary
employee at best," when as a matter of fact it is amply apparent that Respondent
knew nothing of the Hemphills' plan ( if indeed they themselves had one that early)
to move from Brady, until a month after Carothers was hired and Carothers herself
was but a temporary employee who was laid off after working about 2 months,
only 3 days subsequent to the Hemphills' departure.
We by now know that Respondent had through the many statements of its officials
-which need not here be reiterated-demonstrated its disapproval of, if not its firm
determination not to have , a bargaining unit composed of the members of its clerical
staff including people, among others, working in its personnel department . We also
know, indeed it is admitted by Respondent , that before the time Haynes, Hemphill,
and Moore sought reinstatement its officials were fully aware that they were 3 among
the 4 employees who were essaying to organize a clerical unit . I had the illuminating
opportunity of seeing and listening to these young ladies. I am satisfied upon the
aggregate of credible evidence and from my observation of them, that they had
capably served their employer throughout the months they had worked before
December 1952, that all of them are sufficiently reliable and satisfactory , adequately
endowed with the attributes of accuracy , initiative , responsibility , experience , ability,
personality , poise, intellect , and mentality , and equipped with enough background
and potential to be fitted for the positions given others in their stead . Why then,
has Respondent persistently failed to keep its promises to rehire them or to fulfill
the hopes of reinstatement it had engendered ? I can no more believe it was out of
sheer whim , obstinacy , or perversity than can I conceive it was for no reason at all.
So I come to what seems to me is the only logical conclusion on all the evidence, and
I am convinced , that as alleged, Respondent has discriminatorily failed to, refused
to, and continued to refuse to reinstate or employ Josephine Haynes, Mary Engdahl
Hemphill , and Bette Moore for the reason that they assisted the Union or engaged
in other concerted activities for the purpose of collective bargaining or other mutual
aid or protection . This is a violation of Section 8 (a) (1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent as set forth in section III, above , occurring in connec-
tion with its operations described in section I, above, have a close , intimate, and sub-
stantial relation to trade, traffic , and commerce among the several States and tend to
lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is engaging in unfair labor prac-
tices affecting commerce , I will recommend that it cease and desist therefrom and
take certain affirmative action which I find necessary to effectuate the policies of the
Act.
Having found that Respondent engaged in interference , restraint , and coercion of its
employees in the exercise of the rights guaranteed in Section 7 of the Act by inquiring
whether an employee instigated a charge against Respondent and requesting that she
sign a statement withdrawing the charge , for the purpose of discouraging member-
ship in, assistance to, and activities in behalf of the Union, I shall recommend that
Respondent be ordered to cease and desist from such conduct.
Having found that Respondent has discriminated against Josephine Haynes, Mary
Engdahl Hemphill , and Bette Moore , I will recommend that Respondent offer them
immediate and full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges . Since I have not
found that Haynes, Hemphill , and Moore were discriminatorily laid off, I obviously
shall not recommend that they be made whole for any loss they may have suffered
from the dates they were laid off. I shall, however, recommend that they be made
338207-55-vol, 110-5
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whole for any loss they may have sustained from the date they were unlawfully
refused reinstatement until the date of a valid offer of reinstatement, by payment to
each of a sum of money equal to that which she normally would have earned in wages
during such period, less her net earnings during such period. Respondent received
letters requesting reinstatement on Wednesday, January 28, 1953. Therefore I shall
recommend that February 2, 1953, the Monday following January 28, 1953, be con-
sidered the date of discrimination upon which the payment of any losses as a result
of Respondent's unlawful conduct shall commence." The said loss of pay shall be
computed on a quarterly basis in accordance with the formula adopted by the Board
in F. W. Woolworth Company, 90 NLRB 289.
In view of the nature of the unfair labor practices committed I shall also recom-
mend, in order to make effective the interdependent guarantees of Section 7, that
Respondent cease and desist from in any manner infringing upon the rights guaranteed
in said section.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of Section 2 (5) of the
Act.
3. By discriminating in regard to the hire and tenure of employment of Josephine
Haynes, Mary Engdahl Hemphill, and Bette Moore, by failing and refusing to rein-
state them, thereby discouraging membership in a labor organization, Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
4. By such discrimination and by interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
6. Respondent did not discriminatorily discharge, and fail or refuse to reinstate,
Juanice Jacoby nor discriminatorily lay off Josephine Haynes, Mary Engdahl
Hemphill, or Bette Moore.
7. Respondent did not through Troy Cates, a supervisor, threaten an employee
with loss of her job if she did not refrain from union activity.
[Recommendations omitted from publication.]
n Between December 19, 1952, and January 28, 1953, Inclusive, 4 clerical employees in
addition to the complainants had left Respondent's employ and 1 had been hired. Another
was employed February 2, 1953 During the succeeding 31/ weeks Respondent reinstated
1 and hired 7 new clerical employees.
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in International Union, United Auto-
mobile, Aircraft and Agricultural Implement Workers of America, (UAW-CIO),
or in any other labor organiaztion of our employees, by refusing to reinstate
employees or discriminating in any other manner in regard to their hire or tenure
of employment or any term or condition of their employment.
WE WILL NOT inquire whether employees have instigated charges against us
or request them to sign statements withdrawing such charges.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist International Union, United Automobile, Aircraft and
Agricultural Implement Workers of America, (UAW-CIO), or any other labor
organization, to bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all of such activities,
except to the extent that such right may be affected by an agreement requiring
THE M. W. KELLOGG COMPANY 51
membership in a labor organization as authorized in Section 8 (a) (3) of the
National Labor Relations Act.
WE WILL offer to Josephine Haynes, Mary Engdahl Hemphill , and Bette Moore
immediate and full reinstatement to their former or substantially equivalent po-
sitions, without prejudice to any seniority or other rights and privileges previ-
ously enjoyed and make them whole for any loss of pay they may have suffered
as a result of our discrimination against them.
All our employees are free to become or remain , or to refrain from becoming
or remaining, members in good standing of International Union , United Automobile,
Aircraft and Agricultural Implement Workers of America, (UAW-CIO), or any
other labor organization , except to the extent that this right may be affected by an
agreement in conformity with Section 8 ( a) (3) of the National Labor Relations Act.
BRADY AVIATION CORPORATION,
Employer.
Dated---------------- By----------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
THE M. W. KELLOGG COMPANY and INTERNATIONAL CHEMICAL WORK-
ERS UNION, AFL, PETITIONER. Case No. 2-RC-6562. September
24,1954
Decision and Direction of Election
Upon a petition filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before I. L. Broadwin, hearing offi-
cer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. Local Union No. 461, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL, was allowed to intervene at the hearing
because of its contract representation of hourly paid production and
maintenance employees of the Employer. In its brief it contends that
the Petitioner is not the real party in interest in this proceeding, but
instead that an unidentified local group exists to represent the salaried
employees sought by the Petitioner, which group is not in compliance
with the filing requirements of Section 9 (f), (g), and (h) of the Act.
At the hearing counsel for the Intervenor asked the Petitioner's or-
ganizer, who signed the petition in this case, this question : "There
is a local union in this particular operation now, is there not?" To
which this answer was given: "There is no local union yet established."
Immediately the Intervenor launched upon a series of questions to
elicit information about "a local," that is, its number, its officers, its
date of organization, and whether it had collected dues and initiation
110 NLRB No. 9.