Cumberland Shoe Corp.

National Labor Relations Board - Board Decisions

Sep 11, 1963

144 N.L.R.B. 502 (N.L.R.B. 1963)

502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cumberland Shoe Corporation and Boot and Shoe Workers'
Union , AFL-CIO. Case No. 26-CA-1496. September 11, 1963
DECISION AND ORDER
On July 2, 1963, Trial Examiner John C. Fischer issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. Thereafter, the Respondent filed exceptions to the In-
termediate Report, and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
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 In-
termediate Report and the entire record in the case, including the ex-
ceptions and brief, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner, except that the following is substituted for paragraph 1
thereof :
Interrogating its employees regarding their union activities
or sympathies in a manner constituting interference, restraint,
or coercion within the meaning of Section 8 (a) (1) of the Act, and
threatening them with reprisals in connection with their union
activities or sympathies.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Pursuant to due notice, this proceeding , brought under Section 10(b) of the Na-
tional Labor Relations Act, as amended (61 Stat. 136 ), herein called the Act, was
heard by Trial Examiner John C. Fischer at Franklin , Tennessee , on June 6, 1963,
with all parties represented . The parties were afforded full opportunity to be heard,
to examine and cross -examine witnesses , and to file briefs . The complaint, issued
by the representative of the General Counsel for the National Labor Relations Board,
herein called the General Counsel and the Board , on April 22 , 1963, and based on
charges filed by Boot and Shoe Workers' Union , AFL-CIO, herein called the Union,
on March 28, 1963, alleged that the Respondent had engaged in and was engaging
in unfair labor practices in violation of Section 8 (a) (1) of the Act. In substance,
the complaint alleged that Respondent engaged in various acts of interference,
restraint , and coercion in connection with rights guaranteed its employees in Sec-
tion 7 of the Act . In its answer , Respondent denied the commission of any unfair
labor practices.
144 NLRB No. 46.
CUMBERLAND SHOE CORPORATION 503
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Respondent is now, and has been at all times material herein, a corporation, duly
organized under and existing by virtue of the laws of the State of Tennessee. At all
times material herein, Respondent has maintained a manufacturing plant at Franklin,
Tennessee, where it is enaged in the manufacture, sale, and distribution of shoes.
Respondent, during the past 12-month period, manufactured, shipped, and sold from
its Franklin, Tennessee, plant, shoes valued in excess of $400,000 to points directly
outside the State of Tennessee. During the same period of time, Respondent, in
the course and conduct of its business, purchased and caused to be shipped to its
Franklin, Tennessee, plant materials for the manufacture of shoes valued in excess
of $300,000 directly from States of the United States other than the State of Ten-
nessee. Respondent is now and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR UNION INVOLVED
Boot and Shoe Workers' Union, AFL-CIO, is, and at all times material herein
has been , a labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The alleged interference, restraint, and coercion
This case involves allegations of illegal interrogation and threats of loss of
economic benefits by two of the Company's supervisors, allegedly occurring on
March 22, 1963, and shortly after the Union's organizational campaign had started.
Only 4 employees out of a total personnel of 265 to 275 are involved. The first
witness called was James M. Fowlkes, International representative for the Boot
and Shoe Workers' Union. Fowlkes testified that he came to Franklin on March 5
and passed out approximately 150 to 200 cards and set up a union organizing meet-
ing for March 21 at a motel in nearby Spring Hill. Fowlkes testified that the
campaign is still going on. Fowlkes further testified that he told the employees to
make no secret of their activities but to come out in the open with their union
efforts. He agreed that his reason for advising them to come out in the open was
that they would be better protected under the law if their adherence to the Union
or activity on its behalf was known. The record is clear that the employees fol-
lowed his advice.'
B. The germane testimony
General Counsel Bolton called four witnesses in support of allegations in his
complaint. The first, Hollis Holt, one of the four employees in the boxmaking
room of the packing section, testified that he became interested in the Union on
March 22. Holt attended a few meetings, got a few cards signed, and talked to a
few people. He stated that his supervisor, Carlton Anglin, came to his machine
where he was working and engaged him in a conversation about the Union. In this
connection, Holt testified:
He asked me if I signed a union card, and I told him no, but I was going to.
He [Anglin] proceeded over to the next machine where Johnny Flippin was
working and told us that he did not have to take orders from the union; that
if the union come in it would cut our holidays out, our seniority, and our paid
vacation.
On cross-examination by Respondent Counsel Pate, Holt admitted, however, that
he had actually become interested in the Union earlier in March than on the 22d.
Holt further testified that after this conversation he made a written memorandum
of this conversation when he attended the union meeting at the motel, and that he
gave the memorandum to Union Organizer Fowlkes. He reiterated on cross-
examination that, when they were told by Anglin that they would lose their paid
vacations and holidays and the unit would be cut so they could not make a living,
'It was stipulated by counsel "that on May 10, 1963, during the lunch period a group
of employees, variously estimated between 15 and 50 came to Mr. Green, the plant super-
intendent, as he was about to enter his car in the plant parking lot, and with Sohn Flippin
and an employee named Sam Beard in front, and acting as spokesmen, informed Mr. Green
that they were supporting the union 11
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Flippin and I just laughed at him." Holt described that Anglin then patted both
of them on the back saying: "Stick with me, boys, and I'll stick with you." Su-
pervisor Anglin categorically denied this entire incident-saying it never happened.
John W. Flippin, an active union adherent, was called next by the General Counsel.
Flippm stated that Supervisor Anglin, in company with Holt, talked with him at
his machine. He quoted Anglin: "He said if the union came in that he would come
up there and cut our unit back where we couldn't make a living, and that the com-
pany could take the vacation pay and holiday pay away from us." His testimony was
substantially the same on cross-examination. Anglin likewise categorically denied
this incident in its entirety.
Cleveland Ford, the next witness of General Counsel, testified that on March 22,
in the packing room, Anglin asked him if Hollis Holt said anything about a union.
To this query, Ford answered, "No, sir." This was the only time any supervisor
talked to him. (Likewise, the other incidents of interrogation are the only instances
where a supervisor talked to an employee in this record.) Ford testified that he
reported this incident to Johnny Flippin the evening it happened. Anglin also
categorically denied this conversation.
C. Interrogation by Supervisor Davenport
Charles Troutt , an employee in the insole department , testified that his foreman,
Larry Davenport , asked him: "Did you go up and get your union card last night?"
He said , "I heard they had a meeting down there " To this interrogation Troutt
testified that his answer was , "I just said I messed around town that night." On
cross-examination Troutt admitted that he had previously signed a card "but not that
night." He also admitted that he did not care whether Davenport knew whether or
not he was in the Union . Troutt was also in the group of 15 to 50 employees
that came up to Superintendent Green, the plant manager , on May 10, 1963, when
they told Green that they were supporting the Union . Davenport 's interrogation
stands undenied and unrebutted on the record
D. Supervisor Anglin's denials
Carlton Anglin, foreman of the packing room and supervisor of some 30 em-
ployees, as previously indicated, categorically denied all of the conversations attrib-
uted to him by Holt, Flippin, and Ford. All three men were employed in his de-
partment and were supervised by him. He testified that no such conversations as
related took place either in March or at any other time. He stated that the only
time that the question of the Union came up was one time in March when he
reprimanded Holt for running around and getting out of his department? His
testimony in this connection was:
I had to speak to him numbers of times, maybe twice a day, about being off
of the job and in other departments talking to other department manager's
operators . I just asked him didn't he have something else to do besides
talking about the union all of the time.
Anglin amplified his testimony of Holt being absent from his machine too long
in other departments while his job was getting behind. His testimony in this con-
nection was:
I spoke to him during the whole year and three or four months that he worked
for me about this, being gone, but in March he was more worse than he had
been ... just always off in other departments.
Anglin testified further that he did not definitely know that a union organization
or attempted organization was in progress at that time. "I had just heard." The
sources of his information were: "Out in town here, or around filling stations or
something like that."
Anglin was also examined at some length by General Counsel Bolton concerning
a talk which Mr. Bransford, Junior, made on March 22 to the assembled em-
ployees about the union campaign. Anglin, a supervisor, was present. Apparently
the talk, as well as the time thereof, was critical because it involved the plant's
lack of work orders and Government contracts, and also the Union's organizing earn-
2 Holt was discharged on March 26, 1963 On March 28, 1963, the Union filed a charge
alleging violations of Section 8(a) (1) and (3) of the Act for such discharge The dis-
charge phase of the Union's charge was not prosecuted by the Board, but the filing of such
charge is the originating basis of the present allegations.
CUMBERLAND SHOE CORPORATION 505
paign at Respondent's Chapel Hill plant. The Trial Examiner was of the opinion
that Anglin equivocated and was evasive in giving his testimony. Certainly he had
a poor memory. His denials of the versions given by the three employees, Holt,
Flippin, and Ford, were outright and absolute except for his explanation of the Holt
instance when the Union was mentioned. On the other hand, the versions of the
three employees were forthrightly given and were not broken down. Thus, the
Trial Examiner is confronted with an absolute testimonial conflict. Based upon
the demeanors of the witnesses under oath on the stand, together with the other evi-
dence of record, the Trial Examiner resolves the evidentiary conflicts in favor of
testimonies given by Holt, Flippin, and Ford.
E. Respondent's contention and argument
Respondent Counsel Pate, in lieu of a brief to the Trial Examiner, made a force-
ful and comprehensive argument in closing his case. Part of his presentation reads
as follows:
In making this motion, I would like to point out that I think you reach a
point in a case where no company or other respondent ought to be called upon
to incur the further burden of conducting a proceeding of this kind, of prepar-
ing and filing briefs, and going through the other procedures that you follow
at hearing where the evidence reaches a point of thinness and lack of substan-
tiality, so that that has come before this Examiner in this hearing today. I think
it is obvious from what has happened, and what evidence has been offered,
that this is a• case where the Respondent should not even have been called
upon to have to answer a complaint, or incur the expense of coming here for
a hearing.
The evidence which has been offered here, even if it is accepted in its en-
tirety even if Respondent's evidence is rejected, should be rejected, everything
that the General Counsel has offered should be accepted as the truth on these
issues, they still fail to show a basis for any kind of order by the Board or
Recommended Order by the Trial Examiner.
All that has been offered is evidence of one threat and two very weak in-
stances of interrogation. The threat is a factual issue, but even if it was made,
this one threat would not be sufficient to justify any kind of order by the Board.
It is entirely too isolated for that.
I would like to call attention, also, to the fact that the two persons who
allegedly heard that threat and might have been influenced by it, if anyone was
to be influenced by it, were Hollis Holt, who testified to the fact that he did
some organizing work for the Union, but is no longer in the company's employ,
and John Flippin, who the record shows was rather active in these organizational
matters, was the spokesman for the Union on this occasion just recently on
the 10th when he and other employees identified themselves as presently being
in favor and supporting the Union, who came to the hearing and testified today
with a union button on, and consequently who has obviously not been affected
by any statement that was made to him in a way that might have caused him
to refrain from any union activities or might have interfered with his ac-
tivities in any way.
Concluding Findings
The Trial Examiner finds himself not in accord with the argument and con-
tentions of Respondent's able counsel. Rather, the Trial Examiner finds on the
basis of the credited and accepted testimony heretofore recited that the interroga-
tion of employees union membership and activities by Supervisor Anglin, coupled
with threats of loss of benefits if the employees selected the Union as their collective-
bargaining representative is implicity violative of the Act The additional interroga-
tion by Foreman Davenport 'falls into the category of illegal interrogation under
the circumstances of this case. Accordingly, it will be recommended that a Board
Order issue.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
It having been found that Respondent violated Section 8(a)(1) of the Act, it
will be recommended that Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
In view of the foregoing findings of fact, and upon the entire record in this case,
I make the following:
CONCLUSIONS OF LAW
1. Cumberland Shoe Corporation is engaged in, and at all times material herein
has engaged in, commerce within the meaning of Section 2(6) and (7) of the Act.
2. Boot and Shoe Workers' Union, AFL-CIO, is, and at all times material herein
has been a labor organization within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging
in unfair labor practices proscribed by Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Respondent, Cumberland Shoe
Corporation , its officers , agents, successors , and assigns , shall:
1. Cease and desist from interrogating its employees illegally regarding their union
activities or sympathies and threatening them with reprisals in connection with their
union activities or sympathies.
2. Take the following affirmative action which it is found will effectuate the policies
of the Act.
(a) Post at its plant in Franklin, Tennessee, copies of the attached notice marked
"Appendix.' 3 Copies of said notice, to be furnished by the Regional Director for the
Twenty-sixth Region, shall, after being duly signed by Respondent's authorized
representative, be posted by the Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ-
ing 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.
(b) Notify said Regional Director, in writing, within 20 days from the date of
the receipt of this Intermediate Report, what steps Respondent has taken to comply
herewith?
It is further recommended that unless within 20 days from the date of the receipt
of this Intermediate Report, the Respondent notifies said Regional Director , in writ-
ing, that it will comply with the foregoing Recommended Order, the Board issue an
order requiring the Respondent to take the aforesaid action.
3 In the event that this Recommended Order is adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice In the further event the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Oider."
'In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read* "Notify said Regional Director, in writing, within 10 (lays
from the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act , we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning their or other employees
union affiliation or activities in a manner constituting interference, restraint, or
coercion in violation of Section 8(a) (1) of the Act, nor threaten our employees
with economic reprisals if they choose Boot and Shoe Workers' Union, AFL-CIO,
or any other union as their bargaining representative.
SURPRENANT MFG. CO. 507
All our employees are free to become or remain , or to refrain from becoming or
remaining, members of Boot and Shoe Workers' Union , AFL-CIO, or any other
labor organization.
CUMBERLAND SHOE CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Seventh
Floor, Falls Building, 22 North Front Street, Memphis, Tennessee , Telephone No.
Jackson 7-5451, if they have any question concerning this notice or compliance
with its provisions.
Surprenant Mfg. Co . and United Steelworkers of America, AFL-
CIO. Case' No. 1-CA-3978. September 11, 1963
DECISION AND ORDER
On June 20, 1963, Trial Examiner William J. Brown 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 take certain affirmative action, as set forth in the attached Inter-
mediate Report. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint, and recommended dismissal of the complaint as to them.
Thereafter, the Respondent and the General Counsel filed exceptions
to the Intermediate Report and supporting briefs.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown.]
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
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.2
1 The Respondent 's request for oral argument is denied as the record, exceptions, and
briefs adequately present the issues and positions of the parties.
-In adopting the Trial Examiner 's finding that the Respondent violated Section 8(a) (1)
by interrogating its employees concerning the contents of statements furnished by them
to Board agents , we also rely upon Winn-Dixie Stores , Inc., and Winn -Dixie Louisville,
Inc., 1.43 NLRB 848.
Contrary to the Trial Examiner, Member Leedom would not find that Respondent vio-
lated Section 8(a) (1) when it informed its employees that Respondent would "bargain
from scratch" if the Union became their bargaining representative . In his opinion, such
statements did not contemplate withdrawal of any existing benefits pending the outcome of
bargaining negotiations.
Member Leedom agrees with his colleagues that the Respondent violated 8 (a) (1) by
stating that unionization would result in serious harm to the employees , and by the re-
marks relating to the closing of the plant , only because each statement occurred in a
context of other unfair labor practices.
144 NLRB No. 51.