Duo-Bed Corp.

National Labor Relations Board - Board Decisions

Aug 19, 1968

172 N.L.R.B. 1581 (N.L.R.B. 1968)

DUO-BED CORPORATION 1581
Duo-Bed Corporation and Upholsterers Interna.
tional Union of North America , AFL-CIO. Case
17-CA-3112
August 19, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On February 28, 1968, Trial Examiner Thomas
S. Wilson issued his Decision in the above -entitled
proceeding , finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion . He further found that the Respondent had not
engaged in certain other unfair labor practices as
alleged in the complaint and recommended that
such allegations be dismissed . Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief. The General
Counsel filed a brief in answer to the Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed.' The
Board has considered the Trial Examiner's Deci-
sion, the exceptions and briefs, and the entire
record in the case, and hereby adopts the
findings,2 conclusions, and recommendations of
the Trial Examiner as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that Duo-Bed Corpora-
tion, Wichita, Kansas , its officers, agents, succes-
sors, and assigns , shall take the action set forth in
the Trial Examiner's Recommended Order, as
herein modified:
1. Insert at the beginning of paragraph 2(b) of
the Recommended Order the phrase "To the extent
that it has not already done so."
2. Substitute the following as paragraph 2(c),
the present paragraph 2(c) and those subsequent
thereto being relettered as 2(d), 2(e), and 2(f).
"(c) Notify the above-named employees, if
presently serving in the Armed Forces of the
United States, of their right to full reinstatement,
upon application, in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces."
3. Insert in the first line of the second indented
paragraph of the proposed notice after the phrase
"each of the employees named below" the phrase
"who have not already been reinstated or who have
refused reinstatement."
4. Insert after the second indented paragraph of
the proposed notice the following:
WE WILL notify the above-named employees,
if presently serving in the Armed Forces of the
United States, of their right to full reinstate-
ment, upon application, in accordance with the
Selective Service Act and the Universal Milita-
ry Training and Service Act, as amended, after
discharge from the Armed Forces.
i In an amended answer the Respondent raised the defense of res ju-
dicate In his Decision the Trial Examiner allowed the defense with respect
to the granting of wage raises which had been the subject of an objection in
a prior related representation proceeding In the absence of exceptions
thereto, we adopt pro forma the Trial Examiner 's dismissal of that portion
of the complaint which alleged that the wage raises violated Section
8(a)(I) of the Act
With regard to the status of Dorvan Collins, we do not find it necessary
to adopt or rule on the Trial Examiner' s statements respecting the principle
of res judicate as it applies to Board proceedings The issue of Collins' status
was resolved by the parties themselves in a consent election agreement,
and it is well settled that such a resolution does not foreclose a later deter-
mination by the Board in an unrelated unfair labor practice proceeding
See, e g , Liberty Coach Company, Inc, 128 NLRB 160, 164 We agree with
the Trial Examiner that Collins was a supervisor and find the evidence of
his supervisory status to be sufficiently apparent so as to preclude any
reasonable doubt in the minds of his fellow employees Moreover, Collins
agreed to allow the employees whom he requested to engage in surveil-
lance to leave work an hour early so that they might attend the union meet-
ing and told them he would "take care of their cards " Accordingly, Collins
was clearly acting in his capacity as a supervisor and we find that his sol-
icitation of employees to engage in surveillance , the fruits of which were
conveyed to higher management , violated Section 8(a)( I) Cf Brecken-
ridge Gasoline Company, 127 NLRB 1462, 1463, The Powers Regulator
Company, 149 NLRB 1185, 1188
' Although it does not affect the conclusions herein, we find, contrary to
the Trial Examiner , that Foreman Minter of the sewing department was in-
volved in the selection of employees for recall
We also find that the amount of overtime worked by some sewing depart-
ment employees during the period when several other employees of that
department were on layoff status is further evidence of the pretextual na-
ture of the overall layoff and recall system followed by the Respondent
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON , Trial Examiner: Upon a
charge duly filed on January 12, 1967, and
thereafter amended on January 17 and June 23,
1967, by Upholsterers International Union of North
America , AFL-CIO, hereinafter referred to as the
172 NLRB No. 173
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union or Charging Party, the General Counsel of
the National Labor Relations Board, hereinafter
referred to as the General Counsel' and the Board
respectively, by the Regional Director for Region
17 (Kansas City, Missouri), issued its complaint
dated August 24, 1967, against Duo-Bed Corpora-
tion, hereinafter referred to as the Respondent. The
complaint alleged that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(1)
and (3) and 2(6) and (7) of the Labor Manage-
ment Relations Act, 1947, as amended, hereinafter
referred to as thel Act. Copies of the charge,
amended charges, the complaint, and notice of
hearing thereon were duly served upon the Charg-
ing Party and Respondent.
Respondent duly filed answers admitting certain
allegations of the complaint but denying the com-
mission of any unfair labor practices.
Pursuant to notice, a hearing was held at
Wichita, Kansas, from September 26 through Oc-
tober 4, 1967, inclusive, before me. All parties ap-
peared at the hearing, were represented by counsel,
and were afforded full opportunity to be heard, to
produce, examine , and cross-examine witnesses and
to introduce evidence material and pertinent to the
issues. Oral argument at the close of the hearing
was waived. Briefs were received on November 27,
1967, from General Counsel and Respondent.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. BUSINESS OF RESPONDENT
The complaint alleged, the answer admitted, and
I find that Duo-Bed Corporation, has its principal
office and place of business, hereinafter referred to
as the plant, at Wichita, Kansas, where it is engaged
in the manufacture of hotel furniture, draperies,
bedspreads, and related products. In the course and
conduct of its business operations, Respondent an-
nually purchases goods and materials valued in ex-
cess of $50,000 directly from suppliers located out-
side the State of Kansas, and annually sells goods
and products valued in excess of $50,000 directly
to customers located outside the State of Kansas.
Accordingly, I find that Respondent is now, and
at all times material herein has been, an employer
engaged in commerce within the meaning of the
Act.
II. THE LABOR ORGANIZATION
Upholsterers International Union of North Amer-
ica, AFL-CIO, is a labor organization admitting to
membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Facts and Conclusions
1. Prologue
For a number of past years various unions have
at various times made abortive efforts to organize
Respondent 's employees . None of these efforts,
however , ever got to the election stage until the
present one.
However , during one concerted effort to secure
higher wages Respondent discharged employee
Betty Dickerson on April 4 , 1963, for her efforts
therein . The Board found her discharge to be dis-
criminatory .' That decision of the Board was en-
forced by the Circuit Court of Appeals for the
Tenth Circuit on October 22 , 1964.3
Respondent complied with that decision by rein-
stating Betty Dickerson to her former position in its
sewing department on March 16, 1965, with
backpay.
Sometime in April 1966, Dickerson took occa-
sion to get in touch with the present Union and sug-
gest that it organize Respondent 's employees. This
convert action on the part of Dickerson may well
have been prompted by the fact that her attempts
to secure a wage increase from her foreman, Frank
Minter, had all been rebuffed despite the fact that
Minter had informed his employees that they
should get a raise every 6 months . Minter had
granted increases to others in the sewing depart-
ment but Dickerson 's requests had been uniformly
unsuccessful.'
In response to Dickerson 's invitation the Union
sent two organizers into Wichita in June or early
July 1966 in an attempt to organize Respondent's
employees . They lacked the names and addresses of
Respondent's employees so Dickerson, accom-
panied by fellow employees, usually Rose Treece or
Marie Remacle , undertook to and did , copy the
names of the employees from the timecards located
at the timeclock . Personnel Manager Bob Warren
observed this occurrance twice and Foreman Ken
Cain once . Neither denied the observation nor
claimed to have misunderstood its purpose during
their testimony at the hearing.
Dickerson was also given union authorization
cards which she distributed among the employees
of the other departments of the plant in company
with other sewing department employees . Dicker-
son's activities on behalf of the Union were soon
well known to Respondent 's officials.
Soon an employee organizing committee of in-
terested employees was formed which met weekly
to plan strategy . Among others on this original
committee were employees Rose Treece , Otto Mc-
' This term specifically includes the attorneys appearing for the General
Counsel at the hearing
145 NLRB 1504
337F2d850(CA 10)
4 Also in April 1966 Dickerson wrote the Board 's Regional compliance
officer about her failure to get a wage increase Said compliance officer in
turn brought the matter to Respondent 's attention Not too long thereafter
Dickerson received an increase from $ 145 to $ 150 per hour
DUO-BED CORPORATION 1583
Coy, Alvis Waldo, Vernon Perkins, Leroy Brown,
Roy Hilton, and Betty Raithel.
On September 9, 1966, the Union filed a petition
for a representation election among an appropriate
unit consisting of all of Respondent's production
and maintenance employees excluding supervisors.
A consent-election agreement was worked out
between the parties under the terms of which
Foreman Buchanan and Leadman Dorvan Collins
became eligible voters.
Between then and the date of the election of Oc-
tober 20, the Union held three mass meetings for
the employees.
Prior to the first, and also the second, union mass
meeting Dorvan Collins requested two rank-and-file
employees to attend such meetings and to report
back to him the names of the employees present
and the events occurring thereat. Employees
Donald Jeffery and Vernon Sissom attended such
meetings at Collins' request and afterwards re-
ported back to Collins the names of those in at-
tendance which included many of those alleged to
have been discriminated against here including
Dickerson and Alvis Waldo. On one occasion Col-
lins wrote the names of those present at the meet-
ing on a piece of paper and subsequently reported
those names to his superior, Foreman Walter
Holiday.' Obviously Respondent was keeping itself
well informed regarding the union activities and
those engaged therein.
As part of its campaign propaganda against the
Union, Respondent on October 17, 1966, posted a
bulletin over the signature of Bob Warren which, in
part, reading as follows:
5. This Union has filed many charges against
the Company over the years. Out of all these
charges, the only one which was ever sent to
court was the case involving Betty Dickerson
who was described by the Court as a " dissident
and annoying" employee. This is the same
Betty Dickerson who apparently still has a
grudge against the company and is trying to get
other employees to join with her.
On October 20, 1966, the representation election
was held. Betty Dickerson and Alvis Waldo were
the Union's observers. The Union lost. The Union
duly filed objections to the election on a number of
grounds. The Regional Director dismissed these ob-
jections and, in March 1967, this decision by the
Regional Director was sustained by the Board and
the result of the election certified.'
2. The layoff of December 2, 1966
On December 2, 1966, Respondent laid off 10 of
the 19 women employed in its sewing department
purportedly for 1 week under circumstances to be
found hereinafter. As of December 2, two addi-
tional sewing machine operators in the department
were on sick leave.
On December 5, Respondent transferred Lillian
Alvarez from its cutting department and promoted
her to leadwoman in the sewing department.
At the hearing Respondent maintained that
economic conditions dictated the layoff of this
time. In support of this contention Respondent
stressed figures showing that Respondent's backlog
of orders had dropped from over $600,000 in Sep-
tember to $375,000 in December 1966. As Respon-
dent's monthly shipments averaged around
$250,000, Respondent's plant still had a month and
half or more work regardless of new orders. Many
companies work on an even closer margin. Respon-
dent also stressed the build up of its inventory from
some $650,000 to almost $900,000 by October
1966. The significance of this inventory increase,
however, is diluted by the fact that the figures in-
cluded, without segregation, not only finished
goods on hand but also raw materials for future
processing. It could be that Respondent had been
stocking up raw materials for expanded operations.
However, even considering these elements, I cannot
say that a layoff was not economically justified as of
December 1966.
This is especially so as the testimony was quite
unanimous that Respondent's business generally
became slow at or about this period of the year
and that layoffs had occurred in the past. However
it is undisputed that, except in 1962, the layoffs in
the sewing department had always been on a volun-
' At the hearing Collins at first denied having reported these names to
Holiday but subsequently admitted its truth Holiday denied receiving any
report from Collins but, if Holiday were to be believed, he hardly knew the
Union was in existence despite his subsequent admission that Plant
Manager K E Deal had talked to him about the Union on several occa-
sions A trier of the facts could hardly take the testimony of Holiday seri-
ously Accordingly , I accept the admission by Collins as true
9 Here unhappily I must confess error
In an amended answer Respondent pleaded, inter alia, "in addition, the
matters which have been or could have been adjudicated in the prior
representation case set forth above [ 17-RC-51881 are res judicata " On
motion by General Counsel I struck this defense
After further study of the record , I am now convinced that, in one re-
gard, this ruling was in error
In its objections to the conduct of the election in 17-RC-5188 the Union
alleged that Respondent had granted a number of wage increases during
1966 just prior to the election of October 20, for the purpose of affecting
the result of said election In his decision on the objections the Regional
Director dismissed this objection finding that the wage increases were not
for the stated purpose He stated further that the Union had presented no
evidence on its blanket allegation of "other acts" of interference , restraint,
and coercion which had been contained in the objections On March 10,
1967, the Board sustained the Regional Director's ruling dismissing these
objections
The complaint in the instant case contains an allegation that in 1966
Respondent did "grant employees wage increases to discourage member-
ship in, and activities on behalf of , the Union " In essence this allegation in
the instant complaint appears to be the same, if not the identical, allega-
tion as that decided by the Regional Director and the Board in their deci-
sions on the objections to the election Consequently I will reverse that part
of my ruling on the motion to strike and will, therefore , recommend the
dismissal of that allegation from the instant complaint quoted supra on the
ground that the matter alleged therein has been litigated and adjudicated in
Case 17-RC-5188
The principal of res judicata applies to "matters which ha%a been ad-
judicated " in prior cases it does not apply to " matters which could hai c
been adjudicated " Hence the remainder of the ruling on the motion to
strike was correct
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tary basis, i.e., Foreman Minter would ask if any of
the women operators wanted time off and always
secured enough volunteers to take care of the
layoff.
On this particular December 2 then Plant
Manager K. E. Deal7 called in Personnel Manager
Bob Warren, told him that the plant was low on or-
ders and he just had to have a layoff in the sewing
room, and instructed Warren to prepare a seniority
list of the sewing department employees.
Later that day Warren returned with such a
seniority list. Deal and Warren went over the list so
prepared- starting from the bottom thereof, ac-
cording to Warren-and selected those for layoff
by marking an X after the name of the individual
selected for layoff.
The testimony regarding this conference and the
selection of employees, all given by Warren, is of
considerable interest . According to Warren, the
word " union " was never mentioned. The inference
from this testimony is, of course, that the selections
were made without reference to the employees'
union sympathies. Deal and Warren began their,
consideration from the bottom of the seniority
roster with layoffs automatic and without discussion
until the name of Mary Baker was reached. At this
point Deal decided to retain Mary Baker despite
her lower position on the seniority roster and layoff
Amy Bingham because Baker was "a very good
spread girl." However the evidence showed that
Bingham was also a good fast operator on both
spreads and contours so that Bingham had greater
versatility than Baker. On the other hand Foreman
Ken Cain had seen Bingham assisting Dickerson in
copying employees' names from the timecards for
the union campaign. So prounion Bingham was laid
off while antiunion Baker was retained. The next
decision was to layoff Marie Remade and retain
Mable Morris because "they both worked at the
same area," according to Deal, and Deal thought
one operator there was sufficient. For years Rema-
cle had produced all the mattress covers by herself.
Morris worked on box spring covers, a somewhat
similar operation. But Warren had seen Remade
assisting Dickerson copying names from the
timecards for the Union whereas Morris was known
to the Respondent as the leader of the antiunion
movement until replaced as such by Laura Dorey
after the election. The last employee selected for
layoff, as it was then known that Golden would
remain hospitalized for sometime because of an au-
tomobile accident, was Dickerson who for the last 6
months had been utilized exclusively in sewing
cushions for Shelby-Williams chairs despite her
known versatility in the department. Deal selected
her for layoff, according to Warren, because there
would be few, if any, future orders for Shelby-Wil-
liams chairs. The evidence shows that during the
whole month of November the whole sewing de-
partment had worked on Shelby-Williams chairs
and so had completed the outstanding orders there-
fore just before December 2. Of course Dickerson's
union activities were so well known that Respon-
dent had publicized them in a posted bulletin to
their employees. Thus, while the word "union" may
not have been mentioned during the selection of
employees for layoff, the actual layoffs make it
quite clear that Respondent's knowledge of the
employees' union sympathies played a consid-
erable, if silent, part in the selections, at least,
in the cases of Remade and Dickerson, if not
of Bingham. It is, of course, possible that it was
pure chance or happenstance that, in the only
three cases really in dispute at the time, Respond-
ent laid off three employees whose prounion
proclivities were known to it and retained two
known antiunion employees, all contrary to seniori-
ty.
At the conclusion of this conference, which was
not attended by Frank Minter, foreman of the sew-
ing department, the seniority list, with employees
selected for layoff marked with an X, appears as set
forth in attached Appendix A.
At the conclusion of their conference, Deal
printed the last two lines appearing on the seniority
list and ordered Warren to have Minter layoff those
employees so selected. Foreman Minter was never
consulted about the selection of the employees to
be laid off.
Just before the end of the working day on
December 2, Minter called the sewing department
employees together, informed them that due to a
shortage of work there was going to be a layoff of 1
week and that those laid off had been selected,
first, in accordance with seniority, and, second, ac-
cording to their jobs and/or "other reasons."8 After
the meeting Minter privately notified those em-
ployees, whose names had been marked with an X
on the seniority roster, that they were laid off for I
week.
At the end of the following week and late in the
afternoon of December 9, Warren had sent tele-
grams to all employees on layoff status reading as
follows:
Please be advised your layoff as of 12-2-66 will
continue until further notice.
Amy Bingham, accepting the 1-week layoff
literally, reported for work on Monday, December
12. Minter saw Bingham in the department soon
after her arrival, asked what she was doing, and
r In January 1967 Respondent had hired Earnest J Edison who became
plant manager in July when Deal left Respondent 's employ for a position in
another company in another state Deal did not return to testify at the in-
stant hearing
' As to the second criterion for selection , the employee witnesses were
divided rather equally in their testimony between the two noted above
However, Minter testified that the second reason he gave was "according
to their jobs " Although much of Minter's testimony was unreliable , I doubt
that he would have been so obvious as to have cited " other reasons," at
least publicly If this conflict were important enough to decide, which it is
not, I would accept Minter's version in this instance
DUO-BED CORPORATION 1585
then informed her that he did not think she was
supposed to be at work . He drove her home. Later
that day she telephoned Warren but got no definite
information regarding her possible recall . That af-
ternoon she received her copy of the December 9
telegram.
Promptly after the layoff of December 2 and con-
tinuously thereafter Foreman Minter kept insisting
to Deal that more operators were required in the
sewing department.
As a result of Minter 's insistence , Respondent re-
called Elfreda Frazier on December 13, Laura
Dorey on December 14, and both Odean Gooch
and Deloris Johnston had returned to work by the
week of December 23 although the exact date of
their recall is not in this record. Respondent con-
sidered three of these antiunion and Frazier doubt-
ful. Again Minter had nothing to do with the selec-
tion of the employees recalled.
Another result of Minter 's persistent appeals for
additional help in the sewing department was that
Respondent began the practice of "loaning" to the
sewing department female employees from other
departments. These "loans" began as early as the
week of December 30 when Connie George and
Linda Loquist arrived and, although inexperienced,
began work on the power sewing machines. There-
after, from January through August 1967, the sew-
ing department received on loan for varying periods:
Connie George for 117 hours over a period of 24
weeks, Linda Loquist for 832 hours over 30 weeks,
Wanda Wiley for 3 days, Edna Williams for 267
hours over 9 weeks and , beginning in March and
April respectively , Faye White and Alice Barker on
a regular daily basis for 4-1/2 months each . None of
the employees so loaned had had any prior ex-
perience in power machine sewing , a skilled job.
Naturally each had to be taught , was slow, and the
work was poor, although some of them improved in
varying degrees.
These recalls and loans did not solve the depart-
ment 's production problems, particularly in regard
to the production of mattress covers previously
handled by Remacle alone . The evidence shows
that following the layoff of December 2, Minter at-
tempted unsuccessfully to solve this problem by
having mattress covers sewed by Mable Morris,
Ruth Light , Elfreda Frazier, the inexperienced Faye
White, and others. Finally on April 17, 1967,
Respondent recalled Irene Nelson , an experienced
power machine operator who had never before
sewed mattress covers, and put her to work on mat-
tress covers . Irene Nelson thus became the first
known prounion employee to be recalled . Even this
did not solve the mattress cover problem . Jobs ob-
viously played no part in the recalls.
In June Respondent offered reinstatement to Wil-
hour who refused because she preferred the job
with another company which she had secured after
the layoff, a preference she reiterated as a witness
at the hearing.
On July 20 , Respondent recalled Amy Bingham
and on July 21 Rose Treece , both of whom had
assisted Dickerson on behalf of the Union. These
apparently were required to replace Lenalda
Myers , admittedly the finest operator in the depart-
ment , and Mary Baker , both of whom left Respon-
dent 's employ.
With mattress cover production practically in
chaos , according to the evidence , Respondent on
August 9 , 1967, recalled Marie Remacle which, in
the light of past experience , no doubt solved the
mattress cover problem by itself.
And finally, with Ruth Light going on vacation,
Respondent on August 15 recalled Betty Dicker-
son. Promptly thereafter the "loaned " employees
returned to their regular departments.
Sometime soon after Respondent began its prac-
tice of loaning inexperienced employees to the sew-
ing department , Inspector Cohorn inquired of
Foreman Minter as to why Respondent was sending
inexperienced people into the sewing department
who had to be trained to operate a power sewing
machine , a skilled job , instead of recalling the ex-
perienced operators still on layoff status with the
suggestion that such transfers appeared to her to be
both inefficient and uneconomical . Minter had no
answer but suggested that he could do nothing "for
those girls."
If, in fact , Minter did not know the reason for the
practice of loaning employees , a cursory com-
parison of the December 2 seniority roster showing
the layoffs and the recalls against Respondent's
(Warren 's) opinion of the union sympathies of the
department employees would have answered
Cohorn 's question quite conclusively . Such a look
proves that Respondent violated both stated bases
of selection , seniority and job , in order to lay off
prounion operators and then almost immediately
violated the same bases in reverse order in order to
recall the antiunion operators promptly.
A look at the seniority roster proves that the
principle of seniority was violated in the layoffs of
Dickerson , Remacle , and, perhaps, of Bingham.
Nor was the selection of Dickerson and Remacle
made on the basis of " their jobs." This is particu-
larly so in the case of Remacle who had done all
the mattress covers for years. If jobs actually played
any part in the selection , then Remacle should have
been retained at least in preference to Baker/or
Bingham who were good operators but not special-
ized . This would have eliminated the subsequent
problem in the production of mattress covers. In
like fashion , the layoff of Dickerson violated both
alleged bases of selection for she was both a spe-
cialist (Shelby-Williams chairs) and a good opera-
tor with greater versatility than Baker or Bingham.
On the basis of seniority there was discrimination in
the layoff of Bingham instead of Baker. But, depen-
dent on the number to be laid off, Bingham 's layoff
might have occurred anyway . It is also noteworthy
that the man who best knew both the production
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requirements and the abilities of the operators,
Foreman Minter, was consulted neither in the
selection for layoff nor in the selection for recall of
the employees. Thus, the selection for layoff of
Dickerson, Remacle, and Bingham was made
neither on the basis of seniority nor of jobs, as
Respondent claims. That leaves only "other
reasons ," to wit, the known union activities of the
three so selected.
With only the selection for layoff to rely on,
Respondent's selections might be excused on the
ground that the fact that Dickerson, Remacle, and
Bingham had been selected out of order and
without regard to their jobs was pure coincidence
or happenstance. But, when it happens a second
time within 10 to 11 days and continues thereafter
until at least July 20 (in Bingham's case and longer
for Dickerson and Remacle), then the defense of
chance or happenstance evaporates.
The fact that by December 23, 1966, Respondent
had recalled Deloris Johnston, Laura Dorey, and
Odean Gooch, all of whom stood at the very lowest
rung on the seniority roster, in lieu of Dickerson,
Remacle, and Bingham, who on the basis of seniori-
ty-as well as ability-should have been recalled,
makes a mockery of Respondent's claim that
seniority-or jobs-played any part in this layoff.
Again on the recalls, as in the case of the layoffs,
Respondent began recalling antiunion employees
from the bottom of the seniority roster-instead of
from the top thereof as should have been the case
for recalls-and even then managed to omit Wil-
hour and Irene Nelson, who were considered to be
prounion by Respondent. Thus the one single fea-
ture which predominated in both the selections for
recall as well as those for layoff was Respondent's
opinion as to the union sympathy of the employees
involved. The prounion employees were laid off on
December 2 and stayed laid off whereas the anti-
union employees were laid off on December 2 but
were recalled within 10 to 11 days thereafter.
It is true that Elfreda Frazier was the first em-
ployee recalled on December 13. Frazier was
recognized as one of the top operators in the de-
partment. Warren's testimony showed that he did
not know whether Frazier was for or against the
Union so by recalling her instead of Wilhour or
Irene Nelson apparently Respondent preferred to
take a chance on her unknown sympathies rather
than on the known prounion sympathies of the
other two. Thus the same predominant feature ap-
plies in Frazier's case as in the cases mentioned
above. Respondent was just making the best of a
doubtful bargain.
Deal's stated reason for making use of the prac-
tice of " loaning " inexperienced employees to the
sewing department instead of recalling the laid off
experienced sewing machine operators was that it
was not worthwhile to recall the experienced opera-
tors "for only a week or so." The length of time the
loaned employees remained in the sewing depart-
ment, 4-1/2 months and longer, completely refutes
this argument. But after December 23, all the ex-
perienced operators subject to recall just happened
to be known to be prounion in Respondent' s esti-
mation . Respondent preferred inexperienced opera-
tors to experienced prounion operators. Respon-
dent had an antipathy towards prounion employees.
Accordingly, the facts here require a finding,
which I here make, that Respondent discriminatori-
ly laid off Betty Dickerson and Marie Remacle on
December 2, 1966, and on December 12 dis-
criminatorily refused to recall Amy Bingham,
Genevieve Nelson, Irene Nelson, Rose Treece, and
Sylvia Wilhour in order to discourage membership
in and activities on behalf of the Union thus inter-
fering with, restraining, and coercing its employees
in the exercise of their rights guaranteed them by
Section 7 of the Act in violation of Section 8(a)(1)
and (3) of the Act.
3. The layoffs of January 13, 1967
On January 6, 1967, Foreman Cain laid off two
employees in the final assemble department. The
complaint does not charge that these layoffs were
discriminatory.
Then on January 13, Foreman Holiday and Lead-
man Collins laid off sanders Lorraine Armstrong,
Eva Price, and Betty Raithel while Foreman
Buchanan of the woodworking department laid off
two employees: Clarence Kinzer and Raymond Hil-
ton.
On each of these January 13 layoffs the evidence
is clear that the only part Plant Manager Deal
played in the layoffs was to tell Foreman Holiday
and Buchanan that a layoff was necessary due to
the workload and that he, Deal, "wanted three"
from Holiday and "two from" Buchanan. Acting
under these orders holiday and Dorvan Collins
selected Armstrong, Price, and Raithel from among
the sanders while Buchanan selected Kinzer and
Hilton from among those in his department.
All these had signed union authorization cards. In
the latter part of the organizing campaign and just
prior to October 20, 1966, Armstrong and Raithel
had been added to the employees' organizing com-
mittee whereas Hilton also became such a member
with Kinzer acting as his alternate. However even
Dickerson expressed doubt that Respondent knew
of the inclusion of these employees on the commit-
tee.
With the possible exception of Raithel, none of
these employees was very active on behalf of the
Union so far as this record shows beyond the fact
that they executed union authorization cards and
attended a union meeting or so.9
On one occasion soon after the election Holiday
and employee Chebultz were conversing together in
the coffeeshop when Armstrong passed by.
9 On this point I agree with Respondent's brief
DUO-BED CORPORATION 1587
Chebultz made a remark indicating that she did not
much care for Armstrong. Holiday answered that
Armstrong was not liked by her fellow employees
and would not stand up for her beliefs, that she had
appeared to be strong for the Union but had not
even shown up to cast her ballot at the election.
Foreman Buchanan testified that he was not at all
sure whether the employees were to be laid off or
discharged so that he made his selection of the em-
ployees on the basis of retaining the best employees
in the department. He testified that he selected
Kinzer for layoff because Kinzer had not learned to
spray paint despite Buchanan's suggestion that he
do so' and that he selected Hilton because of Hil-
ton's lack of interest in his work , a trait which was
evident during Hilton 's testimony at the hearing.
On the facts presented in this record I perceive
no evidence indicating Respondent 's knowledge of
the union activities of either of these two in-
dividuals nor any reason to disbelieve the testimony
of Foreman Buchanan who appeared to be a
truthful witness. Accordingly, I will recommend the
dismissal of the complaint as to these two in-
dividuals.
On the other hand the facts show, supra, that
Leadman Collins" deliberately made arrangement
with two employees to keep the union meetings
under surveillance so it is clear that he at least
knew the active union employees in his department.
Collins testified in essence that he selected Arm-
strong for layoff because she was slow and could
not get along with her fellow employees and
selected Eva Price because she had fainted in the
plant which he considered to be dangerous around
moving machinery . Both reasons appeared reasona-
ble. Collins had no such explanation for the layoff
of Raithel, the only one of the three subsequently
recalled by Respondent. Furthermore the evidence
indicated that "all" the employees of that depart-
ment were prounion.
Armstrong testified to certain postlayoff
telephone conversations she had with Collins about
the Respondent's women's bowling team during
which, according to Armstrong but denied by Col-
lins, Collins indicated that her layoff had something
to do with the Union. Armstrong's testimony ap-
peared both vague and contrived whereas Collins'
denial thereof appeared genuine and honest. I must
accept Collins' denial.
Under all the facts I can see no discrimination in
the layoff of Armstrong, Price, or Raithel and will
therefore recommend the dismissal of the com-
plaint as to them.
B. Alleged Loss of Overtime by Alvis Waldo
Alvis Waldo started work for Respondent in
March 1964 unloading lumber from freight cars but
was soon transferred into the assemble department
where he worked thereafter . He had been a
satisfactory employee throughout this period.
He was , and was known to be , one of the most
enthusiastic of the supporters of the Union. Em-
ployees Jeffrey and Sissom had so reported to Dor-
van Collins following their surveillance of the union
meetings . Waldo was a member of the original em-
ployees' organizing committee, vigorously solicited
union memberships , attended union meetings and,
finally , with Dickerson, was a union observer at the
election of October 20 . Respondent knew of his
leadership in the organizational movement.
The complaint alleged that , because of this
known activity on behalf of the Union , Respondent
had retaliated against Waldo by depriving him of
10 I recognize the impropriety of referring to matters outside the record
This will be an exception to that rule The day after giving his testimony
Kinzer appeared in the hearing room prior to the afternoon session and
requested General Counsel, in the presence of both Respondent 's counsel
and me, to dismiss his case in this matter as he, Kinzer, did not desire rein-
statement with Respondent because he preferred the job he had secured
immediately after his layoff Understandably General Counsel made no
such motion at the hearing However I have arrived at my determination to
dismiss Kinzer's case on the merits and without regard to this dehors the
record event
11 Respondent 's answer denied that Collins was a supervisor so that
became an issue in the hearing
Respondent 's counsel argued that Collins was nonsupervisory because
under the consent-election agreement Collins was permitted to, and did,
vote in the representation election of October 20 without objection, as ad-
mitted at the hearing
But the record here shows that the Union had petitioned for an election
among Respondent 's production and maintenance employees exclusive of
supervisors Before Respondent 's attorney signed that consent-election
agreement on behalf of Respondent, the description of the appropriate unit
had been amended to include " leadmen" in the unit-under which amend-
ment both Collins and Foreman Buchanan did in fact vote in the election as
rank-and-file nonsupervisory employees
During the hearing General Counsel examined Collins regarding his
authority and duties and produced an affidavit which he had previously
secured from Collins which proved beyond peradventure of a doubt that at
all times material herein, both as "leadman " before April 1967, and as
acknowledged " foreman" thereafter , Collins had, and exercised , super-
visory authority within the meaning of the Act and thus was a supervisor
Upon the appearance of Collins ' affidavit , Respondent 's counsel com-
plained loud and long that General Counsel had violated a "theory" which
Respondent labeled as "skip counsel" in obtaining such affidavit from Col-
lins in the absence of Respondent 's counsel
At least since my admission to the Bar I have recognized the well-
founded principle that counsel for one party to a law suit may not interview
the opposing party to that law suit in the absence of that party's counsel
I first heard of "skip counsel" theory in the very recent past As best as I
understand this recent invention , it is that counsel , both corporate and
union whenever Respondent in a Board case, desire to extend the word
"party" to the lowest corporate supervisor or union organizer and require
that that party 's attorney be represented if and when that supervisor or or-
ganizer is interviewed by General Counsel The only perceptible purposes
for this extension of the word "party" would seem to be either to prevent
the facts of the case from being uncovered or to create further delay to the
Board's processes In my opinion, neither justifies this proposed extension
But in this case, wholly disregarding the merits of the new theory,
Respondent 's attorney appears estopped from even making a claim of
violation of-skip counsel " By his own agreement to the amendment of the
unit Respondent counsel seemingly made Collins a rank-and -file employee
and thus subject , even under " skip counsel ," to being interviewed without
corporate party counsel But now after Collins, as a rank-and-file em-
ployee, has successfully voted in the representation election (presumably
against the Union), Respondent counsel apparently conceding the proof
obtained in the disputed interview and affidavit that Collins had been a su-
pervisor at all times material proceeds to claim a "skip counsel" violation
Counsel should make up his mind Surely he cannot expect to have it both
ways
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Saturday overtime work for a period of 8 weeks
beginning in October 1966. Subsequently General
Counsel amended the complaint to allege the
period to have been during January and February
1967.
The records , when produced , showed that Waldo
did not work overtime on Saturdays during this ap-
proximate period of January and February 1967.
But the record also shows that the only employees
of the department working overtime during this
period were employees Pat Todd and Wade Bough.
There is no showing in the record that there was
any necessity for Waldo to have worked overtime
at the same time as Todd and Bough nor that either
was doing the work which Waldo had been ac-
customed to do on Saturdays . So far as this record
indicates , there was no obligation on Respondent to
provide Waldo with overtime just because Todd
and Bough were working on Saturdays . I can see no
discrimination in this as to Waldo.
General Counsel also complained at the hearing
that Todd and Bough had been given wage in-
creases at the same time that Waldo received his in-
crease in 1966 but that in 1967 Todd and Bough
received increases prior to any given to Waldo.
Waldo complained to Foreman Holiday about this
without success . However the record also shows
that within days of his having made a complaint
about the matter to new Plant Manager Edison,
Waldo received a 5-cent per hour increase. Despite
the demonstrated propensity of Respondent to dis-
criminate against union employees in the sewing
department , I can see no proof of discrimination as
against Waldo in the assemble department. I will
therefore recommend the dismissal of the com-
plaint as to Alvis Waldo.
1. Lola Chebultz
Appearing on the Deal-Warren seniority roster of
December 2 for the sewing department appears the
name of Lillian Alvarez with the notation "lead-
woman." At all times prior to this listing Alvarez
had been a cutter in the cutting department and not
a member of the sewing department. On December
5 Foreman Minter informed the sewing department
employees, including Chebultz, that thereafter Al-
varez was to be the supervisor in charge of the de-
partment.
In 1964 Lola Chebultz was transferred from
being a machine sewing operator and, on Minter's
orders, had become the "service" or "bundle girl"
of the sewing department. Chebultz remained in
that position thereafter until December 5, 1966. As
such Chebultz made out the production tickets for
the department, assembled the necessary materials
for such production and distributed the same as
required to the operators. In thus making herself
useful to all of the sewing operators, Chebultz spent
much of her time throughout the department con-
ferring with each and every operator. Although
possessing no supervisory authority, Chebultz held
a responsible and necessary position of which she
was proud.
On December 5, after announcing the promotion
of Alvarez to supervisor, Minter spoke privately
with Chebultz telling her that Alvarez would take
over the making of production tickets and all other
duties theretofore performed by Chebultz and that,
therefore, Chebultz would resume her duties as a
machine operator as she had prior to her said
transfer to "bundle girl."
At the time of informing the rest of the depart-
ment Minter also announced another change in
procedure which was that thenceforth Alvarez
would carry all production from the operators to
Inspector Cohorn for inspection and all repairs
from Cohorn to the operators. Thus Alvarez, who
in Warren's opinion was antiunion, would be the
only employee whose duties permitted communica-
tion with the other departmental employees during
working hours. This necessarily restricted commu-
nications among and between the employees.
Soon after the announcement of this change in
her status, Chebultz and Foreman Walter Holiday
of the woodworking department, happened to be
together in the coffeeshop. Chebultz inquired if
Holiday knew of her change. He did not. Chebultz
inquired if he thought the Union played any part in
this change. To this Holiday answered that he and
Deal knew that Chebultz and Cohorn had attended
union meetings. Chebultz candidly acknowledged
that they had gone to find out what the Union was
all about.
Early in January 1967 Alvarez had to take time
off. Minter requested Chebultz to "help him out"
by taking over some of Alvarez' duties. Chebultz
complied. Upon Alvarez' return, Chebultz returned
to her power sewing.
Again in February Alvarez was hospitalized for a
considerable period. Again Minter requested
Chebultz "to help him out" by performing Alvarez'
duties. Again she complied.
About the middle of February Odean Gooch
whose machine was located next to that of Laura
Dorey complained that she could no longer stand
the abuse and harassment Dorey was giving her at
the machine and demanded of Chebultz, who was
still substituting for Alvarez, that she (Gooch) be
moved to a machine farther removed from Dorey.
As soon as Chebultz brought the matter to his at-
tention, Minter gladly complied with the request
stating that he wanted the girls to be "happy."
Gooch was promptly transferred to a machine of
her choice farther removed from Dorey.
On a Friday in the latter part of January Chebultz
saw Dorey taking a production card out of the box
on Minter's desk while talking with Minter.
Chebultz thought that Dorey was comparing her
own production for the day with that of Chebultz'.
Such comparisons were not permitted in the sewing
department. So on the following Monday Chebultz
went to Minter and asked if Dorey had been com-
paring their production . Minter explained that
DUO-BED CORPORATION
Dorey had only been asking for a raise because she
had had a good day's production but had not com-
pared her production to anyone else's . Chebultz re-
marked about the growing tension in the depart-
ment and suggested that it was so bad that she
might have to quit.
Apparently Minter spoke to Dorey about the in-
cident because Dorey thereupon took occasion to
go to Chebultz at her machine and tell her in
emphatic language that the matter had been none
of Chebultz' business . Chebultz answered that, if
Dorey had been comparing her production with
that of Chebultz, it was Chebultz' business.
Thereafter on two separate occasions Dorey
came to Chebultz' machine and "jumped" Chebultz
telling her, among other things, "Lola, you pretend
to be such a darn good Catholic, I suggest that you
go to confession every night. I feel that you are in
need of it."12 Chebultz informed Dorey in front of
Alvarez that Dorey had been nothing but a
troublemaker and a tale carrier since she started
work in the department but that "if you have any
complaints about me [Chebultz], you go to Frank
[Minter]." These incidents were reported to
Minter.
On February 23 Mildred Golden returned to
work after having been off from work since an au-
tomobile accident occurring prior to December 2.
In Golden's absence Chebultz had been using the
machine which Golden had previously used. Upon
Golden's return Minter assigned Golden to her
former machine, allegedly because its location
would eliminate some walking for Golden who was
still having trouble with her legs . Minter then as-
signed Chebultz to the machine right next to Dorey.
Chebultz objected, reminded him that Gooch had
had to be moved therefrom only a couple of weeks
before and suggested that she take one of the four
vacant machines farther removed from the machine
of Dorey. Minter refused, ordering Chebultz to take
the machine next to Dorey because he wanted
Chebultz "to use this particular machine. You two
girls will have to sit there and get along. 1113
Chebultz answered that she would not sit next to
Dorey and that she "thought [she] would just quit."
Minter asked "When?"14 Chebultz replied that she
would stay at least until Friday to help him, remem-
bering that Alvarez was due back the following
Monday. After telling Chebultz that she "better
quit now," Minter went to the payroll office and
had a release slip made out for Chebultz. He also
had Warren drive Chebultz home immediately.
Chebultz has not been employed since. On the
12 Apparently Dorey was prone to use this type of statement as she had
previously used much the same statement in a telephone conversation with
Dickerson following the December 2 layoff
" At the hearing Minter's testimony indicated that he was only thinking
of Chebultz' convenience because the machine next to Dorey was the one
closest to a table where Chebultz performed part of the paper work she had
been doing for Alvarez Minter apparently "forgot " that Chebultz had been
doing this same paper work during the whole of Alvarez' absence from the
Golden machine which was considerably farther from the table in question
1589
drive home Chebultz expressed amazement that
Minter consider Cohorn and herself the "trouble-
makers" in the department. Warren agreed that
they were not and stated that Respondent knew
who the troublemakers really were.
Although Chebultz has never since been rein-
stated by Respondent, Respondent did, at her
request, provide her with a letter of recommenda-
tion stating that she had performed her work "in a
very satisfactory manner and readily adapted to
new jobs" but had left Respondent's employ "for
personal reasons."
The facts here show that, despite Warren's al-
leged opinion as of December 2 that Chebultz was
antiunion , Plant Manager Deal and Foreman
Holiday both knew that Chebultz and Cohorn had
been attending union meetings as Chebultz can-
didly admitted. The facts also show that by bringing
the antiunion cutter Alvarez into the department as
"leadwoman" on December 2, Respondent effec-
tively restricted the duties of both prounion
Chebultz and Cohorn which Respondent well knew
would be a blow to Chebultz' pride. Knowing full
well of the antipathy existing between the rather vi-
cious tongued and antiunion Dorey and Chebultz,
the only reason Minter could have had for his in-
sistence that Chebultz operate the machine next to
Dorey, when there were four vacant machines
farther away, was that he thereby intended to force
the high strung Chebultz to quit Respondent's em-
ploy rather than to conform to his unprecedented
dictates. This finding is further corroborated by the
speed with which Minter transformed Chebultz'
musings as to the possibility of quitting into con-
firmed fact, secured her immediate release and her
prompt departure from the plant. Minter was in
such a rush to get Chebultz out of Respondent's
employ that he did not even consider her offer to
remain until Alvarez had returned to resume her
duties.
This termination of Chebultz' employment is al-
leged in the complaint as a "constructive
discharge." It is quite true that Minter by his obdu-
rate insistence, contrary to all past practice, that
Chebultz occupy the machine next to Dorey, forced
Chebultz to consider the possibility of quitting in-
stead. However, in my opinion, the ligtening speed
with which Minter succeeded in transforming these
musings as to the possibility of quitting into an ac-
complished termination of employment constitutes
both an actual and constructive discharge in viola-
tion of Section 8(a)(1) and (3) because of its obvi-
ous retaliation for Chebultz' known union sym-
He also forgot that Alvarez was due to return on February 27 so that the al-
leged convenience would have been a matter of a feu days at most
Furthermore he forgot his previously expressed desire that his employees
be "happy "I was not impressed with Minter 's reliability as a %itness
"This is the second occasion on which Minter has employed the same
technique when distraught employees suggested they might " quit " He
used it first on Dickerson in the prior complaint case w here the Board and
the court found a discriminatory discharge
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pathies and activities and because it was intended
to discourage union membership and activities
among Respondent 's employees . I so find.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMITTEE
The activities of the Respondent set forth in sec-
tion III, above , occurring in connection with the
operations of the Respondent described in section
I, above, have a close, intimate, and substantial
relationship 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
It having been found that Respondent has en-
gaged in certain unfair labor practices , it will be
recommended that it cease and desist therefrom
and that it take certain affirmative action designed
to effectuate the policies of the Act.
I have found that Respondent discriminated in
regard to the hire and tenure of employment of the
following named individuals by discriminatorily lay-
ing off Betty Dickerson and Marie Remacle on
December 2, 1966, and discriminatorily refusing to
recall on December 9, 1966, Amy Bingham,
Genevieve Nelson , Irene Nelson , Rose Treece, and
Sylvia Wilhour , and discharging Lola Chebultz on
February 24, 1967, so accordingly I will recom-
mend that Respondent offer each of the aforemen-
tioned employees not already reinstated , immediate
and full reinstatement to her former , or substan-
tially equivalent position without prejudice to her
seniority or other rights and privileges and make
each of the above ( including Wilhour) whole for
any loss of pay she may have suffered by reason of
said discrimination against her by payment to her of
a sum of money equal to that which she would have
earned as wages from the date of the discrimination
to the date of her reinstatement , less her net
earnings during such period , in accordance with the
formula set forth in F. W. Woolworth Company, 90
NLRB 289, with interest thereon at 6 percent per
annum.
Because of the variety, extent , and type of the
unfair labor practices engaged in by Respondent, I
sense an opposition by Respondent to the policies
of the Act in general , and hence I deem it necessary
to order Respondent to cease and desist from in
any manner infringing upon the rights guaranteed
its employees in Section 7 of the Act.
CONCLUSIONS OF LAW
1. Upholsterers International Union of North
America , AFL-CIO, is a labor organization ad-
mitting to membership employees of Respondent.
2. By discriminating in regard to the hire and
tenure of employment of Betty Dickerson and
Marie Remacle on December 2, 1966, and Lola
Chebultz on February 24, 1967, and by discrimina-
torily refusing to recall the above-named and Amy
Bingham , Genevieve Nelson , Irene Nelson, Rose
Treece, and Sylvia Wilhour on December 9, 1966,
thereby discriminating against them because of
their union membership and activities , and in order
to discourage membership and activities among its
employees , Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning
of Section 8(a)(3) and (1) of the Act.
3. By interrogating employees about their own
and/or other employees ' union membership and ac-
tivities , by soliciting employees to engage in surveil-
lance of union meetings and by keeping said union
meetings under surveillance Respondent has en-
gaged in interference, restraint , and coercion of the
rights of its employees guaranteed to them in Sec-
tion 7 of the Act in violation of Section 8(a)(1) of
the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2 ( 6) and (7) of the Act.
RECOMMENDED
ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and upon the entire record
in this case I recommend that Duo-Bed Corpora-
tion, Wichita , Kansas , its officers, agents , succes-
sors, and assigns , shall:
1. Cease and desist from:
(a) Discouraging union membership and activi-
ties in Upholsterers International Union of North
America , AFL-CIO, by discriminating in regard to
the hire and tenure of employment of any of its em-
ployees by discriminatorily laying any employee off
or discriminatorily refusing to recall any of its em-
ployees or by discriminating in any other manner in
regard to any term or condition of their employ-
ment in order to discourage such activities or union
membership or activities therein.
(b) Interrogating any of its employees as to his
or her own membership or activities or those of any
of its other employees, keeping union meetings and
activities under surveillance , or inducing any of its
employees to engage in any such surveillance of
union memberships or activities or meetings.
(c) Interfering with, restraining, or coercing, our
employees in the exercise of their rights.
2. Take the following affirmative action which I
find will effectuate the policies of the Act:
(a) Respect the rights of our employees to self-
organization, to form, join , or assist any labor or-
ganization , or to bargain collectively in respect to
terms or conditions or employment through said
Union , or any other representative of their own
choosing , or to refrain from such activities.
(b) Offer to each of the employees named below
immediate and full reinstatement to her former or
substantially equivalent employment , without preju-
DUO-BED CORPORATION 1591
dice to her seniority or other rights and privileges,
and make each of them whole in the manner set
forth in the section of this Decision entitled "The
Remedy:" Betty Dickerson, Marie Remacle, Amy
Bingham, Genevieve Nelson, Irene Nelson, Rose
Treece, Lola Chebultz, and Sylvia Wilhour.
(c) Preserve and, upon request, make available
to the Board and its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Decision.
(d) Post at Respondent's plant in Wichita, Kan-
sas, copies of the attached notice marked "Appen-
dix B."15 Copies of said notice on forms provided
by the Regional Director for Region 17, after being
duly signed by Respondent's representative, shall
be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 17,
in writing , within 20 days from the date of the
receipt of this Decision, what steps Respondent has
taken to comply herewith.16
I FURTHER RECOMMEND that, unless that within 20
days of the receipt of this Decision, Respondent has
notified the said Regional Director that it will
comply with the foregoing recommendations, the
Board issue an order requiring Respondent to take
the aforesaid action.
15 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 that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
16 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 17, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX A
Mable Morris 3-22-61 Mattress Covers t anti 2
Lanelda Myers 3-27-61 Spreads anti
Lillian Alvarez 4- 3-61 Lead Woman3 anti
Ruth Light 5- 8-61 Sergeing pro
Betty Dickerson 5- 8-61 Chair Cushions X pro
Dorothy Cohorn 5-31-61 Inspector
Mildred Golden 10-16-61 (i11)4 Spreads X R 8 pro
Marie Remacle 11-13-61 Matress Covers X pro
Lola Chebultz 5- 6-63 Bundle Girl anti
Nola Van Hall 6- 6-63 Lunch Room, Spreads pro
Amy Bingham 11-19-63 Contours, Spreads X ?5
Mary Baker 2-18-64 Spreads anti
Genevieve Nelson 3-13-64 Spreads X pro
Rose Treece 7-20-64 Spreads X pro
Elfreda Frazier 5-12-65 Straps, Mattress Covers 6 X R ?
Irene Nelson 4-18-66 Spreads X pro
Odean Gooch 4-25-66 Spreads X R anti
Sylvia Wilhour 5-26-66 Spreads X pro
Laura Dorey 6- 1-66 Spreads X R pro 7
Deloris Johnston 8- 1-66 (ill) 4 Spreads X R anti
X Temporary Layoff for 1 week 12-5 through 12-9-66
In fact Morris sewed box spring covers, not mattress covers For
years Remacle had sewed all the mattress covers
'This column did not appear on Respondent's list It is, however,
an addition made by me from Warren's testimony as to his opinion
regarding the union sympathy of each employee
Prior to this list, Alvarez had been employed in the cutting depart-
ment -not the sewing department As all the other employees were
listed as "SMO" (sewing machine operator), this column has been omitted
from the above in the interest of space
" As of December 2 both Golden and Johnston were incapacitated
and not working However each returned to work as soon as capable so
the `layoff' of each was purely theoretical Golden returned to work
February 23, 1967, while Johnston was back working by the week of
December 23, 1966
Despite Warren's opinion that he did not know Bingham's sym-
pathies as noted in the last column, Bingham had been seen accompany-
ing Dickerson on union work by Respondent
I The evidence shows that Frazier did matress covers only after
Remacle's layoff
i As of December 2 this alleged opinion of Warren's is incompre-
hensible The evidence proved that to the date of the election Dorey
acted prounion However, after the Union lost that election, Dorey
promptly turned on the union adherents provoking incidents against
them, most of which came to Respondent's attention In fact, by De-
cember 2, Dorey had replaced Morris as the most antiunion employee
in the department to Respondent's knowledge
8 This column, indicating employees whom Respondent had recalled
to work after the layoff, was added to the original seniority list of De-
cember 2 by Warren subsequently, apparently just prior to April 1, 1967
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board,
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended , we hereby
notify our employees that:
WE WILL NOT discourage union membership
or activity on behalf of Upholsterers Interna-
tional Union of North America , AFL-CIO, or
any other labor organization of our employees,
by discriminating in regard to the hire and
tenure of employment , by discriminatorily lay-
ing off, or by discriminatorily refusing to recall
our employees , or by discriminating in regard
to any other term or condition of employment
of our employees because of their union affilia-
tion or activity.
WE WILL offer to each of the employees
named below immediate and full reinstatement
to their former or substantially equivalent posi-
tion , without prejudice to their seniority or
other rights and privileges , and will make each
of them whole for any loss of pay she may have
suffered by reason of the discrimination prac-
ticed against her together with the interest
thereon at 6 percent per annum : Betty Dicker-
son, Marie Remecle , Amy Bingham , Genevieve
Nelson , Irene Nelson , Rose Treece, Lola
Chebultz, and Sylvia Wilhour.
WE WILL NOT keep union meetings or activi-
ties under surveillance.
WE WILL NOT induce employees to keep
union activities and union meetings under sur-
veillance.
W E WILL NOT interrogate our employees in
regard to his or her own union membership or
activities or those of other of our employees.
WE WILL respect the rights of our employees
to self-organization , to form, join , or assist any
labor organization , or to bargain collectively in
respect to terms or conditions of employment
through said Union , or any representative of
their own choosing , or to refrain from such ac-
tivity , and WE WILL NOT interfere with , restrain,
or coerce , our employees in the exercise of
these rights . You and all our employees are
free to become members of any labor organiza-
tion , or to refrain from doing so.
DUO-BED CORPORATION
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board 's Regional
Office, 610 Federal Building, 601 East 12th Street,
Kansas City, Missouri 64106, Telephone 374-5282.