Ed White Junior Shoe Co.

National Labor Relations Board - Board Decisions

Mar 13, 1963

141 N.L.R.B. 403 (N.L.R.B. 1963)

ED WHITE JUNIOR SHOE COMPANY 403
Notify the Regional Director for the Fourth Region, in writing, within 10 days
from the date of this Intermediate Report, what steps the Respondent has taken to
comply herewith.5
5In the event that this Recommended Order shall be adopted by the Board, this provi-
sion shall be modified to read* "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
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 National Labor Rela-
tions Act, as amended, I notify my employees that:
I WILL, upon request, bargain collectively with Furniture and Allied Workers
Union Local No. 37, Upholsterers' International Union, AFL-CIO, as the ex-
clusive bargaining representative of all employees in the following unit with
respect to rates of pay, wages, hours of employment, and other conditions of
employment, and, if an understanding is reached, embody such understanding
in a signed agreement. The bargaining unit is:
All production and maintenance employees of the United Store Fixture
Mfg. Co., exclusive of office clerical and supervisors as defined in the Act.
I WILL offer to all strikers, upon their application, reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority
or other rights or privileges, dismissing, if necessary, any employees hired after
July 18, 1962, to replace these employees, and I will make each employee whole
for any loss of pay suffered by him as a result of my failure to reinstate him
within 5 days after his application.
DOMINIC J. CALABRESE T/A UNITED
STORE FIXTURE MFG., CO.,
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, 1700
Bankers Securities Building, Philadelphia 7, Pennsylvania, Telephone No. Penny-
packer 5-2612, if they have any question concerning this notice or compliance with
its provisions.
Ed White Junior Shoe Company i and Boot and Shoe Workers
Union, AFL-CIO. Case No. 26-C.4-1,311. Marche 13, 1963
DECISION AND ORDER
On November 27, 1962, Trial Examiner Ramey Donovan issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and rec-
commending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Intermediate Report.
The Trial Examiner also found the Respondent had not engaged in
certain other unfair labor practices and recommended that the com-
I The name of the Respondent appears as amended and will be so reflected in the notice.
141 NLRB No. 32.
708-006-64-vol. 141-27
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaint be dismissed as to such allegations. Thereafter, the General
Counsel filed exceptions to the Intermediate Report and a supporting
brief, and the Respondent filed a brief in support of the Intermediate
Report.
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 [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error has been 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, conclu-
sions, and recommendations as modified herein?
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner with the modification noted below 3
2 The General Counsel excepts to the Trial Examiner 's failure to Include in his Recom-
mended Order and proposed notice any remedy for his finding that Respondent violated
Section 8 ( a) (1) by creating the impression among its employees that their union activity
and meetings had been placed under Respondent ' s surveillance . We find merit in this
exception and shall modify the Recommended Order and notice accordingly.
3 The Trial Examiner's Recommended Order is hereby modified by deleting paragraph (c)
thereof and substituting therefor the following:
Engaging in surveillance of any union activity or union meetings , or creating the,
impression of surveillance of such activity or meetings , by telling employees the
Employer has a recording of union meetings.
The third paragraph of the notice is also similarly modified. The Employer 's name In
the notice is amended to reflect its correct name.
INTERMEDIATE REPORT
Upon charges filed by Boot and Shoe Workers Union, AFL-CIO, herein called
the Union, a complaint was issued against Ed White Shoe Company, herein called
the Respondent , on August 3, 1962, alleging violations of Section 8(a)(1) and (3)
of the Act. The violations are alleged to consist of discriminatory discharges of two
employees , surveillance , threats, and interrogation . Respondent denies that it has
committed the alleged violations . A hearing was held before Trial Examiner Ramey
Donovan on August 21 and 22, 1962, in Paragould , Arkansas. Both the General
Counsel and Respondent were represented by counsel , participated in the hearing, and
filed briefs.
Upon the record and briefs , and based upon my observation of the witnesses, I
make the following:
FINDINGS OF FACT AND LEGAL CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Ed White Junior Shoe Company is an Arkansas corporation operating a plant
in Paragould, Arkansas , where it is engaged in the manufacture of shoes.
In the most recent 12-month period, Respondent , in the course of its business,
purchased and received , at the above-mentioned plant , materials valued in excess
of $50 ,000 directly from points outside the State. During the same period Respondent
manufactured , sold, and shipped from its Paragould plant finished products valued in
excess of $50,000 directly to points outside the State of Arkansas.
Respondent is engaged in commerce within the meaning of the Act and within.
the purview of the Board 's jurisdictional standards.
ED WHITE JUNIOR SHOE COMPANY 405
II. THE LABOR ORGANIZATION INVOLVED
The Union, Boot and Shoe Workers Union , AFL-CIO, is a labor organization
within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
According to the uncontroverted testimony of Respondent 's president , White, the
Company commenced operations in 1944. From 1946 to 1950 or 1951 Respondent's
production employees were represented by a CIO union , otherwise unidentified in
the record . The parties negotiated yearly contracts including a checkoff provision
for union dues. White testified , "We had no problems" with the Union. According
to the witness , the Union simply petered out and after a period when it failed to call
for the checked -off dues that the Company had deducted , the dues were returned
to the employees.
The foregoing meager evidence is not of material significance but it is at least
not a picture of an employer traditionally and resolutely battling against the very
concept or the possibility of having a union in its plant.
Having noted what is known of the past we now come to our principal or sole
concern, namely, the evidence regarding events in 1962.
In the latter part of May 1962, Cloinger and other union representatives com-
menced organizational efforts among Respondent 's employees .' The union people
contacted certain employees whose names they had, met with them, advised them
regarding the Union and organizational procedure , and in effect set up an employee
committee of about nine employees who were given union cards to distribute to their
fellow employees . Conger and Janes, the two alleged discriminatees in this case,
were not among the first group that Cloinger contacted but they became members
of the organizing committee around June 9, 1962.
B. Statements and other acts by Respondent 's agents
Employee McPherson testified that he was a "rush boy." He worked out of
Respondent 's office which was approximately in the center of the factory. As the
name implies , the office was where White and various other officials as well as the
office personnel worked. Heston was described by McPherson as the office foreman
which I take to mean that he was the office manager. When an order came into the
office McPherson would receive ceiain instructions from Heston and would convey
the order to various departments in the plant , particularly the shipping department,
whose foreman was Morris . McPherson testified that he took orders from both
Heston and Morris.
On June 7, during the course of work, Greuel , foreman of the lasting department
(one of the production departments ), spoke to McPherson . According to the latter,
Greuel said , "Bob, can you sign a union card?" and McPherson replied, "Well, I guess
I can ." Greuel then said, "Well , I can't sign one and I just wondered if you could
sign one." McPherson testified , "Then he [ Greuel] turned around and backed off.
That is all that was said." 2
Greuel testified that he did ask McPherson whether he could sign a union card.
He said he thought McPherson was a "company man" by which he explained he
meant that McPherson was on the straight -time or salaried payroll and therefore
not eligible to belong the Union . The witness , who had been with the Company
about 12 years , said that previously , when there was a union in the plant, he was
under the impression that certain employees were not eligible for the Union.
I am not persuaded that Respondent , through Foreman Greuel , whom I find to
be a supervisor , was in violation of Section 8(a) (1) of the Act by asking McPherson
whether he could sign a union card . I do not regard the terminology on its face
to be coercive or to constitute interference . If the words used are not taken literally,
1 Respondent employs approximately 350 to 400 production employees
This was McPherson's testimony on direct examination by the General Counsel and
this is the testimony of McPherson that Is cited In the General Counsel's brief The
General Counsel does not refer to the witness' testimony on cross-examination when be
stated that Greuel asked, "If I had signed a union card and I said, 'yes, I have signed
one' He said, 'Can you sign a union card?' I said, 'I guess I can ; I have already
signed one ' " I credit McPherson's testimony of direct examination, previously de-
scribed, as what was said to hint by Greuel, and to the extent that his testimony on cross-
examination varies therefrom I discredit it as not being an accurate version.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they are at worst, ambiguous. Greuel's explanation at the hearing is, in my opinion,
consistent with the words used to McPherson, and is not unreasonable or implausible.
McPherson did work out of the office. Arguably, he was not a production worker.
The record does not show whether he was paid on an hourly basis or received a
weekly salary but as a matter of surmise I would be inclined to believe that he was
salaried and Greuel could reasonably have so believed. During the period of the
CIO incumbency in the plant the Board had conducted an election and, presumably,
with respect to bargaining unit there had been questions and rulings on the eligibility
of certain classes of employees. A not uncommon differentiation is to exclude sal-
aried office workers from a unit of hourly paid production workers. Whether
McPherson's job would be included or excluded in a production and maintenance
unit is not before us and is not the issue. The point is that Greuel's explanation
of his question is not lacking in plausibility. I find no reason to speculate regarding
possible subjective aspects since the Board has consistently rejected this approach
in evaluating whether or not a statement on its face was or was not coercive or
otherwise illegal . Accordingly, dismissal of this allegation of the complaint is
recommended.
The foregoing admitted incident illustrates, however, that as early as June 7
Respondent was aware that there was union activity among its employees. As far
as appears there had been no union activity for about 10 years until the 1962 effort
which commenced in the latter part of May 1962. Greuel's interest in employee
eligibility on June 7, 1962, was surely in response to some awareness of the current
union activity. When there is an absence of union activity for 10 years no one
like Greuel would normally ask the type of question propounded by Greuel as an
abstract concern about the principles of labor law. It was clearly related to the
current union activity and the interest of Greuel in at least the aspect of McPherson's
eligibility. I mention this factor since it bears, I believe, on the evaluation of certain
subsequent alleged conversation in which Greuel was said to have participated.
Gray, an employee in the lasting department, testified that on June 8 Greuel came
up to him and asked, "Have you heard anything about Gerald [Conger] pushing
union cards." Gray said he had not. At the hearing Greuel denied having made
such an inquiry. Gray impressed me as a credible witness and I credit his testimony.
Among other factors I note that on the previous day Greuel displayed his interest
in the current union activity when he admittedly inquired about McPherson' s eligi-
bility. Apparently union matters were on his mind to the extent shown, including
what I regard as Gray's credible testimony.
I interpret Greuel's question to Gray as an inquiry as to whether Conger was active
in the union movement by soliciting signatures on union cards or by asking em-
ployees to sign such cards. The question was not directed to whether Conger was
doing such things during working hours, which might well have been a subject of
legitimate inquiry but was directed to whether, in effect, Conger was active in the
Union. The probing and interrogatory nature of the question is particularly evident
since Conger had nothing to do with the Union until the evening of June 9, as we shall
see below. There could, therefore, be no basis for inquiry regarding the propriety of
the manner of his union activity or suspected activity but only an inquiry as to whether
he was engaged in such activity. I fail to see any legitimate basis for such an inter-
rogation and the inquiry cannot be regarded as any type of an expression of opinion
regarding the Union by Greuel.
Such an interrogation disclosed to the employee that the foreman suspected or
wanted to know whether another named employee was active in the Union and
whether he was handing out cards. Under the circumstances, the interrogation
had an inhibitory effect on employee activity and interfered with the exercise of
employee rights and I see no legitimate basis for such interrogation. I therefore find
a violation of Section 8 (a) (1) of the Act.
It is to be observed that Greuel's interrogation of Gray would foreseeably have
been calculated to elicit one of the following types of responses: (1) Yes, Conger is
pushing union cards; (2) no, he is not; (3) I do not know; (4) no, Conger is not
pushing the cards, Jones and Smith are doing it. In any event, the interrogation itself
disclosed that the identity of who was pushing union cards was of interest to the
Employer and it is difficult to believe that any employee would equate this interest
with a casual inquiry similar to a question about the score of yesterday's baseball
game. This I believe is true regardless of what may have been the intent of the
foreman-interrogator.
As to why Greuel suspected Conger of being an active protagonist of the Union
when, in fact, at the time, this was not the case, I believe the following is an accurate
diagnosis. Preliminarily, however, the salient point is that, as Gray's testimony
reveals, Greuel suspected Conger for whatever reason he may have had. This is
confirmed by Greuel 's conversation with Conger himself on June 9. But as to why
ED WHITE JUNIOR SHOE COMPANY 407
this was the case, my observation of Conger as a fairly lengthy witness impressed
me that he was intelligent, mentally alert, articulate, a versatile and competent
worker, and a man of strong conviction. Among the employees whom I
observed as witnesses, the nature of the work in Respondent's plant, and what I
could discern of the overall picture, I would regard Conger as a leader-type or at
least a potential leader among rank-and-file employees. I believe that Conger's fore-
man, Greuel, probably believed that there must be some sparkplug among the em-
ployees who was behind the union activity and he quite evidently and not unreason-
ably suspected a man such as Conger and wanted to find out if such was the fact .3
While Conger was working on June 9, his foreman, Greuel, came up to him and
said, "Gerald, I would like to talk to you a minute." According to Conger, whom I
credit on this matter, Greuel then said, "Gerald, I would like to ask you something.
Would you be for the Union."
CONGER: Union? I don't know. What about it.
GREUEL: Would you like to get a union down here?
CONGER: Well, I hadn't thought nothing about it. If we could get a union like
they got up north, it would be all right, but this place I hadn't heard nothing
about it.
GREUEL: Well, what I am getting at, I want to know if you have signed a
union card.
CONGER: No, I didn't sign a union card. Why?
GREUEL: I want to know if you signed a union card or if you are shoving union
cards and getting them signed up.
CONGER: I told him again that I hadn't signed a union card and then he just
turned around and walked off.4
The foregoing interrogation of Conger by Greuel is found to be violative of Section
8(a)(1) of the Act.
McPherson, an employee witness referred to earlier in this report, testified without
contravention and credibly that on June 14, while he was doing some work in the
shipping department, after the end of the morning break, Assistant Foreman Cox
of that department came up to him and said, "Bob, how's the Union going."
McPherson said, "It's going pretty damn strong" and Cox remarked, "Well, someone
is going to lose their job." McPherson observed, "Well, you can make $1.15 an
hour any place you want to work." Cox again said, "Well, someone is going to
lose their jobs over it."
Respondent's foremen, according to President White, possessed the power and
authority to discharge employees and to direct them in their work. The foreman
was responsible for the work in his department. Assistant foremen shared the
responsibilities of the foremen. Morris, foreman of the shipping department, testified
that Cox saw to it that work was properly performed in the department, that em-
ployees were allotted work, directed employees in their work, corrected and repri-
manded employees, and had the authority of Morris in the latter's absence due to
illness, vacation, or otherwise. Accordingly, I find that Cox was a supervisor within
the meaning of the Act and that his uncontroverted remarks to McPherson on
June 14 were violative of Section 8(a) (1) of the Act.
The Union held its first general open meeting on June 19, in Reynolds Park,
Paragould, a public park, between about 6:30 and 8 p.m. The meeting had been
widely publicized by word of mouth and there was no secrecy about the fact that it
was to be held. In fact, the evident purpose was to have as many employees as
possible aware of the scheduled meeting in order to secure maximum attendance.
9I find some confirmation of my belief that Respondent regarded Conger as possessing
some distinguishing qualities in Conger's uncontroverted testimony that around the middle
of June 1962, White summoned Conger to his office. White suggested that they take a
ride and then drove Conger out to White's home White told Conger that he, Conger,
had been with the Company quite a while and asked him about his house and his farming.
White complimented Conger that he was trying to get ahead with his farming and said
he had watched Conger and that he was a good worker and that White was interested
in someone that did good work for the Company and good work for himself at home.
4 Gruel's denial of this conversation was confined to stating, in reply to Respondent's
counsel's question whether he had asked Conger if he had signed a union card, "I don't
remember that if I did."
The testimony of Ward, a witness of Respondent, jibes with that of Conger. She
stated that one day in the plant Conger came to where she was working and told her that
Greuel had just accused him of working for the Union and of pushing union cards Conger
told Ward that he, Conger, had informed Greuel that such was not the fact.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cook, who had worked for Respondent for 7 or 8 years, had resigned voluntarily
about a month and a half before the hearing. He had been active in the Union
while still an employee but thereafter had ceased his activities. The day before the
hearing he had a chance encounter with counsel for the General Counsel and in the
course of the conversation he was asked if he knew anything about the impending
case.5 Evidently he furnished the matter of the Reynolds Park incident since he
testified thereon at the hearing. The complaint, alleging surveillance of the Reynolds
Park meeting by Respondent's Superintendent Akins, had, of course, issued well
before the time when Cook furnished information on the matter to the General
Counsel. Since the only other witnesses besides Cook who testified regarding this
matter were Janes and Conger it is evident that the complaint of surveillance had
been based on the testimony of the latter two individuals. It appeared on cross-
examination that Cook, before August 20, had told no one what he knew about the
instant case or about the Reynolds Park matter and he had had no contact with
Janes or Conger. These circumstances, credibly testified to by Cook and not con-
troverted, plus my impression of Cook as a witness, have led me to credit his testimony
notwithstanding the rather sharp testimonial conflict regarding the June 19 incident
in the park.
The meeting was held in an open shed in the park. The structure had a roof and
open sides and was apparently used for picnics and related purposes. Cook arrived
late for the meeting and since most of the seats within the structure were taken he
stood on the outside. About 7.30 p.m., while Cook was looking toward the road
that runs within about 10 or 15 feet from the building he saw a car come down
the road. In the car was Elwanda Johnson, manager of Respondent's payroll depart-
ment, who was sitting beside her husband, a nonemployee of Respondent, who was
driving. There were three other people in the car whom Cook did not know.6 The
car was proceeding slowly and it followed the road around the shed and departed.
Cook testified that a car, as did the car in question, "had to circle around the place
to get out." A few minutes later Cook saw a car driven by Akins come down the
road slowly and pursue the same course as had the preceding car. Cook recognized
Akins, one of Respondent's two superintendents, a supervisor, and testified that there
was someone sitting next to Akins but he did not look at this person or recognize
him. Cook stated that the lights had been turned on in the shed and in the park at
the time.
Employee Janes testified to substantially the same effect as Cook. He was sitting
on a bench at the edge of the shed when he saw the two cars in the order afore-
mentioned.
Employee Conger testified that he was sitting within the shed when he saw Elwanda
Johnson in a car and then a car that he recognized as Akins' drive by. He said that
the man driving the car resembled Akins but he could not positively recognize him
as Akins.
Both Johnson and Akins denied that they had engaged in the foregoing actions
or that they had been in the park on June 19. Akins, in some respects, impressed
me as a reliable witness but on this aspect of his testimony I was not persuaded. He
testified that he had gone to Reynolds Parks once that summer and on that occasion
he had his two small sons. He stated that he had no way of knowing when this
visit to the park occurred but did say they had gone out to the park before dark
and it was later in the evening when they returned. Respondent's counsel asked
the witness whether he had checked with his wife or in any other way had endeavored
to pinpoint any happening on June 19. The witness replied, "No, sir, I have not."
The complaint, issued well before the hearing, had specifically alleged that Akins
on June 19 had engaged in surveillance of a union meeting or meetings. Cook, Janes,
and Conger testified on the first day of the hearing regarding Akins' presence near
the meeting. Akins testified on the second day. There was therefore ample advance
notice of what the issue was with respect to Akins and June 19. Since Akins went to
the park only once in the entire summer and on that occasion was accompanied by his
7- and 8-year-old boys, I have difficulty in understanding why this uncommon event
would not have enabled him to fix the date thereof. Even if he could not remember
the day of the week or the day of the month it is hard to understand why he could
s This background was adduced in cross -examination by Respondent 's counsel.
6 The General Counsel has not alleged nor does he claim that Johnson engaged in any
violation of the Act and there is no showing that she was a supervisor.
7In its brief Respondent points to this factor as implausible. However, in the absence
of specific evidence as to weather conditions on June 19, 1962, it is not implausible, in my
opinion, that between 7 :30 and 8 p.m., standard time, lights would be turned on in a
public place , either as a matter of normal co : rse or because of cloudy or other conditions.
ED WHITE JUNIOR SHOE COMPANY 409
not at least name it as occurring in June, July, or August. But Akins said that he
simply did not know when this excursion occurred. Further, faced with this specific
issue on June 19, if Akins himself did not remember June 19 or the one time when
he had gone to the park, it would seem likely that he would have asked his wife about
the matter.8 If his wife had no recollection of June 19, she would probably know at
least the approximate time when their father took the two children to the park.
The excursion might well have been at her suggestion. In any event, in my view, the
witness would have carried more conviction in his testimony if he had testified to at
least the approximate time when he had been in the park. But his testimony was
that he was in the park one evening during the summer but that he could not place
the time either as to day or as to month. However plausible it might have been, if
so testified, I do not have before me testimony that Akins took his children to the
park on June 19 and drove by the union meeting at the park. What is in the record
is a denial by Akins that he was in the park and drove by the meeting on June 19.
I have credited the testimony of the Government's witnesses for the reasons previ-
ously stated and I also find Akins' denial unconvincing in view of all the circum-
stances.
In the absence of explanation by Akins for his presence on the road immediately
adjacent to the union meeting on the particular evening of June 19 and during the
particular time of the meeting, I find that his presence was an act of surveillance vio-
lative of Section 8(a)(1) of the Act. While a number of plausible and legitimate
explanations might have been produced I cannot supply explanations that are not
offered. Many people go to parks but Akins was not a frequenter of the park and
in fact was only there once. There is no evidence that the park was on his normal
route of travel or any evidence why he drove slowly by a specific shed, on a bad road,
at the specific time and on the specific night of a publicized union meeting.
On June 21, 1962, according to employee Underwood, his foreman, Morris, asked
him how was the union meeting that you had. Underwood said he had not attended
but as he saw employee Donnie Janes approaching he said, "Here comes Donnie, I'll
ask him." When Janes came up to Morris and Underwood the latter asked him how
the meeting was. Janes said, "Oh, it was good." The conversation terminated with
Morris remarking, "Well, it doesn't matter anyhow because Mr. White has a tape
recording of the whole thing." Janes' testimony regarding the above incident cor-
roborates Underwood.
Respondent's counsel asked Morris whether he recalled asking Underwood about
a union meeting on June 21. The witness said, "Do I remember asking him, yes, I
remember the discussion." He then proceeded to state that they were discussing the
Emerson situation,9 that he did not remember the date, and "I don't know if it was
the date they [Emerson] had a meeting or not because I have never heard of them
having a meeting-as far as I knew they didn't have a union. .
I find Morris' above testimony to be unconvincing and I credit Underwood' s testi-
mony. The interrogation was calculated to reveal the status or the success or failure
of the union meeting as well as whether or not the employee who was questioned
had or had not atttended the union meeting. I find a violation of Section 8(a)(1)
of the Act thereon.
About June 23, a group of employees, as well as Assistant Foreman Cox, during
their break period, were on the platform or dock of Respondent's plant. Under-
wood testified that they were discussing unions in general and also the strike situa-
tion at the Emerson plant in Paragould. According to the witness, "then that discus-
sion [unions and Emerson] was dropped, you know, when we started talking about
the union at the factory, and we were trying to `egg' Cox on, you know, because he
gets nled up pretty easy, and we were trying to show how brave we were then and
that we weren't afraid to let them know we were working for the Union and we
[were] showing off in front of Mr. Cox and let him know we weren't afraid." When
this conversation ended and the break period was up, Cox said, "I can tell you one
thing, there's going to be some people lose their jobs over this union." Both Under-
wood and Janes testified to substantially the same effect regarding the foregoing.
They both state that Cox's statement was not made during the Emerson part of the
conversation but was made after the discussion had gone into the union situation at
Respondent's plant.
Cox admitted that he had made the statement attributed to him but he said it was
in conjunction with the discussion of the Emerson situation and that the latter was the
sole topic of conversation. According to Cox, Janes had remarked about the Emer-
8 Respondent's counsel apparently thought this a reasonable assumption since he ques-
tioned Akins about this. The witness said he had not consulted his wife.
9 The record shows that Emerson was a plant in town which was on strike.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
son employees going on strike and had expressed the view that the strikers would get
what they were asking. Cox testified that he had heard that Emerson had sent out a
letter which was also going to be published in the morning paper, to the effect that if
the strikers did not come back to work by Wednesday, they would be replaced or
fired. It was therefore in this connection and in the context of the Emerson discus-
sion that Cox made his statement about some people losing their jobs.
There are some aspects of the June 23 incident that resemble the June 14 incident,
above, testified to by McPherson. I have considered the possibility that there was
only one such incident and that there was a mistake as to dates. However, I have re-
jected this possibility for several reasons. McPherson was quite definite in fixing
the incident to which he testified as June 14. His testimony was not controverted.
Also, no witness, including Cox, has denied that there were two separate incidents.
Underwood, Janes, and Cox all were in agreement that the date of June 23, give or
take a day, was the date of the occurrence to which they testified. The two Govern-
ment witnesses had additionally several points of reference by which to fix the
June 23 date. The union meeting was June 19. On June 20 or 21 Morris had ques-
tioned them about the meeting and the Cox incident on the dock was a few days
later.
Returning now to the June 14 affair, I note that McPherson said that during the
break on the dock there was discussion about Emerson which was a general and
frequent point of discussion among Respondent's employees and probably in the
Paragould community. On the dock on June 14, according to McPherson, Cox did
say that he did not think that the Emerson strikers would get back their jobs. The
break then terminated and McPherson returned to the shipping department and
started work on some orders. As previously described, Cox also came back to
where McPherson was after the break and asked him how the Union was going
"Here at the factory." When McPherson said it was going strongly Cox remarked,
"Well, someone is going to lose their job." This remark is almost identical to Cox's
admitted statement on June 23. The uncontroverted testimony is clear that on
June 14 there was a definite dichotomy between the Emerson discussion and the
aforesaid statement of Cox. It is my belief that in a parallel situation on June 23
the testimony of Underwood and Janes is credible and that Cox's remark on June
23, as on June 14, was made in conjunction with the discussion of the Union in
Respondent's plant Certainly this would be reasonable interpretation on the part
of the employees who were present, regardless of whether Cox in his own mind was
speaking only of the Emerson situation.'° The statement, "I can tell you one thing,
there's going to be some people lose their jobs over this Union," in context and
sequence, reasonably appeared to be a threat with respect to union activity among
Respondent's employees and as such was violative of Section 8 (a) (1) of the Act.
C. The discharge of Gerald Conger
Conger had worked for Respondent since July 1957. He was discharged June 25,
1962. Testimony in the record satisfies me that Conger was a competent employee
and, in many respects, because of his versatility in being able to perform different
operations and indications that he was a rapid worker, he was a good and perhaps
a better than average performer. Respondent has not impugned or sought to impugn
either the quality or the quantity of Conger's work
Although the union effort commenced in the latter part of May 1962, Conger
was not among the original contacts that the Union made among Respondent's
employees. He was not a member of the employee organizing committee when the
Union commenced its drive and there was activity and solicitation among the em-
ployees prior to June 9 when Conger joined the organizing effort.
On the latter date, June 9, as previously described, Conger's foreman, Greuel,
who quite evidently was aware that union activity was going on among the employees,
queried Conger. He asked Conger if he had signed a union card and if he was
"pushing" union cards among the employees. Conger asnwered truthfully and in
the negative. However, he did indicate that he was not opposed to the idea of a
union as a matter of principle and opined that a good union would be all right.
As I have heretofore observed, Conger impressed me as an alert individual, articu-
late, and strong in his convictions. His reaction to Greuel's questioning was a feeling
of some resentment because he regarded the questioning as in effect an unfounded
10 Moreover, it is difficult to see how on June 23 when Emerson had evidently given its
strikers a future deadline within which to return or be replaced or discharged, Cox could
have or would have made such a positive statement that Emerson stinkers (as he con-
tended he meant) would lose their jobs The strikers might decide to return to work
immediately or by the deadline date and presumably would not lose their jobs.
ED WHITE JUNIOR SHOE COMPANY 411
accusation and an unwarranted expression of suspicion on the foreman's part. This
feeling was apparently compounded by Conger's belief that after talking to Conger,
Greuel had asked some other employees about Conger, thereby indicating in the
latter's eyes that Greuel had not believed his denial of union participation.ii
As a result of the foregoing, Conger signed a union card on the evening of June 9
and immediately and actively associated himself with the union organizational effort.
His activity consisted of attending all meetings of the organizing committee of about
11 employees, including Conger, as well as the open meeting of the Union on
June 19. He secured approximately 75 signatures on union cards from employees
and devoted considerable time to the union drive.12 The other members of the
committee were advised by the union representative that anytime that they could
not personally come out to the motel where the union representative was staying
they should give any cards they had secured to Conger or Janes who would deliver
the cards to the motel.
Respondent has had and does have a rule posted on the bulletin board and other-
wise communicated to employees. The rule provides, "No kidding or talking during
working hours. That is what your rest period is for. When you talk you make
mistakes and bad shoes." The evidence in the record persuades me that Respondent
and its supervisors sought to and did enforce this rule and that the employees were
aware that such was the fact. I also find that in the past employees had been dis-
charged for violating this rule. However, there is also credible evidence that while
the employees did not openly violate the rule, at least when detection by a supervisor
was possible, they or some of them did speak to each other during working hours
about nonwork subjects.
Conger testified that he did not talk to any employees about the Union during
working time. Although in many respects I found Conger to be a credible witness I
am not persuaded that his testimony on this matter was accurate. Conger's work
entailed that he move to various points in his department as well as, on occasion,
to points in other departments. His work entailed some conversation with other
employees. I find it difficult to believe that in the course of such conversation during
the June 1962 period Conger did not make some reference to the union drive then
in progress or that he ignored any question that might have been asked him about
the Union. We have seen that Conger was a person of strong conviction; he had
thrown himself wholeheartedly into the union campaign and as time went on he
admittedly worked harder and devoted more time and effort to securing union
adherents. Aside from this general inference there is specific evidence that Conger
did make reference to union matters during working hours. He talked to Ward, a
fellow employee, about how Gruel had questioned him about the Union and his
activity therein; either on this or another occasion during the relevant period Greuel
saw Conger with Ward during working hours under circumstances that indicated
that they were not engaged in or discussing work and he directed Conger to go back
to his work elsewhere in the department; employee Hale testified that Conger had
spoken to her and others about the Union during working hours but there is no
evidence that any supervisor was aware of these particular facts; employee Leslie
Johnson stated that Conger had spoken to him about the Union during working
hours and that in the same period he had seen Conger talk to others and he told
Conger that if he was not careful he would be discharged; employee Clements
stated that Conger had spoken to him about the Union during working hours; Morris,
foreman of the shipping department, testified that in the several weeks before
Conger's discharge he observed Conger talking to employees on matters not per-
taining to the work; he stated that one occasion was an incident in which McPherson,
who took orders from Morris, and Conger were talking together; Morris spoke to
McPherson about this and the employee admitted that he and Conger had been
"goofing off"; this testimony was not controverted other than by Conger's general
denial aforementioned.
Chronologically speaking, it is pertinent to mention at this point that around the
middle of June there had been a layoff in Conger's department. The only witness
who testified about this was Conger and the details were meager. I would surmise
that the layoff was of brief duration but evidently there was little or no production
"I make no finding that Greuel, after questioning Coneer, then checked with other
employees about Conger. However, I do find that Conger believed that Greuel had doubted
his word and had checked with others. Thus, on June 22, Conger, referring to the June 9
incident, said to Greuel, ".. . I gave you my word then I hadn 't signed a union card,
and you wouldn't trust me and you had to go and ask two more of the other guys-they
told me that.. . ."
12 The Union had obtained about 190 signed cards overall.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
going on in the lasting department and it may not have operated for a day or two.
I say this because Conger's uncontroverted testimony is that he was not laid off but
was doing some plumbing work in the plant during the layoff. It is doubtful that
this would have been the situation for a valuable employee such as Conger if his
department was operating, at least in the absence of a claim or even an intimation
of discrimination in this respect. It was during this episode that White drove Conger
out to his home and had a friendly conversation, previously described, with him.
For reasons discussed below I believe that Respondent, through its supervisors, was
aware of the union activity during this period, including Conger' s prominent role
therein. Conger had been retained during the layoff and White made no mention of
the Union to him on the occasion of the drive and conversation at the latter's home.
It is accurate to say that on this occasion White spoke well of Conger as an employee
and as an individual. If White had in mind that Conger might conclude that his
best interest lay with the Company rather than in union activity he did not say
this and the incident conveys no impression of hostility toward the Union or toward
Conger himself.
On Friday, June 22, according to testimony of Conger that I credit, Greuel,
Conger's foreman came to him while he was working and told him that if he wanted
to continue working he had better straighten up and do right; that Conger was
on his "s-t list" to get rid of and not to ask him why because he know the reason.
When Greuel turned and went to another section of the department Conger followed
him and in effect asked him what he meant. Greuel repeated that Conger knew
the reason and said that it was about the Union. Conger then told Greuel how the
latter had refused to believe him on June 9 when Conger told him truthfully that
he was not in the Union and how Conger, incensed, had then joined the Union and
had been working for it since that time. Conger told Greuel if he wanted to discharge
him over the Union to go ahead. Greuel replied that he did not have to do it
because of the Union but could call it something else.
Greuel then went on to tell Conger that the people in his department had turned
against him, Greuel, and that ever since the Union started he could not get anything
done. Conger said that the employees had not turned against Greuel and, when
asked by Conger, Greuel admitted that Conger had not slowed down in his work
and that his work was satisfactory. Greuel said that he was under a lot of pressure
and then left.
Parker, an employee in the department, was near Conger during the first part of the
Greuel conversation and he made it a point to follow the two men and to overhear
the latter part. He corroborates Conger.
Later on the same day, Greuel said to Conger that he should forget about what
had been said and that Greuel had been upset at the time and that Conger
should just go about his work.
Greuel testified that on June 22 he had told Conger that he had better straighten
up if he was going to work there and that he was on his s-t list and not to ask him
why because he knew. Greuel testified that he so spoke because Conger was leaving
his place of work too much and would spend more time than necessary at other points
with various employees. Greuel did not definitely deny that when Conger told him
that Greuel had been on him about his union activities before and challenged him to
discharge him after that, Greuel said he would not have to discharge him for that
but could call it something else. Greuel testified that he was again referring to
Conger's spending too much time away from his place of work and that he did not
mean he would fire him because of the Union or say that he would fire Conger for
his union activity.
Conger testified that on Monday, June 25, he had been working about a half
hour when Superintendent Akins came to him and asked him to come with him.13
En route to the office Akins took Conger's timecard from the rack and gave it to
White when they arrived. White said to Conger that he had been hearing bad reports
about him, that Conger had been threatening White's employees. Conger said that
White knew him better than that. White reiterated the reports that Conger had
been threatening employees and making them sign union cards. When Conger denied
this White said he had a witness to the fact. White said he was discharging Conger
for that reason. Elwanda Johnson was apparently within hearing distance and White
instructed her to prepare Conger's check. White then said to Conger that they did
not have communism and that he would not tolerate anyone running over his em-
ployees. Conger again denied running over people but White said he had witnesses.
During a brief interval while White was out of the room, Johnson, who knew
Conger, said that she would not have thought he would have gotten into such a mess;
18 The account of the events of June 25 Is not controverted in any material respect.
ED WHITE JUNIOR SHOE COMPANY 413
she said that we do not have communism and you cannot force people around here
to do things. Conger denied forcing anyone . Johnson said that Conger went to
church and then went and did what he had done. Conger said he lived up to his
church 's principles but Johnson advised him to brush up on his Bible reading. She
then gave him his check.
On June 29 White sent a letter to all employees with regard to their impending vaca-
tion and also referring to the union drive. He mentioned , inter alia, that in the past
a union had represented the employees and had won two elections . But, "they
simply dropped out, quitting because you employees were not interested in their
methods." The letter also stated that the union issue in the current campaign would
ultimately be settled if and when the Government held a secret election; the readers
were told "no one has a right to put pressure on you or to threaten you in any way.
I fired Gerald Conger because he was threatening physical violence to some of our
employees and I will never tolerate that from anyone."
White, who made the decision to discharge Conger and who did discharge him,
was the key witness on this matter. There were variations and inconsistencies in parts
of his testimony on direct and on cross-examination and in statements made in a
July 20, 1962, affidavit. For instance, whereas at one point White said that he had
talked to Brown and Clements before discharging Conger, he ultimately admitted
that this was not the fact. I have taken into consideration these variations in testimony
and have set forth hereinafter White's definitive and ultimate contentions regarding
the factors in the discharge.
The consistent position of White has been that he discharged Conger for threat-
ening physically other employees to force them to sign union cards or to support the
Union. This is what was told to Conger by White on June 25; it was stated in the
June 29 letter and in White's affidavit of July 20 as well as at the hearing. Variations
occurred with respect to the sources of White's information and as to whether White
was basing his action on one, two , or more instances of what he regarded as Conger's
misconduct.
White testified that he handled the Company's labor relations and he received
reports every morning from his two superintendents , one of whom was Akins. He
stated that he was well informed as to what was going on in the plant.
The witness ultimately testified that he discharged Conger because of information
received from employee Liva Jones ". . . that cinched the case. . White was
then asked if he could "recall any other source of information which was involved
in your decision , or was it solely Mrs. Jones."
A. Well, it would be hard to explain, so I will just leave it that way-Liva
Jones.
Q. And she was your only source of information?
A. No, but I can 't answer for the reason that it is so complicated . I mean,
it would-over a period of time, you know, you hear things.
The witness then went on to state that he regarded Jones as reliable and he said that
the week before he had heard that employee Clements had considered that he had been
threatened . The reason he did nothing regarding Conger when he heard about
Clements was, "Well, I just didn't believe all of it then" but that the report he received
from Jones on Monday , June 25, was the "clincher" since he regarded Jones as
wholly reliable . It may also be mentioned that in the course of his testimony,
White had stated, without specificity, that he had received reports that Conger had
been talking and "goofing off" a lot and had been threatening people.
Since White has referred to Clements as a background factor as distinguished
from the proximate or real factor in the discharge we will consider the evidence
regarding Clements.
Clements is an employee of Respondent who has also been a preacher for 8 years
and pastor of a local church for 1 year. My impression of Clements as a witness
was that he endeavored to tell the truth . He appeared to me to be a man of limited
formal education and to be relatively unsophisticated, neither of which characteristics
is any reflection upon him as an individual . He had told Conger early in the union
campaign that he did not want to join the Union because he was a pastor and
because of his loyalty to White. Thereafter, while Conger may not have asked
Clements directly to sign a union card , I find that on several occasions he did talk
to Clements about the Union. Synthesizing the testimony of Clements and Conger,
I find that in a period shortly before the latter 's discharge , he and some other em-
ployees, including Clements, were on Respondent 's dock during the break period.
With the exception of Clements those present were apparently union adherents.
Conger told a story about another plant where a nonunion or antiunion employee was
discharged as the result of a letter ; the discharge came about when the union people
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wrote a letter to the employee, addressed to the company office, thanking him for
his help in promoting the Union, which was, of course, an untrue statement. After
telling this story Conger or one of the other men asked Clements what he would do
if that happened to him.
This story, aforedescribed, caused genuine concern in Clements personally and
when the break was over and he had returned to his place of work, he reported the
conversation and story to his foreman, Greuel. He told Greuel that some of the boys
were trying to scare him into the Union and were trying to get him to sign a union
card.14 Greuel confirms this testimony and states that while Clements did not name
Conger he pointed to where Conger was working. Greuel states that he then reported
the matter to Akins but did not name Conger. Akins testified that he relayed the
report to White. White testified that he had many reports from Akins but believed
that he had learned about the Clements matter from Elwanda Johnson.15
We come now to the Brown incident which White states was the proximate and
real cause of Conger's discharge.
Brown was an employee in the same department as Conger. He was called
as a rebuttal witness by the General Counsel. As a witness he was discernibly nervous
and appeared conscious of the conflicting factors that were present in the issue of
Conger's discharge. He testified that one day before the discharge of Conger, he
and others, including Conger, were on the plant steps, apparently during a break
period.16 Conger came over to Brown and said he had something for him. He then
produced a union card. Brown said he did not want "to get mixed up in that stuff."
Conger replied, "Well, we have ways of making you sign." Brown testified that he
again stated that he did not want to sign the card and after some conversation about
the Union he did sign it.17
Apparently later on this same occasion, Brown said that he told the group, "If
you get a union, the first thing they are going to do is call a strike, I figure." Someone
in the group said, "Well, we might" and Brown said, "Well, if you do I couldn't strike
with you." As Brown proceeded to leave someone in the group, whom Brown could
not identify said, "Well, if you don't by the time we are through with you, you
would wish you had." Brown then left.
Conger denied that he told Brown that if he did not sign a card, "By the time we
get through with you, you will wish you had." 18 Conger stated that during a dis-
cussion of the Emerson strike Brown had said that if Respondent's plant was struck
he could not afford to strike and asked if that would hurt the Union. Conger said
it might but if they all went along with the Union it would help them and he expressed
doubt that there would be a strike. The witness said he did not recall any statement
being made that if Brown did not strike he would wish he had before they were
through with him.
Although Conger's version of some of the details of the strike discussion may
be correct, I credit Brown's testimony regarding what Conger said to him when
Brown expressed an unwillingness to sign a union card. I also credit Brown's testi-
mony as to what someone in the group said when he had stated that he would not
join a strike. An important factor in this credibility resolution is Brown's testimony,
substantially corroborated by Liva Jones, as to what occurred in the home of Brown's
mother apparently a few days after the above Conger-Brown incident and shortly
before Conger's discharge.
Present on the aforementioned domestic occasion were Brown, his wife, his mother
and father, Liva Jones, and her husband. Mrs. Jones was an elderly lady who was
' After Conger's discharge , he chanced to meet Clements in town. In the course of the
conversation, according to Conger, he told Clements that he did not understand where
White got the idea that Conger had threatened anybody. Clements said, "You threatened
me" and reminded Conger of the story incident above.
15 As has been mentioned, Johnson was manager of the payroll section in the main
office. Her place of work was apparently close to or adjacent to White's office She
appears to have been close to and well informed as to what was going on generally in
the Company.
10 Practically none of the witnesses appeared able to fix the dates of various incidents.
They clearly occurred between June 9 and 25 , 1962, and I would infer that the principal
Clements and Brown incidents occurred within approximately the week prior to June 25.
"At this juncture the General Counsel, who was examining Brown on direct examina-
tion, then asked, "Was there joking going on, and all?-A I took it just kidding"
Is The testimony reads as follows:
A. No sir.
Q. You did not?
A. No sir, I don 't recall.
ED WHITE JUNIOR SHOE COMPANY 415
a close friend of the Brown family for many years. She lived about three doors
from the Browns and was a frequent visitor. For the past 10 years she had been a
cook's helper in Respondent's plant cafeteria or lunchroom.
Brown states that on this occasion he told Liva Jones what Conger had said to
him about having ways to make him sign a union card when Brown had expressed
to Conger a reluctance to sign.19 According to Brown, Liva Jones then suggested
to him that he tell White about the matter but he said he did not want to do this. In
all essential respects the testimony of Liva Jones corroborates that of Brown as
to what transpired in the Brown home. She testified that when she told Brown
to report Conger's statements to White, Brown said he was afraid to do so.
Liva Jones impressed me as a credible witness 20 and her corroboration of Brown
has been a factor in my crediting Brown as to what Conger had said to him. I find
it hard to believe that Brown, in the privacy of his mother's home and with his
closest relatives (mother, father, and wife), and old and close family friends, would
have stated that Conger had said to him what Brown and Jones testified to, if such
was not the fact.
Having considered what transpired between Conger and Brown and Brown and
Jones we now turn to Respondent and its agents.
Brown testified that Akins came up to him and said that he had heard that Brown
had been threatened. Brown replied that "they" told me that if there was a strike
the ones who did not strike would be the first to lose their jobs. Shortly after the
Akins conversation, according to Brown, Greuel asked him why he had not told
him about this. Brown replied that he had not considered it that important.
Since Brown did not fix the date of the foregoing it may be that it occurred prior
to the weekend of the Brown-Jones conversation but subsequent to the incident
between Conger and Brown above described. I have some difficulty in knowing
how Akins would have known anything that would lead him to say to Brown that
Akins heard that Brown had been threatened. A question also arises as to why
neither Akins nor Greuel would not has asked Brown who was involved or who
"they" were, unless Brown had mentioned a name or names. Possibly, it was as-
sumed that the union adherents in the department were involved, including the
leader, Conger.
Greuel testified that Brown told him about Conger's remarks or threats, that they
would fix it so that Brown would be sorry if he did not sign a card, and about
Brown's statement regarding strikes. Greuel states that he reported Brown's remarks
to Akins. The latter confirms this and states that he in turn reported to White who
told him to check the story with Brown. Akins states he then talked to Brown who
told him that Conger had warned him that they would make it rough on him if he
did not sign up in the Union. Akins asserts that he reported this to White. White
testified in a rather general way that he was sure that Akins had reported the Brown
matter to him but he did not believe that he had asked Akins to check with Brown.
From the foregoing testimony of Brown, Greuel, and Akins there were admittedly
conversations between Brown and Greuel and Brown and Akins on the subject of
threats to Brown. How much Brown told the two supervisors is in dispute but I
am persuaded that whatever it was it was reported to White by Akins. This is the
way Respondent operated, with the superintendents meeting and reporting daily to
White. In view of White's testimony, there is substantial doubt that he asked Akins
to talk with Brown. I have some doubt as to exactly what Brown had told Greuel
and Akins but it was at least on the topic that union adherents among the employees
had said things to Brown designed to pressure him into signing a union card or
going along with the Union in such course of action as the Union might initiate.
On a conversational subject like the foregoing I find it difficult to believe that
Brown would have not mentioned some names either in the course of his remarks
or that he would not have been asked for names if he did not use them originally.
Moreover, in view of Respondent's knowledge of Conger's conspicuous role in
securing adherents for the Union, it is doubtful that Respondent would not have
suspected Conger in the foregoing connection. In any event, aside from raising
definite questions of credibility in my mind, the Brown-Greuel-Akins conversations
were not the crux of this case, and this is so whether Brown's conversation was as
limited as he claims or was as testified to by the supervisors.
White's testimony is principally that on Monday, June 25, he had heard from
Elwanda Johnson that Liva Jones had referred to what Brown had said to her
'° Brown's reference to what Conger had said, occurring as it did in a private meeting
with his family and old family friends, does not indicate to me that he regarded Conger's
statement as "kidding" or that he had taken the matter lightly
21The General Counsel elected not to cross-examine Jones in any respect.
416 DECISIONS OP' NATIONAL LABOR RELATIONS BOARD
over the weekend 21 White then, personally , went and talked to Liva Jones. He
asked her to tell him what had happened at Brown's house or at Brown's mother's
house. White states that Jones told him that Brown was worried over threats from
Conger because Conger had threatened him with trouble and that she used the term
"beating him up " in describing this.
Liva Jones testified credibly that White asked her if she had heard Brown say
anything about Conger and that she replied that Brown said "Gerald Conger tried
to get him to take and sign a union card and told him that he might as well sign
it because they would make it so hard on him that he would wish he had." At the
hearing the witness said that Brown had told her that Conger warned him that if
he did not go along that he would whip him.
D. Conclusionary findings regarding Conger's discharge
The evidence persuades me that Conger, when Brown expressed an unwillingness
to sign a union card , told Brown , "Well, we have ways of making you sign ." There-
after Brown signed . It is my opinion that Brown was subjected to more than per-
suasion and that he regarded the remark as a threat , the potency of which was
probably greater in view of its lack of specificity . For Brown , as the individual
that he was, and he appeared to be a fairly average member of the community and
of Respondent 's work force , Conger 's statement was a threat , either physical or of
some other undue and unwarranted nature. Brown subsequently brought up the
matter in a family gathering . It also appears that the surrounding circumstances
in which Conger 's statement was made were not reassuring to Brown. Someone in
the union group that was present , after Brown said that he would not join a strike,
said he would wish he had before they got through with him. The speakers were not
identified and it could have been Conger or anyone of a number of people present.
But, in context, the remark was in the setting in which Conger had first made a some-
what similar remark to Brown when the latter was unwilling to sign a union card
and Conger was the leader among the union adherents and the principal union activist.
I also believe that White, despite the diversity and variations in his testimony,
became informed of the Brown incident, that he believed it was true, and that his
belief was reasonable in all the circumstances . In my opinion , White was genuinely
incensed, not because Conger was a union adherent or because he espoused the Union
to others, but because he had exerted undue pressure and had threatened an employee
in order to promote the union cause. I find that Conger was discharged for the
aforementioned reason.
In analysing the evidence regarding Conger's discharge I have given careful
consideration to the violations of Section 8(a)(1) of the Act that have been found.
While Respondent is legally responsible for the statements of Assistant Foreman
Cox, the record as a whole has not convinced me that Cox's statements were crucial
indicia with regard to Conger's discharge nor was Akins' action on June 19.
Greuel's remarks to Conger on June 22 were on their face, and, as explained or
unexplained to Conger by Greuel, violations of Section 8(a) (1) and I so find.
I am aware that the discharge took place on the following Monday, June 25.
Greuel, however, at that time, in my opinion, had in mind either the report he had
received from Clements about what Clements, at least, considered to be Conger's
undue pressure upon Clements; or he had in mind what he believed was the fact
that Conger was discussing or promoting the Union during working hours; or both
of the foregoing; or Respondent and Greuel were planning to discharge Conger
because he was one of the leaders in the union movement; or Respondent and Greuel
did not like what they heard regarding the pressure exerted on Clements nor did
they like the union talking during working hours in violation of a rule that super-
vision took seriously and sought to enforce in the plant; and, in connection with the
last-mentioned hypothesis, the further logical hypothesis is that Respondent and
Greuel had determined to discharge Conger if and when they secured firmer
evidence that Conger thereafter unduly pressured employees into the Union or
violated Respondent's rules and standards.
It is my opinion that the evidence shows that as early as June 9, Respondent sus-
pected Conger of promoting the Union. This was prior to Conger's union alignment.
Respondent was aware of the union movement and I am convinced that Conger's
activity was known. Conger did not seek to conceal his union activity after he
joined the Union on June 9. He was not laid off during a departmental layoff
about a week before his discharge. Nothing was said to him until June 22 and by
that time Respondent had had reports that Conger was exerting pressure on at least
211 have taken cognizance of White's version of this aspect in his July 20 affidavit,
which is different from the above testimony
ED WHITE JUNIOR SHOE COMPANY 417
one reluctant employee who did not want to sign a union card and that Conger was
talking during working hours about the Union.
and IIt is my opinion that White did not want the Union to organize his plant 22
believe that as far as possible he was endeavoring to have as much information as
he could obtain about the status or the success or failure of the union drive and
of the participants therein. I am not convinced that White would have discharged
Conger on June 25 on a pretext or otherwise simply because he knew, as he did,
that Conger was outstandingly active in the union campaign. In my view it may be
that White was not sorry or was glad that he had been given a valid reason for
the discharge but I am not persuaded that the reason for the discharge was a
pretext. It was a genuine reason and White actually was incensed about the Brown
incident and but for that reason, in the background of the Clements affair, he would
not have discharge Conger when he did.23 There is obviously no point in speculating
whether, if events did not occur as they did, Respondent would or would not have
discharged Conger in July or August or some other time for some specious reason or
whether the contrary would be true
On all the evidence and for the reason stated, I recommended dismissal of the
complaint allegation with respect Conger.
5. The discharge of Donnie Janes
Janes commenced working for Respondent on July 10, 1961. He was discharged
July 12, 1962. When he first started with Respondent he was an order filler in the
shipping department. Janes testified that he believed that he was an order filler for
3 or 4 weeks although it was possibly longer. Thereafter he became a checker in
the same department. The duties of the checkers, as the name implies, is to check
the orders for accuracy. Thus, an order for a certain number, size, color, and style
of shoes is received by Respondent from a customer. The order filler fills this
order and the checker compares the items specified on the order with the items
that the order fillers have compiled in response to and in fulfillment of the order.
In other words, if an order is for 50 shoes there are a certain number of sizes, styles,
0i See, for instance, the June 29 letter.
=3 The following is an observation regarding the conversation between Conger and
Elwanda Johnson (as described by Conger) when they were alone in the office on June 25
at the time of the discharge. In itself it is a minor incident but one of many factors that
I have weighed.
I regard Johnson as a loyal adherent of White and I would not expect that she would
do or say anything inconsistent with White's position regarding Conger. On the afore-
mentioned occasion, described earlier in this report, I would have expected that Johnson
would either have had no conversation with Conger or would have simply said, hello, or
something like that The most I would have expected would have been some remark like,
you should not have threatened employees or something similar that simply echoed
White's position. Johnson, of course, did do the latter but not merely this. Instead, she
launched into a rather private and personalized rebuke to Conger As is true in many
communities like Paragould, most of the people knew a good deal about each other.
Johnson knew that Conger was a churchgoer She said to him on June 25, "Gerald, you
go to church and everything and claim to be a lot" morally and then you get involved in
something like this She stated, "This is not communism and you cannot force people to
do things here" When Conger replied that he did go to church and lived up to his
religion, Johnson told him that he had better brush up on his Bible.
The point is, of course, not whether Johnson was right or wrong in what she said but
that her personalized exegesis to Conger bespoke an actual belief on her part that Conger
had tried to force people to sign a union card or to force people into the Union and that
that was why he was being discharged. She did not say that she did not believe that a
religious man like Conger would have joined the Union or would have worked for the
Union. She chided him about forcing people and told him, in effect, that the company did
not tolerate such action. I doubt that Johnson would have gone into this ad hominem
discussion of principles and religion and Conger's need to brush up on the Bible if she
believed or knew that the entire matter of Conger's action was untrue and was a sham
being used by the Company. This conclusion has nothing to do with assigning any accolade
of character to Johnson I simply believe that her conversation with Conger appears to
have reflected her actual views. Her views would not in themselves be any more signifi-
cant than those of some other employee except for her strategic location in the office, her
awareness of what was going on, and her proximity to the seat of decisions and power,
President White. Further, if her private conversation with Conger was a contrived and
planned matter intended to result in the kind of analysis that I am here making, it would
indicate a mind of awesome prescience.
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and colors specified and it is the duty of the checker to verify that what the factory
is prepared to ship is in conformity with the order . After completing his work the
checker signs the order sheet or some comparable document . There are also daily
work sheets for each of Respondent 's approximately 400 employees.
Janes joined the Union on June 9 and thereafter he was on the organizing com-
mittee together with Conger and nine other employees . Janes testified that he
talked to all the people in his department about the Union and secured 25 signed
cards. He attended all committee meetings in the motel that served as headquarters
for the union representatives and he also attended the June 19 open meeting. The
committee members had been told by Cloinger , the union organizer , that, if anyone
could not attend a committee meeting and had signed cards to turn in, they should
give them to Janes or Conger for transmittal . Assistant Foreman Cox admitted
that he knew that Janes was working to promote the Union and the June 21
conversation , between Underwood . Foreman Morris , and Janes , illustrates that
Morris was aware of Janes' attendance at the June 19 union meeting and that
Janes was prounion.
As Janes described his discharge on June 12, 1962, Morris came up to him and
said another order that Janes had checked had been returned by the customer.
Morris said that White was not pleased about it and Morris was discharging Janes.
Janes states that Morris said he always liked Janes and he was a good worker but
there was nothing he could do about it. Janes asked to see the order referred to and
Morris showed it to him. In an order of 200 or 300 shoes 1 pair was wrong.
The witness , Janes , testified that in the entire period when he worked as checker
no more than 15 orders checked by him had been returned . Janes stated that the
only thing ever said to him by Morris when a wrong order came back was that he
should be more careful. He also said that when any checker had been discharged
in the past the individual had always been warned beforehand except in one instance
when a checker had shipped a whole order wrong and had been terminated on the
spot. Before July 12, Janes asserted that his last wrong order was about a month
previous . Regarding that occurrence , he was asked whether Morris or Cox had
spoken to him. He replied:
Well, I don't remember . Generally they tell us to be more careful I wouldn't
say he said it then He might have just showed it to me, but I don 't remember
exactly if he said anything or didn't
The witness then denied that he had been warned about being discharged . He stated
that he did not believe that he had any more wrong orders than other checkers. In
the past , he stated , Morris had told him on one occasion that he had 11 wrong orders
returned and on another occasion that the number was 21.
Janes testified that on the day of his discharge he was not actually checking but
was working in the stockroom . This, he said, was because it was a slow period.24
During this period Janes testified that he was given other duties but would be as-
signed to do checking at intervals when the department got behind in checking. He
was then asked , "How many others were checking at the time you went in there to
help out in checking . A. Either one or two One really, that I really know of that
was doing it all the time " The witness likewise testified that on the day of his
termination there were two other returned orders besides his own. Mary Martin
has been employed by Respondent over 10 years . She worked in the returned goods
department and her assistant was Wanda Smith . When a customer returns an order
or part of an order as incorrect . Martin or Smith investigate to see whether Respond-
ent had made an error . If this is so, they ascertain where the responsibility rests
and uncover the fact by consulting various documents. Then, if, for instance, the
error is found to have occurred in Morris' department , one of these women calls the
matter to his attention and he advises the employee responsible Martin maintains
a record of returned orders and had a record of Janes' returned orders, i.e ., wrong
orders for which he as checker was responsible.
Martin's records show, and her testimony is, that Janes, as checker , was responsible
for 24 wrong orders that were returned She testified that this was a much greater
number of mistakes than those made by any other checker they had ever had.
The witness , Martin, stated that on June 15, 1962 , Respondent received back
from a customer 12 pairs of shoes that did not conform to the customer 's order.
The original order had been shipped by Respondent on March 27, 1962.25 Janes
21 According to Janes, the rush period was about July to October
W The period of time that elapsed between the time of shipment to a customer and the
time of the latter's return of the incorrect order varied . Some customers would speedily
discover an error whereas others would not discover one or call it to Respondent 's atten-
tion for several months.
ED WHITE JUNIOR SHOE COMPANY 419
had been the checker on this order. Martin's assistant , Smith, took the above re-
turned order to Morris as was customary in such circumstances. Smith later told
Martin that on the June 15 order that she took to Morris he instructed Smith that
if another wrong order of Janes came back it should be investigated thoroughly and
if the error was confirmed it should be brought to Morris himself. Morris told Smith
that if that occurred he would have to let Janes go because of the number of errors
he made.
Smith's testimony corroborates Martin on the last-mentioned matter. Smith states
that when she brought Janes' June 15 returned order to Morris he told her to bring
the next mistake to him, Morris, and that he would have to let Janes go for so many
errors.26 Morris also, on this occasion, told Smith that he was going to talk to
Janes about the matter. Later, Morris advised Smith that he had spoken to Janes
as he said he would. As we have seen, Smith reported to Martin what Morris had
said regarding any future returned orders of Janes Smith said she did this in case,
she, Smith, might not be at work when the next returned order of Janes came in.
Foreman Morris testified that when Wanda Smith called Janes' June 15 returned
order to his attention he told her to bring the next one to him and he would have
to discharge Janes. Morris also advised his assistant , Cox, of the foregoing and
testified that he warned Janes on the same day that the next returned order would
result in his discharge. Cox testified that Morris did speak to him as aforedescribed.
Martin and Morris state that the last wrong order of Janes had been shipped to
the customer in California on January 5, 1962. Wanda Smith testified that after
she received the above-mentioned instructions from Morris regarding the June 15
returned orders she took the next returned order to Morris and that was when Janes
was discharged.27 One pair of shoes was wrong on this last order.
Morris testified that he discharged Janes because of the excessive number of
mistakes he had made as a checker and for no other reason. He stated that he had
tolerated Janes as long as he did because of personal reasons Morris said he was
a personal friend of Janes, that Janes' mother and sister went to the same church
as Morris, and that Morris had gone to church with Janes and had played baseball
with him.28 The foreman said that Janes' next to last mistake was particularly bad
and Morris then decided that he would not be able to tolerate subsequent mistakes.
He stated that at least three other checkers had been discharged in the past because
of mistakes, the last one, Spicer, about a month before Janes.29
Martin's office record of returned goods was identified as a General Counsel
exhibit but was not offered in evidence. However, Martin referred to the book in
the course of her testimony and it was inspected by both counsel in the course of
the hearing. The testimony of Martin and Morris, on the whole, satisfies me that
Janes made more mistakes than other checkers and that two discharged checkers,
Spicer and James, had made fewer mistakes than Janes
In the course of cross-examining Martin, the General Counsel adduced testimony
that Martin kept only a record of returned goods, including the names of the em-
ployees responsible, but she had nothing to do with daily production records Re-
spondent did have daily production records of each of its employees and these
production records of the checkers would show how many shoes each checked per
day in any given period. The General Counsel then asked counsel for Respondent,
while Martin was on the witness stand, to produce records showing daily production
of each checker and the number of orders shipped. Counsel for Respondent stated,
inter alia , "It is our understanding that the Board has power of subpoena duces tecum
These gentlemen have known for several weeks we were going to have a hearing
today, and if there was any records to which they are legally entitled, they have the
power to produce them by subpoena duces tecuin, and have not done so. Also, we
do not at this time know how accessible these records are. .. .30 So, under those
20 Ordinarily Martin or Smith brought rejected orders to either Morris or Cox , whoever
was available.
"Martin was on vacation from June 30 to a Wednesday after the July 4 week. This
would presumably be July 11. At one point in her testimony Martin said that the last
returned order of Janes was in June but she eventually said it was July She admitted
not knowing the exact date of the discharge.
28 These assertions were not disputed
29 Janes testified that checkers Spicer and James had been discharged and that checker
Martin had quit during the year that he had been employed
00 Respondent's representatives estimated that it would take about 2 days to secure and
compile the records This would have entailed a postponement of the hearing since the
aforementioned matter first arose on the second day of the bearing which concluded in a
total of 2 days
708-006-64-vol. 141-28
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances , we feel that we should not be obliged to produce the records, but we
will do so if the Examiner so orders ." The Trial Examiner stated : "Well, I won't so
order. I will assume that both counsel are familiar with the processes to which they
must resort if they want to have the documents."
Thereafter the General Counsel did not subpena the records nor did Respondent
produce them Also, thereafter, Morris testified, without objection, that checker
Crawford had been checking 2 years, and while Janes was employed, and that Craw-
ford checked more shoes daily, weekly, or monthly than Janes. Crawford's mistakes
totaled five or seven. Called as a rebuttal witness Janes stated that he checked more
shoes than the others, including Crawford. In surrebuttal Morris testified that the
work was distributed evenly among four checkers. Respondent's counsel then asked
him if the record of all the full-time checkers, during the same period, showed that
Janes' record was better or worse than the others. The General Counsel objected on
the ground that the records would be the best evidence . Respondent 's counsel stated
that since the witness was familiar with the records he believed that he should be
allowed to testify what his recollection was of the records. The Trial Examiner sus-
tained the objection on the ground that the records themselves would be the best
evidence. Respondent then made an offer of proof that Morris had compared the
records of the checkers and that they showed that Janes made many more errors than
other checkers performing substantially the same amount of work.
In his brief, the General Counsel states, arguendo, that it is no defense that Janes
made a greater number of mistakes than other employees unless it is shown that the
latter performed the same amount of work as Janes. The General Counsel asserts
that an adverse inference may be drawn from Respondent's failure to submit the
checkers ' production records. He also states that Respondent's evidence has not
overcome the prima facie case of the General Counsel.
The making of a prima facie case , in my opinion , is not a circumstance that is dis-
positive in all situations . Depending on the issues, a prima facie case may some-
times consist of limited evidence. The concept is simply that the protagonist has
made out enough of a case to warrant its submission to a jury, or, in an administra-
tive proceeding , such as here, that a motion for dismissal at the end of the General
Counsel's case in chief would be denied. Unless the Respondent thereupon offers no
defense or a defense of any relevancy or probative value, the prima facie case concept
is no longer meaningful. What we are ultimately interested in is whether the Gen-
eral Counsel has sustained his burden of proving by substantial evidence on the rec-
ord as a whole that the alleged violation has occurred.
Prescinding for the present from the General Counsel 's alternate contention that
regardless of Janes' errors they were not the real reason for his discharge or that there
was a mixed motivation on Respondent 's part , the question of Janes' errors was a
principal issue. The precipitating cause of the discharge was the July 12 return of an
order. Janes was so informed by his foreman when he discharged him. I credit
Martin, Smith, and Morris that on the prior error of June 15 Janes was warned and
that this was more than a routine warning. The June 15 error of 12 pairs of shoes
in one customer 's order appears to have been substantial . Errors in the orders obvi-
ously were in the important area of customer relations and could or would affect the
customer 's business which in turn would affect the Respondent's business with the
customer.
From July 12 , the date of discharge , therefore , Janes was aware that Respondent
had taken its position on his errors as checker . In interviewing Janes pursuant to the
charge that had been filed the General Counsel must have become aware of Respond-
ent's position. Further, in the investigation of the charge I am confident that in inter-
viewing Respondent for its side or for its response to the charge , Respondent stated
that Janes' errors as a checker were the reason for his termination. There is no indi-
cation in this record that Respondent refused to discuss the case with the General
Counsel prior to the hearing and, such indication, as there is, to the contrary.
In the instant case both parties were represented by competent counsel . The issue
of the production records of the checkers was brought into focus at the hearing and
the parties elected to make the record in its present form. Under these circumstances
I was not disposed nor am I disposed to tell counsel how they should try their case.
Nor was I disposed to postpone the hearing, absent a request by either party, to secure
evidence which either party could have produced or could have secured both prior to
the hearing or at the hearing.
The General Counsel 's case with respect to Janes was that he was an active union
protagonist . Judging from the number of signed union cards that he secured, Janes
was second to Conger in this activity since between them they accounted for slightly
more than half of the signed cards procured by the Union. There is no evidence to
show that Respondent knew precisely that Janes was as active in the Union as he
ED WHITE JUNIOR SHOE COMPANY 421
was but the evidence satisfies me that Respondent knew he was prounion and was
closely associated with the union activity.31 Janes' discharge is in the context of all
the other evidence in the case previously discussed.
Respondent 's position is that Janes was terminated because of his excessive number
of errors as a checker . In my opinion the evidence shows that Janes made substan-
tially more errors in checking in the year or 10 months in which he performed this
work than did the other checkers. At least two and possibly three checkers had
been discharged for fewer errors than Janes' total. I find that on the occasion of
the return of an order checked by Janes, in which there were 12 wrong pairs of shoes,
he was warned by Morris on June 15. He was discharged when the next order he
had checked was returned on or about July 12. There was one wrong pair of shoes
in that order.
The General Counsel apparently contends that if Janes made errors they were con-
doned by Respondent and that previously tolerable errors or one error on July 12
were or was seized upon as a reason for the discharge because of Janes' union ac-
tivity. I find plausible Foreman Morris' explanation that for personal reasons, in-
cluding church association with Janes and members of his family and personal asso-
ciation, he had been tolerant of Janes. It is difficult to conclude that Morris was
satisfied with a continuance of errors and I find that the relatively serious error of
June 15 led him to warn Janes as he testified. There is of course room for suspicion
but on the whole I do not believe that the suspicion prevails.
Then there is the contention, based on Janes' rebuttal testimony, that he checked
more shoes than any other checker. He stated that he and, apparently, Crawford
were the only full-time checkers although at another point he stated that in the
slow season he did other work and only helped out on checking when "they" got
behind. I also note that in his testimony prior to rebuttal Janes said that when he
was hired there were four full-time checkers and Morris testified that at the time of
the hearing there were four full-time checkers. Because of discharges various
checkers were no longer in Respondent 's employ but it would seem that if the ap-
parently normal complement was four this would be the norm . Respondent had
busy seasons and slack seasons and presumably all checkers did, on occasion, per-
form other work. Other checkers, exposed to these normal conditions, had been
discharged because of errors . I would assume that they did approximately the same
amount of work and Morris so testified regarding the work distribution among the
full-time checkers . He also testified that one checker , Crawford , at all times per-
formed more checking than Janes . Aside from an occasional glance at another
checker's worksheet ( there is no evidence or intimation that such information was
freely disclosed or that the employees had a practice in this nonunion plant of com-
paring worksheets ) or general observation , an employee would have little basis
for knowing the comparative production records. Also, on occasions when Janes
was performing other work and he returned from time to time at brief intervals to
help out on the checking , it would seem that someone else had been or was checking
and for the day had performed checking in an equal or greater amount than Janes.
Although in some respects I did not regard Morris as a reliable witness , I am not
persuaded that Janes ' testimony on comparative production warrants credence.
We come now to the matter of whether Respondent's failure to produce records
showing whether or not Janes performed more checking work than other checkers
and, hence , his errors were not proportionately high , warrants an adverse inference
as to what the records would show. It is my opinion that such an inference is neither
automatic nor mandatory but depends upon all the circumstances of the particular
case. In many situations such an inference is validly made but the cardinal con-
sideration, I believe, is whether the trier of fact concludes that the natural and most
logical reason for the nonproduction is the fact that the records are adverse to the
party that does not produce them.32
81 E g., the conversation between Underwood , Morris, and Janes ; also , the conversation
on the dock when Janes did some "popping off" about the Union and Cox made a remark
about someone being discharged because of the Union.
11 ". . . the failure to bring before the tribunal some circumstance , document or witness,
when either the party himself or his opponent claims that the facts would thereby be
elucidated, serves to indicate , as the most natural inference , that the party fears to do so,
and this fear is some evidence that the circumstance or document or witness, if brought,
would have exposed facts unfavorable to the party. These inferences, to be sure , cannot
fairly be made except upon certain conditions ; and they are always open to explanation
by circumstances which make some other hypothesis a more natural one than the party's
fear of exposure. . . . " Wigmore, Evidence $ 285, p. 162, vol. II.
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have considered the fact that Respondent did not produce the aforementioned
records. This fact has been weighed in the context of the entire record and I do
not conclude that the reasonable or most reasonable inference is that the records
were adverse to Respondent. I obviously do not know what the records would show
but from evidence admitted in the record I am not inclined to believe that of all
Respondent's checkers in the last year or two, some of whom have been discharged,
the records would show that Janes was the outstanding checker in amount of work
assigned to him and performed by him.
As to why Respondent did not produce the records I find some light in the cir-
cumstances. In my opinion it was reasonably apparent that when the General Coun-
sel, in the course of the hearing, asked Respondent to produce such records, Re-
spondent's counsel declined because he was irritated that the General Counsel had
not previously called upon Respondent to produce the records nor had he subpenaed
them before the hearing for production at the hearing. The records were not im-
mediately available; they would have to be compiled and a postponement of the
hearing for 1 or 2 days would have been entailed. While I do not agree that the
aforedescribed reaction of counsel was a legally sound position, and I believe that
he would have been in better posture if he had produced the records after such
adjournment as was necessary (or better still, if he had the records with him), I do
not infer that the above reaction was because the records were adverse to Respond-
ent's position. In the same connection and in the same context counsel stated that
the General Counsel could subpena the records if he wanted them and he also
stated that he would produce the records if ordered to do so by the Trial Examiner.
I cannot conclude that these last-mentioned assertions were but a well-calculated
bluff on Respondent's part. The odds were substantial, in my opinion, that either
alternative would have been acted upon and that the records would thereby have been
produced. Again, regardless of whether the alternatives were adopted, the Re-
spondent would have been better served if it had produced the records in support of
its position, but I do not infer that failure to do so in the circumstances of this case
was because the records were known to be adverse 33
With regard to the contention that regardless of Janes' record as a checker it was
not the cause of his discharge or that there were mixed causes for such action, one
being his union activity, I am not persuaded by the evidence. Suspicion there may
be and I have endeavored to scrutinize the record with care and with discernment.
I find the evidence inadequate and that the burden of proof has not been sustained
by the General Counsel with respect to Janes and dismissal is recommended.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of 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 thereof.
V. THE REMEDY
It having been found that Respondent has engaged in unfair labor practices in
violation of 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.
s3 It is perhaps well to make clear that the production records consisted of daily work-
sheets of all Respondent's employees Among these were the worksheets of about 1l
checkers over a period of a year or more that would show the number of shoes checked by
each The records in the returned goods department, which were used by witness Martin
and, to some extent by Smith, were referred to at the hearing and were on hand
There was another (a third) set of records on the checkers that Foreman Morris himself
kept Morris testified that he had gone over these records before the hearing but that
when he had looked for them the day before the hearing they had disappeared from his
desk in the plant. I can only say that I have carefully considered this aforementioned
circumstance. Whatever question arises, I believe, must be considered in the light of the
fact that no witness of the General Counsel had alluded to any records kept by Morris,
and, so far as appears, the existence of such records would not have been disclosed If
Respondent had not brought out, through Morris, that he had maintained such records
If Respondent had desired to act less than forthrightly it would seem that no mention at
all would have been made of Morris' records rather than to mention the records and then
falsify about their disappearance.
ED WHITE JUNIOR SHOE COMPANY 423
Upon the basis of the foregoing findings of fact and conclusionary findings, and
upon the entire record, 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 the Act.
3. By engaging in the conduct set forth under section III, above, and found therein
to be violative of the Act, Respondent has interfered with, restrained, and coerced
its employees and has thereby engaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
4. Respondent has not violated Section 8(a) (1) and (3) of the Act by discharging
employees Gerald Conger and Donnie Janes.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclusionary findings, and conclu-
sions of law and upon the entire record, it is recommended that Respondent, Ed
White Junior Shoe Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating any employee with respect to any employee's activity, mem-
bership, or interest in any labor organization in a manner constituting interference,
restraint, or coercion in violation of Section 8(a) (1) of the Act.
(b) Threatening or stating to any employee that any employee would lose his
job because of the union activity.
(c) Engaging in surveillance of any union activity or union meetings.
(d) In any related manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representatives of their own choosing,
and to engage in other concerted protection, or to refrain from any or all such
activities.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Post at its plant in Paragould, Arkansas, copies of the attached notice marked
"Appendix." 34 Copies of said notice, to be furnished by the Regional Director for
the Twenty-sixth Region of the Board, shall, after being duly signed by Respondent,
be posted 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. Respondent shall take reasonable steps to insure that such
notices are not altered, defaced, or covered by any other material.
(b) Notify the said Region Director, in writing, within 20 days from the receipt
of this Report, what steps Respondent has taken to comply therewith 35
"In the event that this Recommended Order be 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. If the Board's Order is enforced by a decree of a United
States Court of Appeals, the notice will be further amended by the substitution of the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order"
for the words "Pursuant to a Decision and Order."
5 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director for the Twenty-sixth Region, in
writing, within 10 days from the date of this Order, what steps the Respondent has taken
to comply herewith."
APPENDIX
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 National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT interrogate employees about the union activities of employees
in a manner constituting interference, restraint, and coercion in violation of
Section 8 (a) (1) of the Act.
WE WILL NOT threaten that any employee will lose his job because of union
activity.
WE WILL NOT engage in surveillance of any union activity or union meeting.
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any related manner interfere with , restrain, or coerce our
employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist any labor organization , to bargain collectively
through representatives of their own choosing , and to engage in other concerted'.
activities for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities.
All our employees are free to become , remain , or refrain from becoming or remain-
ing members of any labor organization.
ED WHITE JUNIOR SHOE COMPANY,
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.
Local 282, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and J . J. White Ready
Mix Concrete Corp . Case No. O-CC-652. March 13, 1963
DECISION AND ORDER
On March 30, 1962, Trial Examiner Paul Bisgyer issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirm-
ative action, as set forth in the attached Intermediate Report. The
Trial Examiner also recommended that the complaint be dismissed
insofar as it alleged certain other unfair labor practices. Thereafter,.
both the General Counsel and the Respondent filed exceptions to
the Intermediate Report together with supporting briefs.
The Board his reviewed the rulings made by the Trial Examiner
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 the briefs, and the entire record
herein, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the exceptions and additions noted
below.
The basic facts are not in dispute. As found by the Trial Examiner,.
the Respondent sought to further its primary dispute with White by
picketing at various construction sites and business establishments of
neutral employers while White's trucks were on their premises and
by otherwise appealing to such employers of their employees to co-
operate with Respondent in its dispute with White.
The alleged violations occurred at 11 different sites or locations.
Picket lines were established at certain of these sites, namely, at the
141 NLRB No. 31.