Edmund A. Gray Co., Inc.

National Labor Relations Board - Board Decisions

May 14, 1963

142 N.L.R.B. 590 (N.L.R.B. 1963)

590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make whole the employees named below for any loss of earnings
they may have suffered by reason of the discrimination against them:
Theresa Francis Gloria Stoddert
Mary Piche Olivia Cruickshank
Lillian Francis
All our employees are free to become, remain , or refrain from becoming or
remaining members of Local 597, Chauffeurs , Teamsters , Warehousemen & Helpers,
a/w International brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers,
of America , or of any other labor organization.
MAYER B . COHEN, BERNARD COHEN AND PEARY COHEN,
D/B/A RIVERSIDE WHOLESALE DISTRIBUTORS,
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, Boston,
Five Cents Savings Bank Building, 24 School Street, Boston 8, Massachusetts , 02108,
Telephone No. Lafayette 3-8100 , if they have any question concerning this notice
or compliance with its provisions.
Edmund A. Gray Co., Inc. and United Steelworkers of America,,
AFL-CIO. Case No. 21-CA-49f3. May 14, 1963
DECISION AND ORDER
On February 20, 1963, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, Respondent filed exceptions to the Intermediate
Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Fanning].
The Board has 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 brief, and the entire record in the
case, and hereby adopts the findings,' conclusions, and recommenda-
tions 2 of the Trial Examiner.
'Member Leedom adopts, as do his colleagues , the Trial Examiner 's finding that the
Respondent violated Section 8 ( a)(3) by terminating the employment of its female em-
ployees In view of this finding Member Leedom also adopts the Trial Examiner 's further
finding that the Respondent violated Section 8 ( a) (5) by terminating the female employees
without consulting with the Union See his separate opinion in Hawavi Meat Company,
Limited, 139 NLRB 966
2 For the reasons stated in his dissenting opinion in Isis Plumbing it Heating Co., 1318.
NLRB 716, Member Leedom would not award interest on the backpay due
142 NLRB No. 70.
EDMUND A. GRAY CO., INC. 591
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.3
3 The following shall be added to the Appendix attached to the Intermediate Report
immediately below the signature line at the bottom of the notice :
NOTE We will notify any of the above-named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This case was heard before Trial Examiner Martin S . Bennett at Los Angeles,
California, on December 3, 4, and 17, 1962, and January 8, 1963. The amended
,complaint ' alleges that Respondent , Edmund A. Gray Co., Inc., had engaged in
unfair labor practices within the meaning of Section 8(a)(1), (3 ), and (5) of the
Act by unilaterally terminating six employees, Dolores Williams, Marian Flinn,
Audrey Tosh, Martha Williams, Madlene Williams, and Elvira Beltran, shortly after
.the certification of United Steelworkers of America , AFL-CIO, herein called the
Union , as the representative of its employees . Oral argument was waived and briefs
have been received from the General Counsel and Respondent.
Upon the entire record in the case , and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Edmund A . Gray Co ., Inc., is a corporation engaged in the manufacture of pipe
nipples at Los Angeles , California, and ships products valued in excess of $50,000
.per annum directly to points outside the State of California . I find that the operations
of Respondent affect commerce within the meaning of Section 2(6) and (7) of the
Act and that it would effectuate the purposes of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO, is a labor organization within the
_meaning of Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. Introduction; the issues
The complaint alleges , Respondent 's answer admits , and I find that all production
and maintenance employees of Respondent , excluding office clerical and professional
.employees , watchmen, guards, and supervisors , constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9(b) of the Act.
The complaint alleges, Respondent's answer admits, and I find that , following an
election on or about April 25, 1962, and its certification on or about May 3, 1962, the
Union was and now is the exclusive representative of the employees in said unit
within the meaning of Section 9(a) of the Act.
The parties commenced a series of weekly meetings on June 5 , 1962, and the Gen-
eral Counsel contends that by the unilateral termination of the six above -named em-
ployees on or about August 3, 1962, during the course of these negotiations , Respond-
. ent has discriminated with respect to their tenure of employment , has refused to
bargain with the Union , and has interfered with, restrained , and coerced employees
in the exercise of their right to engage in union activities.
At the time material herein , Respondent had a complement of approximately
60 employees . Four of the six complainants , Dolores Williams, Marian Flinn,
Martha Williams , and Madlene Williams worked in the packaging department. They
- were the only women in the department which also had a number of male employees.
'Issued October 31, 1962, amended December 4, 1962, and based upon charges filed
.August 7, October 25, and December 4, 1962.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The other two complainants, Audrey Tosh and Elvira Beltran, together with some
men, worked in another department identified herein as the factory; they were opera-
tors of hand threading machines and threaded pipe nipples of various sizes. Only
in the case of an absence or when it was necessary to fill a special order, were Tosh
and Beltran assigned to the packaging department. These six constituted the entire
complement of female employees in the plant.
Tosh had entered Respondent's employ in July 1958 and Beltran in June 1961.
The respective seniority of the four packers dated back to 1959, 1960, 1961 and 1962,
although Martha Williams and Madlene Williams had enjoyed previous terms of
employment commencing in 1959 and 1960, respectively. Women have worked for
Respondent in these classifications for 5 or 6 years with no substantial change in the
nature of their duties, except to reflect the use of different and, in some cases, smaller
packages.
B. The negotiations
As indicated, weekly negotiating meetings commenced on June 5, 1962. Represent-
ing Respondent were Vice President Lawrence Gray and Vice President and Office
Manager Bonnie McCaslin. They were joined at the third meeting, apparently
that of June 19, by Richard Cords, industrial relations consultant for Respondent,
who was the chief spokesman thereafter. Spokesman for the Union was Staff Rep-
resentative Gilbert Anaya; also participating were Business Representative Henry
Martinez and a three-man employee committee whose membership included employee
Carlos Thorne.
The Union submitted its initial contract proposal at the June 5 meeting. The
General Counsel points out that section VIII thereof contained a proposal that in
all cases of "decrease of forces, and rehiring, seniority shall prevail provided the
employee is qualified to capably perform the work." Following page 20 thereof is
the "UNION'S WAGE PROPOSAL" wherein the Union asked for "Correction of
job classification rate inequities" and for "Correction of job classification inequities
of employees, if any." On June 26, Respondent submitted a counterproposal which
listed hourly wage rates of $2 for women packers in the packaging department and
$2.05 for women in the factory.2 Consistent with Respondent's existing wage struc-
ture, these rates were beneath the rates proposed for men in comparable classifications.
Representative Anaya, as he testified, immediately noticed that Respondent was
proposing a lower wage scale for women packers and contended that the job should
carry one rate irrespective of sex. Vice President McCaslin argued that there should
be a wage differential because women could not lift as much as men . It was then
contended that lifting was not involved in the job; as will appear below, Respondent
has stressed the claim that these women were prone to violate an order of the
California Industrial Welfare Commission forbidding women to lift or carry packages
over 25 pounds except with permission from that department. The Union also
insisted that as long as production standards were met there should be equal pay for
equal work .3
At the July 3 meeting, the Union submitted a wage proposal with identical wage
rates for male and female employees in the same classification . Vice President Mc-
Caslin again took the position that there should be a wage differential. Anaya, on
behalf of the Union, adhered to his position that the respective classifications should
carry a single rate of pay.
The plant has a safety committee composed of employee and management rep-
resentatives. Monthly meetings are held and they are usually attended by a safety
engineer, Thomas Porter, who is employed by or for the carrier of Respondent's
workmen 's compensation insurance . Vice President McCaslin testified that Porter
was present at the July 10 safety meeting after which he inspected the plant and
reported to her that the women employees were lifting packages weighing in excess
of 25 pounds; that he, Porter, had wieghed such a package; and that it "was much in
excess of the legal weight [25 pounds]." Vice President Gray similarly testified
that both McCaslin and Porter had reported to him that the girls were lifting weights
in excess of 25 pounds.
Porter , however , presented testimony of a far less drastic import . He testified
that he had told committee members and complainant Marian Flinn that she was
responsible for seeing to it that the proper conveyors were used and the packages
0 The latter would include the pipe threading machines.
0It is undisputed that men were available to lift cartons which weighed over 25 pounds.
Much testimony was developed concerning this issue, including the claim that no lifting
was necessary if Respondent's machinery for transporting packages was not pushed out
of line as a result of bumping by the operators of forklift trucks.
EDMUND A. GRAY CO., INC. 593
not lifted by the girls, but he placed this talk with Flinn in approximately August
1961.4
Porter also testified that something had been said to him about lifting by the
women, that he had inspected the plant and that he saw no lifting by them. He did
note that Respondent's conveyor was out of line and that if it were properly posi-
tioned this would remove any temptation for lifting; he so informed management,
including Plant Superintendent Cameron. Porter also testified that the lifting
problem applies to both sexes and that the insurance carrier is interested in avoiding
large awards for the aggravation of preexisting conditions as well as for initial
injuries. The testimony of Union Committeeman Thome agrees with that of
Porter. Thorne testified that during the inspection of the plant on July 10, he,
Thome, personally lifted and weighed a carton and ascertained that its weight was
in excess of 40 pounds. The girls, he testified, and I so find, had not lifted it. I
find, therefore, that Porter did not tell McCaslin, as she claimed, that the girls were
lifting too heavy objects.
That evening, the regular weekly negotiating meeting was held. Vice President
Gray claimed that the union committee argued that objects over 25 pounds had been
lifted and that it was difficult to stop. Gray also stated that he told the committee
that "recurrence of this excessive lifting would be subject to instant dismissal." This
testimony is treated hereinafter in evaluating Respondent's motivation herein.
McCaslin also testified that Committeeman Thorne claimed that Porter had
weighed a 49-pound package and that girls were lifting such packages. As found
above, Porter testified to the opposite effect. That the girls were not engaging in such
lifting is disclosed by their credited testimony which is set forth hereinafter. McCaslm
admitted that Staff Representative Anaya asked Vice President Gray at this meeting
to sign a contract agreeing not to reduce wages. Gray replied that he had no such
intention but that business was off and that "we may have to have a layoff."
At unspecified meetings prior to August 3, according to Anaya, the company
representatives rejected the Union's seniority proposal that seniority be considered
on a departmental rather than on a plant basis. That the Union's position on equal
pay for women was a cause for management concern, is reflected by the testimony
of Vice President Gray that the Union on several occasions had sought this result,
and in the testimony of Plant Superintendent Winston Cameron that Gray had
informed him of this action.
On August 2, 1962, Superintendent Winston Cameron was instructed by Vice
President Gray to terminate the six women and Cameron did so, making this effective
at the close of business on August 3. As noted, they constituted all the women in
the bargaining unit. One of the girls being on vacation, Cameron testified that he
told the other five that business conditions required a reduction in the work force
and they were to be laid off.5 The girls requested letters of recommendation and
Cameron obliged. The letters are identical except for name, position, and tenure.
That of Tosh states as follows:
To Whom It May Concern:
Audrey F. Tosh has been in our employ as a hand machine operator
since July 28, 1958. During this period she has been an excellent employee.
Her honesty and loyalty to her job has been beyond reproach. Cooperation,
attendance and ability to perform her duties are of the best.
Any further information desired by a prospective employer relative to work
performance habits will be readily furnished.
Her release from our employ is due to re-organization and is positively no
reflection upon Audrey F. Tosh as an individual.
It is undisputed that the subject of termination of the women was never raised
at any of the bargaining meetings prior to August 7; nor was there any communica-
tion of this decision by Respondent to the Union. The knowledge of the Union
stemmed solely from the fact that the girls, after their termination, notified Union
Committeeman Thorne of the act. Respondent in fact relies on this indirect com-
munication as satisfying Respondent's obligations under the Act, and admitted
herein that the Company never notified the Union of its decision to terminate the
women. In fact, its representative during the negotiations, Cords, testified that
4 There is not an iota of evidence that it was more convenient for the girls to lift pack-
ages or that it was to their financial advantage to do so. Stated otherwise, one must
assume, on Respondent's theory of the case, that the girls preferred to lift heavy packages,
but this is hardly a tenable result
5 Cameron identified the vacationer as Tosh, but the record indicates that it was
Martha Williams.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had no "obligation to notify the Union because no agreements had been
reached regarding seniority or anything else that would affect the Company's de-
termination in this matter." He also testified that Respondent felt that it had no
obligations to discuss the termination of the women with the Union because (1) the
topic had never been raised at any negotiating meeting and (2) discussion thereof
was not in order unless the Union first brought up the topic.
The record also indicates that a male employee, Shaw, was discharged on
August 3. Vice President Gray testified both that Shaw was released for the same
reason as the girls and that the discharge was caused by his bad work habits. Never-
theless, Shaw was rehired about 2 weeks later after allegedly promising to mend
his ways.
C. Discussion
(1) Initially treated is Respondent's contention that its decision to terminate the
entire complement of female employees, viz, the six complainants, was made in
February 1962, prior to the commencement of organizational activities by the Union
which resulted in the subsequent certification of the latter in May; the General
Counsel does not dispute that union activity started subsequent to February. In
considering this contention, it is to be noted that because of procedural and other
problems, the testimony was presented in three separate stages.
In support of this contention, Executive Vice President Gray testified at the final
stage of the hearing that he met with Vice President McCaslin and Plant Superin-
tendent Cameron early in February 1962. They discussed alleged limitations on
the types of work which women could perform and noted that restrictions on lifting
and on the performance of outdoor work restricted their use. The group then con-
cluded that when a general layoff became necessary, all of the women would be
terminated and the plant made an all-male plant for reasons of efficiency.6
Gray was corroborated by Plant Superintendent Cameron who testified that each
year a layoff is anticipated due to a seasonal slowdown and that it was decided at
this meeting to terminate the women "when this time arrived." Further corrobora-
tion was presented by Vice President McCaslin who testified that it was decided at
this meeting to lay off women rather than men when business dropped off because
the women required the assistance of men in the performance of some of their
duties and they could perform neither as much work nor as many types of work as
the male employees. The date of the layoff or discharge was not decided upon
and was left contingent upon business conditions. McCaslin also testified that
these layoffs generally involved six or seven employees.
This testimony by these three witnesses which is in substantial agreement, is not
credited in the light of previous testimony of a significantly different tenor by these
very same witnesses. Thus Gray previously testified concerning a contract ne-
gotiating meeting on July 10, 5 months subsequent to February, wherein the problem
of lifting by women was discussed. He allegedly stated at the time, according to
his testimony, that "recurrence of this excess lifting would be subject to instant
dismissal"; this is hardly consistent with a previous decision to terminate the women
because of then existing grounds.
Again Gray was asked when he decided to discharge the group of employees and
replied that the decision was made in mid-July, that it was caused by lack of business,
and that if business had been satisfactory "In all probability" no one would have
been terminated. I am unable to reconcile this with a purported decision 5 months
earlier to put the plant on an all-male basis.
Again Gray was previously asked whether he made a decision as to each of the
six or whether it was decided to discharge them as a group. He testified that in
selecting the six female employees "There was point by point brought out about each
and every one, and things seemed to point out that the entire group should go "
In this respect, it may be noted, as will appear, that he claimed Tosh and Beltran
selected only because of lifting, something they rarely did, and that Dolores Williams
was chosen in part because of her "attendance record," a point concerning which
no evidence was adduced.
Paradoxically, Gray again testified that because of reports made to him about a
discussion of lifting at the July 10 safety meeting, heretofore discussed, he decided
then and there to select the women for discharge. In fact, Gray admitted that he
made the final decision to terminate the women after the subject initially arose in
July; that discussions were then held with the foremen of the two departments
involved, the plant superintendent, and other plant executives; that the meeting
8 While the Respondent's witnesses testified both that Respondent discharged the women
and laid them off, I deem it immaterial for the purposes of this immediate discussion
which action was taken.
EDMUND A. GRAY CO., INC. 595
at which the decision was made as to which employees would be discharged took
place in mid -July; and that he thought the decision was "finalized " at that time. He
further testified that the seniority of the girls had been considered in arriving at
this decision . Again , I find this irreconcilable with a purported policy decision
predicated upon their sex and weakness made 5 months previously.
The earlier testimony of Cameron is similarly in great contrast to his later
testimony . He testified at one point that it was on August 2 that he was advised
by Vice President Gray of the decision to terminate the women . He later testified
that he knew of the impending layoff because of business conditions and that 1 or 2
days prior to the layoff , Gray told him that Respondent would have to lay off "some
people." Gray informed him that he had decided to lay off the women because of
limitations in the types of work they could perform.
Cameron also testified that Gray "asked my opinion" in order to verify or bear
out Gray's views on the matter . This was consistent with Gray's practice of obtain-
ing Cameron 's opinion when layoffs were necessary as to who should be chosen.
It is significant that , according to Cameron , Gray had mentioned to him that the
Union had sought equal pay for women, but that, so far as Cameron was concerned,
this topic played no part in his recommendation . Be that as it may , this purported
conference on or about August 1 is hardly indicative of a decision made in the
previous February to eliminate all women from the plant. This testimony reflects
rather consideration of the matter and arrival of a decision at the time and not
5 months earlier.
As for McCaslin, she testified that she was not involved in the decision to lay
off the women , but that she did participate in the discussion thereof. However, the
entire thrust of her testimony at an earlier stage of the hearing is in terms of a
decision in August to terminate the women without a word being said as to a
previous decision in February . And, in discussing the termination , she testified that
it was little different than previous reductions in force where-"Some of these girls
have been laid off and brought back." This, as will , I deem inconsistent with a
longstanding decision to eliminate women from the plant for efficiency reasons. If
they were being eliminated and were to be replaced by men , when the occasion arose,
the possibility of their being returned to work when conditions improved serves
only to refute the claim by Respondent that it changed to an all-male plant for
reasons of efficiency and economy.
(2) Respondent has raised the contention , as Gray initially testified , that the
women were terminated because they had been lifting packages weighing in excess
of 25 pounds, contrary to California law forbidding such activity. Gray claimed
that the women had been notified many times, at his direction , not to lift such
weights; that he had stated on July 10 that this would result in instant dismissal; that
"We were always after them about weights . . .'; and that he gave instructions
that the women were to be so notified.
Evidence was adduced of two inspection reports from the Division of Industrial
Welfare of the California Department of Industrial Relations . The first dates
back to July 28, 1959 , and noted five conditions wherein correction was required.
One of these was that "Women may not lift more than 25 pounds." In a letter dated
February 5, 1962 , the department wrote to Respondent concerning a reinspection
made on February 2 and stated as follows:
On February 2, 1962, a reinspection was made of your establishment to
ascertain compliance with the Labor Code and Industrial Welfare Commission
Order Number 1-57, particularly with respect to those violations which were
previously brought to your attention.
The necessary corrective action has been taken with respect to all items except
those pertaining to lifting by women , and the maintenance of a minimum tem-
perature of 65°. Although you stated that Company policy prohibited women
from lifting more than twenty-five pounds, it may be necessary for you to
extend your supervision to insure that this is complied with.
It is essential that the installation of adequate heating facilities be completed
without further delay . Due to the working environment of women employees, it
was suggested that reflective infra-red heaters be installed at the locations
where women are working which would provide the required conditions and
yet be the most economical to operate . It is anticipated that the installation
of necessary facilities will be accomplished prior to March 1, 1962.
No further action is contemplated by this Division until a reinspection is
made shortly after the above date.
712-548-64-vol. 142-39
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is readily apparent from the letter that it is primarily concerned with the
maintenance of adequate heat in the plant. It devotes almost two full paragraphs
to the topic and states that: "It is essential" that adequate heating facilities be com-
pleted "without further delay." With respect to lifting, the letter states only that, "it
may be necessary for you to extend your supervision to insure that this is complied
with." The letter ends, as noted, with the statement that no further action was
contemplated until a reinspection was made.
But Gray, McCaslin, and Safety Engineer Porter all testified that they never
observed women lifting in excess of 25 pounds. Even Plant Superintendent Cameron
who suspected that some of the packages might weigh over 25 pounds was doubtful
that a violation had occurred. Cameron also testified that the women received in-
structions against such lifting at the time of hire. But he was unable to state when
he last spoke with the women on the topic and no supervisors or foremen were
presented to testify concerning the giving of such instructions, despite the testimony
of Cameron that he had so instructed his foremen. And all of six complainants
denied that they had received such instructions upon hire or at any other time .7
In fact, Dolores Williams and Audrey Tosh testified that they had been originally
hired by Cameron himself and, according to Williams, Cameron explained her duties
but said nothing about lifting heavy packages. The other four women were hired
by other named members of the managerial staff, but they also denied receiving any
such instructions.
Of significance here is the fact that the two women machine operators worked
in the packaging department only in case of absence of one of the other four and
when special packaging might be required. Gray testified that it was "possible"
for these two girls to daily lift "containers," as distinguished from packages in the
packaging department. As noted, Gray admitted that he had never seen this take
place.
I find that the women in this plant received no instructions or warnings from
Respondent either at hire or during their employment concerning the lifting of heavy
packages. I further find that Respondent has attributed herein much more emphasis
to its communications from the State of California than it displayed toward its
individual employees8"
(3) Respondent has claimed that it experiences a seasonal slump each year and,
as Cameron testified at the close of the hearing concerning the alleged February
meeting, "we would anticipate a layoff for each year." However, Vice President
Gray testified earlier in the hearing that although there was a slowdown each
year, "I wouldn't say that we did [lay off employees] each year." Indeed, Gray
admitted that prior layoffs rarely affected employees in the factory where the two hand
machine operators were stationed.
In this respect, it is noteworthy that the record refutes Respondent's claim that
the women were not replaced by new hires and that their duties were absorbed in-
ternally by existing employees. Actually, Respondent's contention is partly true
because there is evidence that what Respondent did was to transfer employees in-
ternally to perform some of the duties normally handled by the girls and that there
were new hires from the outside to replace the transferees. Thus, McCaslin testified
that no one was hired to replace the women, but admitted that subsequent to their
termination, two cleanup men were hired, that one of them was promoted to a hand
machine and that he did well at it. There is no evidence, it may be noted, of any
complaints concerning the quality or quantity of work performed by the two girls
assigned to these machines and I note that the seniority of one, Tosh, dated back to,
July 1958.
Superintendent Cameron testified originally that three named cleanup men, Jack-
son, Wadley, and Stewart, were hired after the women were terminated; that Wadley
did not run a machine although he did some "feeding"; and that Wadley and Stewart
did cleanup work. He admitted that it was possible that a cleanup man had been
promoted to machine operator as that was sometimes done because cleanup was a
starting job from which people progressed. On cross-examination during his second
7 About 1 week prior to August 2, 1962, three of the packagers, Dolores Williams,
Madlene Williams, and Marian Flinn were told by a fellow-worker, Goldsmith, who was
identified as a shipping clerk, that they would be discharged immediately if they lifted
packages weighing over 25 pounds. Goldsmith did not testified and no contention was,
made that he was an agent of Respondent or that he was instructed to make any such
statement
8 Perhaps the most concern displayed herein came from Safety Engineer Porter whose
interest was admittedly in preventing injuries to either sex and in the problem of excessive
compensation awards against the insurance carriers whom he represented
EDMUND A: GRAY CO.;-INC. 597
appearance on the witness stand, Cameron admitted that `Wadley had replaced one
Richard Bennett, who had been transferred to operator of a hand machine; this was
the job held by Tosh and Beltran.
(4)This brings up the intrinsic conflict in Respondent's position as to whether it
laid off the women or discharged them. Gray, on the one hand, after testifying
that he regarded a discharge as a permanent severance of the employment relation-
ship as contrasted with a temporary layoff, flatly stated that the women had been
discharged.
Subsequent thereto, McCaslin testified that the girls were laid off. When spe-
cifically queried in respect thereto, she replied that "It might have been temporary.
I don't know how long ..... She further testified that it "Might not have been
permanent. Some of the girls have been laid off before and brought back." As
noted above, she characterized this as reflecting "Not too much difference" from pre-
vious layoff situations.
Plant Superintendent Cameron testified that this was a layoff rather than a dis-
charge because "they could be recalled, not necessary, but could be." He also
indicated that a dischargee might not be beyond salvation as is reflected by the case
of employee Shaw who was discharged at the same time the girls were terminated
because of unsatisfactory work.
Be that as it may, this original testimony by Cameron and McCaslin that the
women might be recalled is deemed to be inconsistent with any claim that the women
were permanently eliminated from the plant due to a policy decision made 6 months
earlier in February.
(5) Another point renders Respondent's position herein suspect. While Respond-
ent stressed its concern aboot the excess lifting by women as of July 10, it neither
reprimanded nor talked to the women about it. More specifically, it terminated the
women without even informing them of the cause for the discharge, except for
Cameron's testimony that he told them that business conditions required a layoff.
And for that matter, if it was a decision to make the plant all male, no reason appears
why Respondent was reluctant to say so, especially where it was willing to give the
women, including some of long tenure, letters of recommendation.
D. Conclusions
The Union had been meeting weekly with Respondent and negotiating for a con-
tract since June 5, 1962, on which date the Union had submitted a contract proposal
calling for seniority prevailing in work force reductions, assuming ability to perform
the work, and also calling for the correction of wage rate inequities. On June 26,
Respondent submitted a wage proposal which, consistent with Respondent's existing
wage structure, provided for lower wage rates for female employees than for male
employees.
The union representative expressly challenged this double standard and urged
that no wage differentials be established in the contract. Pursuant to this position,
the Union on July 3 submitted a wage proposal which listed identical wage rates for
all employees in the same classification. The Union persisted in this position in
ensuing meetings and Respondent resisted it. In addition, at bargaining meetings
prior to August 3, Respondent rejected the Union's proposal that seniority be con-
sidered on a departmental basis.
It was in this context that Respondent, with no notice whatsoever to the Union
or to the employees, decided on August 2 to terminate all six women employees, four
packagers from the packaging department and two machine operators from the
factory department. Respondent has attempted to peg this decision to a drop in
business since the preceding March, but produced no records in support of its con-
tention. Moreover, its contradictory claims, initially with respect to a July decision
predicated upon the lifting and later upon an earlier policy decision in February
predicated upon the general unsuitability of women, do not hold water for the reasons
previously set forth.
Moreover, during this very period, Respondent was attempting at bargaining
meetings in June and July to persuade the Union to accept the double standard wage
scale.9 The thought occurs that if a policy decision had been made, whether in
February or later on July 10, to eliminate the female employees, Respondent was
then engaging upon a wholly unnecessary course of conduct and had only to so
inform the Union at the bargaining table of its decision. This, it did not do, and
when the course of negotiations did not proceed to its liking, Respondent quickly
9 This is not to say that such a demand'or position is in of itself improper in collective
bargaining.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and unilaterally resolved the problem by eliminating all of its female employees on
a pretextual ground , despite the lengthy tenure of at least several.
Moreover , at least one or two were replaced by the thinly disguised technique of
internal transfers and the hiring of a new employee to replace the transferee. That
Respondent 's concern over the lifting was minor at best is demonstrated by its long
toleration of the condition with no reprimand of or discussion with the women and
by the fact that the alleged problem basically did not concern the two women in the
factory.
I find under these facts that Respondent discharged its women employees in order
to avoid collective bargaining with the Union over the latter's demand for equal
wages. This constitutes discrimination under the Act because the women had
embarked upon the path of unionization and this was an attempt to resolve the
problem which, I find, violated the Act. I find that by terminating the six com-
plainants on August 3, 1962, Respondent has discriminated with respect to their hire
and tenure of employment within the meaning of Section 8(a)(3) of the Act. I
further find that by such conduct Respondent has interfered with, restrained, and,
coerced its employees in the exercise of the rights guaranteed by Section 7 of the
Act, thereby violating Section 8(a)(1) thereof. Ethel J. Hinz, as an Individual and
as Executrix of the Estate of Lester F. Hinz, d/b/a Myers Ceramic Products Co.,
140 NLRB 232.
I further find that by the foregoing conduct Respondent has refused to bargain
within the meaning of Section 8(a)(5) of the Act. It took the step of unilaterally
eliminating the female employees of its plant at the very moment that the Union
was negotiating for equal pay for them and was negotiating concerning the type
of seniority which would prevail in a reduction in force. Respondent took this
unilateral action without notice to the Union in an effort to bypass collective bar-
gaining over the women.
That the Union had not first requested bargaining on the matter, as urged herein
by Respondent, is not a defense. Nor is it a defense that the women upon learning
of their discharge reported it to a member of the plant committee. All that was
reported was a fait accompli which amounted to a rejection of the collective-
bargaining process. I find, therefore, that Respondent, by unilaterally terminating
the six complainants on August 3, 1962, without notice to the Union, has refused to
bargain in good faith within the meaning of Section 8(a)(5) of the Act. I further
find that by such conduct Respondent has engaged in unfair labor practices within
the meaning of Section 8(a) (1) of the Act. N.L.R.B. v. Benne Katz, etc., d/b/a
Williamsburg Steel Products Co., 369 U.S. 736; Railroad Telegraphers v. Chicago &
Northwestern Railway Co., 358 U.S. 282; N L R B. v. Brown-Dunkin Company, Inc.,
287 F. 2d 17 (C.A. 10); Exchange Parts Company, 139 NLRB 710; Robert S. Abbott
Publishing Company, 139 NLRB 1328; and Central Illinois Public Service Company,
139 NLRB 1407.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, occurring in
connection with its operations set forth 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
Having found that Respondent has engaged in unfair labor practices, I shall rec-
ommend that it cease and desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent has discriminated with respect to the hire and
tenure of Dolores Williams, Marian Flinn, Audrey Tosh, Martha Williams, Madlene
Williams, and Elvira Beltran. I shall therefore recommend that Respondent offer
them immediate and full reinstatement to their former or substantially equivalent
positions, without prejudice to seniority or other rights and privileges. See The
Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827. I shall further recommend that Respondent make them whole for
any loss of pay suffered by reason of its discrimination against them. Said loss of
pay, based upon earnings which they normally would have earned as wages from
the effective date of discrimination, August 3, 1962, to the date of offer of rein-
statement, shall be computed on a quarterly basis in the manner established by
the Board in F. W. Woolworth Company, 90 NLRB 289. See N.L.R.B. v. Seven-up
Bottling Company of Miami, Inc., 344 U.S. 344. Interest thereon at the rate of
EDMUND A. GRAY CO., INC. 599
6 percent per annum shall be added, as provided in Isis Plumbing & Heating Co.,
138 NLRB 716.
I shall also recommend that Respondent be ordered to bargain with the Union,
upon request, concerning rates of pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding be reached, embody such under-
standing in a signed agreement and further, that Respondent be ordered to cease
and desist from making unilateral changes in the terms and conditions of employ-
ment of its employees without consulting their designated bargaining representative
and offering the latter a reasonable opportunity to be heard.
The unfair labor practices committed by Respondent involve pretextual discharges
and unilateral conduct in derogation of the principles of good-faith collective bar-
gaining. The inference is warranted that Respondent maintains an attitude of
opposition to the purposes of the Act with respect to the protection of employee
rights in general. It will accordingly be recommended that Respondent cease and
desist from infringing in any manner upon the rights guaranteed in Section 7 of
the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Edmund A. Gray Co., Inc., is an employer within the meaning of Section 2(2)
of the Act.
2. United Steelworkers of America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By discriminating with respect to the hire and tenure of employment of
Dolores Williams, Marian Flinn, Audrey Tosh, Martha Williams, Madlene Williams,
and Elvira Beltran, thereby discouraging membership in a labor organization, Re-
spondent has engaged in unfair labor practices within the meaning of Section 8(a) (3)
of the Act.
4. All production and maintenance employees of Respondent, excluding office
clerical and professional employees, watchmen, guards, and supervisors, constitute
a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
5. United Steelworkers of America, AFL-CIO, has been since May 3 1962, and
now is the exclusive representative of the employees in the above-described appro-
priate unit within the meaning of Section 9(a) of the Act.
6. By unilaterally terminating its female employees on August 3, 1962, Respond-
ent has refused to bargain collectively with the Union and has engaged in unfair
labor practices within the meaning of Section 8(a)(5) of the Act.
7. By the foregoing conduct, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that Respondent, Edmund A. Gray Co., Inc., Los Angeles, California,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in United Steelworkers of America, AFL-CIO,
or in any other labor organization of its employees, by discharging employees
or by discriminating in any other manner in regard to hire or tenure of employment
or any term or condition thereof, except to the extent authorized by Section 8(a) (3)
of the Act.
(b) Refusing to bargain with United Steelworkers of America, AFL-CIO, as
the exclusive representative of its production and maintenance employees, excluding
office clerical and professional employees, watchmen, guards, and supervisors.
(c) Unilaterally changing rates of pay, hours, or other terms or conditions of
employment of employees in the above unit without prior consultation with the
above-named labor organization.
(d) In any other manner interfering with, restraining, or coercing employees in
the exercise of their right to self-organization, to form labor organizations, to join
or assist the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection, and to
refrain from any or all such activities, except to the extent that such right may be
600 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
affected by an agreement requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act. .
2. Take the following affirmative action which is deemed necessary to effectuate the
policies of the Act:
(a) Offer to Dolores Williams, Marian Flinn, Audrey Tosh, Martha Williams,
Madlene Williams, and Elvira Beltran immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to seniority or other
rights and privileges, and make them whole for any loss of pay suffered by reason
of the discrimination against them, in the manner provided above in the section
entitled "The Remedy."
(b) Upon request, bargain collectively with the above-named labor organization as
the exclusive representative of the employees in the above-described appropriate
unit with respect to rates of pay, wages, hours of work, or other terms and conditions
of employment, and, if an understanding is reached, embody such understanding in
a signed agreement.
(c) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to determine
the amount of backpay due under the terms of this Recommended Order.
(d) Post at its plant at Los Angeles, California, copies of the attached notice
marked "Appendix." 10 Copies of said notice, to be furnished by the Regional
Director for the Twenty-first Region, shall, after being duly signed by Respondent,
be posted by it immediately upon receipt thereof, and be maintained for a period
of 60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for the Twenty-first Region, in writing, within 20
days from the date of receipt of this Intermediate Report and Recommended Order,
what steps it has taken to comply herewith.ll
10 In the event 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. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
n In the event this Recommended Order be adopted by the Board, this provision shall
be modified to read : "Notify said Regional Director, 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, as amended, we hereby notify you that:
WE WILL NOT discourage membership in United Steelworkers of America,
AFL-CIO, or any other labor organization of our employees, by discharging
employees, or by discriminating in any other manner in regard to hire or tenure
of employment or any term or condition thereof.
WE WILL offer the following employees immediate and full reinstatement to
their former or substantially equivalent positions without prejudice to seniority
or other rights and privileges, and we will make them whole for any loss of pay
suffered by reasons of our discrimination against them.
Dolores Williams Martha Williams
Marian Flinn Madlene Williams
Audrey Tosh Elvira Beltran
WE WILL, upon request, bargain with the above-named labor organization as
the exclusive bargaining representative of our production and maintenance em-
ployees, excluding office clerical and professional employees, watchmen, guards,
and supervisors, with respect to rates of pay, wages, hours of work, or other
terms and conditions of employment , and, if an understanding is reached,
emboly such understanding in a signed agreement.
EASTERN DIE COMPANY 601
WE WILL NOT unilaterally change rates of pay, wages, hours, or other terms
or conditions of employment of employees in the above-described unit without
prior consultation with the above-named labor organization.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization, to form labor
organizations, to join or assist the above-named or any other labor organization,
to bargain collectively through representatives of their own choosing, to engage
in concerted activities for the purpose of collective bargaining or other mutual
aid or protection, and to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized in Sec-
tion 8 (a) (3) of the Act.
All our employees are free to become or remain, or refrain from becoming or
remaining , members of the above-named or any other labor organization.
EDMUND A. GRAY Co ., INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 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 , 849 South
Broadway, Los Angeles , California , 90014 , Telephone No. Richmond 9-4711, Ex-
tension 1031 , if they have any question concerning this notice or compliance with
its provisions.
Eastern Die Company and International Union of Electrical,
Radio and Machine Workers, AFL-CIO. Case No. 1-CA-3850.
May 14, 1963
DECISION AND ORDER
On February 20, 1963, Trial Examiner George J. Bott issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings 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 briefs, and the entire record in the
case, and hereby adopts the findings,' conclusions, and recommenda-
1 The Respondent has excepted to credibility findings made by the Trial Examiner. As
it Is the Board 's established policy not to overrule a Trial Examiner 's resolutions with
respect to credibility unless , as is not the case here , the clear preponderance of all the
relevant evidence convinces us that the resolutions were Incorrect , we find innsufficient
basis for disturbing the Trial Examiner's credibility findings. Standard Dry Wall Prod-
ucts, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3). The Respondent 's contention
concerning alleged fabrication of testimony is predicated on certain matters quoted out of
context and Is clearly without merit.
142 NLRB No. 68.