Essex Wire Corp. of California

National Labor Relations Board - Board Decisions

Jul 28, 1955

113 N.L.R.B. 344 (N.L.R.B. 1955)

344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment employees, including servicemen and their helpers, but exclud-
ing maintenance employees , guards, professional employees, and super-
visors as defined in the Act.
[Text of Direction of Election omitted from publication.]
[The Board dismissed the petitions in Cases Nos. 33-RC-503 and
,33-RC-506.]
Essex Wire Corporation , a Michigan corporation, d/b/a Essex
Wire Corporation of California and Ann Hamilton
Essex Wire Corporation, a Michigan corporation , d/b/a Essex
Wire Corporation of` California and Loraine L.-Evans. Cases
Nos. 21-CA-1921 and 21-CA-f035. July 28, 1955
DECISION AND ORDER
On February 15, 1955, Trial Examiner Maurice Al. Miller issued
his Intermediate Report in the above-entitled consolidated proceeding,
finding that the Respondent had engaged in and was engaging in cer-
tain unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. The Trial Examiner
also found that the Respondent had not engaged in certain other un-
fair labor practices alleged in the complaint and recommended that
such allegations be dismissed. Thereafter, the Respondent and the
General Counsel filed exceptions to the Intermediate Report and briefs
in support-thereof.1
-,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 Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner to the extent that they are consistent
herewith.
1. The Trial Examiner found, and we agree, that the Respondent
violated Section 8 (a) (1) of the Act by demanding that an employee
surrender the executed union membership cards he had in his posses-
sion, by prohibiting rival union activity during employee rest periods,
and by requiring the removal of buttons denoting adherence to the rival
1 The Respondent also requested oral argument before the Board. This request is de-
nied because, in our opinion, the record, including the exceptions and briefs, adequately
presents the issues and the positions of the parties.
i13 NLRB No. 41.
ESSEX WIRE CORPORATION OF CALIFORNIA 345
union while permitting employees to wear the membership buttons
of the incumbent Union.2
2. The THal "Examiner found, and we agree, that the Respondent,
discharged Loraine Evans for cause and not because of her union
activity. We shall therefore adopt his recommendation to dismiss.
the allegation of the complaint that the Respondent violated Section
8 (a) (3) and (1) of the Act by its discharge of Evans.
3. The Trial Examiner found that Ann Hamilton, a leader in the
rival union organizing activity, was transferred to more difficult work
under circumstances which constituted a constructive discharge, in
violation of Section 8 (a) (3) and (1) of the Act. The Respondent
has excepted and maintains that Hamilton was reassigned nondis-
criminatorily in the normal course of operations, and that she was dis-
charged because she left the plant without permission in violation of a
plant rule with which she was familiar. -
Hamilton had been employed for about a year prior to her discharge,
and had been considered a competent employee. In the course of her
employment, she had been assigned to different positions from time to
time. Some of these transfers were in accordance with the Respond-
ent's practice of assigning qualified employees to different positions
as need arose, while others were requested by Hamilton in order to
broaden her experience.
On the day in question, reassignments of employees became necessary
because of the absence of a repair girl. Hamilton was assigned to the
takeoff position on the large conveyor. She had never performed this
particular operation, but had done takeoff work on the small con-
veyor. These operations were apparently similar, the only differences
indicated in the record being that the devices which had to be handled
on the large conveyor were heavier and more complicated than those
on the small conveyor. The operation was not unreasonably difficult,
however, as it was regularly performed by women, some of whom had
held this assignment without objection for a period of years.
As the Trial Examiner points out in his Intermediate Report, Ham-
ilton requested gloves, which were generally worn on this operation.
They were not immediately available, but were furnished to Hamilton
in less than an hour. In the meantime, Hamilton claimed, her hands
became badly scratched to the point where they were bleeding.
Although she spoke to the plant nurse just before she, walked out, she
merely asked where the personnel clerk was and made no request that
the nurse treat her hands.
2.The Respondent took no exception to the Trial E xaminer 's findings that these inci-
dents occurred, but only to the conclusions that they constitute violations of the ,Act. As
to the validity of these legal conclusions see, for example , Airfan Radio Corporation, Ltd ,
d/b/a KSFD-TV, 111 NLRB 566 , Delta Finishing Company, et at., 111 NLRB 659 ; Graben
Manufacturing Company, Inc., 111 NLRB 167; School- Timer Frocks, Inc., 110 NLRB 1659,
enfd 224 F 2d 336 (C. A. 4).
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hamilton had voiced no protest when she was assigned to the take-
off position, made no request for assistance when she encountered diffi-
culty with the work, and voiced no complaint when it seemed to her
that fellow employees were jeering at her discomfiture. In addition
to the leadwoman for the large conveyor, whose responsibilities in-
clude assisting the operators, there is a relief girl' qualified and avail-
able to substitute for an operator who has to leave the production line
for any reason. Yet Hamilton appealed for help to neither of these
women. In fact, Hamilton at no time reported to any representative
of management that her reassignment had created problems for her.
When Hamilton left the plant, she had been performing the takeoff
work for only about an hour. She left without a pass authorizing her
departure, although she might have obtained one if she had consulted
the nurse, as Foreman Kresin suggested she do when Hamilton asked
him for a pass. She left during a rest period without making any
attempt, during that period, to obtain a different assignment or to seek
some other solution of her problems.
We are not convinced, on the basis of the entire record, that the
temporary reassignment of Hamilton caused her such "hardship and
suffering" or constituted a "substantially prejudicial alteration of the
conditions of employment" 3 to an extent that justified Hamilton's
departure from the plant during working hours without permis-
sion .4 Under these circumstances, we find, as the Respondent con-
tends, that Hamilton was discharged because she abandoned her job
without authorization, and not because of her union activity. Accord-
ingly, we shall dismiss the allegation of the complaint that Respondent
discriminated against Hamilton in violation of Section 8, (a) (3) and
(1) of the Act.5 -
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Essex Wire Corporation,
a Michigan corporation, d/b/a Essex Wire Corporation of Califor-
nia, San Diego, California, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
Demanding the surrender of executed union membership appli-
cations, prohibiting union activity in the plant during authorized
employee rest periods, requiring the removal of union buttons worn
s Cleveland Veneer Company, 89 NLRB 617 , 622-623
* In view of our findings as to the nature of Hamilton's reassignment , we consider it
unnecessary to pass upon the other defenses raised by the Respondent regarding the ter-
mination of Hamilton 's employment.
5 Member Murdock would find that Hamilton was constructively discharged , in viola-
tion of Section 8 (a) (3) and ( 1) of the Act , for the reasons set forth by the Trial Exam-
iner in the Intermediate Report.
ESSEX WIRE CORPORATION OF CALIFORNIA - 347
by employees belonging to one organization while permitting the
wearing of buttons designating another organization, or in any like
or related manner interfering with, restraining, or coercing employees
in the exercise of the right to self-organization, to join or assist any
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or 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 Section 8 (a) (3) of the Act.
- 2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant in San Diego, California, copies of the notice
attached hereto marked "Appendix." 6 Copies of said notice, to be
furnished by the Regional Director for the Twenty-first Region, shall,
after being duly signed by the Respondent's authorized representative,
be posted by the Respondent immediately upon receipt thereof and
maintained for a period of at least sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to
employees are customarily posted. , Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as • it alleges that the Respondent discriminatorily
discharged Ann Hamilton or.Loraine L. Evans in violation of Sec-
tion 8 (a) (3) of the Act, or violated Section 8 (a) (1) of the Act
by conduct other' than that found herein to be violative thereof.
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
6 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to,a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT demand the surrender of executed union member-
ship applications, prohibit union activity in the plant during
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorized employee rest periods, require the removal of union
buttons worn by employees belonging to one organization while
permitting the wearing of buttons designating another organi-
zation , or in any like or related manner interfere with, restrain,
or coerce employees in the exercise of the right to self-organiza-
tion, to join or assist any labor organization, to bargain collec-
tively through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or 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.
ESSEX WIRE CORPORATION, A MICHIGAN
CORPORATION , D/B/A EssEx WIRE COR-
PORATION OF CALIFORNIA,
Employer.
Dated------------ -By-----------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges duly filed and served , the General Counsel of the National Labor
Relations Board, in the name of the Board, caused the Regional Director of its
Twenty-first Region (Los Angeles, California), to issue a complaint on June 17, 1954,
and a first amended and consolidated complaint on July 21, 1954, under Section
10 (b) of the National Labor Relations Act, as amended, 61 Stat. 136. The Respond-
ent therein , Essex Wire Corporation, was charged with the commission of certain
unfair,labor;practices under Section 8 (a) (1) and (3) of-the statute . Copies.of the',
first charge , the original complaint in the case, the second charge, the Director's
original order of consolidation and notice of hearing , and the first amended and
consolidated complaint were duly served upon ' the Respondent . And the Respond-
ent-in its turn-then filed an answer admitting certain jurisdictional allegations of
the consolidated complaint , but denying the commission of the unfair labor practices
charged.
The first amended and consolidated complaint , as further amended subsequently,
alleges in substance-and the answer denies-that the Respondent , on February 10,
1954, discriminatorily transferred Elizabeth Ann Hamilton from her regular job to
one of a more difficult and disagreeable character, because of her participation in
concerted activity for the purposes of collective bargaining and other mutual aid and
protection ;, that the Respondent caused her to leave its plant on or about February
10,'1954, by,reason of the discriminatory work- assignment ; and-that the ' Respondent
utilized such action on her part, on or about February 11, as a pretext for her dis-
charge . The consolidated complaint , as amended, also alleges , and the Respondent's
answer denies , that Loraine L. Evans was discharged on or about June 4, 1954, and
that she and Mrs. Hamilton had been refused reemployment because of their partici-
pation in concerted activity for the purposes of collective bargaining and other mutual
aid or protection . The Respondent is also charged with-and denies-the discrimi-
natory and unlawful enforcement of a valid plant rule, intended to prohibit union
organizational activity on company time . Its entire course of conduct, the General
Counsel charges , involved discrimination in regard to the hire and employment tenure
of its employees , and interference , restraint , and coercion of its employees in connec-
tion with their exercise of rights statutorily guaranteed.
ESSEX WIRE CORPORATION OF, CALIFORNIA 349
Pursuant to notice , a hearing was held before me, as a duly designated Trial Exam-
iner, at San Diego , California , from August 2 to 5 , 1954 , inclusive . The Respondent
was represented by counsel ; Mrs. Hamilton and Mrs. Evans , the complainants in
the case, filed appearances in their own behalf. Each of the parties was afforded a
full opportunity to be heard , to examine and cross-examine witnesses , and to introduce
evidence pertinent to the issues.
At the outset of the case , as noted , the vase caption was amended , by mutual con-
sent , to show the proper corporate name of the Respondent ; several additional sub-
stantive amendments of a minor character were offered on behalf of the General
Counsel and approved without objection.
At the conclusion of the testimony , the Respondent moved for a dismissal of "both
the complaints" for lack of proof ; no ruling was announced , however, and my dis-
position of the motions will appear in this report . The parties waived their right to
oral argument , but a brief has been received from the Respondent and the General
Counsel 's representative has submitted a memorandum.
Upon the entire record in the case, and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Essex Wire Corporation , a Michigan corporation , d/b/a Essex Wire Corporation
of California is engaged in the manufacture and sale of wire products in various
States of the United States , including Michigan and California . It maintains
plants at Anaheim and San Diego , in the latter State ; the San Diego plant is the only
one involved in the instant case , however . During the 12-month period ending on
June 1, 1554, the Respondent sold products manufactured at its San Diego plant,
valued in excess of $100,000 , to customers outside the State of California . Within
the same period , products manufactured at the San Diego plant, valued in excess of
$200,000 , were sold to firms in California , which products were ultimately shipped
to points outside of the State. As a multistate enterprise the Respondent, during
the same period , sold and shipped products valued in excess of $250,000 from its
various plants to points outside the State in which the plant in question was located.
The Respondent admits, and I find , that it is engaged in commerce within the
meaning of the Act, as amended . On the basis of the available evidence, and in
accordance with the Board 's newly established policy-see Jonesboro Grain Drying
.Cooperative , .10 NLRB 481-I find that the assertion of the Board 's jurisdiction
in this case is warranted and that it would effectuate the objectives of the statute.
II. THE LABOR ORGANIZATION INVOLVED
The United Mine Workers of America, District 50, unaffiliated-to be designated
as the UMW elsewhere in this report-is a labor organization within the meaning
of Section 2 (5) of the Act , as amended, which admits employees of the Respond-
ent to membership."
No allegation with respect to the UMW's status as a labor organization , it is true,
appears in the first amended and consolidated complaint , and rio evidence specifically
'The General Counsel's first amended and consolidated complaint , as previously noted,
alleged that the discriminatory transfer of Elizabeth Ann Hamilton from her regular work
to other work of a more difficult and disagreeable character, and the subsequent discharge
of Mrs. Hamilton and Loraine L Evans, were undertaken because of their participation in
"concerted activities with other employees for the purposes of collective bargaining and
other mutual aid and protection" as statutorily defined. There are no allegations in the
consolidated complaint that the Respondent 's course of conduct involved discrimination
In regard to their hire, employment tenure, or any terms or conditions of their employment
to encourage or discourage membership in a labor organization. Nevertheless , the con-
solidated complaint alleges that the Respondent' s course of conduct with respect to these
employees involved unfair labor practices within the meaning of Section 8 (a) (3) of the
Act, as amended The record fails to reveal any challenge to the first amended and con-
solidated complaint , however, expressly grounded in its apparent failure to state a "cause
of action" under Section 8 (a) (3) of the statute. And the issue was, in fact , fully liti-
gated I have, theretore, treated the consolidated complaint as one calculated to charge
the Respondent with unfair labor practices under Section 8 (a) (3) as,well as Section 8
(a) (1) of the Act, as amended , insofar as the complainants are concerned And my con-
clusion with respect to the character of the United Mine Workers of America, District 50,
unaffiliated , as herein set forth , constitutes , of course , a necessary prerequisite to any con-
pideration of the issues presented by the consolidated complaint thus construed.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
calculated to establish its status as such was, in fact, offered. On the basis of Board
decisions too numerous to cite, however, I have taken official notice of its existence
as an organization in which employees participate, and of the fact that it exists for
the purpose, in whole or in part, of dealing with employers concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or conditions of work.
Hence my conclusion with respect to its status, as noted.
The Respondent, at various times, adverted to the UMW as an "unauthorized"
union, which has failed or refused to meet the compliance requirements established
in Section 9 (f), (g), and (h) of the Act, as amended. For the purposes of the
instant case, however, it may be taken as datum that a failure to effect "compliance"
with the statute, under the subsections cited, does not, of itself, operate to deprive
any voluntary association of its character as a labor organization under Section 2
(5) of the Act, as amended. N. L. R. B. v. Pratt, Read and Company, 191 F.• 2d
1006 (C. A. 2), enfg. 90 NLRB 1499. And I so find.
In his brief, however, the Respondent's counsel now argues that the complain-
ants, Elizabeth Ann Hamilton and- Loraine L. Evans, were-"fronting" for the UMW
at all material times, and that their charges should therefore be dismissed. If the
contention thus spelled out represents an argument that the complainants have no
rights under the statute because they "actively organized" the Respondent's em-
ployees in behalf of a noncomplying union, it must be rejected on the basis of the
authority just noted. N. L. R. B. v. Platt, Read and Company, supra. If, however,
the Respondent wishes to contend that the complainants were acting in behalf of
the UMW when they filed the charges in this case, the contention must be rejected
as factually and legally insupportable. Nothing in the charges, the first amended
and consolidated complaint, or the evidence, suggests an attempt, in this case, to
vindicate or assert any right or interest of the Mine Workers as a labor organiza-
tion under the statute. The cases cited in behalf of the Respondent's contention
can only be characterized as inapposite. N. L. R. B. v. Beaver Meadow Creamery,
215 F. 2d 247 (C. A. 3), and the cases therein cited. I find the contention, there-
fore, without merit.
III. THE UNFAIR LABOR PRACTICES
A. The Respondent's plant organization
The Respondent's San Diego plant, involved in the instant case, operates under the
supervision of Mitchell J. Simon, its Pacific coast production manager. Immedi-
ately subordinate to Production Manager Simon, Fred Harms functions as plant
superintendent. Under Plant Superintendent Harms there are 3 general foremen;
only 1 of these however, Kenneth King, played a significant part in the events with
which this case is concerned. Under its general foremen, also, the Respondent em-
ploys more than six assistants or section foremen, otherwise designated in the record
as department foremen. Only two of these, Melvin Kresin 2 and Clyde Casey, appear
to have been involved in the situation now under consideration.
The employee group supervised by Kresin, the record shows, may number 40 at
the most; Production Manager Simon's testimony, generally, indicates that he super-
vises over 30 employees. Three leadwomen function under Kresin. At all material
times, this group included Helen Greenwood, the leadwoman of a group which in-
cludes approximately 15 employees, and Peggy Redden, the leadwoman of a group
which fluctuates in size from 10 to 20 employees. Production Manager Simon's
testimony, which stands in the record without contradiction, indicates that these
leadwomen spend more than 80 percent of their time in actual production. The
Respondent does not consider them supervisors. They are hourly paid. Simon
characterized Greenwood as a "service" girl who supplies the other girls working on
the firm's large rotary conveyor-an assembly line-with the materials they need
and relieves them whenever they have to leave the conveyor table. Other evidence
in the record, however, establishes that she may also direct employees to take particu-
lar stations on the conveyor, on occasion, and that she is authorized to call upon
another "all around" girl, Betty Cave, to handle relief assignments and bring supplies.
At the time of the events with which we are now concerned, the San Diego plant
was engaged , among other things, in the manufacture and assembly of "cowl har-
nesses" for use in passenger automobiles. These harnesses, the record shows, con-
tain a group of, insulated wires, each fitted with appropriate metal connectors; they
are assembled in conformity with a predetermined pattern, bound with an overall
2 Kresin, in charge of the "finished assembly" department, supervised the employee group
which included the complainants herein. A "chief Inspector," not otherwise designated
in the Respondent's managerial hierarchy, also supervised the work of Mrs., Lvan s-as a
checker.
ESSEX WIRE CORPORATION OF CALIFORNIA 351
coat of'plastic, and shipped for insertion and attachment under the dashboard of some
particular make and style of passenger car. Production Manager Simon's undenied
and credible testimony indicates that the average harness manufactured, at all times
material , contained approximately 32 wires, most of them with appropriate attach-
ments-a block, terminal, connector, switch, or circuit breaker, and so forth.
In the finished assembly department, under Kresin's supervision, Peggy Redden
served, I find, as the leadwoman-of an employee group which operand individual tap-
ing machines to coat certain wires with plastic tape, and a small rotary conveyor or
assembly line devoted to the fabrication of harness subassemblies. Greenwood, the
record shows, functioned as the leadwoman at a large rotary conveyor table. Essen-
tially, the productive unit thus designated appears to be a large, continuously moving,
assembly line with jigs upon which individually taped wires and wire subassemblies
are fitted in connection with the final assembly operation. Production Manager
Simon described the operation as follows:
a group of girls around the rotary table, each girl has a station. Each
girl does a particular operation and starting out, No. 1 station gets completely
around the table. [After] all stations have been fulfilled [the] harness finished
is removed from the conveyor and put on the overhead conveyor. . . . This
is a final assembly and they will put these wires on a jig. The jig is all laid
out and the wires fit in certain places. They will put these wires on consecutively
going down the table as the jig passes their station. Then as it makes the turn
and goes to the reverse side of the table . the harnesses are then taped
with the plastic tape . . . then, as it makes the final turn, there is a girl, the
last girl . . . who removes this harness physically from the jig.
After removal, at the "take-off" station, each harness is suspended from a hook
on an overhead conveyor, slightly to the rear: it is carried by the overhead conveyor
to other employees for the addition of certain attachments, then to an oven which
bakes its plastic coating to a "homogeneous" state, then to the firm's "inspection"
area in which defective items are tagged and removed for repair, and finally to the
shipping department in which they are removed for packaging and shipment.
B. Employee representation
For a number of years-the exact number being immaterial-the employees at the
San Diego plant have been represented in collective bargaining by Silvergate District
Lodge No. 50 in behalf of Automotive Electric Lodge No. 1930 of the International
Association of Machinists. Continuously and at all times material , indeed, that
organization has functioned as the exclusive representative of the employees pursuant
to a contract with the Respondent; a copy of the agreement received in evidence
reveals that it became effective on January 15, 1953, and remained in full force and
effect through May 15, 1954. I so find.
Under this agreement , the Respondent recognized the union-to be designated in
this report as the IAM whenever necessary-pursuant to a Board certification issued
on July 22, 1948, as the exclusive collective-bargaining agency for all of the Respond-
ent's employees except office and clerical workers, guards, professional employees,
and supervisors as statutorily defined. The agreement also provided for a con-
ventional "thirty day" union shop, and a voluntary checkoff with respect to initia-
tion fees and dues.
Subsequently, as of May 15, 1954, this contract was replaced by a new agreement,
scheduled to remain in full force and effect until November 15, 1955. The provi-
sions of the new agreement with respect to the scope of the bargaining unit, the
union shop, and the voluntary checkoff, represent a continuation of previous commit-
ments without change.
C. The campaign on behalf of the United Mine Workers
Late in 1953, apparently, several employees of the Respondent became interested
in the UMW as a possible bargaining agent. Some discussion of such a change in
the bargaining agency appears to have taken place in December of that year, shortly
before the holidays.3 Mrs. Evans was designated as the chairman of an organiza-
3 Mrs Hamilton appears to have been active in these discussions. Her husband, J. C.
Hamilton, and her sister-in-law, Mrs. Evans, were also interested. All were employed at
the time in the finished assembly department of the plant-Mrs Hamilton as a taping
machine operator, Mrs. Evans as an inspector or checker, and J. C. Hamilton as a packer.
James A. Juhl, a maintenance mechanic, also appears to have become interested in UMW
representation at the same time. I so find.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional campaign in the UMW's behalf. With other employees, she undertook to
solicit authorization cards in behalf of that organization, before the holidays'and
thereafter, at the homes of the employees and at the plant.
A synthesis of the testimony given with respect to this organizational campaign
consistently indicates-at least insofar as the UMW sympathizers are concerned-
that the organizational activity at the plant was confined to the free time before and
after work, the lunch hour, and the established morning and afternoon rest periods.
Their testimony indicates that the UMW adherents, upon a few occasions, may have
accepted executed authorization cards proffered by their fellow employees during
working hours, and that they may have answered occasional questions asked, on
company time, with respect to the organization. As witnesses, however, all of the
UMW adherents testified that they had not, themselves, engaged in organizational
solicitation or initiated discussions of the campaign on "company" time, This
testimony was vigorously disputed. To the extent that the conflict indicated may be
material, it will be analyzed elsewhere in this report.
Early in January 1954, James A. Juhl helped to distribute UMW membership
cards. On the day after he initiated this activity he was accosted by his foreman,
'Clyde Casey. No one else appears to have been present. Juhl's testimony with
respect to their conversation reads as follows:
Well, anyway, I was coming near the punch press line which is right near that
part of the factory and Casey called me over. He asked, he says, if I was
passing out membership cards for Mine Workers and I said I was. And he says,
"Have you got any of them signed?" And I said, "Yes, I do." And he said,
"What are you trying to do, make a fool out of me?" And I said, "No,"
I didn't know quite what he meant. I said, "No." He said, "Where are the
cards?" I told him I had them on me. He said "Don't you like your job here?"
I said, "Yes." He said, "Well, I want the cards in my office in five minutes."
I didn't know what exactly to do. I took the cards and gave them back to the
people on company time on threat of being discharged and went to the office
and told him I gave them back to the people. Then, he went on to tell me-
I gave the cards back to the people-and then he went on to tell me that in
order for me to campaign and get another union, I first had to notify the front
office of the plant and then I would have to wait until the contract of the IAM
expired and have to have a vote on two or more unions to see which came
in and that was the end of that meeting.
Juhl's testimony, as quoted, was not specifically challenged in cross-examination
and it has not been denied. In general, the maintenance mechanic impressed me as
an honest, forthright witness. None of his testimony could be characterized as
inherently incredible. With respect to the portion noted, I find it worthy of accept-
ance.
The UMW's organizational activity, I find, gave rise to considerable discussion
and conflict among the employees. Several characterized the situation as one
marked by "confusion" and "bickering" with respect to the right of the UMW ad-
herents to engage in such activity. And Production Manager'Simon's testimony,
which I credit in this connection, indicates that he became aware of the situation
quite early. On a date not set forth specifically, but apparently early in January,
he sought advice by telephone from the Respondent's main office in Detroit, Mich-
igan, with respect to the course of conduct he ought to follow. In substance, it
would appear that he was advised to follow a "middle course" and to avoid any dis-
play of partisanship in the "factional" dispute, but to insist that no organizational
activity could be conducted during working hours. And Simon's testimony, which
I credit, establishes that the Respondent's supervisors were instructed, orally, to
maintain such a policy and to insist that company time be devoted to work. The
production manager's testimony also establishes that he was told the firm could
do nothing about union button's and campaign material as long as they were not
being "handed from one to another" on the job during working hours.
The production manager also testified that a group of four employees-presum-
ably IAM adherents-came to see him shortly after his receipt of the instructions
indicated. His testimony reveals a complaint on their part with respect to the dis-
tress allegedly felt by many employees in regard to the UMW's organizational ac-
tivity; he was asked, it would appear, whether the Respondent could do anything
to ameliorate the situation, presumably by the imposition of some restrictions upon
the UMW's campaign. Consistently with his instructions, however, Simon appears
to have advised the employees that the Respondent would have to maintain a posi-
tion of strict neutrality, and that any advice as to the courses of action available to
the employees would have to come from their accredited union representatives,
ESSEX WIRE CORPORATION OF CALIFORNIA 353
The employees were also advised, I find, that the Respondent, under the law, would
insist on a prohibition of "campaigning" on company time by either employee
group a
At or about the same time-within a day after Simon's Detroit call-he appears to
have found an occasion to admonish Gerald W. Pipmeier, a UMW adherent, for re-
ceiving a UMW pin from another employee, and for attaching it to his shirt, during
working hours. The burden of the admonition, as indicated in Simon's undenied
testimony, seems to have been that the distribution of union pins or buttons, and
their passage from one employee to another during working hours, constituted cam-
paign activity on company time. And Pipmeier appears to have been told, in effect,
that his guilt in this connection had not been established by observation, but that he
would be well advised to conduct himself in accordance with the indicated rule there-
after. I so find.5
Within 2 days after his receipt of the instructions, Simon prepared a notice to be
posted on the Respondent's bulletin board. There is some conflict as to whether the
notice in question was actually posted, its location, and the date of its appearance. A
copy produced for the record, however, indicates that it was prepared for posting on
January 14, 1954, and I find, after a reconciliation of the available evidence, that the
notice was in fact posted on that date. It read as follows:
TO: ALL EMPLOYEES
IT HAS COME TO OUR ATTENTION THAT OUR EMPLOYEES ARE
ENGAGED IN UNION CAMPAIGNING DURING WORKING HOURS.
ANY SUCH CAMPAIGNING FOR ANY UNION DURING WORKING
HOURS IS CONTRARY TO COMPANY RULES AND, THEREFORE,
THOSE INVOLVED ARE SUBJECT TO DISCIPLINARY ACTION.
WE REQUEST THOSE INVOLVED CAMPAIGNING FOR ANY PUR-
POSE ON COMPANY TIME TO REFRAIN FROM : THESE PRACTICES
IN ORDER THAT WE MAY NOT BECOME INVOLVED IN SOME
UNDESIRABLE INCIDENTS.
Shortly after this notice was posted, Juhl's foreman , I find, took him to see the pro-
duction manager The employee 's version of the conversation that ensued reads as
follows:
and he asked me if I was campaigning on company time. And I said,
,No, I wasn't campaigning on company time but I was on company property."
Well, he told me that we were causing a lot of grief , you know, while the people
going up in arms against everybody and things like that and explained to me if
I want to campaign to do it off the company property out of the company
time. And I told him I was doing it during lunch hour and rest period and he
said the rest period was company time because we were being paid by the com-
pany for rest periods.
The maintenance mechanic 's testimony also indicates that Simon spoke to him again
about 1 month later with regard to his participation in the UMW campaign . Accord-
ing to Juhl , the production manager criticized him for allegedly "passing it around"
that employees at the Respondent's Anaheim plant were getting higher wages per
hour than those in San Diego. Simon went on, according to the maintenance me-
chanic, to explain the basis for any wage differential between the two plants . Juhl's
testimony also indicates that the production manager again admonished him with
respect to "campaigning on company time and property " in general terms. The
maintenance mechanic , according to his testimony, countered with a question as to
whether it was permissible for employees to solicit "retractions" from UMW adher-
ents on company time; Simon 's reply, according to Juhl, was that Goldie Riggins-
an official of the IAM local-was allowed to collect dues and process grievances on
4 Upon the record as a whole, there may be some question with respect to Simon's at-
tempt to assign a January date to this conversation, immediately subsequent to his re-
ceipt of instructions from the Respondent's main office In the light of the available
evidence, however, I am satisfied that the indicated conversation took place, and that it
probably took place in January, as the production managei testified
5 In i eachuig this conclusion, I have accepted the testimony of the production manager,
which stands uncontradicted. I do not believe it to be inherently incredible. Ptpmeier,
although subpenaed in the General Counsel's behalf, did not appear as a witness-and the
record establishes that he had resigned his position at the plant after the Incident In
question, to accept other employment, and that lie had then sent a written expression of
good will to the'itespondent's production manager. '
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company time, and that any restriction of her "campaigning" on company time was
bottomed upon a gentleman 's agreement.
The testimony of the production manager, in this connection, was brief. Imme-
diately after a detailed exposition of the warning given to employee Pipmeier, previ-
ously noted, Simon testified that: _
I also made that statement to James Juhl in the presence of Mr. Casey and
Mr. Lee Baker on two occasions that I didn't care what they did outside or what
union they wanted or who they wanted to represent them but they weren' t going
to do it on company time.
In the face of this testimony-which I credit, despite its summary character, for
seasons to be noted elsewhere in this report-I find Juhl's testimony erroneous,
insofar as it purports to indicate a general prohibition of organizational activity on
company property during nonworking time. The maintenance mechanic did testify,
however, to a declaration by the production manager that rest periods would be
considered company time during which campaigning would be forbidden. This
aspect of Juhl's testimony has not been denied. And I find that Simon, in the course
of the conversation indicated, so construed his posted rule with respect to organiza-
tional activity.
In view of the IAM's status as the accredited representative of the employees for
a number of years, some of that organization's "buttons" appear to have been worn
at the San Diego plant prior to the advent of any rival organization. With the
inception of the UMW organizational activity, however, the employees were appar-
ently urged to wear IAM buttons as a sign of their "loyalty" to that organization.
And the record establishes that many did so. J. C. Hamilton, as a witness, also
testified, however, that he observed an JAM representative, on one occasion, in the
plant during working hours, engaged in the distribution of IAM buttons to the
,employees. Hamilton dated the incident as approximately February 1. Various rep-
resentatives of the Respondent, as witnesses, denied any knowledge of the indicated
button distribution; the packer's testimony with respect to it, however, has not been
contradicted. I find that the incident, as he described it, occurred.
On Monday, February' 8, 1954, pursuant to the advice of a UMW representative,
Mr. and Mrs. Hamilton-and possibly others-publicly acknowledged their adherence
to that organization by donning UMW buttons at work. Before work started that
day, J. C. Hamilton appears to have become involved in an altercation with Jean
Rooney, another employee. The latter subsequently complained to her IAM com-
mitteewoman, Goldie Riggins, that Hamilton had threatened to "slap" her, and
Riggins appears to have reported the incident to Production Manager Simon. Ham-
ilton, at all events, was called in for an explanation.6
In the course of the conversation that ensued, a question appears to have been
raised with respect to Hamilton's UMW activity. The packer, according to his
testimony, denied that he had been campaigning for that organization on company
time or company property. Riggins, again according to his testimony, disputed that
statement and Simon, he testified, declared himself to be aware of his (Hamilton's)
organizational activity, and reported that he had also talked to Juhl about such
activity on company time. Hamilton's testimony indicates that the production
manager then referred to his UMW button and told him to "take it off and leave it
off" as long as he was in the plant. Hamilton testified that he did so, and that he
was told by Simon that he (Simon) did not wish to see that badge on Hamilton again.
Hamilton's further testimony with respect to the incident, then, reads as follows:
and just as I started along the corner to go back to my station, Mr. Simon
told me, called me back and said, "Jimmy, come here. I'm going to give you
a warning now. I don't want to hear you signing nobody for the Mine Workers
in this plant as long as this is on company property or company time." He
said, "I pay you for the break and that is my time," and he said, "I'm giving
you this warning now so you can take it." And he said, "I want you to get
back in your station and stay there."
As a witness for the Respondent, Production Manager Simon substantially cor-
roborated Hamilton's testimony with respect to their conversation about Jean
Rooney's complaint-which I have not troubled to explain in detail. Insofar as the
Test of the conversation outlined in Hamilton's testimony is concerned, however,
6 He denied the alleged threat and nothing came of the incident. Production Manager
Simon's remarks with respect to it-upon which all of the witnesses are substantially
agreed-reveal no bias, in my opinion, with respect to the underlying "factional" dispute.
I have, therefore, refrained from any attempt to set forth the controversy in detail.
ESSEX WIRE CORPORATION OF CALIFORNIA 355
Simon was asked to comment only with respect to the charge that he had told the
packer to take his badge off and leave it off,, as long as he was in the plant. This
the production manager denied. -
Hamilton's testimony with respect to the incident was given in a straightforward
manner. I am satisfied that it was honestly given, and that it represents his best
recollection. Insofar as it purports to reiterate a contention on the part of the pro-
duction manager that "break" periods represented company time, during which no-
UMW organizational activity would be permitted, I am satisfied that it is in accord-
with the facts. Two questions, however, remain: Did Simon's warning to Hamilton-
include a sweeping prohibition against organizational activity on company property
without regard to the time at which it might take place? And, secondly, did he=
order Hamilton to remove his UMW button and refrain from its display in the plant-
thereafter?
Upon the entire record, I find myself persuaded that each of these questions.
should be answered in the negative. The available evidence establishes, in the ab-
sence of effective contradiction, that Production Manager Simon had already con-
ferred with the Respondent's legal department and that he had been advised, in sub-
stance, to pursue a nonpartisan policy in the developing conflict, while insisting on
the Company's right to ban organizational activity during working hours. And I am
satisfied that Simon was sincere in his desire to effectuate such a policy. Several
of the witnesses who testified at the call of the General Counsel, in fact, recited
donversations which strongly suggest-if they do not, indeed, establish-a genuine
effort on the part of the production manager to maintain a balanced neutral posi-
tion . Although the record will show, as I have found, that he considered the Re-
spondent's daily rest periods part of the "company time" during which organiza-
tional activity might properly be forbidden, I do not believe that a preponderance of
the evidence will support a conclusion that he intended the firm's ban on organiza-
tional activity to be effective on company property at all times. Nor will a pre-
ponderance of the credible evidence, in my opinion, establish that he-the produc-
tion manager-ever ordered Hamilton or any other employee to remove a UMW
button in the plant. I am satisfied that his comments with respect to these buttons
were in fact limited, as he testified, to a prohibition of their passage from hand to
hand during working hours, on the theory that such a button transfer constituted
organizational activity on company time . And it is so found.
On February 8, also , about 15 minutes after the conversation just noted, Mrs_
Evans engaged the production manager in conversation again . The discussion, ac-
cording to Mrs. Evans, revolved around her complaint with respect to the circula-
tion of a petition in the plant, by the adherents of the incumbent union, which UMW
supporters were not allowed to see or sign . Simon was informed, the checker testi-
fied, that the petition was being circulated on company time. According to Mrs..
Evans also, Simon , in response, indicated merely that he was aware of the petition,
but that he did not know what he would do about it.T The production manager did
testify that Mrs. Evans told him about the alleged activities of Dorothy Randall, an,
official of the incumbent local, in connection with the circulation of "deauthoriza-
tion" cards in the plant to announced UMW supporters. Simon's testimony indi-
cates, however, without effective contradiction, that he had described such action-
° Upon the entire record , there is certainly some doubt as to the character of the petition.
Mrs. Evans testified that she had been "told" by one employee that it was addressed to a-
local "TV" station, and that it had been prepared to serve as a mass request for more
polka music -to be played by the station in question. She also appears to have been "told"
by Committeewoman Riggins, however, that the petition was being circulated only to
employees previously in attendance at an IAM union meeting. Production Manager Simon's
testimony indicates that the only petition known to him was a petition signed by more
than 50 employees , requesting that he grant an audience to them for some unspecified rea-
son ; Simon identified that petition, however, as one circulated just before his January
conference with an employee delegation, previously noted, in regard to the Company's pro-
posed course of conduct with respect to the "confusion " and "dissension" prevalent in the-
plant. Having found that the conference in question took place immediately prior to
the posting of the Respondent 's January 14 notice, I am constrained to conclude that the,
references of Mrs. Evans ' to a petition currently being circulated may have been grounded
in nothing. more than anticipatory fear that the "TV" petition had, in fact, been motivated:
by the employee opposition to the IUMW campaign. The evidence is inconclusive ;'however.
Upon the entire record , therefore , I cannot find that the incident reveals any indifference
on the part of management to the conduct of an antiunion campaign on company time, as-
the General Counsel would seem to suggest.
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .
by Randall, if established, as contrary to company policy, that he had described
himself as without personal knowledge of the matter, and that he had asked his
subordinates to investigate and make a report as to whether Randall was, in fact,
so engaged . In the absence of any dispute, I credit this testimony.
Among other things , it is worthy of note in this connection that Mrs. Evans, ac-
cording to her own testimony , told Simon , during the conversation now in issue,
of the way in which the other employees were "treating" the UMW adherents.
According to Mrs. Evans , Simon asked whether she had ever raised a question with
respect to the problem before the IAM leadership ; her reply, apparently , indicated
the reluctance of the incumbent Union 's leadership to entertain a grievance against
itself. She testified that the production manager then told her that whenever any-
body did "anything" to her she was to "come in" and file a grievance . The attitude
of the production manager , thus revealed , has been one of the factors impelling me
to conclude , as I have concluded , that his course of conduct in this situation did
not stem from any bias against the "outside" organization or in favor of the incum-
bent Union.
On February 8, also, Mrs. Hamilton , wearing a UMW button , was approached
by General Foreman King while at her taping machine. Her testimony , with respect
to the conversation which ensued, reads as follows:
He came to me and he says, "Ann," he says, "have you read or have you heard
of the notice that Mr. Simon had posted on the bulletin board that there was
to be no campaigning on company time or property ?" And I says, "I'm not
campaigning on company time or property." He said , "You are wearing a
badge." I said, "Well, I'm still not campaigning ." And he said , "Well, you'll
have to take that badge off." And I said, "I didn't see why I'm not allowed to
wear my badge if other people are." He said, "Well, we think you are cam-
paigning and you have to take your badge off." And he left me.
General Foreman King, as a witness, insisted that he had never ordered any em-
ployee to remove a UMW badge or button. His testimony shows, however, that
Mrs. Hamilton 's action in displaying the button had been brought to his attention
by several TAM adherents, that these supporters of the incumbent Union had com-
plained of the "dissension" engendered by the UMW campaign, that he (King) had
requested advice from Production Manager Simon with respect to the Respondent's
policy in the situation-and that he had spoken to Mrs. Hamilton , nevertheless,
without awaiting the production manager 's answer . In general , the foreman im-
pressed me as a reluctant witness-somewhat abashed , to say the least , at the sound
of his own testimony. His demeanor as a whole, conveyed a very strong impression
that relevant information, within his knowledge, was being deliberately withheld.
Upon the entire record, and my observations , I find Mrs. Hamilton 's version of the
incident, quoted, more worthy of credit. It is so found.
On the morning of February 10 however, pursuant to the renewed advice of a
UMW representative, Mrs. Hamilton wore her button again. This time, shortly after
work began, she was approached by Section Foreman Kresin. Her version of their
conversation reads as follows:
He came up to me and he says, "Ann , I don 't want you to start any fussing or
fighting back in the plant about wearing your badge ." I said , "Mel, I'm not
going to say anything to anyone . If anything is said , they will say it to me."
He says, "Well, you will have to take that badge off. . . . And I left my badge
on and he walked away.
Mrs. Hamilton 's testimony also indicates that she pointed out that "the other people"
were wearing their badges , and that Kresin made no comment.
The section foreman admitted an admonition to Mr s . Hamilton about campaign-
ing on company time, but denied any order with respect to the removal of her UMW
button . _ His futher testimony , however, indicates that Redden and Dorothy Randall,
adherents of the incumbent Union , had complained to him about the UMW pins
earlier, in the week . There is no evidence whatever , in the record , with respect to
Mrs. Hamilton's activity in behalf of the UMW on company property, during work-
ing hours or otherwise. Insofar as the record will support any conclusion, I am
convinced , that the section foreman 's warning with respect to "campaigning" on
company time could only, have been based upon a belief that the display of a,UMW
button constituted campaigning . , In" the light of the available evidence and`, my
observations , then , I credit Mrs. Hamilton's version of the incident now under con-
sideration . In doing so, however , I, have placed no reliance upon the corroborative
testimony given by Mrs . Evans, who described the Kresin-Hamilton conversation as
ESSEX WIRE CORPORATION OF CALIFORNIA 357
one taking place before the day shift started-a contention not otherwise established
by the record.
Shortly after the morning "coffee break" on February 10-during which Mrs.
Hamilton left the plant under circumstances to be related elsewhere in this report-
Production Manager Simon appears to have had a conversation with J. C. Hamilton,
at his work station, with respect to union activity. The statements of each in regard
to the gist of their talk, however, are sharply at variance. No useful purpose, in
my opinion, would be served by a detailed analysis of their testimonial conflict. For
the purpose of this report, I find it sufficient to note that Hamilton, in substance,
accused the production manager of ordering him to take off his UMW badge.
According to Hamilton, Simon also threatened him with discharge for engaging in
UMW organizational activity, advised him that all of his incoming telephone calls
would have to be routed through the Respondent's office thereafter, and threatened
to close the San Diego plant and remove all harness work to the Respondent's
Anaheim operation if the UMW campaign succeeded. The manager, in his final
appearance as a witness, denied the issuance of any order requiring the removal of
UMW badges; he also denied any threat to close the San Diego plant, and charac-
terized such a threat, in fact, as impossible of execution, for reasons not material
in this report. He admitted a conversation with J. C. Hamilton in which he had
attempted to admonish the packer with respect to absences from his work station in
connection with incoming calls, and in which he had insisted upon the Respondent's
right to control the activities of employees during working hours, despite a threat
by Hamilton to initiate charges before this agency on the basis of the Respondent's
alleged interference with protected concerted activity on the part of the San Diego
workers.
Whatever the situation with respect to Kresin and King may have been, I am
satisfied that Simon understood, generally, the permissible limits of employer action
in a context of organizational rivalry. He had, of course, been "briefed" in this
respect, some time earlier. I find it difficult, therefore, to believe that he would have
engaged in baldly coercive threats of the type indicated in J. C. Hamilton's testimony.
His own version of the conversation was given with every indication of sincerity,
and abounded in circumstantial detail. Upon the entire record, then, I have rejected
J. C. Hamilton's version of the incident.
The testimony of Mrs. Evans indicates that early in February, on a date not set
forth specifically in the record, Production Manager Simon-in a lengthy conver-
sation-indicated his preference for the incumbent Union as the accredited repre-
sentative of the employees, insisted upon the propriety of a UMW button ban be-
cause of the Respondent's obligations under its IAM contract and 'because such
button displays would constitute campaigning on company time, indicated that he
felt free to discharge Mrs. Evans for "insubordination" and to move the San Diego
plant's work to Anaheim, and identified himself as the individual who had "drug"
in the IAM when informed of the desires of the San Diego employees with re-
spect to union representation. This testimony, too, was vigorously challenged by
the production manager. His version of it, in my opinion, requires no repetition.
With specific reference to the only thing new in the remarks attributed to him,
Simon denied that he had "drug" in the IAM to represent the Respondent's San
Diego employees. And, in fact, the Respondent's contract with that organization-
received in evidence without objection-embodies a recital with respect to its cer-
tification prior to Simon's San Diego assignment. Upon the entire record, then,
I am satisfied that Evans misconstrued the plant manager's remarks, in this as in
other respects, and that their overall import suggests, rather, a determined effort
on the part of the Respondent's local management to give effect to its current IAM
contract and, at the same time, to maintain a policy of neutrality. It is so found.'
The record is silent with respect to the UMW's organizational activity, if any, at
the San Diego plant after February 10, as noted. Some time previously, it would
appear, charges had been filed against Mrs. Hamilton, Mrs. Evans, and several
other adherents of the "outside" organization, as members of the incumbent Union.
These charges appear to have been heard before an appropriately constituted com-
mittee of the incumbent Union some time subsequent to -February 10. None of the
individuals charged appeared in their own' "defense. All of them, apparently, were
expelled. '
D. Mrs. Hamilton's discharge
On February 10, 1954, Frances Miranda, the Respondent's "repair girl" was ab-
sent , and shortly after work began, L find, this fact was reported by Redden to the
section foreman . Kresin immediately undertook to arrange for Miranda's tempo-
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rary replacement.8 Within an hour after work began, Kresin'appears to have de-
termined that Inez Hobbs, an employee regularly assigned to the large rotary con-
veyor-also designated as Debbie in the record-would have to be assigned to Mi-
randa's repair station, and that Mrs. Hamilton, then assigned to a "taping" machine,
would be the employee designated to replace Hobbs, temporarily, on the conveyor.
Greenwood and Redden, I find, were so advised.
The manner in which the section foreman reached his decision is not revealed,
clearly, by the record. He may have conferred with both of the leadwomen in-
volved, and he may, indeed, have sought-.their suggestions with respect to the re-
placement of the absent repair girl. I find it most logical, and consistent with
sound industrial practice, to assume that he did. At least two of the employees on
the large conveyor-including Hobbs, then assigned to a "wire" station-appear to
have had sufficient experience to handle the repair assignment; Kresin could very
well have sought Greenwood's assistance in connection with the choice he had to
make. Her testimony suggests that he did; at least, it is indicated that he told her
he might have to use one of the conveyor girls at the repair station. And there is
testimony by Redden, which I credit, that Kresin asked her to suggest a temporary
replacement for Hobbs on the big conveyor and that Mrs. Hamilton was suggested
by her. Eunice Ford, an incumbent union official, testified that she had previously
suggested Mrs. Hamilton to the leadwoman, with deliberate malice, as,a replace-
ment on the conveyor. Her testimony also suggests that Redden had acquiesced
in the suggestion, after a reported conference with the Respondent's production
manager. In the light of the entire situation revealed by the record, however, I have
not considered this testimony worthy of credit. Even if accepted, it would not be
sufficient, in my opinion, to sustain a conclusion that Mrs. Hamilton's actual selec-
tion for temporary reassignment to the large conveyor, by Section Foreman Kresin,
was motivated by malice. No such conclusion is reached.
Within a short time after Kresin's announcement, Greenwood apparently de-
cided that the replacement to be supplied by Redden would not be assigned directly
to the work station vacated by Hobbs. A double shift appears to have been ar-
ranged, under which Hobbs, when called, would leave for the repair assignment
and Jo Hutchins, then assigned to the "take-off" station, would be assigned to re-
place Hobbs. Mrs. Hamilton, the transferee, then would be assigned to replace
Hutchins. The record is silent as to the circumstances under which Greenwood
made these decisions, and the manner in which they were communicated to the
employees involved. Greenwood testified, however, without qualification, that she
had discussed the projected shift with Hutchins and Hobbs sometime prior to the
arrival of Mrs. Hamilton in Redden's company. Upon the entire record, also, I am
satisfied with respect to Greenwood's awareness, at the time, of the fact that Mrs.
Hamilton was scheduled to be the replacement for Hobbs. I find that she was
aware of the projected reassignments when she outlined the shifts to be effectuated
to the girls under her direction.
At 9 o'clock, approximately, Redden asked Mrs. Hamilton to accompany her to,
the large conveyor. The taping machine operator did so. Upon their arrival, Redden
informed Greenwood, then relieving another employee at a work station on the con-
veyor approximately 25 feet away, that Mrs. Hamilton was ready for her temporary
assignment. Greenwood, I find, waved her arm in acknowledgment; this action served
as a signal to Hobbs, who immediately left her station on the conveyor, immediately
adjacent to the "take-off" station, and went off to assume her temporary assignment
as the Respondent's repair girl. Simultaneously, Jo Hutchins, then assigned to the
"take-off" station, stepped into the station which Hobbs had vacated. Betty Cave, the
relief girl assigned to serve as a general assistant to Greenwood on the conveyor,
indicated to Mrs. Hamilton that she would have to work at the "take-off" station.
She-Mrs. Hamilton-did so and productive operations on the conveyor continued
without interruption. The taping machine operator, I find, had no opportunity to
8 The Respondent's repair station, I find, is a work station at which defective harnesses
"tagged" by the Respondent's inspectors are repaired. Wires with defective insulation,
and,defective or broken attachments, aie replaced. Upon the completion of any,necessary
repairs the,harnesses are sent, together with those which the inspectors have previously
passed, to the packers. The record shows, and I find, that uninterrupted performance at
the repair station is considered essential to the Respondent's productive activity, since an
accumulation of unrepaired harnesses on the Respondent's overhead conveyor would, in
short order, block the passage of the other completed work to the packers. The effective
replacement of Miranda was therefore , I find, essential.
ESSEX WIRE CORPORATION OF CALIFORNIA 359
discuss her assignment. And Greenwood's testimony establishes that she proffered no,
instructions as to the way in,which the job was to be performed.°
Within a few minutes after her assignment to the "take-off" station Mrs. Hamilton,
I find, asked Betty Cave for a pair of canvas gloves to protect her hands. The relief
girl indicated that they would be procured for her.10 Cave's testimony establishes,
credibly and without contradiction, that it was her usual practice, upon the receipt
of any request for gloves, to communicate the request to Section Foreman Kresin
and that the latter would bring them to her, after they had been procured from a store-
room with the assistance of the Respondent's janitor, in charge of the storeroom keys.
It is her testimony, also, that Mrs. Hamilton's request was communicated to Kresin
almost immediately. And this testimony has been corroborated by the section fore-
man. In the absence of effective contradiction, I find it credible. Mrs. Hamilton,
however, insisted that the gloves were not, in fact, handed to her within 15 or 20
minutes of her request, as Cave's further testimony would indicate; she received
them, she says, just before the Respondent's morning "coffee" break. Upon the
entire record, and my observation of the witnesses, I credit her testimony in this
connection.
In the meantime, for almost an hour, Mrs. Hamilton experienced considerable diffi-.
culty at her work station on the large rotary conveyor. Her testimony with respect
to the treatment she received from her fellow employees is not too detailed; a
synthesis of the available evidence, however, indicates that:
(1) She found the various harness wires pushed down tightly on the jigs, and,
sometimes tied, so that greater effort than usual, on her part, was required in order
to lift each completed harness from the conveyor.
(2) Several employees at stations directly opposite on the conveyor laughed at her,
and giggled at their work, in a manner which indicated to Hamilton that the em-
ployees involved relished her discomfiture at the "take-off" station.. Greenwood also,
laughed, when looking at her.
(3) The rough surfaces to be found on every completed harness scratched her-
hands-as she jerked the harnesses loose and lifted them from the conveyor-and
ultimately drew blood.
After approximately 1 hour in her new assignment, Mrs. Hamilton revealed her-.
self to be in obvious distress. She described herself as "nervous" and "upset" when
the regular rest period began and several other witnesses have testified, credibly,
that she was in tears.li
"These factual findings as to the method by which Mrs Hamilton was given her assign-
ment on the Respondent's big conveyor are based upon a synthesis of the available testi-
mony. Mrs. Hamilton testified that Redden left her with Cave, and that it was Cave-with
Greenwood's acquiescence-who directed Hobbs to leave for the "repair" station, shifted
Hutchins to the wire station thus vacated, and then assigned her (Mrs. Hamilton) to.
the "take-off" station. Upon the entire record, however, I have concluded that the taping
machine operator's version of the shift attributes too active a role to Greenwood's relief
girl.
10 The record indicates that a number of employees assigned to the rotary conveyor wore
gloves at work, occasionally at least, to protect their hands And Greenwood's testimony,
indeed, indicates that the girls at the "take-off" station customarily did so I so find.
These gloves appear to have been unfitted canvas work gloves of a type issued routinely
to the employees, upon request. There is no indication, in the available evidence, that the
Respondent had any fixed rule with respect to the disposition of such gloves. Some of-
the employees retained them until they became worn and useless ; others, apparently left-
their gloves in the center of the conveyor table, and reclaimed them as needed. The testi-
mony of Mrs Hamilton establishes, however, without contradiction, that there were no
gloves available on the table or otherwise, at the time of her assignment to the "take-off"-
station Hutchins appears to have retained the pair she had been using there.
"The Respondent argues vigorously that Mrs. Hamilton's testimony as to her difficulties-
at the "take-off" station should be rejected as incredible, because of her admission, as a
witness that she made no complaint of any kind, prior to her departure from the plant-
either to her leadwoman or the section foreman-about the harassment and mistreatment
to which she had, allegedly, been subjected And In retrospect, certainly, it would seem,
that,a complaint, to someone, might well have been more in accord with "ordinary human
behavior" or "standard operating procedure" under circumstances of the sort she has at-
tempted to describe There can be no doubt, however, on the present record, of her emo-
tional reaction to the treatment she received, allegedly, after the reassignment now in
issue. And, viewing the entire Incident. In the context of her evident distress, I cannot
agree that her failure to choose a more rational course by way of reaction militates, seri-
ously, against the credibility of her testimony.
379288-56--vol . 113-24
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leaving her station during the rest period; Mrs. Hamilton sought the Respondent's
nurse in the "coffee room " of the plant . In answer to an inquiry as to whether Mrs
Barnes, the Respondent's personnel clerk , could be found , Mrs. Hamilton was in-
formed by the nurse that she (Mrs. Barnes ) was not in the plant that day. The
taping machine operator , I find , then sought her section foreman . Their conversa-
tion , after she found him , proceeded , according to Mrs. Hamilton , as follows:
I went up to Mel and I says, "Mel , I'd like to speak to you, please ." And he
says, "All right, - what is it?" I said, "Mel, I'd - like to go home." He said,,
"What's the matter; are you sick ? If you are , go see the nurse." I said, " "Mel,'
what's wrong with me the nurse can not help ." He said, "Well , I hate to-see
you go." And I said , "Well, I just got to." And I said , "Don't you have to have
a slip, an order for me to leave the plant ." And he said , "I will fill it out and
hand it in for you." And that was all I had to say to him at that time.
According to Hamilton , she then punched out and left the plant. Kresin's version
of the conversation differs only in one significant respect. It reads, in the transcript,
as follows:
I happened to be in the aisle right at the tables and she met me there and told
me she wasn 't feeling well and wanted to go home . I says, "Ann , I can give
you a pass to go to the nurse . I cannot issue a [pass] to leave the factory if you
are not feeling well. You have to go through the nurse ." I told her I hated
to see her leave but if she was feeling bad [-] by that time she turned around
and walked away from me [-] I told her I would issue a pass for the nurse
she said, "What is ailing me the nurse cannot -do anything for me." I said,
"Well, I still have to give you a pass for the nurse."
Kresin denied that he ever told Mrs. Hamilton that he would make out a pass for
her, and that she was free to leave. As a witness,' he insisted throughout his tenure
on the stand , that he had merely indicated his willingness to make out a pass for the
taping machine operator to take to the nurse , and denied any commitment to pre-
pare a pass which would authorize her to leave the plant.
The record establishes , and I find, that the Respondent maintained a regular pro-
cedure, pursuant to posted rules and regulations , under which passes might be issued
to employees wishing to leave the plant for personal business during their shift, or
because of a sudden " illness. In cases involving personal business during working
hours section foremen appear to have been authorized to issue passes, in their own
discretion , which the worker involved would have to deposit with Mrs. Barnes at the
Respondent 's personnel office en route ,to the gate . In cases involving sudden illness,
the procedure appears to have called for the preparation of duplicate passes by the
section foreman which the affected employee would be required to present at the
office of the Respondent 's first aid nurse; after treatment , if the nurse indicated her
concurrence as to the employee 's inability to work, an appropriate notation would
have to be made on the second copy of the pass, and the employee involved would
have to present it to his or her section foreman, prior to any departure.
Upon the entire record , I find Kresin's version of the conversation now in-issue
more worthy of credit . Mrs. Hamilton , generally, did impress me as an honest wit-
ness, testifying to the best of her recollection . It is clear , however, that she was dis-
traught at the time of her conversation with the section foreman, whereas Kresin was
not. And in view of the section foreman's obvious need to retain the services of
every available employee-after his makeshift attempt to replace the firm 's absent
repair girl-I could not accept, easily , any contention that Mrs. Hamilton's departure
would have been facilitated by him , under the circumstances revealed by the record.
I find it to be more than probable, instead, that Kresin , in fact, did nothing more
than indicate his willingness to make out a pass for presentation by Mrs. Hamilton
to the Respondent 's nurse, and that the taping machine operator, in her distress, mis-
construed his statement as a promise , in substance , to relieve her of any need to
comply with the firm's posted rule. In reliance upon this interpretation of Kresin's
remarks, apparently , Mrs. Hamilton left the plant without securing any sort of docu-
ment from him for delivery to the nurse or the desk of the personnel clerk . ( In•re-
jesting Mrs. Hamilton 's version of the conversation now in issue , I have also rejected
the corroborative testimony offered , to the same effect , by her husband .. Although
he may not have been emotionally involved , at the time , his version of the incident
closely parallels that of Mrs. Hamilton ; I am convinced that his recollection of it has
been influenced and colored by hers.)
On the morning of the 11th, when she reported for work , Mrs. Hamilton found
that her timecard was not in its regular place. Upon inquiry of Mrs. Barnes as to
ESSEX WIRE CORPORATION OF CALIFORNIA 361
uhe reason for its absence , she was advised to see her foreman . She did so. Her
.testimony with respect to the conversation that ensued reads as follows:
I went up to Mel and I asked Mel why I had to see him before I went to work
and why my timecard was pulled. And he says, "Well," he says, "You left the
plant yesterday without permission." And I said, "Mel, you told me that you
would fill out the slip and hand it in for me." And he said, "You ought to
know you can't do anything like that." And I said, "How am I to know you
can't do anything like that? You told me you would." And he said, "I don't
know nothing else about it. You will have to see Mr. Harms."
The section foreman's testimony as to the conversation indicates merely that he
referred Mrs. Hamilton to Plant Superintendent Harms for the answer to her ques-
tion. The taping machine operator's version, however, as set forth above, contains
more circumstantial detail, and the sentiments attributed to Kresin by her are con-
sistent with the position which the Respondent ultimately took. I see no reason to
•doubt the accuracy of her recital, therefore, and accept it as a correct report of the
.section foreman's remarks.
Harms, according to Mrs. Hamilton, whose testimony in this connection has not
been denied or contradicted, reiterated the Respondent's belief that she had "walked
'off the job" the day before. The taping machine operator's attempt to explain "what
had happened" in the course of her rest period conversation with Kresin were met
with a further reiteration, by the superintendent, of the Respondent's belief. Mrs.
Hamilton then asked if she had been terminated and Harms replied in the affirma-
tive. She has performed no work for the Respondent since. On February 12, 1954,
she visited the Board's Los Angeles office, to file the initial charge in the instant case.
E. The discharge of Mrs. Evans
Mrs. Evans, I find, began work for the Company on April 2, 1953; most, if not all,
of her service appears to have been as a checker or inspector in the "finished as-
sembly" department, under the administrative supervision of Section Foreman Kresin
and the work jurisdiction of Alex Gordon-the latter being directly responsible,
within the department, for the effective performance of the "inspection" function.
Her activity on behalf of the Mine Workers Union, before and after the year-end
holidays, has already been noted. While that Union's organizational activity was at
its height, Mrs Evans appears to have functioned aggressively as the "chairman" of
its campaign . And, as such, she would necessarily be well known to the other em-
ployees as a UMW adherent. Such, in fact, was the case.'2
For the entire period of her employment, Mrs. Evans appears to have been con-
sidered an efficient and capable worker. Responsible representatives of the Re-
spondent have, indeed, conceded that her record as a checker was beyond reproach.
I so find. A synthesis of the available evidence, however, will also compel a con-
clusion that she was frequently involved in cross-complaints and controversy with
fellow workers. Alex Gordon, the firm's chief inspector, testified credibly that
bickering and arguments involving Mrs. Evans, and some of the other workers in
her area, developed throughout her period of employment. Several instances of
friction, apparently, were brought to Gordon's personal attention and, through
him, to the attention of other supervisors.13
12 The record shows that Mrs Evans, on several occasons, found "doohickeys" made of
scrap material on the overhead conveyor hooks passing her work station ; these objects,
otherwise indesi•ribable, usually bore tags with comments of a derogatory character about
the checker or the Mine Workers organization. Their origin his not been established;
Mrs. Evans identified Dorothy Randall, the IAM's vice president, as the originator of two,
only It may be inferred, of course, that they were prepared by IAM supporters on the
production line and that they were intended as a mild form of ridicule directed to Mrs
Evans as the UMW chairman There is no evidence that the Respondent's management
was actually aware of the "horseplay," involved, however
13 In his brief, Respondent's counsel described Mrs. Evans'as truculent. There is a sug-
gestion, however, in the testimony of Gordon and several others, that most of the con-
troversies in her woik urea involved disputes over the equitable distribution of the work,
iihd that Mrs. Evans-admittedly an efficient worker-was being subjected, perhaps un-
justifiably;-"to complaints grounded in 'the unwiirianted resentment of less capable em-
ployees 'Gordon also suggested that she may have been unduly sensitive. For the pur-
pose of our present inquiry , however, I find it unnecessary to fix the blame for any of
these early disputes i ' ' ' ' '
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 4, 1954, Mrs. Evans became involved in such a controversy with Loretta
Brown, another inspector. The available evidence is somewhat in conflict with re-
spect to the origin and nature of their dispute; upon the entire record, however, it
would appear to have involved a question on the part of Brown, again, as to whether
Mrs. Evans was performing hei equitable share of the inspection work. Dorothy
Randall, an incumbent union official, was asked by Brown, I find, to apprise Gen-
eral Foreman King of the controversy. Each of the employees, thereafter, discussed
the situation with the general foreman; their stories, apparently, were contradictory.
The general foreman, I find, advised them both that he would hear no more, and
that he did not believe either version of the dispute offered for his consideration to
be completely accurate. He insisted, finally, that Brown and Mrs. Evans would have
to "get along" with each other, and that "any" further disagreement would lead to
their discharge. The two employees were advised of his intention to have a written
notice of this ultimatum placed in their personnel files. And when the discussion
ended, I find, the general foreman did, in fact, write the promised note in regard to
each employee. Dated as of May 4, 1954, each note read as follows:
On this date above employee was warned and told that any future disagree-
ments would mean her dismissal.
The notes were signed by the general foreman and placed in the Respondent's per-
sonnel files, as indicated.
Later in the day Evans testified she went to King with an apology, but protested
his "final warning" on the ground that she had not been at fault in the contro-
versy. The general foreman, according to Mrs. Evans, then advised her that if
"anything else" came up she would have to "come in" and advise him of it directly,
since he did not wish her to "argue" about anything in the plant. King, as a wit-
ness, could not recall such a conversation; he did not, however, enter a denial. I
find therefore, in accordance with the testimony of Mrs. Evans, that she was thus
advised.
On June 3, 1954, however, a new cause of difficulty developed. Mrs. Evans, as
a witness, provided the only testimony with respect to its nature and origin. (Her
version of the situation is not inconsistent with the balance of the record, and cer-
tainly could not be characterized as inherently incredible; I-have found it worthy
of acceptance.) In substance, the checker testified that employee Brown, in a dis-
cussion not initiated on company time, accused Mrs. Evans and her brother, J. C.
Hamilton, of certain derogatory comments with respect to her work. Mrs. Evans,
according to her testimony, disclaimed responsibility for the remarks Brown at-
tributed to her, and subsequently discovered-by independent investigation-that
Brown's accusation had, in fact, been based upon a misconstruction of certain re-
marks about her by another employee. On June 4, 1954, before work began, the
checker attempted to explain the situation to Brown. The latter however, I find,
persisted in angry recrimination.
Shortly after the morning rest period, therefore, Mrs. Evans went to see the
Respondent's general foreman. Saying that she was following his most recent in-
structions, Mts. Evans reported Brown's anger with her over a fancied slight; in-
sisted that the incident giving rise to Brown's anger had been a subject of discussion
during their "free" time; and that she (Evans) was not really involved in an argu-
ment with her fellow checker; and declared her desire to report the situation before
a "twisted" story in regard to it became current. Overriding a protest by the
checker, King summoned Brown to his office for her version. Brown's recital,
however, differed sharply from that of Mrs. Evans, both with respect to the nature
of the incident which had given birth, allegedly, to her anger, and with respect to
the course of the discussion which had then ensued.14 After listening to each of the
employees King cut the incident short, I find, with the announcement that both of
them -would be discharged. According to Mrs. Evans, the general foreman de-
clared, in words or substance:
Loretta, I guess you know I have warned you. I told you the next time any
dispute between you two I was going to fire you both.... This is it.
1* Mrs Evans credibly testified that she and Brown had each described the discussion
between them as one which had not been carried on during working hours. The general
foreman's recollection of the incident, however, appears, understandably, to be somewhat
confused. He could not, as a witness, recall such a representation by either employee,
but made no attempt to deny it. Upon the entire record, I am convinced that he was, in
fact, so advised.
ESSEX WIRE CORPORATION OF CALIFORNIA 363
Section Foreman Kresin was called and advised of the general foreman's decision.
Mrs. Evans, however, did not accept it; she and her brother, who now entered the
discussion, continued to urge consideration of the fact that she had not, intentionally,
done anything to arouse Brown's ire, and that all of her attempts to mollify Brown
and disclaim responsibility for the remarks improperly attributed to her, had been
confined to nonworking time. King insisted, however, that his mind was made up
and that his decision would stand.
Mrs. Evans, I find, then attempted to carry her protest with respect to the alleged
injustice of the general foreman's decision to the Respondent's production manager.
Simon, however, cut short her request that he overrule King's decision; he advised
the checker, in substance, to press her protest as a grievance, under the contractually
established grievance procedure. Mrs. Evans accepted this advice; her grievance
"case" was initiated, I find, with the assistance of Betty Cave, the incumbent Union's
committeewoman for the "finished assembly" department.15 Brown, as the record
shows, also filed a grievance. She and Mrs. Evans were each invited to state the
basis upon which they chose to protest General Foreman King's decision to discharge
them, and to name the witnesses they wished to present in support of their respective
contentions. Mrs. Evans named several-Alex Gordon, the "chief inspector," being
one.
Thereafter, on a date not set forth in the record, the grievances were heard. Under
the contractually established procedure, each of the employees involved was afforded
an opportunity to protest King's decision before a grievance committee consisting of
4 members-2 plant employees designated to serve as the IAM representatives and
2 spokesmen for the Respondent Company. Production Manager Simon and Super-
intendent Harms, I find, served as the company representatives.
Considerable testimony was received, in this case, with respect to the procedure
which the grievance committee followed. Each of the aggrieved employees, appar-
ently, was heard separately. Committeewoman Cave, however, as their accredited
representative, was permitted to be present. Thereafter, the record shows, the com-
mittee heard only one of the employees named by Mrs. Evans as a witness in support
of her grievance. King and Kresin were also asked to testify. No further witnesses
were heard.16
In the end, the grievance committee-by a unanimous vote apparently-sustained
the action of the Respondent's general foreman, insofar as Mrs. Evans was con-
cerned. Brown's dismissal, also, was affirmed.
Mrs. Evans, however, made one more attempt to reclaim her position in the
Respondent's employ. In a subsequent conference with Freeman Brown, an IAM
business representative, she protested the grievance committee's refusal to hear all
of her employee witnesses, allegedly in a position to give testimony before it with
respect to the propriety of the general foreman's determination that she and Loretta
Brown had been involved in a "disagreement" which warranted their discharge.
Business Representative Brown was asked, I find, to carry her grievance to the next
step or, at the very least, to argue for a reversal of King's decision by Production
Manager Simon on the basis of the grievance committee's alleged failure to accord a
"fair" hearing to the aggrieved employees. The checker was advised, however, that
the concurrence of the IAM representatives on the grievance committee with respect
to the propriety of her discharge precluded further action by the organization in
her behalf, as a matter of right, under the contractually established grievance pro-
cedure. The business representative did, I find, promise to make informal repre-
sentations to the Respondent's local management in her behalf. The record does
not reveal, however, whether any such representations were, in fact, made. If made,
they were ineffective. Mrs. Evans has performed no services for the Respondent
since her discharge.
u The record reveals a testimonial conflict as to whether Cave had displayed hostility
in this connection, and as to whether she had initiated the grievance for Mrs. Evans will-
ingly. For reasons to be noted elsewhere in this report, however, I have found it unneces-
sary to consider the conflict revealed by the record in this connection. Whatever her per-
sonal reaction to the situation may have been Cave did, I find, initiate a grievance in the
checker's behalf.
is The decision to conclude the testimony appears to have been a unanimous committee
decision The testimony of Mrs Evans indicates, however-in the absence of effective
contradiction or denial-that Cave, as her representative, made no attempt to persuade
the committee that the other employee witnesses desired by her ought to be heard. And
I so find.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
A. Interference, restraint, and coercion
Under established decisional doctrine , fully explicated in decisions of this agency
too numerous to cite, it would seem to be entirely clear that the Respondent's posted
announcement with respect to the participation of its employees in "union campaign-
ing" during working hours, or on company time, involved nothing more than the per-
missible exercise of a management prerogative. The General Counsel, indeed, makes
no contrary argument. It is, instead , his contention, as set forth in the consolidated
complaint, that the management of the firm extended the "thrust" of its policy
announcement-described as a no-solicitation rule-unlawfully. I find merit in
this contention.
Early in January, 1954, as previously noted in this report, Foreman Clyde Casey
demanded that an employee, James A. Juhl, submit to him certain executed member-
ship applications or authorization cards secured by the employee on behalf of the
UMW during nonworking time. This demand, as the record shows, was implemented.
by a threat of discharge. Confronted therewith, Juhl felt compelled to return the
cards to the employees responsible for their execution, and to report their return to
his foreman. The Respondent has adduced no evidence that the cards in Juhl's pos-
session had, in fact, been solicited or procured on "company" time. Even if such
evidence could have been offered, however, a demand that the cards be surrendered
to a supervisory employee would clearly be worthy of characterization as unwar-
ranted. Casey's demand, and his subsequent insistence that the right of an employee
to "campaign" for a new union representative, under all circumstances, would be
contingent upon the expiration of the incumbent Union's contract, a representation
election , and notice to the Respondent's office, clearly represented an unlawful intru-
sion upon the statutorily guaranteed right of Respondent's employees to engage in
concerted activity for their mutual aid and protection. The Respondent's answer ad-
mits that Juhl was asked to surrender "certain cards" but alleges that he had been
using the cards to secure applications during working hours; it is further alleged
that Casey's demand had been calculated to "enable" Juhl to devote himself to his
work during working hours, and that the cards, if surrendered, would have been re-
turned to Juhl by Casey after his shift ended. These averments in the Respondent's
answer, of course, cannot be treated as evidence.
Shortly after Casey's attempt to intimidate Juhl, as I have found elsewhere in this.
report, the employee was again admonished-this time by the Respondent's produc-
tion manager-about "campaigning" on company time. In the light of the available
evidence, taken as a whole, I am satisfied that the conversation in which Simon thus.
admonished Juhl took place after the Respondent's "no-solicitation" policy was
announced or, at the very least, after the production manager had received his in-
structions with respect to the position which the firm might appropriately take. On
the basis of Simon's actual course of conduct, thereafter, as revealed by the record,
I am convinced that he was engaged in a genuine effort to implement the Respondent's
policy, as he understood it. In conformity with this conclusion, I have, elsewhere in
this report, rejected Juhl's sweeping generalization that he was instructed to cam-
paign "off the company property out of the company time" as grounded in error.
The production manager, however, has not denied that Juhl was instructed to desist
from union activity during official rest periods, on the ground that such periods
were "company" time; the Respondent's answer, indeed, admits that such instructions
were given and I have found, elsewhere, that Simon so construed the Respondent's
posted announcement. As a matter of law, however, such a construction must be
characterized as erroneous. In making it, the production manager was guilty of an
unwarranted extension of the Respondent's undoubted right to prohibit union activity
during working hours. Republic Aviation Corp. v. N. L. R. B., 324 U. S. 793;
N. L. R. B. v. Monarch Machine Tool Company, 210 F. 2d 183 (C. A. 6), and
the cases therein cited; Peyton Packing Company, 49 NLRB 828, 843-844,
quoted with approval in the Republic Aviation case, above. And in the absence of
any retraction, then, there can be no doubt that the position taken by the Respondent's
principal representative, in this connection, interfered with, restrained, and coerced
its employees in their exercise of the self-organizational rights guaranteed under the
statute, as amended. I so find. And Juhl testified, specifically, that his own activities
were curtailed in compliance with Simon's instruction , as given.
The General Counsel also argues , however, that the Respondent "unlawfully en-
forced" its posted policy when Simon warned Juhl, in the middle of February, that
certain remarks he had previously made to some of his fellow employees, outside the
plant and on nonworking time, involved'campaigning on "company time and prop-
erty," in defiance of the Respondent's announcement . This contention I find to be
ESSEX WIRE CORPORATION OF CALIFORNIA 365
without merit. Juhl's testimony merely indicates that he had told several employees
that workers at the Respondent's Anaheim plant were being compensated at higher
hourly rates than those prevailing in San Diego, and that Simon had accosted him,
primarily, to challenge the accuracy of the statements he had made. Although
Juhl's testimony would seem to indicate that he was also warned, for a second time,
about "campaigning" on company time and property, it is admitted that the produc-
tion manager did not specify the type of "campaigning" to which his admonition re-
ferred. The mechanic has indicated that he, personally, construed the plant man-
ager's comment as a reference to "wearing buttons and stuff like that" and not as
a specific reference to the dissemination of the Anaheim rumor. Since I am entirely
satisfied, in any event, that Simon never intended to enforce a sweeping prohibition
of organizational activity, irrespective of its timing, on company property, I find the
available evidence insufficient to establish the contention that the production man-
ager by virtue of his reference to the rumors about the Anaheim plant, intended to
warn employees against the expression of arguments or opinion related to the "fac-
tional" dispute within their ranks on company property during nonworking time.
It is also contended, by the General Counsel, that the Respondent enforced its
policy with respect to union activity on company time discriminatorily, in certain
specific respects. I find merit in the contention.
Whatever degree of good faith may be attributed to Production Manager Simon in
a difficult situation, it would seem to be clear, upon the record as a whole, that an
equally well-intentioned application of the Respondent's policy cannot be attributed
to Kenneth King or Section Foreman Kresin. Elsewhere in this report, it has already
been found that King, on February 8, directed Mrs. Hamilton to remove her UMW
button on the ground that its display involved union "campaigning" on company time.
And Section Foreman Kresin, it has been found, imposed a similar requirement on
the morning of February 10. In each instance, it is clear, the supervisors were acting
to mollify the JAM supporters in the plant and to allay their expressions of discontent.
The record establishes however, in the absence of any attempt at denial or contradic-
tion, that some, if not all, of the IAM adherents were openly wearing buttons indica-
tive of their "loyalty" to that organization. Any button display obviously constitutes
an open declaration with respect to the sentiments of the wearer. It may certainly
be inferred therefore-and I do infer-that the firm's responsible officials were aware
of the buttons being worn by each organization's partisans in the "factional" dispute
then current. Simon conceded as much. Under such circumstances, the attempts of
King and Kresin to enforce a requirement that UMW buttons would have to be re-
moved were clearly discriminatory. They were, in short, reasonably calculated to,
and did, interfere with, restrain, and coerce the employees of the Respondent in their
exercise of those self-organizational rights which the statute was enacted to guar-
antee. Graber Manufacturing Company, Inc., Ill NLRB 167; Century Cement
Manufacturing Company, 100 NLRB 1323, 1324, footnote 5. And I so find.17
The General Counsel also argues that the Respondent discriminatorily enforced its
posted policy announcement by the "acquiescence" of Production Manager Simon
in the circulation of petitions at the plant, on company time, by supporters of the
incumbent Union, and by his "acquiescence" in the circulation of certain cards or
petitions, by an IAM committeewoman, by means of which the employees were
urged to retract their UMW designations, if any, previously executed. These allega-
tions however, in my opinion, have not been proved. The record does indicate a
possibility that two petitions may have been circulated during the period with which
we are concerned. One appears to have been a petition, signed initially by an incum-
bent union committeewoman, pursuant to which more than 50 of the Respondent's
employees requested an opportunity to confer with the firm's production manager.
There is no reliable evidence, however, that any management representative knew
of its circulation and execution prior to the time of its presentation. And upon its
presentation, by an employee delegation, the production manager, insofar as the
record shows, took the position that its circulation had involved an error, and that the
employees would have to seek advice, as to the courses of action open to them in the
face of organizational activity by a rival union, from their own union representatives.
The second petition to which the record refers has been described, without effective
contradiction, as a "TV" petition, addressed to a local television station; however
17 The General Counsel has, 'by appropriate motion, withdrawn any contention that Pro-
duction Manager Simon engaged in a similar unfair practice when he directed an em-
ployee. Gerald W Pipmeier, to remove his UMW button on a specified date. There is tes-
timony by J C Hamilton, however, which attributes a similar statement to the produc-
tion manager, insofar as he was concerned Upon the entire-record, and for the 'reasons
previously noted, I have found this testimony unworthy of acceptance.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disruptive of production its circulation may have been , it would seem to be clear
that the problems implicit therein cannot properly claim our attention . If, in fadt,
the circulation of such a petition did involve some activity , unspecified , in behalf
of the incumbent Union, the fact has not been proved.
With respect to the allegation that the Respondent , through its production manager,
acquiesced in the circulation of cards or petitions calculated to invite a "retraction"
or revocation of previously executed UMW designations , the record is likewise meager.
Two employees-Mrs. Evans and James A. Juhl-testified that the alleged activities
of Goldie Riggins and Dorothy Randall in connection with the circulation of such
cards or petitions had been called to Production Manager Simon 's attention ; it should,
however, be noted that neither of the employees testified , in circumstantial detail,
with respect to the actual time and manner of their circulation .'8 Although the
testimony of Juhl and Mrs. Evans would seem to suggest that the Respondent 's produc-
tion manager paid little or no attention to the complaint that IAM activity in deroga-
tion of the Respondent 's posted policy had been undertaken in the plant, there is no
reliable evidence of an outright refusal on Simon's part to investigate the charges, and
-no proof that he did not do so. No UMW supporter actually solicited for a revocation
of his union designation , on company time, has been offered as a witness , and the
name of no such employee has ever been cited to the production manager, insofar as
the record shows. If, in fact, the Respondent 's management knowingly permitted such
activities in the plant , during working hours, by adherents of the incumbent Union,
the discriminatory enforcement of the Company 's announced policy against "union
campaigning" on company time would have been patent. Upon the entire record,
however, I am constrained to find that the specific discrimination alleged in this con-
nection by the General Counsel has not been established by a preponderance of the
reliable and probative evidence . None of my conclusions with respect to the dis-
-criminatory enforcement of the Company's posted policy have , therefore, been
grounded upon the alleged "acquiescence" of the Respondent 's management with
respect to activity otherwise interdicted.
Upon the record as a whole, then, I have found that the Respondent by its officers,
agents, and employees did enforce its posted policy with respect to "union cam-
paigning" on company time unlawfully and discriminatorily . My conclusions, how-
ever , are merely based upon Foreman Casey's demand that James A. Juhl surrender
his accumulation of executed UMW membership applications or authorization cards,
the statements of Production Manager Simon to Juhl that union activity would be
prohibited at the plant during established rest periods, and the insistence of General
Foreman King and Section Foreman Kresin that Mrs. Hamilton would have to cease
wearing her UMW button , in the absence of any similar requirement imposed with
respect to the wearing of IAM buttons or badges. By these acts and statements,
attributable to its officials and supervisory personnel , the Respondent interfered with,
restrained , and coerced its employees in the exercise of rights guaranteed by the Act,
as amended . I so find.
B. Mrs. Hamilton 's discharge
1. The issues
With respect to Mrs. Hamilton , the General Counsel contends that a discrimina-
tory transfer took place on February 10, 1954 , when the employee, regularly utilized
as a taping machine operator , was reassigned to other work of a more "difficult
and disagreeable" character at the Respondent 's large rotary conveyor because of
her participation in concerted activity with other employees for the purposes of col-
lective bargaining or other mutual aid and protection; that the Respondent , by virtue
of the discriminatory work assignment , caused her to leave the plant on the indicated
date ; and that its management then relied upon her action in leaving the plant as
a pretext for her discharge. The Respondent, by way of reply, alleges that Mrs.
Hamilton's last transfer was a temporary measure to fill a vacancy due to the absence
of another employee. It is further alleged, in the Respondent 's answer, that Mrs.
Hamilton was not "caused " to leave the San Diego plant on February 10 by any
'course of conduct attributable to her employer, and that she left of her own accord,
without the permission of any responsible management official . On this ground, the
Respondent contends that Mrs. Hamilton was discharged for cause , the cause in ques-
tion being the "abandonment " of her employment at the Respondent 's plant.
With the issue thus joined , a number of questions must be answered before any
decision can be reached . Among those suggested by a cursory review, the following
Is Juhi's testimony with respect to one occasion when Goldie Riggins showed him a
document and sought to discuss it, on company time, gives no indication that the Respond-
ent's management was aware of the incident.
ESSEX WIRE CORPORATION OF CALIFORNIA 367
may be noted: Was Mrs. Hamilton deliberately selected for the temporary reassign-
ment, in order that she might be subjected to harassment in a new post? If selected
without discriminatory intent, was she, nevertheless, subjected to such harassment
after her reassignment, because of her antecedent activity as a UMW supporter?
And, whatever the evidence may show, was she selected for reassignment or sub-
jected to harassment thereafter, by individuals for whose conduct the Respondent
may be held liable? These questions, it is clear, must be answered in the affirmative,
at the threshold of inquiry, before it can be said that the General Counsel is entitled
to prevail.
If they can be affirmatively answered, however, other questions arise. Was the
difficulty encountered by Mrs. Hamilton at the large rotary conveyor sufficient to
excuse her departure from the plant9 Or, in other words, may the treatment she re-
ceived at the "take-off" station appropriately be characterized, in fact and in law,
as a constructive discharge? If so, did her failure to comply with the Respondent's
established rule in regard to the procurement of a pass before departure provide
"just cause" for her termination and deprive the General Counsel of any justification
for a claim that her discharge was effectuated because of her participation in pro-
tected concerted activity? And, if it did not, may the Respondent be relieved of
liability for her discharge, nevertheless, because Plant, Manager Simon and Superin-
tendent Harms, who ordered her termination, were unaware, when they did so,
of the fact that her departure had been forced? Or, in the alternative, may their
responsibility-and the Respondent's liability-be determined on the basis of the
facts as found, on the assumption that they may appropriately be charged with con-
structive notice of the events which actually induced Mrs. Hamilton to leave? To
a consideration of these questions, then, we must now turn.
2. Analysis
a. The reassignment
The record establishes that Mrs. Hamilton, during her employment, had pre-
viously served extensively on the so-called "small conveyor" at which harness sub-
assemblies are fashioned. In the course of such assignments, Mrs. Hamilton tes-
tified she had been called upon to serve at every type of station: the "wire" stations,
at which prepared wires are placed on the moving jigs; the "taper" stations, at which
the wires on the jig are wrapped with plastic tape; and the "take-off" station, at
which the completed subassemblies are removed and placed on a hand truck for
transfer to the "big" conveyor. And the record also shows that Mrs. Hamilton,
for a period of several weeks in November and December, had worked, at her own
request, at the firm's large rotary conveyor. Her services during this period, had
been limited, it is true, to work as a "taper" and briefly, thereafter, to work at a
"wire" station. She had never been assigned to the "take-off" station. Upon the
entire record, however, it is clear that Mrs. Hamilton could not be described as
an employee without experience, insofar as work on the conveyors is concerned.
The General Counsel, nevertheless, appears to contend that Mrs. Hamilton was
selected discriminatorily-and with deliberate malice-for the assignment which
ultimately led to her separation from employment. Insofar as the record shows,
this contention appears to be based, in the main, on the testimony of Eunice Ford,
previously noted. I have found that testimony unworthy of credit. Even if it
could be accepted, however, it would be insufficient, in my opinion, to sustain the
General Counsel's contention. At the most, it would only support a conclusion
that Ford, as an official of the IAM local, maliciously suggested Mrs. Hamilton's
reassignment to the large rotary conveyor, presumably as a reprisal for her activi-
ties in behalf of the Mine Workers organization. Assuming, arguendo, that she did
so, the evidence sufficient to warrant the conclusion, nevertheless, would stand in
isolation. An inference would have to be drawn that Ford had been aware, at
the time, of the fact that Hobbs had been scheduled to leave the conveyor. Her
testimony, it is true, indicates such an awareness. But a further inference would
have to be drawn, to the effect that Redden, after receiving Ford's suggestion, con-
veyed it to Kresin-the individual actually responsible for the taping machine op-
erator's reassignment-and that he was aware of the motivations behind the sug-
gestion, and shared them. Upon the entire record, I find the inferential link in
the'suggested chain of causal logic too weak to sustain the General Counsel's conten-
tion19
19J. C. Hamilton's testimony that Kresin had delegated the choice of a replacement for
Hobbs twRedden is rejected as unworthy of credit.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the light of the available evidence, instead, I am satisfied that Kresin was ap-
'prised by Redden of the Respondent's immediate need for a replacement at the "re-
pair" station, that Hobbs was selected as the replacement on the basis of his dis-
interested evaluation of her experience and ability, and that Mrs. Hamilton, in turn,
was selected by the section foreman, after his consultation with Redden, for reas-
signment to the "big" conveyor, nondiscriminatorily, because of her previous ex-
perience there.20
No similar conclusions would be warranted, however, with respect to Mrs. Hamil-
ton's assignment, at the conveyor, to the "take-off" station. The record establishes,
beyond any doubt, that Hobbs, at the time of her designation as the "repair" re-
,placement, had been at a "wire" station. And, in general, it would seem that
Work at such a station would have been particularly suitable for Mrs. Hamilton as
a replacement employee. At least, she had worked at a "wire" station on the con-
veyor previously.21
Upon the entire record, then, I,am convinced that Greenwood arranged the double
employee shift, which ultimately left the "take-off" station vacant, as a deliberate
maneuver, in order to make possible Mrs. Hamilton's assignment there. Why was
this done? Greenwood's testimony, in this connection, must be characterized as
refreshingly frank. She identified herself, in substance, as an adherent of the incum-
bent Union, and admitted her awareness of Mrs.'Hamilton's activity in the UMW's
behalf. Her testimony establishes that she and a number of the other employees
had, at various times, discussed the "problem" created by the UMW campaign and
the action which could be taken to "relieve" the situation. When questioned, in
regard to these discussions, Greenwood testified as follows:
Q. Well, do you,recall having said,anything;at all?
A. I didn't like the idea of them coming in.
Q. Do you recall . . . that you wanted to make them unwelcome?
A. Yes.
Q. Do you recall whether you made any suggestions of what should be done
to make them unwelcome?
A. To give them jobs that they didn't like to do.
Q. And did you say why you thought that they should be given jobs that they
didn't like to do?
A. Because I understood that was "the only way that they would leave the
plant.
And specifically, with reference to Mrs. Hamilton's assignment, Greenwood ad-
mitted that her designation of the taping machine operator for the "take-off" station
had been effectuated with full knowledge of the fact that Mrs. Hamilton was, then,
a UMW supporter. The leadwoman then testified as follows:
Q. Did you consider the take-off job as a disagreeable job?
A. No.
Q. Did you think that Ann would consider it a disagreeable job?
A. Yes.
20 J. C. Hamilton testified that Kresin had been asked-after Mrs. Hamilton left the
plant, as noted-why "they" were still "picking" on his wife, and that Kresin had de-
clared his unawareness of the fact that she was being harassed. According to Hamilton,
Kresin was then told that "they" had selected Mrs. Hamilton for the conveyor assignment
in preference to other qualified employees, and that it looked as if she was being selected
discriminatorily ; Kresin disclaimed partiality , however , according to the packer , and pro-
tested that he had had nothing to do with any of the harassment allegedly suffered by
Hamilton's wife And Mis Hamilton testified that she had not seen Kresin "immediately
around" during her ordeal There is not the slightest evidence, therefore, that Kresin's
protestations of personal innocence were false
21 Betty KCave'',did, testify, that', the station-vacated by.Hobbs,,wds;fa: "bel1'VP, station, at
which certain "bell" attachments were affixed to each harness , and she did testify, further,
that the task performed there required considerable speed and dexterity which Mrs Hamil-
ton could not be expected to possess on the basis of her limited experience. I find it sig-
nificant, howevei, that no consideiations of this type were cited by the section foreman,
the leadwoman, or anyone else, in justification of the Respondent's failuie to utilize Mrs.
Hamilton as 'a direct replacement for Hobbs, at the indicated "wire" station. A bell, in
the sense indicated by Cave, would be nothing more than a special type of metal connector
attached to a harness wire; it would usually be no more than 1 inch long and approxi'-
inately three-eighths of an inch in diameter. In the absence of corroboration, therefore, I
have not considered Cave's testimony, in this regard, as sufficient to warrant a conclu-
sion that Mrs. Hamilton was denied assignment as a direct replacement for Hobbs for
reasons of productive efficiency.
ESSEX WIRE CORPORATION OF CALIFORNIA 369
Q. Was that one of the reasons why you assigned the job to her? -
A. Yes.
1 consider this testimony dispositive with respect to the issue of Greenwood's intent,
in the situation now under consideration. There are references elsewhere in her
testimony, it is true, to the fact that she considered Mrs. Hamilton an "experienced"
employee, at'least as well qualified to handle the "take-off" station as anyone else
regularly assigned to the conveyor. And, in the abstract, this may very well have
been true; absent an extended- opportunity- for observation, certainly, it would be
difficult to challenge such a conclusion on the part of the Respondent's leadwoman.
In the light of the available evidence, however, no such challenge is necesary. It
would seem to be entirely clear, on the basis of Greenwood's testimony, that a plan
to assign the UMW supporters to disagreeable work, in order to "drive" them from
the plant, had commended itself to her attention, and that the assignment of Mrs.
Hamilton to the "take-off" station was, then, arranged pursuant to such a plan.
And I so find.
I find it worthy of note, in this connection, that Hutchins and Hobbs had, for
some time, been following the practice of rotating their stations at frequent daily
intervals; this practice, apparently, had had Greenwood's approval. Despite the
fact that their predecessor at the "take-off" station had held the assignment steadily,
without rotation, the arrangements current between Hutchins and Hobbs certainly
suggest that the "take-off" assignment, even under ordinary circumstances, would
be burdensome. The production manager, indeed, described it as "not the most
desirable spot" on the rotary conveyor.
The; assignment must, necessarily,, ,be characterized as discriminatory, therefore,
and its object designated as one statutorily proscribed,
b. The Respondent 's liability
May the Respondent be held liable , however , for Greenwood 's course of conduct?
The General Counsel would so argue, apparently , on the ground , at the outset, that
Greenwood is a supervisor . I find the contention to be without merit. There was
considerable testimony adduced , in this case, as to the extent of her authority. I
find it unnecesary , however, to recapitulate that testimony in detail . Insofar as the
supervisory concept may have been given, some form and content by its statutory
definition , in Section 2 (11) of the Act, as amended , it is clear that Greenwood's
employment was related to that of a supervisor only to the extent that she possessed
the authority to "transfer" employees assigned to the large rotary conveyor as between
the several "work stations" at the conveyor table. The discretion exercised in this
connection , however, was comparatively minor ; in my opinion, it could not be char-
acterized as anything more than routine . Poultry Enterprises, Inc. v . N. L. R. B.,
216 F . 2d 798 (C. A. 5); N. L. R. B. v. Parma Water Lifter Company, 211 F. 2d
258 (C . A. 9); Precision Fabricators , Inc. v . N. L. R. B., 204 F. 2d 567 (C. A. 2);
Gerber Plastic Company, 108 NLRB 403 ; Mother's Cake and Cookie Company,
1051NLRB 75 , 78=90 . Greenwood; then,was not a supervisor.
Such a conclusion ,, however, will not dispose of. the issue actually presented for
our consideration . For the General Counsel has also contended that the Respondent
may be held liable for Greenwood 's activities nevertheless , since its employees have
been given "just cause to believe " that her action in assigning Mrs. Hamilton to the
"take-off" station was taken "for and on behalf of the management " of the firm. See
International Association of Machinists v. N. L. R. B., 311 U. S. 72, 80 ; Walter
Kocher and Co., 104 NLRB 1090 , footnote 2; ibid, at 1096 , footnote 10. I find merit
in the contention , even in the face of the available evidence as to the limited nature
of Greenwood 's authority.
Although the record , in my opinion , would not support any classification of Green-
wood as a supervisor , she is clearly an "agent" of the Respondent , at least insofar as
her,empfoymdnt is-concerned .= -A principal (employer ). •is considered to be liable,
re The relationship of an employer and employee, or a master and servant, is of course
'nothing more than a specialized type of agency. 2 C. J. S. 1029, "Agency" § 2 (e). An
employee, to put the matter shortly, would seem to be nothing more than a special agent
"employed for a particular purpose, thing, or class of work" and authorized to exercise
limited powers, under restrictions Imposed,by his or her employer. Ibid. at 1036, § 3 (d).
Even in the absence of evidence sufficient to warrant a conclusion that Greenwood is a
supervisor, therefore, the Respondent may be liable for her conduct, within the scope of
her employment, under the "ordinary law of agency" which the Board is bound to apply.
Sunset Line and Twine Company, 79 NLRB 1487, 1507-1509, and the authorities therein
cited:
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under the general rules of agency , for all of the torts committed by his agent (em-
ployee) while the latter is acting within the scope of his authority. And this liability
will be given effect, as a matter of law, irrespective of the fact that the agent, in so
acting, may have been seeking to protect some interest of his own as well and, under
certain circumstances, even in the face of evidence sufficient to indicate that the
agent's activity may have been wanton or malicious. Nor will the operation of the
principle be affected by the fact that the duty violated may be one arising from a
statutory provision. 3 C. J. S. 186-187, 192-193, "Agency" §§ 255, 258, 259. A de-
termination as to whether any agent's tort was committed within the scope of, his
employment must necessarily be based, then, upon an inquiry as to whether the act
involving the alleged tort was done in the course of the agency, and by virtue of the
agent's authority, with a view to the principal's business. To state the matter other-
wise, an agent's tort will be construed as action within the course of his employment
when the agent, in performing it, was endeavoring to promote his principal's business,
within the scope of the actual or apparent authority conferred upon him for that pur-
pose. Ibid., at 187, § 255. Compare 56 C. J. S. 272-275, 294, 320, "Master and
Servant" §§ 561-563, 570, 572. These aspects of the "ordinary law of agency" are
dispositive here. Whether or not Greenwood is a supervisor it is clear that her author-
ity as a key employee includes the authority to effectuate transfers at the large rotary
conveyor. Such transfers may be more or less routine. The discretion involved
therein may be relatively minor. But, in practice, it is, I find, unreviewed. And the
transfers, when made, are certainly made with a "view" to the business of Green-
wood's principal, the Respondent in this case. They involve action taken "under the
direction or control" of the Respondent's management. The leadwoman's decision,
therefore, to create a vacancy at the large rotary conveyor for Mrs. Hamilton by the
reassignment of Hutchins to the station vacated by Hobbs, was clearly a decision
within the scope of her employment. She so testified. And if it was, in fact, dis-
criminatorily motivated-as I have found-the Respondent cannot escape liability for
it. I so find.
Again, the fact that Mrs. Hamilton was subjected to harassment at the "take-off"
station could not have escaped Greenwood's notice. Her responsibilities as a lead-
woman require her to maintain constant awareness with respect to the flow of work
on the conveyor, the availability of the wire and the other necessary materials, the
needs of employees with respect to relief and, inescapably, the manner in which the
work was being done. For this reason, and particularly in view of her express moti-
vation for the assignment of Mrs.'Hamilton to the "take-off" station, I find, despite
her denials, that Greenwood was aware, at all material times, of Mrs. Hamilton's
situation. Yet the record does not reveal any effort, on her part, to eliminate or
alleviate the taping machine operator's difficulties. Such an "acquiescence" in the
situation by the leadwoman, under all the circumstances, must likewise be imputed
to her principal. Ibid., at 189 § 255. And I so find.
c. The constructive discharge
Were the difficulties encountered by Mrs. Hamilton, at the large rotary conveyor,
sufficient to excuse her departure from the plant? Opinions may differ. Viewed dis-
passionately, in retrospect, the "hazing" which she suffered might be characterized as
relatively innocuous. It was purposive, however, and it did accomplish its purpose.
It was sufficient, in short, to unnerve her and to cause her departure-that much is
clear, beyond dispute. In reaching this conclusion, I have not relied upon the exten-
sive testimony received with respect to the weight of the harnesses Mrs. Hamilton
had to lift at the big conveyor, and the physical demands implicit in her assignment.
In view of her lack of previous experience at the "take-off" station, on the conveyor in
question , the strangeness of the assignment might well have been expected to con-
tribute, somewhat, to her difficulties. The record' however, in my opinion, will not
support any faciual finding that the work, as such, involved any undue strain. The
fact that an employee of greater resourcefulness and emotional stability might have
withstood the treatment Mrs. Hamilton received, then , must be set aside as imma-
terial . In fact , and in law, she was constructively discharged . Indianapolis Wire-
Bound Box Company, 89 NLRB 617, 622-623; cf. Pacific Powder Company, 84
NLRB 280, 281, and the cases therein cited. It is so found.
. d. The plant rule
It has been found elsewhere in this report that Mrs. Hamilton , despite her emo-
tional disturbance , questioned the section foreman prior to her departure with
respect to the procurement of a pass to .leave the plant . The inquiry , of course , estab-
lished beyond any doubt her awareness of the plant rule or practice in this respect,
ESSEX WIRE CORPORATION OF CALIFORNIA 371
previously noted.23 The available evidence, previously noted, indicates that Section
Foreman Kresin suggested the possibility of a pass for her to see the nurse, and
that she rejected the suggestion as inappropriate since the nurse would be unable
to "cure" her. Mrs. Hamilton has insisted that the section foreman then volun-
teered to prepare an appropriate pass for submission to the plant's personnel
office, directly, after her departure. Her testimony, at least insofar as it imports
a promise on Kresin's part to validate her departure, retrospectively, by the sub-
sequent preparation of a pass, has been rejected. I am satisfied upon the entire
record that the section foreman, instead, declared his reluctance to see Mrs. Hamil-
ton go because of the Respondent's need for her in the department that day, and
that his offer of assistance, in connection with her departure, encompassed nothing
more than a promise to prepare a pass for her to take to the nurse. This offer, it
is clear, was rejected; Mrs. Hamilton left the plant, then, without any pass at
all. In so doing, I find, she acted without regard to the apparent requirements
of a reasonable and well-known plant rule.
Did her action, then, provide the Respondent with just cause for her termina-
tion irrespective of its antecedent causes, and vitiate the effectiveness of any claim
that her discharge was effectuated because of her participation in protected con-
certed activity?
This question, in my opinion, must be answered in the negative. Mrs. Hamil-
ton's constructive discharge involved discrimination with respect to the tenure of
her employment, and the terms and conditions of her employment, reasonably
calculated to discourage her activity in behalf of a labor organization. As such,
it constituted an unfair labor practice, attributable to the Respondent, as I have
found, under the established rules of agency. In the absence of any applicable
plant rule designed to control unauthorized employee departures from assigned work
stations, the firm's liability would be clear. In a context of unfair labor prac-
tices, should its presence as a factor in the case dictate a different result? I think
not.
This case raises no question as to the right of economic strikers to withdraw
their services without regard to the requirements of a valid and reasonable plant
rule; nor do we have here a case involving any conflict between the application
and enforcement of such a rule and the right of employees to engage in other
forms of protected concerted activity.
The only question before us, indeed, on the present record, may be stated con-
cisely as follows: May an employer responsible for a constructive discharge es-
cape any obligation to redress the unfair labor practice involved because the
employee subjected to discrimination failed to comply with the requirements of
a plant rule in connection with a forced departure? Equity, with its "clean
hands" doctrine would seem to compel the rejection of any such contention. He
who would claim that the normal legal rights of another are impaired may not
himself be guilty, wilfully, of illegal or improper conduct calculated to induce the
very situation relied upon to warrant the impairment. Cf. Mastro Plastics Corp.,
103 NLRB 511, 513-515, 556-560. And since the Respondent, in this case, must
be held liable for Mrs. Hamilton's constructive discharge, itself an unfair labor
practice which goes to the very "heart" of the rights guaranteed by the statute,
the effective administration of the national labor policy requires that it not be
allowed to plead a forfeiture of Mrs. Hamilton's normal right to statutory protec-
tion because of an alleged plant rule violation inseparably related to the very
conduct for which it is responsible. I find no merit, therefore, in the Respond-
ent's contention that Mrs. Hamilton's discharge was justifiable because of her
failure to comply with the Respondent's established rule in regard to the procure-
ment of passes prior to departure from the plant within shift hours. -
The available evidence does establish, it is true, that Production Manager Simon
and Superintendent Harms arranged for the taping machine operator's timecard
to be "pulled" on the basis of Kresin's report that she had left the plant without
a pass. And there is not the slightest indication in the record that the Respond-
ent's managerial representatives-Simon and Harms-were actually aware, at the
time, of the fact that Mrs.'Hamilton's departure had been motivated, in any way,
by the mistreatment to which she had been subjected. The production manager's
undenied testimony establishes that Kresin was asked whether Mrs. Hamilton had
given any reason for her expressed intention to leave, and that he had reported
z' Mrs. Hamilton, the record shows, had previously been authorized on several occasions
to leave the plant during regular shift hours because of illness, on passes countersigned
by the Respondent's nurse, and for "business" reasons. As a witness, she admitted her
knowledge of the procedure involved, and the pass requirement.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her as giving none despite a request on his part for some indication as to the basis
for her evident distress. Kresin's testimony, as a witness in this case, however, is
barren of any indication that he sought, such a_ statement. The production manager, -
then,-`mayactually have been ratting on the' basis' of a misconception • as to''the
existence or nonexistence of a motivation for Mrs. Hamilton's departure. .
I find the absence of such knowledge, however, immaterial. The principle of
respondeat superior, otherwise applicable here, cannot be characterized as inapposite
merely because of the General Counsel's failure to establish that the management
representatives: immediately responsible for the discharge decision acted with
direct and personal knowledge of the circumstances herein found sufficient to
render their action an unfair labor practice. , Cf. Safeway Stores, Incorporated,
110 NLRB 1718; and see Section 2 (13) of the statute. I so find.
The record shows that Mrs. Hamilton made no-effort to protest her•discharge`under,
the incumbent Union's contractual grievance procedure. The Respondent has not
relied upon her failure to utilize that procedure, however, in connection with its
formal disclaimer of liability under the statute. And indeed, under established
decisional doctrine, any such reliance on its part would clearly have been misplaced;
the failure of a dischargee to file or prosecute a grievance has been held no bar to an
otherwise meritorious unfair labor practice charge. N. L. R. B. v. Radio Officers'
Union, etc., 196 F. 2d 960 (C. A. 2), affd. 347 U. S. 17; Columbus Iron Works Com-
pany, 107 NLRB 1354, and the cases therein cited. See also Case No. 869, Admin-
istrative Rulings of the NLRB General Counsel, 33 LRRM 1138, for a discussion of
the principles involved. This agency's power to prevent unfair labor practices is not
dependent upon the unavailability of any other means of adjustment or prevention.
E. The discharge of Mrs. Evans
The discharge of Loraine L. Evans is described categorically in the consolidated
complaint as a discharge because of her participation in concerted activity with other
employees for the purposes of collective bargaining and other mutual aid and pro-
tection. This contention, with respect to her discharge, the Respondent merely
traverses. Its answer contains no further reference to the incident. Under the cir-
cumstances, then, we must turn to the record for some elaboration of the issues
involved.
At the outset, it would seem to be the General Counsel's contention that General
Foreman King's decision to discharge Mrs. Evans and Loretta Brown on June 4 was
discriminatory, as to the former, because of his failure to accept a contention that
Mrs.-Evans was actually blameless in connection with the incident relied upon to
justify her discharge. And on the basis of her admitted participation in the UMW
organizational activity and the Respondent's awareness of such participation, the
General Counsel would seem to argue that the selection of Mrs. Evans for discharge
was reasonably calculated to discourage membership in that organization. I find
the argument unpersuasive.
The record reveals, beyond all dispute, that employee relationships in the inspection
area of the Respondent's "finished assembly" department were characterized by
occasional 'controversies and cross-complaints while Mrs. Evans was employed there.
Several of these controversies had, in fact, been brought to the management 's atten-
tion before the UMW activity began. Mrs. Evans appears to have been regarded as
a valued employee and there is an implication, certainly, in the available evidence that
these early controversies may have been attributable to failures of adjustment on the
part of her fellow employees. Upon a complete review of each incident cited, indeed,
such a conclusion might well be warranted. Its significance in the present context,
however, would be peripheral at best. Basically, there is presented here a situation
in which a supervisor, harassed with argument and conflict in a controversy between
two employees, has advised both of them that no effort will be made to determine
the justice of their respective claims, and that any further disagreement between them
would lead to their discharge. Thereafter, a "disagreement" does eventuate and,
pursuant to the notice previously given, each of the employees involved is dismissed.
On the basis of the available evidence it may very well have been true-as the General
Counsel seems to argue-that Mrs. Evans was blameless in the matter. She may not
have given Loretta Brown any genuine cause 'for anger, and her involvement in the
"disagreement" thereafter may have been limited to protestations of innocence. It
may very well have been true, also, that none of the discussions incidental to the
"disagreement" took place on company time. Upon the entire record, however, I
cannot find that the general foreman's failure to consider these aspects of the situation,
and to hold Mrs. Evans blameless, stemmed from his opposition to the UMW's or-
ganizational campaign . Essentially, he seems to have been motivated by nothing
more than a desire to eliminate a personnel problem, by the discharge of each em-
ESSEX. WIRE CORPORATION OF CALIFORNIA - 37a
ployee involved in the controversy . This may have been an "easy way" to eliminate
any need for hard judgment , and it may have been poor personnel practice ; on the,-
present record , however, I cannot find that it involved discrimination with respect to
the',employment of Mrs. Evans ' to"discourage membership in a l'abor'' organization.
N. L. R. B. v. Clearwater Finishing Company, 216 F. 2d 608 (C. A. 4).
Although the contention is not presented, explicitly, in the consolidated complaint,
the General Counsel would, apparently, also argue that Mrs., Evans suffered dis--
crimination at the hands of the Respondent in the course of the grievance committee.
hearing held with respect to her discharge. It may have been the General Counsel's
intention to argue that the Respondent's reaffirmation of its discharge action, in
the course of the grievance proceeding, constituted an independent instance of dis=
crimination statutorily proscribed. Alternatively, it may have been his intention,
however, to contend that the absence of any protest by the Respondent in'the'face
of the incumbent Union's alleged failure to represent Mrs. Evans properly should
be construed as evidence that her discharge by the Respondent had been discrimi-
natorily motivated. The analysis which follows is intended, in either event, to
dispose of the issue. Essentially, it seems to be the General Counsel's view that
Committeewoman Cave, of the incumbent Union, represented Mrs. Evans before
the grievance committee with poor grace; that she failed to represent the dischargee
adequately when she refused to insist upon her right, as an aggrieved employee,
to have all of her proffered witnesses heard, and that Business Representative
Brown, of the incumbent Union, revealed that organization's indifference to the,
proper presentation of her grievance by his failure to keep a promise to be present.
These evidentiary indications are, of course, attributable to the incumbent Union;
if that organization may be considered obligated, as the certified bargaining repre-
sentative of the employees, to represent Mrs. Evans as honestly and effectively as.
it could, it may very well have been guilty of a failure to meet the obligation.
The General Counsel would apparently contend, however, that the Respondent,.
too„had a, duty to protest such misfeasance on the part of the incumbent Union's.
representatives--or, at the very least, a duty to reject any benefits it `may'have,
derived therefrom. I find no indication in the statute, or decisional doctrine, of
any such duty. The Respondent's representatives on the grievance committee may,
conceivably, have been aware of the incumbent Union's alleged failure to present
a case for Mrs. Evans in the most effective way. I find no justification, however,
in that fact-if it is a fact-for a conclusion that the Respondent was thereby-
obligated to protest the incumbent Union's failure, in substance, to challenge its,
discharge action effectively. Mrs. Evans, certainly, made no effort to invoke such
a protest; nothing in the record indicates that she objected to the grievance com-
mittee's procedure, of to her representation by the IAM, at the time. Surely it-
would be anomalous for an employer to sit on "both sides of the table" in a
grievance matter, how can it be argued that employers are obligated to make sure -
that any challenges addressed to their own antecedent action are presented vigor-
ously and in the strongest possible way? The answer to this question would seem_
to .be more than clear.
Since the Respondent, then, was under no duty in the premises, its failure to
act cannot be characterized as a statutory violation. Nor can it, in my 'opinion,
be considered indicative of a corporate state of mind antithetical to the assertion
or defense of statutorily guaranteed rights Any contention to the contrary must-
be, and it is, rejected.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, which occurred
in connection with its operations as described in section I, above, have a close,
intimate , and substantial relationship to trade, traffic , and commerce among the.
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
.Since it ,has,been found that the Respondent has engaged in certain unfair labor
practices, it will be recommended that it'cease and desist therefrom , and `fake
certain affirmative action designed to effectuate the policies of thn statute.
'° Specifically, since it has been found that the Respondent interfered with, re-
strained , and coerced its employees , in the course of an attempt to enforce a
prohibition , otherwise valid , on "union campaigning" during working hours, it-
will be recommended that it cease and ' desist from such conduct , and that it post-
notices declarative of its intention to do so.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has also been found that the Respondent discriminatorily discharged Elizabeth
Ann Hamilton on February 10, 1954, and that it has since -failed and refused to
reemploy her because of her participation in concerted activity with other em-
ployees for the purposes of collective bargaining and other mutual aid or protec-
tion. It will, therefore, be recommended that the Respondent offer Mrs. Hamil-
ton immediate and full reinstatement to her former or a substantially equivalent
position, without prejudice to her seniority or other rights and privileges pre-
viously enjoyed. See The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 NLRB 827, 828-829, for a definition of the phrase
"former or substantially equivalent position" as here used. It will also be recom-
mended that the Respondent make her whole for any loss of pay or other incidents
of the employment relationship which she may have suffered by reason of the
discrimination practiced against her, by the payment to her of a sum of money
equal to the amount which she normally would have earned, as wages between
the date of her discharge and the date of the reinstatement offer herein rec-
ommended, less her net earnings, if any, during that period. Cf. Crossett Lumber
Co., 8 NLRB 440, 497-498; Republic Steel Corp. v. N. L. R. B., 311 U. S. 7.
Mrs. Hamilton's losses should be computed, I find, on a quarterly basis, in the
manner established recently by the Board. See F. W. Woolworth Company, 90
NLRB 289, 291-294; N. L. R. B. v. Seven-Up Bottling Co. of Miami, Inc., 344 U. S.
344. In order to assure expeditious compliance with these recommendations in
regard to back pay and reinstatement, I shall recommend, finally, that the Re-
spondent, upon request, make available to the Board and its agents all pertinent
records.
Since it would appear, however, that the Respondent, in the commission of the
unfair labor practices found, has not been motivated by an all-pervasive antipathy
to the United Mine Workers of America, District 50, as a labor organization, or
to its employee supporters-except as the conduct herein found subject to proscrip-
tion may have been dictated by the views of its responsible officials with respect
to the scope of their managerial prerogatives-I do not infer the existence of a
possibility that the Respondent, when apprised of the national labor policy, will
nevertheless continue to engage in these unfair labor practices or others statutorily
interdicted. I shall, therefore, refrain from any recommendation that the Re-
spondent be required to cease and desist from such other unfair labor practices,
or that it be required to post a notice to that effect.
In the light of the foregoing findings of fact, and upon the entire record in
the case, I have reached the following:
CONCLUSIONS OF LAW
1. The United Mine Workers of America, District 50, unaffiliated, is a labor
organization within the meaning of Section 2 (5) of the Act, as amended, which
admits employees of the Respondent to membership.
2. By its demand for the surrender of certain union membership applications
or authorization cards executed on behalf of the United Mine Workers of America,
District 50, unaffiliated, its insistence that a posted policy with respect to the
prohibition of union organizational activity on company time would be applied to
established rest periods, and the attempts of its supervisory personnel to require
the removal of United Mine Worker buttons worn during working hours, the
Respondent has interfered with, restrained, and coerced its employees in the exercise
of rights statutorily guaranteed, thus engaging in and continuing to engage in un-
fair labor practices within the meaning of Section 8 (a) (1) of the Act, as
amended.
3. By its constructive discharge of Elizabeth Ann Hamilton on February 10,
1954,' and her subsequent formal separation, to discourage membership in a labor
organization, the Respondent engaged in and has continued to engage in unfair
labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, as
amended.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act, as amended.
5. The Respondent has not, by its discharge of Loraine L. Evans on June 4,
1954, and its subsequent failure or refusal to reemploy her, discriminated against
her because of her participation in concerted activity with other employees for the
purposes of collective bargaining or other mutual aid and protection, or to dis-
courage membership in a labor organization. The Respondent thus has not, -by its
course of conduct in this respect, engaged in any unfair labor practices within the
meaning of Section 8 (a) (1) and (3) of the Act, as amended.
[Recommendations omitted from publication.]