Griffin Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 17, 1953

103 N.L.R.B. 732 (N.L.R.B. 1953)

732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, remain , or refrain from becoming mem-
bers of the above -named union or any other labor organization except to the
extent that this right may be affected by an agreement in conformity with Sec-
tion 8 ( a) (3) of the amended Act.
CHAUTAUQUA HARDWARE CORPORATION,
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.
GRIFFIN MANUFACTURING COMPANY and UNITED STEELWORKERS OF
AMERICA, CIO. Case No. 16-CA-392. March 17, 1963
Decision and Order
On November 3, 1952, Trial Examiner David London issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent and the
General Counsel filed exceptions to the Intermediate Report, and the
General Counsel filed a supporting brief.
The Board 1 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 In-
termediate Report, the Respondent's exceptions,2 the General Coun-
sel's exceptions and brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner .3
'Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman Herzog and
Members Styles and Peterson].
' The Respondent excepted to the failure of the Trial Examiner to strike paragraph 9
of the complaint because more than 6 months had elapsed between the occurrence of the
unfair labor practices set forth in paragraph 9 and the issuance of the complaint. We
find no merit in this contention . Section 10 (b) of the Act prohibits the issuance of a
complaint based upon an unfair labor practice occurring more than 6 months before the
filing and service of a charge . The original charge in this case was timely filed; it is
immaterial that the complaint was issued more than 6 months after the occurrence of the
unfair labor practices alleged therein.
The Respondent also contends that the Board lacks jurisdiction over the unfair labor
practices set forth in paragraph 9 of the complaint because such unfair labor practices are
not expressly alleged in the original or amended charges filed herein . We find no merit in
this contention . Cathey Lumber company, 86 NLRB 157.
8 The Trial Examiner stated that Fannie Rose was transferred to a new position every
night before she was discharged by the Respondent . While the record shows that she was
frequently transferred , there is no evidence that such transfers occurred every night.
However , this error does not affect our concurrence in the Trial Examiner 's finding that
the Respondent did not discriminate against Rose.
103 NLRB No. 79.
GRIFFIN MANUFACTURING COMPANY 733
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Griffin Manufac-
turing Company, its officers, agents, successors , and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Steelworkers of America,
CIO, or in any other labor organization of its employees, by discharg-
ing, laying off, or refusing to reinstate any of them because of mem-
bership in or activities on behalf of any labor organization, or by dis-
criminating in any other manner in regard to hire and tenure of
employment or any term or condition of employment.
(b) Interrogating employees concerning their union membership
and activities, threatening to discharge or lay off employees or to shut
down plant operations because of union membership and activities, or
in any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor
organizations, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
from any or all of such activities except to the extent that such rights
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) Make whole Herbert Youngkin, J. R. Foster, and S. O. Rice
in the manlier set forth in the section of the Intermediate Report
entitled "The Remedy."
(b) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social-security payment
records, timecards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of back pay due and the right
of reinstatement under the terms of this Order.
(c) Post at its plant at Pittsburg, Texas, copies of the notice at-
tached to the Intermediate Report as Appendix.4 Copies of said no-
tice, to be furnished by the Regional Director for the Sixteenth Region,
shall, after being duly signed by the Respondent, be posted immedi-
ately upon receipt thereof and be maintained by it for sixty (60)
consecutive days thereafter in conspicuous places, including all places
This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order." If this Order is enforced by a
decree of a United States Court of Appeals , the notice shall be further amended by sub-
stituting 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."
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where notices to employees are customarily posted. The Respondent
shall take reasonable steps to insure that such notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS HEREBY ORDERED that the complaint be dismissed as to Fannie
Rose, Ada Kisner, Charles Kisner, Harvard McWilliams, Lucille
Chandler, and Vera Mae Richardson, and in all other respects.
Intermediate Report
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Steelworkers of
America, CIO, herein called the Union, the General Counsel of the National Labor
Relations Board issued a complaint against Griffin Manufacturing Company,
herein called Respondent, or the Company, alleging that Respondent had en-
gaged and was engaging in unfair labor practices within the meaning of Sec-
tion 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, 61 Stat. 136, herein called the Act. Copies of the charge, amended
charges, complaint, and notice of hearing were duly served upon the appropriate
parties.
With respect to the unfair labor practices, the complaint alleged, in substance,
that Respondent (1) between April 10, 1951, and August 29, 1951, interrogated
its employees concerning their union affiliations, threatened and warned them
to refrain from assisting, becoming members of, or remaining members of the
Union, and (2) on various dates between April 10, 1951, and November 1, 1951,
discriminatorily discharged or refused to reemploy the nine employees named in
the margin! Respondent, by its answer, denied that it committed the unfair
labor practices alleged in the complaint.
Pursuant to notice, a hearing was held August 25-27, 1952, at Pittsburg,
Texas, before the undersigned Trial Examiner. All parties appeared, were
represented by counsel or other representative, and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, to argue orally at the con-
clusion of the evidence, and to file briefs. All parties waived oral argument.
Since the close of the hearing, Respondent has filed a brief which has been duly
considered.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and during all times material herein has been, a corporation
duly organized and existing under the laws of the State of Texas, having its
principal office at Dallas, Texas, and manufacturing shops at Dallas and Pitts-
burg, Texas. At the latter location, during all times material herein, Respond-
ent was continuously engaged in the manufacture, sale, and distribution of
incendiary-bomb casings. At its Pittsburg plant, the only plant with which we
1 Herbert Youngkin, J. R. Foster, Fannie Rose, Ada Kisner, S. O. Rice, Charles Kisner,
Harvard McWilliams, Lucille Chandler, and Vera Mae Richardson.
GRIFFIN MANUFACTURING COMPANY 735
are here concerned, Respondent, during the 12-month period ending August 18,
1951, purchased raw materials and supplies valued in excess of $250,000, of which
about 90 percent was shipped in interstate commerce to the Pittsburg plant from
points Outside the State of Texas. During the same period, Respondent sold
products consisting principally of incendiary-bomb casings valued in excess of
$100,000, all of which were shipped in interstate commerce from its Pittsburg
plant to points outside the State of Texas. Respondent admits, and I find, that
during all times material herein it was engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
Respondent Company was organized in 1936 and since that time has been
engaged at Dallas in the manufacture and sale of ornamental iron. On January
25, 1951, it entered into a contract with the Chemical Warfare Corps of the
United States Army for the manufacture of the incendiary-bomb casings, by
the terms of which agreement Respondent agreed to deliver one-fourth of the
more than 1,000,000 bombs covered by the contract by April 1, 1951, and to make
delivery of the remainder by August 15, 1951. Its Dallas plant not being large
enough for that purpose, Respondent, in February 1951, acquired more adequate
space in Pittsburg, Texas, a town having a population of approximately 3,000
and located in an agricultural and stock-raising community.
The building there obtained was constructed during World War II for the
purpose of dehydrating vegetables. After the war, it was converted into a food-
canning plant and was so operated until 1948, when its owners were killed in an
airplane accident. The plant was shut down almost immediately thereafter and
remained idle until it was acquired by Respondent in February 1951.2 The
machinery and equipment, not being adaptable for Respondent' s use, were
removed by Respondent who then made the alterations and improvements neces-
sary to commence the performance of its Government contract. Among these
improvements was the electrical rewiring of the building necessary to accommo-
date the heavier electric power burden which Respondent's operations would
impose. To take charge of that work, J. H. Robinson, Respondent' s manager of
the Pittsburg plant, on March 1, employed Herbert Youngkin as master electrician
at a salary of $250 per week.
Under its contract with Respondent, the Government delivered to Respondent
a substantial part of the equipment and machinery necessary for the production
of the bombs. Included in this necessary equipment were 20 electric induction
heaters used at the "key point to the entire operation." It was soon discovered
that these heaters were in an extremely bad state of disrepair. As a result,
Respondent found itself unable to make the scheduled deliveries to the Govern-
ment and faced with the prospects of severe financial loss.
On about March 28, while Youngkin was still working on the wiring Job,
Robinson told him that if he desired, Respondent would continue to employ
him as a maintenance electrician at $1.80 an hour. Youngkin accepted the
proffered terms and devoted part of his time thereafter attempting, unsuccess-
fully, to repair the induction heaters. He was discharged on April 10.
2 Unless otherwise specified , all references to dates are to the year 1951.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Earlier, on the same day, April 10, Robinson addressed a meeting attended
by Wyrick, plant superintendent, Foremen Withrow, Campbell, Bellmire, and
gran, Selgado, a punch press specialist employed by Respondent for 9 years,
and Youngkin and Foster, who had been working as Youngkin's assistant.
While the meeting was devoted to a discussion of safety matters , Robinson in-
formed the group that they were to be the "key men [and] the pace setters"
in the Company's operations . Shortly thereafter, on the same day, grant
informed Foster and Bellmire that Robinson wanted to talk to them. The
two men went to Robinson's office, where the latter informed Foster that he
had "picked" Foster to tell him truthfully whether he had heard about "any
union activities going on around, or any union talk and had anybody approached
[him] about the Union and what would be [his] reaction to the Union." Foster
answered that he "felt the Union was a good thing. . . [and that he] had heard
they was (sic) going to organize the place." Foster was then excused and
returned to his work, having previously been informed that he would be re-
quired to work overtime that afternoon. At about 6 p. in., Bellmire informed
Foster that the electricity had been shut off and that he might as well "punch
out." Being unable to find his card in the rack, Foster asked Wyrick whether
he knew where it was. Wyrick handed Foster his card and final paycheck and
told him he was "through." When Foster ask "what it was all about" Wyrick
answered that "truthfully, [he] couldn't tell [him]." When Foster remon-
strated that, as superintendent, Wyrick should be able to tell him, Wyrick
suggested that Foster see Robinson.
At about 5: 45 p. in. of the same day, Wyrick brought Youngkin his check
and told him he was "finished." When Youngkin protested that there was
more work to do, Wyrick told him that he didn't know "what it's all about"
and suggested that Youngkin consult Robinson.
Though not together, Foster and Youngkin reached Robinson' s office at ap-
proximately the same time. Both asked "what was wrong?" Robinson an-
swered : "You boys should know what's wrong. . . . We are not going to be
organized. Our shop is not going to be organized ... we feel like you are the
promoters. In fact, we have been told by two or three men that you are the
promoters and we are going to get rid of it."'
Respondent was under extreme pressure from the Government to make delivery
of the bombs and imported several specialists from Dallas to repair the heaters,
paying them $5 per hour, plus expenses. These experts, however, also were
unable to place the heaters in satisfactory operating condition. With assistance
from the Government, heaters of an altogether different type were finally in-
stalled and more satisfactory production was obtained. Primarily because of
the failure of the induction heaters, and partly by reason of the inexperience of
the employees, the entire operation was delayed and resulted in great financial
loss to Respondent.
On or about June 10, employee Clarence A. Duncan was asked by his foreman,
Patterson, whether he signed an application to join the Union, and Duncan
answered affirmatively. On or about June 29, while talking to a group of
employees including Duncan, Foreman Campbell stated : "If I find anybody
signed a card or joined the Union, I will see they get fired." On the same day,
employee Bernie Duncan complained to Foreman Withrow about the size of
8 William B. Griffin, chairman of Respondent 's board of directors , testified that the
Dallas plant was not organized . Though Robinson denied making the statements attrib.
uted to him in the text, consideration of the entire record and the demeanor of Robinson,
Youngkin , and Foster as witnesses have led me to credit Youngkin and Foster , on whose
testimony the findings just announced have been made.
GRIFFIN MANUFACTURING COMPANY 737
his paycheck. The question of how much good the Union could do was injected
into the conversation and Withrow stated that Respondent was a "bigger out-
fit ... would never go union" and, if necessary, would close the Pittsburg
plant and move it back to Dallas.`
For some time prior to July 2, Respondent was operating two full shifts
consisting of approximately 290 employees, sufficient to produce over 10,000
bombs per day. However, for the reasons aforementioned, daily production
at that time averaged only 3,000 bombs. Respondent therefore decided, late in
June, to consolidate the 2 shifts and retain the most efficient of the 2
crews. Accordingly, on July 2, it discharged 68 employees. Of this number,
the General Counsel claims that Fannie Rose was discharged and denied rein-
statement because of her union activities. The reduction-in-force operation
continued on July 9, when 19 additional employees were discharged. Of this
group, the General Counsel urges that Ada Eisner was discharged and not
reinstated in violation of the Act. In the latter part of October, 25-30 employees
were discharged. Of this group, the General Counsel alleges that Vera Mae
Richardson was discriminatorily denied reinstatement. Of the remaining al-
leged discriminatees, S. O. Rice was discharged on August 21, Charles Kisner on
October 14, Harvard McWilliams on October 16, and Lucille Chandler on October
26, all under circumstances hereafter detailed.
On or about August 1, Personnel Manager Smith told employee S. O. Rice, in
the course of a conversation, that Mr. Griffin, chairman of Respondent' s board
of directors, had said "that if the Union came in, he would close the door and
move [the plant] back to Dallas." On or about August 29, Lucille Chandler,
who had been laid off on July 2, made application for reinstatement to Smith.
In the course of that conversation, Smith asked her whether she knew anything
about the Union.
At a Board-ordered election' (16-RC-828), conducted on December 21, 1951,
among the Pittsburg plant production and maintenance employees, in which 203
of approximately 222 eligible voters participated, 77 employees voted for repre-
sentation by the Union and 111 against such representation. Respondent's
Dallas plant was never "organized."
B. Concluding /lndinga
1. Interference, restraint , and coercion
By the following conduct Respondent interfered with, restrained , and coerced
Its employees in the exercise of the rights guaranteed in Section 7 of the Act
and thereby violated Section 8 ( a) (1) thereof :
(a) Robinson 's Interrogation of Foster on April 10 concerning union ac-
tivities and his threats to Youngkin and Foster that Respondent would not
permit the shop to be organized and would get "rid " of the Union.
(b) Foreman Campbell 's threat to Clarence Duncan , on or about June 10,
that if he found anybody who signed a card or joined the Union, he would
see to it that they were fired.
(c) Foreman Withrow 's statement to Bernie Duncan that Respondent was
a "bigger outfit" than the Union, that it would "never go union ," and if neces-
sary, would close the Pittsburg plant and move it to Dallas.
4 The foregoing findings are based on the credited testimony of the two Duncans. Re-
spondent's contention that neither Campbell nor Withrow had authority to make, or effec-
tuate, the threats found in the text is without merit . Aside from other fundamental con-
siderations which require rejection of this contention , the threats found are similar in
pattern to , and merely reflect, Respondent 's position as expressed by Plant Manager
Robinson.
5 Initiated by the Union's petition filed on August 8, 1951.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) The similar threat made by Personnel Manager Smith to S. O. Rice on
or about August 1.
(e) Smith's interrogation of Lucille Chandler, on or about August 29, whether
she knew anything about the Union.
With respect to the remaining allegations of paragraph 9 of the complaint
charging that Respondent otherwise violated Section 8 (a) (1) of the Act, I
find that the General Counsel has not sustained the burden of establishing
such violations by a preponderance of the evidence, and shall therefore recom-
mend that such remaining allegations be dismissed.
2. The discriminatory discharges or failure to recall
a. Youngkin and Foster
It has previously been found that when Youngkin and Foster asked Robinson
on April 10 why they were discharged, Robinson told them that they should
know why, that he had been informed that they were the promoters of the
Union, that the Respondent would not permit the shop to be organized, and
"was going to get rid" of the Union. That evidence, with or without Re-
spondent's subsequent conduct dedicated to the forestalling of the Union, is
more than ample to establish, prima facie, the General Counsel's case of
discrimination.
While the burden of proof to establish discrimination remains on the General
Counsel throughout the proceeding, the prima facie case heretofore detailed
made it incumbent on Respondent to go forward with the evidence and to offer
a satisfactory explanation for the discharges. Respondent has not only failed
to do so, but the evidence produced by its own witnesses lends credence to
the General Counsel's allegation that Youngkin and Foster were discharged
because Respondent believed them to be the promoters of the Union.
Robinson testified that when Youngkin had substantially completed the power-
wiring job and which "was more than satisfactory," he retained Youngkin as a
maintenance electrician at a reduced journeyman electrician's rate to install and
maintain "all electrical equipment" in the plant. This was only 10 days before
Youngkin and Foster were discharged. Respondent urges, however, that they
were both discharged "because they could not succeed in placing the electric
induction heaters in operating condition and thus making their services totally
unnecessary." While Youngkin devoted part of the period after he was hired
as a maintenance electrician to work on induction heaters, part of that time was
spent on the wiring job, which, according to Robinson, was being performed to
his satisfaction. Nor was it, or could it be, claimed that either of these two
men were engaged solely to place the "electric induction heaters in operating
condition." Youngkin was hired on or about March 28 as a maintenance elec-
trician at a journeyman's wage. Robinson, a graduate technical engineer, tes-
tified that "the only way [he] knew to get the induction machines in operation
was to get specialists to get them in operation" and he hired such experts, appar-
ently more than one, at $5 per hour and expenses. According to Robinson, these
heaters were "highly complicated and technical machines . . . [having] a radio
frequency generating set similar . . . to a radio station, the electronic type."
Even the hired specialists were unable to repair the heaters. While the record
undoubtedly establishes that Youngkin and Foster worked on the heaters, I
am not persuaded either that they were hired on March 28 to repair the heaters
or that they were discharged on April 10 because they were unable to satis-
factorily repair them.
GRIFFIN MANUFACTURING COMPANY 739
According to Robinson's testimony, it took Youngkin until approximately April
10 "to do the entire overall wiring job." ° Most significant is the fact, undenied
by Robinson, that earlier on the same day that Youngkin and Foster were dis-
charged, he told a group of employees, of which Youngkin and Foster were mem-
bers, that they were to be the "keymen and pace setters" for future operations.
Several times during his testimony, Robinson expressed his satisfaction with
the quality of Youngkin's work in connection with the wiring job. Indeed, it is
not claimed that Youngkin was fired because he was unable to perform satis-
factorily as a journeyman maintenance electrician, but only because he was
unable to repair the induction heaters which Robinson knew required the
services of highly trained and experienced specialists. The record is silent as
to how many, if any, electrical maintenance men Respondent retained on its
rolls. However, I find it difficult to believe that it commenced and carried on
production already in default, requiring the services of approximately 290
employees in a plant where electric power played so important a part, without
the services of a journeyman electrician who had rendered satisfactory service
and was the first electrician employed by Respondent.
I am also not persuaded that Foster was discharged "because [he] could not
succeed in placing the electric induction heaters in operating condition and
thus making [his] services totally unnecessary" as Respondent asserts in its
brief. Foster had applied to Respondent for employment as a "maintenance
mechanic or something like that." He had never before worked as an electri-
cian but had some mechanical experience as an operator of a bulldozer. He
was hired on March 10, not as an electrician, but as a laborer at 75 cents an
hour. A week later he was raised to $1, and a few weeks thereafter to $1.25
per hour. During the week before he was discharged on April 10, he was work-
ing under Foreman Bellmire engaged in maintenance work on welders. Foster
was a member of the group that Robinson on the morning of April 10 char-
acterized as the pace setters for future operations. After Foster's discharge,
Bellmire told him that the reason both Youngkin and Foster were discharged
was because both men were "leaders of the Union."'
Nor is there any merit to Respondent's contention that the General Counsel's
claim of discrimination failed because the record does not establish that there
was any "activity on behalf of the Steelworkers" until after Youngkin and
Foster were discharged. Admittedly, the union activities of these two men
were not of an intensive or extensive nature. Nevertheless, Youngkin talked,
in the plant, to at least four men as to the method to be pursued in "organizing
the plant." And, while Foster admitted that he was not actively engaged in
organizing or in any other union activity while employed by Respondent, that
fact does not peremptorily require a finding of nonviolation of Section 8 (a) (3).
It is sufficient, here, that both men were discharged for the reasons assigned by
Robinson when the two men were discharged-that Robinson chose to rely on,
and believed, the information brought to him by "two or three men that
[Youngkin and Foster] were the promoters" for the Union. The Board has
"always held that when an employee is discharged because his employer believes
him to be engaged in [union] activity, the discharge is violative of the Act,
whether or not such belief is well founded." (Emphasis supplied.) New York
Telephone Company, 89 NLRB 383.
6 Robinson testified that it "took [ Youngkin ] approximately 6 weeks" for this work.
Youngkin was hired on March 1.
4 Bellmire , whom Youngkin described as assistant superintendent of the plant , was not
called as a witness.
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the entire record, I find that Robinson discharged Youngkin and Foster on
April 10, 1951, because he believed them to be the leaders in a movement to
organize the plant. By such conduct Respondent violated Section 8 (a) (1) and
(3) of the Act.
(b) The remaining alleged discriminatees
Of the other seven employees named in footnote 1, supra, alleged to have been
the subjects of Respondent's discrimination, it is the position of the General
Counsel , as announced at the hearing, that with respect to Fannie Rose, Ada
Kisner, and Vera Mae Richardson, the alleged discrimination consisted of Re-
spondent 's failure to recall after layoff ; with respect to the remaining four
employees, it is claimed that they were discriminatorily discharged.
The record establishes conclusively, and the General Counsel made no claim
to the contrary, that on or about July 1 Respondent found it economically advis-
able and feasible to substantially reduce its working staff of 290 employees. It
did so by consolidating its day and night shifts and laying off 68 employees on
July 2 and 19 more on July 9. Fannie Rose was among the 68 laid off on July 2
and Ada Kisner one of the 19 laid off on July 9. During the latter part of October,
25 to 30 additional employees, including Vera Mae Richardson, were laid off.
The General Counsel claims that Respondent's failure to recall these 3 em-
ployees was discriminatorily motivated. On the entire record I am convinced
and find that he has failed to establish his case with respect to these 3
employees.
One factor leading to this conclusion was the lack of credible, probative evi-
dence that work was available for these employees after their respective layoffs.
Secondly, even if it be assumed that after these layoffs work of the type they
were previously engaged in was available, I find that the prior work performance
of these three women was of such a character as to justify a refusal to reemploy,
and that there was no credible evidence that a discriminatory motive prompted
such refusal.
Fannie Rose, known to her friends as "Toughie" Rose, was employed on a
temporary basis on or about June 10 and was laid off on July 2. Prior to her
employment by Respondent, she was engaged in housework. Working on the
night shift she was, according to her own testimony, moved "from one job to
another-every night." The absence of any evidence that these changes in work
assignments were discriminatorily motivated compels the inference that she was
unable to acquire the proficiency which would otherwise merit a permanent
assignment. Except for signing a union application card, she was not active
in union affairs . I find that the refusal to rehire her was not discriminatorily
motivated.
Ada Kisner was hired about June 1 to work on the paint line and was laid
off on July 9. Though both she and her husband, Charles Kisner, signed appli-
cation cards to join the Union, she was not active in its affairs and had done
no "union work at all." Shortly before she was laid off she suffered a fainting
spell due to the combinations of gaseous vapors and heat. The persons laid
off, including Mrs. Kisner, were selected by Supervisors Lunceford and Withrow.
They testified they selected her because (1) there were other employees in the
department who rendered, and were capable of rendering, more satisfactory
service, and (2) because her husband was still working in the plant and there
were "other workers that needed the money or the work more." While the
record establishes that Respondent employed several employees in the paint
department after July 9, the evidence does not disclose whether these were
GRIFFIN MANUFACTURING COMPANY 741
new employees or former employees who were recalled. In any event, they
were all male employees, presumably better qualified, physically, to withstand
the rigors of the job. On the entire record I find that the General Counsel has
not sustained the burden of proving by a preponderance of the evidence that
Mrs. Kisner was not selected for recall for the reasons alleged in the complaint.
Vera Mae Rich.ardaon was hired on May 12 and laid off on October 16. In
the interim she moved from job to job, some of which were of a menial nature.
Though her union activities were openly carried on, both she and the General
Counsel specifically disclaimed any suggestion that the change in assignments
was discriminatorily motivated. At the time of her layoff, she was engaged
in the inspection department in work which involved the handling of 2,500 to
3,500 bombshells per day weighing approximately 4 pounds each. To perform
her job, she had the assistance of a Negro employee who brought the shells to
her post. When the staff was reduced by 25 to 30 employees in October, her
work was taken over and thereafter carried on by a man, without other as-
sistance. On the entire record I am not persuaded that Respondent thereafter
discriminatorily refused to reinstate her as claimed by the General Counsel.
We turn now to the four remaining employees alleged to have been discrimina-
torily discharged.
S. O. Rice was hired on May 7 as a punch press operator and was discharged
on August 21. He joined the Union in May and attended union meetings.
Early in August," Personnel Director Smith informed him of Griffin's threat
that if the Union was successful in its campaign, he would close the plant
and move it to Dallas. About 2 weeks before he was discharged , Robinson
accused Rice of circulating reports in the plant that if employees "didn't
join the Union they couldn't work there." Rice denied making the threat,
but was, nevertheless, admonished by Robinson that the latter "wasn 't going
to stand for either union or non-union people being threatened in the plant."
He was discharged without warning or notice on August 21.
It is Respondent's contention that Rice was discharged only because he was
too slow in his work. Robinson testified that the punch press which Rice was
operating had a maximum operating capacity of "over 50,000 strokes per day"
which he admitted, however, no operator was expected to maintain . Robinson
further testified that Rice was producing "around 7500 per day" while Bynum,
who succeeded Rice, maintained " somewhere around 15 ,000 operations a day."
Withrow, Rice's foreman, testified, in contradiction to Robinson's testimony,
that the machines' "rated capacity was something around 30,000 operations in
a day" and that Rice was only producing " around 6500 parts a day."' Though
Robinson testified that there were "counters" on each machine, none of the
records showing the actual production of Rice, Bynum, or any other press
operators, which Respondent apparently kept, were offered in evidence. Sig-
nificantly, too, the evidence fails to disclose that Rice was ever warned that
his output was too low, the only reason for which he was allegedly discharged.
Indeed, only a week before his services were terminated, Rice asked Super-
intendent Wyrick for an appraisal of his work and, pointing to his full pro-
duction box, received Wyrick's assurance that his production was "sufficient."
$The Union 's petition for representation was filed August 8; it recited that a demand
for recognition was made on August 2.
9 At the hearing , Withrow was asked why he selected Rice for layoff . He testified that
when he assumed supervision of the department in which Rice was employed , "they were
reducing the force and equalizing the night crew and the day crew , and to keep up the
production in it with the reduction in force, [he] felt [he ] had to have a faster manl on
that press-so [he ] let [Rice ] go and put Bynum on it" The reduction in force , however,
took place early in July. Rice was not discharged until August 21.
257965-54-vol. 103-48
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Consideration of (1) Respondent's union animus as found above, (2) Rob-
inson 's accusation concerning Rice's union activities, and (3) Respondent's un-
convincing evidence concerning the reason assigned for Rice's precipitate dis-
charge have led me to the conclusion that Rice was discharged for the reasons
alleged in the complaint and in violation of Section 8 (a) (1) and (3) of the Act.
Charles Kisner was employed on February 28 and discharged October 14,
and was among the first to join the Union. It was clearly established that in
July one of Respondent's foremen observed that Kisner carried union appli-
cation cards in his toolbox. Thereafter, in September lie received a raise in pay.
He was discharged in mid-October when Respondent, for economic reasons, made
its third staff reduction by releasing 25 to 30 employees.
Kisner was employed in the maintenance department which, in July, was
staffed by seven men. One was laid off in July, Kisner in October, and other
individual releases followed until, at the time of the hearing when Respondent
was engaged in "some civilian production" employing approximately 70 people,
only 2 remained in the maintenance department. While some evidence was
offered which, standing alone, would support the finding sought by the General
Counsel, consideration of the entire record compels the conclusion that he has
not sustained the burden of establishing by a preponderance of the evidence
that Respondent's selection of Kisner for discharge in October was motivated
as alleged in the complaint.
Harvard McWilliams was employed May 14 and was one of the group laid off
in mid-October. He joined the Union in June and during the course of his
employment solicited union membership from other employees. While he per-
formed his work satisfactorily, several supervisors complained of his excessive
talking. His wife, who was also employed by Respondent and was also a
member of the Union, was laid off in July, rehired a month later, laid off in
October, rehired in November, and continued her employment until the final
reduction was made in May 1952. As in the case of Charles Kisner, I am not
persuaded by a preponderance of the evidence that McWilliams was included
in the October layoff because of his union membership or activities.
Lucille Chandler was hired on June 11 and laid off on July 2. She applied
for reinstatement on August 29 when Smith asked her whether she knew any-
thing about the Union. She went to work on the following day, joined the
Union on September 5, and was laid off October 26. There was no probative
evidence offered to establish that she was the subject of any discriminatory
treatment by Respondent.
In sum, therefore, I find that Respondent discriminatorily discharged or laid
off Youngkin, Foster, and Rice, but that it did not violate the Act in discharging
or laying off Rose, Ada Kisner, Richards, Charles Kisner, McWilliams, and
Chandler. With respect to the last six, it will be recommended that the allega-
tions of the complaint charging that they were the subjects of illegal discrimina-
tion be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow thereof.
GRIFFIN MANUFACTURING COMPANY 743
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, I shall recommend that it cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act. The
record reveals that on April 25, 1952, Respondent offered full reinstatement to
all the alleged discriminatees. Under the circumstances, it is unnecessary to
recommend herein the reinstatement of the employees found above to have been
discriminated against. It is, however, recommended that Respondent make
whole Herbert Youngkin, J. R. Foster, and S . O. Rice for any loss of pay result-
ing from the discrimination against them, by paying them a sum of money equal
to the amount they would have earned from the dates of their respective discrim-
ination to the date of offer of reinstatement less their net earnings 10 to be
computed on a quarterly basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289, 291-294. Earnings in one quarter shall
have no effect upon the back-pay liability for any other such period. It will also
be recommended that the Respondent make available to the Board, upon request,
payroll and other records to facilitate checking the back pay due. F. W. Wool-
worth Company, supra.
In view of the nature of the unfair labor practices committed, I shall also
recommend that the Respondent cease and desist from infringing in any manner
upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, I make the following :
CONCLUSIONS OF LAW
1. The Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
10 Crossett Lumber Company, 8 NLRB 444, 497-498.
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in, or activities on behalf of, UNITED
STEELWORKERS OF AMERICA, CIO, or in any other labor organization , by dis-
criminating in regard to hire or tenure of employment or any term or con-
dition of employment.
WE WILL NOT interrogate employees concerning their union membership
and activities.
WE WILL NOT threaten to discharge or lay off employees or to shut down
our plant because of their union membership and activities.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist UNITED STEELWORKERS OF AMERICA, CIO, or
any other labor organization, to bargain collectively through representatives
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
WE WILL make whole the following named employees for any loss of pay
suffered as a result of the discrimination against them :
Herbert Youngkin
J. R. Foster
S. 0. Rice
GRIFFIN MANUFACTURING COMPANY,
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.
NATIONAL PAPER COMPANY and ATLANTA PAPER PRODUCTS AND SPE-
CIALTY WORKERS, LOCAL No. 527, AFFILIATED WITH THE INTERNA-
TIONAL PRINTING PRESSMEN & ASSISTANTS' UNION OF NORTH
AMERICA, AFL
NATIONAL PAPER COMPANY, SOUTHERN DETECTIVES, INC., AND JAMES M.
FIER and ATLANTA PAPER PRODUCTS AND SPECIALTY WORKERS, LOCAL
No. 527, AFFILIATED WITH THE INTERNATIONAL PRINTING PRESSMEN
& ASSISTANTS' UNION OF NORTH AMERICA, AFL. Cases Nos. 10-CA-
1352 and 10-CA-1396. March 17, 1953
Order Denying Motion to Reopen
On February 24, 1953, the Board issued its Decision and Order
in the above cases,' finding that all three Respondents had engaged
in certain unfair labor practices and ordering them to cease and
desist therefrom and take certain affirmative action. In that De-
cision the Board denied a motion filed with the Board by Respondents
Southern and Fier requesting that the Board reopen the case to give
Fier further opportunity to be heard. Thereafter, a new motion
was filed with the Board by Respondents Southern and Fier request-
ing that the record be reopened to receive evidence by Fier relating
to the charges made against him, or that the Board, in the alterna-
tive, consider an affidavit executed by Fier, attached to the motion,
as part of the evidence in the case and "as basis for an additional
exception to" the Intermediate Report in this proceeding.
The foregoing affidavit, executed December 23, 1952, by James M.
Fier, sets forth that at the time of the hearing in the instant proceed-
1102 NLRB 1452.
103 NLRB No. 77.