Lannom Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 20, 1953

103 N.L.R.B. 847 (N.L.R.B. 1953)

LANNOM MANUFACTURING COMPANY 847
LANNOM MANUFACTURING COMPANY and INTERNATIONAL FUR &
LEATHER WORKERS UNION . Case No. 10-CA-19245. March 20,
1953
Decision and Order
On July 3, 1952, Trial Examiner Thomas S. Wilson issued his Inter-
mediate 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. He also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint and recommended dismissal of those allegations. There-
after, the Respondent and the Union filed exceptions to the Inter-
mediate Report, and supporting briefs.
The Board 1 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed.2 The Board has considered the Intermediate Report, the
exceptions and briefs, and the entire record in this case's and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the following exceptions, additions, and modifications :
1. We agree with the Trial Examiner's finding that the Respondent
engaged in certain conversations which were violative of Section
8 (a) (1) of the Act. However, we find only the following portions
of such conversations to be violative of Section 8 (a) (1) : (a) Manager
Parish's interrogation of employee Lavoy Hobbs as to how strong the
Union was; (b) Parish's request of employee Farris to let him know
if Farris found out anything about the union organizational campaign;
(c) Superintendent Waggoner's interrogation of employee Fletcher as
to whether Fletcher was a union man; and (d) Foreman Spencer's
statement to employee Overman that the Union "could never organize
this place because they'll start cutting production and laying off."
2. We disagree with the Trial Examiner's finding that employee
Lavoy Hobbs had more seniority than employee Buford Cartwright.
Cartwright began his employment before Hobbs. Hobbs was never
i Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as
amended, the Board has delegated its powers in connection with this case to a three-
member panel [ Members Houston , Murdock , and Styles].
2 We affirm the Trial Examiner 's denial of the Respondent 's motion to dismiss the com-
plaint on the ground that the Union was not in compliance with Section 9 (h) of the
Act, and his rejection of evidence in support thereof. We are administratively satisfied
that the Union was in compliance with Section 9 (h) at all times relevant hereto. See
American Cable t Radio Corporation, 102 NLRB 1012. See also United Tanners, Inc.,
103 NLRB No. 73.
8 The request by the Union for oral argument is denied , because the record , exceptions,
and briefs , in our opinion , adequately present the issues and the positions of the parties.
103 NLRB No. 87.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
laid off and Cartwright was but, as found by the Trial Examiner with
respect to employee Steve Tucker, only a "quit" and not a layoff broke
seniority under the Respondent's seniority rules 4 Hobbs, therefore,
was laid off in the February 14-16, 1951, layoff in accordance with the
Respondent's seniority rules. Accordingly, we find, contrary to the
Trial Examiner, that there is insufficient evidence to find that Hobbs'
layoff was discriminatory, despite the fact that Hobbs was a known
union leader and also had refused Parish's request to assist the
Respondent in influencing the employees against the Union.
3. We agree with the Trial Examiner's finding that the Respond-
ent's layoff of employees Armstrong, Overman, and Tucker in the
February 14-16, 1951, layoff, admittedly in violation of the Respond-
ent's seniority rules, was discriminatory. We disagree, however, with
his finding that [9 or] 11 other employees were discriminatorily laid
off at that time. The apparent ground for this finding is, in substance,
that the Respondent, in the 31/2-month period following the layoff,
increased its staff by this number without regard to its seniority rules,
thereby indicating that the layoff was a larger one than the economics
of the situation warranted. We do not believe that this subsequent
increase in the staff, which did not commence until March 19 and
which was not completed until May 28, necessarily indicates that
the layoff of February 14-16 was larger than necessary. We do agree,
however, with the Trial Examiner's finding that the employees in
question 5 should have been reemployed under the Respondent's
seniority rules, and that the failure to so reemploy them was discrimi-
natory, in violation of Section 8 (a) (3) of the Act.
We also, therefore, do not adopt the remedy recommended by the
Trial Examiner with respect to these employees and the other em-
ployees who were not discriminated against in the February 14-16
layoff. Having found that the Respondent discriminatorily failed
to reemploy these employees after this layoff, we shall order the
Respondent to offer immediate reinstatement to all employees laid off
on February 14-16, 1951, who would have been reemployed thereafter
if the Respondent had followed its customary departmental seniority
policy, and make them whole for any loss of pay suffered by reason
of the discrimination from the dates they would have been reemployed
if the customary seniority policy had been followed to the dates of
a proper offer of reinstatement, in accordance with the formula set
forth in F. W. Woolworth Company, 90 NLRB 289.6
' The record does not support the Trial Examiner 's finding that Cartwright had either
quit or been laid off ; it rather shows that he was laid off.
6 The record does not clearly establish either the number or the identity of these
employees.
6 On March 16, 1951 , the Respondent sent letters to 13 laid-off employees, which stated
that there might be a possibility of 1 or 2 days' work per week, and invited these employees
to call at the plant to discuss the matter at a specified date and hour. These letters can
LANNOM MANUFACTURING COMPANY 849
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the Act, the National Labor Relations Board hereby orders that
the Respondent, Lannom. Manufacturing Company, Tullahoma,
Tennessee, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Fur & Leather
Workers Union by discriminating in regard to the hire or tenure of
employment of its employees, or by discriminating in any other
manner in regard to any term or condition df employment.
(b) In any manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist International Fur & Leather
Workers Union, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage
in concerted activities for the purposes of collective bargaining or
other mutual aid or protection or to refrain therefrom, as guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Offer to A. A. Overman, Steve Tucker, T. G. Armstrong,
Harold Crosslin, and Martie Ulmer immediate and full reinstatement
to their former or substantially equivalent positions without preju-
dice to their seniority or other rights and privileges, and make each of
them whole for any loss of pay, which he may have suffered by reason
of the discrimination against him in the manner provided in the sec-
tion of the Intermediate Report entitled "The Remedy."
(b) Offer to those employees listed on Appendix A attached hereto,
who were laid off on February 14-16, 1951, and who would have been
reemployed thereafter if the Respondent had followed its customary
departmental seniority policy, immediate and full reinstatement to
their former or substantially equivalent positions without prejudice
to their seniority or other rights and privileges, and make each of
them whole for any loss of pay suffered by reason of the discrimination
against him, by payment to each of them of a sum of money equal
to that which he would have earned as wages from the date he would
have been reemployed if the customary seniority policy had been
followed to the date of the offer of reinstatement, less his net earnings
during such period.
hardly be construed as offers of reinstatement to the 6 employees who received the letters
too late to respond to the invitation , or to the 2 employees who responded but were
refused reemployment . In any event , these letters only stated that there might be a
possibility of reemployment , and they were, therefore , not proper offers of reinstatement to
any of the recipients , so as to affect this order . See Houston and North Texas Motor
Freight Lines, Inc., 88 NLRB 1462.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post in conspicuous places at its Tullahoma, Tennessee, plant,
in all places where notices to employees are customarily posted, copies
of the notice attached hereto as Appendix B.' Copies of said notice,
to be furnished by the Regional Director for the Tenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof and maintained
by it for a period of sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that saiaiotices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the date of this Order what steps the Re-
spondent has taken to comply herewith.
' 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 A
CARL MCPHERON
LAVOY HOBBS
CONER GRANT
DAN RIDDLE
CLEVE DUKE
WOODROW HOBBS
WILLARD FARRIS
JAMES L. WEBB
BOBBY J. WEBB
Louis WILLIAMS
SAM NEAL
WARD ARMSTRONG
EDWARD R. MINES
FRED MILLRAMY
CHARLES FLETCHER
EUGENE RACKLER
JAMES HALEY
HOWARD DUKE
FRANK BROWN
Appendix B
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, we hereby notify our employees that :
WE WILL NOT discourage membership in INTERNATIONAL FUR &
LEATHER WORKERS UNION by discriminating in regard to the hire
or tenure of employment of our employees, or by discriminating
in any other manner in regard to any term or condition of em-
ployment.
WE WILL NOT in any 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 INTERNATIONAL FUR
LANNOM MANUFACTURING COMPANY 851
LEATHER WORKERS UNION, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and to
refrain from any or all of such activities except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
WE WILL offer to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any
loss of pay suffered as a result of the discrimination.
A. A. OVERMAN
STEVE TUCKER
MARTIE ULMER
HAROLD CROSSLIN
T. G. ARMSTRONG
WE wILL offer to such of the employees named below as were
discriminated against immediate and full reinstatement to their
former or substantially equivalent positions without prejudice to
any seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay suffered as a result
of the discrimination.
CARL MCPHERON
FRANK BROWN
CONER GRANT
DAN RIDDLE
CLEVE DUKE
WoonRow HOBBS
WILLARD FARRIS
JAMES L. WEBB
BOBBY J. WEBB
Louis WILLIAMS
SAM DEAL
WARD ARMSTRONG
EDWARD R. MINES
FRED MILLRAMY
CHARLES FLETCHER
EUGENE RACKLER
JAMES HALEY
HOWARD DUKE
LAVOY HOBBS
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of mem-
bership in or activity on behalf of any such labor organization.
LANNOM 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.
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
STATEMENT OF THE CASE
This matter arises upon a complaint dated February 27, 1952; by the General
Counsel' of the National Labor Relations Board, herein called the General
Counsel and the Board, respectively, through the Regional Director for the
Tenth Region (Atlanta, Georgia), against Lannom Manufacturing Company,
herein called the Respondent, which alleged, in substance, that the Respondent
had in various enumerated ways since on or about February 1, 1951, interfered
with, restrained, and coerced its employees and that since February 14, 1951,
had discharged and thereafter refused to employ certain named employees be-
cause of their membership in and activities on behalf of the Union, thereby
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Labor Management
Relations Act, 1947, 61 Stat. 136, herein called the Act. The Respondent duly
filed its answer admitting certain allegations of the complaint but denying the
commission of any unfair labor practices. Copies of the various charges, com-
plaint, and notice of a hearing thereon were duly served upon the Respondent
and the Union.
Pursuant to notice, a hearing was held between March 17, 1952, and March 27,
1952, at Manchester and Tullahoma, Tennessee, before the undersigned Trial
Examiner. The General Counsel, the Union, and the Respondent were repre-
sented by counsel or representative. All parties participated in the hearing and
were given full opportunity to be heard, to examine and cross-examine witnesses,
to introduce evidence bearing upon the issues, and to present oral argument and
file briefs and proposed findings of fact or conclusions of law or both. The
General Counsel and the Respondent argued orally at the conclusion of the
hearing but neither filed a brief.
During the hearing the Respondent moved that the complaint herein be dis-
missed under Section 9 (f), (g), and (h) of the Act. The Respondent based
this motion upon an offer of proof wherein, admitting that the Union was in
technical compliance with the aforementioned sections of the Act, the Respondent
offered to prove that Ben Gold, the union president, had publicly stated after
signing his affidavit that while he had resigned from the Communist Party in
order to comply with the Act, he was renouncing none of the principles he had
previously held and further that Irving Potash had resigned his union office of
vice president rather than abandon his admitted membership in the Communist
Party but thereafter, despite his resignation, had continued to exercise all the
functions of such union office just as he had done prior thereto. From this the
Respondent argued that such compliance was not in good faith and that the
Board should therefore exercise its discretion by refusing to process charges
filed by this Union. The motion was denied. Such alleged defects in fulfilling
the requirements of the above sections of the Act are provable in other forums.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
i The complaint is based upon an original charge filed April 18, 1951, and subsequently
amended three times, the last being on February 18, 1952, by International Fur & Leather
Workers Union, herein called the Union.
2 This term specifically includes the counsel for the General Counsel appearing at the
hearing.
LANNOM MANUFACTURING COMPANY
FINDINGS OF FAOT
1. THE BUSINESS OF THE RESPONDENT
853
Lannom Manufacturing Company is a corporation organized under and exist-
ing by virtue of the laws of the State of Tennessee. It maintains an office and
place of business at Tullahoma, Tennessee, where it is engaged in the business
of manufacturing baseballs and operating a tannery. Respondent, in the course
of its business operations, annually sells finished products valued at more than
$50,000 to customers located outside the State of Tennessee. Respondent admits,
and the undersigned finds, that the Respondent is engaged in commerce in the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Fur & Leather Workers Union is a labor organization admitting
to membership employees of the Respondent.
M. THE UNFAIR LABOR PRAOI'iCEs
A. Chronology of events
In December 1950, Willie Helms, an organizer for the Union, came to the city
of Tullahoma, population about 10,600 persons, primarily to organize the em-
ployees of the new plant of the Wilson Athletic Goods Company in this city.
About January 25, 1951, Helms extended his campaign by commencing an un-
dercover attempt to organize the employees of the Respondent's tannery when he
met with employees T. G. (Gregg) Armstrong, Steve Tucker, and Martie Ulmer,
each of whom signed a card applying for membership in the Union and authoriz-
ing the Union to bargain for him. Thereafter Armstrong assumed the leadership
among the tannery employees in this attempt to establish the Union. Between
that date and February 5, 1951, 26 tannery employees and Sally Blackburn
(employed in the baseball factory) signed similar cards for Helms and
Armstrong.
In the meantime, on January 17, 1951, the National Production Authority
(NPA) issued its order M-28 freezing certain types of leather and indicating
that leather would soon be rationed because of the Korean crisis. On February
5, 1951, NPA followed this with its order M-35 which froze the sale of all hides
until March 15, 1951, so as to accumulate a stockpile of hides with which to in-
augurate the allocation system. The Respondent's quota of 1,300 hides per
month, approximately 60 percent of its prequota consumption, became known
on February 28, 1951.
On February 14-16, 1951, the Respondent suddenly and without warning gave
notices of permanent layoff to 23 of its 51 tannery employees, 22 of whom had
previously executed union-authorization cards. After this layoff there remained
in the Respondent's employ in the tannery only employees Harold Crosslin,
Martie Ulmer, Buford Cartwright, and J. C. Womack,' who had executed similar
cards. Thereafter the Respondent laid off Crosslin on February 26, 1951, and
Martie Ulmer on March 28, 1951, allegedly for engaging in fisticuffs in the plant,
as will be found hereinafter, leaving thereafter only Cartwright and Womack.
Prior to March 4, 1951, when it appeared as a paid advertisement in the
Tullahoma News with a list of the signatories thereto,' the following petition
5 The twenty-seventh signer , of course , was Sally Blackburn.
' Who paid for the insertion of this petition in the Tullahoma News was not disclosed
in the record except that it was not the Respondent.
257965-54-vol. 103-55
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was circulated among the employees and supervisors of the Respondent for
signature in both the tannery and the baseball plant during working hours:
Notice to I. F. L. W. Union
* * * * * * *
We, the employees of Lannom Manufacturing Co., Do Not Want Your Union,
so please stay away and let us work.
During the period of its circulation in the plant this petition was signed by 96
rank-and-file employees of the tannery and the baseball plant including Ulmer,
Cartwright, and Womack, and by the 5 following supervisory officials of the
Respondent : John Waller, superintendent of the baseball plant ; Floyd Huskey,
assistant shipping manager ; Everett Hodge, foreman of the home sewing depart-
ment ; John Tucker, foreman of the sewing department of the plant ; and by
William Sanders, manager of the machine-sewed balls department 6
The above-found facts constitute the skeleton on which the present case rests.'
Further incidental, but re\ealing, facts will be added to the above during the
subsequent discussion of the contentions of the parties.
The General Counsel and the Union maintained that the layoff of February
14-16 during which, for the first time in the Respondent's history of similar
layoffs, slips were marked "permanent"-not temporary-the layoff of Harold
Crosslin on February 26 and that of Martie Ulmer were caused by the attempt
being made at this time by the laid-off individuals to organize the Union in the
Respondent's tannery. These parties argued that this contention is proved by
the coincidence in the time of the layoff with the organizational drive, by the
fact that 24 of the 25 employees laid off from a staff of 51 had executed union
cards and by the fact that when the Respondent had completed its layoffs, only
2 of the 26 tannery employees who had executed union cards were retained as
employees. They argue that this mortality of 92 percent or more among the
union employees of the tannery when compared to a mortality of 8 percent or less
among the almost equal number of nonunion tannery employees is itself cogent
proof of a discriminatory method of selection of personnel to be laid off based upon
union membership. They argue that other incidents discussed hereafter make
Respondent's motivation even clearer. They even argue that there was no
economic reason for a layoff on February 14-16.
The Respondent on the contrary argues that: (1) The layoffs of February
14-16 and of Crosslin were due exclusively to economic factors beyond the Re-
spondent's control and refer to the freeze on leather and the usual spring slow-
down of sales of baseballs; (2) with only two exceptions, the layoff was ac-
complished in accordance with the principles of strict seniority; (3) Ulmer was
discharged for fighting in the plant; and (4) the Respondent had no knowledge
of any union activity until after the layoffs of February 14-16 and hence there
could have been no discrimination based upon union membership. If true, the
Respondent would appear to have an impregnable defense even as against the
strong case presented by the General Counsel.
B. Economic necessity for layoff
In Tullahoma, Respondent operates a tannery in conjunction with its baseball
plant. Manager Parish testified that the tannery was merely a service division
Despite the prevalence of names of high supervisory officials on the petition, Manager
Parish, Office Manager Robertson, and Tannery Superintendent Waggoner each denied
having had any knowledge of this petition or of its circulation in the plant. Under the
circumstances this testimony is hardly worthy of belief.
9 The cases of Annie B. and Sally Blackburn are completely unrelated to the layoff in
the tannery and thus will be considered separately herein.
LANNOM MANUFACTURING COMPANY 855
to supply the baseball plant with horse and cow hides necessary for the man-
ufacture of baseballs. In view of the fact that admittedly 20 to 50 percent ' of
the leather tanned in the Respondent's tannery is not used in the manufacture of
baseballs but instead is sold either to other divisions of the Respondent located
elsewhere or to third parties, and to the fact that the tannery tanned large
quantities of sheepskins which are not usable in making baseballs and of heavy
cowhide of which only a portion is used in baseballs except when better hides
are unavailable. Parish's description appears to be overstated . The service
record of the tannery employees also indicates from their long employment that
they enjoyed long and continuous service interrupted only on rare occasions by
temporary layoffs-never before permanent layoffs. Thus the seasonal fluctua-
tion of the baseball sales had only slight effect upon the employment at the
tannery as the tannery was not completely dependent upon the baseball factory
for its business including, as it did, sheep hides and shoe welting. It is in-
teresting to note that baseball production was at its peak for the year during
Feburary 1951.
Nor does it appear that there was any lack of hides as of February 14-16 which
would have necessitated the layoff of that date for the Respondent had received
deliveries of heavy purchases of hides during the month of January. Further-
more, Parish on February 12 gave a press interview in which he was correctly
quoted as saying that the Respondent had stockpiled enough hides at that time
to continue the baseball business for the ensuing year even though he anticipated
the necessity of a reduction of 35 to 40 employees in the tannery "within thirty
days." Thus it appears that the layoff of February 14-16 was not caused by any
immediate leather shortage.
However, the Respondent 's experience with hide rationing in World War II,
which reduced the Respondent's consumption of hides 50 percent or more, had
required a sharp curtailment of the tannery staff at that time. So a similar cur-
tailment could be anticipated in the tannery when it became known on February
28, 1951 , that the Respondent 's allocation of hides under NPA regulations was
to be 1,300 hides per month , approximately a 40-percent reduction in consump-
tion . The fewer hides to be tanned, naturally the fewer employees needed.
In view of the uncertainties produced by the possibilities of the institution
of the rationing system of bides, the undersigned believes that a cautious em-
ployer might well have laid off some employees in early January when the
imposition of this rationing system became certain , or that a careful employer
might have waited until his particular quota had been made so that the layoff
could have been made based upon fact rather than upon surmise and speculation.
The facts would , therefore, appear to indicate that a layoff in the tannery was
to be anticipated due to the current uncertainties in the tanning business. But
the time selected by the Respondent for this layoff on February 14-16 would not
seem to fit properly into the exigencies of the economic situation confronting the
Respondent at that time.
Apparently Parish himself changed his mind as to the time of the layoff be-
tween the time of his Tullahoma News interview when it was to come "within
30 days" and February 14 when the layoff was actually put into effect. Why?
However, the undersigned cannot substitute his business judgment for that of
the Respondent at the time and, therefore , cannot find that this layoff at this time
was unnecessary. Obviously the economic situation did have a bearing on the
layoff. But the fact that there was economic justification for a reduction in
force is not however necessarily dispositive of the issue of discrimination .8
According to estimates of various Respondent witnesses.
s N. L. R. B . v. W. C. Nabors Co., 196 F . 2d 272 ( C. A. 5).
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Lack of knowledge of union activities
Could the reduction in force at this time have been caused by the Respondent's
learning of the attempt to organize the Union? On this point Manager Parish,
Office Manager Robertson, and Tannery Superintendent Waggoner, with one pos-
sible exception, were unanimous and adamant in their testimony that they had
no knowledge of any union activity at the plant until "after the layoff." They
were all equally vague as to the actual date and means by which they learned
of the union activity. Of the three, only Robertson indicated any possibility that
he "might" have even heard rumors of union activity prior to the layoff. Wag-
goner originally testified that he learned of the union activity in the plant for
the first time on February 16, 17, or 18 but, upon prompting, agreed that his first
knowledge came from a newspaper story appearing in the Tullahoma News of
February 21.
These three again concurred in their testimony that after learning of the union
activity, they agreed that they would attempt to discourage union membership
"by every legal means" and secured legal advice to that end. The date this legal
advice was sought was vague in the record except that it was again "after the
layoffs."
On the other hand Parish admitted that some days prior to the layoff,, em-
ployee Lavoy Hobbs had called him for an appointment prior to work and had
come in and talked to him in accordance with that arrangement . To Parish,
Hobbs ascribed his request for a conference to the fact that another employee
had accused him, Hobbs, of leading the movement towards unionization. Hobbs
reminded Parish that he had been laid off by the Respondent in 1947 because the
Respondent had suspected him of leading a similar union movement at that time.
Hobbs then offered to work out a 2-week notice of quitting rather than to get
mixed up in another organizing job. Hobbs further told Parish that he knew
nothing about a union, did not want to know anything about a union, and "that's
that." Parish answered that there was no need for Hobbs to quit and agreed to
permit Hobbs to face anyone who might accuse him of leading the union move-
ment. Parish then went on to tell Hobbs that he knew that Willie Helms was
organizing in town and inquired if Hobbs knew that Ben Gold, the union presi-
dent, was a member of the Communist Party. After telling Hobbs that he,
Parish, could do more for the employees than the Union could, Parish asked
Hobbs to return the following day. When Hobbs returned the following day,
Parish asked him how strong the Union was and requested Hobbs' assistance in
opposing the Union for the stated reason that Hobbs had influence with the other
employees. Hobbs refused saying that he wanted to have nothing to do on either
side of the issue. Returning again the following day at the Respondent's request,
Hobbs again refused to assist the Respondent against the Union for the same
identical reason10
It is also undenied that the day before the layoff Parish and Superintendent
Waller (of the baseball plant) had a conversation with employee Farris in which
Parish informed Farris that he thought "a union was trying to get in back
there" and "I think I know who is behind that. It is Mr. Hobbs and Mr. Arm-
9 This interview occurred between the date Hobbs signed his union card , January 29,
1951 , and February 14.
w Parish acknowledged that he had a conference with Hobbs prior to the layoff at
Hobbs ' request but testified that, when Hobbs arrived, the whole conversation consisted
of Hobbs making a statement that he knew nothing about the Union, did not want to
know anything about a union , and "that 's that." Apparently, according to Parish's testi-
mony, this strange conversation did not pique his curiosity about a matter which later
became so important to the Respondent.
LANNOM MANUFACTURING COMPANY 857
strong." Then Parish, reminding Farris that they had always "played ball
together," asked "if you find anything out about it, will you let me know?"
Furthermore, in the early part of the week of the layoff, Waggoner told em-
ployee Fletcher that he, Waggoner, heard that there was a lot of talk about a
union coming in and that all the boys in the beam shop had signed up. Fletcher
denied that he had signed a card and stated that he did not know about the other
employees. On Thursday of the same week, Waggoner again approached Fletcher
and told him that he could not see how a union could help the employees and that
he intended to give Fletcher "a little raise" and put him in Hobbs' place. There-
upon Waggoner inquired if Fletcher was a union man which Fletcher admitted."
Fletcher received his permanent layoff slip the next day.
A few days before the layoff employee Overman remarked to Foreman Spen-
cer that the Union was signing the employees at the Wilson Company plant very
rapidly to which Spencer replied, "they could never organize this place because
they'll start cutting production and laying off."
Accordingly, the undersigned finds in accordance with Parish's admission and
other credible facts that the Respondent had knowledge of the attempt of the
employees to join the Union at its plant prior to the layoff. Further, the under-
signed finds that the conversations above found constitute undue interference
with the rights of the employees guaranteed in Section 7 of the Act in violation
of Section 8 (a) (1) of the Act.
D. Respondent's seniority claim
But the Respondent contends that the employees chosen for layoff on Feb-
ruary 14-16 were selected in accordance with strict seniority so that there
could have been no discrimination against union members because of that union
membership. Respondent made, however, certain admitted exceptions to this
rule of strict seniority. These and other exceptions are of interest here.
The first exception to this rule of seniority came in the case of T. G. (Gregg)
Armstrong. Of the three men then employed in its buffing department, the
Respondent laid off Gregg Armstrong, first employed on September 3, 1947, and
his brother, Ward Armstrong, employed February 3, 1948, while retaining em-
ployee Martie Ulmer, whose first employment began on October 21, 1947. Thus,
according to seniority, Gregg Armstrong should have been retained in the
Respondent's employ. The Respondent admits that Gregg Armstrong was an
exception to its seniority rule but claimed that Gregg Armstrong had requested
that he be laid off ahead of his brother and of Ulmer. The facts show that on
February 14, Gregg Armstrong was sent to Manager Robertson who notified him
of the fact that he was being laid off and that, after being so notified, he asked
Robertson not to lay off his brother, Ward, because Ward might have trouble
securing other employment on account of a physical disability. Despite this
request, Robertson laid off Ward Armstrong. Thus it is clear that Gregg Arm-
strong did not request that he be laid off regardless of seniority. He had already
been laid off when he requested that Ward Armstrong be retained. Gregg Arm-
strong admitted that on the occasion of a prior temporary layoff, he had sug-
gested that he be laid off before Ward or Ulmer, but denied having made this
request at the time of this permanent layoff. The facts confirm Gregg Arm-
strong's testimony. It is to be recalled that the day prior to the layoff Manager
u The only part of this conversation which Waggoner denied was that he had inter-
rogated Fletcher regarding his union membership . Waggoner frankly acknowledged that
be did all in his power to oppose the Union "by every legal means." Waggoner testified
that he never mentioned the word "Union" but referred to "Communists" "like every-
thing." The undersigned accepts the testimony of Fletcher as found above.
.858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Parish referred to Gregg Armstrong as 1 of the 2 leaders of the union movement
during his conversation with employee Farris. That union considerations played
a part in the layoff of Gregg Armstrong was confirmed a few weeks after the
layoff when Manager Robertson told Ward that the Respondent might put somg
of the other employees back to work but that Gregg had gotten "mixed up with
the Union."
The next man laid off admittedly without regard to seniority was employee
A. A. Overman who was originally employed May 29, 1944, and thus was the next
to the oldest employee in point of seniority in his department as well as in the
tannery. The Respondent retained 3 men in Overman's department who had
less seniority than Overman by from 11 months to 3 years and 4 months. The
Respondent's contention here is that Overman was laid off without regard to
seniority because he was such a poor employee that Waggoner had "begged" to be
allowed to get rid of this "half a man," as he referred to Overman, when he
learned of the impending layoffs. The Respondent's testimony in support of
this contention was of such extreme character that, if true, no employer would
have retained such an employee for a matter of days much less of years. The
strangest part of the Respondent's testimony regarding Overman was that the
last particular incident to which the Respondent referred as justification for the
layoff had occurred 6 months or more prior to the date of the layoff. The evi-
dence proved that Overman had never been warned by Waggoner about his al-
leged deficiencies although Waggoner testified that on one occasion he had
started to discharge Overman but that he abandoned the mission without saying
a word to Overman 12 The undersigned believes, and therefore finds, that the
Respondent's testimony regarding Overman's alleged deficiencies is so exag-
gerated, strained, and contrary to the acknowledged fact of his years of con-
tinuous employment by the Respondent as to be unbelievable. It should also be
recalled that it was Overman who only a few days before his layoff had remarked
to Foreman Spencer upon the success the Union was enjoying among the em-
ployees of the Wilson Company.
The Respondent also admits that Steve Tucker was erroneously and incor-
rectly laid off in disregard of seniority due, it contended and proved, to a cleri-
cal error made upon the Respondent's records indicating that on one occasion
Tucker had "quit" instead of having been "laid off," as was, in fact, the case. Re-
spondent acknowledged this clerical error and stated that it was "sorry" about the
error but could do nothing to rectify it. If Tucker had been credited with his
correct seniority, employee Martin D. Smith should have been laid off in lieu of
Tucker. However, the Respondent proved that Tucker had not complained to It
that his seniority had not been correctly established. This is of no import for
the reason that there is no showing that Tucker had any idea that the layoffs
were supposed to be made on the basis of seniority.' It is to be recalled that
about 2 weeks after the layoffs, Robertson greeted Tucker on the streets of
Tullahoma with the remark : "You're still fighting them? . . . Well, that fellow
12 The date of this alleged Incident was not fixed In the record.
Is There Is testimony in the record that Parish made a statement before the layoff as
some of the employees and Parish were enjoying their morning drink at the Coca Cola
machine to the effect that there would be a layoff in accordance with seniority. Assum-
ing-but not deciding-that such testimony was true, still there was no showing that
Tucker was present or heard of the statement . In this state of the record , therefore, It
did not become incumbent upon Tucker to protest his seniority status . The vagueness of
the testimony regarding this meeting and purported announcement at the coca Cola
machine, together with the complete absence of any protests on seniority status as would
be anticipated if such a statement had been made, lead the undersigned to the belief that
no such announcement was ever made.
LANNOM MANUFACTURING COMPANY 859
Willie [Helms] is causing a lot of trouble around here, he ought to be run out of
town."
In addition to these admitted eases, there is considerable doubt as to whether
Lavoy Hobbs was laid off in accordance with seniority. Hobbs had originally
been employed 8 days after employee Buford Cartwright in August 1946 but had
never been laid off during his term of employment with the Respondent as Cart-
wright had been. Cartwright had either quit or been laid off during the interim so
that his seniority appears to have been broken." On the occasion of one layoff
Cartwright was recalled by Respondent at the suggestion of Hobbs who had
not been laid off. Respondent maintained that Cartwright was laid off on ac-
count of injury on this occasion but other employees had been laid off si-
multaneously with Cartwright so that it appears that Cartwright was laid off
at the time in a general layoff. The undersigned, therefore, finds that Hobbs had
more seniority than Cartwright. It is to be recalled that Hobbs, according to
Parish, was along with Gregg Armstrong, the leader of the union movement,
and also had refused Parish's request that he aid Respondent in influencing
the employees against the Union.
In addition to the above, if the tannery-wide seniority was to be the criterion
instead of seniority in the smaller departments of the tannery, then employees
Charles Fletcher and James Haley were also laid off by the Respondent in dis-
regard of their seniority. It is to be recalled that the day before the layoff, Super-
intendent Waggoner inquired of Fletcher as to whether he was a union mem-
ber or not and received an affirmative answer.
While considering this seniority claim made by the Respondent, it would be well
to consider the case of employee Harold Crosslin, who had been first employed
by the Respondent on August 29, 1950, and thus on the basis of seniority, plant-
wide or departmental, should have been the first laid off as he was the youngest
man in the tan room. From February 3 to February 19, 1951, Crosslin was on the
orders of Waggoner driving a truck for his brother-in-law, Russell Watson, who
did contract hauling for the Respondent. Upon the completion of this assign-
ment on February 19, Crosslin returned to his job in the tannery where he was
transferred from his previous job in the tacking room to the beamhouse where
he replaced employee Hobbs who had been laid off. Upon his return to the tan-
nery, Waggoner informed Crosslin that one of the reasons that he had been
assigned to truck driving for that period was because of the activities going on
in the tannery-an obvious reference to the union activities-and that he was
going to be given a better job at more money.16 Crosslin worked all that week.
During that week a dozen or so of the laid-off employees gathered at the Tulla-
homa poolroom from which point they left in a body to be driven to a union
meeting. Crosslin was the only man still employed by the Respondent in the
group. Waggoner was in the pool hall as the group left for the automobiles.
The next morning Waggoner took Crosslin into his office and inquired as to
"what all of that bunch was doing up there." Crosslin answered that he did
not know. A few days thereafter on Monday, February 26, Crosslin was given his
14 The Respondent maintained at the bearing that an employee's seniority was broken
when he "quit" but was not broken when he was "laid off." The records of the Respond-
ent in evidence here indicate that this was not always so for the Respondent's records
show that T. J. Pollack "quit" on May 6, 1946, and that he "began" again on October 2,
1946, but Respondent's seniority list gives that same employee seniority from his original
hiring date of March 8, 1944, despite his "quit" in May 1946. Upon the basis of that
record Pollack, nonunion, was not laid off Febrbuary 14-16. The Respondent's seniority
policy was not inflexible , to say the least.
0 Waggoner denied any such conversation.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
permanent layoff slip and told that "if things pick up ," he would be recalled.
He has not been called.
The Respondent contended that it "forgot" Crosslin at the time of the layoff
because he had been working for Watson and thus did not appear on the Respond-
ent's payroll, and that when Waggoner "discovered" him working he sought ad-
vice from Parish and was instructed to allow Crosslin "to work on a few days
and then lay him off." It is difficult to believe that Waggoner did not know of
Crosslin's return, especially as Crosslin was at that time transferred on Wag-
goner's orders from his former job to the job formerly performed by ex-employee
Hobbs. If the layoff was in fact based upon seniority, it is hard to believe that
Parish would have permitted Crosslin to "work on a few days" before being laid
off. Again, as in the case of the layoffs of February 14-16, there is the same
coincidence of time between the discovery of Crosslin's union sympathy and his
discharge. The facts indicate, and the undersigned therefore finds, that Har-
old Crosslin was laid off on February 26, 1951, because the Respondent dis-
covered that he was active in the Union and not, as it had supposed when he was
retained in disregard of seniority, a nonunion employee.
Following this discharge, 24 employees had been discharged, of whom 23 had
executed union-authorization cards. There remained in the Respondent's em-
ployee only 3 individuals who had executed similar cards, Martie Ulmer, Buford
Cartwright, and J. C. Womack.
On March 16 the Respondent came to the realization that its tannery operations
required more personnel and, on that account as well as the fear that the new
defense installation nearby would drain off the labor supply, sent letters to 13
of the laid-off tannery employees suggesting the possibility of 2 or 3 days' work
per week and inviting each to call at the plant to consider the matter at a speci-
fied date and hour. In the usual case this hour and date had passed prior to the
receipt of the notice. Of the 3 men responding to those letters only 1, Cleve Duke,
secured reemployment.
Respondent fully admitted that the recipients of these letters were selected
without regard to seniority. None of the six "exceptional" cases aforementioned
were sent notices despite their high standing on the seniority roster. Thus
seniority became a tool to be honored or honored in its breach in accordance as it
served Respondent's purpose.
If seniority had in fact been the determining criterion in selecting employees for
layoff, then in this case Respondent's defense of no discrimination would have
been unassailable. But here there was a 162/3 percent or 25 percent error in its
original application and its total abandonment in recalling employees with the
result that the Respondent was able to select employees in accordance with its
own preconceived idea as to the degree of their adherence to the Union. Thus
Robertson's remark to Ward Armstrong that some men would be recalled but
not Gregg Armstrong because he "got mixed up with the Union" had a firm basis
in fact. To the then unemployed Armstrong, Robertson's remark could only be
interpreted to mean : "You can either work for the Company or remain a member
of the Union."-than which there can be no more coercive violation of Section
8 (a) (1) of the Act.
Thus under the facts of this case the undersigned can only find that the
Respondent's application of seniority with its numerous exceptions and later aban-
donment affords Respondent no defense to the allegation of discrimination.
After the layoff of February 14-16 and of Crosslin, employment in the tannery
dropped to 27. On March 19, Cleve Duke was reemployed and beginning on
April 2, 1951, Respondent began transferring men from the baseball plant to the)
tannery until June 1, 1951, when employment in the tannery reached its peak of
LANNOM MANUFACTURING COMPANY 861
42. Therefore in addition to the 4 exceptions to the strict application of the
seniority rule even as understood by the Respondent , it becomes clear that 11 of
the other laid -off tannery employees would have been reemployed if Respondent
had applied seniority as contended . However , except for Gregg Armstrong,
Lavoy Hobbs, Overman , and Tucker , the undersigned is unable to determine
which of the laid -off individuals were in fact discriminated against during the
rehiring.
E. The discharge of Martie Ulmer
Martie Ulmer was 1 of the first 3 employees of the Respondent whom organ-
izer Willie Helms approached during his covert attempt to organize the Re-
spondent 's plant. Like Gregg Armstrong and Lavoy Hobbs, Ulmer promptly
executed a union application card . Thereafter until the Friday before his dis-
charge on March 28, 1951 , Ulmer 's participation in union activities appears to
have been negligible . He, Buford Cartwright, and J . C. Womack were the only
employees who had signed union cards who were not laid off on February 14-16.
On one occasion sometime after February 16, Waggoner took occasion to in-
quire of Ulmer if Lavoy Hobbs had been attempting to convince Ulmer to join
the Union . Waggoner was referring to a conversation he had noted between
Ulmer and Hobbs that day in downtown Tullahoma . Ulmer answered that
Hobbs had only been talking to him about a job at the nearby defense installation.
As a witness Waggoner admitted that he , Waggoner , thereupon went into con-
siderable detail to prove to Ulmer that the Union was a Communist outfit and
ended by telling Ulmer that "it won 't pay to mess with that outfit, they will get
you into trouble."
On a subsequent occasion , Office Manager Robertson asked Ulmer to find out
how employees Hence Sain and Paul Finney felt about the Union . When Ulmer
told Robertson that that was none of his, Ulmer 's, business , Robertson answered
that it was part of his business to try to keep the Union out of the plant. How-
ever , Ulmer refused to report on his fellow employees.
As heretofore found Ulmer became one of the signatories of the antiunion
petition later published in the Tullahoma News on March 4 when it was brought
to him in the plant during working hours by employee Cunningham.
On Friday , March 23, 1951, Ulmer passed out union leaflets in front of the
plant before work . The same morning Robertson came to Ulmer 's place of work
in the plant wanting to know what he was doing passing out leaflets. Ulmer
informed Robertson that he had joined the Union . Robertson then ordered
Ulmer not to hand out leaflets in the plant , a thing which Ulmer denied having
done. Then Robertson took Ulmer into his office with Parish where he told
Ulmer that neither this nor any other union was going to come into the plant
and tear down what it had taken him 15 years to build up . Parish remarked :
"All I 've got to say [ is] watch your work ," and added that "this Communist
outfit was not any good."
After lunch that same day Foreman Kimbrough shut off the power to Ulmer's
machine whereupon a large group of employees including Kimbrough gathered
around and informed Ulmer that if he was for the Company , he could stay but
that if he was for the Union, he would have to leave the plant. When Ulmer
announced that he was for the Union, a motion was made to throw Ulmer out of
the plant which Foreman Kimbrough seconded ."' However , the motion was not
executed because the other employees and Ulmer returned to work.
16 Iiimbrough was not called as a witness.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the following Monday when Ulmer reported for work, he discovered that
his timecard was missing from the rack. In the presence of Foreman Kimbrough,
employee Limbaugh stated that he had removed Ulmer's card and that it was
going to be kept out of the rack. Kimbrough did nothing but say that he could
not keep the card in the time rack and would be unable to pay Ulmer without
the card.
Shortly thereafter Superintendent Waggoner attempted to induce Ulmer to
quit because "all the boys were mad" at him. When Ulmer refused to quit,
Waggoner stated that he would not discharge him and would keep Ulmer's time
himself so that Ulmer could be paid but advised Ulmer to talk over the matter
of voluntarily quitting Respondent's employ with his wife before making a final
decision. Waggoner then professed inability to prevent the employees from
removing Ulmer's timecard from the rack 17
Ulmer reported for work as usual on Tuesday morning at 7 o'clock and Wag-
goner inquired if he had conferred with his wife about quitting. Ulmer ex-
pressed his determination to remain unless Waggoner discharged him. To this
Waggoner answered: "Well, I can't fire you, but you are leaving here today."
Almost 2 hours thereafter Waggoner returned saying that he had learned, that
Ulmer had begged employee Hugh Bennett for a job with the Respondent. When
Ulmer denied having done any begging for the job, Waggoner called Hugh Ben-
nett to verify his statement. According to the undisputed testimony of Ulmer,
Bennett refused to so verify whereupon employee Paul Finney 18 volunteered the
information that Ulmer had begged him, Finney, for the job, a remark which led
ultimately to harsh words and fisticuffs. Waggoner and Kimbrough were both
present throughout while Robertson entered the room during the fight. At the
conclusion of the fight Robertson and Waggoner took Ulmer into an office and
informed him that he was discharged for having struck the first blow or for hav-
ing called Finney a "liar"-depending upon whether one accepts the testimony of
Ulmer or of Robertson. Thus was Ulmer's employment with Respondent
terminated.
Following his discharge Ulmer swore out a warrant charging Finney and
Waggoner with assault and battery.
A day or so thereafter Parish, who had been absent during the Ulmer-Finney
fisticuffs, telephoned Ulmer and requested him to come to the office and explain
the circumstances of that fracas adding that if Ulmer had been right in the epi-
sode, he would be reinstated. Ulmer requested the right to be accompanied at
this interview by Willie Helms but Parish refused to permit Helms to attend,
referring to him as a "Communist." Ulmer thereupon suggested J. R. Blackburn
as his witness ; this was acceptable to Parish.
However, when Ulmer and Blackburn arrived at the office, Parish began ask-
ing Ulmer questions and writing down the answers. Blackburn objected to this
procedure and advised Ulmer not to answer any questions so long as the answers
were reduced to writing. Even though Parish reiterated his offer to reinstate
Ulmer if he had been right in the episode, Ulmer followed the advice of Black-
burn and refused to answer questions if the answers were reduced to writing.
Although the trial on the assault charge was originally scheduled for that
17 At the hearing Waggoner testified that he was unable to locate the employees respon-
sible for removing Ulmer's timecard.
18 At the hearing the General Counsel was permitted to amend his pleadings to allege
that Paul Finney was an "agent" of the Respondent. The record only shows that Finney
was an oldtime and apparently valued employee whose tastes in union matters apparently
coincided with those of the Respondent . Such evidence is insufficient to create any agency
relationship between the Respondent and Finney.
LANNOM MANUFACTURING COMPANY 863
coming Saturday, no hearing was ever held as each party in turn requested
postponements until ultimately the case was dismissed for lack of prosecution.
The facts show that Ulmer had been a "very satisfactory employee," until the
day he assisted in the distribution of the union leaflets in front of the Respond-
ent's plant to the knowledge of the Respondent's supervisors. Thereupon the
Respondent, within a matter of hours, attempted to have him leave its employ
and warned him to watch his work when he refused to do so. The Respondent
at the very least permitted its antiunion employees to make life unbearable for
a known union advocate in its plant during working hours while under the Re-
spondent's control and direction. Despite knowledge of the unlawful conduct
of its antiunion employees the Respondent failed or refused to maintain dis-
cipline over them, professing an inability to maintain such discipline within its
own plant. When Ulmer expressed a determination to retain his employment
unless discharged, Waggoner refused to discharge him but prophesied that he
would leave the plant that day. In fulfillment of this prognostication Waggoner
himself instigated and promoted the incident leading to the fisticuffs which then
became the Respondent's excuse for discharging Ulmer-thereby fulfilling Wag-
goner's prognostication.
A mere reading of the facts of the Ulmer case is sufficient to prove that upon
learning of Ulmer's union membership and activity, the Respondent determined
to, and did, eliminate Ulmer from its employ by whatever means. Nor can there
be any question but that the Respondent's determination stemmed directly from
its knowledge of Ulmer's union membership and activity. Clearly the Re-
spondent discharged Ulmer on March 28, 1951, because of his membership in and
activities on behalf of the Union in violation of Section 8 (a) (3) of the Act,
and the undersigned so finds.
The fight was merely the excuse by Respondent to attempt to justify the dis-
criminatory nature of the discharge, an excuse both prophesied and arranged by
Respondent's own supervisors. Parish himself appears to have been upset by
the crudity of Respondent's action when he attempted to investigate the inci-
dent, or else because of the one-sided nature of his investigation, for the evi-
dence failed to disclose that he attempted to have a written statement from
Waggoner or Finney, perhaps he was attempting to find a defense for those
two to the then pending criminal action against them. At least from the actions
of the Respondent over the past week, including Parish's own threat, Ulmer
had no cause to expect fair play from Parish at that time. Respondent's actions
here could hardly be classified as fighting the Union by "every legal means."
F. Conclusions as to the tannery discharges
This is a case of an admittedly antiunion employer, one who upon learning
of the organizational drive determined to oppose the Union by "every legal
means" and who at the hearing promised to continue that same opposition in
the future, with a valid economic reason for a layoff in its plant ; laying off
permanently 24 out of 26 union employees from a staff of 51 in the tannery, a
division of Respondent's operations where the Respondent believed the move
towards unionization was centered. The question at issue becomes, therefore,
whether the discharges were motivated by the economic considerations or the
hostility toward unionization. And as a sort of corollary whether the Respond-
ent did restrict its opposition to "legal means."
Granted that the imminent allocations system on hides made a reduction in
force at Respondent's tannery an obvious necessity, yet when and how large
that reduction should be were still matters of speculation on February 14-16.
As noted heretofore, a timid employer logically might well have reduced his
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
staff early in January when the imposition of controls appeared Inevitable—
except , of course , that baseball production was at its very peak throughout the
month of February-or a careful employer might well have waited until Feb-
ruary 28, 1951, when his allocation became known and he could calculate ac-
curately how large the reduction should be. As of the weekend before February
14-16, Parish appears to have been a "careful" employer by the above definition
for at that time he advised the Tullahoma News that he anticipated a layoff
"within 30 days"-clearly referring to the time Respondent would know its
quota and could make an intelligent reduction in force. Yet 3 or 4 days later
Parish made his drastic reduction still without knowledge of what his hide
quota was to be . Why this sudden change of plan?
During this short period of time there was no change in the economic situation
at all. Hence the economic considerations played no part on the change in the
timing of the layoff. The evidence showed that the Respondent had given little,
if any, thought to a layoff until the weekend of February 10-11 even though the
economic situation had been obvious for approximately a month. But the evi-
dence does disclose-contrary to the Respondent's original contention-that at
about this time and just prior to the layoff, the Respondent learned from Lavoy
Hobbs and others that its tannery employees were joining the Union, that in fact
all five of the employees in the "beamhouse," a department in the tannery, had
signed up with the Union.
Promptly upon acquiring this information, the Respondent went into action.
Parish attempted unsuccessfully to convince Lavoy Hobbs to use his influence
with the employees to reject the Union. Employees were interrogated about
their union membership or affiliation. Other employees were solicited to report
upon the union activity and upon the union membership of other employees,
espionage, in other words. And at least one threat was made that the Respondent
would start "cutting production and laying off" before it would allow the Union
to organize. All of these activities of the Respondent are clear-cut violations of
Section 8 (a) (1) of the Act so it is equally obvious that Respondent did not
restrict its opposition to the Union to "legal means." Parenthetically it might
be remarked here that the coercive tactics Respondent employed against Martie
Ulmer after learning of his union activities and membership are only more
obvious because they were more concentrated.
One other thing should be mentioned at this point. And that is the campaign
of Superintendent Waggoner and other officials beginning at this time of talking
about "the Communists like everything." Even if Waggoner's testimony that he
never used the word "union" at all were correct, yet there could be no doubt
in the hearer's mind that Waggoner was talking about the Union even though
he substituted the word "Communist" therefor. One cannot relieve one's self
of liability for interference, restraint, and coercion in violation of the Act by the
mere transposition of the word "Communist" for the word "union" as Waggoner
attempted to do by threatening employees that they would get in trouble by
"messing" with the "Communists" as everyone who joined the Union promptly
became in Waggoner's conversation. This change in phraseology fooled no one ;
nor was it intended to.
Thus the layoff of February 14-16 coincided in time with Respondent's dis-
charge of the organizational attempt but not with the economic situation. As
noted heretofore, it coincided in personnel with the organizational effort also.
The fact that 25 of the 26 employees laid off in the tannery had executed union-
authorization cards indicates strongly that Respondent was not laying off em-
ployees without knowledge of the employees' union affiliation. The percentage
was too high for it to have been fortuitous. The percentage of deviations from
LANNOM MANUFACTURING COMPANY 865
the Respondent's professed policy of strict seniority in selecting the personnel
for layoff ... 16% percent or 25 percent depending upon whether departmental
or plantwide seniority was the criterion---each of which covered an employee
known by Respondent to be a leader or strong advocate of the Union, gives
definite proof that those individuals, at least, were selected for discharge because
of their union membership or activity. The undersigned is therefore convinced
that Respondent used an economically justifiable layoff to discriminate against
T. G. Armstrong, Lavoy Hobbs, A. A. Overman, and Steve Tucker by discharging
them on February 14-16.
In this connection it is noteworthy that only one employee, Buford Cartwright,
was retained in the "beamhouse " where Waggoner understood that all the
employees bad signed with the Union. It should also be noted that by Febru-
ary 19, the very next working day, the Respondent had discovered that the
cut in the beamhouse was too severe because on that day Crosslin was trans-
ferred there from another department of the tannery to replace Lavoy Hobbs.
By March 16 the Respondent had determined that the economic factors did not
justify as severe a layoff as it had put into effect on February 14-16 for on that
latter date it wrote 18 laid-off employees including the 1 nonunion employee laid
off, suggesting the possibility of part-time employment. In selecting the in-
dividuals for this conditional recall, Respondent made no pretense of utilizing
seniority. Due also to the fact that these letters were received in the usual
case after the time set therein for the individual 's interview with Respondent,
only 3 individuals answered the letter and only 1 was reemployed. But from
March 19 to April 30, 1951, employment climbed steadily until the staff reached
40 as compared with the staff of 27 immediately after February 14-16. By May
28 the tannery staff reached a peak of 42. In addition to this increase in
staff , Respondent 's records prove that the tannery employees began working
overtime hours immediately after February 14-16 and continued so doing until
July 15. Thus Respondent's discriminatory motivation in ridding itself of all
union employees led it to make a larger reduction than the economics of the
situation warranted . In addition to the 4 cases of discriminatory application
of seniority, subsequent events prove that 9 or 11 others would not have lost
their jobs if the Respondent's determination had been on economic grounds
alone . Who these 9 individuals would have been cannot be determined now.
Nor as the discrimination was due to Respondent 's illegal motivation is it
incumbent upon the undersigned to select which employees were discriminated
against . The undersigned will , therefore , recommend that all those laid off on
February 14•-16, except those 4 mentioned above who are entitled to immediate
reinstatement with back pay, be placed on a preferential list to be offered
employment ahead of any others as jobs become available.
The discriminatory motivation of the Respondent in discharging Crosslin and
Ulmer is so clear as to require little, if any , discussion . By February 26, the
date of Crosslin's discharge , the reduction in force necessitated by economic
situation had allegedly been taken care of by the discharges of February 14-16.
The mortality of union employees in the beam shop had been so high that
Crosslin, after being told by Waggoner that having been absent from the plant
during the union drive and therefore apparently being free of union affiliation,
he was to be given more pay and Lavoy Hobbs' Job, was transferred by Wag-
goner into the beam shop to the job from which Lavoy Hobbs had been laid off
only the working day before . In view of this transfer the undersigned can
place no credence in Respondent 's purported explanation that it had "for-
gotten" Crosslin and only "discovered" him working sometime later and there-
upon discharged him. The fact of the matter is that Respondent discharged
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crosslin only upon discovering that he was a union employee and after a warn-
ing that he would get into trouble "messing" with the union crowd. The dis-
crimination as to Crosslin is therefore clear and so the undersigned finds that
the Respondent violated Section 8 (a) (3) by discharging him on February 26,
1951.
In Ulmer's case Waggoner and Parish threatened him with the loss of em-
ployment within hours after discovering Ulmer passing out union leaflets at the
plant gate. These threats were continued thereafter by a group of antiunion
employees with the active cooperation of Respondent 's foreman and superin-
tendent who, indeed, tried to talk Ulmer into resigning from Respondent's
employ because "the men are mad at you." Respondent not only failed but
neglected to maintain reasonable order and discipline among its employees and,
in fact, had its tannery superintendent instigate and promote the fracas which
the Respondent used as the pretext for Ulmer's dismissal , an event which
Waggoner had prognosticated only a few hours before. The undersigned is con-
strained to remark that this discharge of Ulmer was one of the more callous
violations of Section 8 (a) (3).
In comparison with the immediate and strict orders given to Ulmer not to
distribute union leaflets in the plant, we have the instance of the antiunion
petition circulated in the plant prior to its publication on March 4, 1951, during
working hours with not only the tacit consent of the Respondent but, indeed,
with the active participation of five supervisory officials including the baseball
plant superintendent, John Waller, by becoming signatories thereto. Such dis-
criminate treatment of union and nonunion efforts together with the active
participation of such officials as John Waller in the antiunion moves could only
interfere with, restrain, and coerce the employees in violation of Section 8 (a)
(1) of the Act, and the undersigned so finds. Respondent's purported defense
to this-an alleged lack of knowledge-is both too incredible for belief and untrue
in law.
G. Discharges of Annie B. Blackburn and Sally Blackburn
At the Respondent's plant a "home sewer" is an individual who sews covers
on baseballs in her own home and in accordance with her own convenience.
Such a home sewer would appear at the plant, secure a sack of 10 dozen yarn
balls, covers, and threads, and take them home to work on at her convenience
returning them to the plant upon completion and then securing another batch
of 10 dozen balls.
In the spring of 1951, the supply of balls for home sewers fell off as was
customary at that season so that as each home sewer returned a finished batch
of balls, she was given a number which entitled her to new supplies after those
women who held lower numbers had been supplied. This was an attempt by
the Respondent to distribute the supplies equally among the home sewers.
Except for about a 3-year period between 1947 and November 1950, Annie B.
Blackburn had been a home sewer for approximately 19 years. She was the wife
of one J. R. Blackburn who had formerly worked for the Respondent and who
was actively assisting Willie Helms in organizing the tannery even to the extent
of passing out circulars in front of the plant to the knowledge of the Respondent.
About March 16, Annie B. returned a sack of completed baseballs to Everett
Hodge, foreman of the home sewers, and was given number 48. Her number
was not reached that day during the distribution of the supplies. She then
reported a few days thereafter as requested by Hodge. On this occasion after
Hodge distributed supplies to the sewer holding number 47, he announced that
there were no more supplies to be given out. Annie B. inquired if her number
LANNOM MANUFACTURING COMPANY 867
would be "good" on the next distribution date and was told by Everett Hodge :
"Annie B., I can't let you have any more balls-on account of the Union. J. R.
handing out union circulars-Chuck [Parish] told me not to let you have any
more and John did too, John Waller. They told me twice not to let you have
any more balls."
Thereupon Annie B. stormed in to see Parish in his office and told him of her
conversation with Hodge to which Parish answered : "I don't know what's got
into Everett. He's got so he just tells anything." Parish went on to explain
that there was a leather shortage so that there was a shortage of balls but that
"We'll get this thing thrashed out." Annie B. returned home that day without
any balls and with no further explanation.
A day or so thereafter, Parish sent for Annie B. who thereupon went to the
plant with her sister-in-law, Sally Blackburn, who had worked in the Respond-
ent's packingroom from January 2, 1951, to February 16, 1951, when she had to
lay off in order to care for another sister who was having a baby. At the time of
her layoff, Foreman Huskey promised Sally that she would be returned to work
just as soon as she was able to leave her sister, and complimented her on being
a good packer. At the time of her return to the plant, Sally desired reinstate-
ment in the packingroom as her attendance upon her sister was no longer
required.
When Annie B. saw Parish that day he said to her, "Annie B. I have checked
around and I found out you wasn't for that and you are absolutely all right-I
can let you have balls. I have got two sacks of balls." Annie B. remarked that
she had not been a union woman but that Parish had made her into one. Parish
then referred to her husband, "J. R.," and the fact that he could work for the
Respondent at any time adding, "This Willie Helms, we do know, we absolutely
do know that he is a Communist-the F.B.I. is looking for him." Annie B. re-
marked that Parish knew Helms' address so that she could not understand why
the F.B.I. could not pick him up if, in fact, he were a Communist. Their con-
versation ended then as Sally returned from interviewing Foreman Huskey,
to whom Parish had sent her previously about being reinstated. When she left
the plant that day, Annie B. forgot the sack of balls Parish referred to and which
were later delivered to her by Paul Finney, her brother, at Parish's request.
On March 28, 1951, Annie B. received a post card from the Respondent in-
forming her that she was 1 of the 125 home sewers who were being retained in
accordance with their seniority and stating further that the other 325 home
sewers had to be released because of the shortage of balls.
About April 5, 1951, Annie returned the completed balls to Hodge, received a
number but, as was generally the case among the home sewers at this time, did
not receive any supplies that day. She returned to the plant twice thereafter for
balls but received none as on each occasion Hodge stated that he had run out of
supplies before he reached Annie B.'s number. Since that time Annie B. has
never returned to the plant and, therefore, never received any more balls. At
the hearing, however, Hodge testified that if Annie B. returned to the plant, she
would receive balls in her regular turn.'°
Although the undersigned accepts the substantially undenled testimony of
Annie B. as found above, and finds that the statements made by both Hodges and
Parish to her were designed to and intended to interfere with, restrain, and
coerce Annie B. into refraining from becoming a member of the Union in violation
19 Line 21, page 938 of the transcript is hereby corrected to read as follows :
TRIAL EXAMINER WILSON : Mr. Hodge, one other question. If Annie B. Blackburn
were to come to your plant today, would she get balls as a regular sewer would?
THE WITNESS: Yes.
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Section 8 (a) (1) by threatening to end her employment with the Respondent,
still he does not believe that the Respondent in fact discharged Annie B. as
threatened, because she was notified thereafter on March 28 that she was 1 of the
125 home sewers to be given balls. She thereafter returned twice for more mate-
rials and receiving none on either occasion became convinced incorrectly that she
bad been discharged when, in fact, as she herself testified, the supplies ran out
before her number was reached. Annie's union affiliation, if any, did not entitle
her to any special consideration in securing materials. So long as the Respond-
ent treated her exactly as it treated the other home sewers no discrimination was
in fact practiced against her. The evidence showed that at this time the other
home sewers had to return to the plant a number of times before securing new
materials. The undersigned believes that that is what occurred with respect to
Annie B. and that she was not discharged despite the threats which both Hodge
and Parish had made to her. The undersigned, therefore, finds that, while the
Respondent was guilty of interfering, restraining, and coercing Annie B. in viola-
tion of Section 8 (a) (1) through the threats made by Hodge and Parish, it did
not in fact discharge her so that it did not violate Section 8 (a) (3).
Now to return to Sally. As she marched into Parish's office while Parish
was talking to Annie B., Sally broke in to tell Parish that Foreman Husky had
informed her that there was no work for her in the packing room and requested
her separation slip. As Parish was making out the slip, he marked it as though
Sally had voluntarily "quit." She protested the use of the word "quit" where-
upon Parish angrily told her not to tell him what to put on the slip, that he
would put on there what he wanted to. At this point, Huskey walked into the
room and acknowledged to Parish that Sally had arranged a layoff with him
for the purpose of tending her sister. Thereupon Parish added to the word
"quit" the words "to take care of sister." As he was making this addition,
Parish asked : "Sally, haven't I always been nice to you?" To this Sally an-
swered : "Yes, all you have ever said to me was `good morning,' this is the first
time I ever came in to talk to you on a conversation and you bristled right up
like a bull dog." Both Sally and Parish acknowledged that their voices rose in
an angry fashion while Parish maintained that Sally used abusive language to
him. The upshot of these angry words was that Parish changed Sally's layoff
slip from a "temporary" layoff to a "permanent" layoff, handed the slip to Sally,
and ended the conversation. Sally has not worked for the Respondent since
that time.
Sally, unlike Annie B., had executed a union-authorization card.
Perhaps Parrish treated Sally in a shabby fashion, especially as Huskey had
promised Sally that he would keep her job open for her return and had urged her
to return as quickly as possible because she was a good employee, but, nonethe-
less, this Act does not protect an employee from shabby treatment by an employer.
The evidence here shows that, justifiably or not, Sally and Parish engaged in an
angry dispute with the result that, probably in a fit of anger, Parish discharged
Sally. The dispute was not over any union activity nor, in fact, is there any
evidence that the discharge was based in any way upon Sally's real or imagined
union activity or union membership.
Therefore, the undersigned will recommend that the complaint so far as it
alleges the discharges of Annie B. and Sally Blackburn to have been in violation
of Section 8 (a) (3) of the Act be dismissed.
Iv. THE EFFECTS 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,
LANNOM MANUFACTURING COMPANY 869
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 of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in certain unfair labor
practices, it will be recommended that the Respondent cease and desist there-
from and that it take certain affirmative action designed to effectuate the policies
of the Act.
It having been found that the Respondent discriminated in regard to hire and
tenure of employment of A. A. Overman, Steve Tucker, T. G. Armstrong, and
Lavoy Hobbs on February 14-16, 1951, by discrimination in regard to tenure of
employment of each of the above-named individuals, on February 26, of Harold
Crosslin by discharging him, and on March 28, of Martie Ulmer by discharging
him. The undersigned will therefore recommend that the Respondent offer to
A. A. Overman, Steve Tucker, T. G. Armstrong, Lavoy Hobbs, Harold Crosslin,
and Martie Ulmer immediate and full reinstatement to his former or sub-
stantially equivalent position without prejudice to his seniority or other rights
and privileges, and make each of them whole for any loss of pay he may have
suffered by reason of said discrimination by payment to each of them of a sum
of money equal to that which he would have earned as wages from the date of
the discrimination against him to the date of the offer of reinstatement less his
net earnings during such period, in accordance with a formula set forth in
F. W. Woolworth Company. 90 NLRB 289.
It has also been found that the Respondent discriminated against 9 or 11 of
those employees listed in Appendix A attached hereto because of their union
membership by discharging more employees than the economic considerations
justified on February 14-16. It is impossible for the undersigned to determine
which of the individuals discharged on February 14-16, were thus discriminated
against. However, as the Respondent is responsible for the discrimination, it is
incumbent upon the Respondent to straighten out the consequence of its unfair
labor practices. In order, therefore, to restore the status quo as best it can be
reinstated as of this date, the undersigned will recommend that the Respondent
place all the individuals laid off on February 14-16 (exclusive of the 6 men-
tioned heretofore) upon a preferential list in accordance with the seniority of
each and offer reinstatement to each in accordance with said lists as job oppor-
tunities become available at the Respondent's plant.
Upon the consideration of the record as a whole, the undersigned is convinced
that the Respondent's conduct in employing the many unfair labor practice
tactics it did in order to prevent the unionization of its employees indicates
an attitude of opposition to the purposes of the Act generally. In order , there-
fore, to make effective the interdependent guarantees of Section 7 of the Act,
thereby minimizing industrial strife, which burdens and obstructs commerce
and thus effectuates the policies of the Act, it will be recommended 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,
the undersigned makes the following :
CONCLUSIONS OF LAW
1. International Fur & Leather Workers Union is a labor organization within
the meaning of Section 2 (5) of the Act.
257965-54-vol. 103-56
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By discriminating in regard to the hire and tenure of employment and the
terms and conditions of employment of A. A. Overman, Steve Tucker, T. G. Arm-
strong, and Lavoy Hobbs, and by discharging Harold Crosslin on February 26
and Martie Ulmer on March 28, 1951, and by discriminatorily displacing those
individuals (other than the above-named employees) laid off on February 14-16,
1951, thereby discouraging membership in International Fur & Leather Workers
Union, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) and (1) of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent did not commit any unfair labor practice in regard to Annie
B. Blackburn and Sallie Blackburn.
[Recommendations omitted from publication in this volume.]
VULCAN FURNITURE MANUFACTURING CORPORATION and UNITED FUR..
NITURE WORKERS OF AMERICA, CIO. Case No. 10-CA-1317. March
20, 19.59
Decision and Order
On August 29, 1952, Trial Examiner Stephen S. Bean issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices in violation of Section 8 (a) (1) 'and 8 (a) (5), 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. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a brief in support thereof. In addition, the
Respondent requested oral argument which is hereby denied as the
record and brief, in our opinion, adequately present the issues and
positions of the parties.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed 2 The Board has considered the In-
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its power in connection with this case to a three -member panel
[ Members Houston, Murdock , and Styles].
2 The Trial Examiner properly rejected evidence offered by the Respondent in support
of its contention that despite formal compliance with the filing requirements of Section
9 (h) of the Act, the Union is Communist dominated . The fact of compliance by a labor
organization which is required to comply, is a matter for administrative determination and
is not litigable by the parties . See Sunbeam Corporation, 94 NLRB 844 ; Swift & Com-
pany, 94 NLRB 917; cf. Highland Park Manufacturing Company, 71 S. Ct. 489. The
Board has administratively determined that the Union has complied with the require-
ments of Section 9 (h) by reason of the fact that its officers have filed non-Communist
103 NLRB No. 89.