Latex Industries, Inc.

National Labor Relations Board - Board Decisions

Jul 7, 1961

132 N.L.R.B. 1 (N.L.R.B. 1961)

Latex Industries, Incorporated and Ellen Buehler
Latex Industries , Incorporated and Mayme Hess. Cases Nos.
8-CA-2282-1 and 8-CA-FJ82-P2. Judy 7, 1961
DECISION AND ORDER
On February 24, 1961, Trial Examiner John F. Funke 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 Intermediate Report
attached hereto. Thereafter the Respondent filed exceptions to the
Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Leedom].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tion of the Trial Examiner with the following alterations and
modifications.
1. We agree with the Trial Examiner that the Respondent dis-
charged employees Hess, Ruder, Buehler, Rozell, and Blough because
they engaged in concerted activities protected by Section 7 of the Act,
and that the Respondent thereby violated Section 8(a),(1) of the
Act.' As the order requiring reinstatement of the discharged em-
ployees and making them whole is fully supported by the finding of
a Section 8(a) (1) violation, Members Rodgers and Leedom deem it
unnecessary to consider whether the Respondent's conduct also vio-
lated Section 8(a) (3) of the Act.' Chairman McCulloch agrees with
the Trial Examiner that the ad hoc gathering together of the Re-
spondent's employees to present wage and other demands consti-
3 We do not adopt the broad statement in footnote 6 of the Intermediate Report as to
certain alleged characteristics and attitudes of the ethnic group of one of the witnesses
9 See Gordon-Ladley Plywood Products Company, 118 NLRB 1, 14; compare Gullett Gin
Company, Inc. v. N.L R.B ., 179' F . 2d 499 , 502 (C.A. 5 ) ; and N L . R B. v. Bnzza - Cardozo,
205 F 2d 889, 891 (CA 9)
132 NLRB No. 3.
1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tuted a "labor organization" within the meaning of Section 2(5) of
the Act and would, in accordance with well-established Board and
court precedent, find that the Respondent also violated Section 8 (a) (3)
of the Act 3
2. The remedy: Although finding that the Respondent discharged
five employees .because of their protected concerted activities, the Trial
Examiner did not recommend the customary remedy of ordering the
Respondent to cease and desist from interfering in any other manner
with the legitimate concerted and union activities of its employees,
protected by Section 7 of the Act. The discharge of five employees,
following promptly on the heels of the employees' first effort to act
concertedly for the purposes of mutual aid and protection, was clearly
-designed to nip such activities in the bud. This conduct of the Re-
spondent presents a threat of similar violations in the future and goes
to the very heart of the Act. Accordingly, we shall enter a broad
cease-and-desist order.'
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, Latex Industries,
Incorporated, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discharging its employees for engaging in concerted activities
for the purposes of their mutual aid or protection.
(b) In any other manner, interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to en-
gage in concerted activities for the purposes of collective bargaining
or mutual aid or protection, or to refrain from any or all such activi-
ties except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act :
(a) Offer to Mayme Hess, Ellen Buehler, Vera Ruder, Ruth Rozell,
and Grace Blough immediate and full reinstatement each to her
former or substantially equivalent position, without prejudice to her
seniority or other rights and privileges previously enjoyed, and make
a Brown Survey Corporation , 119 NLRB , 1240 , 1255-1256 ; N.L.R.B . v. Rugerofters of
Puerto Rico, Inc, 213 F 2d 537 (C.A. 1) ; Smith Victory Corporation , 90 NLRB, 2089,
enfd. N.L R B. v. Smith Vactoi y Corporation, 190 F 2d 56 (C.A. 2) ; N.L.R B v Kenna-
metal, I+ac, 182 F. 2d 817 (C A. 3), enfg. 80 NLRB, 1481
' See N.L.R .B. v. Express Publishing Company, 312 U.S. 426, 437; N.L.R.B. v. Entwistle
Mfq Co, 120 F. 2d 532 (C A. 4).
LATEX INDUSTRIES, INCORPORATED 3
each whole for any loss of pay she may have suffered by reason of her
unlawful discharge, in the manner set forth in the section of the
Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to determine the amount of backpay due
under the terms of this Order.
(c) Post at its plant in Chippewa Lake, Ohio, copies of the notice
attached hereto marked "Appendix." 5 Copies of said notice, to be
furnished by the Regional Director for the Eight Region, shall, after
being duly signed by the Respondent, be posted immediately upon
receipt thereof and maintained by it for 60 consecutive days there-
after in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
Respondent to insure that such notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Eighth Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith. _
5 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 State 's Court ' of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discharge our employees because they engaged
in concerted activities for the purpose of their mutual aid or
protection.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist labor
organizations, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all 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, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
614913-62-vol 132-2
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer Mayme Hess, Ellen Buehler, Vera Ruder, Ruth
Rozell, and Grace Blough immediate and full reinstatement each
to her former or substantially equivalent position, without preju-
dice to her seniority or other rights and privileges previously
enjoyed, and make each whole for any loss of pay she may have
suffered by reason of her unlawful discharge.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of any labor organization.
LATEX INDUSTRIES, INCORPORATED,
Employer.
Dated-- -------------- By--------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with the General Counsel and Respondent represented, came on
to be heard before Trial Examiner John F. Funke at Medina, Ohio, on January 10
and 11, 1961, upon an order consolidating the cases , the complaint of the General
Counsel, and the answer of Latex Industries , Incorporated , herein called Latex or
the Respondent.
The complaint alleged that on or about October 28, 1960 , the Respondent dis-
charged five employees named in the complaint because they engaged in concerted
activities protected by Section 7 of the Act and to discourage membership in a labor
organization in violation of Section 8(a)(1) and (3) of the Act.
The answer admitted the discharges but denied violations of the Act.
General Counsel submitted oral argument at the conclusion of the case . Respond-
ent waived oral argument and both General Counsel and counsel for Respondent
waived the filing of briefs.
Upon the entire record in this case and from my observation of the witnesses,
I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent is an Ohio corporation maintaining its principal place of business at
Chippewa Lake, Ohio . It is engaged in the manufacture , sale, and distribution of
catheters and other latex products . Annually it sells, delivers, and transports prod-
ucts valued in excess of $50 ,000 in interstate commerce throughout the United
States and to points outside the State of Ohio.
Respondent concedes and I find that it is engaged in commerce within the meaning
of the Act.
IL THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
Latex is a small company employing about 13 employees , all female, at its plant
at Chippewa Lake. Catheters are delicate surgical instruments made by hand, re-
quiring skill and attention to detail . Defective catheters are dangerous to patients
and care is required that they not be shipped to hospitals unless perfect . Perfection
in workmanship was, according to the testimony , one of Respondent's major
problems.
The events which brought this case to hearing occurred on October 27 and 28,
1960. According to the testimony of the employees themselves , which I credit in
substance , there had been dissatisfaction with respect to pay raises , which the em-
ployees thought were overdue, and bonuses, which had been discontinued. On the
morning of October 27 Mayme Hess, one of the Charging Parties, went upstairs to
take her break with three other employees , Grace Blough, Marlon Dickinson, and
LATEX INDUSTRIES , INCORPORATED 5
Gladys Barum. Two other girls, Vera Ruder and Ellen Buehler , were working
upstairs and one of them called to Hess and asked when they were going to see
Mr. Allen about their raises and the bonuses . (Dwight L . Allen is vice president of
Latex and in overall charge of its operations .) Hess said she would speak to him
at any time but that she would speak to the girls downstairs first. About 2 p.m. on
that day Hess saw Allen enter his office and sent word up to Buehler that he was in.
After they checked out at 4:30 the girls waited to see Allen . There were 11 girls
(2 were absent that day) and they waited outside his office . When Allen was free
Buehler called to him and said the girls wanted to see him. He came out, asked
that one of them act as spokesman , and Hess told him they wanted to discuss their
raises. Summarizing the testimony , Allen told them that he was going to New Jersey
to see 80 men and that if the girls waited until December he would make it worth
their while . Allen told them they had been doing good work. Hess then asked for
a raise for Grace Blough who worked with her as a dipper and Blough stated that
if she could not have a raise she wanted to return to her former job as stripper.
Allen's reply was that an employee was supposed to work on the job to which she
was assigned . Vera Ruder asked about vacations-why the bosses got 3 weeks and
she had been there 2 years and received only 1 week.' Allen's reply was that the
bosses had been employed in the latex business for 20 years. Buehler stated that
she had been gypped of her vacation in 1959 . Allen replied that they had been over
that argument before . Buehler then mentioned the overhead at Latex, the fact that
the bosses were driving new cars and told Allen that if the employees had a union
they would get their raises and their bonus . Ruth Rozell asked Allen what she
should do when she was told by a supervisor to do a catheter one way and she knew
it was wrong . 2 Allen 's reply was that accidents happen in all shops. Allen testified
that in addition to Rozell , Hess and Ruder complained that the foremen did not
know what they were doing . Marion Dickinson complained that she had asked
Plant Manager Kerley for 4 days off at Christmas and could not get an answer from
him. Allen thought this request was reasonable and could be taken care of at that
time. At the end of the meeting, according to the employees , Allen again told them
they had been doing a good job.
Allen characterized the meeting as disorderly , stating that several employees were
talking at once. Grable testified that he overheard some of the meeting and, in re-
sponse to leading questions , characterized it as uproarious . The employees testified
that the meeting was not loud or disorderly and that no one shouted . It is un-
disputed that only six of the employees spoke up at this meeting and I cannot find
that it was uproarious . When 11 women congregate to express their dissatisfaction
and to voice their demands it is inevitable that more than 1 will be talking at
the same time. This does not suggest either disorder or uproar to me.
Following the meeting Allen discussed it with Ellis, Grable , and Chilcott . ( Kerley
was in Akron .) Allen testified that he was particularly concerned with the attitude
of the employees toward their supervisors and stated that he had the impression
the employees thought they could run the business better themselves . He asked the
foremen to review the individual performances of the girls and speak to Kerley the
next morning . Grable testified that in this discussion ( with Allen ) it was agreed by
the foremen that they had never heard anything like the meeting between the girls
and Allen as far as confusion and denunciation of management personnel. Allen
summarized the expressions of the employees as an "ultimatum" and told the fore-
men the plant could not operate with such an attitude toward management.
At 4:30 p .m. the next day Kerley called all the girls to a meeting which was also
attended by Grable, Ellis, and Chilcott. Summarizing the testimony , which I credit,
Kerley told them it would not do them any good to go over his head and that he
would run the plant 100 percent . (Kerley resented the fact that they had gone to
Allen with their complaints when he was out of town .) He told the girls that there
would be another meeting on Monday for those still employed and he then excused
all but Hess , Buehler , Ruder , Rozell , and Blough . He told them they had worked
their last day-"that there was too much resentment and things going on behind his
back." Kerley told Blough she was discharged because she did not like her work
and had asked to go back to stripping. Hess, Buehler, Ruder, and Rozell were told
I There were four other supervisory employees at Chippewa besides Allen. Oscar
Kerley was plant manager ; Glenn Grable was technical superintendent ; Nelson Ellis was
quality control superintendent ; George Chilcott's title was not given . ( Chilcott did not
appear as a witness since his testimony would have been merely cumulative.)
a Rozell was the first employee employed at Latex . She had been there longer than
Kerley, Ellis , Chilcott, and Grable.
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they were discharged because they were not following instructions and for their
belligerent attitude.
Between Friday afternoon and Monday morning Kerley met Marlon Dickinson,
who was not discharged , at a grocery store . According to Dickinson , Kerley told
her it was a terrible thing he had done and that he hated doing it. Dickinson asked
him why she had not been fired (Dickinson was the only employee who spoke at
the meeting who had not been fired ) and he said that she had only asked for time off
and that "was a different thing." Kerley 's version of the conversation is not sub-
stantially different and I find that it took place as. described by Dickinson.
At the meeting on Monday morning with the remaining employees Kerley stated
that he had gotten rid of the trouble (or troublemakers ) and that he expected the
employees to cooperate 100 percent and that if they did not want to cooperate they
could get their hats and coats and leave.
Respondent's defense is that the employees were discharged for cause and since
the reasons assigned vary with the individual it will be necessary to review the full'
and frequently redundant testimony respecting each.
According to Allen , Hess was discharged "for her failure to follow operating pro-
cedures, for her refusal to work with personnel to whom she might be assigned, and
for her attitude toward management ." Hess was Respondent 's most experienced'
dipper and was qualified as group leader of the dippers for which she received an
additional 10 cents per hour . She had been employed since June 8, 1957, and her
immediate supervisor at the time she was fired was Glenn Grable . Hess worked with
Ruder 3 and two other dippers and written instructions had been prepared by Latex
.for the dippers . According to Grable neither Hess nor Ruder followed these in-
structions . In the middle of July rejection of catheters (rejects were classified as
scrap ) approximated 39 percent. While there is no evidence that this was exclusively
the fault of the dippers 4 it was decided to reduce the workload of the dippers. The
purpose was to get the dippers to work more slowly and more carefully but Grable
testified the reduction did not have the desired effect since the dippers worked as
fast as before and simply took more break time . Grable then took over the super-
vision of the dippers , told them he was disappointed in results , that they were taking
excessive break periods , and threatened disciplinary action . It was Grable's testi-
mony that Hess and Ruder took as many as six breaks in the course of the day in
addition to two authorized breaks. This criticism was not directed to the other two
dippers, only to Hess and Ruder . Allen testified that he was concerned about the
dipping and instructed Grable to watch them every .minute for a 2-week period to,
prevent speeding up the process . Ruder admitted that a month or two before they
were discharged Kerley had called each of the dippers in separately and told each
she would be discharged if she did not cooperate , but both she and Hess denied that
they had been consistently criticized for their work, although Hess admitted they
took more breaks than were authorized . Kerley testified that Hess had complained
to him about girls assigned to the dipping operations , saying they could not work
the tables because they were too fat or too short and worked too slowly. Hess and
Ruder, together with the other employees who were discharged , were subject to the
general charge of insubordinate attitude . When she was discharged by Kerley, Hess
was told that she had done things which the Respondent did not like but she was
not told what they were.
Allen testified that Buehler was discharged for insubordination , failure to follow
operating procedures , and her attitude toward management . Respecting her attitude,
Kerley testified that when she was introduced to him when he came to the plant in,
August she told him she did not think she was going to like him. From time to time
he heard Buehler criticize the supervisors for purchasing new cars and the manage-
ment for purchasing new office equipment . Ellis, Grable , and Chilcott all com-
plained to him about her belligerency. She was one of the six girls whose attitude
was considered undesirable by management .5 Grable testified that Buehler criticized
the work of the dippers when she found defective catheters , that Rozell complained
(once ) because she had to listen to Buehler all day long, that Buehler lost her temper
two or three times a week , and that he once heard her say Ellis did not know what
he was doing. Employees Barum and Birmingham were called by Respondent to
testify that Buehler was loud, that she had a quick temper , and that she was
critical of management.
8 Ruder was also a veteran employee, having been employed since April 19, 1957
' In fact there is evidence that some of it was the fault of the eye buffer and some of
it could have resulted from poor inspection.
3 The others were Hess, Ruder , Rozell , Blougb, and Fern Birmingham.
LATEX INDUSTRIES, INCORPORATED 7
Ellis testified to two instances which presumably established that she was in-
subordinate and did not follow operating procedures . At one time she refused to,
pass catheters which she said were defective unless he signed the scrap sheet. In the
second instance he told her to put catheters in production and then could not find
them. She refused or at least did not tell him where they were and he never did
find them. On one or the other of these occasions ( the times are not precisely fixed
in the testimony ) she pushed her table toward him and said she was going home.
She left at noon and was suspended for 5 days . Ellis, however , did testify that she
was a good inspector when she did her work.
Rozell was the first employee hired at Chippewa Lake, starting on March 21, 1957.
At the time of her discharge she was an eye buffer. According to Allen she, too,
was discharged for failure to follow operating procedures and for her attitude toward
management. As to the first charge, Ellis testified that he suggested to Rozell that
she wash the catheters individually instead of in bunches but that she did not follow
his instructions. Kerley testified that he had twice spoken to her about catheters
with bad eyes which had been shipped out but that he never threatened her with dis-
charge . As to the second allegation , Ellis made the general statement that "you
just hated to go up and ask her to do anything ." Rozell herself testified that she had
been suspended for 3 days for calling her,foreman a liar in either July or August
of 1960.
Blough was employed on July 17, 1960. According to Allen she was discharged
because she refused to work at the job to which she was assigned. She was first
employed as a stripper and then put to dipping, working with Hess and Ruder. She
received $ 1.20 per hour and, according to her own testimony , she asked Grable, on
the morning of October 27, how long she would have to continue dipping for that
amount. Grable told her that she received a 5-cent raise periodically and that she
would have to wait for an increase. He told her she was doing good work, offered
to have Kerley talk to her, and she said she was willing to talk to Kerley. She did
tell him that if an opportunity to make more money arose she would take it for she
had two small sons to support. Blough also testified that she had had trouble with
her hands when stripping but whether this was the reason for her transfer to the
dipping process is not clear. Prior to October 27 she had discussed her financial
problem with Hess, Grable, and Chilcott and again at the meeting she told Allen
.that she preferred stripping to dipping if the pay was equal. Her objection to dipping
was that she was not getting the money the other dippers received and that she
ruined her slacks and her blouses on the job, which she conceded was a more re-
sponsible and challenging one. Although Kerley testified that Blough's absenteeism
was excessive, this was not established by company records nor was it alleged as a
reason for discharge by Allen. I do not find any support in the record for the allega-
tion that Blough either threatened to quit or refused to work if she was not trans-
ferred to the stripping operation . All I find is that she made an alternative request
for either promotion or transfer.
B. Conclusions
From the abundant testimony and extensive examination of the witnesses in this
case one fact stands out, stark and salient. That is the fact that of the six employees
who spoke at the meeting between the employees and Respondent's vice president to
discuss wages and working conditions, five were peremptorily discharged the follow-
ing day. Circumstances giving rise to a stronger inference of discrimination directed
toward concerted activity could scarcely be conceived. Only a direct admission of
-discriminatory motive would present a more impervious prima facie case. For that
reason I have given close scrutiny to the asserted reasons for discharge and the facts
which allegedly support those reasons lest it be assumed that reliance has been placed
on that inference alone.
Hess and Ruder, who worked together, were allegedly discharged for failure to
follow written instructions as to operating procedures and for their attitude toward
management. Hess was additionally charged with a refusal to work with employees
assigned to her. The complaint of their immediate supervisors, however, was that
they took more than the allowed number of breaks each day and that after a slow-
down had been ordered they contiuued to work at their usual speed to have the
advantage of break time. To a certain extent this was admitted by the employees
themselves. But in spite of the warnings admittedly given to the dippers (and I
credit the testimony of Hess that all the dippers were warned by Kerley) I find
nothing to suggest that the discharge of Hess and Ruder was contemplated until they
spoke at the meeting on October 27. Kerley, when he discharged them, did not
mention unauthorized breaks as a reason , nor did he mention the failure to follow
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the slowdown procedure. Yet Allen had instructed Grable, Ellis, and Chilcott to.
review the record of each girl and I can only assume that if the taking of un-
authorized breaks had been as serious as alleged and had Hess and Ruder been the
only two dippers guilty of the practice it would have been specifically asserted as a
reason . While Hess was told she did things that management did not like these
were not specified. She was told that she refused to work with people assigned to
her but the evidence does not sustain this charge. On the basis of testimony which
I credit I can only find that Hess complained when employees were assigned to her
whom she did not believe physically capable of performing the work. As group
leader of the dippers holding some responsibility for their performance the com-
plaints were not beyond the scope of her limited authority. While all the dippers
were warned, only Hess and Ruder, the two most experienced, were fired. The
asserted defense is confronted by the coincidence so striking as to all the dischargees,
Hess and Ruder were the only dippers who spoke on October 27. While an em-
ployer is not bound to justify the discharge of an employee until a prima facie case
of discrimination has been established, he cannot, by mere retrospective assertion of
general dissatisfaction with workmanship and a general characterization of attitude
as insubordinate, escape the consequences of unlawful conduct. When so strong an
inference of discrimination is created as is found here such assertions and characteri-
zations must be examined with care and the facts which are urged to support the
presumption of legality must balance in strength and persuasiveness those which
support the inference of discrimination. Where the same facts give rise to reason-
ably equal inferences, one of lawful and one of unlawful motivation, then I do not
believe the General Counsel has met his burden. But here the facts upon which
Respondent relies fall short of that meager requirement. I find that Hess and Ruder
were discharged for activity protected by Section 7.
Buehler presents a different case since the only serious charge against her was
directed toward her temperament. She was conceded to be a good inspector and her
difficulties with management arose from her outspoken criticism of the work of other
employees when she found it deficient, of her supervisors when she thought they
were at fault, and of management policy in general.6 (It is anomalous that a man-
agement which expressed such concern for workmanship should object when one of
its inspectors was intolerant of imperfection but this was a major criticism of
Buehler.) Other employees testified that Buehler was loud and lost her temper on
occasion and that her criticism of management encompassed the purchase of new
cars by supervisors and expenditures for furniture for the plant, a criticism which
she repeated at the meeting on October 27. Her record also showed a 5-day suspen-
sion for unauthorized quitting of work following a dispute with Ellis in July or
August of 1960. Again, however, there is no evidence that Buehler was in any
danger of discharge until after the October meeting when she renewed her criticism
of management and suggested that a union could obtain pay raises and bonuses for
the employees. I find her discharge was attributable not to her prior criticisms or-
her previous display of temper but to her conduct at the meeting, conduct which
I find protected by the Act.
Rozell was the senior employee at Latex. While there is testimony that she failed
to follow Ellis' suggestion that she wash catheters individually instead of in bunches
the testimony stops there. There is no evidence that her instructions called for
following such a procedure and nothing to show that it was a suggestion and nothing
more. The record does not establish that her work was not satisfactory by Respond-
ent's standards. As to her attitude, it is true that she was suspended some months
prior to discharge for calling her foreman a liar but the penalty was paid and
apparently the offense forgotten. I cannot accept the statement of Ellis that "you
just hated to go up and ask her to do anything" as sufficient to rebut the evidence-
that the motive was discriminatory. Rozell was openly critical of management at_
the meeting on the 27th and it was this phase of the meeting which disturbed Allen
most of all,7 and it is implicit in his instructions to the supervisors to review the
" Buehler was obviously if not ostentatiously Irish and neither deference to authority
nor restraint of language is characteristic of the Irish temper.
7 The questioning on the part of Respondent of the witnesses seems to indicate that
concerted activities, to be protected, must be confined to wages and working conditions
and that criticism of management or its methods of operation does not fall within the
protection of Section 7. I do not agree with any such limited interpretation of the
statute A most important working condition of employees is their relations with super-
vision, and freedom of discussion of their working relations with supervisors is essential
to a solution of their mutual problems
LATEX INDUSTRIES , INCORPORATED 9
record of each girl with Kerley that "attitude" was to be the decisive factor, and
attitude, as the record shows, was largely determined by whether an employee spoke
at the meeting on October 27.
As to Blough the record is clear . She was discharged for one reason and one
reason only-at the meeting on the 27th she requested that she be given an increase
in pay or be returned to stripping. This request, submitted at a meeting between
employees and their employer to discuss working conditions, was a proper exercise
of her right to engage in concerted activity for mutual aid or protection. Corre-
spondingly, the discharge was unlawful. I find nothing in the record or in testimony
which I credit to support the contention that she threatened to quit if she was not
returned to stripping, assuming , arguendo, that such a threat would constitute cause
for discharge.
I do not think the General Counsel' s case needs further support. I do not, how-
ever, find it without some significance that the one employee who spoke at the
27th meeting and who was not discharged was informed by Kerley that her request
for a few days' leave at Christmas was "a different thing." The plain and only
implication of that statement was that requests for increases in pay and for bonuses,
and criticism of management and company policy were good and sufficient cause
for discharge. Her request, which was both minor and personal, was not.
A second factor which should not pass entirely without notice is the retention of
Fern Birmingham. Of the six employees whom management considered most in-
subordinate and rebellious, Birmingham was the only one not discharged. She was
also the only one who did not speak on October 27.
I therefore find that Hess, Ruder, Buehler, Rozell, and Blough were discharged
because they engaged in activity protected by Section 7 of the Act and for no other
reason. Their discharge was in violation of Section 8(a)(1). Relying on Smith
Victory Corporation, 90 NLRB 2089, enfd. 190 F. 2d 56 (C.A. 2), and N.L.R.B. v.
Kennametal, Inc., 182 F. 2d 817 (C.A. 3), cited by the General Counsel in his oral
argument, I find that the employees constituted themselves a labor organization
within the meaning of Section 2(5) of the Act, and that their discharge violated
Section 8(a)(3) of the Act.
III. THE REMEDY
Having found that the Respondent has engaged in and is engaging in certain labor
practices, I shall recommend that it cease and desist therefrom and take certain
affirmative action to effectuate the purposes of the Act.
Having found that Respondent discharged Hess, Buehler, Ruder, Rozell, and
Blough because they engaged in concerted activity for their mutual aid or protection
and discriminated against them in regard to hire and tenure of employment to dis-
courage membership in a labor organization, I shall recommend that Respondent
offer to each of them immediate and full reinstatement to his former or substantially
equivalent position without prejudice to seniority and other rights and privileges.
I shall also recommend that Respondent make each of them whole for any loss of
pay she may have suffered because of said discharges and discrimination, by payment
to each of them of a sum of money she would normally have earned from October 28,
1960, to the date of the offer of reinstatement less her net earnings during said
period. The backpay will be computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company, 90 NLRB 289.
Because the record herein does not disclose any previous unfair labor practices on
the part of Respondent nor does it establish that any others may reasonably be
anticipated the recommended order will be limited accordingly.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2(2) of the Act and
is engaged in commerce within the meaning of Section 2(6) and (7).
2. The employees of Respondent at its Chippewa Lake plant constitute a labor
organization within the meaning of the Act.
3. By discharging Mayme Hess, Ellen Buehler, Grace Blough, Vera Ruder, and
Ruth Rozell on October 28, 1960, because they engaged in concerted activity for
their mutual aid and protection and to discourage membership in a labor organiza-
tion the Respondent violated Section 8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]