Perl Pillow Co.

National Labor Relations Board - Board Decisions

Apr 30, 1965

152 N.L.R.B. 332 (N.L.R.B. 1965)

332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT engage in surveillance of union meetings of our employees or
create the impression that we are engaging in and have engaged in such
surveillance.
WE WILL NOT promise our employees economic benefits for the purpose of
inducing them not to engage in union activities.
WE WILL NOT tell our employees that they may not engage in union activities
on company property during their nonworking time.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the right to self-organization , to form, join , or assist the above-
named or any other labor organization , to bargain collectively through repre-
sentatives of their own choosing , to engage in concerted activities for the pur-
pose of collectively bargaining or other mutual aid or protection , or to refrain
from any or all such activities , except to the extent that such right may be
an agreement requiring membership in a labor organization as a condition of
employment, in conformity with Section 8(a)(3) of the Act.
WE WILL offer to the following employees immediate and full reinstatement
to their former or substantially equivalent positions , without prejudice to their
seniority and other rights and privileges , and make them whole for any loss
of pay they may have suffered by reason of the discrimination against them:
James A. Skibinski Dale R Loree
Duane A. Miller Constance Binfet
Robert E. Splane Jerome Binfet
All our employees are free to become or remain, or to refrain from becoming or
remaining , members of the above-named or any other labor organizations.
WOLVERINE SHOE & TANNING CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NoTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 500 Book
Building, 1249 Washington Boulevard , Detroit, Michigan , Telephone No. 226-3210,
if they have any questions concerning this notice or compliance with its provisions.
Perl Pillow Co. and International Union of United Brewery,
Flour, Cereal , Soft Drink & Distillery Workers of America,
AFL-CIO . Case No. 23-CA-1756. April 30, 1965
DECISION AND ORDER
On December 22,1964, Trial Examiner Thomas S. Wilson issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the Act, and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the Respondent filed
exceptions to the Decision and a supporting brief, and counsel for the
General Counsel filed a brief in support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
152 NLRB No. 20.
PERL PILLOW CO. 333
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board 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. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and for reasons set forth below has decided to dismiss the
complaint in its entirety.
As described more fully in the Trial Examiner's Decision, on Febru-
ary 26, 1964, a meeting was held by the Union. At this meeting, 28 of
the 29 employees attending signed union application cards. The day
after the union meeting, according to the credited testimony of
employee George Brown, who had attended the meeting, Plant Man-
ager Arthur Schwartz questioned Brown about whether there had
been a union meeting the prior evening; how many people were there;
why certain people were invited and others were not; whether a white
union representative was there. Brown denied that there had been a
"union meeting" saying that there had been a "surprise party" for an
employee. The afternoon of February 27, the same day as Schwartz'
conversation with Brown, Respondent laid off 11 employees, all of
whom had attended the union meeting the preceding night and had
signed union cards.
Thus, the only evidence on the record regarding union activities by
the discharged employees consisted of their attending a union meeting
and signing union cards the night prior to their discharges. And the
only evidence relied on by the Trial Examiner to show Respondent's
knowledge of these activities was Arthur Schwartz' interrogation of
employee George Brown, who denied and did not reveal that any union
meeting had been held. Finally, except for the February 27 conversa-
tion between Arthur Schwartz and George Brown, the record herein
contains no evidence of union animus by the Respondent.
On these facts, the Trial Examiner found that the Respondent
unlawfully discharged 10 employees 1 because they had each attended
the union meeting the evening before and in order to discourage union
membership and activities among its employees. Contrary to the Trial
Examiner, we find merit in the Respondent's contention that the lay-
offs were made necessary by the excessive inventory creating a shortage
of warehouse space as a result of the lack of sales in the outdoor pad
line.
The record shows that on January 20, 1964, following the House-
wares Show in Chicago, the confirmed sales orders of the outdoor pad
line proved disappointing; and through January and February 1964,
the warehouse problem of taking care of raw materials for the outdoor
1 The 11th employee was not named in the complaint.
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pads plus the excessive inventory of finished pads became extremely
acute . Because of the lack of orders and the excessive inventory deter-
mined by the January 31 physical inventory, management gave Arthur
Schwartz orders on February 19 to lay off employees on February 21,
but he was told at a meeting on the same day to hold off as Respondent
was hopeful of obtaining a large order. About noon on February 27,
the sales representative called in that the order would be indefinitely
postponed, and Respondent proceeded with contemplated layoff.
According to uncontradicted testimony by Respondent, the decision to,
lay off and the selection of employees to be laid off was made 1 week
prior to the union meeting. In light of this evidence establishing
economic justification for the layoff, we do not believe the General
Counsel established a preponderance of the evidence on the record as.
a whole that Respondent's layoff was discriminatorily motivated.
We also disagree with the Trial Examiner that Respondent inter-
fered with, restrained, or coerced employees in the exercise of rights,
guaranteed by Section 7 of the ActJby threatening on July 8; 1964, to
discharge any employee who engaged in a slowdown, and further con-
clude that the interrogation of George Brown on February 27 does
not warrant a remedial order. Accordingly, we shall dismiss the.
complaint.
[The Board dismissed the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges duly filed on February 28, 1964, and amended on April 8, 1964,
by International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery
Workers of America, AFL-CIO, hereinafter called the Union, the General Counsel
of the National Labor Relations Board, hereinafter called the General Counsel 1 and
the Board , respectively , by the Regional Director for Region 23 (Houston , Texas),
issued its complaint dated April 13, 1964, against Perl Pillow Co ., herein called the
Respondent.
The complaint alleged that Respondent had engaged in and was 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,
as amended , herein called the Act . Copies of the charges , complaint , and notice
of hearing thereon were duly served upon Respondent and the Union.
Respondent duly filed an answer admitting certain allegations of the complaint
but denying the commission of any unfair labor practices.
Pursuant to notice a hearing thereon was held before Trial Examiner Thomas S.
Wilson at Houston , Texas, on July 20, 21 , and 22, 1964. . All parties appeared at the
hearing, were represented by counsel , and were afforded full opportunity to be heard,
to produce , examine and cross-examine witnesses , to introduce evidence material and
pertinent to the issues , and were advised of their right to argue orally upon the record
and to file briefs and purposed findings and conclusions or both. Short oral argu-
ment was heard at the conclusion of the hearing. Briefs were received from General
Counsel and Respondent on August 21, 1964.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
1 This term specifically includes the attorney appearing for the General Counsel at the
hearing
PERL PILLOW CO.
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
335
Per] Pillow Co . is now and has been at all times material herein a Texas corpora-
tion with its principal plant and office located at Houston, Texas , where it is engaged
in the manufacture , sale, and distribution of various types of pillows , cushions, and
pads . During the past 12 months , which period is representative of all times mate-
rial herein , Respondent , in the course and conduct of its business operations, sold
and shipped pillows, cushions , and pads valued in excess of $50,000 from its Houston,
Texas, plant directly to points and places in States other than the State of Texas.
The complaint alleged, the answer admitted , and I find that Respondent is engaged
in commerce within the meaning of the Act.
II. THE UNION INVOLVED
International Union of United Brewery, Flour , Cereal, Soft Drink & Distillery
Workers of America , AFL-CIO, is , and has been at all times material herein, a
labor organization admitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The facts
About the middle of January 1964,2 Mary Samuel , Ruby Burrell , and George
Brown , all employees of Respondent , began talking about getting a union to represent
the Respondent 's employees . As a result of these conversations Brown telephoned
the union hall and suggested to a secretary there that the Union attempt to organize
Respondent 's plant.
As a result thereof Lynn Wells, an organizer , and several other organizers from
other unions appeared at Respondent 's parking lot on January 28 where they placed
union literature and designation cards on the windshields on some of the automobiles
parked therein.
During the afternoon break, about 2 30 p.m., Mary Samuel looked out the window
at the suggestion of employee Ruby Barras and saw Respondent 's production manager,
Arthur Schwartz , removing some material from the windshields of some of the
parked automobiles . Samuel was unable to identify what Schwartz was removing
from said automobiles whose owners she did not know.3
When Samuel reached her car after work that evening, she found the union litera-
ture and union application caid on the windshield of her car . That evening she filled
out the application card and mailed it back to the Union.
About February 8, at the request of Wells, Samuel visited him at his office where
he told her about the methods and procedures of organizing a plant.
On February 13, Samuel accompanied by employees Sally Green , Eugene Doss,
and Ruby Bogany met with Wells at a tavern nearby Respondent 's plant where Wells
again explained the organizing procedures.
Right after work, about 5 p.m. on February 26, Wells met with a group of 29
employees 4 at the home of Theresa Guidry located in the Pleasantville section of the
city of Houston where he was once again explaining the organizational procedures
when one of the group noticed employees Ruby Barras and Marie Wright driving past
the house several times and finally parking the automobile nearby from which point
the house could be kept under surveillance . Those in attendance , believing that
Barras and Wright were "company stooges," became apprehensive about their jobs
and so it was determined that they would all sign union application cards that after-
noon in order to give them as much protection as possible . All those attending,
except Maymie Jones who had to leave the meeting early, signed union application
cards. Jones executed hers the following morning. Following the meeting several of
the women present got employee friends of theirs in the neighborhood to sign similar
authorization cards.
2 All dates herein now are in the year 1964 unless otherwise noted.
i Schwartz denied having removed anything from any automobile . Barras did not testify.
4 Those present were Theresa Guidry , Sally Green , Mary Jo Brown , A C Ward,
Katherine Warren , Florence Hudson , Alice Williams , Billie Hickey, James Birklett, Earl
Brown , Rosa Lee Brown , George Brown , Maymie Jones , Elizabeth Walker , Mary Jackson,
Pepe Ramos , Rhuvermon Thompson , Gladys Caudle, Shirley Glenn , Mary Samuel, Ruby
Bogany, Isiah Washington , Oral Lee Washington, Myrtle Cornett , Eugene Doss, Aljuritta
Kyles, Annie Jean George , Frances Atkins , and Riley Copper
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Early the next morning, February 27, Schwartz, plant manager, appeared at the
bandsaw where George Brown was working and, after remarking that Brown was a
"lucky boy," inquired if there had not been a union meeting in Pleasantville the pre-
vious evening. Brown denied that there had been a "union meeting," saying that
there had been a "surprise party" for an employee. Schwartz stated that he was going
to show Brown "how green the cabbage has got" and then stated that there were too
many persons watching and for Brown to pretend that he was going to use the tele-
phone in the warehouse and to meet Schwartz there in about 15 minutes.
As ordered, Brown met Schwartz in the warehouse where Schwartz again asked if
there had not been a union meeting in Pleasantville the evening before. Brown again
answered that it was a surprise party for an employee. Schwartz then wanted to know
if there had not been a white union representative present. Brown answered that in
the negative. Schwartz asked how many people had been present and was told
between 25 and 30. Schwartz then inquired why certain employees had been invited
and others were not. Brown answered that was because they had invited their
"friends and associates" and then, in his turn, asked if Barras and Wright had told
Schwartz about the party. Schwartz did not answer his inquiry but did ask why
Brown mentioned Barras and Wright. Brown replied that he had seen them parked
across the street when he went outside the house. After Schwartz had once more
inquired if Brown were sure that there had not been a union meeting that night which
Brown again denied, Schwartz ordered Brown back to work?
Sometime that afternoon between 1 and 4 p.m. on February 27 Respondent notified
employees Shirley Glenn, Eugene Doss, Mary E. Samuel, Annie Jean George, Frances
Mae Atkins, Maymie Jones, Mary Jo Brown, Theresa Guidry, Gladys B. Caudle,
Ruby Bogany, and Earl Brown,6 all of whom had been present at the meeting the
evening before, that they were being temporarily laid off for "lack of work and lack
of orders."
On February 28 the Union notified Respondent by letter personally delivered by
Wells that it represented a majority of the Respondent's employees and requested
recognition. Wells offered Respondent 73 executed authorization cards as proof
thereof but Respondent refused to inspect them.
On March 4 the Union sent another such letter to Respondent with an attachment
giving the names and addresses of 93 of Respondent's employees who had signed such
authorization cards.
Subsequently the Union was certified as the bargaining representative of the produc-
tion and maintenance employees of Respondent as a result of a Board-conducted
election.
On March 17 Mary Samuel, Frances Atkins, and Ruby Bogany were recalled to
work to replace three employees who went on temporary leaves of absence for one
reason or another at that time. Subsequently all 11 of the laid-off employees were
recalled to work except Earl Brown who could not be located.
George Brown became the union shop steward and a member of its negotiating
committee.
5 The above findings are based upon the testimony of George Brown who impressed
me as an intelligent ( as he had impressed Schwartz) honest witness (about which Re-
spondent 's brief is in disagreement accusing Brown of having "the propensity and even
the desire to lie . . ." because admittedly he did not tell Schwartz the truth during this
unlawful and coercive interrogation).
Schwartz' original denial of this conversation with Brown consisted of a denial that
he had "ever" talked with Brown about the Union. On cross -examination Schwartz
could not recall having had a conversation with Brown on February 27 and thereafter
denied other aspects of the conversation as testified to by Brown
Schwartz also denied that he had any information that Respondent's employees were
organizing prior to February 28 when Organizer Wells made his written and oral request
for recognition . But Schwartz did recall that the owner of a business across the street
from Respondent's plant had informed Respondent that his place of business was being
organized by a union and that he thought that the Union was also attempting to organize
Respondent 's employees. Schwartz also recalled that "instructions [had been] given by
top management back in early February" that no supervisor was to talk to the employees
about a union These two events would seem to indicate that Respondent was at least
suspicious that organizing was going on among its employees by early February, which
is contrary to the import of all of the testimony of Schwartz.
O Earl Brown was not included in the complaint herein as a discriminatee because soon
after February 27 he left the city of Houston and has not returned
PERL PILLOW CO. 337
On or about April 9, after consulting with the Union, Respondent temporarily
laid off some more employees in the outdoor pad section of the plant. This layoff
was not alleged to have been discriminatory.
On April 9 Respondent had another layoff in the vinyl sewing department and on
April 16 the department was reduced to two sewers. It is admitted that these two
layoffs were economically required.
On July 8 George Brown was called by Supervisor Marquis to his office where he
found Arthur Schwartz sitting. Schwartz asked Brown if he was doing as much work
as he had been doing in the past. Brown said he was. Then Schwartz told Brown
that he had been informed of a meeting the Union had had on July 6 when, according
to Schwartz, the employees had been told to slow down. After Brown denied any
such instructions from the Union, Schwartz said he was fed up with union people
not doing their work and he was going to start firing and he was going to start with
Brown and make him an example. After Brown had explained that he was giving
Schwartz an honest day's work and, if he were slower than usual, it was due to the
fact that he now had to get and sort his own materials. After this explanation
Schwartz said that if Brown were doing a full day's work, he could return to work.?
B. Conclusions
Respondent here has introduced a sort of dual-pronged defense to the complaint.
It maintains that: (1) It had no knowledge of any union activity among its employees
until Organizer Wells made his demand for recognition on February 28, the day after
the layoffs in question here; and (2) the layoffs of February 27 were exclusively
motivated by economic conditions caused by a dearth of orders for vinyl outdoor
pads and by a critical shortage of warehouse space created by storage of raw materials
for the outdoor pads and an excessive inventory of completed pads. Either of these
defenses, if true, would, of course, exculpate Respondent from the allegations of the
complaint.
It is true that both of Respondent's witnesses, Schwartz and Respondent Treasurer
Dubinski, denied having any knowledge of union activities until Organizer Wells
demanded recognition about noon on February 28. On the other hand employee
George Brown testified to a conversation he had had with Schwartz on the morning
of February 27, prior to the layoffs, in which according to the testimony of Brown,
Schwartz inquired of him if there had not been a union meeting in Pleasantville with
a white organizer [Lynn Wells] present. If Brown's testimony is true, then it follows
that, contrary to the testimony of Schwartz who at first rested his denial of this con-
versation on never having asked any employee about the Union but who ultimately
denied having had any such conversation with Brown, Respondent did in fact know of
the union activities prior to the layoffs. Hence, contrary to the contention of Respond-
ent's counsel, I am faced in limine with a problem of credibility.
As indicated, supra, I have resolved this problem in favor of the testimony of
Brown and against Schwartz. George Brown, as a witness, gave every indication of
a person telling the truth. Brown was a most impressive witness, testifying carefully,
in detail, and honestly. His testimony was unshaken on cross-examination. In part
it was corroborated.
In his brief Respondent argued that "Brown's testimony is very suspect because he
openly admitted at the trial that he allegedly had lied several times to Arthur Schwartz
in the alleged conversation with Arthur Schwartz on February 27 . . . . If George
Brown found it so easy to admittedly lied to Arthur Schwartz on that alleged occa-
sion, it would appear that he would have the propensity and even the desire to lie
about the very existence of that entire alleged conversation."
In this connection it is interesting to note that about 17 pages thereafter in its brief
Respondent argued that this conversation of February 27 did not violate Section
8(a)(1) of the Act on the ground, among others, "there is no evidence that the
alleged conversation actually inspired fear in George Brown ...." 8 In this connec-
tion Respondent's brief cites the case of Bonnie Bourne, an individual d/bla Bourne
Co. v. N.L.R.B., 332 F. 2d 47 (C.A. 2), a case which in impertinent part states:
'Schwartz' testimony regarding this conversation was much the same as that of
Brown except that Schwartz denied that there had been any mention of the Union or its
July 6 meeting
8 Actually the above is an incorrect statement of the law because it has long been
recognized that Section 8(a) (1) of the Act is violated by a statement which Respondent
intends to have the effect of intimidating its employees regardless of the actual success
of the attempt. In other words the statement need not be successful in intimidating
the employees so long as the purpose and intent of this statement was to coerce.
7 8 9- 7 30-6 6-v o f 15 2-2 3
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
" . (5) in general, the replies [of the employees] were truthful i.e., there is no evi-
dence that the interrogation [of the employees] actually inspired fear [in the
employees]."
Thus Respondent here attempts to maintain on the one hand that Brown cannot
be believed because he "admittedly lied" in response to the interrogation by Schwartz
while, on the other hand, it contends that the interrogation inspired no fear in Brown
despite the fact that he admittedly lied in responding to the Schwartz' interrogation.
The court in the Bourne case obviously considered the truthfulness of the employees'
replies to the interrogation to be of considerable importance in determining the coer-
cive effect of the interrogation. So do I. Respondent's inconsistency is too apparent
for further comment.
In fact Brown's truthfulness as a witness in acknowledging that, as an employee, he
lied in responding to the interrogation by Schwartz, an unpleasant admission for
anyone to have to make, is one indication of the truthfulness of his testimony. The
untruthfulness of his responses to Schwartz can be excused because of the illegality of
the interrogation.
Furthermore Mary Jo Brown, who admitted that she was fearful of being dis-
charged because of having been observed as a participant in the union meeting on
February 26, corroborated George Brown in part in having seen-but not heard-the
original conversation between Schwartz and Brown at Brown's work place and
shortly thereafter in seeing George Brown go into the warehouse where the final inter-
rogation occurred.
On the other hand Schwartz denied that he "knew" of any union activity among
Respondent's employees until after the layoff even though he subsequently admitted
that within the first 10 days of February Respondent had been informed by the
management of a plant across the street that Respondent's employees were being con-
tacted by a union. Thus the Schwartz and Dubinski denial of any knowledge can
be deemed truthful only if one adopts the most restrictive interpretation of the word
"know." At the very least Schwartz and Respondent had good cause to believe by
the early days of February that the Union was engaged in an organizing attempt
among its employees.
Originally Schwartz denied the February 27 conversation with Brown solely on the
basis that he "never" talked to any employee about the Union. Later, on cross-
examination, this denial was expanded to "I do not recall talking to Brown on that
particular day [February 27], but I might have at any point in the plant .... I did not
have a specific conversation with George Brown that I can say that I spoke to him on
that day." Immediately thereafter Schwartz returned to the original basis for his
denial, to wit, that "early in February," a time slip Schwartz promptly tried to cover
up, he had been instructed not to talk to employees about the Union. This denial
by Schwartz was not convincing either in the demeanor or the phraseology of the
witness.
Consequently I am convinced that the conversation of February 27 occurred as
testified to by George Brown and as found above. That being so, there is and can be
no question but that Schwartz early in the morning of February 27 knew of the union
meeting attended by a white union representative in Pleasantville the previous evening.
I so find.
Respondent argued in his brief that "for some strange and unexplainable reason"
General Counsel did not call either Ruby Barras or Marie Wright as witnesses and
hence there was no proof that either one of them had been acting as an agent of
Respondent in keeping the union meeting under observation. No such finding is here
made. No such finding is necessary as the Schwartz conversation with Brown in itself
proved the knowledge of the February 26 union meeting by Schwartz, a fact which as
a witness he had denied. As General Counsel had proved that Schwartz had knowl-
edge of the February 26 meeting through his own interrogation of George Brown,
the means by which Schwartz acquired that information became immaterial. A denial
by Barras and Wright that either of them had conveyed such information to Schwartz
might well have constituted partial corroboration of the denial by Schwartz of the
Brown conversation, the burden of going forward having by that time shifted from
the General Counsel to Respondent. Neither testified.
Respondent also argued that Barras and Wright had to drive pass Guidry's home,
at which the union meeting was held, in order to reach their own homes. This is true.
But that does not account for the fact that Barras and Wright parked across the street
from the Guidry home during the meeting.
In addition to finding that Schwartz interrogated George Brown on February 27
about the union meeting with a white organizer present in Pleasantville the previous
evening together with an attempt to learn the identity of the employees present, I
must also find that this interrogation of Brown by Schwartz was intended to interfere
PERL PILLOW CO. 339
with, restrain, and coerce employee George Brown and the other employees and
did, in fact, so interfere with, restrain, and coerce said employees in their rights
guaranteed in Section 7 of the Act in violation of Section 8(a) (1) of the Act by
putting Brown and the other employees in fear of losing their employment with
Respondent. As noted in the Bourne case cited above, the untruthfulness of George
Brown's answers to the interrogation of Schwartz is cogent evidence of the success
of Schwartz' attempt to coerce.
The complaint also alleged as a violation of Section 8(a)(1) that Schwartz removed
union literature left by the Union on the automobiles of the employees parked in
Respondent's parking lot. This was based upon the testimony of Mary Samuel that
on the afternoon of January 28 she saw Schwartz removing something from some
automobiles parked in the parking lot after Wells and other union organizers had
placed such literature in and on the parked automobiles. Schwartz denied any such
activity. In view of Samuel's honest testimony that she could not testify as to what
Schwartz removed from the automobiles nor identify the ownership of those automo-
biles as those of employees, I will dismiss this allegation of the complaint for the
reason that, unless Respondent removed union literature from employees' cars, there
would be no violation of Section 8(a) (1) of the Act. Thus there is here a failure of
proof.
There remains one other element of interference, restraint, and coercion which
also involves a credibility problem to be resolved. That is, of course, the July 8
conversation between Schwartz and George Brown in which, according to Brown,
Schwartz, after referring to a supposed union order for a slowdown at a union meet-
ing held 2 days before on July 6, threatened to discharge any employees who were
slowing down in accordance with that order and with George Brown himself being
the first to be discharged. Regarding this conversation, the testimony of Schwartz
is almost identical with that of Brown with the significant omission of any reference to
the July 6 union meeting and the threat to discharge. Again Schwartz' basis for his
denial was the "strict" instructions not to discuss the Union, referred to above. How-
ever, this time even the Schwartz testimony clearly implied a threat of discharge to
Brown based upon the contention that Brown was engaging in a slowdown. But on
this occasion Foreman Larry Marquis had been present at or throughout the conver-
sation and was available to refute Brown's testimony, if inaccurate. Respondent
failed to call Marquis as a witness, apparently preferring to leave the conflict a strict
conflict between Schwartz and Brown. With Marquis, a supervisor, thus available to
corroborate Schwartz, it is a fair assumption from Respondent's failure to call
Marquis as a witness that his testimony would not have assisted Respondent. For
this reason, in addition to those noted heretofore, I credit the testimony of George
Brown.
In addition the facts as found of this conversation between Schwartz and Brown
shows that Schwartz was intentionally and patently threatening union employees with
discharge, albeit on an unfounded contention that the Union was advocating a slow-
down, with the necessary intent to discourage union membership and activities, a vio-
lation of Section 8(a) (1) of the Act. I so find.
The facts here, (1) the February 26 union meeting at the Guidry home, (2) the
interrogation of George Brown by Schwartz regarding that union meeting and those
in attendance on the morning of February 27, and (3) the sudden layoff on the
afternoon of February 27 of 11 employees, all of whom had been in attendance at
the February 26 meeting in which Schwartz had been so interested, constitute at
least a prima facie case that the layoffs of February 27 were motivated by the intent
on the part of Respondent to discourage union membership and activities among its
employees.
Respondent countered this prima facie case with the contention that the layoffs of
February 27 were caused exclusively by economic conditions surrounding the vinyl
outdoor pad section of the plant, to wit, (1) the critical shortage of space in the ware-
house caused by the shortage of raw materials for the outdoor pad section plus the
excessive inventories of finished goods in that section, and (2) the lack of orders for
such outdoor pads. This contention, if true, would rebut General Counsel's prima
facie case.
The testimony adduced by Respondent showed that annually the Respondent's
pillow business slumped right after the Christmas white sales and was slow for the
first 6 months of the year necessitating layoffs. Respondent, therefore, decided to
go into the vinyl outdoor pad business in 1963 in an effort to maintain steady pro-
duction in the plant. Respondent understood that sales in outdoor pads were best
during the first 6 months of the year. By September 1963, Respondent had hired
a national sales representative and has begun training operators and producing out-
door pads during October 1963.
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent displayed its line of outdoor pads at the Housewares Show in Chi-
cago beginning January 13, 1964 According to Dubinski, the confirmed sales orders
from that show proved disappointing, especially as Respondent had already made a
projection of $500,000 worth of pad business for the 1964 season.
Despite this disappointing development, in the latter part of January and the early
part of February Respondent transferred a number of its employees from working
on pillows to sewing vinyl on the grounds that pillows were slow and vinyl was busy.
In addition between February 11 and 14, Respondent hired three new employees as
sewers of vinyl: Christine Barnes, Aljuritta Keyles, and Betty Gordon.
All through January and February 1964, Schwartz contended that his warehous-
ing problems of taking care of the raw materials for the outdoor pads plus the
excessive inventories of finished pads from that part of the plant had become so
acute that, in the words of Respondent's brief, "the layoff became imperative " So,
according to this evidence, because of the lack of orders and the warehouse crisis,
on February 19, just 5 days after the three new employees had been hired in out-
door pads, Respondent's management gave Schwartz orders to lay off employees.
According to Schwartz, by February 21, he had prepared his list of employees to be
laid off only to be told at that time not to make the actual layoff because Respond-
ent's sales representative was still hopeful of selling a large order to a firm on the
West Coast. Things continued this way from day to day until about noon on Feb-
ruary 27, when this sales representative telephoned in the bad news that the West
Coast firm had hired a new buyer so that the purchase of the outdoor pads would
have to be indefinitely postponed until he could get in touch with the new buyer.
When that information was received, according to Respondent's witnesses, it was
decided to go ahead with the contemplated layoff that day and so between 2 and 4 p.m.
Schwartz notified the supervisors in the departments affected who in turn notified
the employees involved that they were being temporarily laid off because of lack of
work
Respondent produced no evidence from any source in corroboration of this tes-
timony given by Schwartz and Dubinski.
On the other hand, when the charges in the instant matter were filed, Dubinski,
at the instance of Respondent's attorney, took some pictures in the warehouse in
order to corroborate the claimed January-February crisis in the warehouse.
Although these pictures only purport to show the conditions existing in some 8,000
out of the 20,000 feet of warehouse space, it can be assumed that Dubinski selected
those sections of the warehouse best calculated to support Respondent's contention.
The pictures do not corroborate the testimony. In fact the pictures indicate a
shameful failure to utilize good warehouse space. Under the circumstances the
so-called economic factor of lack of warehouse space just did not exist.
Respondent's other contention was that the layoff of February 27 became "imper-
ative" through the lack of orders for pads. In its efforts to prove this contention
Respondent showed that on February 19 it had orders outstanding for $36,000
worth of outdoor pads, an increase of $3,000 over the orders outstanding on Feb-
ruary 7, and that at the dates of the subsequent layoffs of April 9 and 16, it had
$24,000 worth of such orders, a decrease of $3,000 from the orders outstanding on
April 1. It is noteworthy that Respondent offered no testimony as to the amount of
such orders on February 27, nor for the whole period of the month of March. The
implication from this omission in Respondent's proof that such evidence would not
assist its claim is both fair and unmistakeable. In fact, the implication mentioned
is corroborated by Respondent's record of monthly shipments of orders which
showed $12,000 were shipped in January (beginning on January 25), $43,000 in
February, $55,000 in March, and $50,000 in April. Thus, shipments as of February
27 were increasing nicely. The testimony in regard to its sales which Respondent
produced certainly fails to prove any necessity for Respondent's sudden layoff of
February 27. This is further borne out by the fact that Respondent was still trans-
ferring old employees and hiring new ones for the outdoor pad work up to and
including February 14, 1964, only 5 days prior to the time Respondent here claims
that it suddenly decided that a layoff was imperative, even though more goods were
shipped during the month of March than at any prior time during the program. In
fact, Respondent's shipments of goods was at the time of the layoff decidedly favor-
able for continued operations.
Respondent made quite a point of the fact that, while it had projected the out-
door pad business as a $500,000-6-month operation, it had only done approxi-
mately 10 percent of that projection by the end of February. Actually this amounted
to approximately 10 percent in 1 month because Respondent's first shipment of
goods was not made until January 25. By the end of the third month of operations
(April), Respondent had shipped 31 percent which actually was not bad consider-
PERL PILLOW CO. 341
ing the fact that Respondent's anticipated big orders from the West Coast were not
actually confirmed until the end of April at which time Respondent recalled all of
the laid-off employees who had not previously been recalled.
Neither the sales nor the warehouse situation were situations which suddenly
confronted Respondent and required the precipitous action which Respondent took
on February 27. As already indicated, the warehouse situation was easily solved
and at the time of the layoffs the sales situation was in fact improving, albeit not as
rapidly as Respondent had hoped. Thus Respondent's action of February 27 does
not seem to have been triggered by either of these matters. Corroboration of this
is to be found from the list of those employees laid off.
According to Respondent's testimony, the motivation for the layoffs arose from the
problems caused by the outdoor pads. Thus it would be expected that those persons
engaged in outdoor pad work would be the only ones laid off. The facts, however,
show that at least two of those laid off were engaged in work other than that of the
outdoor pads: Frances Adkins in pillows and Earl Brown in the warehouse. This
would indicate that there was some reason for their layoffs other than the alleged
vinyl problems. If the warehouse problem was supposed to be part of the layoff,
it appears rather incredible that a warehouseman would be selected for layoff. That
brings us right back to the union meeting at the Guidry home on February 26 as the
motivating influence because both Atkins and Paul Brown attended that meeting.
In its brief Respondent also argues that, as it retained some few of the most active
union employees at the time of the February 27 layoff, this disproves Respondent's
discriminatory motivation. The courts have looked askance at this argument in
many cases. I agree with these courts, especially as the fact that Respondent laid
off employees other than those in vinyl indicates that Respondent wanted its employ-
ees in other departments to recognize the dangers inherent in union organization.
Accordingly I am convinced, and therefore find, that Respondent laid off the
employees named below on February 27, 1964, because each of them had attended
a union meeting the evening before and in order to discourage union membership
and activities among its employees in violation of Section 8(a)(3) of the Act
Shirley Glenn Annie Jean George Theresa Guidry
Eugene Doss Frances Mae Atkins Gladys B. Caudle
Mary E. Samuel Maymie Jones Ruby Bogany 9
Mary Jo Brown
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
It having been found that Respondent discriminated in regard to the hire and
tenure of employment of 10 employees named above by laying each of them off on
February 27, 1964, and then not recalling them to work for varying lengths of time
thereafter, I will recommend that Respondent make each of them whole for any loss
of pay he may have suffered by reason of said discrimination against him by pay-
ment to him 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 his reinstatement less
his net earnings during such period in accordance with the formula set forth in
F. W. Woolworth Company, 90 NLRB 289, with interest thereon at the rate of
6 percent per annum.
Because of the variety of the unfair labor practices engaged in by Respondent,
I sense an attitude of opposition to the purposes of the Act in general, and hence I
deem it necessary to order that the Respondent cease and desist from in any manner
infringing upon the rights guaranteed in Section 7 of the Act.
6 Earl Brown was also laid off at this time but is not included herein because he was
not named in the complaint.
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery
Workers of America, AFL-CIO, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
2. By laying off the aforenamed 10 employees on February 27, 1964, and refusing
to reinstate said employees until varying dates thereafter, thereby discriminating in
regard to their hire and tenure of employment, and discouraging union membership
and activities among its employees, 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
their rights guaranteed to them in Section 7 of the Act, Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a)( I) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
T. L. Lay Packing Company and United Packinghouse, Food and
Allied Workers, AFL-CIO. Case No. 10-CA-5758. May 3,1965
DECISION AND ORDER
On February 15,1965, Trial Examiner Owsley Vose issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had not
engaged in unfair labor practices as alleged in the complaint, and rec-
ommending that the complaint be dismissed in its entirety, as set forth
in the attached Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions, the Respondent filed cross-exceptions to the
Trial Examiner's Decision, and both parties filed supporting briefs.
The Board 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. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner, and orders that
the complaint herein be, and it hereby is, dismissed.
MEMBER BROWN took no part in the consideration of the above Deci
sion and Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed by the Charging Party on June 15, 1964, the General Counsel
of the National Labor Relations Board , by the Regional Director for Region 10,
152 NLRB No. 30.