Popeil Brothers, Inc.

National Labor Relations Board - Board Decisions

Dec 17, 1952

101 N.L.R.B. 1083 (N.L.R.B. 1952)

POPEIL BROTHERS, INC. 1083
solve difficult electrical problems'." The Employer states that it
would be necessary to hire outside electrical contractors for any new
work.
The foregoing facts and the entire record as here presented concern-
ing the employees sought by the Electrical Workers would not, in our
opinion, support a finding that these employees constitute a unit of
craft employees. We note particularly the brief training period re-
quired for rectifier operators and instrument electricians and the
absence of any specific evidence as to the skills and training of the
electricians first-class. Accordingly, we shall dismiss the petition in
Case No. 15-RC-820.
In regard to Case No. 15-RC-805, we find that a unit consisting of
all production and maintenance employees at the Employer's plant
at McIntosh, Alabama, including all janitors, but excluding chemists,
analysts, office and clerical employees (including the storekeeper and
the store clerk), all professional employees, guards, and supervisors
as defined in the Act," is appropriate for the purposes of collective.
bargaining within the meaning of Section 9 (b) of the Act.
Order
IT IS HEREBY ORDERED that the petition filed in Case No. 15-RC-820
by the National Brotherhood of Electrical Workers, Local No. 505,
AFL, be, and it hereby is, dismissed.
[Text of Direction of Election omitted from publication in this
volume.]
This testimony was given by the operations manager , the only witness in the case.
As agreed to between the Employer and the Chemical Workers.
POPEIL BROTHERS , INC. and BASIC PROCESSOR 'S UNION, LOCAL 44,
D. R. W. W. I. U., A. F. of L. Case No. 13-CA-654. December
17, 1952
Decision and Order
On February 26, 1952, Trial Examiner W. Gerard Ryan issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent did not engage in certain other alleged unfair
labor practices and recommended that the complaint, as amended, be
101 NLRB No. 186.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dismissed with respect to such allegations. Thereafter, the Respond-
ent and General Counsel filed exceptions to the Intermediate Report
and supporting briefs. The Respondent also by leave of the Board
was permitted to file a reply brief.
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. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the exceptions, additions,
and modifications noted below.
1. The Trial Examiner found that the Respondent violated Section
8 (a) (1) of the Act by changing the working hours of its employees
and causing them to enter and leave the plant by normally unused
exits in order to prevent them from meeting or encountering union
organizers stationed outside the plant. The Respondent excepts to
this finding. It contends that it resorted to these measures in order
to protect its employees from violence at the hands of the union
organizers. We find no merit in this contention. The record does
show that on several occasions union organizers uttered threats against
certain named employees whom they suspected of being informants
for the Respondent and that these threats were reported to the
Respondent. The record does not show, however, that any other em-
ployees were threatened or that any employee requested the Respond-
ent to protect him from physical harm because of threats. Whatever
justification Rspondent might have had for taking such precautions
to protect the employees who were suspected of espionage, no reason-
able basis appears for extending them to all the employees. The
action taken by the Respondent deprived all its employees of an
opportunity freely to contact the union organizers. Under all the
circumstances, and particularly in view of the Respondent's animus
towards the Union, its record of unlawful interference with the
employees' right to engage in self-organization, its efforts to defeat
the union campaign by threats of reprisal and promises of benefit,
and its discrimination against certain laid-off employees as hereinafter
found, we conclude, as did the Trial Examiner, that in adopting these
measures the Respondent was motivated not by its concern for the
safety of its employees, but by its desire to prevent its employees
from contacting the union organizers at the regular entrances and
at a regular time, for the purpose of retarding the organization of
x Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
I Members Houston, Murdock, and Styles].
POPEIL BROTHERS, INC. 1085
the plant-conduct clearly violative of Section 8 (a) (1) of the Act 2
2. The Trial Examiner found that the Respondent' s decision to
commence remodeling the plant and to reduce its labor force on Sep-
tember 14, 1950, was based on legitimate business reasons and there-
fore was not violative of the Act. The Trial Examiner also found
that the selection of the employees for the layoff was likewise nondis-
criminatory. Although the matter is not free from doubt, we adopt
these findings because in our opinion the General Counsel failed to
prove by a preponderance of the evidence that the Respondent, in
making these decisions, was motivated by discriminatory considera-
tions. While adopting the Trial Examiner's credibility resolutions
wherever 'made, we do not, however, for the reasons set forth below,
adopt his further conclusion that in failing to recall the laid-off em-
ployees when the remodeling was partially completed and the Re-
spondent began to augment its labor force, the Respondent did not
violate the Act.
Promise to recall: In announcing the layoff on September 14, 1950,
Foreman Kujda stated to the employees that the layoff was necessary
in order to provide space for the remodeling work and that they
would be recalled as soon as the remodeling had progressed far
enough to permit the resumption of normal operations. When one
of the employees asked Kujda how long it would be before they were
recalled, Kujda suggested that she should call him on the telephone in
a week or two to find it out as he would then have a better idea of how
the remodeling was progressing. He also advised them to find jobs
elsewhere in the meantime.' None of the foregoing remarks by Kujda
qualified or detracted from his plain and unqualified promise to recall
the laid-off employees as soon as the remodeling was completed. It
is clear that Kujda's remarks were intended merely as suggestions to
the laid-off employees as to their conduct in the meantime. Altogether
21 employees were laid off on September 14 and 15. The complaint
z Kelco Corporation, 79 NLRB 759; Barton Brass Works and Precision Machined Parts
Co., 78 NLRB 431 ; Pacific Powder Co., 84 NLRB 280
R The foregoing findings are based upon the testimony of employees Bankhead , Boston,
Snowden , Armour, Glenn, and Brannon , witnesses for the General Counsel, and Foreman
Kujda, witness for the Respondent, whose testimony, in substance , was nrutually corrobora-
tive. Thus, Bankhead testified that after announcing the layoff , Kujda told the employees
that "as soon as the remodelling was completed he [Kujda] would call them back "
According to Snowden , Kujda stated that they were going to remodel the second floor and
that he had to lay the girls off for several weeks and that he "would call [them] back . . .
within two weeks time " Armour and Glenn testified to the same effect According to
Brannon, Kujda stated that he would recall them "as soon as possible " Foreman Kujda
testified that he told the employees that they were closing down the front section of the
second floor to complete the installation of the conveyors and the chute and that "they would
be laid off for the time being" ; that "some of the girls wanted to know how soon they would
come back to work" and that he told them to call him back in a week or two when he
"would be in a better position to tell them how soon [they ] could do anything ." Later
in the hearing, Kujda testified as follows : "I told them the reason they were being laid
off was due to the operation I started , and that if we had use for them we would call
them back ; also several of the girls asked me, well, how long it would take and I told
them if they wished they could can me within a week or so and I would advise them."
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleges that the Respondent discriminatorily refused to recall 13 of
them.
Failure to recall: By the early part of November 1950, the Respond-
ent had completed the installation of the chute and the first group of
conveyors and was back to normal operations. During the week ending
November 18 it commenced rehiring employees. During this week 11
assemblers were hired and 1 terminated. During the week ending
November 25, 5 assemblers were hired and 2 terminated, and during
the week ending December 2, 14 assemblers were hired and 2 termi-
nated. None of the laid-off employees, however, with the exception
of 3 who personally applied, was recalled or reinstated in accordance
with Kujda's promise.
Union membership and activities of the complainants and the Re-
spondent's knowledge thereof: The record discloses that all 13 com-
plainants were members of the Union; that 2 of them had been elected
union stewards for their sections; that all of them wore union buttons
at the time of the layoff; and that all of them, with the possible ex-
ception of Bessie Turner, attended one or both of the union meetings
held prior to the layoff.
On the record before us, we also must assume, contrary to the Trial
Examiner, that the Respondent had knowledge of the union activities
of each of the complainants. The Trial Examiner himself found that
Foreman Kujda told employee Bankhead that "Kujda could trust
him and to go and report what happened at the meetings ." 4 Kujda
4 Employee Bankhead , whose testimony was credited by the Trial Examiner , testified
that on the day of the first union meeting Kujda engaged him in a conversation and asked
him if he was going to the meeting . When he replied that lie was thinking of doing so,
Kujda observed : "He could trust me. . You know what to do ." The next day Kujda
asked him who was there, and what went on. Kujda also asked if Florabelle Sanders
v as there , and lie said "Yes." Bankhead had a similar conversation with Kujda on the
day of the second union meeting The next moining he was questioned by Raymond
Popeil and Kujda concerning "what went on" at the meeting, "how many were there."
He replied that "half of the shop was there ," that they "all got Union buttons [that he]
was elected Steward" Bankhead also testified that Kujda told him that "[Kujda]' had
[stool pigeons] planted there [at the meeting ]," and that Kujda mentioned the names
of two employees : Florabelle Sanders and Juanita Pryor.
Foreman Kujda testified that he had several conversations with Bankhead. Kujda
admitted that he questioned Bankhead to ascertain the reasons for dissatisfaction among
the employees that would prompt them to join the Union, and that he asked Bankhead
to report what happened at the meetings so that if the employees ". . . want something
we can concede , we would be happy to . . . but right now , I don't know what it is all
about ." Kujda also testified that in a conversation held early in September Bankhead
told him that he was going to a union meeting to "see what is what" and that he would
let him know how he made out ; that the next day Bankhead told him that he had attended
the meeting, that "there were several people at the meeting and . . . [that ] they are
getting ready to organize " On another occasion , Bankhead told him that he was going
to a meeting ; that "they were going to vote him in . . . that evening [ as a steward]";
that "they expect quite a crowd," that he, Kujda, then observed that they ought to be
"careful" and "don't blow your tops there," don ' t do "anything wrong ," and that on that
occasion he might have used the words "you could trust Harvey [Bankhead ] or words to
that effect ," and that the next day Bankhead told him that he was voted in as steward.
Kujda also testified that a day or two after the layoff , Bankhead also informed him that he
thought "there is going to be a little trouble," that the employees "seemed quite burned
up at the meeting, and . . . are giving little threats out," and that at his request
Bankhead executed a statement in writing concerning various statements and threats
against certain named employees made at the meetings.
POPEIL BROTHERS, INC. 1087
and Vice-President Raymond Popeil questioned Bankhead concerning
`,what went on" at the union meetings and "how many were there"
etc. Bankhead furnished them with information concerning the num-
ber of employees who attended the union meetings and told them that
the employees who attended the second meeting were given union
buttons which they were supposed to wear the next day. Bankhead
also reported after the first union meeting that the employees were
ready to organize, that they expected "quite a crowd" at the second
meeting. He also informed Kujda and Popeil that he was elected
steward at the second meeting. A day or two after the second meet-
ing, Bankhead told Kujda that the employees present at the second
meeting "seemed quite burned up," that "threats" were uttered against
certain named employees who were suspected of being informants,
and that lie thought that "there is going to be a little trouble." Fore-
man Kujda and Raymond Popeil also asked complainant Boston if
she had joined the Union. Having observed that Boston wore a
union button, Kujda said to Boston that he did not think that she
would do anything like joining the Union. Complainant Snowden
was warned by Forelady Ellis to be careful and not to let Raymond
Popeil and "the others" see her signing cards or talking to the union
representatives "outside." Kujda also knew that complainants Glenn
and Turner were members of a union before they were hired by the
Respondent. In addition to the evidence that the Respondent sought
and obtained information concerning the union membership and ac-
tivities of its employees, the relatively small number of the employees
in the plant also supports the inference that the Respondent was well
acquainted with its employees' union activities.5
Respondent's animus towards the Union: Further evidence of dis-
criminatory motivation for the Respondent's failure to recall the
complainants is to be found in the Respondent's hostility towards the
Union and its effort to defeat the Union's campaign to organize its
employees. Thus, as detailed in the Intermediate Report, the Re-
spondent interrogated employees and applicants for employment con-
cerning their union membership and activities and as to whether they
attended union meetings; warned employees not to wear their union
buttons if they wanted to keep their jobs; requested employee Bank-
head to attend union meetings and to report back the information
obtained; stated to Bankhead that the Respondent had informants
planted at the union meetings; threatened that it would close the
whole plant rather than have a union; distributed to its employees
on two occasions various articles of merchandise as gifts for the pur-
pose of weaning the employees from the Union; announced
and granted to the employees a wage increase and hospitalization
r. KeeShin Poultry Company, 97 NLRB 467; Connecticut Chemical Research Corporation,
98 NLRB 160.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
benefits for the purpose of neutralizing the effect of the Union's or-
ganizational campaign; and finally, changed the work hours of its
employees and the places of entry and exit from the plant to prevent
contact by its employees with union organizers.
Conclusion: The facts set forth above strongly support the allega-
tion that the failure to recall the complainants was discriminatory.
Moreover, the Respondent offered no satisfactory explanation for its
conduct, except a belated contention without support in the record that
the separation of the employees on September 14 was a discharge
rather than a temporary layoff. We find no merit in this contention.
The fact that the Respondent intended the layoff as a temporary sever-
ance of employment rather than a discharge is implicit in Kujda's
promise to recall the laid-off employees as soon as the remodeling was
completed.
Under all the circumstances, including the Respondent's animus
towards the Union, its record of interrogation, its coercive state-
ments, promises of benefit and threats of reprisal for wearing union
buttons, and the absence of reasonable explanation for its failure to
recall the complainants, we are convinced that the real reason for the
Respondent's conduct was its determination to retard or, if possible,
to defeat altogether the Union's campaign to organize the plant. In-
deed, we can conceive of no rational explanation of the Respondent's
behaviour on any other theory. Even if most of the complainants
may not have been particularly active in the union campaign, their
reinstatement, in accordance with Kujda's promise, would undoubtedly
have given a new impetus to the Union's campaign by restoring to its
ranks a large group of union members, including three of its most
active workers. As the Respondent made no contention, except with
respect to two silk screening employees,6 that the laid-off employees
were incompetent workers, it is difficult to understand, except on the
theory of discrimination, why the Respondent should have preferred
6 The Respondent contends that shortly after the layoff it discovered that a considerable
number of cylinders for the sifters were not properly silk screened , and that for this reason
it would not have reinstated Armour , a silk screen operator , and Johnson , an inspector,
even if they had applied for reinstatement In support of this contention Foreman Kulda
testified that he had made this discovery " two weeks or so" after the layoff, that lie had
established who had been doing the silk screening "immediately before that ," that Armour
was the only i egular full -time operator on the silk screening machine before the layoff,
and that for this reason these two employees were responsible for the defective work.
We are , however , not convinced by this evidence . Kujda at the same time testified that
while Armour was the only full -time operator on the silk screening machine , it was also
operated by a "couple of relief girls " during the lunch hour or rest periods "as the machine
had to be in motion always." The record also indicates that production on the silk screen-
ing machine continued after the layoff of Armour and Johnson , thus indicating the possi-
bility that the defective cylinders were silkscreened by an operator other than Armour.
Armour furthermore credibly testified that Kuida told her not to lose time in stopping her
machine and inspecting painting as it was Johnson 's job to examine them and clean
them, if they were imperfect Under all the circumstances , we are convinced that but
for their union membership and activities , Armour and Johnson would have been recalled
despite the alleged imperfection of their work.
POPEIL BROTHERS, INC. 1089
to replace the cadres of trained employees with new and inexperienced
help.
In reaching this conclusion we are not unmindful of the fact that
three laid-off employees, including two complainants, were rehired
by the Respondent after they applied for reinstatement. We do not,
however, attach to this circumstance a significance sufficient to over-
come otherwise preponderating evidence of discriminatory motiva-
tion. As the two complainants applied for reinstatement after the
Union filed its first amended charge, alleging the discriminatory dis-
charge of the complainants, it may be that the Respondent, having
been put on notice by the charge, thought it more expedient to refrain
from further discriminatory conduct with respect to these complain-
ants. In any event, a mere showing that an employer knowingly
refrained from discriminating against others does not excuse him from
the consequences of his conduct.7
Upon the entire record we find, contrary to the Trial Examiner,
that by failing to recall the complainants when work for them became
available, the Respondent violated Section 8 (a) (3) and (1) of the
Act.
The Remedy
Having found that the Respondent has engaged in unfair labor
practices in violation of Section 8 (a) (1) and (3) of the Act, we shall
order that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that the Respondent discriminated against Rosell
Armour, Earlean Brannon, Luberta Chase, Ardelie Dumas, Velma
Boston, Minnie Glenn, Ida Mae Johnson, Lucille Snowden, Essie
Turner (Bessie M. Turner), Annie Kent, and Maude Taylor in regard
to their hire and tenure of employment by failing to reinstate them
when work for them became available. We shall therefore order
the Respondent to offer each of the above-named employees immediate
and full reinstatement to her former or substantially equivalent posi-
tion S without prej Lidice to her seniority or other rights and privileges,
dismissing if necessary any employees hired in her place. We shall
also order the Respondent to make each of them whole for any loss
of pay she may have suffered by reason of the Respondent's discrimi-
nation against her by payment to her of a sum of money equal to that
which she would normally have earned as wages from the date of
discrimination to the date of the Respondent's offer of reinstatement
7 Textile Machine Works, Inc, 96 NLRB 1333, 1359; Pennwoven, Inc., 94 NLRB 176;
Duro Test Corporation , R1 NLRB 976
s The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
less the employee's net earnings 9 during such period. Back pay to
be computed in the manner established by the Board in F. W. Wool-
worth Company io
In accordance with our practice, the period from the date of the
Intermediate Report to the date of the Order herein will be excluded
in computing the amount of back pay due to these individuals because
of the Trial Examiner's recommendation that the complaint be dis-
missed in this respect.
The scope of the Respondent's illegal conduct as found above dis-
closes a purpose to defeat self-organization among its employees.
Because of the Respondent's unlawful conduct and its underlying
purpose, we are convinced that the unfair labor practices found are
persuasively related to other unfair labor practices proscribed and
that danger of their commission in the future is to be anticipated from
the Respondent's conduct in the past. The preventive purposes of the
Act will be thwarted unless this Order is coextensive with the threat.
In order, therefore, to make effective the interdependent guarantee of
Section 7, to prevent a recurrence of unfair labor practices and thereby
minimize industrial strife which burdens and obstructs commerce and
thus effectuate the policies of the Act, we shall order that the Re-
spondent cease and desist from in any manner infringing on the rights
guaranteed in Section 7 of the Act.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board orders that the Respondent, Popeil Brothers, Inc.,
of Chicago, Illinois, and its officers, agents, successors, and assigns,
shall:
1. Cease and desist from :
(a) Discouraging membership in Basic Processor's Union, Local
44, D. R. W. W. I. U., A. F. of L., or any other labor organization of
its employees, by discrminatorily discharging, laying off, failing or
refusing to rehire employees, or by discriminating in any other man-
ner in regard to their hire and tenure of emploment, or any term and
condition of employment.
(b) Interrogating its employees with respect to their membership
in the Union or activities in its behalf, threatening its employees with
0 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the Respondent , which would not have been incurred but for the unlawful
discrimination against him and the consequent necessity of his seeking employment
elsewhere See Crossett Lumber Company , 8 NLRB 440 . Monies received for work
performed upon Federal , State , county, municipal or other work -relief orniects shall be
considered as earnings See Republic Steel Corporation v. N. L. R . B., 311 U. S. 7.
10 See F . W. Woolworth Company, 90 NLRB 289.
POPEIL BROTHERS, INC. 1091
loss of employment or that the plant will close if the Union organizes
its employees, or in any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights to self-organiza-
tion, to form labor organizations, to join or assist Basic Processor's
Union, Local 44, D. R. W. W. I. U., A. F. of L., or any other labor
organization, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain
from any or all of such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section
8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Rosell Armour, Earlean Brannon, Luberta Chase,
Ardelie Dumas, Velma Boston, Minnie Glenn, Ida Mae Johnson,
Lucille Snowden, Essie Turner (Bessie M. Turner), Annie Kent, and
Maude Taylor, and each of them, immediate and full reinstatement to
her former or substantially equivalent position, without prejudice to
her seniority or other rights and privileges, and make them whole for
any loss of pay they may have suffered by reason of the discrimina-
tion against them, in the manner set forth in the section of this
Decision and Order entitled "The Remedy."
(b) Post at its plant in Chicago, Illinois, copies of the notice
attached hereto and marked "Appendix A." 11 Copies of said notice,
to be furnished by the Regional Director for the Thirteenth Region
shall, after being duly signed by the Respondent, be posted by it
immediately upon receipt thereof, and maintained by it for sixty (60)
consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Thirteenth Region in
writing within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply therewith.
a1 In the event that this Order is enforced by 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
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
242305-53-70
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in BASIC PROCESSOR'S
UNION, LOCAL 44, D. R. W. W. I. U., A. F. of L., or in any other
labor organization of our employees, by laying off, failing or
refusing to reinstate any of our employees, or by discriminating
in any other manner with regard to their hire or tenure of
employment, or any term or condition of employment, except to
the extent permitted by Section 8 (a) (3) of the Act.
WE WILL NOT interrogate our employees in any manner as to
their union activities, nor threaten them with loss of employment
or that we shall close the plant, or in any other manner interfere
with, restrain, or coerce our employees in the exercise of their
right to self-organization, to form labor organizations, to join
or assist BASIC PROCESSOR'S UNION, LOCAL 44, D. R. W. W. I. U.,
A. F. OF L., 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 bar-
gaining or other mutual aid or protection, or to refrain from
any or all such activities except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
AVE WILL offer the employees named below immediate and full
reinstatement to their former or substantially equivalent posi-
tions, 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 against them.
Rosell Armour
Earlean Brannon
Luberta Chase
Ardelie Dumas
Velma Boston
Minnie Glenn
Ida Mae Johnson
Lucille Snowden
Essie Turner (Bessie Al. Turner)
Annie Kent
Maude Taylor
All our employees are free to become, remain, or refrain from
becoming members of the above-named union or any other labor
organization except to the extent that this right may be affected by
an agleement in conformity with Section 8 (a) (3) of the Act.
POPEIL BROTIIERS, INC.,
Employer.
Dated ----------------------- By ----------------------------
(Representative ) , (Title)
POPEIL BROTHERS, INC. 1093
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 C'AsE
Upon a charge, a first amended charge, and a second amended charge filed
by Basic Processor's Union, Local 44, D. R. W. W. I. U., A. F. of L., herein
called the Union, the General Counsel of the National Labor Relations Board,
herein called respectively the General Counsel and the Board, through the
Regional Director for the Thirteenth Region (Chicago, Illinois), issued a com-
plaint dated May 8, 1951, against Popeil Brothers, Inc., herein called the
Respondent, alleging that the 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 Rela-
tions Act, 1947, herein called the Act. Copies of the complaint, the charge,
and the first and second amended charges upon w hick the complaint was based
together with notice of hearing thereon were served upon the Respondent
and the Union.
With respect to the unfair labor practices, the complaint, as amended at the
hearing, alleged in substance that the Respondent: (1) On or about Septem-
ber 14, 1950, discharged or laid off 13 named employees 1 and has at all times
since, failed and refused to reinstate them because they had joined and assisted
the Union and otherwise engaged in concerted activities for the purpose of col-
lective bargaining and for their mutual aid or protection; and (2) from on or
about August 1, 1950, to the date of the complaint, interrogated its employees and
applicants for employment regarding their membership in labor organizations,
including the Union, and made threats of reprisal and promises of benefits to
them in connection therewith ; interrogated its employees regarding their ac-
tivities in connection with the Union ; induced or attempted to induce certain em-
ployees to attend the meetings of the Union for the purpose of spying on the
employees and reporting such activities to the Respondent ; from on or about
September 1 to September 15, 1950, changed the working hours of its employees
without notice and caused its employees to enter and leave the plant by unac-
customed entrances in order to prevent their meeting or encountering the Union's
organizers outside the plant ; on 2 occasions assembled its employees in the plant
and distributed to them certain gifts and gratuities in order to induce them to
abandon their activities in connection with the Union; announced and put into
effect wage increases, a new vacation plan, and a new hospitalization plan in
order to interfere with and to discourage its employees' activities in connection
with the Union ; forbade its employees to engage in conversation with organ-
izers of the Union outside the plant; engaged in surveillance of its employees'
activities with the Union by inspecting its employees to determine whether or not
they were wearing union buttons or insignia in the plant; threatened certain em-
ployees with reprisals because of their activities in connection with the Union ;
and that on or about September 10, 1951, attempted by offer of benefit to induce
certain former employees not to appear and testify at the hearing in this matter
or to withhold or vary their testimony.
R Rosell Armour, Earlean Brannon , Luberta Chase, Ardelie Dumas, Velma Boston, Minnie
Glenn, Beatrice Hudson, Ida Mae Johnson, Augusta Pullen, Lucille Snowden, and Essie
Turner (Bessie M. Turner) were terminated on September 14, 1950. Annie Kent and
Maude Taylor were terminated on September 15, 1950 Augusta Pullen was rehired and
worked from November 13 to December 23, 1950, Beatrice Hudson was rehired and worked
from November 2, 1950, to February 20, 1951.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In its answer duly filed on June 14, 1951, the Respondent admitted certain al-
legations of the complaint, and denied the commission of any unfair labor prac-
tices.
Pursuant to notice, a hearing was held in Chicago, Illinois, from September 11
to September 18, 1951, inclusive, before W. Gerard Ryan, the undersigned Trial
Examiner, duly designated by the Chief Trial Examiner. All the parties partici-
pated in the hearing and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon the issues.
At the opening of the hearing, the Respondent's motion to segregate the wit-
nesses was granted, except that the Respondent was permitted to have two wit-
nesses present who could be interchangeable and the General Counsel was per-
mitted to have one witness, in addition to those who had noted appearances in
behalf of the Union. Those named in the complaint as having been discriminated
against were at no time excluded from the hearing by the Trial Examiner.
At the conclusion of the testimony, the Respondent moved for dismissal of the
complaint. That motion is disposed of in accordance with the findings and con-
clusions hereinafter set forth. All the parties were afforded an opportunity for
oral argument, to file briefs, proposed findings of fact, and conclusions of law.
The Respondent argued orally and filed a brief. The General Counsel waived
oral argument and filed a brief.
On the entire record in the case, and from my observation of the witnesses, I
make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is and at all times herein mentioned has been an Illinois
corporation with its principal office and place of business located in Chicago,
Illinois, where it manufactures or assembles plastic articles. In the course and
conduct of its business, at all times material herein, the Respondent did cause
and has continuously caused to be used raw materials such as plastics and
machine parts valued in excess of $250,000 annually, over 75 percent thereof being
transported across State lines to its Chicago factory, and did cause and has
continuously caused large quantities of products manufactured in its factory,
valued in excess of $500,000 annually, to be sold and transported across State
lines into and through States of the United States other than the State of Illinois.
The answer of the Respondent admits, and I find, that the Respondent is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Basic Processor 's Union, Local 44, D. R. W. W. I. U., A. F. of L., is a labor
organization within the meaning of Section 2 (5) of the Act'
2 In making the findings herein, I have considered and weighed the entire evidence
It would needlessly burden this Report to discuss all the testimony on disputed points.
Such testimony or other evidence as is in conflict with my findings, and is not specifically
discussed hereinafter, is not credited.
S I find no merit in the Respondent's contention that the Union was without authority'
under its constitution to represent the employees herein The Board has frequently held
that the willingness to represent the employees is controlling under the Act, not the
elieibility of em plovees to membership, nor the exact extent of the constitutional jurisdic-
tion In Modern Upholstered ('hair Company, 84 NLRB 95. where it was contended that
by its constitution the union did not have jurisdiction to organize or iepresent employees
in a furniture manufacturing plant, the Board held that it would not Inquire into a labor
organization's constitution in the absence of proof that it will not effectively represent
the employees
POPEIL BROTHERS , INC.11095
M. THE UNFAIR LABOR PRACTICES
A. The background
The union campaign commenced in August 1950, when its organizers distributed
leaflets and application cards to the employees in the vicinity of the plant, as they
went to and returned from work. These activities continued throughout August
and the first part of September. The Union also held two meetings, the first
about September 1 and the second on the evening of September 13, 1950. By that
time, virtually all the employees had joined the Union and, on September 14,
all, with the possible exception of five or six unidentified employees, wore union
buttons for the first time at work in the plant.
The Respondent early became aware of the Union's campaign to organize its
employees. In mid-August, William Wert, an organizer for the Union, called
on the Respondent's president, Samuel J. Popeil, informed him that most of
the employees had joined the Union, and left a contract with him which Wert
requested to be signed by the Respondent. The Respondent received from the
Board's Regional Office a conference notice in Case No. 13-RC-1514, dated Sep-
tember 8, 1950, which formally notified the Respondent that the Union had peti-
tioned for an election and that a meeting of the parties would be held on Sep-
tember 13, 1950, at the Regional Office. It is undisputed that at various times
prior to September 14, 1950, the Union's representatives distributed leaflets and
spoke to the Respondent's employees outside the plant and this was known to
the Respondent.
B. Supervisory hierarchy
Samuel J. Popeil is president of the Respondent and attends to matters of
general policy and the development of new merchandise, working out merchan-
dising plans which tie in with sales. Raymond Popeil, vice president, devotes
his time to all production matters and part of sales which require demonstrations
of the articles. He also has supervision of the hiring and discharging of em-
ployees and production problems. Samuel J. and Raymond Popeil are in charge
of the active management of the plant. Isbel Popeil, their father, is secretary,
and was in charge of the assemblers employed at the Erie Street plant during
the time from June to November 1950, when the Respondent had leased loft
space for the assembling of promotional merchandise, in addition to the opera-
tions carried on at the Sangamon Street plant. John Kujda is the foreman in
charge of production at the Sangamon Street plant, which is the plant directly
involved in this proceeding. Assisting Kujda were Floorladies Dorothy Ellis,
Odell Davis, Catherine Hicks, and Juanita Lee. Floorlady Ellis was the only
assistant to Kujda on the second floor at Sangamon Street and had approxi-
mately 30 employees under her supervision. Normally, she did no manual work,
except to instruct new employees or to help them when they were behind in their
work, and she was paid a higher rate than those employees whom she super-
vised. She was responsible for the flow and quality of work on the various
second floor operations. While Ellis, like the other floorladies, had no authority
to hire or fire, there is one instance in the record where Kujda hired one girl
on Ellis' recommendation without an interview and later discharged her without
an interview on her recommendation. Ellis moved employees from place to
place on different jobs, upon instructions from Kujda, and they looked to her
for instructions. Complaints about the quality of the work or the performance
of the employees were taken up directly with Ellis by Kujda or Raymond Popeil.
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that Floorlady Dorothy Ellis was a supervisor within the meaning of the
Act.'
C. Interference, restraint , and coercion
1. Interrogation and threats
Earlean Brannon was hired on August 30, 1950, after she had been referred to
the Respondent by an employment agency and interviewed by John Kujda.'
During the interview, Kujda asked if she was a member of any organization or
union and she replied in the negative. Kujda thereupon told her not to pay any
attention to "those guys standing around, because they don't mean nothing.
There is no sense in buying two jobs." Although Brannon testified that she saw
no organizers for the Union on the day she was hired, it is uncontradicted in the
record that they had been there prior thereto and Kujda had spoken to them.
Minnie Glenn was hired on August 31, 1950, and at the time Kujda interviewed
her he asked if she had ever been a union member and she replied in the
affirmative. He told her that she would see some fellows in the street passing
out leaflets but he saw no need for her to join the Union as it would be an added
expense and would be for her own benefit not to join the Union.
Bessie M. Turner was hired on August 31, 1950, and when she was interviewed
by Kujda he inquired if she had ever belonged to a union and she replied in
the affirmative. He informed her that the Union was trying to get into the
plant but he saw no reason why the girls would pay money to the Union out
of their small earnings.
Kujda not only did not deny the testimony of Brannon, Glenn, and Turner,
but admitted that he always inquired from prospective employees whether they
belonged to any organizations, including unions.
Velma Boston was hired on August 8, 1950. Later in August, she accepted
a card from an organizer for the Union outside the plant, and on her way
into the plant, she was asked by Kujda whether she had joined the Union. Later
in the morning, she was asked by Raymond Popeil if she had joined the Union.
On September 14, 1950, the day she was discharged, Boston was wearing a
union button, and while Kujda was showing her how to pack 72 tongs to a
box he remarked to her that he did not think she would do anything like
joining the Union. Later the same day, Ellis warned her to remove the button
if she wanted her job.
Lucille Snowden was hired on August 9, 1950. Early in September, she ac-
cepted a union card and a leaflet from Wert, a union organizer who was in
the alley outside the plant. Snowden signed the union card. On another later
occasion, Wert gave her a second leaflet. At that time, Raymond Popeil was
standing at the door of the plant and when she entered he asked her what
she had in her hand, if he might see it. She gave him the leaflet and proceeded
on her way to the time clock. After she had punched the time clock, Popeil
informed her the leaflet was about the Union and advised her that the Union
would offer a lot of things but would not do the things it promised ; and if
she did get a card from the Union, not to sign it. Snowden (who already
had joined the Union) replied that she would not. While Popeil denied asking
her for the leaflet, he did not deny her testimony that he told her not to sign
a union card . Approximately 1 week prior to her discharge on September 14,
* See Harrison Sheet Steel Co., 94 NLRB 81; International Association of Machinists
v. N L. it. B., 311 U. S. 72
s The Respondent usually secured its factory help from an employment agency whose
fees were paid by the employee and no part of which was paid by the Respondent.
POPEIL BROTHERS, INC. 1097
Dorothy Ellis told her to be careful and not let Raymond Popeil or "any of
them" see her signing any cards or talking to any of the union men outside.
When Snowden replied that no one could stop her from talking to those to
whom she wanted to speak, Ellis answered, "Just be careful."
The record shows that the Union held two meetings of the Respondent's
employees, the first on or about September 1 and the second on September
13, 1950. Prior to the first meeting and, again, prior to the second meeting,
Kujda asked employee Harvey Bankhead if he were going to the meetings.
Kujda, in substance, told Bankhead that Kujda could trust him and to go and
report to Kujda what happened at the meetings. Kujda admitted he ques-
tioned Bankhead to ascertain reasons for dissatisfaction among the employees
that would prompt them to join the Union, and that he asked Bankhead to
report what happened at the meetings so that if the employees ". . . want some-
thing we can concede, we would be happy to . . . but right now, I don't know
just what it is all about." The day after the first meeting, Kujda asked him
if he had gone to the meeting, who had been present, and what had happened.
Kujda told Bankhead that he (Kujda) had employees Florabelle Sanders and
Juanita Pryor at the meeting and inquired specifically if Sanders had attended.
On September 14, the day after the second union meeting, Bankhead met Kujda
and Raymond Popeil at the plant when he reported for work. They asked him
if he had attended the meeting, what had happened, and how many had attended.
Bankhead told them that half the shop had been there, he had been elected
steward, and the employees had been given union buttons to wear in the shop
that day. A short while before quitting time that same day, Kujda told
Bankhead that he better remove his union button if he wanted his job. Bankhead
removed his button and thereafter did not wear it.
The foregoing interrogations of the Respondent's employees by Kujda and
Raymond Popeil; the warnings of reprisal by Kujda and Ellis for such protected
activities as wearing union buttons in the plant ; Kujda's requests to Bankhead
to attend union meetings and report what occurred, coupled with Kujda's
statement he had informants planted at the meetings, were all acts of inter-
ference, restraint, and coercion, constituting violations of Section 8 (a) (1)
of the Act, and I so find.
A few days before she was discharged on September 14, 1950, employee Lucille
Snowden was filing papers at her table on the first floor of the plant when she
overheard Raymond Popeil tell Kujda he would close the whole plant rather than
have a unions Notwithstanding that the expression of such a threat was made
by a company official to its supervisor, the fact that it was made within 5 feet of
an employee and within her hearing during working hours leads to the conclusion
that it was intended for her ears and, therefore, I find that it constituted inter-
ference, restraint, and coercion, violative of Section 8 (a) (1) of the Act.
2. The wage increase and other benefits
The complaint alleged , and the answer denied, that the Respondent on two
occasions assembled its employees in the plant and distributed to them certain
gifts and gratuities in order to induce them to abandon their activities in connec-
tion with the Union . The record shows that those two occasions took place,
about 1 week apart, between the time of the first union meeting and September
14, 1950, when Kujda assembled the employees a few minutes before quitting
time and discussed production , the possibilities of a wage increase and hospital
benefits, and at the end of each meeting presented all the girls with an article
d After that statement, Popeil returned to his office and Kujda walked toward the back
of the plant.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of merchandise made by the Respondent. While nothing was said with refer-
ence to the Union at either meeting, and there is evidence that such g:fts had
been made before to employees, the conclusion is inescapable to me that present-
ing such gifts at those times was part of the Respondent's plan to wean its
employees from the Union, thereby constituting interference, restraint, and
coercion violative of Section 8 (a) (1) of the act, and I so find.
Early in the Union's organizing activities, Raymond Popeil asked Dorothy Ellis
if she would tell the girls not to join the Union. When she replied that she would
rather not, Popeil told her the Respondent would give the girls an increase in
pay and a hospital plan "so there wouldn't be any need for the Union to get in."
On September 16, 1950, he announced to the employees that there would be a
wage increase and the increase was given to them in the week ending September
23, 1950. That was the only general wage increase ever given in the plant.
The Respondent eventually put into effect a hospitalization plan for its employees.
The Respondent contends that the wage increase was arrived at because wages
throughout the country were increasing after the beginning of the Korean War.
It cannot be disputed that, as a matter of common knowledge, wages in general
have increased since June 1950, and it is also well known that other benefits,
including hospitalization benefits, have been granted and continue to be granted
in many collective-bargaining agreements. The Respondent argues that its
wage increase and hospital plan were in accord with the general trend in indus-
try ; that it was a matter only of coincidence that they were arrived at during the
time of the Union's organizational activity, and consequently it should not be
charged with an unfair labor practice in doing what many other employers were
doing throughout that time. Upon consideration of all the evidence, it appears
that the decision to announce and make effective the wage increase and hospital
benefits was not arrived at until after, and as a result of, the onset of the Union's
organizational efforts and were put into effect to neutralize, if possible, the effect
of the campaign to organize the employees. This is clearly disclosed by the
promise to Ellis by Popeil, above set forth, and the statement by Kujda to Bank-
head, as testified to by Kujda, that at the time of the first union meeting he asked
Bankhead to report back to him what the employees wanted so that if the
employees "want something we can concede, we would be happy to . .. " Within
2 weeks from that union meeting, the Respondent promised its employees a wage
increase and hospital benefits, which later became effective. In the circum-
stances of this case, in view of the Respondent's knowledge of current efforts to
organize a union and of the other concerted activities among its employees re-
ferred to herein, I find the announcing and granting of the wage increase and
hospital plan by the Respondent were intended and so timed as reasonably to
have the effect of discouraging organizational activities of its employees thereby
constituting interference, restraint, and coercion, in violation of Section 8 (a) (1)
of the Act.
3. Other acts of interference, restraint, and coercion
The complaint alleged that between September 1 and September 15, 1950, the
Respondent continuously changed the hours of its employees without notice and
caused its employees to enter and leave the plant by unaccustomed entrances
in order to prevent their meeting or encountering the Union's organizers outside
the plant. In its answer, the Respondent denied the allegation as stated in the
complaint and asserted the fact to be that it changed the hours of employment
and gave its employees the opportunity to use various entrances and exits so
1 A grater was given at the first meeting and a tongs was given at the second occasion.
POPEIL BROTHERS, INC . 1099
that they could avoid violence at the hands of union agents. The record shows
that on one occasion the employees were sent home an hour early, and on 2
days, worked 1 hour late, and that the side door which was the usual exit was
closed and the employees were directed to use other exits not theretofore used.
Employee Rosell Armour was sent out the front door once and told by Kujda to
say nothing if the union organizer was outside the plant but just to keep on
walking. Another time, she was sent out the back door and told by Kujda to
use a street car on a nearby street. Since such acts by the Respondent were
intended to prevent contact by its employees with union organizers during
nonworking hours, the question is presented whether the Respondent's asserted
motive to safeguard them from harm at the hands of union organizers is sufiiAeut
to excuse such interference. I think not. The Respondent's action in directing
the use of other exits and the change in employment hours is nevertheless
unlawful interference, restraint, and coercion with the rights of its employees
to meet the union representatives upon entering and leaving the plant and cannot
be excused because the Respondent may have thought it was acting for the
employees' best interests in protecting them from real or imagined harm. To
hold otherwise would permit an employer to police his employees' activities,
outside working hours, to a degree depending on what he might think best
for the employees' own interests. I accordingly find that such acts on the part
of the Respondent were violative of the provisions of Section 8 (a) (1) of the Act.
In support of the allegation in the complaint that the Respondent engaged in
surveillance of its employees' activities with the Union by inspecting its employees
to determine whether or not they were wearing union buttons or insignia in
the plant, the General Counsel introduced testimony that on September 14, 1950,
Kujda and Raymond and Samuel Popeil went to the second floor of the plant,
where most if not all , employees were wearing union buttons for the first time.
Harvey Bankhead testified that Kujda and the Popeils were "marching" up
and down, looking at everyone but not saying anything . Other testimony is
that the three were "huddled " together , talking among themselves . Raymond
Popeil testified that he went to the second floor about six times that day to
look over the scene of the proposed work that was to be started that day with
respect to the installation of the chute and the conveyor belts and tables. Ellis
testified that she saw nothing unusual in Kujda and the Popeils being present
together on the second floor that day. Since the Respondent had decided to
begin its renovations or remodeling on September 14, their presence on the scene
of the proposed work might reasonably be expected . They had been told before-
hand that all the employees throughout the plant would be wearing union
buttons. A glance in any direction on the second floor would encompass. the
girls and the buttons . To construe a situation , where it was reasonable and
likely to have found Kujda and the Popeils and where they might be expected
to walk up, down , and around in order to see what was going to be done in
order to get the work of remodeling started , into an act of surveillance is un-
warranted in my opinion . Since anyone coming into their range of vision had
to be seen , it was not necessary to "inspect" them to see who was and who was
not wearing union buttons. I find the evidence is insufficient to support such
allegation of surveillance and I shall recommend that to that extent the complaint
be dismissed.
The complaint , as amended at the hearing , alleged that on or about September
10, 1951, the Respondent attempted by offer of benefit to induce certain former
employees not to appear and testify at the bearing or to withhold or vary their
testimony . The General Counsel introduced the testimony of Harvey Bankhead
and Dorothy Ellis to prove such allegation . In substance , they testified that the
night before the hearing , Kujda visited each at his and her home and discussed
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hearing which was to be held the next day. Not only does the testimony
of Bankhead and Ellis fail to prove that Kujda attempted to induce them not to
appear and testify or to withhold or vary their testimony, but such testimony
wholly proves that he did no such thing. It affirmatively proves that he insisted
that they attend the hearing and requested them only to tell the truth. I find
the evidence to he insufficient to sustain such allegation and I shall recommend
that the complaint, to that extent, be dismissed.
D. The alleged discriminatory discharges
The complaint alleged that on or about September 14, 1950, the Respondent
discriminatorily laid off or discharged 13 employees and has, at all times since,
failed or refused to reinstate them.' The answer admitted that the employees
were terminated but denied that such terminations were discriminatory. It was
stipulated at the hearing that 11 of those named in the complaint were dis-
charged on September 14, and 2 (Annie Kent and Maude Taylor) were dis-
charged on September 15, 1950. It was further stipulated that Augusta Pullen
was rehired and worked from November 13 to December 23, 1950, and Beatrice
Hudson was rehired and worked from November 21, 1950, to February 20, 1951.
In the spring of 1950, the Respondent decided to remodel or renovate its
Sangamon Street plant. The changes contemplated and carried out consisted
of the installation of a chute from the middle of the second floor and several
automatic conveyors. Five conveyor belts and tables, 20 feet long, were ordered
by the Respondent on July 7, 1950, received during the latter part of July, and
paid for on July 29, 1950. Prior to September 14, 2 conveyors were set up on
the first floor for testing and trial runs. Time- and motion-studies were run
on them and the motors adjusted to proper speeds. Anticipating an impending
plastic shortage, the Respondent decided in the spring of 1950 to build up its
inventory on all items. The acquisition of inventory was continued throughout
the summer. In the latter part of June 1950, the Respondent began to imprint
designs on its flour sifters by a silk screen machine and discontinued its former
practice of affixing labels to the sifters. One of the reasons for the decision to
substitute automatic conveyor belts and tables for the stationary tables was that
the parts when pushed down the table from girl to girl would bump against one
another before the glue had dried sufficiently which resulted in a faulty product.
After the silk screen machine method of imprinting the design on the sifters
was started, freshly imprinted tubes were smeared when placed on the stationary
table and shoved down the line, all of which resulted in a large number of
sifters being returned by customers as defective . In 1 month alone there were
approximately 1,500 dozen large sifters returned . Sifters thus returned were
not all found to be defective. Customers who found defective sifters in a carton
would return the entire carton, thus requiring the Respondent to sort the good
and bad sifters, which was an expensive procedure in time and money. Thus,
8 The original charge was filed on September 1 and served on September 2, 1950; the
first amended charge was filed on September 15 and served on September 16, 1950; the
second amended charge was filed on March 15 and served on March 17, 1951 . The com-
plaint did not include anyone referred to in the original charge , nor did it include Nina
Snell and Tabitha Williams who were named in the first and second amended charges,
nor Mary Long and Estelle McGee who were named in the second amended charge. The
complaint did include Annie Kent, Luberta Chase, Maude Taylor, and Bessie Turner
who were named for the first time in the second amended charge. (The Respondent's
motion to strike from the complaint the names of Kent, Chase , Taylor, and Turner on the
ground that the service of the second amended charge on March 17 , 1951, was not timely
and therefore the issuing of a complaint containing their names is contrary to the proviso
of Section 10 (b) of the Act was denied at the hearing.
POPEIL BROTHERS, INC. 1101
for the foregoing reasons, the Respondent decided to shut down the large sifter
assembly line during the progress of the renovation of the plant. On September
13, 1950, the Respondent decided on the basis of its then inventory of large
sifters and because of the congestion in the plant caused by the storage of
accumulated inventory of other items to begin the work of renovation and to
shut down the large sifter line.'
After working hours on the evening of September 13, Raymond Popeil directed
Kujda to shut down the large sifter line and start the renovation, which, it
was estimated, would take 5 or 6 weeks for completion. Kujda reminded
Popeil that all the girls would be reporting for work the next day, so Popeil
told him to let the girls have the next day's production and then make the neces-
sary reductions in force. The reduction in force was necessary for two reasons-
the shutdown of the large sifter line and to have sufficient space in which to begin
and cam out the ,vork of remodeling. Accordingly, I find that the Respondent's
decision to make improvements in the plant and its decision to begin such work
on September 14 was based on legitimate business reasons, neither arrived at
nor precipitated by the fact that the Union was in the midst of its campaign
to organize the Respondent's employees.
While the decision to reduce its working force was based on economic reasons,
it remains to he decided whether the selection of those employees who were
terminated nucy have been made on a discriminatory basis. The labor turnover
on the Respondent's payroll was high. From June 24 to the week ending Sep-
tember 9, 1950, 97 females 10 were hired and 61 were terminated. In the week
ending September 2, 31 were hired and 23 were terminated ; in the week ending
September 9, 10 were hired and 5 were terminated. No claim is made that any
of the foregoing terminations was discriminatory. In the week ending Septem-
ber 16, which is the week directly involved in this proceeding, no one was hired
and there were 21 terminations, of which 13 are alleged herein to have been
made on a discriminatory basis.
On the morning of September 14, before work started, Kujda made a partial
list of the girls to be terminated, but since he did not know all the names, he
asked Ellis to complete the list for him 11 When the pay checks had been pre-
pared for those to be terminated, Kujda assembled them and announced that
it would be necessary to lay them off because he needed working space to renovate
the plant; that they could keep in touch with him if they felt like it as he did not
know how long the plant would be torn up because of the changes to be made and
that they should find themselves jobs in the meantime. One of the girls asked
him how long it would be and he suggested that she telephone him in a couple
of weeks and he would have a better idea of the work progress at that time.
Kujda alone made the decision selecting the employees to be terminated. Ray-
'Prior to September 14, 1 table at which 11 girls worked was in use for the assembly
of large sifters, and 1 table was in use for the assembly of small sifters. Beginning
September 14, the table for the assembly of large sifters was removed.
Employees worked interchangeably on different assembly lines, as needed. At no time,
even prior to September 14, did all the assembly lines on all items operate at 100 percent
production at the same time.
10 This case concerns only the employees who were assemblers, all of whom were females
'1 The General Counsel emphasizes the point that it was not necessary for Kulda to
make such a list as the office had a record of the names, addresses, social security numbers,
and length of time each employee had been there I do not consider the fact that such
information was available at the office to be of much weight in ascribing an improper
motive to Kujda for making his own list Since he did not know the names of all the
girls, his problem was one of identity, which the office record would not supply 1 do
not credit that part of Ellis' testimony that she was asked by Kujda to give hun, a list
of those who were talking "union" that day ; in any event, she did not give it to him.
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mond Popeil took no part, leaving the decision entirely to Kujda ; and Kujda
did not consult with Ellis. In view of the fact that virtually all of the em-
ployees wore union buttons in the plant for the first time on September 14,
it is clear that the selection of those to be terminated could not be on the basis
of who was or was not wearing the buttons." It is therefore necessary to
examine each case on its merits in the light of the entire record to ascertain
if there were any particular acts of union activity known to the Respondent on
the part of those discharged which would particularly single them out for dis-
criminatory treatment by the Respondent in the selection of those to be
terminated.
Rosell Armour was hired on July 24, 1950, and was assigned to perform the
silk screening operations. She also assembled sifters and worked on the first
floor but, for the most part, did the silk screening job. She was given a union
card by a union organizer which she later signed and mailed to the Union. She
attended union meetings and was steward for the silk screen employees. There
is no evidence in the record that the Respondent had knowledge that she had
joined the Union, attended meetings, or was a union steward. She wore a union
button for the first time on September 14, the day she was discharged. On that
day, just before starting work, Ellis said to her "Rose, I want you to do the best
you can today. Do as much as you can because John is going to let all the girls
go that have a Union button. Do all you can."
Velma Boston was hired on August 8. 19 50, and was assigned to bending
agitators for flour sifters. During her employment, she also packed tongs,
worked on doughnut labels, and on the riveting machine. On September 14, the
day of her discharge, she was bending agitators for the flour sifters and also
working on the doughnut maker. While her regular job for the most part was
bending agitators on the large flour sifter, from time to time she was moved to
other work as it was necessary. Sometime during the last 2 weeks of August,
she joined the Union and attended the 2 meetings of the Union which were held
on or about September 1 and on September 13. She had accepted an application
card from a union organizer on her way into the plant which she afterwards
signed and mailed to the Union. On the day she accepted the card from the
union representative, she was asked by Kujda if she had joined the Union and
replied that she had not. She was asked by Raymond Popeil, later in the day,
if she had joined the Union, but the record fails to show what her reply was to
him. She wore a union button on September 14, and while Kujda was showing
her how to pack 72 tongs to a box, he looked at her and remarked that he did not
think she would do anything like joining the Union. Later Ellis sent her upstairs
where she bent agitators and worked on the doughnut makers. While on her way
upstairs, Ellis remarked to her that if she wanted to hold her job she better
take off her union button. Boston replied that everyone else was wearing a
button and she would keep hers on. Apart from wearing a union button with
the other employees on September 14, there is no evidence that the Respondent
knew she had joined the Union or took part in its activities.
Earlean Brannon was hired on August 30, 1950, and after an interview with
Knjda was hired as a punch press operator. During the interview, Kujda
asked her if she was a member of the Union or any organization and she replied
that she was not. He told her not to pay any attention to those guys standing
around, because "they don't mean nothing" and there was no sense in buying
two jobs. Her only union activity as far as the record shows is that she signed a
union card which Harvey Bankhead had given her and went to two union
12 Most of the witnesses testified that all the employees were wearing buttons. One
testified that possibly five or six (not identified ) did not wear them.
POPEIL BROTHERS, INC. 1103
meetings. She wore a union button on September 14, the day of her discharge.
She testified that all the girls on the second floor of the plant also wore union
buttons that day. Apart from wearing a union button on September 14, there
is no evidence that the Respondent had knowledge of her union membership or
activities.
Minnie Glenn was hired on August 31, 1950, after she was interviewed by
Kujda who asked her if she had ever been a member of a union and she replied
that she had. He told her she would see some fellows in the street, passing out
leaflets, but he saw no need for her to join the Union as it would be an added
expense and would be for her own benefit not to join. She was first assigned to
work on the first floor on the riveting machine ; but after working there one-half
day, she was assigned upstairs to work on small sifters. Besides her work on
small sifters, she also worked on cookie presses (all of which was assembly
work) and packed cartons. After she-was hired, she joined the Union and
attended one meeting. The record fails to show that the Respondent had any
knowledge of her membership in the Union or attendance at the meeting. On
September 14, she had been told to work on sifter repairs and wore a union
button for the first time. She testified that on that day nearly everyone, with
possibly one or two exceptions, wore union buttons.
Beatrice Hudson was hired on August 23, 1950, and was assigned to the air
press machine which pressed the bottom in small sifters. While most of her
work was on small sifters, she also worked bending agitators on the large sifters.
On September 14, when she was discharged, she was pressing bottoms in small
sifters. Her union activities consisted of accepting a card from a union repre-
sentative in the alley adjacent to the plant which she afterwards signed and
mailed to the Union and wearing a union button in the plant on September 14,
the day of her discharge. There is no evidence in the record that the Respondent
knew of her union membership, apart from the fact that, like the others, she
wore a union button. She thereafter applied for work and was rehired. She
worked from November 21, 1950, to February 20, 1951.
Ida Mae Johnson was hired on June 29, 1950. The first work to which she
was assigned was to unpack cannister sets from boxes and set the cannisters on
a table. She had no special job ; at times, she put labels on tongs and inserted
springs in tongs. Her last job was working with Rosell Armour who imprinted
flower designs on the large sifters. Johnson's work was to separate any defective
work done by Armour so that only tubes properly imprinted would be packed
in the cartons for shipment's Johnson joined the Union but does not know when
She accepted a card from a union organizer outside the plant which sometime
later she signed and mailed to the Union. She also attended a union meeting
and wore a union button on September 14, the day she was discharged. Apart
from wearing a union button on September 14, there is no evidence that the
Respondent knew she had joined the Union or attended one meeting.
Lucille Snowden was hired on August 9, 1950, and assigned to drilling holes in
sifter handles. Later, she "checked returns" on the second floor, which meant
that she separated the good from the bad of the sifters, slicers, and doughnut
makers that had been returned as defective by customers. On some, the handle
would not work ; on some, the plastic was broken so that the body of the sifter
became loose from the bottom because it had not been properly cemented together.
Sometime after she was hired she was asked by Kujda if she had ever done office
Ps After her discharge, the Respondent discovered that Johnson had passed many sifters
that had not been properly imprinted by Armour and for that reason the Respendent new
contends that it refuses to rehire Johnson
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work and she told him she could type." She then typed addresses on envelopes
for advertising literature and addressed labels for cartons, which she did part of
every day thereafter. After she had joined the Union, she was given a leaflet
from a union organizer outside the plant. Upon entering the plant , Raymond
Popeil asked her what she had in her hand and she gave it to him when he asked
to see it. When she returned from punching the time clock, Popeil told her the
pamphlet was about the Union ; that if she got a card from the Union not to sign
it and she told him that she would not. Her union activities consisted of obtain-
ing signed membership cards for the Union and attending meetings . She was
assistant steward to Harvey Bankhead. A week or so before her discharge on
September 14, 1950, Ellis told her to be careful and not to let Raymond Popeil or
"the others" see her signing cards or talking to the union representative outside;
whereupon Snowden told Ellis no one could stop her talking to anyone to whom
she wished to talk. On the day of her discharge, Ellis told the girls "I want you
girls to be careful, because I do believe that you are all going to be laid off because
you are all wearing the union button and don't tell anyone that I told you "
Snowden, like the others, was wearing a union button that day for the first time.
Snowden testified that practically the whole plant, except five or six, wore union
buttons that day. On the day she was discharged she had done no clerical work,
but had worked on the assembly line with Ellis. Apart from the fact that she
wore a union button on September 14, there is no evidence in the record that the
Respondent had any knowledge that she was a member of the Union or active
in its behalf.
Bessie Turner" was hired on August 31, 1950, after Kujda had interviewed her
and asked if she had ever been a member of a union. She informed him that
formerly she had been a member of a union and was told by Kujda that the Union
was trying to organize the plant but he did not see why the girls would pay out
money to the Union, as jcbs were plentiful. She was then assigned to putting
handles on the large sifters ; and, while there, also put handles on small shifters,
and put tops on cookie presses. On September 14, the (lay of her discharge, she
worked on large and small shifters. The only evidence of union activity on her
part is that she joined the Union at the request of Harvey Bankhead The record
does not show that she wore a union button on September 14, the day of her
discharge, although, since she was a member of the Union, it is probable that she
did. There is no evidence that the Respondent had any knowledge that she had
joined the Union.
The remaining five complainants, Annie Kent, Luberta Chase, Augusta Pullen,
Maude Taylor, and Ardelie Dumas, did not testify. The only evidence of their
union membership or activities is found in the testimony of Harvey Bankhead
who, shown a copy of the complaint, stated that all those named as complainants
therein were present at union meetings, and the testimony of Ola Mae Hart that
she saw Kent, Chase, Pullen, and Taylor at an early union meeting."
f' Snowden's memory for dates is not reliahle She could not remember whether she was
hired before or after Labor Dav ; on direct examination , she testified that 3 or 4 days after
she was hired she began to type but on cross-examination admitted that she did not know
when it waa she began to do such clerical work
Pr The complaint was amended at the hearing to read in paragraph 5 "Bessie May
Turner" instead of "Essie Turner."
ie Harvey Bankhead, probably the most active of the employees, who by his own testi-
mony signed nearly everyone in the plant for the Union , and known to the Respondent
to be a union steward, was not discharged. Ola Mae Hart also was a member of the
Union and a steward. She was not discharged although there is no evidence in the record
to show that the Respondent had any knowledge of her union membership or activities
POPEIL BROTHERS, INC. 1105
After the terminations on September 14, the work of remodeling the plant
progressed. On September 14, some of the flooring of the second floor was ripped
up as the first step in the construction of the chute." For a while, the chute was
of wood, consisting of boards fastened together as an inclined plane, on which the
finished merchandise descended to the first floor. The opening of the chute was
temporarily protected by barrels. Such a chute so constructed proving unsatis-
factory, the Respondent decided to make a metal chute of compound curved design
which would slow down the merchandise on its way to the first floor and, on
September 25, ordered three sheets of 18-gauge steel which was received on Sep-
tember 28 for the construction of the metal chute. After September 14, and after
some delay, two conveyors were set up on the second floor, having first been tried
in several experimental positions. The delay was caused in getting the conveyors
to the second floor. At first it had been thought they could be raised through
the hole made for the chute. Since that proved impracticable, the 20-foot con-
veyor frames were finally cut to 10-foot lengths and taken up in the elevator.
The first frames were cut manually by breaking the welds in the center of each
conveyor with a chisel ; but the latter conveyors were cut with an acetylene torch.
The Respondent was billed for the acetylene work on September 26 By the early
part of November 1950, the Respondent was back to normal operations, although
five additional conveyors had been ordered, some of which were cut in half for
transfer to the second floor on December 18, 1950. The work of installing the
later conveyors did not produce the dislocation which the earlier ones did because
of the experience gained with the first ones."
In the week ending September 23, the Respondent hired 3 employees and termi-
nated 2; for the following 3 weeks, no one was hired, and 2 were terminated. In
the weeks ending October 21, 1 was hired and 3 terminated ; November 4, 1 hired,
1 terminated ; November 11, 1 hired, 1 terminated Not until the week ending
November 18 was hiring on a larger scale resumed when 11 were hired (and 1
terminated). On November 25, 5 were hired and 2 were terminated; and for the
week ending December 2, 14 were hired and 2 terminated. Such a record cor-
roborates the Respondent's contention that during the period from the middle of
September until the middle of November, the operations of the plant were cur-
tailed. While the fact that a number of vacancies, more than sufficient to take
care of the discharged complainants, occurred and were filled may be suggestive
of discriminatory motivation, I do not regard it as conclusive on the issue, in view
of the fact that the complainants were told in substance to get other jobs during
the indefinite time needed for the remodeling of the plant and to keep in touch with
Kujda if they were interested in coming back; and, finally, that the only 3 who did
follow up Kujda's suggestion were rehired by the Respondent"
Upon consideration of all the evidence. and on the basis of the entire record, I
find that the General Counsel has fallen `o prove by the required preponderance
of evidence that the Respondent violated Section 8 (a) (3) of the Act by dis-
criminatorily discharging Annie Kent. Rosell Armour, Earlean Brannon, Luberta
Chase, Ardelie Dumas, Velma Boston, Minnie Glenn, Beatrice Hudson, Ida Mae
Johnson, Augusta Pullen, Lucille Snowden, Maude Taylor, and Bessie Mae
Turner, and thereafter refusing to reinstate them. I shall therefore recommend
that the complaint in that respect be dismissed.
11 The wooden chute took about 8 days to con,truct
18Bujda testified that in November it took 12 to 16 hours to install one conve3or
compared to 2 weeks on the first one in the summer
39 Augusta Pullen and Beatrice Hudson, as already shown, and Tabitha Williams, who
was named in the first and second amended ch'irges but not in the complaint.
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
I find that the activities of the Respondent set forth in section III, above,
occurring in connection with the operations of the Respondent described in sec-
tion I, above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States, and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since I have found that the Respondent has engaged in unfair labor practices
violative of Section 8 (a) (1) of the Act, I shall recommend that the Respondent
cease and desist therefrom and take certain affirmative action designed to effec-
tuate the policies of the Act.
The scope of the Respondent's illegal conduct as found above discloses a
purpose to defeat self-organization among its employees. Because of the Respon-
dent's unlawful conduct and its underlying purpose, I am convinced that the
unfair labor practices found are persuasively related to the other unfair labor
practices proscribed and that danger of their commission in the future is to be
anticipated from the Respondent's conduct in the past. The preventive purposes
of the Act will be thwarted unless the recommendations are coextensive with the
threat. In order, therefore, to make effective the interdependent guarantee of
Section 7, to prevent a recurrence of unfair labor practices and thereby minimize
industrial strife which burdens and obstructs commerce and thus effectuate the
policies of the Act, I shall recommend that the Respondent cease and desist from
in any manner infringing on the rights guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. Basic Processor's Union, Local 44, D. R. W. W. I. U., A. F. of L., is a labor
organization within the meaning of the Act.
2 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.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
4. The Respondent did not engage in surveillance of its employees' activities
with the Union by inspecting its employees to determine whether or not they
were wearing union buttons in the plant.
5. The Respondent has not attempted by offer of benefit to induce certain
former employees not to appear and testify at the hearing in this matter or to
withhold or vary their testimony.
6. The Respondent has not discriminated as to the hire and tenure of em-
ployment of Annie Kent, Rosell Armour, Earlean Brannon, Luberta Chase,
Ardelie Dumas, Velma Boston, Minnie Glenn, Beatrice Hudson, Ida Mae John-
son, Augusta Pullen, Lucille Snowden, Maude Taylor, and Bessie M. Turner.
[Recommendations omitted from publication in this volume.