Richards and Associates

National Labor Relations Board - Board Decisions

Sep 30, 1954

110 N.L.R.B. 132 (N.L.R.B. 1954)

132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
HARVEY B. RICHARDS D/B/A RICHARDS AND ASSOCIATES and AMERICAN
FEDERATION OF LABOR. Case No. 10-CA-1806. September 30, 1954
Decision and Order
On April 7, 1954, Trial Examiner Herbert Silberman issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that he cease and-desist therefrom:. and
take certain affirmative action, as set forth in the copy of the Interme-
diate Report attached hereto. The Trial Examiner further found that
Respondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal of those allega-
tions. Thereafter, Respondent filed exceptions to the Intermediate
Report and a supporting brief.
The Board has reviewed the rulings by the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, with the following modifications :
We find, for the reasons fully detailed in the Intermediate Report,
that Respondent violated Section 8 (a) (1) by his speech on Septem-
ber 14, 1953, and violated Section 8 (a) (3) and (1) by the layoffs of
employees Reed, Johnson, Brown, Worrell, and Parker between Sep-
tember 11 and 15, 1953. In the context of these unfair labor prac-
tices, we further find, as did the Trial Examiner, that Respondent's
polling his employees as to their union sentiments on September 29,
1953, was violative of Section 8 (a) (1).'
We find it unnecessary to pass upon whether Respondent also vio-
lated Section 8 (a) (1) by Superintendent Drenk's alleged interroga-
tion of employee Wilson, in view of our agreement with the Trial
Examiner that Respondent's other conduct, referred to above, vio-
lated this Section of the Act.
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Harvey B. Richards d/b/a
1 See New Hyden Coal Company , 108 NLRB 1 145 We are not to be taken as adopting
the Trial Examiner's reasoning concerning The IValmac Company ( lladio Station KMAC
S FM Station KISS ), 106 NLRB 1355 , which is clearly distinguishable in its facts
Respondent excepts to the Trial Examiner 's rejection of a union bulletin which refers
among other things to a future election at the plant , and submitted an alleged copy We
do not pass upon the propriety of the Trial Examiner 's ruling because the exhibit , even if-
properly admissible , would not alter our determination herein
110 NLRB No. 23.
RICHARDS AND ASSOCIATES 133
Richards and Associates, Fort Myers, Florida, his agents, successors,
and assigns , shall :
1. Cease and desist from :
(a) Discouraging membership in American Federation of Labor,
or in any 'other labor organization of his employees, by discriminat-
ing in regard to their hire or tenure of employment, or any term or
condition of employment, because of their membership in, or activity
on behalf of, any such labor organization.
(b) Interrogating his employees by conducting polls as to their
union wishes in a manner constituting interference, restraint, or co-,
,ercion in violation of Section 8 (a) (1).
(c) Threatening employees with reprisals in the event of union
organization.
(d) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist American Federation of
Labor, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, 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 Wilma Reed, Mildred Johnson, Lavina M. Brown,
Marie Worrell, and Betty Parker immediate and full reinstatement to
her former or substantially equivalent position without prejudice to
her seniority or other rights and privileges, and make her whole in
the manner set forth in section of the Intermediate Report entitled
The Remedy," for any loss of earnings she may have suffered by
reason of respondent's discrimination against her.
(b) Upon request make available to the Board or its agents, for
examination and copying, all payroll records, social-security payment
records, timecards, personnel records and reports, and all other rec-
Words necessary to analyze the amount of back pay due and the right
of reinstatement under the terms of this Decision and Order.
(c) Post at his plant in Fort Myers, Florida, copies of the notice
attached hereto marked "Appendix." 2 Copies of said notice, to be
furnished by the Regional Director for the Tenth Region, shall, after
being duly signed by Respondent's representative, be posted by the
Respondent immediately upon receipt thereof and maintained by him
2In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words, "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for a period of sixty (60) consecutive days thereafter in conspicuous.
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for the Tenth Region, in`vvr`iting,.
within ten (10) days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it
alleges that Respondent engaged in other conduct violative of the-
Act.
MEMBERS MuRDOCii and RODGERS took no part in the consideration
of the above Decision and Order.
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, I hereby notify my employees that :
I WILL NOT discourage membership in American Federation of
Labor, or in any other labor organization of my employees, by
discriminating in regard to their hire or tenure of employment,
or any term or condition of employment, because of their member-
ship in, or activity on behalf of, any such labor organization.
I WILL NOT interrogate my employees by conducting polls as
to their union wishes in a manner constituting interference, re-
straint, or coercion in violation of Section 8 (a) (1).
I WILL NOT threaten my employees with reprisals in the event
of union organization.
I WILL NOT in any other manner interfere with, restrain,'or
coerce my employees in the exercise of their rights to self-organ-
ization, to form, join, or assist American Federation of Labor,,
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all
such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as
a condition of employment as authorized in Section 8 (a) (3) of
the National Labor Relations Act.
I WILL offer to the following employees immediate and full
reinstatement to their former or substantially equivalent position,
without prejudice to their seniority or other rights and privileges
RICHARDS AND ASSOCIATES 135
previously enjoyed, and make them whole for any loss of pay
suffered by them as a result of the discrimination against them :
Wilma Reed Lavina M. Brown
Mildred Johnson Marie Worrell
Betty Parker
kI''F^my employees are free to become, or refrain from becoming or
remaining , members of the above -named Union or any other labor or-
ganization , except to the extent that this right may be affected by an
agreement in conformity with Section 8 (a) (3) of the Act.
HARVEY B. RCCHARDS D/B/A RIcit .1RDS AND ASSOCIATES,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Upon a charge filed by American Federation of Labor, herein referred to as the
Union, the General Counsel of the National Labor Relations Board, by the Regional
Director for the Tenth Region (Atlanta, Georgia), on October 19, 1953, issued a
complaint against the Respondent, Harvey B. Richards d/b/a Richards and Asso-
ciates, 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 National Labor Relations Act, 61 Stat. 136, herein called
the Act. Copies of the charge, complaint, and notice of hearing were duly served
upon the parties.
With respect to the unfair labor practices, the complaint alleges, in substance, that
the Respondent: (1) On various dates between September 11 and 15, 1953, dis-
criminatorily discharged and thereafter has failed and refused to reinstate Ruby
Harris, Mildred Johnson, Wilma Reed, Lavina M. Brown, Betty Parker, and Marie
Worrell, in violation of Section 8 (a) (1) and (3) of the Act; and (2) during
September 1953, by various acts set forth in the complaint, has interfered with, re-
strained,=and coerced his employees in the exercise of the rights guaranteed them in
Section 7 of the Act, in violation of Section 8 (a) (1) thereof. Respondent in his
answer, verified October 26, 1953, denied that he had engaged in any unfair labor
practices in violation of the Act.
Pursuant to notice, a hearing was held at Fort Myers, Florida, beginning on
December 7, 1953, and concluded on December 11, 1953, before Herbert Silber-
man, the undersigned Trial Examiner. The General Counsel and Respondent were
represented by counsel and the Union by an official representative. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence
pertinent to the issues was afforded all parties. At the conclusion of the General
Counsel's case, Respondent moved to dismiss the entire complaint. This motion was
denied. Respondent thereupon moved to dismiss various paragraphs of the com-
plaint. These separate motions were denied except that decision was reserved with
respect to Respondent's motion to dismiss paragraph numbered 10 of the complaint.
At the conclusion of the entire case, Respondent renewed his motions to dismiss
the entire complaint and various paragraphs thereof. Decision on these motions
was reserved and they are now disposed of in accordance with the findings of fact
and conclusions of law made below. All parties were granted opportunity to pre-
sent oral argument and to file briefs and proposed findings of fact and conclusions
of law with the undersigned. A brief was filed by the General Counsel and a brief
together with proposed findings and conclusions were filed by Respondent. Respond-
ent's proposed findings and conclusions have been carefully considered and are
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accepted or rejected to the extent indicated by the findings of fact and conclusions
of law made below.
Upon the entire record in the case, and from :ny observation of the demeanor of
the witnesses, 1 make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Harvey B. Richards d/b/a Richards and Associates, is engaged,
at his plant located in Fort Myers, Florida, in the manufacture and sale of raincoats,
overshoes, and other products fabricated from plastic materials. During the 12
months ending October 1, 1953, which period is representative of all times material
herein, the Respondent purchased raw materials, equipment, and supplies which value
exceeded $350,000 and which products were shipped to Respondent's plant from
points outside the State of Florida During the same period Respondent sold to
customers engaged in business outside the State of Florida finished products which
value exceeded $450,000 and which products were shipped from Respondent's plant
in Fort Myers to points outside the State of Florida. Respondent admits that he is
engaged in commerce within the meaning of the Act.
11. THE LABOR ORGANIZATION INVOLVED
American Federation of Labor is a labor organization within the meaning of
Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
Early in September 1953, Lavina M Brown and some other employees at Re-
spondent's plant decided to seek union representation for the purpose of obtaining
improvements in the terms and conditions of their employment. In due course
Mrs. Brown contacted Frank E'Dalgo, an organizer for the American Federation of
Labor. A meeting was held on September 9, 1953, which was attended by Mr.
E'Dalgo and by 15 to 20 of Respondent's employees. The individuals who at-
tended the meeting signed union cards,' and were asked to solicit other employees
to do likewise. There was considerable solicitation of employees during the next
2 days. The Respondent, Harvey B. Richards, admits that by September 10 he
learned that employees were engaged in organizational activities. Of his employees,
who actively solicited others to sign union cards, 2 were discharged or laid off on
Friday, September 11, 1953, 1 on September 12, 1 on September 14, and 2 on
September 15. The General Counsel alleges that these six employees were dis-
charged because of their membership in the Union and participation in organiza-
tional activities. This is denied by the Respondent who asserts that the six em-
ployees were discharged or laid off for cause or for economic reasons.
On September 14, 1953, during regular working hours, Respondent called a meet-
ing of his employees at which he delivered a speech The General Counsel contends
that various portions of Respondent's address were coercive and violated Section
8 (a) (1) of the Act, while the Respondent asserts that the speech did not exceed
the bounds of free expression. Thereafter, on September 29, 1953, the Respondent
conducted a poll of his employees, purportedly by secret ballot. They were asked
to indicate whether or not they were in favor of having a Union in the factory. The
General Counsel relies upon this poll, as well as other alleged conduct by the
Respondent or his agents to support further the allegations in the complaint of
violation of Section 8 (a) (1) of the Act.
B. Interference, restraint, and coercion
The complaint alleges various violations by the Respondent of Section 8 (a) (1)
of the Act independent of the alleged discriminatory discharges. The principal alle-
gations in this respect relate to Richards' speech on September 14 and the "straw"
vote of September 29. Also, various witnesses on behalf of the General Counsel
I None of the witnesses identified the precise character of the cards. However, it is
clear from the testimony of the various witnesses that the cards were either applications
for membership in the Union or designations of the Union as collective-bargaining repre-
sentative of the individuals signing the same
RICHARDS AND ASSOCIATES 137
testified to other conduct on the part of the Respondent or his agents purporting
to constitute additional instances of interference, restraint, or coercion of employees
in the exercise of the rights guaranteed in Section 7 of the Act
Byrdie Iris Kinzey testified that on September 6 or 7, 1953, while she was working
at her sewing machine, she overheard part of a conversation between Forelady
Tatum and Plant Superintendent Drenk She testified that she heard Mrs. Tatum
say, "They are going to organize ," and Mr. Drenk reply, "Fire them." Mrs. Kinzey
further testified that on September 16, she overheard Mr. Drenk say to Richards, "I
can't fire the whole plant," or "I can't lay off the whole plant." The witness was
uncertain which expression Mr. Drenk used. Mrs Tatum denied having made the
remark attributed to her by Mrs. Kinzey I credit Mrs. Tatum's denial, especially
because of the unreliability of testimony concerning information obtained through
deliberate or unintentional eavesdropping upon the conversation of others and the
misleading nature of testimony which reports fragments of the conversation of others
out of context The remark Drenk is alleged to have made to Richards on Sep-
tember 16, which is quoted out of context, I likewise find to be without significance
either as evidence of a specific violation of the Act or of Respondent's union animus
Maggieree Kirkland testified that on September 11, 1953, while she was waiting
at the counter in the Florida unemployment office, she overheard part of a con-
versation between Mr. Richards and Mr. Harrison, the manager of the office, who
were seated about 17 feet away. Mrs. Kirkland testified:
Well, I heard Mr. Richards ask Mr. Harrison if he could get as many as 100
women on short notice; that they were trying to form a union in his plant
and that he wasn't going to have it, he was going to let every woman go out
of there that had any part in it.
Mr. Richards denied that he made the remarks attributed to him by Mrs. Kirkland.
He testified that in the afternoon of September 10, he learned for the first time
that his employees were engaged in organizational activity. He visited Harrison the
next day to obtain information concerning the laws and regulations relating to the
formation of a union. During his conversation with Harrison the latter made the
statement that it would be a very easy thing for him to send the Respondent 100
or more girls. I credit Richards' version of the incident. I do not find that the
testimony of Mrs. Kirkland constitutes evidence that the Respondent has committed
an unfair labor practice.
Mae Dempsey Collins testified that about September 28, Forelady Tatum "asked
me, if I heard anything I concerning the Union], to let her know." Although Mrs.
Tatum did not specifically deny having directed such a request to Mrs. Collins, Mrs.
Tatum testified that she never asked any of the girls in the plant to tell her about
union activities. At the time in question, Mrs. Collins and Mrs. Tatum had known
each other for quite awhile and were friends. Mrs. Collins, who acted as a floor-
girl, directly assisted Mrs. Tatum. In view of this relationship between the two
women and the further fact that Mrs. Tatum did not question Mrs. Collins concern-
ing any particular employees' union activities, I find that the request attributed to
Mrs. Tatum, even if made, was nothing more than an expression of general curiosity
and interest on the part of Mrs. Tatum and did not constitute unlawful interrogation.
Theresa Lorain Wilson testified that on September 17, 1953, Plant Superintendent
Drenk, "came up to me while I was working, and asked me if I went to the union
ineeting the night before, and I said `Yes.' And he asked me who was there, and
I told him I didn't know, that I hadn't counted them; and he wanted to know who
was there and I told him I didn't have to tell him and I didn't think he was being
fair about it. And then he said, `You know, I saw you there.' That was just about all
he said about that." Although Mr. Drenk denied that he at any time had interrogated
employees concerning their union membership, activities, or desires, he did not spe-
cifically deny having had a conversation with Mrs Wilson on September 17 or her
version of their conversation. I credit Mrs. Wilson's testimony and find that the
Respondent has violated Section 8 (a) (1) of the Act by reason of his plant super-
intendent questioning Mrs. Wilson concerning her participation in union activity
The intimidatory and coercive character of this questioning is emphasized by the fact
that on September 14, Mr Richards made a speech to the employees in which he
indicated his hostility towards the Union and in which he stated that the knew there
was to be a union meeting on September 16. In such circumstance, Plant Superin-
tendent Drenk's questioning Mrs. Wilson on September 17 as to whether she attended
the union meeting held on the previous night and the names of others who attended
the meeting "carried with it more than the implication of curiosity." 2 Especially in
2 N. L R. B v Syracuse Color Press, Inc, 209 F 2d 596 (C. A 2)
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the light of the discharge or layoff of six active union adherents between September
11 and 15, Mr. Drenk's questioning Mrs. Wilson on September 17 served to restrain
and coerce employees in the exercise of their right to self-organization by "its natural
tendency to instill in the minds of the employees fear of [future] discrimination." 3
However, I do not find that this incident constitutes evidence of unlawful surveillance.
1. Richards' speech on September 14
About 3 p. m., on September 14, before the end of the regular workday, Rgspond-
ent's employees were instructed to assemble to hear a speech by Mr. Richards.
Richards spoke from notes which he had carefully prepared during the previous
weekend. With these notes to refresh his memory, at the hearing, Richards repeated
his September 14 speech in its entirety The portions of this speech pertinent to the
issues in the case are quoted as follows.
* * a
I was surprised, disgusted and definitely hurt at a rumor that I heard last
Thursday of dissatisfaction on the part of a few of the new girls. This dis-
cussion does not apply to everyone. If the shoe fits your foot put it on; if not
forget it.
Competition is keen in all businesses. . This leads to this fact, that we
are paying the highest piece work rates possible to break even or make a small
profit. We are going to do so as long as we can, but if conditions get tough,
as I believe they will, we may have to adjust our rates, although we have never
done that in the past.
I told them that Mr. Harrison had told me that there was plenty of
help available, of course inexperienced. . . .
I understand from a rumor that I have heard, that in a very under-
handed and under-cover manner, a few of the girls were thinking of forming a
union. I certainly deplore the fact that you felt this had to be done under
cover. Why not come out flat-footed, in the open9 I have no quarrel-I told
them, I have no quarrel with the purposes of a union. I do object decidedly
to the methods used in forming such a union, particularly the forcing of people
to join through fear. Another thing I object to is the union agent's collecting
dues from hard working people who need the money, such as you. However, it
is up to you to determine whether you want to contribute $20 to $40 a year for
the privilege of belonging to a union. . . . One of the main purposes of this
meeting, was because I understand, again by rumor, that some of the girls
interested in forming this union have threatened other girls who have refused
to sign up. Under no circumstances whatsoever is this to be tolerated, and I
want it stopped right now.
I spent an hour or two with a member of the sheriff's office on Sunday, and
they are most anxious to know of any girls who have been threatened in-such
a manner. This is entirely against the law, not only of the State of Florida but
of the nation. If any of you are threatened you can either tell me about it or
go directly to Mr. Greer himself, who is a deputy sheriff.
I would like to compliment the girls who have not signed up. If they care
to tell me 1 would very much appreciate knowing who they are.
I want to assure you that we are going to run an open shop, hire whom we
please, and whether you do or do not join a union makes no difference to me,
as long as you do your job and mind your own business. Any girls who want
to work here are going to be most welcome, as long as they do satisfactory work
and as long as we can sell the production. I am not in any way attempting
to influence any employees for or against joining a union. This is entirely
up to you. The fact that you have signed a petition or card does not,obligate
you in any way.
I understand that a meeting is to be held on Wednesday p. in. Whether
or not you attend the Wednesday night meeting or any other meeting is of
no interest to me. You can attend or not attend, as you see fit.
3 N L R B v. West Coast Casket Co, Inc., 205 F. 2d 902, 904 (C. A 9) Accord :
Stokely Foods, Inc v N L R B., 193 F 2d'502, 503-4 (C. A. 5) ; Joy Silk Mills, Inc v
N. L R B , 185 F 2d 732 (C. A , D C ), cert denied 341 U S 914
RICHARDS AND ASSOCIATES 139
As long as I have the financial responsibility of running this business I pro-
pose to run it, and failing, I will have to close the business . I am not going
to tolerate any outside interference from any source . I am always willing
to discuss with anyone any problems of importance that come up in my
shop . . . but I am not going to accede to any demands by force.
I understand that a point is that some of the girls who apparently can't earn
a dollar an hour, want a dollar an hour guaranteed. In view of the lack of
profit so far this year any such raise in rates or guarantee is impossible, but I
call.ypur attention to the fact that there are a good many of the operators
making better than a dollar an hour at present piece work rates.
I understand , again from a rumor , that there is a possibility of this business
.being picketed from Miami. I thought you would like to know that the sheriff's
-office is not going to stand for any unlawful activities on the part of these pickets,
if they do come.
. Mr. Harrison had advised me that any employee going out on a strike
would not draw unemployment compensation in the State of Florida.
I put a tremendously high value on loyalty and I despise disloyalty. If any
,of you people feel that you cannot be loyal to this business I would most cer-
tainly suggest that you don't come in tomorrow and that you just call it a day.
i I want to say that we have had a happy time of it here. I have enjoyed it,
and I certainly hope that nothing is going to muddy the waters at this time.
I believe we are making progress , and am enthusiastic about continuing the
business that now exists , but I want to repeat again that if this is impossible,
:then there is only one thing left for me to do, and that is to close the business.
I repeat that whether or not you join the union is entirely your affair.
I credit Richards ' version of his speech . Eleven witnesses called by the General
Counsel testified from memory concerning the contents of the speech. Their testi-
mony considered collectively does not differ substantially from Richards'. However,
parts of the speech which contain veiled or implied threats were remembered by
some of these witnesses as containing direct threats; they did not remember in
haec verba the language used by the Respondent . This is not surprising . The em-
ployees cannot be expected to remember verbatim the contents of the speech
which took in excess of 15 minutes to deliver. Richards himself was unable, with-
out reference to his notes , to recall his speech either in detail or in sequence. Thus,
the import of Richards ' words rather than their precise phraseology impressed itself
upon the employees' memories.
The speech contained an unequivocal expression of Respondent 's opposition to
employee organization and clearly indicated that Respondent viewed with disfavor
employees who joined the Union . This alone would not constitute a violation of
.the Act . An employer may oppose unionization of his employees and tell his em-
ployees so without committing an unfair labor practice. However, the bounds of
free expression are exceeded and an employer violates Section 8 (a) (1) of the Act
when he seeks to discourage union membership or activity on the part of his.em-
ployees by "threat of reprisal or force or promise of benefit." And violation of
the Act occurs where such threat or promise is veiled as well as where it is enunciated
in unambiguous language .4 The coercive character of a speech containing such
threats or promises is not neutralized by antithetical interpositions to the effect that
it is entirely the individual employee's affair whether or not to join a union.
The Respondent contends that his September 14 speech is not evidence of any
unfair labor practice and falls within the protection of the free speech clauses of
.the Constitution and the Act. His contention appears to be that before a statement
may be found coercive and in violation of the Act it must contain language which
by the force of the words alone, isolated from surrounding circumstances, constitutes
a clear and unambiguous threat or promise. This, however, is not the accepted rule.
The subject is discussed at length in N. L. R. B. v. Kropp Forge Co.,5 in which
Judge Swaim, speaking for the court concludes:
It also seems clear to us that in considering whether such statements or expres-
sions are protected by Section 8 (c) of the Act, they cannot be considered as
4 General Shoe Corporation, 100 NLRB 774, 789 ; N L R. B. v. General Shoe Corp , 207
F. 2d 598 tj. A. 6), where the circuit court enforced the Board's order upon finding,
among other things, that certain of the employer's communications to employees were
accompanied by implied threats of reprisal and implied promises of economic benefit.
.Accord : N. L. R B v Beatrice Foods Company, 183 F. 2d 726 (C A. 10)
5 178 F 2d 822, 828 (C A. 7), cert. denied 340 U. S 810
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
isolated words cut off from the relevant circumstances and background in which,
they are spoken. A statement considered only as to the words it contains might
seem a perfectly innocent statement , including neither a threat nor a promise.
But, when the same statement is made by an employer to his employees, and
we consider the relation of the parties, the surrounding circumstances, related
statements and events and the background of employer's actions, we may find
that the statement is a part of a general pattern which discloses action by the
employer so coercive as to entirely destroy his employees' freedom of choice
and action. To permit statements or expressions to be so used on the theory
that they are protected either by the First Amendment or by Section 8 (c) of the
Act, would be in violation of Section 7 and contrary to the expressed purpose
of the Act.
Measured by these standards, Respondent's September 14 speech violated Section
8 (a) (1) of the Act. The tone of the entire speech was sounded by Richards' open-
ing remarks. He began by stating that he was surprised, disgusted, and definitely
hurt by a rumor of employee dissatisfaction. The only manifestation of dissatisfac-
tion appearing in the record was the employees' union activities. He then deplored
the manner being used in forming a union at the plant and complimented the girls
who did not join the Union. By this sequence of remarks Respondent evinced his
antipathy towards the Union and employees who joined the Union. Interwoven with
these remarks were expressions indicating the employees' precarious tenure in their
jobs, such as his prediction that economic conditions were becoming bad and that
replacements for present employees were readily available. Against this background
the intimidatory nature of the subsequent portions of Respondent's speech becomes
manifest. Richards assured the employees that he is going to run an open shop,
that as long as he has the financial responsibility of running the business he proposes
to do so and failing will have to close the business ; that he will not tolerate outside
interference from any source; that he hopes nothing is going to "muddy the waters at
this time" (the reference being to the Union); and finally that if he cannot continue
the business "that now exists," he will close the business. These remarks clearly
conveyed a threat that the Respondent would close his business before he will deal
with the Union. Respondent also threatened employees who joined the Union with
reprisals by stating that he places a tremendously high value on loyalty and despises
disloyalty and that employees who cannot be loyal to the business should not report
to work the next day. In the context of the entire speech Respondent's reference
to disloyal employees meant employees who joined the Union and his invitation to
such employees to quit their employment carried with it the veiled threat that if
they did not do so they would be subject to discrimination I find, therefore, that
Respondent's speech was unlawfully coercive in that it contained an implied threat
that the Respondent will close his business before he will deal with the Union and in.
that it contained a veiled threat of reprisal against employees who join the Union.
2. The poll conducted by Respondent
On September 29, 1953, the Respondent conducted a poll of his employees as to,
whether they were in favor of having a union in the factory. Ballots printed in four
colors were distributed to the employees on the day of the election. One color was
assigned to the machine operators, another color to the floorgirls, inspectors, and
folders, a third color to male employees, and a fourth color to office employees,
including Office Manager Wagner and Plant Superintendent Drenk. The employees.
purportedly voted in secret, marking their ballots in a booth and then dropping them
in a box outside the booth. The Respondent, Harvey B. Richards, and Plant Super-
intendent Drenk were present while the balloting was taking place. Supervisory
personnel were permitted to vote.
It does not appear that Respondent at any time was presented with a claim by the
American Federation of Labor or any other labor organization that such organization
was the representative of his employees. The Respondent, therefore, cannot explain
the purpose of his poll as being a fair attempt to ascertain whether he should accord
the Union recognition.6 The only explanation for the poll consistent with Respond-
"Respondent testified that before the poll was conducted 12 to 18 employees asked him
when there was going to be a vote In his notice to the employees dated September 28,
1953, that the poll was going to be held, Respondent stated .
Now this letter of the Organizing Committee talks of a union election in the plant.
If you feel the same way about this that I do, let's have this election-the sooner the
better-and get it out of the way We have been able to manage our own affairs up
RICHARDS AND ASSOCIATES 141
tent's antecedent conduct is that it was conducted with the intention and hope of
frustrating effective organization of his employees and of defeating the efforts of some
of his employees to select a collective-bargaining representative. Respondent's motive
aside, the employer-conducted poll, despite its purported secrecy of ballot, served
to interfere with his employees' activities directed towards self-organization and had a
reasonable tendency to restrain and coerce the employees in the exercise of the rights
guaranteed them by Section 7 of the Act, and, accordingly, violated Section 8 (a) (1)
thereof.?
C. The violation of Section 8 (a) (3)
The Union 's campaign to organize Respondent 's employees commenced in earnest
on Wednesday , September 9, 1953. A meeting attended by 15 to 20 employees
was held ^ at, which those present signed upion cards and were instructed to obtain
other employees' signatures . Active solicitation took place during the next few
days at the plant during nonworking time, in employees ' cars parked outside the
plant , at employees ' homes, and other places. Before the end of the day on Sep-
tember 10 , the Respondent and Plant Superintendent Drenk were informed about
the organizational activity among the employees . Also, they admit that it was
reported to them that Wilma Reed had been engaged in union solicitation . Between
September 11 and 15, six union adherents who were engaged in active solicitation,
including Mrs. Reed , were discharged or laid off . No other employees were dis-
charged or laid off during this period . On September 14, Richards made a speech
to the employees which evidenced his hostility towards organization of his employees
and his antipathy towards employees who joined the Union . These facts , the Gen-
eral Counsel contends , prove the allegations in the complaint that the six em-
ployees were discriminatorily discharged.
Respondent denied that he discharged any of the six employees because of their
union membership or activity . He affirmatively pleaded that Ruby Harris was dis-
charged for cause and that the five other, employees were not discharged but were
laid off because of a seasonal decline in his production operations and a consequent
need to reduce his force of production workers.
Respondent , at his Fort Myers plant , is engaged in the manufacture of raincoats,
garment bags , covers of various types, and other items from plastic material. A
majority of his employees are sewing machine operators . Other nonsupervisory
employees include sewing machine instructors , floorgirls , and folders and inspectors.
There is occasional transfer of employees from one job to another.
The sewing machine operators are paid on a piece-rate basis with a minimum guar-
antee of 75 cents per hour, except for learners who are guaranteed 65 cents or 70
cents per hour generally depending upon length of service . The piece rates vary for
the substantial number of different sewing operations performed at Respondent's
plant . The operators are paid their guaranteed hourly wage for idle time and for
doing repair work or other work for which no piece rates have been established.
The Respondent testified that an experienced , qualified operator should be able
on a piece -rate basis to exceed the hourly guarantee on any sewing operation. Be-
cause the labor market from which he draws his employees contains no reservoir
of qualified sewing machine operators , it is necessary for the Respondent to train
to now without outside help Why don't we clear the air by finding out for ourselves
now how we stand on this question 9
An employer substantially intrudes upon the right of self-organization guaranteed in
Ion 7 of the Act when, under conditions entirely within his control and at a stage of
nization when employees have not had a full opportunity to persuade their fellow
ors to their views concerning union activity, he compels his employees to abruptly
la choice concerning representation. Furthermore, an employer-conducted poll, and
illy the manner in which the poll was conducted in this case, of necessity, cannot
3 in an atmosphere free from elements of coercion The Board's decision in The
ac Company (Rad4o Station KMAC & FM Station KISS), 106 NLRB 1355, does not
cent a contrary view, but was occasioned by an unusual sequence of events and must
.sidered as being limited to the particular facts in the case
L. R B. v. Charles R Kronm Lumber Co., et al., 203 F 2d 194 (C A. 2) , N L R. B
m.ervi lle Busck, Inc., 194 F 2d 56, 58 (C. A 1) ; N. L R. B. v. Wm. Tehel Bottling
'29 F 2d 250, 252-253 (C A. 8) , Titan Metal Manufacturanp Co. v. N L R. B, 106
254, 260 (C A 3), cert. denied 308 U. S 615, Roberts Biros , 106 NLRB 372; Monarch
try Company, 106 NLRB 377 ; Protein Blenders, Inc, 105 NLRB 890. (On January
54, the Board denied a motion for reconsideration in this case. The motion had
redicated on the ground that the intervening decision in Walniac, supra, had ovei-
'ie original decision in the case )
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
virtually all his new employees and, even at the time of the hearing, he considered
that only a handful of his-employees were fully qualified. In consequence, to-the
extent possible, Respondent tries to assign each operator the type of work which
she has demonstrated she can do best. However, because the demand for the various
products manufactured by the Respondent is seasonal and production of these items
varies from season to season, it is not possible to restrict the various operators per-
manently to only 1 or 2 operations. Not only is there seasonal variation in the
manufacture of the various items produced by Respondent, but there is likewise
seasonal variation in Respondent's total production volume. This latter fact, par-
ticularly, requires him to lay off employees from time to time. Respondent at-
tempts to select the poorest employees for layoff. During the time involved herein,
the hiring and laying off of sewing machine operators was the responsibility of Fore-
lady Gretice Tatum, who, at least in connection with layoffs, acted only after con-
sultation with Plant Superintendent Drenk and Mr. Richards.
1. Ruby Harris
Mrs. Harris testified that when she reported for work on September 12, 1953, her
sewing machine would not operate. She asked the fixer, Raymond Tessier, to re-
pair her machine. He told her to use another machine. Forelady Tatum. however,
told her that the only machine she might use was Lou Driggers'. That machine like-
wise would not operate. Mrs. Harris then asked the fixer what she should do and
he replied, "As far as I am concerned you can go home." Raymond Tessier had
no authority to excuse employees from work nor did Mrs. Harris testify that she
believed he had such authority. Nevertheless, after awhile and without obtaining
prior permission from any supervisor, Mrs. Harris punched her timecard and left the
plant. Upon reporting to the plant on the following Monday morning, September 14,
Plant Superintendent Drenk advised her that she was discharged and when she pressed
him for an explanation Drenk said, "Well, you signed one of those union cards, didn't
you?" Mr. Drenk denied the remark attributed to him by Mrs. Harris and testified
that on the occasion in question he said to Mrs. Harris, "You have walked out of
here for the last time, Ruby, and you are no longer in the employ of Richards and
Associates." I credit Drenk's version of his conversation with Mrs. Harris. The
Respondent contends that Mrs. Harris was discharged because she violated a com-
pany rule prohibiting employees from leaving the plant before the conclusion of
the workday without obtaining prior permission. Upon consideration and evalua-
tion of all the testimony bearing upon this issue, I am persuaded that Respondent's
assigned reason for discharging Mrs. Harris is genuine . I do not find that the
General Counsel has proved by a preponderance of the evidence that Mrs. Harris
was discharged because of her union membership or activity, in violation of Sec-
tion 8 (a) (3) of the Act.
2. The layoffs
The other five employees who are alleged in the complaint to have been dis-
criminatorily discharged were individually advised by Forelady Tatum that they were
being laid off and would be recalled when production increased.8 Wilma Reed and'
Mildred Johnson were laid off on September 11, Lavina M. Brown on September
12, and Betty Parker and Marie Worrell on September 15. These 5 attended the
union meeting on September 9 and were active during the next 2 days, at least, in
soliciting other employees to support the Union. Respondent admits that on Ser
tember 10, he learned Mrs. Reed was soliciting union members among his employs
There is no direct evidence that the Respondent learned that the other four wo,
were engaged in organizational activity in behalf of the Union. However,
spondent's plant is small in size and number of employees. During September 1
he employed approximately 125 persons, of which number about 75 were se
machine operators at the plant. From the record it appears that only Mrs. T
and Mr. Drenk were supervisors within the meaning of the Act. However, a nun
of floorgirls were employed who relayed Mr. Tatum's directions to the oper
and in a general way oversaw,the operators' work. Mrs. Tatum and the flooi
mixed freely with the operators. There was considerable talk about the Ui
among the employees during the period immediately before and after Septembc
Mrs. Tatum testified that employees volunteered information to her concer
union matters. Further, there is direct evidence in the record that Kathryn Te,
one of the floorgirls, reported to both Drenk and Richards that Mrs. Reed wa
gaging in union activity. These circumstances give rise to a reasonable infe,
8 None had been recalled by the date of the hearing herein
RICHARDS AND ASSOCIATES 143
that the union activities of Johnson, Brown, Parker, and Worrell also came to the
attention pf the Respondent.9
The Respondent's defense to the alleged discrimination against these five women is
that they were laid off for economic reasons The evidence as it relates to each varies
in detail and will be discussed separately below
Wilma Reed: On September 11, Mrs. Tatum told Mrs. Reed she was being laid
off for lack of work and would be called back in a few days Mrs. Reed was hired
on February 14, 1953. From April 25 until her layoff she sewed garment bags mainly
doing what is termed double needlework. Prior to April 25, she worked on other
products also. In his answer to the complaint Respondent asserts that Mrs. Reed was
laid off because Respondent had entered upon his slow season for garment bags and
there was no longer need for her services to do double needlework. Mrs. Reed's
production record appears to have been good Except for her first 2 weeks of
employment she was never "in the red." 10 Furthermore, for each of the 3 weeks
prior to the week ending April 25, when Mrs. Reed was working on products other
than garment bags, she was "in the black." There is no satisfactory explanation as
to why Mrs. Reed was not permitted to do other sewing operations when the need
for double needlework had fallen off. Mrs. Tatum testified that she learned that Mrs.
Reed did not want to do anything other than double needlework. However, Mrs.
Reed never told this to Mrs. Tatum To the contrary, Mrs Reed testified she was
always willing to do any work assigned to her. Mrs. Tatum testified that another
consideration involved in selecting Mrs. Reed for layoff is that "she had been off quite
a bit" and had been away from the plant for 6 or 7 weeks prior to the week beginning
on Sunday, September 6. However, Mrs. Reed's testimony is not contradicted that
before her return to the plant after her vacation, Mildred Johnson told her Mrs.
Tatum wanted to know if and when she was returning to work and Mrs. Reed in-
structed Mrs Johnson to tell Mrs. Tatum that she would report to work the day
after Labor Day. Mrs. Reed began work on that Tuesday, September 8. In view
of these circumstances, and the further fact that Mrs Reed was not criticized for hav-
ing taken an extended vacation and Respondent failed to assert this as a reason for
Mrs. Reed's layoff in his answer to the complaint, in which he carefully and at length
set forth his reasons for laying off each of the alleged discriminatees, I do not find that
Mrs. Reed's record of absences motivated Respondent to lay her off on Septem-
ber 11.11
Mildred Johnson: Mrs. Johnson was hired on July 2, 1953, and at the time of her
layoff on September 11, 1953, was included among the learners who were guaranteed
65 cents per hour.12 On September 10 and 11, Mrs. Johnson was sewing raincoats,
prior thereto she had been sewing binding on shoe bags. Mrs Tatum testified that
although "she did a good job of that" (binding shoe bags), she was laid off because
she couldn't "make her rate" (her guaranteed hourly minimum) on other work.
However, Mrs. Johnson had worked on raincoats for only 2 days when she was dis-
charged, .and it is clear from the record that a drop in productivity was expected
when an employee, especially a learner, was changed from one operation to another.
Furthermore, Mrs. Johnson had not been tried on many operations. The summary
of Respondent's payroll shows that in the week during which Mrs. Johnson was dis-
charged, there were 22 learners employed who were guaranteed 65 cents per hour.
Of these, 18 were "in the red" for the week, 1 was "in the black," and 3 were even.
Nine of the learners were "in the red" to a greater extent than Mrs. Johnson during
that week. Respondent has offered no explanation as to why Mrs. Johnson was
selected for layoff on September 11 instead of any other learner.
Lavina M. Brown- Mrs. Brown was the leader of the organizational activities
among Respondent's employees. She was hired in March 1953 and had worked on
a variety of products During the 2 weeks preceding her layoff she was sewing rain-
9N. L. R B. v Abbott Worsted Mills, 127 F. 2d 438, 440 (C A 1) ; Cary Lumber Com-
pany, 102 NLRB 406, 411, Quest-Shen Marl Brassiere Co, Inc., 80 NLRB 1149, 1150, enfd.
185 F 2d 285 (C A 2), cent denied 342 U S 812
10 An employee whose earnings during a particular week was less than her guarantee
was considered to be "in the red" for that week ; and an employee whose earnings ex-
ceeded her guarantee was considered to be "in the black."
11 There is also testimony that on September 10 it was reported to Mr Drenk and Mr
Richards that Mrs Reed had threatened another employee who had refused to join the
Union However, Respondent does not allege that this fact motivated her discharge
12 Mrs. Johnson testified that during her last week of employment her rate had been
increased to 70 cents per hour However, the Respondent's summary of his payroll, intro-
duced as an exhibit in the case, shows that Mrs. Johnson at the time of her layoff was
included with the other's omen who were guaranteed 65 cents per hour
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coats. Immediately prior thereto she had been working on garment bags sewing
tails (pieces of plastic binding) on zippers. Mrs. Tatum testified that Mrs. Brown
was unable to make her rate on any operation other than sewing tails on zippers.
When Mrs. Tatum advised Mrs. Brown on September 12 that she was being laid off.
Mrs. Tatum told her Respondent would call her back when work increased in the
garment bag department.
Marie Worrell: She was hired on April 9, 1953, and was laid off on September 15,
1953. Mrs. Tatum testified that Mrs. Worrell was able to make her rate on one of
the garment bag operations and "when that type of work slowed down and I had to
put her on something else that she couldn't make her rate on or her time on, why
then I had to let her go."
Betty Parker: Mrs. Parker was hired in the summer of 1951. She had never been
laid off prior to September 15, 1953. However, in the fall of 1952, she quit her em-
ployment with the Respondent. She returned to work 2 or 3 months later after
receiving a letter from Mr. Richards requesting her to do so. Mrs. Parker had been
working on rainwear for 2 or 3 months prior to her layoff. She testified that when
she first began to work on rainwear Mrs. Tatum told her she was doing very well.
Mrs. Tatum did not deny that she complimented Mrs. Parker. However, Mrs. Tatum
testified that she laid off Mrs. Parker because "our coat season was slowing down, and
I told her so, and I told her as soon as I needed her back I would call her She had
made shoulder covers but she never did make her rate on it, so I couldn't change her
to shoulder covers; and she did a poor quality of work." 13 No explanation is offered
by the Respondent as to why Mrs. Parker, a relatively long-time employee, was laid
off on September 15 rather than any other employee. Respondent introduced evi-
dence showing that Mrs. Parker with the exception of only 3 weeks was consistently
"in the red" every week from January 1953 until her layoff . This indicates that justi-
fication may have existed for Mrs. Parker's discharge. On the other hand, there is
no evidence that Mrs. Parker ever had been criticized for doing poor work. More-
over, the -subject for inquiry in this case is not whether adequate cause may have
existed for her discharge, but whether in fact she was laid off (as Respondent con-
tends and not discharged) for such reason and not because of her union member-
ship and activity. In this connection, Respondent does not assert that the quality
of Mrs. Parker's work was poorer or her productivity lower towards the end of her
employment with the Company than it was during the early part of 1953. Her pro-
duction record from January 1953, until her layoff shows that she was less "in the
red" during the latter half of the period than during the first half
Conclusions as to the Layoffs
I am unconvinced that Reed, Johnson, Brown, Worrell, and Parker were laid off
for the reasons assigned by the Respondent.14 Each of them signed a union card
on September 9 and thereupon actively solicited other employees to do likewise. On
September 10, Respondent learned about the organizational activity among his em-
ployees. Respondent was hostile towards the Union and employees who joined the
Union. This is amply demonstrated by his speech of September 14. Between Sep-
tember 11 and 15, these five women were laid off. No nonunion employees were
laid off during the same period. The connection between the union activity of these
five women and their layoffs is emphasized by the case of Mrs. Reed. In the after-
noon of September 10, Respondent learned about her soliciting another employee to
join the Union and the next day she was laid off. The significant connection between
the commencement of union activity at Respondent's plant and the layoffs of these
5 women is further emphasized by the fact that, although they were purportedly laid
off because of lack of work, during the same period the Respondent hired 4 other
sewing machine operators who had never previously been employed by him. One
of these new employees was hired on September 14, 2 on September 15, and I on
13 Respondent introduced evidence showing that a great number of raincoats which Mrs.
Parker had sewed were found to be defective. However, this group of defective coats.
according to Respondent's witnesses, was not discovered until after Mrs. Parker's layoff
14 Respondent introduced evidence showing that for the week ending August 8, 1953. 87
sewing machine operators were employed at his plant and this number gradually was re-
duced so that on December 5, 1953, only 43 operators were employed at the plant. Whether
any of the above-named employees would have been laid off after September 15 is not a
subject for consideration in this case At most, that relates to the amount of back pay to
which they might be entitled The only subject for inquiry herein is whether, absent union
activity, each of these five individuals would have been laid off on the particular day on
which she was laid off Nathanson, Trustee v N. L R. B., 344 U. S. 25, 29; N L. R. B v.
New York Merchandise Co., 134 F 2d 949, 951-2 (C A 2)
RICHARDS AND ASSOCIATES 145
September 16.15 Furthermore, Respondent's explanations for the selection of Reed,
Johnson, Brown, Worrell, and Parker for layoff during the period between Septem-
ber I 1 and 15, 1953, "do not stand up under scrutiny." 16
Wilma Reed's production record during the period of her employment was good
and this fact is conceded by the Respondent. Although in his answer to the com-
plaint Respondent asserted as the only reason for Mrs. Reed's layoff that there was
no longer need for her services to do double needlework, at the hearing, additional
reasons motivating her layoff were advanced. These latter reasons, which I dis-
cussed above, have all the appearances of "specious afterthoughts," 17 and the be-
latedness which attended giving them furnishes additional support for the conclusion
tnat the Respondent was attempting by pretexts to hide his true motive for Mrs.
Reed's layoff.18 In view of Respondent's practice of shifting employees from opera-
tion to operation depending upon seasonal variations in production requirements and
his admitted practice of laying off his poorest employees first, I do not credit any of
the reasons, considered separately and collectively, advanced by Respondent for lay-
ing off Mrs. Reed on September 11, 1953.
Mildred Johnson's production record during her period of employment was demon-
strably better than that of many other learners, as revealed by Respondent's summary
of his payroll for the period between August 1 and September 19, 1953, which was
introduced as an exhibit in this case. I likewise find that Respondent's explanation
for her layoff on September 11, 1953, is not credible
The reasons asserted by the Respondent for laying off Parker, Worrell, and Brown
are similarly unconvincing when measured against the production records of other
employees. These 3 employees' production records were on the whole substantially
better than that of at least 12 other nonlearners who were not laid off. Respondent
submitted into evidence a table containing the names of all the sewing machine
operators in the nonlearner category and the amounts they were in the "red" or
"black" during each week between August 1 and September 19, 1953. From this
exhibit, the following comparative figures between Parker's, Worrell's, and Brown's
production records and the records of the 12 other sewing machine operators have
been drawn:
Name of Employee
No of
Wks
"R"
No of
Wks
Worked
Total
Amount
„R„
Average Net AveragePer Wk
R"1 "1111
Wkly Net
"R
Betty Parker_________________ 5 8 $11 43 $1 43 462.5 $078
Marie Worrell________________ 3 8 10 55 1 32 5 17 65
Lavma Brown________________ 4 6 19 18 3 20 7 01 1 17
Cora Hays__ -____ 8 8 55 02 6 88 55 02 (188
Alice Johnson_________________-------------- 8 8 55 00 6 87 55 00 6 87
------------ 8 8 40 11 5 01 40 11 5 01
Dolly Hall -------------------- 6 6 29 77 4 96 29 77 4 96
Lillie Braman --------- -------- 7 7 31 60 4 51 31 60 4 51
Grace Tyson__________________ 8 8 31 36 3 92 31 36 3 92
Lou Duggus__________________ 7 8 26 20 3 27 25 36 3 17
Betty Riley ----------------- - 5 8 22 68 2 83 20 77 2 60
Ann Thorton_ 3 6 20 58 3 43 13 36 2 23
Ann Barton__ _____ 5 8 18 73 2 34 13 30 1 66
Addie Lunger________________ 6 7 11 42 1 63 10 78 1 54
Ine7 McDonald_______________ 7 8 11 09 1 39 10 44 1 30
i The average weekly "R" is the total amount of penalties during the 8-week period divided by the total
number of weeks worked during this period
2 Net "R" is the amount which results from subtracting the total amount "R" (the amount earned in
excess of the minimum rate) from the total amount "R" (penalties)
3 The average weekly net "R" is net "R" divided by the total number of weeks woiked
16 Mrs Tatum's explanation for hiring 4 new operatois at a time when she was laving
off others was that 2 of the women claimed they were experienced sewing machine opera-
tors and the other 2 women were able to fuuush automobile rides to and from work foi
several other plant employees
iu N L R B. v Bird Machine Co , 161 P 2d .589. 592 (C A 1 )
iv N L R B v Botany 1Vo7sted Mills, 106 F 2d 263. 268 (C A 3)
is Magnolia Petroleum Co v N L R B , 200 P 2d 148 150 (C A i)
338207-55-vol 110-11
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It appears to be more than mere coincidence that only active union adherents were.
selected for layoff between September 11 and 15, 1953. Contrary to Respondent's.
contention , his discriminatory motive is not disproved by a showing that he did not
weed out every adherent of the Union. 19 I find that Wilma Reed, Mildred Johnson„
Lavina M. Brown, Marie Worrell, and Betty Parker were laid off during the period
between September 11 and 15, 1953, not for the reasons asserted by the Respondent,
but because of their union adherence and activity. Respondent by thus laying off"
these five women and by his failure thereafter to reinstate them has discriminated in
regard to their hire and tenure of employment , thereby discouraging membership in
the Union and interfering with, restraining , and coercing his employees in the exer-
cise of the rights guaranteed them in Section 7 of the Act.
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 1, above, have a
close, intimate , and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that he cease and desist therefrom and that he take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent by laying off Wilma Reed and Mildred
Johnson on September 11, Lavina M. Brown on September 12, and Marie Worrell
and Betty Parker on September 15, 1953, has unlawfully discriminated in regard
to the hire and tenure of employment of these employees . It will, therefore, be
recommended that the Respondent offer to each of them immediate and full reinstate-
ment to her former or substantially equivalent position without prejudice to her
seniority or other rights and privileges See The Chase National Bank of the City of
New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. It will be further recom-
mended that the Respondent make each of them whole for any loss of earnings suf-
fered by reason of the Respondent 's discrimination against her by payment to her of
a sum of money equal to that which she normally would have earned from the date of
her layoff to the date of Respondent 's offer of reinstatement , less her net earnings dur-
ing said period . Said loss of earnings shall be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Company, 90 NLRB 289-
It will also be recommended that the Respondent make available to the Board, upon
request, payroll and other records to facilitate the determination of the amounts
due to these employees under this recommended remedy.
The Respondent 's violations of the Act, found herein , disclose a fixed purpose to
defeat self-organization by his employees . Because of Respondent 's unlawful con-
duct and its underlying purposes , I am persuaded that the unfair labor practices found
herein are related to other unfair labor practices proscribed by the Act, and that
the danger of their commission in the future is to be anticipated from Respondent's
conduct in the past , The preventive purposes of the Act will be thwarted unless the
remedial order is coextensive with the threat In order, therefore , to make effective
the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor
practices , and to effectuate the policies of the Act, it will be recommended that the
Respondent cease and desist from infringing in any manner upon the rights guaran-
teed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, I make the following
CONCLUSIONS OF Low
1 Harvey B Richards , d/b/a Richards and Associates is, and at all times relevant
herein was , engaged in commerce within the meaning of Section 2 ( 6) and (7) of
the Act.
2. By discriminating in regard to the hire and tenure of employment of Wilma
Reed, Mildred Johnson , Lavina M. Brown , Marie Worrell, and Betty Parker to dis-
courage membership in the American Federation of Labor , Respondent has engaged
19N. L R. B v W C Nabors Company, 196 F 2d 272, 276 (C. A 5), ceit denied 344
U S. 865; V L P B v Liimanay, Isle, 123 F 2d 106, 108-109 (C A 2). The dispropoi-
tionate treatment of union and nonunion workers may be very persuasive evidence of dis-
crimination . Al. L N. B v Chicago Steel Foundry Co, 142 F 2d 306, 308 (C. A 7)
BOEING AIRPLANE COMPANY 147
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3)
of., the Act.
3. By interfering with, restraining , and coercing his employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent has not engaged in any unfair labor practice by reason of the
discharge of Ruby Harris and by reason of other conduct alleged in the complaint
to have interfered with, restrained, and coerced his employees except insofar as such
conduct has, been found hereinabove to have violated Section 8 (a) (1) of the Act.
[Recommendations omitted from publication.]
BOEING AIRPLANE COMPANY, S EATTLE DIVISION and SEATTLE PROFES-
SIONAL ENGINEERING EMPLOYEES ASSOCIATION. Case No. 19-CA--
806. September .30,1954
Decision and Order
On December 28, 1953, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above-entitled proceeding, finding that
the 'Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the Respondent, the General Counsel, and
the Union filed exceptions to the Intermediate Report and supporting
briefs, and the Respondent and the Union requested oral argument.
The requests for oral argument are hereby denied as the record and
the exceptions and briefs, in our opinion, adequately present the
issues and the contentions of the parties.'
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 In-
termediate Report, the exceptions and briefs, and the entire record in
this case, and, finding merit in certain of the General Counsel's and
the Union's exceptions, hereby adopts only such of the Trial Examin-
er's findings, conclusions, and recommendations as are consistent
herewith?
1. The Trial Examiner concluded that the union-sponsored Man-
power Availability Conference was an unprotected activity, and that
the Respondent was therefore privileged to discharge Pearson because
of his participation therein. We do not agree.
The material facts are substantially undisputed. Between April
and" December 1952, the Union, which had represented the Respond-
1 The request of Engineers and Scientists of America for permission to submit a brief
and to participate in oral argument is hereby denied as untimely filed.
2 For the reasons set forth in their separate dissenting opinion, Members Rodgers and
Beeson would adopt the Trial Examiner 's recommendation that the complaint be dismissed.
110 NLRB No. 22.