Ripley Manufacturing Co.

National Labor Relations Board - Board Decisions

Oct 18, 1963

144 N.L.R.B. 1132 (N.L.R.B. 1963)

1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ripley Manufacturing Company and Southern Illinois District
Council , International Ladies ' Garment Workers Union, AFL-
CIO. Cases Nos. 26-CA-1324, 26-CA-1364, 26-CA-1401, and
26-CA-1423. October 18, 1963
DECISION AND ORDER
On June 21, 1963, Trial Examiner Abraham H. Mailer 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 attached
Intermediate Report. The Trial Examiner also found that the
Respondent had not engaged in certain other unfair labor practices
and recommended that the complaint be dismissed as to such allega-
tions. Therefore, the General Counsel and the Respondent filed
exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Members Leedom, Fanning,
and Brown].
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 en-
tire record in these cases , including the Intermediate Report, excep-
tions, and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the modifications indi-
cated herein.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner with the following modifications : 1
1. The Recommended Order is modified by renumbering paragraph
1(e) as paragraph 1(f), and inserting the following immediately
after paragraph 1(d) :
(e) Refusing to hire, discharging, altering the terms and condi-
tions of employment, harassing, or otherwise discriminating against
employees because they have filed charges or given testimony under
the Act.
1 The Recommended Order is hereby amended by substituting for the first paragraph
therein, the following paragraph:
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that Respondent, Ripley Manufacturing Company, its officers , agents, successors, and
assigns, shall.
144 NLRB No. 106.
RIPLEY MANUFACTURING COMPANY 1133
2. The notice is modified by adding as the first paragraph begin-
ning "WE WILL NOT . . .", the following paragraph :
WE WILL NOT refuse to hire, discharge, alter the terms and
conditions of employment, harass, or otherwise discriminate
against employees because they have filed charges or given testi-
mony under the Act.
MEMBER BROWN, dissenting in part :
While concurring with the majority in all other respects, unlike my
colleagues, I cannot agree with the Trial Examiner's finding that the
Respondent did not unlawfully discriminate against Evelyn Escue
by reinstating her without full benefit of a 10-cent per hour increase,
generally applied to employees in the cutting department in May 1962.
Escue's layoff in April 1961 was found unlawful in an earlier Board
proceeding reported at 138 NLRB 1452, and the only issue here is
whether the hourly rate Respondent assigned her on reinstatement in
June 1962 included the increase she would have received absent the
wrongful interruption in her active employment.
When laid off in 1961, Escue earned $1.05 per hour. During the
layoff, the minimum wage was increased by Federal legislation to
$1.15 per hour. In May 1962, Respondent granted additional wage
increases to all employees in the cutting department. At that time
the cutting department consisted of six nonsupervisory employees,
five of whom received the 10-cent increase while a single employee,
Jerry Cantrell, received only 5 cents. On reinstatement in June 1962,
Escue received $1.20 per hour, fully reflecting the statutory minimum
wage increase but including only 5 cents under the increase of May
1962. The Trial Examiner, in concluding that Respondent's refusal
to extend the full 10-cent increase to Escue was not discriminatory,
relied upon the treatment of Cantrell and considered it "sheer specu-
lation to argue that Escue would have received a $.10 an hour increase."
Contrary to the Trial Examiner and in agreement with the conten-
tion of the General Counsel, I find that the treatment of the other five
cutting department employees, rather than Cantrell, provides the
measure of what Escue would have received had she remained con-
tinuously employed. Unlike the others Cantrell was a relatively new
employee, hired but 2 months before the effective date of the minimum
wage amendments compelling advancement of his hourly rate from
$1 to $1.15 per hour. Thus, Respondent found it desirable, perhaps
for the purpose of minimizing any inequities upon other cutting room
employees of greater seniority, to offset the effects of the required in-
crease by giving Cantrell only part of the otherwise uniform May
1962 increase.
In view of the foregoing, I conclude that the unique treatment of
Cantrell does not alter the true character of the May 1962 increase.
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In this connection , the record discloses that (1) all cutting depart-
ment employees ( excepting Cantrell ) received the same increase de-
spite divergent length of service and hourly earnings of the workers
in that department , ( 2) Sue Woods, an employee in the cutting de-
partment , received the full increase despite repeated reprimands from
her supervisor for misconduct , ( 3) Lillian Howard of the cutting
department upon recall after a layoff of 6 months was reinstated with
full benefit of the 10 -cent general wage increase effected in 1961, and
(4) the increases were promulgated without benefit of an analysis, on
an individual basis, of job performance , proficiency attained , or quality
of work. I am convinced on the basis of this evidence and the record
as a whole that the May 1962 increase represented the annual imple-
mentation of a wage policy consisting of periodic uniform increases
of general application without regard for ability and merit .2 In addi-
tion, I am satisfied that Escue , having been hired in 1956 , was situated
similarly to the five cutting department employees receiving the 10-
cent increase and would, as a matter of certainty , have received that
amount had her active employment not been disrupted by the dis-
criminatory layoff in April 1961, and I further find that Respondent's
failure to grant the full 10 cents in reinstating Escue was discrimina-
tory and unlawfully motivated by her union activities and because
she had filed charges and given testimony before the Board in viola-
tion of Section 8(a) (3), (4), and (1 ) of the Act.
2As indicated by their adoption of the Trial Examiner's conclusion that Joseph Medile
was discriminatorily denied participation in a general increase applicable in the mainte-
nance department which was simultaneous with that granted to workers in the cutting
department, my colleagues apparently concur in my 'iew as to the nature of Respondent's
wage system.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
In Case No. 26-CA-1324, Southern Illinois District Council, International
Ladies' Garment Workers Union, AFL-CIO, herein referred to as the Union, filed
a charge on July 9, 1962, a first amended charge on July 23, 1962, and a second
amended charge on September 20, 1962 Upon said charge and amended charges,
the Regional Director for the Twenty-sixth Region of the National Labor Rela-
tions Board, herein called the Board, on September 20, 1962, issued 'a complaint
on behalf of the General Counsel of the Board against Ripley Manufacturing
Company, herein called the Respondent, alleging violations of Section 8(a) (1), (3),
and (4) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151,
et seq. ), herein called the Act. On August 30, 1962, the Union filed another charge
against the Respondent in Case No. 26-CA-1364. Upon said charge, the Regional
Director for the Twenty-sixth Region on September 27, 1962, issued an order con-
solidating Case No. 26-CA-1364 with Case No. 26-CA-1324 and issued an
amended and consolidated complaint against the Respondent, alleging violations of
the same subsections of the Act. Thereafter, on October 24, 1962, the Union filed
a charge against the Respondent in Case No. 26-CA-1401. Upon said charge, the
Regional Director on November 15, 1962, entered an order consolidating Case
No. 26-CA-1401 with the other cases mentioned above and issued an amended
and consolidated complaint against the Respondent, alleging violations of the same
subsections of the Act heretofore mentioned In substance, the last-mentioned
amended and consolidated complaint alleged that employees Rubye Garrett,
Evelyn Escue, Jean Russell, Joseph Medile, and Aunita Emerson, whose discriminate
RIPLEY MANUFACTURING COMPANY 1135
tory layoff and refusal to reemploy had been the subject of an earlier proceeding
against the Respondent,' had been reinstated by the Respondent, but that the posi-
tions to which they had been reinstated were not their former positions of employ-
ment; that said employees were harassed and ridiculed by the Respondent; that
one of said employees, Joseph Medile, was thereafter discriminatorily discharged;
that the Respondent refused to hire three other former employees because of their
union membership or activities and because they had been named in an unfair
labor practice charge filed on their behalf by the Union or gave testimony under
the Act; that the Respondent threatened to close its plant if the Union were
successful in organizing is employees, and otherwise interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed by Section 7
of the Act. In its duly filed answer, Respondent denied the commission of any
unfair labor practice.
Pursuant to notice, a hearing was held before Trial Examiner Abraham H.
Maller at Ripley, Tennessee, on November 27, 28, 29, and 30 and December 18, 19,
20, and 21, 1962; and on February 5, 6, 7, 8, 12, 13, and 14, 1963. All parties
were represented and were afforded full opportunity to be heard and to introduce
relevant evidence.
During the pendency of the hearing, the Union on December 4, 1962, filed a
charge in Case No. 26-CA-1423 against the Respondent. Upon said charge, the
Regional Director on December 12, 1962, issued a complaint against the Respondent
alleging that the Respondent had promulgated, maintained, and enforced a rule
prohibiting union solicitation by employees during working time for a discriminatory
purpose and that the Respondent had unfairly applied the rule against union
adherents, and that the Respondent had discharged Willie Maye Alford because
of her union membership or activity and because said employee gave testimony
under the Act, in violation of Section 8 (a) (1), (3), and (4).
At the resumption of the hearing on December 18, 1962, Counsel for the General
Counsel moved to consolidate the complaint in Case No. 26-CA-1423 with the
pending proceeding On December 21, 1962, I orally granted the motion.
Thereafter, the Respondent filed an answer to the complaint in Case No. 26-
CA-1423, in which it denied the commission of any unfair labor practice. At
the close of the hearing all parties were afforded the opportunity to present oral
argument and to file briefs with me. None of the parties presented oral argu-
ment; briefs were filed by counsel for the General Counsel and by the Respondent.2
Upon consideration of the entire record, including the briefs of the parties,
upon my observation of each of the witnesses,3 and upon my inspection of the
Respondent 's plant, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Tennessee corporation employing approximately 200 persons,
operates a garment manufacturing plant at Ripley , Tennessee . During the 12 months
preceding the issuance of the complaints, the Respondent purchased and received
goods and materials valued in excess of $50,000 directly from points outside the
State of Tennessee, and in the same periods it shipped finished products valued in
excess of $50,000 directly to points outside the State of Tennessee . In view of the
foregoing , I find and conclude that the Respondent is engaging in commerce within
the meaning of the Act and that it will effectuate the policies of the Act for the
Board to assert jurisdiction here.
i Cases Nos . 26-CA-1092 and 26-CA-1149 , 138 NLRB 1452.
2 After the close of the hearing , pursuant to agreement of the parties at the hearing and
accompanied by representatives of all the parties , I inspected the plant of the Respondent
in order to determine the working stations of various employees as testified to by witnesses
and in order to check on the measurement estimates of various witnesses.
3 Unless specifically indicated to the contrary , any credibility evaluation I make of the
testimony of any witness appearing before me is based, at least In part , upon his demeanor
as I observed it at the time the testimony was given . Cf. Retail Clerks International
Association, AFL-CIO, Local 219 (National Food Stores , Inc ), 134 NLRB 1680, 1683,
footnote 3; Byran Brothers Packing Company, 129 NLRB 285 . To the extent that I
indicate that I do not rely on or reject in part or entirely the testimony of any given
witness , it is my intent thereby to indicate that such part or whole of the testimony, as
the case may be, is discredited by me. Cf. Jackson Maintenance Corporation , 126 NLRB
115, 117 , footnote 1, enfd . 283 F. 2d 569 (C.A. 2).
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
Southern Illinois District Council, International Ladies' Garment Workers Union,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ISSUES
1. Whether the Respondent threatened to close its plant if the Union were successful
in organizing its employees.
2. Whether the Respondent subjected certain employees to scorn and ridicule
because of their union membership.
3. Whether the Respondent reinstated Rubye Garrett, Evelyn Escue, Jean Russell,
Aunita Emerson, and Joseph Medile to their former positions of employment or to
substantially equivalent positions
4. Whether the Respondent ridiculed, harassed, and discharged Joseph Medile
because of his union membership, and/or a charge had been filed on his behalf, and
he gave testimony under the Act.
5. Whether the Respondent interfered with and harassed Rubye Garrett in the
performance of her duties because of her union membership and activity, etc., and
interrogated her in violation of the Act.
6. Whether the Respondent discriminatorily failed and refused to employ or
consider for employment Josie Hill, Zola Dew, and Ruth Steelman.
7. Whether the Respondent promulgated, maintained, and enforced a rule pro-
hibiting union solicitation by employees during working time for a discriminatory
purpose and whether the Respondent has unfairly applied the rule against union
adherents.
8. Whether the Respondent discriminatorily discharged and refused to reemploy
Willie Maye Alford.
IV. THE UNFAIR LABOR PRACTICES
A. Background
As indicated above, the instant proceeding is an outgrowth of an earlier proceeding
against the Respondent reported at 138 NLRB 1452, in which Trial Examiner
Reeves R. Hilton issued his Intermediate Report on May 23, 1962, finding that the
Respondent had engaged in and was engaging in certain unfair labor practices and
recommending, inter alia, that the Respondent be ordered to offer to Rubye Garrett,
Florence Reece, Aunita Emerson, Jean Russell, Evelyn Escue, and Joseph Medile
immediate and full reinstatement to their former or substantially equivalent positions,
and make them whole for any loss of pay they may have suffered by reason of the
Respondent's discrimination against them. He further found that Josie Hill, Zola
Dew, Ruth Steelman, and other employees not involved in the instant proceeding,
had not been discriminated against and recommended that the complaint be dis-
missed insofar as it alleged discrimination by the Respondent against them. The
Board's Decision and Order, issued October 8, 1962, adopted the findings (except in
one respect not relevant herein), conclusions, and recommendations of Trial
Examiner Hilton.
During the course of the hearing of the instant proceeding, the parties, without ob-
jection, requested me to take official notice of various portions of the transcript of
the foregoing proceeding as well as of the transcript of another proceeding against
the Respondent, Case No. 26-CA-1240, reported at 139 NLRB 47. Insofar as such
portions of the record and the decisions, themselves, are relevant to the instant
proceeding, official notice will be taken.
B. Sequence of events 4
Although the Respondent later filed exceptions to the Intermediate Report men-
tioned above, it nevertheless offered reinstatement to the six employees found to
have been discriminated against. Respondent's decision to do so was announced by
its president, Milton G. Rosenfeld, at a meeting of the employees of the Respondent
called by him on June 8, 1962, and held in the lunchroom of the Respondent's
plant. The General Counsel contends that at this meeting, Rosenfeld predicted that
the reinstatees would not be there long and instructed the employees to avoid them;
4 This subsection is intended to present by way of introduction a brief statement, In as
near a chronological order as is feasible, of the various events involved In the instant
proceeding. The statements made therein do not constitute findings by me Each of
these events is discussed infra, where my findings are made.
RIPLEY MANUFACTURING COMPANY 1137
that he stated that he would not deal with the Union, but would close the plant if
the Union came in.
On June 11, the six employees came to Rosenfeld's office, prepared to return to
work. Rosenfeld held a conference with them, during the course of which he read
to them a series of rules for the employees. The six employees indicated that they
had no problem with the rules. Florence Reece was assigned to the job she held
before her layoff. Joseph Medile was assigned to painting and repairing Rosenfeld's
home, commonly referred to in the record as the "company house." Evelyn Escue
was assigned to her former job as a cutter. Rubye Garrett, who had been a sleeve
maker prior to her layoff, was given the job of sewing linings. Aumta Emerson, who
had been a hand fore presser, was assigned to machine pressing. After the con-
ference, Rosenfeld called a meeting of all the plant employees in the lunchroom.
During this meeting he introduced the reinstatees and referred to the plant rules,
read some of them, and announced an oral no-solicitation rule. He then stated that
a copy of the rules would be given to each employee. On June 14, Rosenfeld called
another meeting of the employees in the lunchroom and discussed the matter of
union solicitation.
On June 8, 1962, Respondent published an advertisement in a local newspaper
indicating that it required the services of approximately 50 employees for a
twilight shift to be operated between 5 and 9 p.m. On or about June 9, three
former employees of the Respondent, Zola Dew, Ruth Steelman, and Josie Hill,
applied for employment.5 All three employees were members of the Union. The
Respondent has not hired any of them.
Medile's work at the company house continued until the Respondent ran out
of necessary material for the repair of the bathroom. Medile then returned to the
plant, but was not given any assignment. He sat outside Rosenfeld's office and
performed such tasks as were assigned to him from time to time by Rosenfeld.
In the beginning of July, Medile was assigned to do work on the company ballfield,
constructing benches for the players and painting the fence. He complained
about the extreme heat and that the work was not equivalent to his former employ-
ment. Finally, he refused to continue to paint the fence and was discharged on
July 9.
On September 22, Garrett, Emerson, and Steelman had a conversation with
Rosenfeld in his office, during which Garrett complained that a supervisor had
refused to give a ride to work to Florence Jackson, a union member employee.
The General Counsel contends that during the conversation, Rosenfeld threatened
to close the plant if the Union won an election. Steelman reminded Rosenfeld
that she had applied for employment, and Rosenfeld promised to look into the
matter.
On September 26, Rosenfeld called a meeting of the plant employees in the
lunchroom and made a speech to them. Among other things he discussed an
experience with the Union in 1954, in which he claimed that the Union had made a
deal with Printz Biederman Company, a concern with which Rosenfeld was then
affiliated, as a result of which the Ripley plant was to be closed. Rosenfeld detailed
how he had fought this move. During this speech, Aunita Emerson shook her
head negatively. The General Counsel contends that this infuriated Rosenfeld
and that he stated that his family did not need the business and that he would
close the plant if the Union came in.
On October 18, after Garrett had been returned to sleeve making, Rosenfeld
complained to her that too much of her work was being returned to her to be
done over. On the following day, she was called to the cutting room table
where Designer Pennes showed her some sleeves and told her that it was some of
the worst work he had ever seen. Later that day, she was called to the lunchroom
where she was confronted by Peones, Inspector Husk, and Supervisors Forsythe
and Carmack. At the instance of Rosenfeld, they again told her that her work
was bad and that if it happened again they would have to let her go. Garrett then
informed Forsythe that she could not do good work because some of the employees
had been harassing her.
On the morning of November 25, Willie May Alford testified on behalf of the
General Counsel in this proceeding. On the afternoon of that day, after she had
returned to work, she was discharged by Rosenfeld for passing a note to employee
Mary Spencer, in which she told Spencer that if she wanted to talk to a lawyer, there
would be one present at cabin No. 1 (the Union's office in Ripley) of the Walker
Motor Court.
5 These three employees were among others who had been named in the charge and
complaint in 138 NLRB 1452 as alleged discriminatees . The Trial Examiner and the
Board held that these three employees had not been discriminated against.
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Respondent's threats to close the plant
1. The meeting of June 8
As noted above, Respondent called a meeting of its employees on June 8, 1962,
at which President Rosenfeld announced his decision to reinstate the six employees
found to have been discriminated against . The testimony of the General Counsel's
witnesses as to Rosenfeld 's statements at that meeting was contradicted by the Re-
spondent's witnesses . According to General Counsel witnesses Willie Maye Alford,
Florence Jackson, and Lucy Mae Woodard, whose testimony I credit,6 Rosenfeld told
the assembled employees that the reinstated employees would not be there long.?
Jackson testified, in addition, that Rosenfeld said that he did not intend to have
a union and would close up before he had a union in the plant, that he did not
need the plant and neither did his children. This was corroborated by Montine Pitts
who testified that Rosenfeld said that he would not go union, that he could retire,
that his daughter Carol did not need the business, and that his son Donny had
inherited something from his grandfather's estate. Alford also testified that Rosen-
feld said that he would never negotiate with the Union, smiled, and said, "I'm 65
years old, and I could retire."
Rosenfeld denied making the statement that the reinstatees would not be there
long. He also denied saying that his family did not need the business and that he
would close the plant before he would have a union there. From my observation
of his demeanor while testifying, I did not find Rosenfeld to be a credible witness.
Although he denied the abovementioned and other statements specifically, his
testimony was generally vague and evasive, often unresponsive, and sometimes self-
contradictory.8 Appropriate in this context is the comment of the Supreme Court in
N.L.R.B. v. Walton Manufacturing Company & Loganville Pants Co., 369 U.S.
404, 408:
For the demeanor of a witness ". . . may satisfy the tribunal, not only that
the witness' testimony is not true, but that the truth is the opposite of his story;
for the denial of one, who has a motive of deny, may be uttered with such
hesitation, discomfort, arrogance or definance, as to give assurance that he is
fabricating, and that, if he is, there is no alternative but to assume the truth of
what he denies." Dyer v. MacDougall, 201 F. 2d 265, 269.
Respondent offered several witnesses to corroborate Rosenfeld. However, none
of the Respondent's witnesses corroborated Rosenfeld's denial of the statement that
the reinstatees would not be there long. Nor, based on my observation of these
witnesses, can I credit their attempted corroboration of Rosenfeld. Moreover, their
testimony is contradictory in significant aspects. Illustrative are the following:
Respondent's witness, Marjorie Critchfield, testified that she attended all the
meetings that Rosenfeld called and that in none of his speeches did he ever bring
his family into it. This is in direct conflict with the testimony of Rosenfeld who
admitted that at one of the meetings he stated that he was 65 years old, that his
son Donald was in his grandfather's business , and that his daughter's husband is an
assistant attorney general of the State of Missouri. Critchfield's testmony is also
contradicted by that of Respondent's witnesses, Flossie Brooks and Mary Sue
Wood, both of whom testified that Rosenfeld said that his children were involved
6 Respondent argues that Jackson's testimony should not be credited because, inter alia,
an unfair labor practice charge had been filed on her behalf against the Respondent. (The
Regional Director refused to issue a complaint and his action was upheld by the Board.)
Granting arguendo that Jackson considered herself aggrieved by the Respondent, that
factor does not of itself render her testimony unworthy of belief In this instance, her
testimony is corroborated by other witnesses.
7 Jackson testified also that Rosenfeld told the employees to avoid the reinstatees. This
was partially corroborated by Woodard who testified rather ambiguously that Rosenfeld
told the employees that he wanted them to be nice to the reinstatees, but to avoid them.
Alford, however, did not testify with regard to Rosenfeld's alleged statement advising the
assembled employees to avoid the reinstatees, and blontine Pitts, who also was called by
the General Counsel, testified affirmatively that Rosenfeld did not say anything as to what
attitude the assembled employees should take toward the returning employees. In view of
the foregoing, I do not find the foregoing testimony with regard to Rosenfeld's alleged
suggestion that the reinstatees be avoided to be of sufficiently probative value and have
therefore disregarded it.
I It would lengthen this report unduly to catalog some of the numerous instances in
which this occurred . Suffice it to say that this analysis of his testimony is apparent from
a mere perusal of the transcript.
RIPLEY MANUFACTURING COMPANY 1139
in other businesses and that the plant was for the employees. Critchfield also
denied that Rosenfeld had ever mentioned the Union or the name of Perlstein
(the union organizer) in his speeches. This, too, is in direct contradiction of Rosen-
feld's testimony. Finally, Critchfield admitted that she did not listen to some parts
of Rosenfeld's speeches.
Respondent witness Brooks' recollection of Rosenfeld's speeches was limited
to that which was favorable to the Respondent. Although she conceded that
Rosenfeld might have referred to Perlstein as a peanut salesman, she denied that he
had done so when she was pressed for a definitive answer. This is in direct conflict
with Rosenfeld's testimony. So is her testimony that she did not remember Rosen-
feld's mentioning his age in a speech. Finally, Brooks admitted that she had not
paid too much attention to what Rosenfeld had said.
Respondent witness Woods' testimony presents a curious case of selective memory.
Thus, while she remembered Rosenfeld's speech of June 8, when he announced
that the six union members were to be reinstated, she did not remember whether
Rosenfeld made a speech 3 days later when, as he and others testified, he made
a speech to all the employees, introduced the reinstatees, and discussed the new
plant rules. Yet according to her testimony, she was at work that day.
In this context, the testimony of Supervisor Lois Catherine Forsythe, Inspector
Myrtle Husk, and Secretary Doris Sutton Sandlin, who testified for the Respond-
ent, are of no real probative value. Supervisor Forsythe admitted that she did not
attend all of the meetings called by Rosenfeld and could not remember which
of the meetings she had attended. She also admitted that she did not hear the
entire speech every time. Husk testified that she attended all of Rosenfeld's speeches,
but had never heard him make any threat to close the business, or that his family
did not need the business and that he could retire. Husk's testimony did not
relate to the speech of June 8; her recollection was admittedly of speeches made
by him after the reinstatees had returned. Husk denied having heard Rosenfeld
make any remarks about the Union; yet Rosenfeld admittedly talked about the
Union in his speeches. Sandlin testified that she attended only one meeting
and that she did not recall anything that was said because she was in the back
of the room and there was a fan running,
In view of the foregoing, I find that Rosenfeld, on June 8, stated to the employees
that the reinstatees would not be there long, that he would not negotiate with the
Union, and threatened to close the plant if the Union came in.
2. Threat of September 22, 1962
On Saturday, September 22, 1962, Rubye Garrett, Ruth Steelman, and Aunita
Emerson met with Rosenfeld in his office. Garrett, who appeared to be acting as
spokesman for the union employees, complained to Rosenfeld that a supervisor had
refused to allow employee Florence Jackson to ride with her to work that day.
Rosenfeld thereupon became angry, called Garrett a meddler, and told her that
he did not intend to get involved in such petty things. Garrett testified further:
He said that he wished Perlstein wasn't afraid to take it to a vote, and he
said, "I wish it would go 200 to 1 for the union," and he said, "I am 66
years old," and said, "This mess is not for me." He said, "I'm too old to put
up with this," and he said, "I wish the union would take it to a vote and would
go in 200 to I." He said, "There wouldn't be no factory." He said, "I would
take that long needed rest."
The foregoing threat by Rosenfeld was testified to also by Steelman and Emerson.
Rosenfeld admitted that the meeting occurred, and that he told Garrett she
was beginning to be a meddler, but denied that he uttered any threats to close
the plant. His testimony was corroborated by Lindel Bowie and Doris Sandlin.
For reasons heretofore discussed, I do not credit Rosenfeld's denial. Nor can I
consider Bowie's testimony as corroborating that of Rosenfeld, since Bowie ad-
mitted that he was out of the office during part of the conversation. Sandlin, Rosen-
feld's secretary, testified that about 5 minutes after the conversation began she
started to look for a certain paper in a drawer but that while she did so she listened
to the conversation. In view of this distraction, I do not consider that Sandlin was
an attentive witness to the conversation. On the other hand, I found Garrett,
Steelman, and Emerson to be credible witnesses who testified fairly and in a straight-
forward manner. I, therefore, find that on September 22, Rosenfeld did threaten
to close the plant if the Union came in.
727-083-64-vol. 144-73
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Threat of September 26, 1962
On September 26, 1962, Rosenfeld made a speech to the employees. During
the speech, he read from a letter which he received from Garrett and Emerson
in which they expressed their appreciation for their return to their old jobs but
complained of harassment by other employees. Rosenfeld said that he did not
believe that any of his supervisors would let anything like that go on and, if they
did, it was not under his command. He then referred to Union Organizer Perlstein
and expressed the belief that Perlstein did not have six votes in the whole factory.
He related an incident occurring in 1954 in which, according to Rosenfeld, the
Charging Union had made a deal with Printz Biederman, a company in which
Rosenfeld was then interested, as a result of which he claimed he had been double-
crossed. Emerson shook her head negatively as Rosenfeld told of his past troubles
with the Union and Printz Biederman. This gesture apparently infuriated Rosen-
feld. According to Woodard's credited testimony, Rosenfeld said that, if the
Union got into the plant, "he would close the factory down. He would retire. He
didn't have to run the factory. His family didn't need the factory." Woodard's
testimony is partially corroborated by Garrett who quoted Rosenfeld as saying
that his family did not need the business and that he would not negotiate with the
Union.9
Rosenfeld admitted making a speech to the employees on September 26, and that
he had gone into great detail concerning his relationship with the Union and with
Printz Biederman Company in 1954. He denied making the threats attributed'
to him, although he admitted that "in the heat and disturbance that Aunita [Emerson]
caused, I could not remember verbatim what I said." 10 I have previously indicated
that I did not credit Rosenfeld's testimony with regard to threats made by him
on other occasions. I reject his testimony here also. With regard to Respondent's
witnesses who testified that they had never heard Rosenfeld make any threats to
close the plant if the Union came in. I have previously indicated the lack of
probative value of such testimony."
In view of the foregoing I find that Rosenfeld on September 26, 1962, threatened
to close the plant if the Union came in.
D. Respondent 's speeches on June 11 and 14, allegedly subjecting certain union
member employees to scorn and ridicule
In paragraph 13 of the amended and consolidated complaint, it is alleged that the
Respondent, by its officer and agent, Milton Rosenfeld, in speeches made on or about
June 11 and June 14, 1962, to a large number of employees subjected employees
Garrett, Reece, Emerson, Russell, Escue, and Medile to scorn and ridicule In sup-
port of the foregoing allegations, employees Garrett, Medile, Russell, Escue, and
Emerson testified credibly that on the morning of June 11, 1962, pursuant to earlier
correspondence with the Respondent, they met with Rosenfeld in his office at the
plant; that thereafter Rosenfeld took them to the lunchroom, where the rest of the
plant employees were enjoying a break, and made a speech to the employees, intro-
duced them by name, and referred to them as the "union girls and Joseph Medile "
Rosenfeld then referred to a set of rules which he had promulgated. He read some
of them and then announced that copies would be given to each employee. He did
however emphasize one of the rules-an oral rule against solicitation , including solici-
tation for the Union, on working time or in the restroom during break periods
On June 14, Rosenfeld made another speech to the assembled plant employees in
which according to the credited testimony of Emerson , Garrett, and Russell,12 he
In its brief, Respondent argues that employees Medile, Russell , and Escue testified re-
garding this meeting and that none of these employees attributed to Rosenfeld the state-
ments which Woodard and Garrett did. The record shows that Medile was not present
at this meeting, having been discharged on July 9, 1962 (General Counsel's E\hibit No. 7)
Russell did not testify concerning the speech of September 26 It is true that Escue
testified that she did not recall Rosenfeld's saying in his speech that he would do anything.
I do not consider this lack of recollection on her part as negating the affirmative evidence
of Woodard and Garrett.
"Rosenfeld admittedly has a phobia about people shaking their heads negatively when
he is talking . Such an incident occurred during the hearing when persons in attendance
shook their heads while Rosenfeld was testifying This infuriated him.
u In addition it should be noted that Critchfie ] d testified that she did not recall Rosen-
feld's talking about Printz Biederman Company, a fact which Rosenfeld , himself, admitted.
li Escue testified that she was not present for the entire speech and did not recall
much of it.
RIPLEY MANUFACTURING COMPANY 1141
told the employees that the union girls would be coning around visiting them at their
homes. He said, "You don't have to listen to them. You can slam the door in their
faces and you won't be arrested, I'll assure you you won't."
It is the General Counsel's theory that Rosenfeld's speeches were designed to humil-
iate the six reinstatees, to set them apart from the other employees, and embarrass
them in the eyes of the other employees. I cannot agree. Whatever may have been
Rosenfeld's purpose in introducing these employees to the rest of the plant, I do not
consider the appellation "union girls" as a term of opprobrium or as having any
derogatory significance.13 That the six reinstatees were union members was a fact
which was well known to the other employees. Indeed, the Union in a bulletin
which it had distributed to the employees quoted from the Intermediate Report of the
prior proceeding in which it was recommended that the Respondent be required to
offer reinstatement to these named employees. Nor, in my opinion, do these words
acquire added significance because this speech was preceded by one on June 8 (when
the reinstatees were not present) and in which, as I have found above, Rosenfeld told
the employees that the reinstatees would not be there long, that he would not deal
with the Union, and that he would close the plant if the Union came in. In sum,
since these reinstatees were known to be union members, the fact that Rosenfeld de-
scribed them as such after having indicated his union animus did not amount to a
ridiculing of these employees.
Nor does the fact that the Respondent at the same time announced a no-solicita-
tion rule and threatened to fire anybody who violated it transform an otherwise in-
nocuous statement into a statement of scorn and ridicule. Whether the no-solicitation
rule was valid and whether the Respondent by promulgating the rule and threatening
to enforce it by discharging violators independently violated the Act, is not relevant
in this context. This is a matter which I shall discuss in a separate section, infra.
Viewing the matter only from the question whether the six reinstatees were thereby
ridiculed, I must conclude that they were not.
Turning now to Rosenfeld's speech of June 14, in which he told his listeners that
when the union people came to their homes to solicit their membership in the Union,
they could slam the doors in the faces of the union members if they were not inter-
ested in joining the Union, I conclude that this statement, also, did not constitute a
ridiculing of the union members Rosenfeld told the employees nothing more than
what their rights were-that they had the right not to listen to union solicitation,
albeit he illustrated that right by pointing out that they could slam the door in the face
of the union solicitors if they felt so inclined. In any event, Rosenfeld was thereby
exercising his right of free spech, an activity protected by Section 8(c) of the Act.
The General Counsel has not referred me to any decisions holding that by any
of the foregoing statements Rosenfeld held the reinstatees up to scorn and ridicule
and thereby independently violated the Act, and I have found none I have, there-
fore, concluded that the violations alleged in paragraph 13 of the amended and con-
solidated complaint have not been proved. Accordingly, I shall recommend that the
complaint be dismissed as to paragraph 13.
E. Failure of the Respondent to reinstate the employees to their former or
substantially equivalent positions
1. Rubye Garrett
Rubve Garrett had been a sleeve maker at the time of her April 1961 layoff.
When she returned to work in June 1962, she was assigned to setting linings. She
told Rosenfeld that she did not know anything about setting linings. that she had never
done that He asked her to try it, and she answered, "Yes, sir, I'll try a while and
see what I can do on it." Garrett found that setting linings was a more difficult job
in that it was necessary to handle the entire coat, whereas in sleeve making, it was
necessary to handle only sleeve material. On or about July 12, she complained to
Rosenfeld that the job of setting linings was not substantially equivalent to her former
position of making sleeves. She pointed out that she could not earn the minimum
wage of a $1.15 an hour (although she received $1.38 per hour based on her last 6
months' average); that the most she had earned was a $1.06 an hour.14 Since her
is Of course, it is possible that statements not derogatory per se may be made in such a
manner, as by voice inflection, accompanied by gestures, etc , as to convey to the listeners
a derogatory connotation However, there is nothing in the record to indicate that this
occurred in relation to these statements.
14 According to Garrett's uncontradicted testimony, her production did not equal her
rate of pay until the last week that she was on lining setting, more than 3 months after
being put on that job.
C.
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production did not equal her actual pay, she was ineligible for a bonus. Another
consequence of her failure to earn her average would be that she might be discharged.
Rosenfeld promised to look into the matter. On September 25, Garrett was put back
on sleeve making where she worked for 1 week. Then, she was transferred from
time to time to the shearing machine and the knife machine until the last 2 weeks
before this hearing commenced. Since then, she has worked only on sleeve making.
Prior to her layoff in April 1961, Garrett had worked on sleeve making almost
exclusively. When she returned in June 1962, there were only two full-time
sleeve makers in the plant: Martha Savage and Ella Land.15 Land had not been
working for the Respondent at the time of the layoff, and Savage had been trans-
ferred from the Respondent's branch at the Boydston Building some 3 months
before the layoff. At the time of the layoff, Garrett's production record was
substantially greater than that of Savage whose production did not equal the
minimum wage.
Supervisor Forsythe testified that one reason why Garrett was not returned to
sleeve making when she was reinstated was that she was not needed on that job,
but was needed to fill a vacanacy in lining setting. However, Respondent's own
records disclose that on June 11, 1962, the day that Garrett returned to work,
Respondent hired a new employee, Earlene Brazier, as a sleeve maker. Supervisor
Forsythe also attempted to justify Respondent's action in putting Garrett on lining
setting, by stating that Garrett was a sloppy worker, and since the lining seams
would not be visible, she was doing Garrett a favor by putting her into that job.
Respondent's explanations are wholly unconvincing. Since there was a sleeve
making job open on June 11 when Garrett was reinstated, Garrett was entitled
to be reinstated to that position. Instead, Respondent hired a new employee to fill
that position. Similarly, Garrett had seniority in the sleeve making job over the
other two regular sleeve makers, Land and Savage, and Garrett's testimony that her
production rate was higher than that of Savage was not controverted. The sug-
gestion that Garrett was a sloppy worker and therefore Respondent's action in
assigning her to lining setting was a favor to her, appears to be an effort to clutch at
a straw. Garrett had been on sleeve making for approximately 3 years, and if her
work was poor, it is reasonable to believe that the Respondent would have taken her
off of sleeve making a long time ago.
I find that setting linings was not a substantially equivalent position to that of
sleeve making. Sleeve making entails handling two small pieces of cloth, whereas
setting linings requires handling the entire coat. The latter is obviously a more
difficult job from a physical standpoint. In addition, it is not disputed that, although
Garrett received her regular rate of pay, she did not earn that amount from a
production standpoint and, therefore, was ineligible for a bonus. Accordingly,
I find that the Respondent's failure to reinstate her to her sleeve making position in
June 1962, was discriminatory conduct by the Respondent because of Garrett's
union membership and activity and because a charge had been filed on her behalf
and because she gave testimony under the Act in the prior proceeding.
Garrett, in good faith, agreed to try lining setting when she was reinstated, al-
though she was completely inexperienced at that work. A month later, having
given her new job a fair trial, she asked for reassignment to her old position. Yet
more than 2 months elapsed thereafter before she was reinstated to a sleeve making
position. Under all the circumstances, this inordinate delay can be attributed
only to Respondent's discrimination against her because of her union membership
and activity and because she had availed herself of the Board's facilities and
procedures as aforesaid.
After having been returned to sleeve making, Garrett was called upon from
time to time to operate a shearing machine and a knife machine. These assignments
were defended by Supervisor Forsythe who testified that these operations go along
with sleeve making; that some sleeves have to be sheared and that some have
cuffs that have to be set on with the knife machine and "we always let a sleeve
maker or switch operator do that. Usually a sleeve maker." She testified further
that sleeve makers Savage, Carmack, and Worlds performed these operations.
However, it does not appear that Ella Land and Earlene Brazier performed these
operations. Although these machines are entirely different from a straight sewer
used in sleeve making, I might under other circumstances conclude that it was within
the prerogative of management to switch employees to other operations related to
sleeve making. In the circumstances of the instance case, I cannot so conclude.
I have found that Respondent's failure to reinstate Garrett to her sleeve making
position in June 1962 was a form of discrimination against her because of her union
Is According to Supervisor Forsythe, Respondent employees Dorothy Holcomb and Louise
Carmack also worked on sleeve making part of the time
RIPLEY MANUFACTURING COMPANY 1143
activity and membership and because a charge had been filed on her behalf and
she gave testimony under the Act. I also find infra , that after Respondent put Garrett
back on sleeve making , it harassed her about the quality of her work and threatened
to discharge her if the quality did not improve. In this context , Respondent 's action
in switching Garrett from sleeve making to operating a shearing machine and a knife
machine was designed to harass her and was part of a course of conduct discrimina-
tory to Garrett because of her union membership and activity and because she availed
herself of the Board 's facilities and procedures as aforesaid , and I so find.
2. Jean Russell
Prior to her layoff in April 1961, Jean Russell was employed as a hand presser,
doing primarily hand fore pressing . ls When she returned to work in June 1962,
she was put in the job of machine final pressing , an operation at which she had no
experience . It is apparent, and the record shows, that machine pressing involves
different motions and operations from hand pressing . Russell testified that she
considered machine pressing harder than hand pressing . On or about July 12,
1962, Russell told Rosenfeld that she did not think her job was equivalent to the one
that she had had before her layoff. She told him also that she was concerned about
losing her job, as one Jerry Craig, who had previously held that position , was due to
return from military service . On or about November 1, 1962, Russell was given
some hand fore pressing to do in addition to machine pressing . Russell testified that
she could do well at either hand pressing or machine pressing ; that although her
earnings as a machine presser had increased over her previous rate, the effect of
switching her from one operation to the other was to decrease her production and
earnings.
Supervisor Forsythe testified that when Russell returned , the Respondent needed
somebody to machine press and did not need anyone to hand fore press; that
Respondent then had four hand fore pressers ; that other hand fore pressers did one
or more of the following operations in addition to hand fore pressing ; pressed
bodies, worked on furs, operated the label machine , and pressed linings. She also
testified that the other machine final pressers also did machine fore pressing and
pressing linings. Forsythe also testified that Russell was given hand fore pressing
because Rosenfeld had reported that she was dissatisfied and wanted her job back
and that two of the hand pressers had quit.
Russell testified without contradiction that there were two hand fore pressers
employed by the Respondent at the time of her layoff, and that only one of these
was doing this work when she was reinstated . She also testified that when she
was reinstated there were four employees engaged in hand fore pressing , three of
whom had not done this work when she was laid off in April 1961.
It is apparent that machine final pressing is an entirely different operation from
hand fore pressing and is not substantially equivalent to the latter, and I so find.
I further find that Respondent 's action in not reinstating her to a hand pressing job
was discriminatory conduct motivated by Russell 's union membership and activity
and by the fact that a charge had been filed on her behalf and she had given
testimony under the Act, as was its subsequent conduct in disregarding her com-
plaint for some 31/2 months and then requiring her to switch between machine final
pressing and hand fore pressing.
3. Aunita Emerson
Aunita Emerson , prior to her layoff in April 1961, set facings on a knife
machme.17 When she was called back in June 1962, she was put on the job of top
stitching , an operation with which she was not familiar. During the last week of
August 1962, she complained to Auditor Gerald Ham, in Rosenfeld's absence, that
she was losing time and money on the top stitching job because she was being laid off
from 1 to 3 day a week due to lack of work, that her work was not equivalent to her
old job, and that she wanted her old job back . She pointed out that certain styles
do not require top stitching . When she ran out of work she was sent home, except
for one-half a day when she was put on setting facings. She would seldom run out of
work when she had been setting facings . Thereafter , Emerson was given two jobs,
top stitching and setting facings. On or about September 24, 1962, Respondent
assigned her to setting facings and collars.
10 Hand fore pressing is a preliminary pressing operation done with a hand steam iron,
in which seams around the sleeve , dart, and collar are pressed open.
17A knife machine cuts the material , sews it at the same time, and attaches tape to the
coat.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Supervisor Forsythe testified that when Emerson came back to work in June
1962 she was put on the top stitching operation because there were not many facings
to be set; that the styles had changed and two-thirds of the coats had a creased
front which did not have a set-on facing; and that Emerson was put back on
setting facings when Rosenfeld told her that Emerson was dissatisfied with her job.
She also pointed out that the Respondent had a pretty good size cut of coats that had
set-on facings, a shawl collar coat.
It is apparent from the record that the job of top stitching is entirely dissimilar
from setting facings. Top stitching is done with a straight sewer or with a double
needle machine on various parts of a coat depending on the style, e.g., pockets,
*arm holes, and neckline; whereas facings are set on a knife machine which cuts
the material, sews it at the same time, and attaches tape to the coat. Aside from
the physical difference of the two operations, there was an important financial
difference to Emerson.18 From the middle of August to the middle of September
while she was engaged in top stitching, she was laid off from 1 to 3 days a week
due to lack of work.
I find that the two operations are substantially dissimilar, that Emerson was
not offered substantially equivalent employment when she was reinstated, and
that Respondent's refusal and failure to do so was motivated by Emerson's mem-
bership in the Union and the fact that a charge had been filed on her behalf and
she gave testimony under the Act in an earlier proceeding. The excuse offered
by the Respondent, viz, that because of a change of styles there was not much
facing work is negated by the circumstances of this case. Supervisor Forsythe
admitted that when Emerson returned to work, another employee, Noda Brad-
ford, set facings and that another employee, Ida Sauls, a switch operator, also
set some facings. Apparently, then, there was enough facing work to be done
to occupy the time of more than one employee. Respondent had the burden
of establishing that Emerson's job was not available when she was reinstated.
N.L.R B. v. Cambria Clay Products Company, 215 F. 2d 48, 56 (C.A. 6); Fred
Snow, et al., d/b/a Snow & Sons v. N.L.R.B., 308 F. 2d 687, 695 (C.A. 9). Respond-
ent did not sustain this burden. It is not enough to show that the available work was
being handled by an employee already on the job The record does not show when
Noda Bradford was employed. For aught that appears in the record, Emerson may
have had seniority over Bradford and if so, should have been restored to that job. In
view of this lack of proof by the Respondent, the alleged lack of work to justify the
employment of another face setter does not excuse the Respondent's failure to
reinstate Emerson to her former position. And inasmuch as Emerson suffered a
loss of earnings as a result of Respondent's failure to reinstate her to her former
position, the Respondent should be ordered to make her whole.
4. Evelyn Escue
Evelyn Escue was reinstated to her job in the cutting department, which she had
held at the time of her layoff in April 1961. It is the General Counsel's contention
that during her layoff the Respondent had given a wage increase to all employees
in the cutting department and that upon her return to her job Escue was not given
the full benefit of that increase. The relevant facts are as follows: At the time of
her layoff in April 1961, Escue received $1.05 per hour. When she was reinstated
she received $1.20 per hour. During her layoff, the minimum wage was increased
by Federal legislation to $1.15 per hour. In May 1962, the Respondent granted
wage increases to the employees in the cutting department. These increases ranged
from 5 cents per hour for one employee to 20 cents per hour for the supervisor
of the cutting department. All of the other employees in the cutting department
received a 10-cent per hour increase.
The General Counsel argues that, had Escue been employed during the period
of her layoff, her pay would have been increased to $1.15 per hour when the minimum
pay was increased; then, in May 1962, she would have received at least a 10-cent
raise. Therefore, he concludes, her pay would have been at least $1 25 per hour,
or 5 cents above her present rate. The contention must be rejected. Since one
employee, Jerry Cantrell, received only a 5-cent per hour increase, it is sheer
speculation to argue that Escue would have received a 10-cent per hour increase.
As the basic premise is lacking, it cannot be concluded that Respondent's failure
to reinstate her at $1.25 per hour was discriminatory. Accordingly, it will be
is On cross-examination, Emerson stated that some of the top stitching was harder and
some easier than setting facings, and conceded that the real difference was financial. I
construe her statement to mean that, having acquired proficiency in top stitching, she was
no longer concerned with the difference in the operations from a physical viewpoint
RIPLEY MANUFACTURING COMPANY 1145
recommended that paragraph 10 of the amended and consolidated complaint insofar
as it relates to Evelyn Escue should be dismissed.
5. Joseph Medile
The alleged failure of the Respondent to reinstate Joseph Medile to his former
or substantially equivalent position is discussed in the following section which
treats also of Respondent's alleged ridiculing and discharging of Medile.
F. Respondent's discriminatory conduct toward Joseph Medile
Joseph Medile had been employed by the Respondent as a maintenance man
from 1957 until his discriminatory layoff in April 1961, except for a 1-year
period during 1959 and 1960. His work consisted of installing and repairing
machinery, carpentry, electrical work, and the care of the plumbing and boilers.
Prior to his layoff in April 1961, Medile did the maintenance work at the Boydston
Building branch. When the branch was closed, he transferred the machines to the
main plant and installed them there. About a week before his layoff, Medile was sent
to work at the company house. This was in accordance with the Respondent's policy
to give employment to the male employees during the slack season. Medile and Billy
Shumate, a cutter, were assigned the job of painting the outside of the company house.
When Medile was reinstated in June 1962, he was sent to work at the company
house under the supervision of Mrs. Milton Rosenfeld. There, he did odd jobs such
as washing windows, hanging pictures, cutting grass, and washing the garbage can.
He also removed the stucco in the bathroom to repair a leak. Medile did not com-
plete his work on the bathroom because Rosenfeld failed to order the tile and sheet
rock. Medile thereupon returned to the plant. He was not given any maintenance
work to do, nor was he placed under the supervision of Earl Goodwin, who was
in charge of the maintenance men. Instead, he sat on a chair outside of Rosenfeld's
office and ran errands and did odd jobs at the direction of Rosenfeld, who testified
that he considered himself Medile's supervisor.
In the latter part of June, Medile was assigned to work on the company ballpark.19
He worked there under the direction of Coach George Kelly, and with four high
school boys erected a fence around the ballpark. Rosenfeld then directed him to
paint the fence, but Coach Kelly preferred to have Medile build dugout seats for the
ball teams. This Medile did. About 4 o'clock in the afternoon of July 3, when
Medile had finished making the seats, he went into the factory. George Zacour,
Respondent's industrial engineer, and Lindell Bowie were in the lunchroom when
Medile entered. They asked him how he was doing and he told them that he could
not stand much more of the heat 20 Zacour said that there was nothing that he could
do about it.
On July 5, Medile came to the plant and inquired for Rosenfeld. When he learned
that Rosenfeld was out, he approached Paul Rigney, president of Bixby Hall Coat
Company, an affiliate of the Respondent, and asked him what there was for him to do
that day. Rigney indicated that Rosenfeld wanted Medile to paint the fence. Medile
said, "Mr. Rigney, as long as I have worked for this Company, I don't think I have
ever done anything like this. I don't think this work is equivalent to anything I have
ever done." Rigney then changed the subject and Medile returned to the ballpark
and painted the fence. The weather continued to be hot, and at the end of the day
Medile was dizzy, weak, and faint. He told Zacour that he did not think he could
stand any more of working in the sunshine all day.
On July 6, Medile reported to work and saw Rigney, who told him to report to
Earl Goodwin. He asked Goodwin what he was supposed to do, and he was told to
paint the fence. Medile noticed that the material to complete the repairs to the
bathroom had been delivered and was behind the plant. He asked Goodwin what
they intended to do about completing the repairs, and Goodwin replied that he did
not know. Medile then went down to the ballpark and painted the fence The
weather continued to be hot. It had rained the night before and the moisture was
evaporating from the ground. At noon, Medile returned from the ballfield and met
Ham at the front entrance of the plant. He told Ham he would like to make a com-
plaint, and Ham thereupon returned to the office and asked Rigney to be present.
Medile told them that "the heat is terrific out there. It looks like you could have
19 The Respondent maintained a ballpark near the plant for a softball team which it
sponsored
10 The record shows that it was extremely hot and humid during this period The tem-
perature was in the nineties
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
me do something else besides this ball diamond work in the heat of the day." He
told them further that he would like to have some other work and he was going to
sit down until he found out exactly where he stood in the matter He received no
satisfaction from them and sat outside Rosenfeld 's office. Later that day, he talked
to Rigney in the presence of Ted Sutton . He said, "Mr . Rigney, as long as you have
known me I have never shirked anything that I had to do and I would like to do
what is right , but I don't think this work is equivalent to what I have done in the
past and I would like for you to give me something to do." Rigney answered, "This
is all that I know there is for you to do, Joe." Medile then asked about the material
for the bathroom , and Rigney said, "I don't know what they intend to do with that
and this is the only job there is to do." Medile thereupon got his paint brush, went
out to the ballfield and continued to paint the fence for the remainder of the day.
On Monday , July 9, when Medile came to the plant , he met Earl Goodwin at the
back door and asked Goodwin what there was for him to do that day. Goodwin said
that Medile was to paint the fence . Medile asked Goodwin if he was his supervisor,
and Goodwin said that he was not. After clocking in , he met Zacour and said, "Mr.
Zacour, I hate to go back out on the ballfield because I feel the sun is injuring my
health." Zacour answered , "Well, it's the only thing I know for you to do." Medile
asked Zacour if the latter was his supervisor , and Zacour said that he was not. About
that time, Ham came up and Zacour said , "Joe wants to know who his supervisor
is." Ham replied , "Well, I'm not because I'm the auditor here. I'm not a supervisor."
Medile thereupon went to his seat outside of Rosenfeld 's office. Rosenfeld was not
in the plant that day. Later, Ham came by and asked Medile if he was going to sit
there or work . Medile replied, "Mr . Ham, I 'm trying to find supervision and equiv-
alent work to what I was doing in the past ." Ham suggested that Medile clock out,
but Medile indicated that he would rather wait to see what was going to happen.
Later that day, Medile was told that Bob Rosenfeld , President Milton Rosenfeld's
son, was on the telephone and wanted to talk to him. Bob Rosenfeld told him that
Rigney and Sutton were listening in on extensions . He said, "I want to ask you one
question . What were you doing on the day of your termination ?" Medile answered
that he was painting the outside of the company house. Bob Rosenfeld replied, "That's
all I wanted to know, Joe. Thank you."
Somewhat later , Zacour called Medile into the office and said, "The fence needs
painting . We've asked you to fix the fence . Do you refuse to work?" Medile
answered , "Mr. Zacour, I don't refuse to work. I asked for equivalent work."
Zacour replied , "We've asked you to work and you've refused to work." Medile said,
"I haven 't refused to work. I have asked for equivalent work. Mr. Zacour , you're
trying to get me to say something that I'm not going to say." The conversation con-
tinued in this vein until the noon buzzer sounded, whereupon Medile said that he
was going to go to lunch . After lunch, Zacour called Medile into the office and said,
"Now I have asked you to work and you refused to work, and I have no alternative
then but to give you this ." He handed Medile a separation slip indicating that Medile's
discharge was due to "refusal to do assigned work and insubordination."
Concluding Findings as to Medile
I find and conclude that Medile was not reinstated to his former position or to a
substantially equivalent position ; that Respondent 's failure to so reinstate him was
discriminatory conduct toward Medile because of his union membership and activity
and because a charge had been filed on his behalf and he gave testimony under the
Act; and that Respondent's conduct was designed to bring about either his resignation
or discharge . To assign a man whose primary job was the installation and repairing
of machines such odd jobs as washing windows, hanging pictures , cutting grass, and
washing the garbage can , was obviously discriminatory conduct and cannot by any
stretch of the imagination be said to constitute reinstatement to a substantially
equivalent position . Respondent argues that when Medile was called back in June
1962 , he was put in the same position which he held prior to April 1961, i e., working
on the company house. This is an oversimplification of the facts . Respondent's male
employees were assigned to work on the company house during the slack season when
the plant was not in operation . But the plant was in operation when Medile was
reinstated in June 1962. Moreover , Eli Etheridge , a less skilled maintenance man, was
kept at work at the plant?'
Another form of Respondent 's discriminatory conduct toward Medile was Rosen-
feld's action in keeping Medile stationed outside of his office to run errands and do
odd jobs when he was unable to complete the work on the bathroom in the company
n Rosenfeld admitted that Etheridge was not a machinist . Medile was a machinist; in
fact, between 1957 and 1959 he was the only maintenance man in Respondent 's plant.
RIPLEY MANUFACTURING COMPANY 1147
house. Unquestionably, this was a degrading experience for Medile. It brought
about remarks such as Supervisor Forsythe's, who said as she passed by: "Well Joe,
you're taking it easy."
The campaign of discrimination and harassment continued when Medile was
assigned to work on the ballfield in unusually hot weather. Had Medile been
assigned to his regular work of plant maintenance, he would have been working
in an air-conditioned atmosphere. Instead, despite his complaints, he was required
to work in the hot sun. Respondent sought to justify its conduct by pointing out
to Medile that when he was terminated he had been painting the outside of the
company house. But there is an obvious difference between outside painting in
April and in July. Moreover, it is significant that Medile was required to work
on the ballfield even after the material for the repairing of the bathroom had
been delivered, when he could have worked in the company house protected from
the sun. In these circumstances, it is impossible to conclude other than that
Respondent's entire course of conduct after Medile returned to work was designed
to bring about his termination.22
There is another factor which demonstrates that the Respondent did not reinstate
Medile to his former or substantially equivalent position. When Medile was termi-
nated in April 1961 his pay was $1.15 per hour. When he was reinstated in June
1962, he was paid at the same rate. Medile's pay rate was the highest among the
maintenance men in April 1961 when he was terminated. Yet it was the lowest
when he returned in June 1962. Even Etheridge, who had been hired since Medile's
departure and who admittedly was less skilled than Medile, received $1.20 per
hour. Furthermore, all three maintenance employees had received a pay raise on
May 12, 1962. Goodwin and Ozell Hargett received an increase of 10 cents per
hour, and Etheridge an increase of 5 cents. Respondent defends the increase as
a merit increase. However, this contention must be rejected, as all maintenance
employees received the increase on the same day, which significantly was the same
day that the employees in the cutting department (who also worked on an hourly
rate) received an increase. In view of the foregoing, I find that Respondent's con-
duct in reinstating Medile at the same rate of pay he had when he left, which,
since his departure, had become the minimum rate allowed under the minimum
wage law, was another form of discrimination against him.
As I have indicated, Respondent's assignment of Medile to work on the ballfield
under unbearable conditions was part of a plan of discriminatory conduct to bring
about either his discharge or his termination. Thus, when Medile, after working
on the ballfield for several days, refused to continue, Respondent promptly dis-
charged him. The plan had succeeded. As Medile's refusal to continue to work
on the ballfield was the result of Respondent's discriminatory conduct against him,
his discharge was also discriminatory, and I so find. I shall therefore recommend
that the Respondent be required to offer Medile reinstatement to his former position
or to a substantially equivalent position and that Respondent make him whole for
any pay that he may have lost by reason of Respondent's discrimination against him.
G. The alleged harassment and interrogation of Rubye Garrett
Paragraph 17 of the amended and consolidated complaint of November 15, 1962,
alleges that on or about October 18 and 19, 1962, Respondent interfered with and
harassed employee Rubye Garrett in the performance of her duties. Paragraph
19 of that complaint alleges that on or about October 19, 1962, Respondent, by
Supervisor Forsythe, interrogated its employees concerning their union membership,
activities, and desires and the union membership, activities, and desires of other
z General Counsel relies on another incident which, it is claimed, shows that Respondent
sought to use Medile as a court jester Medile testified that on a trip which he, Rosenfeld,
and another employee, Scott White, took to Memphis for the purpose of purchasing mate-
rials for the bathroom, Rosenfeld made vulgar remarks about Union Organizer Perlstein,
and gave him an obscene message to deliver to Perlstein Medile delivered the message.
The next day, Rosenfeld asked Medile whether he had delivered the message, and Medile
told him that he had done so. This, according to Medile, amused Rosenfeld so much that
he had him repeat the message to various persons who came into the office that day, much
to the amusement of Rosenfeld and the various listeners Based on Medile' s demeanor
while testifying, I believed him to be a credible witness and was inclined to believe his
testimony in this regard However, Sutton, Lindell Bowie, Goodwin, and Kelly, to whom
Medile said he repeated the message at the 0 R. instance of Rosenfeld, all denied hearing
Medile relate the message. These witnesses also appeared to me to be credible witnesses.
Under the circumstances, I must conclude that the General Counsel's case with regard to
this incident has not been proved by a preponderance of the evidence.
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees. The evidence concerning the alleged interrogation related only to em-
ployee Garrett, and inasmuch as the alleged interrogation and interference and
harassment grew out of the same series of incidents, they will be discussed together.
On October 18, 1962, after she had been returned to sleeve making, Garrett
was called to the lunchroom. There, she was met by Rosenfeld, Supervisors For-
sythe and Carmack, and Inspector Husk. Rosenfeld asked Garrett if she realized
that her work was bad and had to be sent back to her to be done over. Garrett
replied that she was not aware that she was getting back more work than any other
employee; that there was only one style being returned to her. Rosenfeld asked
Supervisor Carmack if the latter statement was true, and she said that it was.23
On the following workday,24 Garrett was called to the cutting table area where,
in the presence of Supervisors Forsythe and Carmack, Designer Dominic Pennes
showed Garrett some sleeves and told her that this was some of the worst work
he had ever seen .25 As it was the practice of operators in Respondent's plant to do
over any bad work, Garrett offered to take the bundles of sleeves and do them
over. Supervisor Forsythe however refused to let her take all of the sleeves saying,
"No, we need these sleeves." She took them to the office and presumably they
are the same sleeves which were later produced at the hearing.
Later that day, after the 2:30 break, Supervisor Carmack called Garrett to the
lunchroom. There she found Supervisor Forsythe, Inspector Husk, and Designer
Pennes. Supervisor Forsythe opened the conversation, saying: "Now, Rubye, don't
you think we are ganging up on you. We're not." Supervisor Forsythe then stated
that she had had a telephone conversation with Rosenfeld and that he told her
to forget about the bad sleeves and start over. She said, "We are just going to
forget about them, but the next time it happens, we are going to have to let you
go." Garrett replied, "Catherine, I don't see how you all could expect us to do
first-class work under the conditions we work under." She told her about four
of the girls that had been harassing her. Forsythe suggested that she pay no atten-
tion to them, and Garrett replied, "No, sir, I cannot, because it's all around me.
I'm not allowed to say anything at all about it, because if I do I will be fired."
Forsythe then said, "Well, look at all of the things you have said about me."
Garrett asked her whom she was referring to, and Forsythe said, "This organiza-
tional committee. I thought it was you and Florence and Aunita." Garrett said,
"Wait a minute, Catherine. I haven't said anything about you that I can't say
to your face. You're wrong." Forsythe answered, "Well, who is the organizational
committee then?"
At the hearing, Supervisor Forsythe explained in great detail how she had
traced the bad work to Garrett. I am satisfied that the sleeves exhibited at the
hearing by Forsythe were, indeed, sleeves that had been sewn by Garrett. Also,
to the Trial Examiner's inexperienced eye the sleeves exhibited did represent poor
workmanship. However, it is admitted that all employees did poor work occasion-
ally, and the work was brought back to them to be done over. Since these em-
ployees were on piecework, the work they did over was on their own time It is
clear from the record that Garrett was basically a good worker. It is admitted
that she worked on samples and duplicates 26
While it is not unusual for an employer to speak to an employee about poor work-
manship. the three incidents detailed above convince me that they were part and'
parcel of a plan by the Respondent to harass Garrett who was the spokesman for the
union employees. Thus, in the first incident, it was not a supervisor who spoke to
Garrett about her poor work; rather, it was President Milton Rosenfeld himself The
second incident could have been a happenstance, i.e., Designer Pennes just happened
23According to Husk, it was she who complained to Rosenfeld about Garrett's work
Husk admitted that Elizabeth Crowder, another sleeve maker, had a substantial amount of
work returned to her to be done over When asked why she did not mention Crowder's
work to Rosenfeld when she complained to him about Garrett, Husk answered • "Elizabeth
Crowder doesn 't run to Mr Rosenfeld every time she has a complaint, either "
24 According to Garrett's testimony the incidents here detailed occurred on October 18
and 19 . According to Supervisors Forsythe and Carmack and Inspector Husk, the in-
cidents occurred on October 19 and 22. The discrepancy is unimportant All agreed that
the second and third incidents occurred on the following workday. Thus, the incidents
occurred either on Thursday and Friday, or on Friday and Monday
23 Pennes testified that he looked at four or five sleeves in only one bundle
29 Duplicates are coats which are taken out by salesmen to show to retailers It is also
apparent from the record that Garrett was subjected to harassment by various antiunion
employees, and it is conceivable that this would have had an effect on the quality of
her work.
RIPLEY MANUFACTURING COMPANY 1149
to pick up some sleeves and looked at them. However, the third incident admittedly
was deliberate, Designer Pennes and Supervisor Forsythe both testified that they spoke
to Garrett a second time that day pursuant to instructions from Rosenfeld.
Thus,
Pennes spoke to Garrett twice on the same day about the same work, and Supervisors
Forsythe and Carmack and Inspector Husk spoke to her three times in 2 working
days. Moreover, on the third occasion, no work was shown to Garrett. In other
words, she was still being reprimanded for the same work. And significantly, on the
third occasion she was threatened with discharge unless her work improved. While,
as I have indicated, the second incident may have been a matter of happenstance, it is
peculiar that Supervisor Forsythe did not give Garrett back all of the work to be done-
over. Instead, she admittedly kept some work in the office to be used later as evidence
against Garrett. It is clear that this was done for the sole purpose of building a case
against Garrett. In view of the foregoing, I find that the Respondent harassed Gar-
rett and that such harassment was part of a plan of discriminatory conduct toward
Garrett because of her union membership and activity and because a charge had
been filed on her behalf and she gave testimony under the Act.
With regard to Supervisor Forsythe' s interrogation of Garrett, I find and conclude
that such interrogation, in the context in which it was made, was not an unfair labor
practice It was a spontaneous remark in a give-and-take discussion. It was not done
deliberately for the purpose of discovering whether Garrett was a member of the
organizing committee. Respondent knew that Garrett, Florence Russell, and Aunita
Emerson were active union members. Indeed, this was disclosed in the prior case.
Of course, if taken literally and out of context, the words used could be construed as
an inquiry into the composition of the organizing committee, i e., to determine who
the members were, in view of Garrett's denial that she, Reece, and Emerson consti-
tuted the committee. However, I do not so construe the question in the light of the
context in which it was put, namely, Forsythe's suggestion to Garrett that she dis-
regard the remarks of the antiunion employees just as she, Forsythe, had disregarded
the remarks made about her in letters sent by the organizational committee In view
of the foregoing, I find that Supervisor Forsythe's question to Garrett did not con-
stitute interference, restraint, or coercion within the meaning of the Act. According-
ly, I shall recommend that paragraph 19 of the amended and consolidated complaint
be dismissed.
H. The refusal to hire Josie Hill, Ruth Steelman, and Zola Dew
As indicated above, in 138 NLRB 1452, in which Zola Dew, Ruth Steelman, and
Josie Hill were among the Charging Parties, the Board found that none of them had
been discriminatorily denied reemployment. The Board's finding was based on the
subsidiary findings that the Respondent had no work available for Zola Dew and
Ruth Steelman when they applied; and in the case of Hill, there were no jobs available
until September 1961, when the Respondent made a reasonable effort to contact her
to offer her reemployment but was unable to reach her, as she was out of town at
that time. On June 9, 1962, they reapplied for employment with the Respondent,
after Respondent advertised in the local newspaper for "approximately 50 female and
male employees" for a contemplated twilight shift, i e., from 5 to 9 p m. Since that
date, the Respondent has also hired employees for its day shift.
1. Josie Hill
Josie Hill first worked for the Respondent in September 1954. She was laid off
in January 1961 (seasonal layoff). While employed by the Respondent, she worked
at various jobs, including side seaming, pressing linings, and the pinking machine.
Admittedly, she did not make production on the side seaming job. However, she
received no complaints as to her performance on the other operations. In 1956 or
1957 she took a leave of absence for an operation and was off for about a year.
When she came back she was again put at side seaming and was then switched to
cleaning chalk marks from coats, and matching backs and fronts for the side seamers.
This was a straight-time job, and there was no question about her making production.
She worked on this job for about a year before her layoff. As noted above, the Board
found in 138 NLRB 1452 that in September 1961 Respondent attempted to reach Hill
to offer her reemployment, but was unable to communicate with her due to her
absence from town.
Admittedly, the Respondent had hand sewing jobs open on and after June 9, 1962.
Respondent does not contend that Hill was unqualified for a hand sewing job or
any machine operating job which it filled after she applied for employment in
June 1962. According to Supervisor Forsythe, Hill was not considered for a hand
sewing job because she talked excessively when she had been on the cleaning job
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and because she had not made production on any other job. Respondent also relies
on the fact that when Hill applied for reemployment, she was given a test consisting
of placing colored nails into a small board according to colors: red, green, blue, and
yellow. This is a test to indicate whether the applicant is color blind and, according
to Zacour, to indicate the motion of the wrist and fingers. Hill's score was 4.78,
which Respondent characterized as a poor score.
It seems indeed strange that although Respondent was familiar with Hill's work
since September 1954, it should now require her to take a color blindness and wrist
dexterity test in order to qualify for reemployment 27 It is more reasonable to
believe, and I find, that Respondent used the test to set up another obstacle to her
reemployment, in the hope that she might fail the test. As to Forsythe's claim
that Hill had not made production on any other job, I credit the candid testimony
of Hill that she did not make production on the side seaming job but did make
production when she pressed linings. As to excessive talking, I credit Hill's denial
that she was guilty of that offense. And it is significant that, although Supervisor
Forsythe testified that Hill should have been discharged for excessive talking,
Respondent took no disciplinary action against her.
I find that the foregoing reasons offered by the Respondent were not the true
reasons for Respondent's failure to reemploy Hill. Rather, I find that the true
reasons were Hill's membership in the Union and the fact that a charge had been
filed on her behalf and she gave testimony under the Act in the earlier case. It is
significant that in the early part of September 1961, Respondent attempted to get
in touch with Hill to offer her employment. Manifestly, if the reasons now offered
by Respondent for refusing to reemploy Hill had any validity, Respondent would not
have sought to offer her reemployment at that time. Now, however, after a charge
had been filed on behalf of Hill in 138 NLRB 1452, and she had testified against
the Respondent in that proceeding, Respondent has concluded that Hill was not a
satisfactory employee. I therefore find and conclude that the reasons offered
by the Respondent for its refusal to rehire Hill are negated by its own earlier con-
duct and were merely pretexts for Respondent's discriminatory action against Hill.
2. Ruth Steelman
Ruth Steelman was hired in August 1959, was laid off in February 1961 (seasonal
layoff), recalled about April 6, and laid off again on April 28, 1961, when Respond-
ent closed its plant. She worked on basting, felling, and pinking machines. She
applied for reemployment on June 9, 1962, and was given the color blindness and
dexterity test which she completed in 3.89 minutes.28 She did not hear from the
Respondent and applied to Rosenfeld personally on September 22, 1962. She
has not been rehired.
Respondent contends that Steelman was not reemployed because the openings
were in the fur sewing department, i e., sewing fur collars onto coats; that Steelman
was left-handed; and that left-handed persons are not as efficient as right-handed
persons in a hand operation and would be awkward on a sewing machine. Zacour
testified further that the fur sewing department had been laid out so that only
right-handed people could be employed. He testified that the fur sewing depart-
ment was laid out in two columns of desks and chairs; that if a left-handed person
sat in the right-hand column her needle would be interfering with the person on her
left, while if she sat in the left-hand column her needle would be striking against
coats placed on a rack parallel with the left-hand column. Supervisor Forysthe
said that there was another reason why Steelman was not hired, namely, that she
had been tried on a straight sewer and could not make production.
I find that the foregoing reasons were not the true reasons why the Respondent
did not hire Steelman. The contention that a left-handed person is not as efficient
as a right-handed persons in hand sewing operations rests upon the uncorroborated
opinion of Zacour. He was unable to cite any studies that he had made on the
matter or studies or opinions of qualified persons in the needle industry, and Super-
visor Forsythe's views as to the relative efficiency of left-handed and right^handed
n In this connection, it is interesting to note that Zacour, himself, deprecated the test
as an indicator of an applicant's potential. He testified that for some jobs the test was
completely irrelevant, that "you always will have to try them out first on the job to see
how they are going to fare out regardless of what kind of a test you give them" As
noted above, Respondent was well acquainted with Hill's ability
28 Both Steelman and Hill testified that Zacour who gave the test complimented Steelman
on her score Zacour admitted that he might have done so. Steelman's score was obvi-
ously satisfactory, as Supervisor Forsythe admitted that the Respondent had hired appli-
cants with scores as high as 4.00
RIPLEY MANUFACTURING COMPANY 1151
persons was based solely upon what Zacour had told her. With regard to the
feasibility of using a left-handed person in the left column of fur sewers, I inspected
Respondent's plant at the conclusion of the hearing and paid particular attention
to the layout of the fur sewing department. I find that it is feasible to use a left-
handed person in the left column of sewers; that there is sufficient room between the
left column of sewers and the wall to permit the coat rack to be moved away from the
sewers so that a left-handed sewer would not interfere with the coats on the rack.
The record shows that between Steelman's application and the end of 1962, the
Respondent hired 22 persons to sew furs and 6 persons to do other hand operations.
I find that Steelman was-qualified for these positions.
The record also shows that on July 18, 1962, the Respondent hired Magdelene
Pilcher to operate a machine which tacked buttonholes. Supervisor Forsythe
admitted that left-handedness would not disqualify a person from operating this
machine.29 But, according to Forsythe, Steelman was not considered for this job
because Pilcher had applied before Steelman did. Pilcher was hired on July 18,
1962, more than a month after Steelman had applied for reemployment, despite
the fact that Pilcher admittedly did not have any experience in the garment industry,
whereas Steelman was an experienced operator.
In sum, I find that the reasons advanced by the Respondent for its refusal to rehire
Steelman constitute nothing more than a setting up of pretext after pretext, none of
which was the true reason for Respondent's refusal to rehire her. To the contrary, I
find and conclude that the reason Respondent refused to rehire her was the fact that
she was a member of the Union, had been named in a charge filed on her behalf,
and had given testimony under the Act in the earlier proceeding.
3. Zola Dew
Zola Dew came to work for the Respondent in December 1955. She was laid
off in January 1961 and reemployed on March 24. She worked the afternoon of
that day and received a call that evening from Supervisor Kirby who told her that
Rosenfeld had decided to put her in another department which had not been called
back to work at that time . She asked him if she was fired and he said "No." Dew
then asked for a "release" so she could seek employment elsewhere . She reapplied
to the Respondent for work in May 1961 and again on June 8, 1962 . On the latter
occasion , she filled out an application , but was not asked to take any test, nor was
she given an interview.
Respondent contends that Dew was terminated because on March 24, 1961, it had
introduced the line system ; that Dew was dissatisfied with the line system because
she would not earn as much as she had previously earned as a pieceworker ; that she
did a lot of talking to the other employees , complaining about the line system; and
that on the basis of this the Respondent would not consider hiring her again.
Dew was an efficient worker; her average earning was a $1 68 an hour , consid-
erably higher than most of the employees . Under the line system , her earnings would
be substantially less. Admittedly she was upset , but denied that she had talked
excessively or caused any commotion . This was corroborated by Garrett. Dew
testified further that she earned $6.25 on the afternoon of March 24 . This would
indicate good production.
However, whether the Respondent was justified in terminating Dew on March 24,
1961 , is not relevant in this context . She was not terminated for union membership
or activity . Indeed, she did not become a member of the Union until April 28, 1961.
In the instant proceeding , the only issue is whether Dew was refused reemployment
because of her union membership or activity , and/or because a charge had been
filed on her behalf and she had given testimony under the Act in the earlier pro-
ceeding against the Respondent . There is no evidence in the record that this is the
case, unless it can be discerned that Respondent 's refusal to rehire Dew was part of
a pattern involving the refusal to rehire Steelman and Hill. But an essential element
to such a pattern is lacking . Steelman and Hill were not laid off because the Re-
spondent was dissatisfied with their work , whereas Dew was terminated because the
Respondent considered her to be uncooperative and because she had complained to
the other employee about the line system . It is clear that the Respondent considered
Dew an unsatisfactory employee for the morale standpoint . The fact that she sub-
sequently became a member of the Union did not automatically give her a right to
" Forsythe hedged in her testimony about this. When asked whether left-handedness
would affect the operation of a machine to tack buttonholes, she answered, "I doubt it
I'm not sure about that, because we haven't had these machines too long " But when
asked how long the Respondent had such a machine, she could not remember whether it
was 2, 3, or 4 years.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reemployment. In sum, whether Respondent was wise or unwise in refusing to
rehire a highly productive employee is immaterial. This was the reason for Re-
spondent's action, and regardless whether the reason was a good one or a poor one
from a management standpoint, the fact remains that neither her membership in the
Union nor the fact that she had availed herself of the Board's facilities and procedures
as aforesaid was the motivating factor therefor.
The General Counsel argues that Since Respondent's plant was put back on a
piecework system and the line system is no longer in effect, Respondent's failure to
reemploy Dew who was a good pieceworker was motivated by her membership in
the Union. This contention must be rejected, since it implies that the Respondent
was under a duty to reemploy her when it went back on piecework. But Respondent
was under no such obligation. Having terminated her employment for what it con-
sidered disloyalty or an uncooperative attitude or excessive talking, it was not there-
after required or 'obligated to reemploy her when it went back on piecework.
Accordingly, I shall recommend that the complaint be dismissed insofar as it
alleges that the Respondent discriminatorily refused to hire Dew.
J.30 The no-solicitation rule and the discharge of Willie Maye Alford
As previously noted, Rosenfeld called a meeting of all of the employees of the
plant on June 11, 1962, when the reinstatees returned to work. At this meeting he
announced the promulgation of employees and stated that the rules would be repro-
duced and distributed to the employees.31 Rosenfeld told them that in addition to
the 28 written rules there was an oral rule prohibiting solicitation by either employees
or outsiders during working hours. According to Rosenfeld, he told them that in
connection with all solicitation there could not be solicitation for the Union during
working hours, and that they could not solicit in the restrooms even during the rest
periods. According to Rosenfeld, he stated no exception to the rule. He testified on
cross-examination that the rule covered any kind of solicitation and that he had not
exempted therefrom solicitation or collection of dues for the Jean Harper Club (an
employees' club), collections for the Red Cross or any other charitable drives, or
for sick people or Christmas gifts. On redirect examination, however, he testified-
I have authorized the Jean Harper Club, and I was just thinking after my testi-
mony, there have been occasions-the Jean Harper Club, I have let the Jean
Harper Club operate in the factory. We don't consider them in the form of
other kinds of solicitation. Sometimes for very good causes, like the Red
Cross, we have a campaign and we have a short time to do it, a city-wide thing.
It is necessary to cover all employees. On something of that sort, of a very
proper nature, only that do we allow some latitude in how many is solicited for
those kind of causes, and that's on special requests.
On November 29, 1962, Willie Maye Alford testified on behalf of the General
Counsel in the instant proceeding 32 She returr'id to work that afternoon and was
discharged. Her separation slip gave the reason for discharge as "Neglect of duties,
improper conduct and behavior during working hours." 33 At the hearing, however,
Respondent contended that Alford was discharged for violating the no-solicitation
rule. The events leading to her discharge are as follows:
At lunch that day, employee Mary Spencer visited 'he courtroom where the instant
case was being heard. Some of the union members observed her there and, believing
that she might be a witness and mindful of the fact that a rule had been entered
excluding witnesses, motioned her to leave the courtroom with them. In the corridor,
Spencer indicated her desire to testify and inquired as to who issued the subpenas.
She was informed by Garrett that the subpenas were issued by the Federal Govern-
80 To avoid confusion with the Roman numeral "I," this subsection has been designated
"J" instead of "I "
31 Inter alia, the rules prohibited bringing packages into the shop ; excessive talking
during working hours ; bringing personal garments into the shop to work on, either during
work hours, rest periods, or lunchtime ; punching another employee's timecard ; engaging
in horseplay or disorderly conduct on company property; smoking in the shop ; and fre-
quent tardiness or absence from work without permission The rule against excessive
talking provided that an employee would be warned and after three warnings would be
subject to dismissal.
32 Alford joined the Union during the last week of August 1962 and informed Supervisor
King of that fact about September 1. The foregoing was not disputed by the Respondent.
33 Payroll Clerk Bowie testified that the Respondent's attorney instructed her to put this
language on Alford's separation slip.
RIPLEY MANUFACTURING COMPANY 1153
ment. Garrett also asked her whether she wanted to talk to Woodson, counsel for
the General Counsel. Spencer reiterated her desire to testify. The union members
present also asked her if she would sign a union card, but Spencer indicated she
wanted to find out more about the Union before she did so. At one point, Garrett
asked her, "Mary, did somebody send you up here?" Spencer replied, "No, girl, I
know too much." 34 Spencer then returned to the plant.
When the hearing was adjourned for lunch, Garrett informed Woodson, Sabella,
attorney for the Union, and Perlstein, the union organizer, of the foregoing incident.
Sabella insisted that Woodson interview Spencer, and Woodson agreed to do so.
As Alford was the only union member going back to work that day, she was selected
to tell Spencer that Woodson would be available to interview her at the union office
when the hearing was adjourned that afternoon.
Alford testified that Spencer usually left the plant before she did; consequently,
it was necessary for her to deliver the message during the afternoon break. Being
fearful that someone might overhear her, Alford wrote the following message on a
small sheet of paper:
MARY: There will be someone that will meet you at Walkers Court No. 1
Cabin that's the office. The lawyer will be there soon thereafter. If you don't
want to go in your car, I will meet you & take you there.
WILLIE MAYS.
She sought to give Spencer this message during the afternoon break, but could
not find her. Shortly after the break period was over, Alford found it necessary
to sharpen her pencil, which she used to put her clock number on work tickets,
and went to the pencil sharpener, a distance of approximately 15 feet from her
machine. On her way, she detoured a distance of approximately 5 feet and placed
the note on Spencer's machine. Spencer read the note and immediately called
Supervisor Bessie King and gave her the note. Supervisor King took the note
to Rosenfeld who asked her to call Alford into his office 35
Rosenfeld asked Alford whether she had passed that note to Spencer. Alford
replied that she did. Rosenfeld then said, "Well, you're fired. You knew that it
was against the company rules, or did you, to solicit for the Union? You knew
that you were breaking a rule." Alford replied, "Mr. Rosenfeld, your rules are
broken out there every day." Alford also told him that there was not one word
about the Union in the note. He said, "Well, it's all the same. You left your
machine to give her this note." Alford said, "No, I didn't leave my machine to
give her the note. I left the machine to sharpen my pencil." Rosenfeld asked her
if she needed a pencil in her work and she answered that she did. He inquired
whether Spencer had asked for the note, and Alford replied, "I can't tell you that."
He then asked her when she wrote the note, and she answered that she had written
the note on her own time before she returned to work. Rosenfeld then asked her
when she gave the note to Spencer, and Alford replied, "I'll let Mary tell you that."
81 The foregoing is based on Garrett 's credited testimony . Spencer denied that she
stated that she wanted to testify, but admitted that she inquired about who subpenas wit-
nesses. Based on my observation of Spencer's demeanor while testifying, I do not credit
her denial Moreover, if Spencer's version were true, it is extremely improbable that the
ensuing events involving the arrangement that she be interviewed by Woodson, counsel for
the General Counsel, and the passing of the written message to Spencer by Alford, leading
to Alford's discharge would have occurred
ae I do not credit the testimony of Daniels and Northcutt, both of whom testified on
behalf of the Respondent that they saw Alford write a note at her machine after the
break was over Respondent admittedly did not discharge Alford for writing the note
during working hours, and this testimony was produced as bearing on Alford's credibility
only. The testimony of Daniels and Northcutt is contradictory. According to Daniels,
Alford waited about 5 minutes after writing the note before she gave it to Spencer ; accord-
ing to Northcutt, Alford passed the note as soon as she wrote it. Daniels testified that
she had to turn her head sideways, or 90 degrees, to see Alford give the note to Spencer.
However, it is clear from the positions of the machine they were working on that Daniels
would have had to make an about-face turn, or 180 degrees, to see Spencer. Nortlicutt's
testimony involved an element of clairvoyance. She testified: "Well, I knew that the note
had been passed, and I knew that she [Spencer] was going to call Bessie [Supervisor
King] " Since Northcutt admittedly had no knowledge of the contents of the note, she
could hardly be expected to know that It dealt with union matters Note passing among
employees was a common occurrence. Why, then, should Northcutt have assumed that
the note dealt with the Union in any way and that Spencer would immediately call
Supervisor King?
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He said , "So you refuse to tell me." Alford replied, "Yes ." 36 Rosenfeld then
directed Supervisor King to ask Spencer when the note was passed. Alford rose and
said, "Well , if I'm fired, I might as well go." Rosenfeld replied, "So you refuse
to wait and see what she says?" Alford said , "No, I don't refuse ," and she sat
down . Rosenfeld left the office for about a minute and when he returned said,
"You can go now. We know what time you gave her the note." She went back to
her machine and finished making the bundle she had been working on because she
had already taken off the ticket stub , and then left the premises.37
Turning first to the question of the validity of the no-solicitation rule, I find and
conclude that the rule was presumptively invalid as it extended beyond working
time and admittedly applied to solicitation in the restrooms even during the
break period . Walton Manufacturing Company, 126 NLRB 697, enfd. 289 F. 2d
177 (C.A. 5). See also Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793.38
Nor was there any evidence produced by the Respondent "that special circumstances
make the rule necessary m order to maintain production or discipline ." ( Walton,
ibid.) 39
Apart from the foregoing , it is clear and I find that Respondent 's no-solicitation
rule was promulgated and enforced for discriminatory purposes . It is indeed a
strange circumstance that although the Respondent went to the trouble of printing,
distributing , and posting a set of rules governing the employees ' conduct in the
plant, it did not include therein the no-solicitation rule which Rosenfeld character-
ized as "the most important rule in our place ." Instead, the no-solicitation rule was
announced orally at the very time when Respondent announced the other rules.
Rosenfeld 's stated reasons for not putting the no-solicitation rule in writing are in-
comprehensible . His first stated reason was that it never occurred to him that
the employees were responsible for solicitors , and that he had arranged the
receptionist 's desk so that she could control people coming into the factory. Of
course, the employees were not responsible for solicitors coming into Respondent's
plant. But the no-solicitation rule was directed toward solicitation by the employees
themselves and specifically encompassed solicitation for the Union . As such, it was
a rule governing the conduct of the employees in the plant as were the other 28 rules
which were printed. The second stated reason was that "the Union is a compara-
38 Alford testified that she refused to tell Rosenfeld when she gave Spencer the note
because he had already fired her, and she did not feel that she was obligated to answer
his questions after she was fired
37 The foregoing is based upon the credited testimony of Alford whom I have found to be
a truthful and straightforward witness . I do not credit the versions of this incident
testified to by Rosenfeld , Sandhn ( his secretary ), and Supervisor King. I have herefore
indicated my lack of confidence in Rosenfeld ' s testimony . And in this instance it gains
nothing by the corroboration by Sandhn and King According to all three , the interview
lasted at least 20 minutes during which Alford steadfastly refused to answer Rosenfeld's
questions . It is difficult to believe that Rosenfeld would have wasted 20 minutes inter-
rogating an employee who refused to answer any questions . In this connection, there is
a significant conflict between King's version and that of Rosenfeld and Sandhn Rosenfeld
and Sandlin both testified that Rosenfeld opened the conversation by asking Alford if she
passed the note to Spencer and that Alford replied, "Ask Mary " Supervisor King, how-
ever , testified that Alford answered in the affirmative , thus corroborating Alford to this
extent
38 Although the Board in Stoddard-Quark Manufacturing Co , 138 NLRB 615, and
Minneapolis-Honeywell Regulator Company , 139 NLRB 849 , modified the rule laid down
in Walton insofar as distribution of literature is concerned , it did not change the rule in
Walton regarding the validity of a no -solicitation rule. Rather, the Board in Stoddard-
Quirk reaffirmed the holding in Walton as to a no -solicitation rule. It is noted also that
the Board in Young Sprang and Wire Corporation, 138 NLRB 643, issued simultaneously
with Stoddard - Quark, applied the no-solicitation rule holding of Walton.
39 I do not regard Rosenfeld 's attempted justification of the prohibition against soliciting
in the restrooms as a showing that the prohibition was necessary in order to maintain pro-
duction or discipline Rosenfeld testified that he told the employees that the restrooms
are for a specific purpose and that the girls should not be detained there, that there is
very little time in their short rest periods and they should not be blocked by anyone
soliciting them in the restroom , that Respondent has a great many girls and has only the
amount of restrooms that it needs; that there is usually a long line of girls that have to
get in and out in a burry and that the restrooms are not for soliciting union members even
during rest periods . The foregding does not fall within the permissible exception to the
rule as stated in Walton In any event , it is difficult to see how union solicitation carried
on in the restroom would prevent employees from using the room for its normal purposes.
RIPLEY MANUFACTURING COMPANY 1155
tively new thing," although Rosenfeld admitted that it had "been with us for nearly
2 years." Aside from the fact that the reason is self-contradictory, it does not explain
why, when Respondent went to the trouble of printing the other 28 rules of em-
ployees' conduct, it did not include the rule against solicitation. There might have
been some basis for Respondent's failure to include the no-solicitation rule in the
printed set of rules had the Union come into the premises after the rules had been
prepared and printed, but this is not the case. Respondent knew of the Union's
organizing efforts for 2 years before the rules were printed. The third stated
reason was that Rosenfeld had called attention to this rule sometime ago and
did not think it was necessary to have it typed up. If, as Rosenfeld claims, he
had called attention to the rule sometime ago and found it necessary again to call
attention to the rule when the union adherents returned to work, it would seem to be
all the more important that the rule be put in writing-for emphasis, if for no other
reason . Rosenfeld elaborated on this reason as follows:
Then it was reported to me that girls had distributed union pamphlets at the
sewing machines. Following the distribution of the union literature in the
factory I again called attention to the rules to the girls, to everyone in the
factory, and that's it. I mean, that's good enough. I said, "That's the rule."
This explanation confounds the confusion. Rosenfeld's announcement of the rule
was when the union adherents returned for reinstatement and before they had
actually gone to work. It is difficult to see how under the circumstances they could
have distributed union pamphlets before his announcement of the rule. In sum,
Rosenfeld has not given any reasonable explanation why he put the no-solicitation
rule in oral form. I find that he deliberately refrained from putting the rule in
writing in the hope of creating uncertainty in the minds of the employees as to
the extent of the rule and in order to give him the opportunity of interpreting it as
he saw fit from time to tune.
As a matter of fact, some of Respondent's supervisors did not have a clear
understanding of the scope of the rule and differed in their interpretation of it.
Thus, Supervisor Shepard testified that it was her understanding that the rule
prohibited the selling of anything in the shop during working hours and that the
restroom would be included within the term "shop." She was uncertain whether sales
could be made during the breaks. Supervisor Hargett, however, interpreted the rule
as follows: "That we are not at any time during working hours supposed to talk
about a Union or any other sort of organizating for the Union." Contrary to Rosen-
feld's statement of the rule, Supervisor Hargett believed that the rule did permit
solicitation for the Union in the restroom during the break periods. Thus, he
testified:
Q. Can you talk about it in the restroom during the time that you are on a
break period?
A. The break periods are our time.
Supervisor King interpreted the rule as applying to "no insurance man or salesmen
or anything like that, or nobody could organize anything in the shop other than the
Credit Union and Jean Harper factory activities." Supervisor McPherson stated
that the rule applied to "no sales person, I believe; no soliciting of any type. There
is no rule against taking up money for flowers and things, which we do in our
Jean Harper Club, and things in general like that are permissible." Supervisor
Forsythe testified that she would report any employee who passed a union card
but would not report an employee who passed any other kind of card.
The vice of keeping the no-solicitation rule in oral form is graphically demon-
strated in the instant case.40 The term "solicitation" implies an oral approach,
as distinguished from the distribution of literature. Stoddard-Quirk Manufacturing
Co., supra.41 Admittedly, Alford did not engage in oral soliciation. Not one word
was spoken. Yet, Respondent interpreted the no-solicitation rule to embrace the
40I do not intend by this discussion to imply that a no-solicitation rule may not be
promulgated orally. I hold only that Respondent 's purpose in keeping the rule in oral
form, while all the other rules were written, was to create uncertainty in the minds of
the employees as to the extent of the rule and to give the Respondent the opportunity of
interpreting it as it wished.
41 As pointed out in the Decision, "solicitation, being oral in nature, impinges upon the
employer's interests only to the extent that it occurs on working time, whereas distribu-
tion of literature, because it carries the potential of littering the employer's premises,
raises a hazard to production whether it occurs on working time or nonworking time."
727-083-64-vol. 144-74
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
passing of a note. In this connection, it should be emphasized that Respondent
admitted at the hearing that Alford was not fired for leaving her machine-only
for violating the no-solicitation rule, which Rosenfeld interpreted to include note
passing. I find that she had not engaged in solicitation and therefore had not
violated the rule.
Even assuming arguendo that Alford had violated the no-solicitation rule, it is clear
from the record, and I find, that the rule was discriminatorily enforced against Alford.
There is abundant credible evidence to the effect that the no-solicitation rule, as
well as many of the other rules, have been honored in their breach, rather than in
their observance. Thus, employees have sold eggs and peanut brittle in the plant and
have taken orders for cakes, all in the presence of or with the knowledge of super-
visors. Recipes and letters have been passed around by employees during working
hours with the full knowledge of supervisors. During a political campaign, the
supervisors passed out campaign buttons to the employees and directed them to go
into the lunchroom where they listened to a speech by a judge on behalf of a candidate
for governor. Violations of other rules were common and ranged from excessive
talking to horseplay involving the placing of a dead mouse and toy snakes in bundles
to be worked upon by girls. Until Alford's discharge, no employee had ever been
discharged or even disciplined for violating a plant rule.42 On rare occasions,
employees were admonished by supervisors to obey the rules, but no employee
was reported for violating a rule.
On December 5, a few days after Alford's discharge, Rosenfeld made a speech to
the assembled employees, in which he told them that an employee had been dis-
charged for breaking the plant rules. He said she had left her place of work and
had passed a note to a girl inviting her to a union meeting. Rosenfeld admonished
the employees to observe the rules, particularly the rule prohibiting bringing packages
into the plant, because the union girls were observing and making notes of all rule
violations.
In view of the foregoing, Respondent's promulgation and enforcement of the no-
solicitation rule were discriminatory in nature and I so find. I further find that
Respondent's discharge of Alford for violating the no-solicitation rule was merely
a Pretext and that the real reason for her discharge was the fact that she was a
member of the Union and had given testimony under the Act. Respondent's
union animus has been clearly demonstrated. To discharge a union member,
particularly one who had just testified against the Respondent, would strike an
effective blow against the organizational efforts of the union members. The alleged
violation of the rule by Alford afforded Respondent the opportunity to do so.
In view of all the foregoing, I find and conclude Respondent promulgated an in-
valid no-solicitation rule for a discriminatory purpose, enforced it discriminatorily,
and discriminatorily discharged Alford for her union membership and because she
had given testimony under the Act, in violation of Section 8(a)(1), (3) and (4).
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section IV, above, occurring in
connection 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 commerce
and the free flow thereof.
Upon the basis of the foregoing findings of fact and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. The operations of Respondent occur in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By threatening to close its plant if the Union were successful in organizing
its employees , the Respondent has interfered with , restrained , and coerced its em-
ployees in the exercise of their rights guaranteed them by Section 7 of the Act
42Rosenfeld admitted that, prior to Alford's discharge, no employee had ever been dis-
charged for violating a rule. On redirect examination , however, he remembered that
Dorothy Jacobs and Jerry Meadows were discharged for violating the rules . I do not
credit the latter testimony. Rosenfeld admitted that Jacobs had done poor work See
also the Board's Decision in 139 NLRB 47. As to Meadows, Supervisor Hargett testified
that Meadows was fired for "bad work or no work at all "
RIPLEY MANUFACTURING COMPANY 1157
and thereby has engaged in and is engaging in an unfair labor practice within the
meaning of Section 8(a) (1) of the Act.
4. By failing to reinstate Rubye Garrett, Jean Russell, Aunita Emerson, and
Joseph Medile to their former positions of employment, or to substantially equiv-
alent positions, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1), (3), and (4) of the Act.
5. By engaging in a program of ridicule and harassment of Joseph Medile and
thereafter discriminatorily discharging him, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(3), (4), and
(1) of the Act.
6. By harassing Rubye Garrett as to the quality of her work, the Respondent
discriminated against her and thereby engaged in and is engaging in an unfair labor
practice within the meaning of Section 8(a)(3), (4), and (1) of the Act.
7. By discriminatorily refusing to reemploy Josie Hill and Ruth Steelman, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(3), (4), and (1) of the Act.
8 By promulgating, maintaining, and enforcing an invalid rule prohibiting
union solicitation by employees for a discriminatory purpose, the Respondent has
interfered with, restrained, and coerced its employees in the exercise of their
rights guaranteed them by Section 7 of the Act and thereby has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
9. By discriminatorily discharging and refusing to reemploy Willie Maye Alford,
the Respondent has engaged in and is engaging in an unfair labor practice within
the meaning of Section 8(a)(3), (4), and (1) of the Act.
10. The aforesaid unfair labor practices affect commerce within the meaning
of Section 2(6) and (7) of the Act
11. The Respondent did not violate Section 8 (a) (1) of the Act by the interroga-
tion of Rubye Garrett by Supervisor Forsythe.
12. The Respondent did not violate Section 8(a)(1) of the Act in speeches made
by Rosenfeld on or about June 11 and 14, 1962, in which he made reference to
the six reinstatees.
13. The Respondent did not violate Section 8(a)(3), (4), or (1) of the Act by
failing to reemploy Zola Dew.
14. The Respondent did not violate Section 8(a)(3), (4), or (1) of the Act in
connection with the reinstatement of Evelyn Escue.
VI. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1), (3), and (4) of the Act, I shall recommend that it
cease and desist therefrom and that it take certain affirmative action designed to
effectuate the policies of the Act.
Since I have found that Jean Russell, Aunita Emerson, and Joseph Medile have
not been offered reinstatement to their former or substantially equivalent positions,
and thereafter Joseph Medile and Willie Maye Alford were discriminatorily dis-
charged by the Respondent, I shall recommend that the Respondent be required
to offer each of them immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority or other rights, and
make them and Rubye Garrett 43 whole for any loss of earnings they may have
suffered because of the discrimination against them, with backpay computed in
the customary manner.44 The backpay obligation shall include interest at the rate of
6 percent. Isis Plumbing & Heating Co., 138 NLRB 716.
Since I have found that the Respondent unlawfully discriminated against Josie
Hill and Ruth Steelman by its failure to offer them employment, I shall recommend
that the Respondent be required to offer each of them immediate employment on
hand sewing or special machine operations 45 or on any comparable operation
for which they are qualified, without prejudice to their seniority or other rights and
privileges, dismissing, if necessary, employees hired since June 9, 1962. I shall
13 As noted above, Rubye Garrett had been reinstated to her former position shortly be-
fore the instant hearing commenced However, to the extent that she may have suffered
a loss of earnings in the form of bonuses or otherwise until she was reinstated to her
former position, she should be made whole therefor.
" F W. Woolworth Company, 90 NLRB 289.
45 Special machines are those other than straight sewers The record shows that Hill
and Steelman had worked on one or more of such machines , and positions in this category
were filled by Respondent after June 9, 1962.
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further recommend that the Respondent be required to make the said Josie Hill and
Ruth Steelman whole by payment to each of them of a sum of money equal to that
which each would normally have earned from June 9, 1962, the date of Respondent's
discrimination against them, to the date or dates on which it offers to employ them,
less the net earnings of each during such period, to be computed in the customary
manner and with interest as aforesaid.
I shall further recommend that the Board order the Respondent to preserve
and upon request, make available to the Board, or its agents on request, payroll
and other records to facilitate the computation of the backpay due and right of
employment.
As the unfair labor practices committed by the Respondent are of a character
striking at the root of employee rights safeguarded by the Act, I shall recommend
that it cease and desist from infringing in any manner upon the rights guaranteed
in Section 7 of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, Respondent Ripley Manufacturing Company, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in the Southern Illinois District Council , Inter-
national Ladies ' Garment Workers Union , AFL-CIO, or in any other labor organiza-
tion of its employees , by discharging or in any other manner discriminating against
employees in regard to hire and tenure of employment or any term or condition of
employment.
(b) Threatening to close the plant if a majority of the employees select the Union
to represent them.
(c) Promulgating or enforcing a rule prohibiting employees from soliciting
membership in any organization on company property during break periods.
(d) Enforcing or applying a no-solicitation rule in a disparate or discriminatory
manner.
(e) In any other manner interfering with, restraining , or coercing its employees
in the exercise of their right to self-organization , to form , join, or assist any 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 and all such activities.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Offer to Jean Russell, Aunita Emerson , Joseph Medile , and Willie May Alford
immediate and full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges , and make them
and Rubye Garrett whole for any loss they may have suffered as a result of the
Respondent 's discrimination against them in the manner set forth in the section of
the Intermediate Report entitled "The Remedy."
(b) Offer to Josie Hill and Ruth Steelman immediate employment on hand sew-
ing or special machine operations or on any comparable operation for which they
are qualified , without prejudice to their seniority or other rights and privileges, dis-
missing, if necessary, employees hired since June 9, 1962, and make the said Josie
Hill and Ruth Steelman whole for any loss they may have suffered as a result of
the Respondent 's discrimination against them in the manner set forth in the section
of the Intermediate Report entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying , all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary for the determi-
nation of the amount of backpay due.
(d) Post at its plant at Ripley, Tennessee , copies of the attached notice marked
"Appendix." 46 Copies of such notice, to be furnished by the Regional Director for
the Twenty-sixth Region , shall, after being duly signed by an authorized representa-
tive of the Respondent , be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees are customarily
se If this Recommended Order is adopted by the Board, the words "A Decision and
Order" shall be substituted for the voids "The Recommended Order of a Trial Examiner"
in the notice If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "A Decree
of the United States Court of Appeals, Enforcing an Order" for the words "A Decision
and Order."
RIPLEY MANUFACTURING COMPANY 1159
posted. Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director, in writing, within 20 days from the date of the
receipt of this Intermediate Report, what steps the Respondent has taken to comply
herewith 47
It is further recommended that so much of the amended and consolidated com-
plaint as alleges a violation of the Act with respect to (a) the interrogation by Super-
visor Forsythe; (b) the Respondent's failure and refusal to employ or consider for
employment Zola Dew; (c) the Respondent's alleged failure to reinstate Evelyn
Escue to her former position; and (d) the alleged conduct of the Respondent in
holding up the reinstatees to scorn and ridicule on or about June 11 and 14, 1962, be
dismissed.
If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for the Twenty-sixth Region, in writing, within
10 days from the date of this Order, what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in the Southern Illinois District Council,
International Ladies' Garment Workers Union, AFL-CIO, or in any other labor
organization of our employees, by discharging or in any other manner discrimi-
nating against our employees in regard to hire or tenure of employment or any
term or condition of employment.
WE WILL NOT threaten to close the plant if a majority of our employees select
the Union to represent them.
WE WILL NOT promulgate or enforce a rule prohibiting employees from solicit-
ing membership in any organization on company property during break periods.
WE WILL NOT enforce or apply a no-solicitation rule in a disparate or discrimi-
natory manner.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form a labor
organization, to join or assist any 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 protec-
tion, or to refrain from any and all such activities.
WE WILL offer Jean Russell, Aunita Emerson, Joseph Medile, and Willie Maye
Alford immediate and full reinstatement to their former or substantially equiv-
alent positions, without prejudice to their seniority or other rights and privileges
and make them and Rubye Garrett whole for any loss they may have suffered
as a result of our discrimination against them.
WE WILL offer to Josie Hill and Ruth Steelman immediate employment on
hand sewing or special machine operations or on any comparable operation for
which they are qualified, without prejudice to their seniority or other rights and
privileges, and will dismiss if necessary employees hired since June 9, 1962, and
will make them whole for any loss they may have suffered as a result of our
discrimination against them.
RIPLEY MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material
Employees may communicate directly with the Board's Regional Office, 714 Falls
Building, 22 North Front Street, Memphis, Tennessee, Telephone No. Jackson
6-5451, if they have any question concerning this notice or compliance with its
provisions.