Rogers Brothers Wholesalers

National Labor Relations Board - Board Decisions

Jun 2, 1975

218 N.L.R.B. 143 (N.L.R.B. 1975)

ROGERS BROTHERS WHOLESALERS
Rogers Brothers Wholesalers and OR , Chemical and
Atomic Workers International Union and its Local
4--243, AFL-CIO. Cases 23-CA-5143 and 23-
CA-5143-2
June 2, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On January 17, 1975, Administrative Law Judge
Paul E. Weil issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief and the General Counsel
filed exceptions with a brief in support thereof and
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision 1 in light of the exceptions and
briefs 2 and has decided to affirm the rulings,
fmdirlgs,3 and conclusions4 of the Administrative
Law Judge and to adopt his recommended Order as
modified herein.5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent,, Rogers Brothers Wholesalers, Beaumont, Tex-
as, its officers, agents, successors , and assigns, shall
take the action set forth in the said recommended
Order, as herein modified:
1. Delete paragraph 1(b) and add the following as
paragraphs 1(b) and (c):
"(b) Discriminatorily enforcing any no-solicitation
rule by prohibiting union solicitations on working
time while permitting employees to solicit and talk
against a union on working time.
"(c) In any other manner interfering with, restrain-
ing, or coercing their employees in the exercise of
their rights to self-organization, to form, join, or
assist any labor organization, to bargain collectively
through representatives of their own choosing, to
engage in any other concerted activities for the
purpose of collective bargaining or other mutual aid
or to refrain from any or' all such activities."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
218 NLRB No. 19
143
1 We note the following inadvertent errors in the attached Decision
which , however, do not affect the conclusions reached : In sec. III, third
paragraph, the consent election was to be held on June 25 , 1974, not 1975,
and in the portion of sec. III captioned "The Discharge of Aaron Cole,"
seventh paragraph, fourth sentence , the date of the "Individual Personnel
Record" was 6/5/74, not 6/5771.
2 Respondent, in its exceptions to the attached Decision , cited the Texas
Penal Code and included a newspaper clipping which it clamps supports its
position that Mane Cash used improper language calculated to disturb the
other employees The General Counsel argues that neither of these was
entered into evidence during the hearing and they should be disregarded by
the Board These matters are not properly made a part of the record herein,
and, furthermore, they would add nothing to the record which would assist
us in reaching our decision.
3 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A . 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
We do not adopt or rely upon sec. III, fourth paragraph, of the
Administrative Law Judge's Decision insofar as it refers to "the customary
`spontaneous ' formation" of an antiunion employee committee, thus
implying that its origins were of doubtful validity. There is no evidence to
support this possibility and no issue as to the legality of the committee or its
activities.
4 In the absence of exceptions thereto, we adopt , pro forma, the
Administrative Law Judge's recommendation to dismiss the complaint
insofar as it alleged that the Respondent violated the Act by discharging
Rejenia Cagle.
5 The Administrative Law Judge found, and we agree, that the
Respondent discriminatorily enforced a no-solicitation rule, thereby
violating Sec. 8(ax 1) of the Act, and we find meat in the General Counsel's
exception to the failure to provide a specific and adequate remedy for this
violation Accordingly, we shall modify the Order as requested . Further, in
the absence of exceptions thereto, we adopt pro forma the Administrative
Law Judge's failure to find that the rule against employees ' talking during
working hours was an unlawfully broad no-solicitation rule. In addition, we
find that a broad order is appropriate in view of the serious nature of the
violations ' found herein. Therefore, we shall also modify the Order in this
respect.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the opportunity to
present their evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act, and has ordered us to post this notice
and we intend to carry out the Order of the Board
and abide by the following.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or-help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any and all these things.
WE WILL NOT do anything that interferes with
these rights.
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in Oil,
Chemical and Atomic Workers International
Union and its Local 4-243, AFL-CIO, or any
other labor organization, by discriminatorily
discharging or suspending any employee because
of his activities on behalf of said labor organiza-
tion.
WE WILL NOT discriminatorily enforce any no-
solicitation rule by prohibiting union solicitations
on working time while permitting employees to
solicit and talk against a union on working time.
WE WILL reinstate Aaron Cole and Marie Cash
to the jobs they formerly held or, if these jobs no
longer exist, to substantially equivalent jobs and
WE WILL make them whole for any loss of pay
they may have suffered as a result of our
discrimination against them by payment to them
of the amount of money they lost as a result of
our action.
ROGERS BROTHERS
WHOLESALERS
DECISION
STATEMENT OF THE CASE
PAUL E. WELL, Administrative Law Judge: On June 11,
1974, Oil, Chemical and Atomic Workers International
Union and its Local 4-243, AFL-CIO, hereinafter called
the Union, filed a charge alleging that Rogers Brothers
Wholesalers, hereinafter called Respondent, violated Sec-
tion 8(a)(3) and (4) by the termination of four named
employees and by that and by other acts and conduct
violated Section 8(axl) of the National Labor Relations
Act, as amended. On June 17, 1974, the Union filed a
second charge alleging an additional violation of Section
8(aX3) by the discharge of a fifth employee. On August 22,
1974, the Regional Director for Region 23 of the National
Labor Relations Board, hereinafter called the Board, on
behalf of the General Counsel issued an order consolidat-
ing the two cases and a complaint and notice of hearing
which alleges the discriminatory discharge of three employ-
ees, Aaron Cole, Rejenia Cagle, and Marie Cash, as well as
four incidents of alleged violation of Section 8(a)(1) of the
Act. At the same tithe counsel for the General Counsel
moved Administrative Law Judge Thomas D. Johnston to
set aside a settlement agreement entered into on May 28,
1974, in Cases 23 CA-5009 and 23-CA-5059, and repre-
sented therein that upon the granting of the motion the
complaints in those cases would be consolidated with the
complaint in the'instant cases . Judge Johnston denied the
General Counsel's motion to set the settlement agreement
aside and the General Counsel issued an amended
complaint ajle ng as background the allegations in the
earlier complaint which gave rise to the settlement before
Administrative Law Judge Johnston. Respondent duly
answered the amended complaint, as it had duly answered
the original complaint. In its answer Respondent denied
the allegations of postsettlement activity and raised the
settlement agreement as a bar to litigation of the matters
covered by the settlement agreement. On the issues thus
joined the matter came on for hearing before me on
October 15, 1974, at Beaumont, Texas. At the opening of
the hearing Respondent moved to strike the allegations of
past conduct which had been resolved by the settlement
agreement; this motion was denied. The General Counsel
thereupon moved to amend the complaint by the addition
of certain allegations of independent violations of Section
8(a)(1),' which motion was granted. The hearing proceeded
through October 18, 1974, on which date it was closed. All
parties were present, Respondent and the General Counsel
were represented by counsel, and all parties had an
opportunity to call and examine witnesses and to adduce
relevant anti material evidence. At the close of the hearing
all parties waived oral argument; briefs have been received
from the General Counsel and Respondent.
Upon the entire record herein and in consideration of
the briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a partnership composed of Victor J.
Rogers, N. J. Rogers, S. J. Rogers, and Ben J. Rogers,
doing business as Rogers Brothers Wholesalers at Beau-
mont, Texas, where it is engaged in the manufacture of
prescription lenses and related eyeware items at its
wholesale optical laboratory. Respondent annually pur-
chases and receives goods valued in excess of $50,000
directly from points located outside the State of Texas and
is engaged in commerce within the meaning of Section 2(6)
and (7) of the National Labor Relations Act.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the National Labor Relations Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent operates its optical laboratory in several
buildings located in downtown Beaumont, Texas, where it
employs approximately 350 men and women manufactur-
ing and assembling eyeglasses and shipping them to their
customers ` around the country. The enterprise is directed
by Victor Rogers, apparently the only one of the partners
immediately engaged in the business.
In early February I the Union commenced a campaign to
organize the employees with a meeting for employees.
Organizing then proceeded by the usual channels, hand-
billing the employees at the entrance to the buildings in
which they worked, passing out buttons and other
advertising paraphernalia, and soliciting employees to sign
cards designating the Union as their collective-bargaining
representativg. Respondent became aware of the union
1 All dates hereinafter are in the year 1974 unless otherwise specified.
ROGERS BROTHERS WHOLESALERS 145
organization in early March and commenced an antiunion
campaign of its own, again following the normal course of
speeches and personal interviews with employees, as well
as wntten material in the form of a letter.
The Union filed charges alleging violations of Section
8(a)(1) by the Employer which came on for hearing and on
May 28, 1974, before Administrative Law Judge Johnston,
the parties entered into an informal settlement agreement.
On May 31 a petition for an election filed by the Union
came on for hearing and the parties agreed to a stipulation
providing for a consent election to be held on June 25,
1975.
During the 2 weeks immediately preceding the election
the customary "spontaneous" formation of an antiunion
employee committee took place , replete with badges,
handbills , and plastic straw hats.
During the campaign three overtly prounion employees,
Aaron Cole , Rejema Cagle , and Marie Cash were dis-
charged by the Employer. The General Counsel contends
that these employees were discharged at least in part
because of their union activities . The Respondent contends
that each of them was discharged for cause. In addition the
General Counsel contends that a no-solicitation rule was
promulgated on May 27 and enforced thereafter in a
discriminatory fashion in violation of Section 8(a)(1), that
certain statements of partner Victor Rogers addressed to
employees violated Section 8(a)(1), and that Respondent's
supervisors "authorized, ratified, condoned and participat-
ed in distribution of leaflets which threatened employees
with loss of existing benefits and equated union organiza-
tion with strikes , violence, and loss of present income, all in
violation of Section 8(a)(1) of the Act.
B. The Discharge ` of Aaron Cole
Aaron Cole commenced his employment with Respon-
dent on June 23, 1969 . He was trained to operate a
generator which was one of the machines used for grinding
lenses . Apparently from the inception of his employment,
Mir. Cole was an erratic employee. While he missed very
few days of work he was occasionally tardy both in
reporting to work in the morning and after coffeebreaks
and luncheon breaks. His production was never completely
satisfactory and his breakage was high . In addition Mr.
Cole was talkative, flippant, and occasionally argumenta-
tive, none of those being qualities particularly prized by
Respondent's hierarchy.
Cole was one of the early union adherents and in that
capacity early came to the attention of Respondent. He
described an occasion on March 11 on which he was called
into the office of Supervisor Wiebusch where he was
confronted by Victor Rogers in the presence of Foreman
Pete Boutte and George Wiebusch. According to Cole's
testimony Rogers asked him what he thought of what was
going on on the sidewalk . At that time three employees
were on the sidewalk in front of the shop getting cards
signed for the Union, Cole answered that he guessed that it
was okay. Rogers asked why people would want to join the
Union and Cole said that it was for amore benefits, wages,
and job security. Rogers pointed out that the employees
had job security and good wage increases and did not need
a union and he said that he did not think that people
wanted a union ; Cole answered that they must want the
Union because they were signing cards. At this point,
according to Cole, Rogers suggested that Cole should try to
lead the people back toward the Company instead of
against the Company. Cole refused, saying that he was not
making enough money. At this point Rogers was called out
of the room and Wiebusch pointed out that the Company
had been very good to Cole and asked him why he would
not lead the people toward the Company instead of against
the Company. Cole again answered that he needed more
money and better benefits and more job security. At this
point Boutte said that he could not understand why Cole
had refused to take some job training that the Company
had offered him, and Cole stated that he was not paid
enough money to warrant his learning another job. Rogers
returned to the room and asked Cole again why he would
be on the Union's side instead of the Company's side. Cole
again answered that he did not make enough money.
Rogers pointed out that he was spending a lot of money for
employee benefits and if the Union came in he would see
whether the Union would pay the benefits, give them
security and sick leave . Rogers then asked Cole if he could
get the people 's union cards back for him and Cole
answered that he could not, that the people had signed for
the Union and that only the people could get them back.
Rogers mentioned that a union had tried to get in in 1952
and again in 1973 and failed both times ; he pointed out
that he expected they would fail again.
Rogers admitted having a conversation with Cole on
March I1 but stated that there ` was no mention of the
Union except by Cole and that he, Rogers , had told him
that Cole was not there to talk about the Union: According
to Rogers, the sole purpose of the meeting was to "counsel"
Cole because he had teased a fellow about his wrinkled
clothing, which Rogers considered ungentlemanly conduct.
Wiebusch testified that he had very little recollection of the
conversation but that nothing was said about the Union
and that Rogers called Cole in because he had a complaint
from one of his'fellow employees that Cole was making fun
of hire about his clothing being wrinkled. Wiebusch
testified to the question "Did anybody initiate a conversa-
tion or attempt to initiate a conversation about union
activity at that meeting?" with the answer "None that I
know of," and denied that he had "on March 11, 1974,
instructed the employees to abandon their support of the
Union and seek to have their fellow employees do
likewise." Pete Boutte testified that he was present at this
meeting on March 11 . In response to a leading question he
said that the matter of the Union was not brought up, that
Mr. Cole did try to bring in the Union, and that Mr.
Rogers said "that is not what we are talking about, we are
talking about you making fun of fellow employees and it is
a shame that, you are doing that." Boutte further denied
that he, Wiebusch, or Rogers went into the subject of the
Union or discussed union activities or organization in any
particular.
Respondent produced and placed in evidence Cole's
entire personnel file which included 44 pages of written
notes by the various supervisors, who dealt with Cole, all
taken between January 1, 1974, and Cole's discharge on
June 5, 1974. These notes range from comments about
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cole's work habits to almost verbatim accounts of
"counseling" sessions conducted by various supervisory
personnel and in some cases contain two or three notes
written by different supervisors about the same incident. It
is noteworthy that among the 44 pages of notes, all of
which are dated, no mention whatsoever is to be found of
the March 11 incident nor is there any mention of a
reprimand being given. to Cole resulting from his alleged
ungentlemanly conduct in remarking about a fellow
employee's unpressed clothing. The entries that appear in
the many pages of notes are of both lesser and greater
triviality than this incident. No explanation was offered as
to why no note was made by any of the three members of
the hierarchy that confronted Cole on this occasion.
Having this factor in mind, considering the fact that the
interrogation of Boutte and Wiebusch was largely by
excessively leading questions and neither of them purport-
ed to give an account of what was said in the meeting, and
considering also that Cole's account, which was in
considerable detail, attributed to Rogers many of the same
points and positions made by Rogers in his testimony in
other regards and in his letter to the employees, I credit
Cole's version.2
Cole also testified that on or about April 17 he had a
conversation with C. M. Bradford, Respondent's house
counsel, again in the office of Supervisor Wiebusch.
Neither Cole's nor Bradford's account of this conversation
is very satisfactory. The General Counsel specifically
contends that Bradford in this conversation stated to Cole
that if the Union won the election the Company would not
bargain. However, on cross-examination Cole indicated
that in this part of the conversation what Bradford said or
obviously meant was that in the event the Union won the
election he, Bradford, would not do the bargaining for the
Company because he was not a labor lawyer. This is
consistent with the fact that Bradford did not represent the
Company in the instant proceeding or in the prior
representation case or unfair labor practice charge pro-
ceeding. Similarly, the General Counsel contends that a
statement allegedly made by Bradford "You can't pick
coin in a cotton patch" indicated a warning that the Union
could not achieve a raise in pay if they won the election.
However, on cross-examination Cole testified that Brad-
ford said that he was a different type, of lawyer from the
lawyer who represented Farah and was not going to
negotiate with the Union even if the people would win the
election. Cole testified "he was not going to,do it, because
you can't pick corn in a cotton patch." Clearly Bradford's
use of the quoted terminology was expressive of the
distinction he was drawing between his own speciality and
that of a labor lawyer. Cole also' testified that in this
conversation Bradford asked on two occasions how many
signed cards the Union had acquired. Bradford denies this
completely. I make no findings either way. Cole's testimo-
ny concerning the ,interview was too confused to warrant
crediting him in this regard over the denial of Bradford.
On June 5, Cole stopped to talk to three of his fellow
employees, arranged to go bowling after work, and then
went to the water fountain where Clifford Richard, the
foreman over the employees to whom he had been talking,
met him and said, "Aaron didn't anyone talk to you about
going to the back and talking to Marks and help on the
job." Cole answered that he had been talked to. Richard
then said, "Well we don't want you back there talking to
nobody, you know we just don't want you back there."
Cole pointed out to Clifford that he was not a supervisor'
and had no right to tell him what to do, stating that at the
representation proceeding a few days before Rogers had
taken the position that Clifford Richard- was not a
supervisor. Cole went back to his working area and was
sent to Wiebusch's office where he was asked what had
happened by the water fountain. He told Wiebusch what
had happened and Wiebusch, pointing out that he had
been talked to before about talking to people on the job,
discharged him. An argument ensued and Cole left the
plant. Cole's testimony regarding this incident is substan-
tially the same as that of Wiebusch, Richard, and Pete
Boutte who was present except that Boutte and Wiebusch
both testified that Wiebusch mentioned that in the
discharge interview that Cole was being discharged among
other things for his poor production and high breakage as
well as his general attitude.
Various company documents are in evidence relating to
Cole's discharge. In his personnel file is a copy of a
termination notice addressed to the personnel department
seeking a replacement for Cole. The reason for leaving was
stated: "Discharged for leaving his work and talking to
other employees interrupting their work." On another
document entitled "Individual Personnel Record," under
date of 6/5/71, is the statement "discharged for going in
another work area and talking to other employees while he
was supposed to be working." The personnel file contains a
memorandum from Wiebusch, undated, and the only
memorandum typed in the personnel file, stating the story
substantially as Cole testified but adding that he reminded
Cole that he had been talked to several times about
disrupting work in other areas, in his own area, and about
his low production, "and I told him that since it looked like
he just would not cooperate he was being discharged for
misconduct." There is no testimony as to when this
document was written. Pete Boutte, in his initial affidavit,
stated that during the discharge conversation' neither
Wiebusch nor Boutte mentioned Cole's low production;
however, he changed his testimony on the witness stand
and then, asked to explain, said, "In thinking it over later,
there is a possibility Mr. Wiebusch may have mentioned
production, like I say, I am almost sure he did." Wiebusch
testified consistently with his written memorandum that he
mentioned production when 'the 'discharge was consum-
mated. I do not believe him nor do I believe Boutte's
afterthought at the hearing. I conclude 'and find that Cole
was discharged because he was talking to employees during
his working time.
After the May 28 abortive hearing at which Respondent
signed a settlement agreement Rogers took it on himself to
make a speech to the employees explaining that Respon-
dent had not been found guilty of doing anything wrong. It
was apparently during this speech that Rogers announced
2 The General Counsel does not seek any order based on the above
conversation but ,adduced the evidence only to show Respondent's union
animus.
ROGERS BROTHERS WHOLESALERS 147
that employees would not be permitted to talk during
working hours and told them that they should concentrate
on their work, build up production, and cut down on errors
and breakage. The next day Cole was spoken to by his
supervisors for talking to other employees, something he
had always done and had frequently been reprimanded for.
The General Counsel contends that the rule is violative in
its inception and is further violative in that it was enforced
in a discriminatory manner. I find nothing violative about
the promulgation of the rule. It is clear that there had been
a rule in effect, if not strictly enforced, requiring employees
to be attentive to their work and Rogers' announcement
was no more than a reiteration of it in contemplation of the
union organizing campaign.
The General Counsel adduced evidence that antiunion
employees including Ernestine Alfaro, Pat Cruz, Billie
Ashworth, and Julius Stewart all carried on conversations
away from their work stations and in the presence of
Supervisors Huey Fredieu in the first instance and Blackie
Boutte in the second instance without comment from the
supervisors. Indeed, Respondent produced no evidence to
the contrary other than the testimony of the supervisors
that they recalled no such incident.
I find that Cole's discharge was discriminatory and
violative of Section 8(a)(3) of the Act. Clearly he was a
difficult employee, arrogant and outspoken on occasion
and quick to defend what he conceived to be his rights.
Equally clearly he was not discharged because of his low
production or high breakage. This had been a continuing
situation for all of the 5 years for which he worked for
Respondent and obviously had not been sufficient to cause
Respondent to discharge him until he evidenced interest in
the union organizational movement. The sole occasion of
his discharge was his conversation with other employees
and his challenge to Foreman Richard that Richard was
not a supervisor in the eyes of Respondent.
1 find that although nonunion employees were permitted
to circulate and converse without hindrance or reprimand
from supervisors who must have been aware of their
activities, similar activities on the part of Cole led to his
immediate discharge within a few days of partner Victor
Rogers' announcement that the rule would be enforced. A
no-solicitation rule of this nature can remain valid only if it
is enforced without discrimination. Here, in the face of
discriminatory enforcement, the rule is rendered invalid
and Cole's discharge for the breach thereof violates Section
8(a)(3) and (1) of the Act .3
C. The Discharge of Rejenia Cagle
Rejenia Cagle had been denied a raise because of poor
production .4 Miss Cagle was informed that if she improved
her production she would be considered again for a raise;
she worked hard and improved her production and the
raise was not immediately forthcoming so she contacted
`t The General Counsel moved to strike Resp Exh. 4 on the ground that
a condition subsequent to its receipt , i.e., perusal of the original record by
the General Counsel, was not fulfilled . In the light of the discussion above it
appears that the exhibit , an accumulation of production and breakage
records of Aaron Cole , is immaterial to the issue of his discharge.
Accordingly, and for this reason, the General Counsel's motion to withdraw
my receipt of the exhibit is granted.
Victor Rogers and complained that although she was doing
her work she had not received the raise whereas other
employees were not making sufficient production and had
been given a raise. Rogers intervened on her behalf and she
was given a raise.
The day after Aaron Cole's discharge Victor Rogers held
a meeting at which he made a speech to the employees
stating among other things that Aaron Cole had been
discharged because he was not doing his work. Rogers then
addressed Miss Cagle during the meeting, stating, "Isn't
that right Miss Cagle." She did not reply. He again called
for a reply and a third time, and Miss Cagle said she had
no comment. Cagle then asked Rogers why he was calling
her name in a speech in front of all the other employees
and Rogers explained that he had received a telephone call
from her in which she asked why she had not received her
raise. Cagle pointed out that this was none of the other
employees' business and he should not tell them about this
matter in his speech. After Rogers concluded his speech,
Cagle confronted him in the employee lunchroom and
demanded to know why he had embarrassed her. He told
her that he had expected her to support him in what he was
saying about Aaron Cole. She told him that she considered
that what he was saying about Aaron Cole was a lie and an
argument ensued in which she apparently told him that
everything he said in his speech was a he. She was
immediately discharged. The General Counsel contends
that the discharge of Cagle violated Section 8(a)(3) of the
Act. The General Counsel argues only that in light of
Respondent's history of antipathy toward the Union it is
obvious that Cagle was discriminatorily terminated be-
cause of her union activity. It is obvious to me that she was
terminated because she challenged the statements made by
Rogers in his speech to the employees and offended him by
letting him and apparently other employees know that she
did not believe him. This is not a case as in Prescott
Industrial Products Company,5 or Leece-Neville Company,6
in which employees interrupted an employer's antiunion
meeting to debate assertions made by the employer. The
speech was not in the first place shown to be antiunion in
character other than Rogers' self-serving declaration that
Aaron Cole was discharged for cause. Miss Cagle's
objection was to her being singled out and what she
reasonably considered to be her personal business being
aired before the employees by Rogers. I know of no law
that requires an employer to extend to the employees the
same level of gentility that the employer attempts to exact
from his employees. It is not an unfair labor practice for an
employer to embarrass an employee before his fellow
employees except with regard to the employee's union
activities. There is no showing that Rogers' embarrassment
of Rejenia Cagle on this occasion had anything to do with
her union activities or his antiunion campaign. I find no
violation implicit in this rather unpleasant episode and I
4 It is noteworthy that although Aaron Cole was allegedly discharged for
poor production going back over a period of 4 years there is no evidence
that he was ever denied a raise because of that and indeed he had been
given a raise within a few months of his discharge.
B 205 NLRB 51 (1973).
6 159 NLRB 293 (1966).
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall recommend that the complaint be dismissed insofar
as it is alleged to be a violation.
D. The Discharge of Marie Cash
Marie Cash was a strong union adherent. She was the
first employee of Respondent to wear T-shirts distributed
by the Union bearing in large letters the caption "VOTE
UNION." She was seated in the lunchroom on June 13
during the morning coffeebreak, wearing her union T-shirt,
facing, at the next table, three employees, Beverly Deculus,
Alice Home, and Gwendolyn Reeves. According to Miss
Cash's testimony, she saw Deculus look at her and heard
her say, "Why don't you send that damn Frenchman back
to France." Cash replied, "What about you, coon ass."
Deculus left the room and Cash called after her "coon ass
trash." Another employee, Nettie Stanford, then told Cash
as she was leaving the room that she objected to her using
the term "coon ass trash" and did not want to hear her use
it again because she, Nettie Stanford, was a coon ass, too.7
According to the testimony of Deculus what Cash said was
"You better shut your mouth, you damn coon ass." Home
and Reeves testified in exactly the same words as Deculus.
Stanford, who appears to have been the only neutral
person in the party, other than having objection to the use
of the word "trash" in connection with the expression
"coon ass," testified in agreement with Cash that that was
the expression used . Although Deculus, Home, and Reeves
all agreed in testifying that Cash said, "You better shut
your mouth," they also agreed that Deculus had said
nothing. I do not credit them. I do credit Cash.
There is no question that Respondent had a strong policy
against "ungentlemanly" and "unladylike" language in the
plant. The policy was obviously designed to reduce to a
minimum the 'possible bad feeling among employees.
However, , evidence adduced by the General Counsel
reveals that in the past warnings were given to employees
and discharge was not the immediate outcome. For
example , Cash had in the recent past been called a bitch by
another employee, identified only as Olive, and no steps
had been taken against Olive. Another employee, Shirley
Strother, testified that when a fellow employee, Sharon
Watson, called her a "pimple faced bitch" Sharon Watson
was not discharged but was warned and moved to a
different part of the plant to separate her from Strother;
she was neither- suspended nor terminated.
Shortly after the incident in the lunchroom, Cash was
called into Wiebusch's office where she explained what had
happened. During the course of the meeting Stanford came
into the office and repeated her indignation at the fact that
Cash had used the expression "coon ass trash." Stanford
told Wiebusch at this time that as she was descended from
a Frenchman and she was herself a coon ass but objected
to being called trash. Wiebusch asked Cash if she thought
the term was dirty and Cash said that it was not,
whereupon Wiebusch said he was going to suspend Cash.
7 It appears that "coon ass" is a term used among the Cajuns in
Louisiana from which each of these employees came The term itself is not
considered opprobrious, Stanford testified that it was the addition of the
word "trash" that made it opprobrious because trash was like garbage,
something that you threw away.
8 Respondent contends that its foremen are not supervisors, arguing that
Cash asked Freddie Fredieu, her supervisor, who was
present, why nothing had been done about Olive when she
called Cash a bitch. Wiebusch intervened and told Cash
that she was suspended to give her time to think about it
and they would call her. Cash left the room crying, pausing
at the door, and said, "Don't bother." No one ever called
her;-Respondent contends that she quit.
It is clear that Cash was a strong union adherent and
everybody knew it. It is equally clear that Beverly Deculus
was strongly antiunion; indeed, she and her two friends,
Reeves and Home, at the time of the conversation in the
lunchroom were planning the purchase of the plastic straw
hats which they proposed to wear with "Vote No" or
"Support Rogers Brothers" signs on them. Respondent
offers no explanation for the difference in its reaction to
Cash's unladylike conduct and its reaction to the conduct
of Olive and Sharon Watson. The only inference to be
drawn, therefore, is that the difference in treatment
resulted from the union status of Cash and Respondent's
demonstrated union animus. I conclude and find that
Respondent's action in suspending Marie Cash was
discriminatorily motivated and violated Section 8(a)(3) and
(1) of the Act. Under the circumstances, I do not believe
that Respondent should be entitled to escape the conse-
quences of its unlawful act by withholding further
employment from Cash, who testified that she wants to go
back to work for Respondent, because in her anger and
dismay at her discriminatory suspension she told Respon-
dent not to bother to call her. Accordingly, I shall
recommend that Respondent offer her reinstatement with
backpay.'
E. The Handbilling Incidents
On two occasions within a week before the election,
antiunion handbills were distributed at the door by an
informally organized group of antiunion employees.
Respondent's laboratory fronts on a main business street in
Beaumont, Texas, and physically abuts the sidewalk.
Pictures of the site reveal that a bus stop is located a few
feet to the right of Respondent's building as one faces the
door. It appears that on occasion handbills were being
distributed both by the prounion and the antiunion
employees. During the distribution which took place at the
noon hour, various members of Respondent's supervisory
force came out on the sidewalk and stood among the
handbilling employees, either leaning against the building
or standing around reading handbills and watching the
proceedings. With one exception there is no evidence that
any of the supervisors actually distributed any handbills.
The one exception is found in the testimony of Aaron Cole
that Supervisor Kennette handed him a handbill on one
occasion as Cole was entering Respondent's laboratory.
A number of pictures were taken of the handbilling; they
disclose the presence of various supervisors .8
the foremen have no authority independently to hire or fire or to grant
raises. However, the foremen have the actual day-to-day supervision of the
employees working under them. They do not punch timeclocks, they attend
supervisory meetings , they, together with the higher echelons of supervisors,
were present at the meeting at which Respondent's counsel advised
supervisors concerning their rights and duties during the organizing
ROGERS BROTHERS WHOLESALERS 149
There is no evidence that any of the supervisory
employees had anything to do with drafting the handbills
or having them printed, nor that they exercised any
control, advisory or otherwise, over the employees who
distributed them. The only color to the General Counsel's
argument is that by their presence among the employees
distributing the handbills they tacitly indicated their
approval of the nonunion employees' activities.9
I find nothing in the evidence suggesting that the
handbilling had a tendency to interfere with, restrain, or
coerce employees in the exercise of their protected rights.
To the extent that the presence of the supervisors lent an
aura of approval to the activities of the nonunion
employees, this could scarcely have been a surprise to any
viewer who had taken the time to read Victor Rogers' 11-
page campaign letter which clearly disclosed Respondent's
antiunion stature. I recommend that the complaint be
dismissed insofar as it alleges that the supervisors "auth-
orized, ratified, condoned and participated in the distribu-
tion" of the leaflets.
The General Counsel also alleges that the incident where
Victor Rogers singled out Rejenia Cagle during his speech
to the employees violated Section 8(a)(1). As I pointed out
in my discussion of the discharge of Miss Cagle, I find
nothing in the incident that has a tendency to interfere
with any employee rights. Similarly, the General Counsel
contends that immediately prior to the Board-conducted
election Victor Rogers addressed himself to the employee
who was acting as observer for the Union and stated,
"Don't you think you would be doing a better job making
lenses than being here as an observer-well you do a good
job." Again, as I find nothing coercive or calculated to
interfere with or restrain employees in Victor Rogers'
language, I recommend that these allegations of independ-
ent violations of Section 8(a)(1) be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
3. By discharging Aaron Cole and by suspending Marie
Cash, Respondent discriminated with regard to the hire
and tenure and terms and conditions of employment of its
employees, thereby discouraging membership in a labor
organization, thereby engaging in unfair labor practices
affecting commerce within the meaning of Section 8(a)(3)
and, by the same acts and conduct, interfered with,
restrained, and coerced its employees in the exercise of the
rights guaranteed them by Section 7 of the Act in violation
of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Having found
that Respondent has discriminated with regard to the hire
and tenure of Aaron Cole and Marie Cash, I shall
recommend that Respondent offer them reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent jobs, and make them whole for
any loss of earnings they may have suffered as a result of
the discrimination against them by payment to them of
sums of money equal to those which they normally would
have earned from the date on which they were discriminat-
ed against until the date of the valid offer of reinstatement,
less net earnings during such period to be computed in the
manner prescribed in F. W. Woolworth Company, 90 NLRB
289 (1950), and with interest as described in Isis Plumbing
& Heating Co., 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 10
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship 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.
CONCLUSIONS OF LAW
1. Rogers Brothers Wholesalers is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Oil, Chemical and Atomic Workers International
Union and its Local 4-243, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
campaign and it is to them that the employees report in cases of absence,
tardiness, etc. The foremen apparently do no production work; they assign
employees and reassign them when the occasion arises , they warn and
discipline employees and, at least as far as the record herein shows, their
threats of disciplinary action are normally calmed out. I find that they are
supervisors within the meaning of the Act.
9 One of the pictures shows Foreman Butte holding a white hat in front
of his face. There is no identification of the white hat as being identical to
The Respondent, Rogers Brothers Wholesalers, Beau-
mont, Texas, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership and activities on behalf of
Oil, Chemical and Atomic Workers International Union
and its Local 4-243, AFL-CIO, or any other labor
organization by discriminating in regard to the wages,
hours, and working conditions of its employees because of
their activities on behalf of said labor organization.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights to self-organization, to form, join, or assist any
labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in any other
those worn by the handbill distributing employees or containing any legend
as did the others.
10 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerted activities for the purpose of collective bargaining
or other mutual aid or to refrain from any or all such
activities.
2. Take the following affirmative action which is
designed to effectuate the policies of the Act:
(a) Offer to Aaron Cole and Marie Cash immediate and
full reinstatement to their former jobs or, if such jobs no
longer exists, to substantially equivalent jobs, without
prejudice to their seniority or other rights and privileges,
and make them whole in the manner set forth in the section
of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at its laboratory in Beaumont , Texas, copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 23, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
With regard to those allegations in the complaint that I
found no violation proven, I recommend that they be
dismissed.
ai In the event that the Board's Order is enforced by a Judgment of a to a Judgment of the United States Court of Appeals Enforcing an Order of
United States Court of Appeals, the words in the notice reading "Posted by the National Labor Relations Board."
Order of the National Labor Relations Board" shall read "Posted Pursuant