Shepherd Laundries Co.

National Labor Relations Board - Board Decisions

Jun 19, 1969

176 N.L.R.B. 807 (N.L.R.B. 1969)

SHEPHERD LAUNDRIES
Shepherd Laundries Co. and International Union Of
Laundry And Dry Cleaning Workers, AFL-CIO.
Case 23-CA-3156
June 19, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On April 1, 1969, Trial Examiner John F. Funke
issued his Decision in the above 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 Trial Examiner 's Decision . Thereafter,
the Respondent filed exceptions and a supporting
brief, and the General Counsel filed 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
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was commited . The rulings are
hereby affirmed . The Board has considered the Trial
Examiner's Decision , the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings , conclusions , and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Shepherd Laundries
Co., Beaumont , Texas, its officers , agents,
successors , and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
807
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner : Upon charges filed
October 7, 23 and November 21, 1968, by International
Union of Laundry and Dry Cleaning Workers, AFL-CIO
herein the Union, against Shepherd Laundries Co., herein
Shepherd or the Respondent, the General Counsel issued
complaint , dated November 29, 1968, alleging the
Respondent violated Section 8(a)(l) and (3) of the Act.'
The answer of the Respondent denied the commission
of any unfair labor practices.
This proceeding, with all parties represented, was heard
by me at Beaumont, Texas, on January 14, 15, and 16,
1969. At the conclusion of the hearing, the parties were
given leave to file briefs and briefs were received from the
General Counsel and Respondent on February 18,1969.
Upon the entire record in this case and from my
observation of the witnesses while testifying, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Texas corporation engaged in the
laundry and drycleaning business at Beaumont, Texas.
Respondent during the past 12-month period received
gross revenue in excess of $500,000 from its laundry and
dry cleaning operations. During the same period,
Respondent received materials and goods valued in excess
of $1,000 which were shipped to it directly from points
outside the State of Texas. Respondent is engaged in a
business affecting interstate commerce within the meaning
of the Act.
II. LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Evidence
1. Violations of Section 8(a)(1)'
a. The no-solicitation rule
'Further ev idence of disparate treatment between union adherents and
nonunion employees is shown in the treatment accorded discriminatees
Berry, Smith , and Brown and employee Rayson who circulated the
antiunion petition . Among the reasons given Brown and Smith for their
discharge was the failure to seek written permission for their solicitations.
(The Trial Examiner ' s Decison inadvertently fails to note that the
employee handbook issued after the discharges required "written"
permission .) Respondent 's witnesses , President Shepherd and Vice
President Dengler, claimed written permission was required even though
not so stated in the posted rule, yet employee Rayson was not required to
get written approval in order to circulate his antiunion petition . Moreover,
while it appears from the discharge interviews the main reason given for
the firing of the discriminatees was their alleged solicitation during work
time, the record shows no one had ever been discharged for such cause
before, and Rayson , according to the credited testimony of Shirley Jean
White and the testimony of Gloria Ann Riles , solicited signatures for the
antiunion petition during working time.
The first allegation of paragraph 7 of the complaint
alleges that Respondent maintained and enforced a
no-solicitation rule forbidding all employees to engage in
'Att elusion of the hearing, the General Counsel moved to amend
his complaint by adding subparagraphs v, w, x, y, z, as, bb, cc, dd, cc, If,
gg, hh , and ii, to paragraph 7 of the complaint . The motion was denied by
the Trial Examiner as to subparagraphs v, If, gg and hh. As to the other
subparagraphs decision was reserved . As to these the motion to amend is
now granted. In his brief the General Counsel requested permission to
withdraw subparagraphs 7(b), 7(c), 7(d), 7(e), 7(g), 7(h), 7(k), 7(n), 7(o),
7(p), and 7(t) of the complaint. Permission is hereby granted and said
subparagraphs are stricken from the complaint.
'The original complaint alleged 20 separate violations of Sec . 8(a)(1) and
the General Counsel moved at the close of the hearing to allege 14
separate other violations by amendment to the complaint . Of the 14, 4
were denied and 10 were granted . Eleven other allegations have been
stricken at the request of the General Counsel, supra
176 NLRB No. 113
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
solicitation without prior permission of management.
This rule, as posted by Respondent , (Resp . Exh. 3)
reads:
ALL EMPLOYEES
PLEASE TAKE NOTICE
No soliciting of any kind by any person, group or
association is permitted during working hours.
BY MANAGEMENT
The legend was printed in red and blue letters on a
white background . On testimony which I find
uncontroverted , six of these signs were posted about
Respondent's plant in 1961 and remained posted through
the critical period . I do not find that this rule, as posted,
constituted a violation of the Act.
On or about October 15, Respondent issued a new
employees' handbook (G. C. Exh. 2) which contained the
following order:
Do not sell or solicit without permission from the Plant
Manager . (The handbook in effect prior to this (Resp.
Exh. 4) contained no such prohibition.
I find that this rule violated Section 8(a)(1) of the Act
since its restrictions were not confined to working time or
working areas . There is no evidence establishing that the
rule was necessary for plant production or discipline.3
I do find, however, that the posted rule (Resp . Exh. 3)
was discriminatively applied with respect to employees
Sadie Smith , Darlene Brown and Deborah Berry, all of
whom were discharged for violating the rule . (This was
not the only reason given by management for their
discharge, but it was a substantial if not controlling
factor).' On the basis of the credited testimony of Sadie
Smith, Darlene Brown , Annie Moye , Dolores Brown, and
Shirley White' I find that, until the known advent of the
union campaign , Respondent 's rules against selling and
solicitation were enforced with laxity.' Supporting their
testimony is that of President Shepherd who, after
denying that he knew of widespread solicitation in the
plant , admitted that he spoke to superintendents about it
repeatedly because it was so flagrant .' While Respondent's
witnesses testified that employees were told that they were
required to obtain permission to sell or solicit within the
plant, this rule was not reduced to writing until October
15, after Respondent became aware of union organization
in the plant. That vigor was inoculated into the rule by the
Union' s campaign is established by the fact that only two
permissions were granted in 1967, one on August 26,
1968, and one on September 13, 1968. Following the
discharge of Smith, Brown , and Berry, some 14
permissions were granted.
ufacturing Company. 126 NLRB 699.
'Findings as to whether the discharges of these employees violated Sec.
8(aX3) of the Act are made Infra
'This credibility is based on their demeanor while testifying and
particularly in contrast to that of Respondent's witnesses Cates, Madsen,
and Alsobrook.
'After hearing these witnesses I indicated that any further testimony
from the General Counsel on this issue would be merely cumulative.
'On credited testimony I rind that employees sold tickets to church and
school lunches and dinners or the lunches themselves , Stanley products,
flowers, deodorizers , pies, oil lamps , dresses, panties, and cosmetics.
Raffles and World Series pool chances were also sold in the plant. Some
of these were sold to or in the presence of supervisors , Alsobrook and
I can only conclude that the selling and solicitation rule
was more strictly enforced after union organizational
efforts became known to management and that the
purpose of this stricter enforcement was to discourage
union activity and thereby violated Section 8(a) (1) of the
Act.'
b. Participation in revocation of union authority
On September 20, Vice President Dengler made a
speech to the employees (Resp . Exh. 20) advising them,
among other things:
Now, another question was asked - some people have
asked how they can get their cards back from the
Union that they have signed. They feel like they've
made a mistake . Now, this can be done . You have to
write a letter to the Union asking for your card back.
Now if you want this done, you can come to us and we
will give you all the assistance you want in writing this
letter . You must mail and sign this letter but we will
assist you in doing it. We will assist people at all times
in writing letters, giving legal advice and such things as
that in this plant, and we will continue to do so.
In his speeches made on September 27, (Resp. Exh. 10,
11, and 12 ) Shepherd referred to the benefits employees
were receiving without a union . Shepherd then advised
those employees who wanted to get out of the Union how
to do it:
Now many have asked questions about uh , I've signed a
card - I didn't mean to join the union . I didn't know
what I was signing and I would like to resign, or I'd
like to get my card back. Well, it's very simple. All you
have to do is write a letter to the union telling them just
what I said - I 'want to resign - I'd like to withdraw
my membership. Now this is so simple that all you have
to do is to tell me or Mr. Dengler and we'll have the
girl type the letter out for you - all you have to do is
sign it and take it over and mail it. . . . We would be
glad to help you because we think it takes a big person
to admit they have made a mistake or they didn't
intend to do what they did. . . .we'll address the
envelope for you, all you have to do is sign it, put it in
the envelope, take it over and mail it.
With respect to the antiunion petition , Shepherd told
his employees:
Some people have asked us, is it all right to get up a
petition in support of the company. Yes, this is all
right . You can do it , this is permissible , of course, we
appreciate the moral support , your doing it voluntarily,
we have not told anyone to do it , the only request of
you is not to approach people while they are on their
working hours to sign a petition . It must be done during
coffee breaks and lunchtime .... If you want to sign it
all right, if you don't O.K... .
As a result , though perhaps only in part , of these
solicitations by management to have employees withdraw
from the Union I1 letters were received from employees
requesting withdrawal (G. C. Exh. 3(a)-(k)). All letters
were composed in identical language and were typed in
Respondent 's office.
Willie Rayson , a maintenance mechanic, testified that
he heard something about an antiunion petition which
would be circulated and that he asked Vice President
M sen without incident.
'Brearley Co.. 163 NLRB No. 64; Logan Mfg. Co., 162 NLRB 1586.
SHEPHERD LAUNDRIES 809
Dengler if it would be all right to circulate one.' When he
was told it would be he prepared the language for the
petition, took it to Dengler who had it typed and Rayson
and some helpers distribute it among the employees.
When the petitions were signed they were returned to
Dengler's office." Rayson also asked Dengler how the
employees could get their cards back. Dengler looked up
the Union' s address and had letters of withdrawal typed
for employees to sign . Some l l l signatures were obtained
to the petition . Rayson stated that some of the employees
asked him for the letters of withdrawal, and that on
occasion he would ask an employee if she wanted to
withdraw. Rayson would have the letter signed, take it to
the post office and mail it , paying the postage himself. In
view of his testimony that his duties took him about the
entire plant, the number of signatures obtained to his
petition and his testimony that he visited the employees
several times soliciting signatures to his petition the
conclusion is inescapable that he did not restrict his
activities to nonworking time ." In view of Dengler's
knowledge that he was circulating such a petition and the
fact that this circulation took place during the period
when Respondent was applying stricter enforcement of its
no-solicitation rule, at least as to union solicitation, I
must conclude that Respondent had knowledge that
Rayson was soliciting on company time.
It is my conclusion that Respondent violated Section
8(a)(l) of the Act by encouraging employees to withdraw
from the Union and by participating in and assisting them
in such withdrawal." The action of the Respondent,
particularly when it is considered in the context of his
antiunion speeches and other violations of the Act, went
beyond the mere performance of a ministerial act." The
distinction is a fine one and the Board decisions, cited
below, do little, either in language or in logic , to clarify it.
I would also find that Respondent by permitting Rayson
to circulate his antiunion petition throughout the plant
engaged in a disparate application of its no-solicitation
rule in violation of Section 8(a)(1).
c. The speeches to employees
During the course of the Union 's campaign , speeches
were made to the employees by President Shepherd and
Vice President Dengler . Shepherd spoke to various groups
of employees on September 16, Dengler spoke to groups
of employees on September 20, and Shepherd again spoke
to groups of employees on September 27. Tape recordings
of these speeches were received in evidence over the
objections of the General Counsel . In his brief to me, the
General Counsel frankly stated that he was satisfied that
the tape recordings were conscientiously transcribed and
substantially correct . He also stated that the transcripts
The time is best fixed as prior to Dangler 's speech on September 20.
"Dangler testified that when Rayson asked for permission to circulate
the antiunion petiton he told him he (Dangler ) was not initiating it and it
was entirely up to the employees in the plant . He also testified that Rayson
told it would be circulated in nonworking hours.
"Rayson , in his testimony , did not state that when he requested
permission from Dangler to circulate his petition he was told to confine his
activities to nonworking hours.
"Normandy Square Food Basket , 163 NLRB No. 45; Neil Amana Food
Service, 163 NLRB No. 27; Cumberland Shoe Company. 160 NLRB No.
1256. Payless. 157 NLRB 1143, enfd . N.L.R.B. v. Payless 405 F.2d 67
(C.A.6).
"Cf. North American Aviation , Inc.. 163 NLRB No. 115; Warrensburg
Board and Paper Corp.. 143 NLRB 398; Kay Electronics , Inc., 167 NLRB
No. 161.
"as being certainly more reliable than the recollections of
the witness who heard the speeches or, for that matter, the
recollections of the speakers themselves." With that
statement I am fully in accord and any finding made
herein based upon the speeches will be based on the
contents as revealed in the transcripts. These transcripts
were introduced as follows:
Respondent's Exhibit No. 6. Shepherd's speech of
September 16 to the flatwork crew.
Respondent's Exhibit No. 7. Shepherd's speech of
September 16 to linen supply.
Respondent's Exhibit No. 8. Shepherd's speech of
September 16 to the upstairs laundry.
Respondent's Exhibit No. 9. Shepherd's speech of
September 16 to the industrial uniform employees.
Respondent's Exhibits Nos. 10, 11 and 12 were
transcriptions of speeches made by Shepherd on
September 27, unidentified as to departments.
Respondent's Exhibit No. 20. Dengler's speech to
employees on September 20. (Only one of Dengler's
speeches was recorded).
The speeches were in opposition to the Union and its
aims . The issue presented is whether they were coercive
within the meaning of the Act. In Respondent's Exhibit 6
the following statement is made:
Now if they [the Union] lose the election, then that's
the end, but if the election is won, it doesn't mean that
you won-it just means that this is where you start
negotiations , and negotiations can last for months, or
even years. Particularly if the company would resist,
which, naturally they would do, and during this time,
there is a lot of bitterness between friends and people
wanting to join the union and not wanting to join the
union, and naturally they are going to have different
ideas about it. Then strikes will be the result of the
breaking down of negotiations and then that's when you
can have threats, and violence and loss of work and
pay. And of course, the company would lose business
and that would mean that there probably would be a
loss of some jobs and loss of earning to both the
company and the employees.
Now Shepherd ' s must and will resist any signing of a
contract because , as I said before , we want to protect
people who do not want a union here. And, of course,
we can't afford it, we've already shown you this, so
naturally we will resist. And as a deadlock will result
and when it does, then that is when they are going to
have to call a strike. . ..You try to cross the picket
line, then there is going to be threats of violence, you
people read the paper, I know I'm not telling you
something you don 't know . Right over here in DeRitter,
they had some fellows locked in the plant, they wouldn't
even let them get out of the plant, they had to take
them out in a helicopter because there was a picket line
around there and they were afraid to got out - they
were afraid they were going to be beat up , their cars
turned over, and things like that.
Shepherd then mentioned the loss of jobs due to union
representation , the amount of dues that would be collected
and the appropriation of dues for union salaries and
expense accounts.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Respondent's Exhibit 7 he stated, referring to the
results of a strike:
but if you do not go out on strike , then is when
they come in with the threats, this is when they come in
and say well, if you don't, it's just too bad, if you try to
come in through that picket line, and somebody is going
to rough you up pretty bad, may turn your car over or
something like that.
On September 27 Shepherd again addressed his
employees in groups. He told one group ( Resp . Exh. 10,
p. 5):
We want to repeat again what Mr. Dengler has said at
that last meeting is, that we do not want a union, we
want that plain and we will resist in every legal and
lawful means , no matter how long it takes or how much
it costs because we feel strong about this.
To another group on the same day (Resp. Exh. 11, p.
5):
We unquestionably, unqualified [sic], do not want and
will not tolerate a union . We're gonna resist by every
lawful and legal means for a long time and if it takes
three months to three years, well, we're prepared to do
it and we will do it.
To the same effect see Resp. Exh. 12, p. 6, another
speech made the same day.
In his speech on September 20 (Resp. Exh. 20, p. 3)
Dengler told the employees:
Now this company wants to reassure you of one thing.
That they are going to do everything possible not sign
up with any union , and they will resist in very lawful
and legal means , so - no matter how long it takes. It
may take three months or it may take six years, they
are gonna do everything by legal and lawful means not
to do it.
I think that in these speeches Shepherd and Dengler
went beyond the permissible limits of Section 8(c). I do
not think that the statements were mere predictions of the
possible dire consequences of unionization ." Rather I
think they clearly indicated an adamant opposition to
reaching any agreement with the Union and a complete
rejection of the principle of good faith bargaining. The
statement that Respondent would resist the Union for
months and for years and would not tolerate a union are
completely incompatible with any notion that it intended
to bargain with any designated representative of its
employees. I would further find that its warnings of
strikes , violence and loss of pay constituted , in this
context, a warning of the consequences of the stand which
Respondent would take . Respondent was telling its
employees that the Union would be forced to take strike
action as a result of the course Respondent intended to
pursue . I do not find that so clear a statement as saved by
the parenthetical use of the words "in every legal and
lawful means" injected in some of the speeches . Not only
would the employees have no means of knowing what
legal and lawful means were either intended by or
available to the Respondent but such language could only
serve to indicate that Respondent could lawfully resist
good faith bargaining until a strike would be the Union's
only means of recourse and that the Union, in the event of
strike action, would necessarily resort to violence.
"N.L R v. Automotive Controls Corporation, 406 F.2d 221 (C.A.
10k N.L.R.B v. M d B Headware Co.. 349 F.2d 170 (C.A. 4); P R.
Mallory Co. v. N.L R.B., 389 F.2d 704 (C.A. 7k N.L.R.B v.
TRW-Semiconductors , 385 F.2d 753 (C.A. 9k N.L R.B. v. Golub Corp.,
In view of this finding, I find it unnecessary to dissect,
as did the General Counsel, each and every sentence of
the speeches or separate and additional violations. For the
reasons set forth I find that the speeches violated Section
8(ax l) of the Act.'
d. Other allegations of violations of Section 8(a)(1)
Subparagraph 7(1) of the complaint alleges that Vice
President Dengler informed a group of employees that he
knew who was distributing union cards. Delores Berry
testified that Dengler in his speech to the flatwork
department on September 20 stated:
. he said the union have people in the plant working,
then he said, `We know who they are, but we won't
mention names.'
There is no transcription of this speech although there
is a transcription of Dengler's speech to upstairs laundry.
While Berry is the only employee who testified to this
statement it was not contradicted by Dengler. In view of
the fact that three employees were discharged on that
same day for soliciting on behalf of the Union (so found,
infra), I find that this statement did convey an impression
of surveillance and violated Section 8(a)(1) of the Act. On
the other hand, I again reject the General Counsel's
contention that Shepherd's statement that union activity
and solicitation was prevalent in the plant created any
such impression. Inevitably an employer will know that
union organization is taking place in his plant but this
does not mean that he had sought to determine the
identity of the organizers.
I also reject the allegation as it respects Supervisor
Vallejo. Vallejo allegedly told a part-time employee,
Michael Hart, that he knew who was in the union, who
was organizing it and who was trying to get people in the
Union. Hart allegedly repeated this conversation to
another employee named Emma Harrison. Conceding that
Hart's testimony is correct (Vallejo was not a witness) it
relates to only one conversation with a minor supervisor
and although Hart testified that he repeated it to Harrison
I regard it as an isolated incident.
I also find the alleged interrogation of Roy Manuel by
Dengler on September 20 as isolated. All that Manuel
testified to was that Dengler, presumably investigating
solicitation of employees by Berry, asked him if he had
been solicited by anyone in the plant. Manuel explained
the incident and that was that. There was no effort made
on Dengler's part to inquire as to Manuel's feelings
toward the Union.
2. Violations of Section 8(a)(3)
Sadie Ray Smith testified that she was first employed
by Respondent in January 1961, that she worked in the
shirt department under Johnny Vallejo and later under
Farley Cates and that she was discharged on September
20, 1968. She first learned of union activity from Delores
Berry in August and attended her first union meeting on
388 F.2d 9211(C. A. 2). Since in each of these cases the court reversed the
Board ' s findings it is apparent that the court gave greater weight to the
protection afforded by Section 8(c) of the Act than does the Board. A
Trial Examiner is, however , bound by board decisions irrespective of court
authority or his own opinion . Insurance Agents International Union, 119
NLRB 768.
"Miller Charles and Company , 146 NLRB 404, enfd . 341 F.2d 870
(C.A. 2k Reeves Broadcasting & Development Company 140 NLRB 466;
Hunt Electronics Company, 146 NLRB 1328.
SHEPHERD LAUNDRIES
September 11 when she signed her union authorization
card . She was given three cards to distribute and at her
lunch break the following day she passed them out to
three other girls , two of whom signed and returned the
cards to her . On Friday, September 20, she was told, as
she was preparing to leave the plant , to see Farley Cates.
Cates took her to the company meeting room where
Dengler was waiting . She quoted Cates as saying:
Sadie , I hate to do this . You are a good worker and
everything . And you have been here with us a number
of years.
This is the bad part about it, but I have heard that you
have been soliciting union activities , union cards on the
job.
Cates admitted he had not seen her soliciting on the job
but had received the information from two other
employees . Despite her denial of on-the-job solicitation
she was fired . Smith testified to three conversations with
an employee named Dorothy Faulk . The first took place
after work on September 12 when she and another
employee asked Faulk what she thought about the Union.
On the following day Smith asked her if she had made up
her mind and Faulk told her to leave her alone and stop
worrying her about the Union . This, according to Smith,
was on her lunch break . The next day, again on lunch
break , an employee named Esseline Nonette told her that
Faulk had reported this solicitation to Bessie Thomas,
group leader , Smith then told Faulk she should not have
reported this incident to Thomas or anyone else.
Thomas testified that she had overheard Smith tell
Faulk to keep her mouth shut and that this occurred right
after lunch break . Cates asked her about the incident and
Thomas reported what she had heard . Thomas stated that
Smith and Faulk were good friends.
Cates testified that three girls, including Smith, were
employed in the shirt finishing department . As to Smith
he stated that for 2 or 3 weeks prior to her discharge her
attention to her work was very poor : " It was too much
loud talking and talking between the other units and
people in the aisles , and so forth , that created an
atmosphere that didn ' t, wasn ' t very conducive to getting
production." Production rose "drastically " the Monday
following her discharge."
9/7 115
9/14 117
9/21 116
9/28 109
As to the Faulk incident, Cates stated he observed
Smith talking very loudly to Faulk at her work station at
12:36 p. m., that he asked Thomas what it was all about
and that Thomas told him Smith was bawling Faulk out
for not joining the union . Another employee , Ofelia
Gonzales , told him that Smith had told Faulk she was
going to "whip her ass ."" Faulk refused to tell him
anything . Cates reported the incident to Smythe, Shepherd
and Dengler . Each had complained to him about poor
production and excessive claims. Shepherd gave him
permission to fire Smith and Cates did fire her, telling her
she had been soliciting during working hours.
The discharge interview between Cates and Smith was
tape recorded and the record offered and received after
the close of the hearing .' 8 This record establishes that
"Respondent 's production records (Reap . Exh. 15) do not justify this
statement . September production records for Smith's department read, in
terms of units:
"Corroborated by Gonzalez.
811
Smith was told she discharged solely because Cates had
"heard" from other employees that she was soliciting on
company time. Despite Smith's denial she was not
confronted with any employee and was summarily fired
after some 7 years of service.
Smythe Shepherd testified that at or immediately prior
to the time Smith was discharged he had told Cates there
was too much trouble in the department, respecting
quantity and quality of the work. As to Smith, he stated
he had had complaints from supervisors that she was
disrupting the work of her fellow employees. This general
statement was all Shepherd had to offer on Smith.
I have little difficulty in finding that Smith was
discharged for her activity on behalf of Local 580. Her
long record of service, her acknowledged good
workmanship and the triviality of the specific cause of her
discharge, her argument with Faulk, all belie
Respondent's contentions. On the testimony of
Respondent's own witnesses, Smith's reprimand to Faulk
took less than a minute , confined as it was to a single
statement, and could hardly have disrupted production.
Nor do Respondent's own records support its contention
that production in her department had deteriorated, let
alone that Smith was responsible. The testimony that she
engaged in loud talking is so nebulous as to be
insuseptible of proof or disproof. It is a fact that
Respondent was hostile to the Union, engaged in other
unfair labor practices to keep it out and, on one day,
discharged three veteran employees known to be active on
behalf of the Union.
The tape recording of her discharge interview indicates
the only reason given her for discharge was solicitation on
company time and the evidence of this was admittedly
heresay. The tape recording serves only to confirm my
conviction that she was discharged for her union activity.
Delores Elizabeth Berry was employed by Respondent
in 1956 and worked in the flatwork department under F.
H. Alsobrook, foreman. Berry testified that on July 8 she
and Rosa Coleman wrote a letter to the AFL-CIO in
Washington and that on August 21 she made contact with
a Mrs . Johnny Salome in Houston and a union meeting
was held that night. She and Coleman solicited attendance
among the other employees. A second meeting was held
on September 11 and at this meeting union cards were
distributed. Berry signed one and took eight for
distribution among other employees and had seven signed
the next day at the plant during the lunch period. About
3:30 p.m. on September 20 Alsobrook took her to the
conference room, told her she had been off for 6 weeks,
that she was late in reporting for work and had been
soliciting for the union. She admitted asking employees to
sign cards and that she had been consistently late over a
period of years. She had also taken off for three separate
periods due to pregnancy.
Alsobrook testified that he returned from his vacation
on September 14 and noticed that there was extreme
tension throughout the plant, that the employees were not
producing as they should and that they were emotionally
upset . As conditions grew worse he investigated and
learned from Bessie Mae Johnson that Berry was the
source of the trouble. He also had complaints from four
other employees that Berry was trying to pressurize them
into joining the union." Alsobrook went to Shepherd, told
"The recordings were not marked as exhibits. The record of Smith
should be marked exhibit 24, that of Brown as 22, and that of Berry as 23.
"This was not corroborated by three employee witnesses called by
Respondent , Pearl Johnson , Bessie Johnson , and Verneda Simmons. Pearl
Johnson merely testified that Berry asked her to sign a card in the
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him something had to be done since claims had doubled
and tripled .'* Shephard told him to make his own decision
and Alsobrook discharged Berry telling her "that she had
been soliciting on the job for union activities , and that all
these people had been complaining on her, she was
causing harrassment and undue rest through the
department ." Alsobrook further testified that Berry was a
good employee but had a horrible record for tardiness
until about a month prior to her discharge when she
straightened out.
Having found Respondent did not substantiate its claim
that Berry disrupted the work in her department nor that
there was a significant increase in claims which could be
attributed to Berry, I find that the only reason for her
discharge was her solicitation of union cards . Respondent
has not established , however, that this , except in the
instance of Manuel," took place during working time,
and, even if it did I would not find , in view of the
testimony of other employees respecting solicitation in the
plant, it justifiable cause for discharge . In short I find that
the only reasonable inference that can be made is that
Berry was discharged for her lawful union activity and for
no other reason."
Darlene Brown was employed by Shepherd in its
industrial uniform department from April 10, 1963, until
discharged on September 20, 1968. She testified she
attended the first union meeting on August 21 and at the
second meeting on September I1 she signed a card. She
was given four cards for distribution to other employees
but asked only one employee to sign a card. (This
employee , identified only as Jackie, refused to sign). She
was, however , asked by Willie Rayson if she was soliciting
and was told by him that an employee named Mamie
Green told him that she had asked Green to sign a card.
This she denied.
On September 20, she was discharged b,i her
supervisor , Bill Madsen, on the ground that she had been
soliciting on the job - selling things on the job. This she
admitted and Madsen told her he had to let her go.
According to Brown , she had been selling deodorizers for
another employee named Annie B. Moye for about 2
weeks prior to September 20 and had sold deodorizers to
restroom , and Verenda Simmons that Berry asked her to sign a card
outside the plant . Simmons never complained to Alsobrook about Berry.
Bessie Mae Johnson testified that Berry worked directly across the table
from her and talked to her about the union and that this made her
nervous . She admitted that she was a nervous person and that there was
talk about the union throughout the shop and that this made her more
nervous . Berry did not ask her to join the union . Manuel , a truckdriver,
testified that Berry asked him to sign a card while he was loading a truck,
that he refused and later reported the incident to Dengler when Dengler
asked him if be had ever been solicited to join a union . The tape-recorded
discharge interview between Alsobrook and Berry was exceptionally brief.
He told her she had worked for him for 12 years, had a poor absentee
record but that the important thing was that she had been soliciting on the
job. Despite the denial that she had talked to anyone on the job and the
fact that Alsobrook's evidence was based on `reports ," she was fired.
"This statement was not substantiated by Respondent's records (Reap.
Exh. 14) and Alsobrook 'a testimony regarding the method of computing
claims. Shepherd also testified to an increase in claims following the
advent of union organization but there is nothing to establish that Berry
was responsible for this increase , if in fact there was one, any more than
other employees in her department.
"This incident I find totally insignificant as far as "disruption" of work
was concerned, it took only 5 minutes or a little longer . Since the
conversation was not related on objective estimate of time can be made.
"rhe allegation as to habitual tardiness must fail in view of Alsobrook's
testimony that she had straightened out in this respect during the month
prior to discharge.
two girls in Madsen 's office in his presence without
receiving a reprimand . She stated she had not seen the
signs posted against solicitation , did not know it was
against the rules and had never requested permission to
engage in solicitation . She further testified that she had
sold pies, candy and punch cards to other employees,
including Madsen , and had never heard of any employee
being fired for selling merchandise . During her period of
employment , she had taken pregnancy leave on three
occasions, but testified at the time of her discharge
Madsen did not mention absenteeism or tardiness.
On cross-examination Brown admitted that she had
often reported late for work because work would not be
ready for her until 9 or 9:30 and that on her time sheet
she showed her reporting time as 8 a .m. Her time clock
would , however, show her actual time of arrival.13 She
admitted that she knew it was wrong to falsify her
timesheet but did it because other employees falsified their
sheets, and admitted being reprimanded by Madsen for
this . She also admitted being reprimanded by Madsen on
different occasions for her absenteeism which she justified
on the ground that she always called in.
Madsen testified that he discharged Brown because she
was late for work, misrepresented her time sheet and
distracted other people. As to distracting other people,
Madsen said he had complaints from superintendents Earl
Ridley in the drycleaning department and Farley Cates in
the finishing department that Brown , visiting their
departments , would stop and talk to the employees." The
complaints were submitted about 2 weeks before her
discharge . He received a similar complaint from a Mrs.
Smart in the makeup department."
Madsen testified that at her discharge interview he told
Brown that she was discharged for being late,
misrepresenting her time sheet and distracting the work of
other employees . He also testified that she did not call
him when she was going to be absent." He denied that he
knew she was soliciting for the union . He did testify,
however, that the specific reason he gave Brown for her
discharge was her tardiness and that he spoke to her
about it in July and warned her that if it did not cease he
would have to lay her off." Madsen offered no rebuttal to
Brown ' s explanation for her tardiness; i.e., that work
would not be ready for her until 9 or 9:30 a.m.
It is my conclusion, although the issue is close, that
Brown was discharged because Respondent suspected her
of union activity . Respondent 's knowledge of this activity
is based upon her testimony that Willie Rayson accused
her of solicitation of a union card from Mamie Green."
While she denied this to Rayson there is nothing to
establish that he believed the denial. My conclusion is
"The employees punched a timeclock upon arrival and were paid, if they
were hourly paid employees , by the time on the timeclock . The reason for
signing a timesheet at their work station was not disclosed.
"Neither Cates nor Ridley were called to support this testimony.
"Mrs. Smart was not called as a witness.
"I credit Brown 's testimony that she did call in when she would not be
able to report and that Madsen was not available to receive her calls. I
also credit her testimony that she left the message for Madsen.
"A tape recording of the discharge interview between Madsen and
Brown (Reap . Ex. 23) indicates that he found three reasons for discharging
her, her tardiness , her failure to call in when she was absent and her
solicitation of sales of merchandise . In this interview there is no denial by
Madsen that other employees also solicited on company time.
"From his own testimony and his demeanor on the stand I cannot but
believe that Brayson reported all union activity and the identity of union
adherents to management. Frankly, I would not only call him an agent of
Respondent but, in the common vernacular, a stool pidgeon.
SHEPHERD LAUNDRIES
based also upon the fact that the asserted reasons for her
discharge , her tardiness in particular , had 'been largely
ignored by Respondent until union organization became
rampant in the plant . Likewise, I find nothing to establish
that her talking with other employees either disrupted
their or her work or that it was more than was customary
among employees in the plant. I have given further
consideration to her absenteeism as established by
Respondent' s Exhibit No. 18 but this, too , seems to have
been overlooked until the organizational campaign became
known to Respondent , to which it responded with its
anti-union and unlawful speeches.
In reaching my conclusion that Smith , Berry and
Brown were discharged for their union activity I have
given some but not controlling weight to the fact that
Respondent's conduct followed a familar pattern of
discrimination . Its response to the known organizational
activity in its plant was antiunion speeches , stricter
enforcement of its anti-solicitation rule and the discharge
of known union adherents" for asserted violations of
company rules - violations which had been overlooked
for many years . As the courts have acknowledged,
employers seldom confess that employees have been
discharged for their union activity and the best an
examiner can do in the face of conflicting testimony is to
draw what experience had indicated is the most reasonable
inference from an employer ' s conduct . Such deduction
cannot , of course, be free from error but it is on such
deduction that findings must be made.
It is my conclusion that the discharges of Smith,
Berryman , and Brown violated Section 8(a)(3) and (1) of
the Act.
IV. THE REMEDY
Having found that Respondent engaged in and is
engaging in certain unfair labor practices it shall be
recommended that it cease and desist from the same and
take certain affirmative action necessary to effectuate the
policies of the Act.
Having found that Respondent discharged Sadie Smith,
Darlene Brown , and Delores Berry to discourage
membership in a labor organization , it shall be
recommended that Respondent offer them full and
immediate reinstatement to their former or substantially
equivalent position without prejudice to their seniority and
other rights and privileges and make them whole for any
loss of earnings or other monetary loss they may have
suffered by reason of the discrimination practiced against
them. Loss of earnings shall be computed in accordance
with the Board ' s formula as set forth in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating
Co., 138 NLRB 716.30
Upon the foregoing findings and conclusions and upon
the entire record in this case I make the following:
"Brown was not, as her own testimony establishes , an active organizer
for the union . My finding as to Brown is based on the fact that Brayson
accused her of soliciting for the union and that her admitted selling of
deodorizers, a nonunion activity , would serve to fortify Respondent's
position that the discharges of Smith and Berryman were
nondiscriminatory.
"While I do not consider it within my province to amend the Board's
remedial procedures , it is suggested that the Board might well consider
whether interest at the rate of 6 percent is adequate under prevailing rates.
CONCLUSIONS OF LAW
813
1. By promulgating an unlawful no-solicitation rule; by
discriminatively enforcing it; by encouraging employees to
withdraw from the Union and by assisting them in
withdrawing ; by threatening its employees that union
organization would be futile and would result in strikes,
violence and loss of pay; and by creating the impression
that it knew the identity of union adherents , Respondent
violated Section 8(a)(1) of the Act.
2. By discharging Sadie Smith, Darlene Brown, and
Delores Berry because of their membership in and activity
on behalf of the Union and in order to discourage
membership in said Union, Respondent violated Section
8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2 (6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
it is recommended that Respondent , Shepherd Laundries
Co., its officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Promulgating and enforcing an unlawful
no-solicitation rule; discriminatively enforcing a lawful
no-solicitation rule; encouraging employees to withdraw
from the Union and assisting them in withdrawing;
threatening its employees that union organization would
be futile and would result in strikes, violence and loss of
pay; creating the impression that it knew the identity of
union adherents.
(b) Discouraging membership in International Union of
Laundry and Dry Cleaning Workers, AFL-CIO, or in any
other labor organization by discharging or discriminating
against any employee in regard to his hire, tenure or other
terms and conditions of employment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which I find
necessary to effectuate the policies of the Act:
(a) Offer Sadie Smith, Darlene Brown, and Delores
Berry full and immediate and reinstatement to their
former or substantially equivalent positions without
prejudice to their seniority and other rights and privileges
and make them whole for any loss of earnings or other
monetary loss they may have suffered by reason of the
discrimination practiced against them in the manner set
forth in that section hereof 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 relevant and necessary to a determination of
compliance with paragraph a.
(c) Post at its plant at Beaumont, Texas, copies of the
notice marked "Appendix."" Copies of said notice, on
forms to be provided for the Regional Director for Region
23, after being duly signed by the Respondent's
"For reasons disclosed by the record the usual "Armed Services" order
is not recommended.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative , shall be posted by it 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 the Respondent to
insure that said notices are not altered , defaced, or
covered by any other material.
(d) Notify said Regional Director , in writing , within 20
days from the date of this Decision , what steps have been
taken to comply therewith."
IT IS FURTHER RECOMMENDED that the complaint, as to
all matters not specifically found to be in violations of the
Act, be dismissed.
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
the provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps 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
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT keep in effect or enforce a rule which
prohibits union solicitation or activity on nonworking
time.
WE WILL NOT encourage our employees to withdraw
from the International Union of Laundry and Dry
Cleaners Workers, AFL-CIO, or any other union.
WE WILL NOT assist our employees in withdrawing
from said or any other union by preparing letters of
withdrawal or antiunion petitions or by encouraging
their circulation.
WE WILL NOT tell our employees that we will resist
the said Union for months and years and will not
tolerate a union in our plants.
WE WILL NOT tell our employees that as a result of
our resistance to the said or any other union there
would be strikes , violence and loss of pay.
WE WILL offer Sadie Smither , Delores Berry, and
Darlene Brown their old jobs back and pay them for
any earnings they may have lost because we fired them.
WE WILL NOT discharge any employee because he
joined a union or was active for any union.
WE WILL NOT tell our employees we know who
belongs to the Union.
All our employees are free to join and remain members
of any union and not to join or remain members of any
union.
Dated By
SHEPHERD LAUNDRIES
Co.
(Employer)
(Representative ) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 6617 Federal
Office Building, 515 Rusk Avenue, Houston , Texas 77002,
Telephone 713-226-4296.