The Loray Corp.

National Labor Relations Board - Board Decisions

Jul 20, 1970

184 N.L.R.B. 557 (N.L.R.B. 1970)

THE LORAY CORP.
The Loray Corporation and International Ladies
Garment Workers' Union, AFL-CIO. Cases
10-CA-7759 and 10-CA-7866
July 20, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On December 3, 1969, Trial Examiner Lowell
Goerlich issued his Decision in the above -entitled
proceeding , finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended , and recommending that
it cease and desist therefrom and take certain affir-
mative action , as set forth in the attached Trial Ex-
aminer 's Decision . Thereafter , the Respondent filed
exceptions to the Trial Examiner 's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its
powers in connectionwith this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed . The Board has considered the
Trial Examiner 's Decision , the exceptions and the
brief, and the entire record in the case, and hereby
adopts the findings ,' conclusions, and recommenda-
tions of the Trial Examiner to the extent consistent
herewith.
1. We agree with the Trial Examiner that the
Respondent violated Section 8(a)(1) of the Act by
its numerous coercive statements and speeches and
acts of interference discussed and set forth in his
Decision . We also agree that the Respondent vio-
lated Section\8(a)(1) and (3) of the Act by unlaw-
fully laying off certain employees on March 12,
1969, for engaging in protected concerted activi-
ties , by discharging Rene Clark on March 10, 1969,
and Sara Helen Graham on August 17, 1969, and
by refusing to reinstate Flora Mae Woods on June
23, 1969. However, in agreeing with the Trial Ex-
aminer that Clark and Graham were discriminatori-
ly discharged, we find it unnecessary to and do not
rely on his rationale that such conduct was violative
of the Act because it was inherently destructive of
' The Respondent has excepted to certain credibility resolutions made by
the Trial Examiner . It is the Board 's established policy not to overrule a
Trial Examiner 's resolutions as to credibility unless the clear preponde-
rance of all the relevant evidence convinces us that they were incorrect
Such a conclusion is not warranted here. Standard Dry Wall Products, Inc,
91 NLRB 544, enfd. 188 F 2d 362 (C.A. 3).
557
important employee rights as the reasonable and
foreseeable consequences were to discourage union
activity . It is clear from the record and from the
findings of the Trial Examiner that the Respondent
had knowledge of Clark and Graham 's union activi-
ties and that their discharges were based on their
union activities . Accordingly , we find that the
Respondent knew of Clark 's and Graham 's union
activities and that this was its motivation for the
discharges.2
2. Although in the complaints the Respondent
was charged with violation of only Section 8(a)(1)
and (3 ) of the Act, the Trial Examiner in his
Remedy ordered the Respondent to recognize and
to bargain collectively with the Union in an ap-
propriate unit of the Respondent 's production and
maintenance employees . The Trial Examiner held
that a bargaining order is required without the need
of inquiry into the majority status of the Union to
redress the "outrageous " and "pervasive" unfair
labor practices engaged in by the Respondent and
that such an order is necessary to repair the unlaw-
ful effect of those practices. The Trial Examiner
found legal support for such an order in the nu-
merous Board and court cases in which bargaining
orders have been found to be appropriate remedies,
in the absence of an allegation of an 8(a )( 5) viola-
tion, or even a bargaining demand, where the union
had achieved majority status ,' and in the Supreme
Court's recent, Gissel Packing Company decision 4
which he found suggested the possibility of impos-
ing a bargaining order , without the need of inquiry
into majority status on the basis of cards or other-
wise in "exceptional " cases. Although we agree
that Respondent 's conduct was "outrageous" and
"pervasive," we are of the opinion that a bargaining
order in the circumstances here is not appropriate.
We note that the record does not at any point
reveal a showing of majority status on the part of
the Union. Although on March 12, 1969, the Union
through a telegram signed by approximately 16 em-
ployees , and on the same day essentially the same
employees orally, made a demand upon the
Respondent to recognize and to bargain with the
Union alleging that a majority of its employees
desired the Union, no demonstration was made as
to how many of the other approximately 62 em-
ployees in the bargaining unit had signed authoriza-
tion cards or in other ways expressed a desire for
the Union. Similarly, no substantial evidence of em-
ployee interest in the Union was introduced at the
See Santa Fe Dulling Company, 180 NLRB 1049.
' See, e .g., United Steelworkers of America, AFL-CIO v. N L.R B., 376
F 2d 770, 772-773 (C.A.D.C ); J. C. Penny Co , Inc v. N L.R B., 384 F 2d
479,485-486 (C.A. 10).
' N.L R B. v. Gissel Packing Co., 395 U.S. 575.
184 NLRB No. 57
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing, and union authorization cards allegedly
secured by the Union were not placed into
evidence. The record, therefore, does not reflect
how many, if any, valid authorization cards were
obtained by the Union. Indeed, the issue of the
Union's majority status, or the desire of the
Respondent's employees to be represented by the
Union, was not litigated at any stage of the
proceeding. Moreover, we have devised special
remedies for the aggravated and pervasive 8(a)(1)
and (3) violations which in our opinion will enable
employees freely to exercise their Section 7 rights
to choose whether or not they wish to be
represented by the Union. In the circumstances, we
find, therefore, that a bargaining order is not ap-
propriate, and the Trial Examiner's recommended
remedy and order in regard thereto is not adopted.5
3. However, we agree with the Trial Examiner's
position that, under the circumstances of this case,
in view of the nature of the unfair labor practices
engaged in by the Respondent, the traditional
requirement of reinstatement and backpay for the
8(a)(3) violations and a cease-and-desist order for
the 8(a)(1) violations with the usual posting of
notices would in and by themselves not be adequate
to disabuse the effects of the Respondent's conduct
and to bring home to the Respondent's employees
the message that the Respondent is being required
to cease and desist from interfering with their rights
guaranteed by Section 7 of the Act, to join or not
join a union. Remedies other than the conventional
ones are clearly called for and, in our opinion,
should be tunedito the exigencies of the case.
We note that the Supreme Court has recognized
that Congress conferred upon the Board broad dis-
cretion to create remedies to meet specific situa-
tions, as here , where the normal modes of relief will
not suffice to right the outstanding wrong.' Mindful
of the proscription against remedies which may un-
duly penalize a respondent, as well as of the necess-
ity of being imaginative and innovative in fashion-
ing our orders, we have concluded that the follow-
ing would be appropriate as a remedy in the instant
case.7
Because of the character and scope of the unfair
labor practices found to have been engaged in by
Respondent, we shall order that Respondent cease
' See H. W. Elson Bottling Company, 155 NLRB 714, 716, enfd as
modified 379 F 2d 223 (C.A. 6).
0 See, e g , Phelps Dodge Corp. v NLRB., 313 U S 177, 194 See also
May Department Stores dibla Famous-Barr Company v N.L R B, 326 U S
376, 391-392, N.L.R B. v Seven -Up Bottling Company, ofMianu , 344 U S.
344,International Association ofMachinists, Tool and Die Makers Lodge No
35 v NL RB., 311 Us 72, N L.R B v. Globe Products Corp, 322 F 2d
694 (C.A 4), Standard Generator Service Co. of Mo v. N.L.R B., 186 F 2d
606 (C A 8), N L.R B v Idaho Egg Producers, Inc, 229 F.2d 821 (C A.
9), Etchleay Corporation v N L.R B , 206 F 2d 799 (C A 3) See also H. R.
Rep No 1147, 74th Cong, 1st Sess. 23-24, 11 Leg. Hist. 3074 (NLRA
1935) 1
and desist from in any other manner interfering
with , restraining , and coercing its employees in the
exercise of their rights guaranteed in Section 7 of
the Act.
We find that our usual remedies , the posting of a
notice and the order for reinstatement and backpay
for the discriminatees , are insufficient to dissipate
the effects of the Respondent 's extensive and
flagrant unfair labor practices . In this case it is es-
sential in view of the flagrancy of the Respondent's
opposition to unionization that each employee be
made individually aware of his statutory rights and
that his exercise of rights will be respected by his
Employer . In our view the mere posting of notices
would not serve this purpose and we find additional
measures are necessary . Accordingly, in addition to
posting copies thereof at appropriate places, we
have ordered Respondent 's owner , president, and
chief administrator who was directly implicated and
the major mover in the numerous unfair labor prac-
tices to personally sign the notices .' We have also
ordered Schwartz to personally read the attached
"Notice to All Employees" at assembled meetings
at which all employees will be reached, thereby
directly placing on the notice the imprimatur of the
person most responsible for the illegal acts in
question .' We order this not out of any desire to
punish or embarass Schwartz . However , in the light
of the repeated adamant proclamations by
Schwartz that it was futile for his employees to or-
ganize, we are of the opinion that unless the em-
ployees hear from Schwartz himself that he will
conform his conduct to the requirements of the Act
the coercive and restraining effects of Schwartz'
conduct and utterances will not be dissipated.
In view of the Respondent 's widespread and ex-
tensive coercive conduct , we have also ordered that
the Respondent mail copies of the "Notice to All
Employees" signed by Schwartz , president and
owner , to all employees to permit those who heard
the lengthy notice read in the plant or who may or
may not have read the posted notice to peruse it at
their leisure and to absorb it fully . The mailing of
the notice will also insure that employees who are
sick , on vacation, or otherwise absent when the
notice is read will have an opportunity to be
adequately informed of the Respondent 's intention
to refrain from engaging in unfair labor practices. 10
' See, e .g , Stevens I J P Stevens and Co ., Inc, 157 NLRB 869, enfd. as
modified 380 F 2d 292 (C A 2), cert denied 389 U S. 1005, Stevens II J
P. Stevens Co, Inc ., 163 NLRB 217 , enfd . as modified 388 F 2d 896 (C.A
2), Stevens III & IV J P Stevens & Co, Inc., 167 NLRB 266 , enfd as
modified 406 F.2d 1017 (C A 4), Stevens V J P. Stevens & Co., Inc, 171
NLRB 1202, enfd 417 F. 2d 533 (CA 5)
' See Great Atlantic & Pacific Tea Company , Inc , 134 NLRB 458, fn 1.
s Cf. Great Atlantic & Pacific Tea Co , supra , Stevens V
10 See Stevens V, supra; Stevens 11, supra, Stevens I, supra . H W Elton
Bottling Co , Great Atlantic and Pacific Tea Co , Inc , supra
THE LORAY CORP.
As Respondent has violated the rights of those
employees who had not yet had a chance to formu-
late their desires with regard to representation as
well as the rights of those who had done so, we
deem it appropriate that employees be afforded
further opportunity to engage in organizational ef-
forts without fear of becoming victims of Respon-
dent's wrath or reprisals . To this end we shall
require that , upon request of the Union made
within 1 month of this decision , the Respondent im-
mediately grant the Union and its representatives
reasonable access for a 3-month period to its bul-
letin boards and all places where notices to em-
ployees are customarily posted." Furthermore, in
order to redress the imbalance created by Respon-
dent's numerous coercive speeches to its employees
assembled on company time and property and the
affirmative steps Respondent Schwartz took at the
same time to prevent the Union's access to em-
ployees, such as the harassment of employees and
the union agents who attempted to engage in or-
ganizational activity outside the confines of the
Respondent 's property and the enforcement of in-
valid no-solicitation rules within the plant, we deem
it necessary under the aggravated circumstances in-
volved herein that the Union be given an opportu-
nity to present its views. Accordingly , we shall
require that, upon request of the Union, Respon-
dent shall make available to the Union and its
representatives , at a mutually agreeable time within
3 months of this Decision , suitable facilities such as
are customarily used for employee meetings so that
the Union may speak to the employees assembled
on company time . Such facilities shall be made
available for one 1-hour meeting.
In addition , in the event the Respondent ad-
dresses its employees on the question of union
representation during the 6 months succeeding the
issuance of this Decision , upon the request of the
Union the Respondent shall make available to the
Union and its representatives on each occasion, at a
mutually agreeable time , similar facilities so that
the Union may present its views to the employees
assembled on company time for a similar period.12
The atmosphere of fear generated by the illegal
threats, interrogations , and discharges will in our
opinion be a deterrence to employees to engage in
lawful organizing activities during nonworking time
on company premises. Accordingly , because of the
number of employees involved, the normal tur-
nover which may be expected , and the separate ad-
dresses of the employees , we shall require the
Respondent to supply the Union, upon request
See Stevens II through V, supra, H W Elson Bottling Go, supra
" Cf H W Elson Bottling Company, supra
559
made within 1 year, the names and addresses of its
current employees . This will enable the Union to
contact all employees outside the plant and to
present its message in an atmosphere relatively free
of restraint and coercion . We find that such
requirement is necessary to facilitate union commu-
nication in the face of the impression of surveil-
lance and other organizational difficulties imposed
by the Respondent . The furnishing of such list
under the circumstances is not unreasonable and
would not be unduly burdensome. Is
Finally, since we are convinced in the circum-
stances of this case that the Respondent may have
made it impossible for the Union to obtain designa-
tions from 30 percent of the employees to support a
petition for an election in which employees may
have an opportunity to express their free choice, we
shall, upon request of the Union made within 30
days immediately following compliance herewith by
Respondent , conduct an election in the unit found
appropriate herein. 14
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with , restraining , and coercing
employees in the exercise of the rights guaranteed
them by Section 7 of the Act Respondent has en-
gaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
4. By unlawfully discharging Rene Clark on
March 10, 1969, Sara Helen Graham on August 17,
1969, and refusing to reinstate Flora Mae Woods
on June 23 , 1969, Respondent engaged in unfair
labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
5. By unlawfully laying off on March 12, 1969,
Flora Mae Woods , Opal Allen, Gladys Daniels,
Mable Small, Shirley Mabley, Lucille Driver, Leasie
Bragg , Mary James, Minnie Ruth Griffin, Louella
Paul, Mary Etta Holland, Majorie Covington, Agnes
Forster, Mary Townsend, Betty Ann Jones, and
Valeria Elders, Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1)
and (3 ) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices within the meaning of Section 2(6)
and (7) of the Act.
7. All production and maintenance employees of
The Loray Corporation at its Savannah, Georgia,
" See Stevens III and IV, supra, Stevens V, supra
14 H. W Elson Bottling Co , supra
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant excluding all office and clerical employees,
guards, and supervisors as defined in the Act con-
stitute an appropriate unit for the purposes of col-
lective bargaining within the meaning of Section
9(b) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respon-
dent , The Loray Corporation , Savannah , Georgia,
its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in the Interna-
tional Ladies Garment Workers' Union , AFL-CIO,
or any other labor organization , by discriminatorily
discharging or refusing to rehire any of its em-
ployees or discriminating in any other manner in
respect to their hire or tenure of employment or
any term or condition of employment.
(b) Creating the impression of surveillance by
telling employees it knew who had signed union
cards.
(c) Informing employees that it would never
deal with the Union , and that it would do em-
ployees no good to engage in self-organization.
(d) Prohibiting employees from talking about or
discussing the Union in the restrooms.
(e) Threatening employees with discharge for
engaging in union activity.
(f) Representing to union adherents that their
jobs were in jeopardy.
(g) Threatening employees with police action if
they distributed union papers or otherwise engaged
in union solicitation in the plant, and by causing the
arrest of union officials for passing out union hand-
bills in the vicinity of the plant.
(h) Offering employees a sum of money if they
returned their union authorization cards to the
Respondent.
(i) Falsely telling employees that it had lost con-
tracts because of the Union 's organizing.
(j) Falsely telling employees that if the Respon-
dent became unionized nonunion customers would
pull their work out immediately , employees would
be without work, and the factory would possibly
close.
(k) Informing employees that it had discharged
an employee who was active in the Union because
she was a troublemaker.
(1) Threatening to close the plant if the Union
came in.
(m) Indicating that once the Union was out of
the picture reprisals would be taken against union
supporters.
(n) Promising benefits to employees in order to
discourage support for the Union.
(o) Threatening to refuse to bargain with the
Union if it is lawfully selected as the collective-bar-
gaining agent.
(p) Threatening to refuse to permit employees
to discuss factory problems with it if a majority of
the employees signed cards giving the Union the
right to bargain for the employees.
(q) Disciplining or penalizing employees for
concertedly presenting demands for union recogni-
tion.
(r) Banning employees ' lawful rights to wear
union buttons except when warranted for the main-
tenance of production and discipline.
(s) In any other manner interfering with,
restraining , or coercing its employees in the exer-
cise of their rights to self-organization , to form
labor organizations , to join or assist International
Ladies Garment Workers ' Union , AFL-CIO, or any
other labor organization , to bargain collectively
through representatives of their own choosing, and
to engage in concerted activities with the purpose
of collective bargaining or other mutual aid or pro-
tection , or to refrain from any and all such activi-
ties.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Offer Rene Clark, Sara Helen Graham, and
Flora Mae Woods immediate and full reinstatement
to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions , without preju-
dice to their seniority or other rights and privileges,
and make them whole for any loss of pay that they
may have suffered by reason of the Respondent's
discrimination against them in accordance with the
recommendations set forth in the Trial Examiner's
Decision entitled "The Recommended Remedy."
(b) Make Flora Mae Woods , Opal Allen, Gladys
Daniels, Mable Small, Shirley Mabley, Lucille
Driver , Leasie Bragg , Mary James, Minnie Ruth
Griffin , Louella Paul, Mary Etta Holland, Majorie
Covington , Agnes Forster , Mary Townsend, Betty
Ann Jones, and Valeria Elders whole for any loss of
pay that they may have suffered by reason of the
Respondent 's discrimination against them in ac-
cordance with the recommendations set forth in the
section of the Trial examiner's Decision entitled
"The Recommended Remedy."
(c) Notify any of the aforementioned persons if
presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended , after discharge from the
Armed Forces.
THE LORAY CORP.
(d) 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 and rights of employment
under the terms of this Order.
(e) Mail a copy of the attached notice marked
"Appendix"" to each employee and post copies at
noticeable and sufficient places in its plant in
Savannah, Georgia, as described below. Copies of
said notice on forms provided by the Regional
Director for Region 10 shall be signed by Respon-
dent's president and owner, LeRoy Schwartz.
Thereafter, a copy shall be mailed by the Respon-
dent to each of its employees currently working in
its plant, and additional copies shall be posted by it
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
Company to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Upon request of the Union, immediately
grant the Union and its representatives reasonable
access for a 3-month period beginning with the is-
suance date of this Decision to its bulletin boards
and all places where notices to employees are
customarily posted.
(g) Convene during working time after the is-
suance of this Decision all its employees at an as-
sembled meeting either by shifts or departments or
other means so that all employees are present, and
President LeRoy Schwartz shall read to the assem-
bled employees the contents of the attached Ap-
pendix.
(h) Upon request of the Union, made within 1
year of the issuance date of this Decision, make
available to the Union a list of names and addresses
of all employees currently employed.
(i) Upon request of the Union, make available to
the Union and its representatives, at a mutually
agreeable time within 3 months of this Decision,
suitable facilities such as are customarily used for
employee meetings so that the Union may present
its views to the employees assembled on company
time. Such facilities shall be made available for one
1-hour meeting. In the event Respondent addresses
the employees on the question of union representa-
tion during the 6 months succeeding entry of this
Order, upon request of the Union it shall make
11 in the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading " Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
561
available to the Union and its representatives on
each occasion , at a mutually agreeable time, similar
facilities so that the Union may present its views to
the employees assembled on company time for a
similar period.
(j) Notify the Regional Director for Region 10,
in writing , within 10 days from the date of this
Order , what steps have been taken to comply
herewith.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or refuse to rehire or
otherwise discriminate against employees in
order to discourage membership in the Interna-
tional Ladies Garment Workers' Union,
AFL-CIO, or any other labor organization.
WE WILL NOT create the impression of sur-
veillance by telling employees we know who
had signed union cards.
WE WILL NOT inform employees that we will
never deal with the Union and that it would do
employees no good to engage in self- organiza-
tion.
WE WILL NOT prohibit employees from talk-
ing about or discussing the Union in the
restrooms.
WE WILL NOT threaten employees with
discharge for engaging in union activity.
WE WILL NOT represent to union adherents
that their jobs are in jeopardy.
WE WILL NOT threaten employees with po-
lice action if they engage in union solicitation
in the plant by distributing union papers.
WE WILL NOT cause the arrest of union offi-
cials for passing out handbills in the vicinity of
the plant.
WE WILL NOT offer employees a sum of
money if they return their union authorization
cards.
WE WILL NOT falsely tell employees that we
have lost contracts because of the Union's or-
ganizing.
WE WILL NOT falsely tell employees that if
we become unionized nonunion customers
would pull their work out immediately, they
would be without work, and the factory would
possibly close.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT inform employees that we
have discharged an employee who was active
in the Union because she was a troublemaker.
WE WILL NOT threaten to close the plant if
the Union comes in.
WE WILL NOT indicate that once the Union
was out of the picture reprisals would be taken
against union supporters.
WE WILL NOT promise benefits to employees
in order to discourage support for the Union.
WE WILL NOT threaten to refuse to bargain
with the Union if it is lawfully selected as the
collective-bargaining agent.
WE WILL NOT threaten to refuse to permit
employees to discuss factory problems with us
if a majority of the employees sign cards giving
the Union the right to bargain for the em-
ployees.
WE WILL NOT discipline or penalize em-
ployees for concertedly presenting demands
for union recognition.
WE WILL NOT ban our employees' lawful
rights to wear union buttons except when war-
ranted for the maintenance of production and
discipline.
WE WILL NOT in any other manner interfere
with, restrain , or coerce our employees in the
exercise of their right to self-organization, to
form labor organizations, to join or assist the
aforesaid Union , or any other labor organiza-
tion , to bargain collectively through represen-
tatives of their own choosing , and to engage in
other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection , or to refrain from any or all such
activities.
WE WILL assemble and read this notice to all
our employees.
WE WILL mail a copy of this notice to all our
employees.
WE WILL grant the Union reasonable right to
utilize our bulletin board.
WE WILL permit the Union to address em-
ployees at a mutually agreeable time within 3
months of this Decision at suitable facilities to
address employees on company time for one 1-
hour meeting. In the event that we address em-
ployees on the question of union representa-
tion during the 6 months succeeding the is-
suance of this Decision we will also make
available to the Union and its representatives
on each occasion, at a mutually agreeable
time, similar facilities so that the Union may
present its views to the employees assembled
on company time for a similar period.
WE WILL, upon the request of the Union, im-
mediately give to the Union a list of names and
addresses of all our employees.
WE WILL offer to the employees named
below immediate and full reinstatement to
their former or substantially equivalent posi-
tions , without loss of seniority or other rights
and privileges , and we will make them whole
for any pay they lost because of the discrimina-
tion against them , with interest.
Rene Clark
Sara Helen Graham
Flora Mae Woods
WE WILL make Flora Mae Woods, Opal Al-
len, Gladys Daniels , Mable Small , Shirley
Mabley, Lucille Driver, Leasie Bragg, Mary
James, Minnie Ruth Griffin, Louella Paul,
Mary Etta Holland, Marjorie Covington, Agnes
Forster, Mary Townsend, Betty Ann Jones, and
Valeria Elders whole plus interest for any
wages lost on March 12, 1969, when we sent
them home because they tried to present a de-
mand that we recognize the Union.
WE WILL notify any of the aforementioned
persons if presently serving in the Armed
Forces of the United States, of their right to
full reinstatement , upon application after
discharge from the Armed Forces, in ac-
cordance with the Selective Service Act and
the Universal Military Training and Service
Act.
All our employees 'are free to become or remain,
or refrain from becoming or remaining , members of
the International Ladies Garment Workers' Union,
AFL-CIO, or any other labor organization.
THE LORRY CORPORATION
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board 's Office, Peachtree Building , Room 701, 730
Peachtree Street, NE., Atlanta, Georgia 30308,
Telephone 404-526-5760.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THE LORAY CORP. 563
LOWELL GOERLICH, Trial Examiner: In Case
10-CA-7759 the original charge was filed on April
25, 1969, and served on The Loray Corporation,
the Respondent herein, by registered mail on April
25, 1969; a copy of the amended charge in the
same case was filed on April 28, 1969, and served
on the Respondent by registered mail on April 28,
1969. The complaint and notice of hearing was is-
sued on June 9, 1969. In Case 10-CA--7866 the
charge was filed on July 18, 1969, and was served
on the Respondent by registered mail on July 18,
1969. The complaint and notice of hearing was is-
sued on August 13, 1969. The General Counsel's
motion to consolidate cases was granted on August
18, 1969, and Cases 10-CA-7759 and
10-CA-7866 were consolidated.
In the complaints the Respondent was charged
with violations of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended, herein
called the Act.
The Respondent filed timely answers denying
that it had engaged in or was engaging in the unfair
labor practices alleged. The cases came on for
hearing on July 8, 9, and 10, 1969, and August 26,
27, and 28, 1969, at Savannah, Georgia. Each party
was afforded a full opportunity to be heard, to call,
examine and cross-examine witnesses , to argue
orally on the record, to submit proposed findings of
fact and conclusions, and to file briefs. All briefs
have been carefully considered by the Trial Ex-
aminer.
Upon the whole record and upon his observation
of the witnesses, the Trial Examiner makes the fol-
lowing:
FINDINGS OF FACT AND CONCLUSIONS' AND REASONS
THEREFOR
1. THE BUSINESS OF THE RESPONDENT
The Respondent is and has been at all times
material herein a Georgia corporation with its prin-
cipal office and place of business located at Savan-
nah, Georgia, where it is engaged in contract manu-
facture of ladies' and children's ready-to-wear
clothing for other manufacturers. Respondent, dur-
ing the past calendar year which period is represen-
' In making his findings of fact and conclusions the Trial Examiner has
considered the demeanor of the various witnesses who appeared before
him and has passed upon their credibility. As to those witnesses who
testified in contradiction to the Trial Examiner's findings, the Trial Ex-
aminer has discredited their testimony either as being in conflict with the
testimony of credible witnesses or because it was in and of itself incredu-
lous and unworthy of belief "A trier of fact may find that though uncon-
troverted , testimony may bear inconsistencies when viewed in the light of
the record as a whole , common experience , and credibility determnna-
tions."J C Penney Company, Inc. v N L.R B , 416 F 2d 702 (C A 7) The
Trial Examiner is not unmindful of the Supreme Court's observation in
tative of all times material herein, received more
than $50,000 for manufacturing apparel from other
manufacturers located outside the State of Georgia.
The Trial Examiner finds that the Respondent is
and has been at all times material herein engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Ladies Garment Workers ' Union,
AFL-CIO, is and has been at all times material
herein a labor organization within the meaning of
Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
At all times material herein Leroy Schwartz was
the Respondent's owner, president, and chief ad-
ministrator, "having to do with all phases of the
operation"; Mable Anderson was the Respondent's
plant manager; and alleged discriminatee , employee
Flora Mae Woods, was the chairman of the Union's
organizing committee.
The Union commenced an organizational cam-
paign among the Respondent's employees in Janua-
ry 1969.2 The organizational period continued until
shortly before May 9, the date upon which a stipu-
lated consent representation election was to have
been conducted in a unit of the Respondent's em-
ployees, to wit: "All production and maintenance
employees including truck drivers, mechanics and
janitors at the Employer's Savannah, Georgia plant,
but excluding office clerical employees, profes-
sional employees, floor ladies, guards and super-
visors as defined in the Act." The election was can-
celed at the request of the Union. Throughout the
organizational period employees who favored the
Union and those who opposed the Union were ac-
tive protagonists.3
The Union's first organizational meeting was held
on January 17. On the day before such meeting,
Schwartz initiated a series of captive meetings of
the Respondent's employees which continued until
May 9. Schwartz was the only speaker at these
meetings and by his remarks he left no doubts that
he favored union disaffection. The Union was
referred to as a "cancer." At the January 16 meet-
ing Schwartz informed the employees that he heard
N L.R B v Walton Manufacturing Company, 369 U S 404,408
For the demeanor of a witness
may satisfy the tribunal , not only that the witness' testimony is
not true, but that the truth is the opposite of his story, for the denial of
one, who has a motive to deny, may be uttered with such hesitation,
discomfort, arrogance or defiance , as to give assurance that he is
fabricating, and that , if he is, there is no alternative but to assume the
truth of what he denies " Dyer v MacDougall, 201 F 2d 265, 269
r All dates herein refer to the year 1969 unless otherwise noted
3 Edna Hodges, a witness called by the Respondent , testified . "The union
had their little crowd and others that didn 't want the union had theirs. "
427-835 0 - 74 - 37
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rumors that the Union was trying to organize and
he knew that "there was going to be a Union meet-
ing the following Friday night."
On February 26' Schwartz again addressed the
employees. Among other things he told employees
that he knew all who had signed union cards and
that he could not "say the word [he] would like to
call them." He said that "he had friends that would
come back and tell him things, volunteer him that
information."5 Schwartz further observed that he
"wasn't making any money and when he did make
money he would pay it to the girls and not to no
Union," and that he was "not paying his money to
no Union for the Union men to ride around in new
automobiles all over the country and giving his
money to the Union men to get out of jail on." He
remarked that "[t]his is a nonunion plant and it is
going to stay a nonunion plant." He said, "I can tell
you now that there is to be no union in this plant
next Tues., Wed., Thursday, or Friday.... I do not
intend to have a union in this plant.... I can not do
anything about the girls after working hours but if
anything happens during working hours they will be
fired on the spot, no talking in the bathroom on my
time,6 before work-lunch time, and after work. I
can not do anything about that unless some one is
harrassing anyone." He advised, "This is a free
country so just shut the door in their face."
On March 4, Ramelle McCoy, union director of
organization, addressed a telegram to Respondent
listing the following employees as members of the
Union's organizing committee: Flora Mae Woods,
Agnes Forster, Gladys Daniels, Marjorie Covington,
Minnie Ruth Griffin, Mable Small, Mary Townsend,
Rene Clark, Shirley Mabley, Opal O'Berry, Louella
Williams, Ella Mae Jones, Katherine Hardy, Mary
Wilkins, and Murle Cunningham.
On March 6, Schwartz read the telegram to as-
sembled employees. He reiterated that "no damn
union is coming into the plant now or ever." He
continued, "I want to tell you one of the union
committee talked another girl into signing her name
' Commencing with the meeting of February 26, the findings of the Trial
Examiner are for the most part drawn from the notes transcribed by Flora
Mae Woods as viewed in the light of the record as a whole . After each of
Schwartz ' speeches, either at noontime , or in the evening of the same day,
Flora Mae Woods committed to writing her recollection of Schwartz' re-
marks . The probative value of these notes is limited , of course, by the in-
tegrity and the recollection of the witness at the time the notes were trans-
cribed and whether the notes actually reflect the purport of Schwartz' re-
marks in the context used The Trial Examiner has considered these limita-
tions. The Trial Examiner has further considered the veracity of Schwartz
as a witness . His comportment and demeanor as a witness , his union an-
tipathy, his failures to recall, his supererogatory testimony , and his im-
plausible remarks , all when viewed in the light of the record as a whole,
convince the Trial Examiner that Schwartz was an incredible witness. It is
noted, as examples of Schwartz ' dissembling , that in the face of his prolific
and massive efforts to defeat the Union he testified, "I was less concerned
with the Union than anybody" and "I could care less about the Union."
s Employee Edna Hodges testified that she volunteered union informa-
tion to Schwartz and told him that she was "strictly" against the Union, that
she did not think a union was needed , and that she was going to do
everything she could "to keep it out."
° Employee Mable Small remembered that Schwartz had said that "any-
body talking about the union during working hours would be fired "
on a napkin for job security, which was a lie. I can
fire anybody anytime not for union, but for 44
other reasons . I will not let anyone go as long as
their work is good and they make production, just
do not listen to any of this union mess if you want
information come to me I will answer your
questions. "7
On Friday, March 7, the Union distributed a
handbill at the employer's premises, which con-
tained a copy of the March 4 telegram with the
words, "The members of your union committee are
doing their part, do your part. Sign and mail the
detached card today."
On Monday, March 10, the Respondent
discharged Rene Clark, a black member of the or-
ganizing committee , who had assisted in passing out
handbills on March 7.
According to Schwartz, Clark was discharged for
"nonproduction." Her makeup pay for the week
ending March 1 exceeded $37.8 After the hand-
billing incident Schwartz reviewed certain produc-
tion records. He explained, " I was getting a-I
wanted to analyze my particular payroll. I had the
time on that particular day, let's say, that particular
week. I decided I wanted to go over my payroll
which is my privilege and frankly speaking, when I
noticed this over here, I thought as I will state and I
will my reasons why I took the action, that I don't
think Rene Clark was producing anything near her
ability at the time and was purposely nonproduc-
tive. "e
Schwartz additionally explained that he em-
ployed an "at-random" procedure "to check em-
ployees' production records" and that he "just hap-
pened" to review Clark's earnings . Prior to the date
of Clark's discharge, according to Schwartz, he had
not reviewed a payroll for 2 or 3 months.
Schwartz acknowledged that he gave Clark no
warning ; he did not inquire why she was so low in
earnings for the week in question; he made no
inquiries of her supervisor; he made no investiga-
tion at all; he knew that in other weeks her produc-
r Along this line employees testified that Schwartz had said that no em-
ployees would be discharged for union activities "[iIf they could do their
work right" and that employees " had a perfect right to sign anything that
[they] wanted to sign" and that "if anybody was harassed or bothered that
he would discharge them."
In view of Schwartz' other repeated coercive remarks, these assurances
could have had little effect to instill in employees the idea that they were
free to engage in union activities without reprisals . Schwartz was blowing
hot and cold in an attempt to comply with the letter of the law but not with
its spirit
° Makeup pay is the deficit in earnings incurred by an employee who
does not earn , based upon her piecework rate , the minimum wage of $1 60
per hour
° Schwartz also testified,
I will say it this way that she just didn't want to work that week over
there for some reason or the other This was my thinking at the time I
terminated her.
In our business it stands, Your Honor, you have people that will
some times for various reasons have a fight with their husband and
they will come in and it is impossible to work under this, where some
weeks you will have your peaks and your valleys and so on; but you
have to have a overall outlook if you have been in this business and
let's say you do have a sixth sense about certain things
THE LORAY CORP. 565
tion was better and for her last week of work "con-
siderably greater"; he was aware that she had "one
thing that was very good," the "desire to become
an operator"; he knew that she was acceptable to
her supervisor; he knew that her discharge was not
recommended by her supervisor; and he was cogni-
zant that other girls may have had as high makeup
pay as Clark.10 According to Schwartz, without in-
vestigation as to why Clark's earnings were so low,
he said "terminate that girl at once."
Clark had not been warned either by her super-
visor, Betty Taylor, or Plant Manager Anderson
that her production record made her amenable to
discharge and, except for the action taken by
Schwartz, it seems clear that she would not have
been discharged on March 10.
Clark's actual discharge was effected by Ander-
son upon the direction of Schwartz.tt According to
Anderson she did not remember discussing the
discharge with Schwartz. Anderson testified that
the Respondent had no set policy as to how long it
tolerated excessive makeup pay on the part of an
employee. Anderson explained, "If a girl were to
run make-up pay consistently week after week,
then you would have trouble. But, as you will find,
on some paycheck stubs there will be no make-up
pay, and then next week she might have. It could
have been during the time that a regular operator,
production operator, when the job she was on they
had caught up on that and she was put somewhere
else."
Anderson added, " it is the policy of the company
to look into the situation with regard to each girl to
determine why she had this make-up pay, and then
based upon that you make a determination what to
do with her. . . ." This policy was not followed in
respect to Clark's discharge.
On the day after Rene Clark's discharge, March
11, Schwartz again assembled the Respondent's
employees. Among other things he said, "I want
you to know that there are less people in here today
than was in here yesterday and there is going to be
less everyday." Schwartz accused Union Represen-
tative Leste of lying by telling employees that they
could have a union "but no dam [sic] union is
going to be in this plant ." He told employees that if
they wanted their union cards back to get in touch
with their lawyer who could get it for them.12
Schwartz made reference to the handbill dis-
tributed on March 7. He said that there would be
no more handbilling at the plant. "The police will
be out here everyday to arrest anyone that takes
part in handing out union papers." He added that
handbillers would have been arrested on March 7
but that he had told them he would give them a
warning.
On that afternoon Union Representative Leste
was arrested for distributing handbills in the vicinity
of the Respondent 's plant by two off-duty county
policemen who were hired by Schwartz after March
7.
The Respondent's plant is located on Louisville
Road, a comparatively busy highway. A driveway
on each side of the plant connects the plant
premises with Louisville Road. A ditch runs parallel
with Louisville Road between Louisville Road and
the Respondent 's premises . At or about 4:30 p.m.
Union Representative Leste arrived in the vicinity
of the plant where he handed union leaflets to em-
ployees Flora Mae Woods and Marjorie Covington
(who had just emerged from the plant) for distribu-
tion to employees who were also leaving the plant.
Woods and Covington posted themselves at the
right-hand driveway. Leste walked along Louisville
Road toward the left-hand driveway carrying
leaflets for distribution to employees. While yet on
the roadside of the ditch two uniformed policemen
approached Leste; he was told that "the people
who own this shop don't want you here." He was
ordered to leave the premises. Leste replied that he
was there for "the purpose of distributing Union
literature" which was his right. He further stated
that he was not on company property; that he was
on the side of the road, and that it was his intention
to stay and "disseminate this literature." The of-
ficers warned him either to "leave the premises and
discontinue leafletting" or be arrested and "taken .
to jail." Leste declared his intention to distribute
union literature. He was placed under arrest. By
this time Woods had reached the group. Leste
handed her all but three or four of the leaflets in his
possession and said, "Here, take these and leave, I
am going to jail." The officers directed Leste
toward the Respondent's plant. When Leste showed
reluctance to step on the Respondent's property,
one of the officers grabbed Leste by the left
shoulder and with his right hand pushed him across
the ditch and escorted him onto the Respondent's
premises and into the Respondent's offices. While
these events were occurring employees were exiting
from the Respondent's plant. At the time of his ar-
rest Leste had distributed no leaflets to the exiting
employees.
In the Respondent's office the officers asked for
Mr. Schwartz. They were told that he was not there
but was expected "back any minute."13 Schwartz
did not appear. After a phone call by one of the of-
ficers another police officer arrived about 5 o'clock
10 For the week ending March 1, 1969, Flora Mae Woods had makeup
pay of $37 65. She was not discharged at that time
i i Anderson was asked, "You don't know whether it was your decision or
his decision ? A. Right " Schwartz was asked , "Did Mrs. Anderson say
anything to y iu before you discharged Rene Clark" A No "
ri On this subject Schwartz testified "I said I would be willing to give
$25 00 to see the first card that ever came back [from the Union] because
in my experience I have never seen it period "
13 Referring to March 11, Schwartz testified "I am satisfied I was out of
town that day " When asked where he had been he answered, "It might be
personal " Later when he was asked if he were present in the plant anytime
during the day Leste was arrested, he answered, "I don't recall " As noted
above the Trial Examiner has found that Schwartz addressed assembled
employees on March 1 I
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with a marked police car and Leste was taken to
jail where he was charged with "failing to move
when ordered by police officers." Thereafter on
March 14 a hearing was conducted before the
Honorable Henry Brennan , Judge of the Recorder's
Court of Savannah, Chatham County, Georgia.
Schwartz appeared as a prosecuting witness. The
case was dismissed.
On the morning of March 12, certain of the
Respondent's employees engaged in a "standout"
pursuant to a decision made at a union meeting. By
the time work commenced at 8:30 a.m. 15 em-
ployees had joined the "standout" group. Union
Representatives McCoy and Leste were present.
Numerous police officers were also present. About
8:30 a.m. according to Schwartz, McCoy indicated
a desire to speak to him, whereupon Schwartz
turned to the officer whom he had hired or another
officer and said "to the effect," "[T]hese people
are trespassing on my property.... I expect you to
see that these people do not trespass on my proper-
ty." Schwartz then entered the plant. The police of-
ficer directed McCoy to move. McCoy inquired,
"You mean these girls that work here can't go in
that plant." The officer replied that if they were
employees they could enter. McCoy, who was hold-
ing a number of union authorization cards in his
hand, handed them to Flora Mae Woods who then
entered the plant followed by employees Marjorie
Covington, Shirley Mabley, Agnes Forster, Opal Al-
len, Leasie Bragg , Valeria Elders, Minnie Ruth
Griffin, Mary Ruth Townsend, Lucille Driver, Mary
Etta Holland, Louella Paul, Betty Ann Jones,
Mable Small, Mary James, and Gladys Daniels.
Some time prior to this event, during the "stan-
dout," it had been decided that the group would go
into the building with the idea of speaking to
Schwartz about union recognition . According to
witness Leasie Bragg , McCoy said, "Flora, you lead
the way. If he won't let you go to work, just turn
around and come back out." In any event it ap-
pears that if Schwartz's response was negative, it
had been resolved that the group would return to
the outside of the plant.
Woods, followed by the others, proceeded down
a short hallway to the door opening into the sewing
department where Schwartz appeared. Holding the
union cards in her hand Woods said, "Mr.
Schwartz , we want to talk to you about the majority
of Union cards that we have got signed." Schwartz
replied that he did not have time to talk to the em-
ployees, that if they wanted to talk with him to talk
with his lawyer, that they should get out and go
home, that they were trespassing, that they were
late for work, and that they should report for work
tomorrow morning ."' The group turned and de-
parted.
" Schwartz testified " I said something to the effect, you will have to
make an appointment with me or if you want to discuss anything with me
speak to my attorney I also added something, I don't recall exactly what it
Schwartz acknowledged that he needed the em-
ployees and that he had never turned an employee
away from work who came in late. He explained,
when asked the reason why he didn't ask these em-
ployees to work, "For the same reason I don't ask
anyone any morning since I have been in business. I
have never asked one of them to come in and go to
work."
Later in the day on March 12, Union Representa-
tive McCoy directed a telegram to the Respondent.
The telegram was as follows:
THIS IS TO AGAIN INFORM YOU THAT A MAJORITY
OF THE PRODUCTION AND MAINTENANCE
EMPLOYEES OF THE LORAY CORP. PLANT
LOCATED AT 2041 LOUISVILLE RD. SAVANNAH,
GEORGIA HAVE DESIGNATED THE INTERNATIONAL
LADIES GARMENT WORKERS' UNION AS THEIR
EXCLUSIVE BARGAINING AGENT FOR PURPOSES OF
COLLECTIVE BARGAINING AND TO REITERATE THE
REQUEST MADE TO YOU THIS MORNING BY
MYSELF AND BY UNION ORGANIZING COMMITTEE
CHAIRMAN FLORA WOODS. TOGETHER WITH THE
OTHER MEMBERS OF THE ORGANIZING
COMMITTEE , THAT YOU PROMPTLY MEET FOR THE
PURPOSE OF NEGOTIATING A COLLECTIVE
BARGAINING AGREEMENT COVERING WAGES
HOURS AND WORKING CONDITIONS. YOU ARE
REQUESTED TO PROMPTLY RECALL TO WORK THE
MEMBERS OF THE UNION ORGANIZING
COMMITTEE WHO WERE LAID OFF BY YOU THIS
MORNING AND TO MAKE THEM HOLD [SIC]FOR
ALL WAGES LOST DUE TO THEIR LAYOFF. THE
MEMBERS OF THE ORGANIZING COMMITTEE WHO
WERE LAID OFF BY YOU THIS MORNING AT THE
TIME OF THEIR REQUEST FOR A CONFERENCE
WITH YOU ARE: FLORA MAE WOODS, LUCILLE
DRIVER , MARJORIE COVINGTON, OPAL ALLEN,
LEASIE BRAGG, AGNES FOSTER [SIC], GLADYS
DANIELS, MARY JAMES, MARY TOWNSEND, MABLE
SMALL, MINNIE RUTH GRIFFIN, BETTY ANN JONES,
SHIRLEY MOBLEY [SIC], MARY ETTA HOLLAND,
LOUELLA HALL [SIC], AND VALERIA ELDER [SIC].
On March 13 the Respondent responded to the
foregoing telegram by a letter written by its attor-
ney, Anthony J. Leggio. In part the letter con-
tained:
Irrespective of your representations, Loray
Corporation has a reasonable doubt that the
International Ladies Garment Workers Union
represents an uncoerced and valid majority of
its employees for purposes of collective bar-
gaining . Under these circumstances the Com-
pany feels that the most reliable determination
of the desires of the majority of its employees
in this respect would be best resolved by an
was, something about those of you people please be here on time to come
to work tomorrow, something to that effect "
THE LORAY CORP. 567
election conducted by the National Labor
Relations Board.
While it does not appear to be material at
this time the company wishes to further inform
you that it does not acquiesce in or agree with
factual representations contained in your tele-
grams; e .g., that Flora Mae Woods informed
Mr. Schwartz on March 12, 1969, of the
union's majority status; that certain employees
were laid off on the morning of March 12,
1969; and that any employees are entitled to
back pay for lost wages due to their lay off.
On March 26, 1969, Schwartz again addressed
the employees, at or about 11:45 a.m. Among other
things, he said "that no damn union was going to be
in his plant." He indicated that the union represen-
tatives were running around all over the States in
their new cars getting arrested every day and using
up union money to get out of jail. He said he was
not going to pay his money to a union and "if and
when he made some money he would pay it to the
girls that worked for him. Not to no damn union."
He stated that "he never had been union and he
damn sure was not going union now." He further
said, "I want you few union people to run back and
tell him Walt Leste that I will never pay no health
and welfare benefits into no damn union. I do not
run no damn sweat shop here and we have no need
for a union. Some of you have asked for your cards
back. They say write to the office, my advice is to
send a registered letter to the address I have
posted. "ls
Schwartz also said that he had "lost a few of his
contracts because they had heard there was going
to be a union in his shop, and they could not afford
union prices. "16
Schwartz further stated "that no damn union is to
be in his shop, but if one did come in he would not
talk to anyone. They could write up their
grievances but he would not talk to anyone."
On April 14 the Union filed a petition for an
election. The election, later vacated, was set for
May 9, 1969.
On April 15 Schwartz delivered another speech
to his employees. During the speech Schwartz com-
mented that he had received a notice that there was
going to be a union election in the plant. Referring
to the election he stated: "I am very glad to hear
this for I want to get this cancer over with once and
for all.17 I hope I can get it in the next 2 or 3 weeks.
We will beat this thing for sure. I will say now as I
have said before no damn union is going to come
into this plant. We don't need no damn union in
here. We have a union pro in here whose husband
works with her." He further stated that he would
repeat that Union Representatives McCoy and
Leste were "damn liars" and he referred to Leste as
a kind of man who ran around getting arrested. In
his speech he also said, "I will say no damn body
can make my right hand sign a damn thing.""' He
further said, "The election will be held in this plant.
I want to tell you all to vote as you please this is a
free country, but I still say no damn union will be in
here. But I will survive as I have done before. I had
a plant in Gainsburg, 19 Tennessee, which because
of union trying to come is a ghost town today. I
have fired people before and never hired anyone
back or payed [sic] any money to them for being
fired. I never have and I never will."
Schwartz noted that the people with which the
Respondent did business would "pull" their con-
tracts and the plant would not have enough work.20
He also related , "I will still say I will never sign a
union contract no one can make my right hand sign
a damn thing . I will never pay health and welfare
benefits to no damn union . I have been in this busi-
ness for 3 years here in Savannah , Ga., and am now
starting to make a little profit from it. So if the
union comes in we will not have a damn thing."
Schwartz further commented, "All of this is I am
saying is why I don't want a gosh damn union in
here, that is why I spit on them."
On April 17, 1969, Flora Mae Woods and Sara
Helen Graham appeared at the Respondent's plant
wearing union buttons which were 4 inches in
diameter. [One read, "Union-Made for Union
Maids," and the other, "Look for Our Label...
We'll Look For Yours!" Both depicted a replica of
the ILGWU cloth label.]
Shortly after Woods commenced working
"Schwartz came bouncing over to [her] machine."
He put both of his hands on her machine and said,
"Flora, what is that you have got on, what does that
say, that thing say that you are wearing." Woods
" Posted on the Employer's bulletin board was a notice which employee
Dorothy Rudolph had " written to the union for her card back "
" Edna Hodges testified that in one of his speeches, Schwartz said that
"he had lost two or three [ customers ] already "
n Admitted by Schwartz
18 Witness Shirley Mabley remembered that Schwartz had said that
"nobody could make his right hand sign anything he did not want to sign"
and that "he had never signed anything" and "nobody was going to make
hum sign anything he didn 't want to " Schwartz testified that he said that
"no one can make anyone 's right hand sign anything they do not want to or
words to that effect "
18 The town was Gainesboro , Tennessee
R0 Agnes Forster remembered that Schwartz said that if the Respondent
"didn't get the contracts ," there would be " no other choice but to close it "
And that " if we go union . that some of the companies didn't want their
work done under the union so if we went union and they cut off our work,
we just didn 't have any work " Betty Jean Mitchum remembered that
Schwartz said that he "would not close the plant because of union activi-
ties, but that the people that he would get work from, the contractors,
would close it for us because they would not give us any work."
Schwartz testified that he told the employees, " I told them that I was not
for the Union That this company did not need a Union and that we ulti-
mately since we were contractors if the people , the non-Union customers
which I had would pull their work out immediately if we were a Union shop
and that in all probability we would be without work and that because of
that this factory would close in all probability because we would have no
work", and "I said that the people we contract with are non-Union
resources or manufactures and that they would not have their work made
in a Union shop and would probably pull out all of their work out of our
factory and that we would just not have a business anymore " There was no
credible proof to support Schwartz ' statements
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
responded, "What, this?" He replied, "yes." She
said, "Read it, I am busy." (At the time she was
tying up a bundle.) He replied, "You mean that is
what you are doing is Union work." (The button
carried the wording "Union-Made for Union
Maids.") Woods responded, "You can't prove it by
me."
Schwartz left Woods' machine and rushed toward
Sara Graham's machine. Graham credibly
described the event. ". . . around 9:30, Mr.
Schwartz came rushing up to my machine and he
said `what is this thing you are wearing' and before
I could answer him, he said `speak up, I am talking
to you' and I answered him then and he pointed as
he rushed up toward my Union button, almost
putting his hand on it and I was wearing it right
here on my blouse; and I said Mr. Schwartz, I took
my finger and I pointed, I said `this stood for what I
stood for' and as he walked away the best that I re-
member him saying or understanding him, he said `I
will expect your work to be checked."'21
Shortly after the morning break at 10:20 a.m.,
Plant Manager Anderson escorted Graham to
Schwartz' office. Here, after greeting her as a
"troublemaker," Schwartz confronted her with two
signed statements . In one, dated April 16, signed by
Sara Parker, Edna Hodges, and Dorothy Rudolph,
Graham was charged with threatening Parker,
slamming the door to the bathroom in her face, and
sticking her tongue out at her. In the other dated
April 17 Betty Mitchum claimed, "While getting in
line to clock out Sara Graham ask[ed] me to hurry
up and I told her that I was to[o] tired to run and I
dropped my time sheet and I was pushed and I
nearly fell on my face." Graham denied the
charges. Graham was discharged-in the words of
Schwartz-"I discharged her because I felt the
things that were told me, that that was the reason
then and I believed them at that point and after I
talked to her I was convinced that was what I
wanted to believe and that is the action I took."
(Emphasis supplied.)
During the discharge scene Graham asked him
why he rehired her if she was "so bad." He an-
swered, "You are a good worker and I need good
workers."
Graham was first employed by the Respondent
on May 19, 1966. She worked until July 1, 1966, at
which time she quit in order to care for her child.
She returned to work in October 1966, and con-
tinued until October 1968, at which time her
production rate was cut. She quit because the
Respondent refused to restore the cut. Graham
again returned to work on March 14, 1969. During
her work periods she had been neither reprimanded
nor disciplined. According to Schwartz, "At times,
Sara[h] was a good operator." Discharge was never
_' Such statement suggests the action Schwartz took against Clark whose
work he checked after she appeared at the plant passing out handbills.
" Schwartz testified that he asked Mitchum to commit the incident to
writing "because previously my attorney had told me if there was any
recommended by her supervisors. Schwartz was
unable to recall another discharge for like cause.
Graham's discharge was the first discharge based
upon written statements of fellow employees. There
is no credible proof that Schwartz heretofore ad-
ministered a harsh discharge policy.
On April 16, according to the uncontroverted
testimony of Graham, she told Plant Manager An-
derson that she would like to discuss something
with her that she had been "wanting to tell [her]
for a long time." Anderson suggested an immediate
discussion. Graham suggested a later discussion in
that the discussion would be protracted. Anderson
responded that she would be available at 5:30 p.m.
every day except Saturday.
In the meantime Schwartz and Anderson con-
versed after which Schwartz appeared at Graham's
machine. Graham had mentioned to Anderson
earlier that in order to make production she needed
a board on her machine. Graham reviewed her
need with Schwartz. Schwartz and Anderson again
conversed outside the hearing of Graham. A board
was placed on her machine and she was informed
by Anderson that her rate was raised 40 cents.
Graham, because of a church attendance con-
flict, did not appear for a discussion with Anderson
at 5:30 on that day. The next day she appeared with
a union button. She was discharged.
Prior to Graham's discharge Schwartz inter-
viewed Betty Mitchum, Sarah Parker, Edna
Hodges, Dorothy Rudolph, and Lucille Driver. Eu-
dine Miley, also a witness to the Parker incident,
was not interviewed.
Betty Mitchum testified, in respect to the pushing
incident, that she told Forelady Anderson and later
Schwartz that, "I was going in line [to the
timeclock] and Sarah Graham asked me to run and
I told her I was too tired to run, and she pushed and
I fell." Schwartz told her "to write it down and sign
it. "22 The incident occurred on April 15, but was
not reported to Schwartz until April 17. Mitchum
remembered no witnesses although "about ten"
employees were in the area. During the interview
Schwartz did not inquire concerning witnesses.
Schwartz testified, "Betty Mitchum volunteered
this information to me and I decided right then and
there yes that Sarah Graham would be discharged."
Mitchum was opposed to the Union, a fact
known to management.
Sarah Parker testified that she reported to Plant
Manager Anderson that she "was standing in the
bathroom and Sarah came in and slammed the door
back against [her]." She told Schwartz "about
[her] being standing in the bathroom smoking and
Sarah pushing the door up against [her]"; that she
"was in the bathroom smoking somewhere around
3:30 and Sarah Graham came in to the smoking
reason that I felt we should record it then we should and I felt at this par-
ticular time since I was aware at this particular time that there was some
Union activity that a statement of this kind was necessary "
THE LORAY CORP. 569
area to go into the bathroom and pulled the door
open and shoved it back against [her]." Schwartz
asked for witnesses. Parker named Edna Hodges
and Shirley Mabley. Parker "wrote it down on
paper and signed it." Parker was opposed to the
Union, a fact known to management.
As Parker was leaving, Hodges entered Schwartz'
office. Hodges testified that she told Schwartz that
"Sarah Graham had hit Sarah Parker in the face or
the head with the door." Schwartz asked Hodges to
sign the statement which Parker had signed. She
complied and upon Schwartz' request named
Dorothy Rudolph and Shirley Mabley as witnesses.
Hodges was opposed to the Union, a fact known to
management.
Dorothy Rudolph testified that she related to
Schwartz that while in the smoking room "Sarah
Graham came in the room as if to go in the
bathroom ... She took the door knob and pulled
the door back way open and she turned and looked
at Sarah Parker. ... She took her hand and
slammed it [the door] up against her." Rudolph
queried, "What was all that about," then turned
and walked away. Anderson showed Parker's state-
ment to Rudolph and asked her if that was what
happened. She answered, "Yes." After receiving
assurances that she would get in no "trouble" she
signed the statement. Rudolph was opposed to the
Union, a fact known to management.
Lucille Driver was also called to Schwartz' office
in regard to the Parker incident. She was shown
Parker's statement, after which she commented to
Schwartz and Anderson that she "thought it was
the most ridiculous thing that [she] had ever seen."
Driver refused to sign the statement. When asked
by Schwartz whether she thought the door hit
Parker she told Schwartz,
"I didn't know. I couldn't say because I don't
think I am supposed to say what I think; only
what I could see. I certainly don't think the
door hit her because I did not see it," but I did
whenever I looked up I realized that the door
was being shut with more force than what the
closing would allow it.
When I looked up Sarah Parker was standing
with her hands like this (indicating) and the
person who had opened the door was going on
into the bathroom. ... Sarah Parker's and
Edna Hodges was standing over to the left and
almost directly in front of me and she shook
her finger at Sarah, she said, "I told you to
behave yourself," and Sarah says, "Ain't no
damned son-of-a-bitch going to push me
around."
On the same day during break Driver approached
Anderson and asked if she could see Schwartz.
Schwartz was telephoning so Driver gave this
message to Anderson for transmittal to Schwartz: "I
think since there are accusations and threats being
made that all the accusations and threats that are
made should be brought out into the open or either
they should all be hushed and stopped, unless
everybody was going to be tried. I could not see any
reason why just one should be tried." Whereupon
Anderson asked her what she meant. She replied,
"Well, on several occasions I have heard Sarah
Parker make a threat in actual words as she was
going to slap the shit out of someone.... And she
would stomp the shit out of Sheila [sic] Graham as
well as several others."
Eudine Miley23 also witnessed the Parker incident
but was not interviewed by Schwartz. Miley
testified that several employees were standing in
the smoking room which is adjacent to the
bathroom, the door to which opens toward the
smoking room. Parker was standing behind the
bathroom door next to the wall. Miley was standing
next to her. "Sarah Graham started in there to the
bathroom which she could not help bumping her
with the door. She opened the door and just
bumped her." Parker jerked the door backwards
and then slammed it back against Graham. Edna
Hodges shook her finger24 at Parker and said, "I
told you to behave." The door "barely bumped"
Parker. Betty Cail, a supervisor, was standing about
6 feet from Parker. Miley testified that it was not
unusual for employees who were standing against
the wall to be bumped by the door.
Anderson's first knowledge of the Mitchum in-
cident was between 9 and 9:30 a.m. on April 17.
The Parker incident was reported to her on the
same day. Anderson made no recommendations as
to what discipline, if any, should be administered to
Graham.
Shortly after Graham's discharge Woods was
called into the office. Schwartz said to her that the
button she was wearing was "distracting the
production girls from making production." He said
that he would like to have her remove it. She
questioned, "What if I don't?" He replied, "I will
take further steps." She replied, "Well, I will take it
off now but I have got small ones." Schwartz said
that he wouldn't mind her wearing one about an
inch in diameter but not that "Mickey Mouse look-
ing thing." Woods took the button off and put it in
her pocketbook and said, "What it represents is
what I stand for." Whereupon she was directed to
go back to work.25
" Miley left the employ of the Respondent about 6 weeks prior to August
26,1969.
24 Hodges testified that she pointed her finger and said , "Just leave it go"
and that Rudolph said, "What 's that all about " The Trial Examiner con-
siders Miley to be a credible witness even though he has considered and
weighed in this regard the Respondent 's proffered evidence reported at
pages 579 and 580 of the transcript
!S Schwartz testified, "I don't verbatim exactly what I said but I can say
without question that I said very nicely to Flora Woods that I would like her
to remove that conspicuous button, it is objectionable, and that she could
feel free to wear a Union button of normal size, a small button if she has it,
to feel free to put it on " Schwartz also testified that several employees
mentioned that they found the button "objectionable," and that he told
Woods that "it was objectionable and asked her to please remove it."
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the same day, April 17, Schwartz addressed'
the employees. He called attention to the "bick-
ering" among the girls. He said that he would
not have "this kind of stuff" in the plant; "the
union girls cannot say things about the nonunion
girls, and the nonunion girls cannot talk about the
union girls." He informed the employees that he
had "already let one girl go today bacause she was
a troublemaker." He noted that she was active in
the Union and had signed a union card.26 He
further asserted he would "not pay anyone [he]
fire[d]" backpay. He referred to a plant he
operated in Tennessee where a ghost town now ex-
ists because of the union. "' He said that the papers
there printed that he had paid $5,000 in backpay to
the girls but that that was a "damn" lie. He said
that he had never paid any of the girls backpay and
would "not start now." He said he wanted to hurry
the election up so that he could "get rid of this
cancer once and for all."' He predicted that the
Respondent was going to win the election "hands
down." He further observed, "No one is going to
make my right hand sign a damn thing.29 I will close
my doors if a union come in here.30 Wait until the
verdict is over. You have heard about hanging a
man from the highest tree, wait for six months then
hang him. After this cancer is gone once and for all
then I am going to take action. "31 He ended his re-
marks by saying, "As you all know this is the only
contractor shop in Savannah, Ga. or the only one
within sixty miles of here . The other shops manu-
facture but not me. So if a damn union come[s] in
here the contract[or]s will pull everything out."32
On April 21 Schwartz again addressed his em-
ployees. Among other things he said, "You know
two of the union pros are wearing aprons. They are
right pretty if I do have to say so. Much better than
the others things they wore. I want you to know we
have some low down loud mouth bettle [sic] brain
union pros in here. I want you to know as I have
said before no dam[n] union is coming in this plant.
I will not pay no 9 per cent to no health and welfare
benefits. If I have anything to give I will give it to
you girls not to no damn union. My lawyer advised
me not to make no comments but I will tell you
this. You union pros don't know how dirty I can be
but when this election is over I will hold my court.
Then you will all see . I have a bargain but you will
know about it later."
Schwartz again addressed his employees on May
5. In this speech he discussed the election which
was to be held on May 9, 1969. Among other things
he said, "I want every one of you to vote as you
please but if you vote the Union in I will close the
doors of this plant. You will have no work because
the contractors will pull all of their work out. As
you know we have already lost Miss Wendy. The
others are standing by waiting. They cannot afford
to pay union prices. These doors will be closed
because I have never operated under union and I
never will. I do not stand here and tell lies as the
damn union men do. I do not run no sweat shop
here so we do not need no union." He reiterated, "I
will say again no one is going to make my right
hand sign a damn thing."
On May 6, he again called the employees
together in a captive group. He indicated that the
speech was for the purpose of answering certain
questions which had been propounded to him. He
said that he would say again that he would not
"operate this plant under no damn union." He
further said that "if the union went into the plant
and the doors were shut it would hurt the City of
Savannah." He further observed that the employees
did not "need a union in here. Everybody [was]
getting fair treatment . Everybody [was] being
treated alike." He further told the employees, "I
want to kill this cancer once and for all with a big
victory against the union." He said that Friday
would tell the story whether there would be any
work. He observed that "he would deal with the
union pros after Friday. They would get to know
him in person. He would hold his court later." He
further observed, "I will never sign no I.L.G.W.U.
contract. I can tell you that for sure."
On May 7 Schwartz again addressed his em-
ployees. In this address he noted that he had called
the employees together to answer questions which
they had been asking about the election. He said
that someone had asked him if he would close his
doors if the Union came in the plant. He asserted
that he had not said that he would close his doors
but he had said , "My contractors would close them
because they would pull their work out." He
further said that he would do his "surgery" after
the election was over. He said that "the girls who
work for me would never pay their hard earned
money to no union," or that the union would ride a
"gravy train on the backs of these employees in this
plant." He stated that he did not like the Union
because it was no good; it did not help the em-
ployees and never would. He reiterated that he
26 Driver testified that Schwartz said that "he had discharged an em-
ployee for one thing because she was causing trouble She had admitted
that her only intention in coming back into the plant to work was to work
with the union and cause dissension and trouble in the plant "
z! Mable Small testified that Schwartz told employees " about a plant he
had in Tennessee which was closed because of the union" and that he had
"fired people before and would not pay them any money for the time they
missed "
Schwartz admitted the remark
Schwartz testified he told employees that "nobody has to sign anything
.can't be forced to sign anything they don't want to sign . .
m Mable Small testified that Schwartz told employees that " if the union
wins the election the doors would be closed because he had never operated
under a union and never would "
'i Driver remembered that Schwartz had said that "he would have his
own trial when everything cooled down and quieted down and he would try
each and everyone and they would have their day in court." Mable Small
testified that Schwartz said he would "wait until this thing is over and then
he would have his own trial "
a Edna Hodges testified that Schwartz said that " the plant would close,
not from his doings but by his customers pulling out, which he had lost t'wo
or three already " According to Hodges , Schwartz gave the names and
addresses of these customers . Hodges further testified that Schwartz said
than "if it was union , he could not get orders .. from anyone "
THE LORAY CORP.
would never sign a "I.L.G . W.U." contract . Said he,
"I never have and never will." He urged the people
to vote no and "keep Loray."
On May 8 Schwartz again called the employees
together . He advised the employees there would be
no election in the plant the next day and that the
Union had called it off . He said that he would tell
the employees why. He said , " I will tell you-
because they knew they had lost that is the reason.
I told you all along that was the way the union
worked . They would get you all hoped [sic] up and
then fizzle out. They knew if they held the election
they would lose and they could never live that
down so they just called it off . I want you to know
that I am real pleased . I am going on a trip real
soon and get this work going for the rest of the
year . We will roll it 1, 2, 3, now that the union is
over with . As you know we still have a spark fire
for the union here in the plant but that is all.
Everybody is going to have to abide by my regula-
tions."
On May 9 he spoke to the girls again. He said
that he wanted the employees to know there were
still a few in the plant who thought there would be
an election . He observed that as far as he was con-
cerned and for the rest of the employees , the Union
was gone . He referred to one employee who when
he finished talking ran off and licked her wounds.
Schwartz recalled that , as he told the employees be-
fore, the contractors would give them plenty of
work now that the Union was out . He said he would
repeat what he said yesterday : " the reason the
Union called off the election was because they
knew they had already lost the election ." He said
that he had "a good plan worked out" for the em-
ployees which he would give to them in the next 2
weeks . He noted that the Union had charges against
him of which he would take care. He said that he
"might even go to the Supreme Court with this."
Flora Woods , a known union activist, received
the following letter from Schwartz on June 17:
We wish to advise that due to your extended
absenteeism , we can no longer hold a machine
for you.
We will be glad to reconsider our position
should your health permit you to return at
some later date . Please contact Mrs. Anderson
before returning to the factory.
Woods had been absent 9 days during the month
of June . Prior to June 17, the last day Woods
worked was June 11.
On May 19 Woods called the employer and ad-
vised it that she was going to the doctor. On May
20 she called the employer again and advised it that
she did not visit the doctor on May 19 but that she
was seeing the doctor that day. The doctor in-
formed Woods that she had an infection and could
not work the remainder of the week. He took a
cancer smear . Woods informed the employer.
571
On Friday Woods reported to Plant Manager An-
derson that the doctor had received the report from
the lab and wanted to see her . Anderson suggested
that after Woods visited the doctor she should let
her know "what it's all about ." On Saturday morn-
ing Woods informed Anderson that the cancer test
was positive . Woods was referred to a gynecologist
whom she visited on Monday . She advised the em-
ployer . She told Anderson that the doctor had
given her medicine "to try to burn the cancer cell"
and that he "wanted [ her] to stay off work the rest
of that week and see how it done ." Anderson
responded , "O.K. I heard the medicine will do
good."
On Monday , June 2, Woods was troubled with
bronchitis . The employer was informed that she
was going back to the doctor . The doctor advised
no work for the remainder of the week.
Woods returned to work on June 9.
On June 11 Woods sat under an air conditioner
and the bronchitis recurred . She was absent June
12 and 13 . She informed the employer of her dis-
tress . On June 16 and 17 she was again absent.
Spasms occurred in her back. She informed the em-
ployer as well as noting that Anderson knew she
was visiting the doctor for a test on June 17.
On June 17 the doctor advised Woods that the
medicine got "rid of that cancer cell." He also said
that the "medicine shrunk the muscles so fast that
it caused muscle spasms ." He told her she could
return to work the following Monday, June 23.
Woods has not been ill since.
Woods submitted to Anderson a disability cer-
tificate from Dr . William H . Lippitt dated June 17,
1969, certifying that Woods had been under his
professional care and was totally incapacitated and
"may return to work on Monday, June 23, 1969."
There is no credible evidence in the record which
supports a finding that Woods was not physically
able to work on and after June 23.
After Woods received Schwartz ' letter of June
17, she telephoned Anderson and asked her what
the letter meant . Anderson replied that she could
not hold the machine for her because she was "out
a lot sick ." Woods said that she was able to return
to work. Anderson responded , "Check back with
me later."
On Monday Woods appeared at the plant with
Dr. Lippitt 's certificate. Anderson's response was,
"You'll just have to check with me later." She did
not answer Woods' question as to whether she was
fired . She said , "I just don 't have a machine for
you.,,
On June 25 Woods wrote the employer in part:
This is to advise you of my desire and physi-
cal fitness to return to work full time.
Mrs. Anderson has seen my doctors release
certificate allowing me to return . I have seen
your ad in the paper for help and know too
that you are busy and have the work.
Since I called in with regularity and you
were kept appraised of my situation , I don't
572 DECISIONS OF NATIONAL
understand your reluctance to permit me to
return.
Schwartz replied on June 28:
Your letter of June 25 received, and I am sur-
prised at your request since you know that
your absentee record could no longer be ac-
ceptable. The following is a breakdown of your
attendance record for 1969:
Working Days
Month Days Out
Jan. 24
Feb. 20
Mar. 21
April 22
May 22
Till June 17 12
121
15
10
8
4
16
9
62 33/
I have omitted Saturdays and Sundays from the
above months which clearly shows you were
out more than fifty (50) per cent of the possi-
ble working days during that period.
It is because of your past unacceptable absen-
tee record that I could no longer consider you
for employment.
On July 16 Woods again contacted Anderson
who told her she "wasn't hiring anybody that week
and she probably wouldn't hire anybody the next
week." Woods reminded her that she had seen an
advertisement in the paper and "knew they were
wanting workers."
Woods had never been warned that her absences
were excessive. Schwartz acknowledged that
Woods was a productive employee, "one of our
better ones without question. . . ." Schwartz ad-
mitted that during the period after Woods'
discharge the Respondent was in need of serging
machine operators, the job performed by Woods. In
fact, employees were hired to fill serging machine
operator jobs.
Schwartz' reason for not reemploying Woods was
expressed by him as follows:
THE WITNESS: I'm saying to you at this par-
ticular time that I regard Flora Woods as
someone who is not trying to find a job or keep
a job with the Loray Corporation and has pur-
posely gone out of her way or her doctors are
liars. If the doctors have stated she is physically
" According to Woods' absentee record (G.C Exh 33B) she was absent
47 times rather than 62 times . Fourteen absences were for lack of work,
January 15 , 23 to 31, inclusive, February 3 to 7, inclusive, and May 16, at
least 15 of the absences were due to Woods' cancer problem
'' Schwartz ' testimony borders on the galimatias.
LABOR RELATIONS BOARD
able to go to work, and I am going back for at
least I would say three or four months-I mean
three or four notes covers a good month period
I imagine-and they say three days later she is
going to be able to go to work and then we
would get a call from her for one reason or
another.
I will accept the fact that everything she says
is true if that be the case. Whatever it is, we
can't count upon her to come to work.
Now, another thing that puzzles me, frankly
speaking, is this. On the occasions of the other
girls who were off for three or four weeks, such
as the sickness of her son, or the surgical
operation, we know at once. We accept it and
know they are going to be off for three weeks
or so.
We are not happy with it but we know and it
is a one parea [sic] period. Why, she kept
calling us every day. I don't know if it was ex-
actly every day but I do know this, though, that
it was-she would call on several occasions
and state that she was going to be in at such
and such a time and on one particular occasion
she never called and did not show up.3'
Schwartz' lenient leave policy is depicted in the
testimony of Leasie Bragg:
I worked for Mr. Schwartz when he was in
Allendale and I lost my little daughter and I
stayed off of work for eight months and he
took me back and never asked me no
questions.
The year before last I got sick. I stayed off
from February until December and when I
went back to work my card was right there and
I clocked in and went to work and he didn't
ask me no questions.
Bragg indicated that she was absent many times
because of the condition of her 85-year-old mother.
Anderson said that "it was all right because she
knows Mama's condition."
B. Conclusions and Reasons Therefor
First: The Coercive Character of Schwartz'
Speeches
In the light of the entire record and in the con-
text used the Trial Examiner finds that:
1. The Respondent, by Schwartz' remarks to em-
ployees on February 26 that he knew all who had
signed Union cards, created an impression of sur-
veillance, violative of Section 8(a)(1) of the Act.'
2. The Respondent, by Schwartz' remarks to em-
ployees on February 26, to wit: "This is a nonunion
plant and it is going to stay a nonunion plant" and
" "[T]he law reasons that when the employer either engages in surveil-
lance or takes steps leading his employees to think it is going on, they are
under the threat of economic coercion , retaliation , etc " Hendrix Mfg Co
v NLRB., 321 F 2d 100, 104-105 (C.A 5) See also N L.R.B. v. Ralph
Printing and Lithographing Company, 379 F 2d 687, 691 (C A. 8)
THE LORAY CORP. 573
"I can tell you now there is to be no union in this
plant next Tues ., Wed., Thursday, or Friday"; on
March 6 , to wit : " no damn union is coming into this
plant now or ever"; on March 11 , to wit: "no
dam[n ] union is going to be in this plant"; on
March 26 , to wit : that "no damn union was going to
be in his plant ," that "he never had been union and
he damn sure was not going union now ," " I will
never pay no health and welfare benefits into no
damn union ," "we have no need for a union," and
that "no damn union is to be in his shop , but if one
did come in he would not talk to anyone. They
could write up their grievances but he would not
talk to anyone "; on April 15, to wit : "no damn
union is going to come in this plant," "We don't
need no damn union in here ," "no damn body can
make my right hand sign a damn thing," " I will
never pay health and welfare benefits to no damn
union" and "if the union comes in we will not have
a damn thing "; on April 17, to wit : "No one is
going to make my right hand sign a damn thing";
on April 21 , to wit : "no dam [ n] union is coming in
this plant"; on May 5, to wit : "We do not need a
union," "No one is going to make my right hand
sign a damn thing "; on May 6, to wit: that the em-
ployees did not "need a union in here" and "I will
never sign no I.L.G.W. U. contract"; on May 7, to
wit: that the Respondent would never sign an
I.L.G.W.U. contract , conveyed to the employees
the futility of self-organization , and thereby the
Respondent interfered with , restrained, and
coerced employees in rights guaranteed by Section
7 of the Act.'
3. The Respondent , by Schwartz ' remarks ad-
dressed to employees on Febeuary 26, that there
would be no talking about the Union in the
bathroom , in the context used , imposed an invalid
restriction on employees ' rights of solicitation and,
thereby, interfered with , restrained , and coerced
employees in rights guaranteed by Section 7 of the
Act.
4. The Respondent , by Schwartz ' remarks ad-
dressed to employees on March 6 , to wit: "I can
fire anybody anytime not for union but for 44 other
reasons," strongly implied that it would seize upon
reasons other than union activity as pretexts for the
discharge of union partisans and thereby interfered
with , restrained , and coerced employees in rights
guaranteed by Section 7 of the Act.
5. The Respondent , By Schwartz ' remarks ad-
dressed to employees on March 11 , the day follow-
ing the discharge of Rene Clark, a known union
partisan, to wit: "I want you to know that there are
less people in here today than was in here yesterday
and there is going to be less everyday," represented
to employees that the jobs of union partisans were
in jeopardy and, thereby, interfered with,
restrained, and coerced employees in rights guaran-
teed by Section 7 of the Act.
6. The Respondent, by Schwartz' remarks ad-
dressed to employees on March 11, to wit: "I will
also say there will be no more handing of papers at
this plant. The police will be out here everyday to
arrest anyone that takes part in handing out union
papers," imposed an invalid restriction on em-
ployees' rights of solicitation and, thereby, inter-
fered with, restrained, and coerced employees in
rights guaranteed by Section 7 of the Act.
7. The Respondent, by Schwartz' admitted re-
mark that he "would be willing to give $25 to the
first card that ever came back [from the union],"
offered a benefit to employees for retrieving their
union authorization cards and, thereby, interfered
with, restrained, and coerced employees in rights
guaranteed by Section 7 of the Act.
8. The Respondent, by Schwartz' unsupported
and false remark addressed to employees on March
26 that he had "lost a few of his contracts because
they had heard there was going to be a union in his
shop, and they could not afford union prices," in-
terfered with, restrained, and coerced employees in
rights guaranteed by Section 7 of the Act.
9. The Respondent, by Schwartz' admitted and
unproved remarks addressed to employees that, if
the Respondent was a union shop, the nonunion
customers would "pull their work out immediately"
and that in all probability the Respondent would be
without work and "because of that the factory
would close in all probability," interfered with,
restrained, and coerced employees in rights guaran-
teed by Section 7 of the Act 37
10. The Respondent, by Schwartz' remarks ad-
dressed to employees on April 17 that he had
discharged an employee who was active in the
Union "because she was a trouble maker," inter-
fered with, restrained, and coerced employees in
rights guaranteed by Section 7 of the Act.
11. The Respondent, by Schwartz' remarks ad-
dressed to employees on April 17 that a plant
which he operated in Tennessee was closed because
of the union, impressed employees with the idea
that the same result would transpire if the Union
' See N.L.R.B. v Bailey Co, 180 F 2d 278, 279 (C A 6), The Deutsch
Company, Metal Components Division , 178 NLRB 616 , Brandenburg
Telephone Co, 164 NLRB 825, enfd 408 F 2d 377 (C A 6), Trane Co,
137 NLRB 1506, 1510 In the case of N L.R.B. v Patent Trader, Inc, 415
F.2d 190 , 198-199 (C A. 2), the court said.
At the meeting of January 31, 1966, president Tucker told several of
the pressroom employees that he "didn 't have to sign a contract at all"
and that "nobody could force him to sign one " In the context of
Tucker 's other communications to the employees , these statements
operated as a violation of the Act by conveying to employees the futili-
ty of self-organization.
"If there is any implication that an employer may or may not take ac-
tion solely on his own initiative for reasons unrelated to economic necessi-
ties and known only to hun, the statement is no longer a reasonable predic-
tion based on available facts but a threat of retaliation based on
misrepresentation and coercion , and as such without the protection of the
First Amendment.. . 'conveyance of the employer's belief , even though
sincere , that unionization will or may result in the closing of the plant is not
a statement of fact unless , which is most improbable , the eventuality of
closing is capable of proof ' 397 F 2d 157, 160 . ." N.L.R B. v Cassel
Packing Co ., 395 U S . 575, 618-619, see also International Union of Electri-
cal, Radio and Machine Workers, AFL-CIO v N L R.B , 289 F 2d 757, 763
(C A.D C ), cf. The Aire-Flo Corporation, 167 NLRB 679, see also Water-
ways Harbor Investment Company, Inc , 179 NLRB 452, fn 5
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
come in the Respondent's plant and, thereby, inter-
fered with, restrained, and coerced employees in
rights guaranteed by Section 7 of the Act.
12. The Respondent, by Schwartz' remarks ad-
dressed to employees on April 17, to wit: "I will
close my doors if a union came in here," interfered
with, restrained, and coerced employees in rights
guaranteed by Section 7 of the Act.
13. The Respondent, by Schwartz' remarks ad-
dressed to employees on April 17, to wit: "Wait
until the verdict is over. You have heard about
hanging a man from the highest tree, wait for six
months then hang him. After this cancer is gone
once and for all then I am going to take action,"
implied that once the union campaign was con-
cluded it would take reprisals against its employees
and, thereby, interfered with, restrained, and
coerced employees in rights guaranteed by Section
7 of the Act.
14. The Respondent, by Schwartz' unsupported
remarks addressed to employees on April 17, to
wit: "So if a damn union come[s] in here the con-
tract[or]s will pull everything out," interfered with,
restrained, and coerced employees in rights guaran-
teed by Section 7 of the Act.
15. The Respondent, by Schwartz' remarks ad-
dressed to employees on April 21, to wit: "I will tell
you this you union pros don't know how dirty I can
be but when this election is over I will hold my
court, then you will all see," represented to em-
ployees that upon the conclusion of the election it
would visit reprisals upon employees and, thereby,
interfered with, restrained, and coerced employees
in rights guaranteed by Section 7 of the Act.
16. The Respondent, by Schwartz' remarks ad-
dressed to employees on April 21, to wit: "I have a
bargain but you will know about it later," in the
context used, implied a promise of a benefit and,
thereby, interfered with, restrained, and coerced
employees in rights guaranteed by Section 7 of the
Act.
17. The Respondent, by Schwartz' remarks ad-
dressed to employees on May 5, to wit: "[I]f you
vote the union in I will close the doors of this
plant" and "These doors will be closed because I
have never operated under union and never will,"
interfered with, restrained, and coerced employees
in rights guaranteed by Section 7 of the Act.38
18. The Respondent, by Schwartz' remarks ad-
dressed to employees on May 6, that he would not
"operate this plant under no damn union," inter-
fered with, restrained, and coerced employees in
rights guaranteed by Section 7 of the Act.
19. The Respondent, by Schwartz' remarks ad-
dressed to employees on May 6, that Friday would
tell the story whether there would be any work, in-
terfered with, restrained, and coerced employees in
rights guaranteed by Section 7 of the Act.
20. The Respondent, by Schwartz' remarks ad-
dressed to employees on May 6, that he would
"deal with the union pros after Friday. . . He
would hold his court later," impressed employees
with the idea that reprisals would be visited on
union partisans after the election and, thereby,
interfered with, restrained, and coerced employees
in rights guaranteed by Section 7 of the Act.
21. The Respondent, by Schwartz' remarks ad-
dressed to employees on May 7 in which he urged
employees to vote no and "keep Loray," implied
that if the Union came in the plant would be closed
and, thereby, interfered with, restrained, and
coerced employees in rights guaranteed by Section
7 of the Act.
22. The Respondent, by Schwartz' remarks ad-
dressed to employees on May 9, that he had a good
plan worked out for the employees which he would
give to them within 2 weeks, implied a promise of a
benefit and, thereby, interfered with, restrained,
and coerced employees in rights guaranteed by Sec-
tion 7 of the Act.
23. The Respondent, by Schwartz' admitted re-
marks addressed to employees, to wit: "I did say if
they signed they gave away their right to ever bar-
gain with me if the Union came in. I wanted to
make sure they understood that if the Union got
enough signature cards that they would then give
up their right to bargain with me and would have
no right to discuss any factory problems any more
with me if they signed that card and the Union
represented them, that I told them," interfered
with, restrained, and coerced employees in rights
guaranteed by Section 7 of the Act.39
Second: The Discharge of Rene Clark
` .. an employer may hire and discharge at will,
so long as his action is not based on opposition to
union activities." N.L.R.B. v. Little Rock
Downtowner, Inc., 341 F.2d 1020, 1021 (C.A. 8).
However, the "mere existence of valid ground for a
discharge is no defense to a charge that the
discharge was unlawful, unless the discharge was
predicated solely on those grounds , and not by a
desire to discourage union activity." N.L.R.B. v.
Symons Manufacturing Company, 328 F.2d 835,
a "Threats, such as to move the plant or close it if the union won
in the course of an organizational campaign constitute interference and
restraint within the scope of § 8 (a)( I) " Marshfield Steel Company v
N.L.R.B., 324 F 2d 333, 336 (C.A. 8), Holly Hill Lumber Co, 380 F.2d
838, 841 (C.A. 4), N L R.B v Murry Ohio Manufacturing Ca, 328 F.2d
613 (C.A 6).
'See N.L.R.B v . Vinylex Corp., 404 F.2d 1200, 1201 (C.A 6) The
court stated "The letter further stated , contrary to the provisions of Sec-
tion 9 of the Act, that in the event of unionization , the employees ` would be
unable to talk personally with management about any of our problems."'
The court found this a violation of Section 8(a)( I) See also Brandenburg
Telephone Co., supra, Graber Manufacturing Company, Inc, 158 NLRB
244,246; Henryl Siegel Co , Inc. v. N L.R B., 417 F.2d 1206 (C.A. 6).
THE LORAY CORP.
837 (C.A. 7).40 "A justifiable ground for dismissal
is no defense if it is a pretext and not the moving
cause." N.L.R.B. v. Solo Cup Co., 237 F.2d 521,
525 (C.A. 8). "... the `real motive' of the em-
ployer in an alleged § 8(a)(3) violation is decisive. .
" N.L.R.B. v. Brown Food Store, 380 U.S. 278,
287. "It is the `true purpose' or `real motive' in hir-
ing or firing that constitutes the test." Local 357,
International Brotherhood of Teamsters [Los An-
geles-Seattle Motor Express] v. N.L.R.B., 365 U.S.
667, 675.
"Section 8(a)(3) prohibits discrimination in re-
gard to tenure or other conditions of employment
to discourage union membership. ... It has long
been established that a finding of violation under
this section will normally turn on the employer's
motivation." American Ship Building Co. v.
N.L.R.B., 380 U.S. 300, 311.
However, a "wide range of employer actions
taken to serve legitimate business interests in some
significant fashion, even though the act committed
may tend to discourage union membership," are
permitted under Section 8(a)(3) as "essential if
due protection is to be accorded the employer's
right to manage his enterprise." Id. at 311. But
"there are some practices which are inherently so
prejudicial to union interests and so devoid of sig-
nificant economic justification that no specific
evidence of intent to discourage union membership
or other antiunion animus is required. In some
cases, it may be that the employer's conduct carries
with it an inference of unlawful intention so com-
pelling that it is justifiable to disbelieve the em-
ployer's protestations of innocent purpose." Id. at
311-312.
The discharge of Clark directly related to the dis-
tribution of union leaflets was "inherently so preju-
dicial to union interests and so devoid of significant
economic justification that no specific evidence of
intent to discourage union membership or other an-
tiunion animus is required." The discharge of
Clark, as machinated by the Respondent, was the
kind of conduct which carried with it unavoidable
consequences which the employer must not only
have foreseen but which it must have intended.
Thus such conduct bears its own indicia of intent.
Cf. Erie Register Corp. v. N.L.R.B., 373 U.S. 221.41
e The principle was well stated by the Court of Appeals for the Second
Circuit in N LR B v Great Eastern Color Lithographic Corp, 309 F 2d
352, 355, enfg 133 NLRB 9I 1.
The issue before us is not , of course , whether or not there existed
grounds for discharge of these employees apart from their union ac-
tivities The fact that the employer had ample reason for discharging
them is of no moment It was free to discharge them for any reason
good or bad , so long as it did not discharge them for their union activi-
ty. And even though the discharges may have been based upon other
reasons as well, if the employer was partly motivated by union activity,
the discharges were violative of the Act
41 " an employer's protestation that he did not intend to encourage or
discourage must be unavailing where a natural consequence of his action
was such encouragement or discouragement . Concluding that encourage-
ment or discouragement will result, it is presumed that he intended such
consequence In such circumstances intent to encourage is sufficiently
575
Signal Oil and Gas Company v. N.L.R.B., 390 F.2d
338 (C.A. 9). The sole foreseeable result of the
discharge of Clark following upon the heels of her
distribution of union leaflets at the employer's
premises was to "discourage membership in any
labor organization" and to dissuade employees
from distributing union leaflets.42 Any other conclu-
sion would be at odds with the realities of the in-
dustrial world and in opposition to sound reason.
Thus the employer's conduct must be deemed to
have been "inherently destructive of important em-
ployee rights" and an unfair labor practice may be
found "even if the employer introduces evidence
that the conduct was motivated by business con-
siderations." N.L.R.B. v. Great Dane Trailers, Inc.,
388 U.S. 26. Indeed a clearer manifestation of an
employer's intent to discourage union activity is sel-
dom observed.93
The facts bear out these conclusions. At the
threshold of the Union 's organizational campaign,
Schwartz commenced his antiunion campaign,
utilizing, as tactics , the commission of unfair labor
practices. He warned employees that there would
be no union in the plant and 2 working days before
Clark's discharge threatened employees that he
could fire any employee at any time "not for union
but for 44 other reasons." On the next working day
after Clark participated in distributing handbills at
the plant, Clark was summarily discharged. Her
abrupt discharge on the next working day after she
distributed union handbills coupled with Schwartz'
statements on the next day that there were "less
people in here today than was in here yesterday,"
"the police will be out here everyday to arrest any-
one that takes part in handing out union papers"
and that there would be no union in the plant could
not have been reasonably read by the employees
otherwise than that Clark's discharge was triggered
by her union affection and her temerity in distribut-
ing union handbills and that her discharge stood as
a warning to other employees that they would be
treated likewise if they persisted in engaging in
union activity.44 In that it must be presumed that
the employer intended this result, since no other
result is reasonably foreseeable under the circum-
stances, motive to discourage union membership
must follow. Thus, in that the employer committed
established " The Radio Officers' Union of the Commercial Telegraphers
Union,AFLv.NLRB, 347US 17,45
u That the Respondent intended this result is implicit in Schwartz ' threat
the next day that " the police will be out here everyday to arrest anyone that
takes part in handing out union papers."
" "It would indeed be the unusual case in which the link between the
discharge and the union activity could be supplied exclusively by direct
evidence intent is subjective and in many cases the discrimination can be
proven only by the use of circumstantial evidence ." N L R B v Melrose
Processing Co., 351 F 2d 693,698 (C.A 8).
4' As was stated in N L.R B v Jamestown Sterling Corp., 211 F 2d 725
(CA 2)
[T]he unexplained coincidence of time with respect to the principal
events was really no coincidence at all, but rather part of a deliberate
effort by the management to scotch the lawful measures of the em-
ployees before they had progressed too far toward fruition
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
acts inherently prejudicial to employee interests,
the reasonable and foreseeable consequences of
which were to discourage employees' membership
in a labor organization, the Respondent's "real mo-
tive" must be deemed unlawful and the discharge
of Clark a violation of Section 8(a)(1) and (3) of
the Act. Since the Respondent's motive was clearly
unlawful, its asserted reasons for the discharge of
Clark become immaterial for the mere existence of
an alternate ground for action taken is no defense
where, as here, the employer's actual motivation is
based on unlawful discrimination. Webster Wood In-
dustries, Inc., 169 NLRB 67. ". . . the existence of a
proper reason for a discharge is no defense if the
discharge was actually made for an improper pur-
pose." The John Klann Moving and Trucking Co.,
411 F.2d 261, 263 (C.A. 6).
Third: The Arrest of Union Representative Leste
In that the Respondent has produced no credible
proof that the arrest of Union Representative Leste
for attempting to distribute handbills was in viola-
tion of the law or constituted interference with the
employer in the operation of its business , the arrest
was violative of employee rights protected by the
Act. Aldora Mills, 79 NLRB 1, enfd. 180 F.2d 580
(C.A. 5).
The language of Trial Examiner Alba B. Martin
in the case of Priced-Less Discount Foods, Inc. d/b/a
Payless, 162 NLRB 872, 876, is equally applicable
here:
Under the circumstances ... causing him [a
union organizer] to be arrested in the presence
of employees, because he was soliciting on the
parking lot, was violative of employee rights
protected by the Act. In all probability
Respondent's actions were viewed by em-
ployees as an indication of the dangers and ob-
stacles awaiting them should they in the future
show any interest in the Union. It is a reasona-
ble inference that the normal effect of Respon-
dent's conduct was to cause its employees to
weigh the possibility of incurring reprisals or
other hostile employer action before undertak-
ing to exercise their rights secured by the Act.
Threatening and having the union organizer ar-
rested displayed to the employees Respon-
dent's bitter opposition to the Union and the
extent of the measures it would resort to in re-
sisting it.
By causing the arrest of Union Representative
Leste on March 7 for attempting to distribute hand-
bills in the vicinity of the Respondent's plant the
Respondent interfered with, restrained, and
coerced employees in the exercise of the rights
guaranteed them in Section 7 of the Act and
thereby violated Section 8(a)(1) of the Act.
Fourth: The "Standout" and the Request for
Recognition
The General Counsel pleads that the employees,
who on March 12, after "standing out" entered the
employer's plant and presented a demand for
recognition, were laid off for the remainder of the
day "because of their membership in, and activities
on behalf of the Union and because they engaged in
concerted activities with other employees for the
purpose of collective bargaining and other mutual
aid and protection." Whether employees engage in
a "walkout'15 or a "walkup"46 which is not forbid-
den by a valid subsisting collective-bargaining
agreement or plant rule it is protected activity
within the meaning of Section 7 of the Act; a for-
tiori a "walkout" or a "walkup" of employees in a
group in demand of union recognition is protected
activity. The employees' "standout" on March 12
was protected activity; the "walkup" on March 12
was likewise protected activity.
Thus Schwartz' response to the "walkup," i.e.,
dismissal for the day of those who engaged in the
"walkup," if it tended to discourage employees'
membership in a labor organization was in violation
of Section 8(a)(1) and (3) of the Act. Under the
circumstances herein and in view of the employer's
failure to justify its action by a credible explanation
the Trial Examiner finds that the Respondent's
dismissal of the subject employees for the
remainder of the March 12 workday discouraged
employees' membership in a union and employees,
union activity (which the Trial Examiner finds to
have been the employer's motive), and, thereby,
the Respondent violated Section 8(a)(1) and (3) of
the Act.
In this regard it is significant that on the morning
in question the Respondent needed the employees
dismissed .' Indeed, as a justification for its action,
the Respondent came forward with no credible
valid explanation as to why these employees were
not utilized according to the Company's need.
Furthermore Schwartz' action in this regard may
not be disassociated form his zest to drive the
Union from the plant, which up to that point in-
cluded coercive speeches, a wrongful discharge,
and an illegal arrest of a union handbiller.
Fifth: The Discharge of Sara Helen Graham
As in the case of Rene Clark, Schwartz timed the
discharge of Sara Helen Graham so that the natural
and probable consequence of her discharge would
discourage membership in a labor organization.
The time chosen for the discharge was immediately
after Graham appeared in the plant wearing a union
button and shortly after Schwartz boasted to ern-
15 In Electromec Design and Development Company, Inc , 168 NLRB 763,
the Board found that a "walkout , being in quest of improved terms and
conditions of employment , was protected concerted activity within the in-
tendment of Section 7 of the Act "
06 " that the employees suddenly dropped their tools and insisted
upon presenting their gretvances during working hours does not detract
from the lawfulness of their conduct " N L R B v Kennametal , Inc, 182
F2d817,819-820(C.A 3)
THE LORAY CORP. 577
ployees (in reference to his operation of a Tennes-
see plant in which a union had appeared), "I have
fired people before and never hired anyone back or
paid any money for being fired. I never have and
never will." Thus the true motive for Graham's
discharge at the time selected, immediately after
Graham appeared wearing a union button, seems
clear. Additionally, in that the natural and foreseea-
ble consequences stemming from the discharge of
Graham (in view of the Respondent's antipathy to
the Union and the timing of the discharge) was the
discouragement of union membership and the coer-
cive deterrent to the exercise of employee rights to
wear union buttons (see infra), the fact that the
Respondent, notwithstanding, effected the
discharge is an indicia of its true intent to cause the
resulting discouragement of union membership and
the wearing of union buttons. Moreover, the intent
of the employer to gain this end was not left to em-
ployee speculation for shortly after Graham's
discharge Schwartz told the employees he had let
go an employee active in the union "because she
was a troublemaker."47 As in the case of Rene
Clark '411 in that the Respondent committed acts in-
herently prejudicial to employee interests, the
reasonable and foreseeable consequences of which
was to discourage membership in a labor organiza-
tion, the Respondent's real motive must be deemed
unlawful and the discharge of Graham in violation
of Section 8(a)(1) and (3) of the Act. (See cita-
tions supra.)
Sixth: The Union Button Incident Involving Flora
Mae Woods
A naked rule prohibiting the wearing of union
buttons or insignia is unlawful. Unless special cir-
cumstances are present which justify the main-
tenance of production and discipline, an employer
may not require an employee to remove union in-
signia while on the job or in the plant. Such a
restriction collides with the employees' rights
guaranteed by Section 7 of the Act. Serv-Air Inc.,
161 NLRB 382, 416-417. Portage Plastics Com-
pany, 163 NLRB 753, 759. Unless the size of the
union button worn by an employee is related to the
impairment of production or discipline, the size of
the button is immaterial and the employer may not
curtail the button's use as a union propaganda
device. Serv-Air Inc., supra.
In that the Respondent has presented no credible
proof that the restriction placed upon Woods, i.e.,
the limitation of the size of the union button she
was allowed to wear, was justified under the cir-
cumstances, the Respondent, by imposing such
limitation, interfered with, restrained, and coerced
employees in rights guaranteed by Section 7 of the
Act and thereby violated Section 8(a)(1) of the
Act.
Seventh: The Discharge of Flora Mae Woods
"... A justifiable ground for dismissal is no
defense if it is a pretext and not the moving cause."
Marshfield Steel Company v. N.L.R.B., 324 F.2d
333, 337 (C.A. 8). In this regard the Trial Ex-
aminer is convinced that "the moving cause" or
"real movtive" of the Respondent in discharging
employee Woods was to discourage membership in
a labor organization and to interfere with em-
ployees' "right to self-organization and to form,
join, or assist labor organizations." Controlling fac-
tors in this regard are: (1) The strong union animus
of the employer,49 (2) the Respondent's knowledge
of Woods' strong union advocacy, (3) Woods'
otherwise acceptable work record, (4) the Respon-
dent's refusal to reconsider its "position should
[Woods'] health permit [her] to return at some
later date" as represented in its letter to Woods
when Woods presented proof that she was physi-
cally able to work,50 (5) the Respondent's vacilla-
tion between June 17 and 25 as to whether Woods
was actually discharged,51 (6) the unrealistic
character of the Respondent's cited cause for
Woods' discharge in that the unacceptability of her
absentee record was based on 62 "days out"
whereas her "Absentee Record" listed only 47 days
out and whereas, of the days out charged against
her, 11 absences were for lack of work and not at-
tributable to her personal conduct, (7) the Respon-
dent was in need of serging machine operators,
Woods' classification, (8) Schwartz' weak explana-
tion as to why he refused to reemploy Woods, (9)
the Respondent's lenient leave policy, and (10)
Schwartz' threats that he would deal with the union
"pros" after the election .51
" In this regard it is noted that charges against Graham did not relate to
her productivity or that of others Her alleged offenses occurred at break-
time and on the way to the timeclock
' Pertinent here is the observation of Judge Prettyman, speaking for the
court in E Anthony & Sons, Inc v N L.R B , 163 F 2d 22, 26-27
(C A D C, 1947), cert denied 332 U S 773
All were discharged summarily, without preliminary warning , admoni-
tion, or opportunity to change the act or practice complained of. Such
action on the part of an employer is not natural If the employer had
really been disturbed by the circumstances it assigned as reasons for
these discharges , and had had no other circumstance in mind, some
word of admonition , some caution that the offending laspe be not re-
peated , or some opportunity for correction of the objectionable prac-
tice, would be almost inevitable The summanness of the discharges of
these employees , admittedly theretofore satisfactory, gives rise to a
doubt as to the good faith of the assigned reasons.
I" [Ejvery equivocal act that was done may be properly viewed in the
light of respondent 's animus toward the effort to organize its men "
N.L. R B v Houston and North Texas Motor Freight Lines, Inc., 193 F.2d
394, 398 (C.A 5), cert denied 343 US 934
See Kline Iron and Steel Company, 178 NLRB 465
" During this period Anderson did not answer Woods' question whether
she was fired Anderson 's response was "Check back with me later."
iS "When a . manager holding and expressing . . antiunion bias is
involved directly in the decision whether to discharge an employee, the
Board is entitled to conclude that this was a case of the threat made good
Under these circumstances management cannot ignore the significance of
such opportunity to carry out the discriminatory threats, or retreat to the
innocence-no matter how genuine it might have been-of its nominal
actor or spokesman." N.L.R B v Neuhoff Brothers Packers, Inc., 375 F 2d
372,374,376(CA 5)
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The discharge of Woods, the in-plant committee
chairman, was the clincher which drew the final
curtain on Schwartz' successful antiunion cam-
paign. It doused the "spark fire from the Union" to
which Schwartz referred as remaining after the
Union withdrew from the election.
Accordingly, the Trial Examiner concludes and
finds that by refusing to reinstate Flora Mae Woods
to her job on June 23, 1969, Respondent dis-
criminated against her in violation of Section
8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing
employees in the exercise of the rights guaranteed
them by Section 7 of the Act Respondent has en-
gaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
4. By unlawfully discharging Rene Clark on
March 10, 1969, Sara Helen Graham on August 17,
1969, and refusing to reinstate Flora Mae Woods
on June 23, 1969, Respondent engaged in unfair
labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
5. By unlawfully laying off Flora Mae Woods,
Opal Allen, Gladys Daniels, Mable Small, Shirley
Mabley, Lucille Driver, Leasie Bragg, Mary James,
Minnie Ruth Griffin, Louella Paul, Mary Etta Hol-
land, Marjorie Covington, Agnes Forster, Mary
Townsend, Betty Ann Jones, and Valeria Elders,
Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of
the Act.
6. The aforesaid unfair labor practices are unfair
labor practices within the meaning of Section 2(6)
and (7) of the Act.
7. All production and maintenance employees of
the Loray Corporation at its Savannah, Georgia,
plant excluding all office and clerical employees,
guards and supervisors as defined in the Act con-
stitute an appropriate unit for the purposes of col-
lective bargaining within the meaning of Section
9(b) of the Act.'
The Effect of the Unfair Labor Practices Upon
Commerce
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with the
operations described 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.
THE RECOMMENDED REMEDY
It having been found that the Respondent has en-
gaged in certain unfair labor practices, it is recom-
mended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act. It having been found that the
Respondent unlawfully discharged Rene Clark and
Sara Helen Graham, unlawfully refused to reinstate
Flora Mae Woods, and unlawfully laid off Flora
Mae Woods, Opal Allen, Gladys Daniels, Mable
Small, Shirley Mabley, Lucille Driver, Leasie
Bragg, Mary James, Minnie Ruth Griffin, Louella
Paul, Mary Etta Holland, Marjorie Covington,
Agnes Forster, Mary Townsend, Betty Ann Jones,
and Valeria Elders and thereby violated Section
8(a)(1) and (3) of the Act, it is recommended that
the Respondent remedy such unlawful conduct. It is
recommended in accordance with Board policy'
that the Respondent offer Rene Louise Clark, Sara
Helen Graham, and Flora Mae Woods immediate
and full reinstatement to their former or substan-
tially equivalent positions without prejudice to their
seniority or other rights and privileges 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 a sum of money equal
to the amount they would have earned from the
date of their discriminatory discharges to the date
of an offer of reinstatement, less net earnings, if
any, during said period and make Flora Mae
Woods, Opal Allen, Gladys Daniels, Mable Small,
Shirley Mabley, Lucille Driver, Leasie Bragg, Mary
James, Minnie Ruth Griffin, Louella Paul, Mary
Etta Holland, Marjorie Covington, Agnes Forster,
Mary Townsend, Betty Ann Jones, and Valeria El-
ders whole for any loss of earnings they may have
suffered as a result of the discrimination against
them by payment to them of a sum of money equal
to the amount they would have earned on March
12, 1969, had they been permitted to work, all to
be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289, and including interest at the
rate of 6 percent per annum in the manner set forth
in Isis Plumbing & Heating Co., 138 NLRB 716.
The Union "maintains that the Company should
be required to bargain with it to redress unfair
labor practices `so pervasive that, even in the
absence of Section 8(a)(5) violation, a bargaining
53 This unit is the unit appearing in the stipulation upon consent election
executed by the Respondent and the Union and approved by the Regional
Director, Region 10 , in Case l0-RC-7751, dated April 24, 1969 There
having been offered no competent proof that this unit is an inappropriate
unit, the Trial Examiner finds, as approved by the Regional Director, that
the unit is an appropriate unit for the purposes of collective bargaining
within the meaning of the Act
' ` See Rushton Company, 158 NLRB 1730, 1740.
THE LORAY CORP.
order would (be) necessary to repair the unlawful
effect of those (practices).;"' Further contending
the Union asserts, "The illegal conduct of Schwartz
was so continuous, pervasive and ultimately effec-
tive that the Union maintains that only a bargaining
order remedy can effectively remedy the viola-
tions. "5G The Trial Examiner is convinced that the
claim of the Union has merit.
Reliance is placed on the case of N.L.R.B. v. Gis-
sel Packing Company, 395 U.S. 575, 613-614,
wherein the Court said:
While refusing to validate the general use of a
bargaining order in reliance on cards, the
Fourth Circuit nevertheless left open the possi-
bility of imposing a bargaining order, without
need of inquiry into majority status on the
basis of cards or otherwise, in "exceptional"
cases marked by "outrageous" and "perva-
sive" unfair labor practices. Such an order
would be an appropriate remedy for those
practices, the court noted, if they are of "such
a nature that their coercive effects cannot be
eliminated by the application of traditional
remedies, with the result that a fair and reliable
election cannot be had." N.L.R.B. v. Logan
Packing Co., 386 F.2d 562, 570 (C.A. 4th Cir.
1967); see also N.L.R.B. v. Heck's, Inc., 398
F.2d. 337, 338. The Board itself, we should
add, has long had a similar policy of issuing a
bargaining order , in the absence of a § 8(a)(5)
violation or even a bargaining demand, when
that was the only available, effective remedy
for substantial unfair labor practices. See, e.g.,
United Steelworkers of America v. N.L.R.B., .. .
376 F.2d 770 (C.A.D.C. Cir. 1967); J.C. Pen-
ney Co., Inc. v. N.L.R.B., 384 F.2d 479,
485-486 (C.A. 10th Cir. 1967).
It is stressed that a bargaining order is pertinent
in the instant case "without need of inquiry into
majority status on the basis of cards or otherwise."
While the Union made a demand, claiming that it
represented a majority of the employer's employees
and the record discloses that employees did sign
union authorization cards and that the employer
engaged in unfair labor practices "so coercive that,
even in the absence of a § 8(a)(5) violation, a bar-
gaining order would have been necessary to repair
the unlawful effect of those [unfair labor prac-
tices]"" the Union's alleged majority was not
tested by the submission of authenticated union
authorization cards S6 But the question of "reasona-
ble doubt" was put in issue by the submission of the
Respondent's letter dated March 13, 1969, in
S1 Bnef of Charging Party, p 1.
'e Brief of Charging Party, p. 3
" N.L R B v Gissel Packing Co , 395 U.S 575,615
' Under the theory of the Union, of course , this was not necessary
19 "The Board 's test for good-faith doubt . . is whether the employer
has engaged in substantial unfair labor practices calculated to dissipate
union support ." The National Cash Register Company, 167 NLRB 1047;
579
which it asserted that "Loray Corporation has a
reasonable doubt that the International Ladies Gar-
ment Workers Union represents an uncoerced and
valid majority of its employees for the purpose of
collective bargaining." On the basis of the record
and by reason of the employer's unfair labor prac-
tices this doubt cannot be credited .59 Hence, under
the circumstances of this case as revealed in the
record as a whole, the employer by reason of its
misconduct must be without standing to righteously
resist a bargaining order on the ground that it har-
bored a valid reasonable doubt as to the Union's
majority status and, as far as the employer is con-
cerned at this stage of the proceedings, proof of the
Union's majority status is immaterial . Although,
when confronted with a claimed card majority the
employer may decline union recognition and either
request and insist on an election or, file a petition
himself under Section 9(c)(1)(B) of the Act, the
employer in the instant case, bent on discouraging
union affection, not only declined to inspect the
cards proffered by its employees but marked its dis-
pleasure at such effrontery by punishing them.60 By
thus refusing to receive the cards, Schwartz by his
own conduct deliberately prevented the Respon-
dent from ascertaining whether the Union actually
possessed authorization cards from a majority of
the employees. He chose thereby to protect his al-
leged ignorance on the subject which, if dispelled,
might have caused the attachment of a bargaining
obligation. Schwartz wanted no proof; he wanted
no union . His rejection of the showing of cards was
clearly in bad faith and in anticipation of a defense
against a refusal-to-bargain charge.
The Respondent capped its adamant rejection of
the showing of cards by the further commission of
unfair labor practices "so coercive that, even in the
absence of a § 8(a)(5) violation, a bargaining order
would have been necessary to repair the unlawful
effect of those [unfair labor practices]" by which it
destroyed the possibility of resolving the majority
status of the Union by a free election. By such
misconduct the employer stopped potential union
growth whereas it was its duty "to permit the Union
to have a free opportunity to increase and retain its
membership by legitimate organizational activity
and to participate in a free and uncoerced election,
which would determine whether or not it was the
statutory representative .... "61 Under these cir-
cumstances to permit an employer to raise the
defense of lack of union majority as a bar to a bar-
gaining order would "in effect be rewarding the
employer and allowing him to profit from [his] own
"Where unlawful conduct is aimed at and does undermine a union's
majority , it is irrelevant that the employer may have a rational, albeit er-
roneous, doubt of majority ... "General Stencils, Inc, 178 NLRB 108
"Where unlawful conduct is aimed at and does undermine a union's
majority, it is irrelevant that the employer .. has a general distrust of
cards " General Stencils, Inc, 178 NLRB 108.
11 International Broadcasting Corporation (KWKH), 99 NLRB 130, 133
427-835 0 - 74 - 38
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wrongful refusal to bargain" ' and other insidious
unfair labor practices. In effectuating the policy of
the Act it was not intended that such an uncon-
scionable result should ever come to pass. Implicit
natural justice and the rules of fair play, if for no
other reasons, command a bargaining order as the
realistic, feasible means of effectuating the policies
of the Act.
Moreover, the Board recognizes that "it may be
assumed that an employer's unwillingness to par-
ticipate in an election without engaging in unfair
labor practices aimed at influencing that election
indicates his fear that in the forthcoming election a
majority of employees will vote for union represen-
tation." General Stencils, Inc., 178 NLRB 108.
By reason of the exigencies herein and the stat-
ute's clear intent that its policies be effectuated, one
of which is to encourage "the _practice and
procedure of collective bargaining" (which was
deliberately frustrated by the employer), proof of
the Union's majority status by the Union's assertion
thereof,' in light of the employer's lack of good-
faith doubt and its blatant unfair labor practices,
ought to be deemed sufficient to satisfy at least a
prima facie showing of majority status, which if un-
rebutted will sustain a bargaining order.' But, since
the Supreme Court teaches that a bargaining order
may be imposed "without need of inquiry into
majority status" in "`exceptional' cases marked by
`outrageous' and `pervasive' unfair labor practices"
(N.L.R.B. v. Gissel Packing Co., supra), the
threshold question in any case in which a bargain-
ing order is sought is whether the unfair labor prac-
tices found are of an "outrageous" and "pervasive"
character. If an affirmative finding is made on this
point a bargaining order may be imposed without
further inquiry.
"Pervasive" has been defined as "diffused
throughout every part of. "" Here the Respondent
commenced its campaign at the very advent of the
Union and throughout the Union's organizational
campaign it resorted to almost daily unfair labor
practices sedulously pursued, by which it caused a
frigorific effect on its employees' union affection.
The employer's unfair labor practices ceased only
when it finally fired the in-plant chairman of the
Union's organizing committee. The Trial Examiner
is convinced that the Respondent's unfair labor
practices were "pervasive."
"Outrageous" implies exceeding the limits of
what is bearable or endurable."' By at least 12 cap-
tive audience speeches Schwartz conveyed to em-
ployees no less than 20 times the futility of self-or-
ganization, threatened to fire employees for union
activity, threatened to cause the arrest of em-
ployees who distributed union leaflets, threatened
to close the plant if the Union were successful,"6
threatened employees with reprisals after the elec-
tion was concluded, threatened never to operate
under a union, threatened never to sign a contract
with a union or talk to it, and promised benefits and
interfered with employees' solicitation rights. In this
coercive atmosphere caused by these remarks the
employer fired Rene Clark, one of the first union
handbillers, a black member of the Union's organiz-
ing committee; Sara Graham, one of the first union
button wearers, a white69 union partisan; and Flora
Mae Woods, the in-plant chairman of the Union's
organizational committee .70 In addition Schwartz
laid off 16 employees who sought to hand him
union authorization cards. Even more devices were
employed to chill union affection. A union
representative was wrongfully jailed for attempting
to pass handbills in the vicinity of the plant, at
" See N L.R.B. v Gissel Packing co, supra The Board has said, where
an employer has embarked upon serious violations of the Act justifying a
bargaining order even in the absence of a finding that the employer had
violated Section 8(a)(5) of the Act, "To require the Union to submit to
another election under these circumstances would be to permit Respon-
dent to profit from its own unlawful conduct at the expense of the Union and
the majority of the Respondent 's employees ( Emphasis supplied.]"
Northwest Engineering Company, 158 NLRB 624, 630, enfd 376 F.2d 770
(C.A D C )
=In Republic Steel Corporation v N LRB , 311 U S. 7, 10, Chief Justice
Hughes, speaking for the Court, said-
The remedial purposes of the Act are quite clear It is aimed, as the
Act says (§ I) at encouraging the practice and procedure of collective
bargaining and at protecting the exercise by workers of full freedom of
association , of self organization and of negotiating the terms and con-
ditions of their employment or other mutual aid or protection through
their freely chosen representatives.
In Division 1287 of the Amalgamated Association of Street, Electric, Railway
and Motor Coach Employees of America v State of Missouri, 374 U.S 74,
the Court said that collective bargaining is the "essence " of the Federal
scheme
In this connection it is significant that Schwartz confirmed that he had
heard that the Union had "50 , 60, 70 percent of the people signed "
m In the case of International Union of Electrical, Radio and Machine
Workers, AFL-CIO v N L.R.B, 418 F 2d 1191, 1196 (C A D C ), the
court said
On the other hand , the Board has the duty of implementing the
statutory policy in favor of collective bargaining , [ and then added in
footnote 15] Some courts forget that Congress has not directed the
Board to be neutral on the question of collective bargaining, but on the
contrary has stated.
"It is declared to be the policy of the United States to eliminate the
causes of certain substantial obstructions to the free flow of commerce
and to mitigate and eliminate these obstructions when they have oc-
curred by encouraging the practice and procedure ofcollective bargain-
ing ...." 29 U S C § 151 (1964 ) (Emphasis added )
"Pervade , vt to become diffused throughout every part of-pervasion,
n -pervasive , adj -pervasively , adv -pervasiveness , n " Webster's
Seventh New Collegiate Dictionary
87 "Outrageous , adA Excessive , extravagant , fanciful, fantastic, violent,
unrestrained , doing grave insult or injury , extremely offensive ... implies
exceeding the limits of what is bearable or endurable " Webster's Seventh
New Collegiate Dictionary.
"The Board held in I.T.T Semi-Conductors, Inc, 165 NLRB 716, that
the threat to close a plant if the Union should be designated bargaining
agent is by itself "sufficient to establish that the Respondent had as its pur-
pose the rejection of the collective -bargaining principle or the desire to
gain time within which to undermine the Union and dissipate its majority "
® It is significant in evaluating Schwartz' deliberate attempts to fob off
union organization that he fired a black union partisan followed by a white
union partisan thus scotching union organization in each group.
70 "We believe that a discriminatory discharge of an employee because
of his union affiliations goes to the very heart of the Act " N L.R.B v
Entwistle Mfg Co., 120 F.2d 532, 536 (C A 4) See also May Department
Stores dibla Famous-Barr Company v N L R B., 326 U S 376; Bethlehem
Steel Company v. N.L.R.B, 120 F.2d 641 (C.A.D C.)
THE LORAY CORP.
whose trial of acquittal Schwartz appeared as a
prosecuting witness; and an employee after being
threatened with discharge was limited in the kind of
union button she could wear. Additional proof that
the employer's unfair labor practices became "un-
bearable" is the fact that the Union filed unfair
labor practice charges and withdrew from the elec-
tion. By election time the chill was complete and
union organization was so to speak frozen stiff.
There is little doubt that the unfair labor practices
were of an aggravated character, massive and
prolific .71
Accordingly the Trial Examiner is convinced and
finds that the unfair labor practices of the employer
were "outrageous." For an informed employer,
after 30 years of national labor policy flowing from
the National Labor Relations Act, now an impor-
tant part of our national heritage, to deliberately
flout the Act, as was done in this case, and as
Schwartz put it, to "spit" on the Union, is indeed
"outrageous."
The Respondent's unfair labor practices were not
matters to be treated lightly but were substantial
unfair labor practices which have an inherent ten-
dency to cause employees to desert union associa-
tion. Such threats, calculated to dissipate union
support, conceptually placed the employees' future
welfare in jeopardy and destroyed the atmosphere
of free choice which the Board seeks to preserve in
its elections. Thus it is evident that the Respon-
dent's failure to accord recognition to the Union
was not inspired by a genuine or good-faith doubt
of the Union's right to represent the employees but
by an intention to repudiate the concept of collec-
tive bargaining and thwart union organization of its
employees. The Trial Examiner is persuaded that
the Respondent had completely rejected the collec-
tive-bargaining principle and that it refused to
recognize the Union in order to utilize the time to
undermine the Union and dissipate its alleged
majority.
Schwartz was well informed. He has harbored a
deep-seated distaste for the Union for 20 years.72
Schwartz was no tyro. He had confronted unions
before.73 That Schwartz might comply with the
Trial Examiner's recommendations or an order of
the Board, if entered, is at best wishful thinking for
Schwartz has already informed the employees that
he might take the Union's charges to the Supreme
Court. A portent of his recidivism is implicit in his
discriminatory discharge of Woods, even after the
General Counsel had issued a complaint against the
Respondent involving similar misconduct.
"The sanctions of the Act are imposed ... for
the protection of the employees." N.L.R.B. v. Vir-
" In a case where the unfair labor practices do not appear to be as inten-
sive, repetitive , protracted , or devastating as in the instant case, the United
States Court of Appeals for Second Circuit ( N L R B v Marsellus Vault &
Sales, Inc., F 2d (October 1 , 1969)), held that the "strong
medicine" of a bargaining order was appropriate " in light of the extent of
the Company's antiunion campaign "
" Schwartz told the employees , " I do not like the Union never have for
581
ginia Electric and Power Company, 314 U.S. 469,
477.
The Trial Examiner is convinced that in order to
protect the employees in their rights guaranteed by
Section 7 of the Act, as well as to deter the Respon-
dent from a repetition of its misconduct , a bargain-
ing order should be entered and so recommends.
Surely a feckless remedy is not contemplated by the
statute.
Guidance for such an order is found in the
Supreme Court's language in N.L.R.B. v. Gissel
Packing Co ., 395 U.S. 575, 610-613:
If the Board could only enter a cease-and-de-
sist order and direct an election or a rerun, it
would in effect be rewarding the employer and
allowing him "to profit from [ his] own wrong-
ful refusal to bargain ," Frank Bros ., supra, at
704, while at the same time severely curtailing
the employees ' right freely to determine
whether they desire a representative . The em-
ployer could continue to delay or disrupt the
election processes and put off indefinitely his
obligation to bargain ; and any election held
under these circumstances would not be likely
to demonstrate the employees' true,
undistorted desires.
... a bargaining order is designed as much to
remedy past election damage as it is to deter
future misconduct. If an employer has suc-
ceeded in undermiming a union 's strength and
destroying the laboratory conditions necessary
for a fair election, he may see no need to vio-
late a cease-and-desist order by further unlaw-
ful activity. The damage will have been done,
and perhaps the only fair way to effectuate em-
ployee rights is to re-establish the conditions as
they existed before the employer's unlawful
campaign. There is, after all, nothing per-
manent in a bargaining order, and if, after the
effects of the employer's acts have worn off,
the employees clearly desire to disavow the
union, they can do so by filing a decertification
petition. For, as we pointed out long ago, in
finding that a bargaining order involved no "in-
justice to employees who may wish to sub-
stitute for the particular union some other ...
arrangement," a bargaining relationship "once
rightfully established must be permitted to
exist and function for a reasonable period in
which it can be given a fair chance to suc-
ceed," after which the "Board may ... upon a
proper showing, take steps in recognition of
changed situations which might make ap-
the last 20 years because it is no good, it does not help you, and it never
will..,
" On this subject he told employees, "I had a plant in [Gainesboro] Ten-
nessee that is a ghost town today because of union . The papers there
printed that I payed [sic] over 5 thousand dollar s in back pay to girls but
that was a damn lie. I have never payed [sic] anyone I will not start now "
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
propriate changed bargaining relationships."
Frank Bros ., supra , at 705-706.
As recognized by the Court of Appeals for the
Fifth Circuit in J. P. Stevens & Co. v. N.L.R.B., 417
F.2d 533, 538, "In order to enable employees to
enjoy these rights, especially in lawful efforts to or-
ganize for collective representation, there are many
instances in which the inescapably negative cease
and desist order will not suffice. Nor is the rein-
statement with backpay order universally and fully
effective. In the first place, this merely assuages the
direct economic injury suffered by the victims of
unlawful discrimination, except to hold out some
hope that the incidents will not recur because each
will be met by this mild sanction, the backpay or-
der's impact on the efforts of the remaining em-
ployees to organize is at best uncertain. "74 The
court quotes in footnote 16: "When an employer
has engaged in massive unfair practices , there can
be a resulting fear of reprisals that must be
dispelled before the situation is restored. See Bok,
The Regulation of Campaign Tactics in Representa-
tion Election under the National Labor Relations
Act, 78 Harv. L. Rev. 38, 140-141 (1964); Note,
The Need for Creative Orders under Section 10(c)
of the National Labor Relations Act, 112 U. Pa. L.
Rev. 69, 90-94 (1963)."
The pertinent question is what remedy shall "`ef-
fectuate the policies of ... this [Act]"' and "must
dispel, compensate for, or at least neutralize, the
frustrating effects of persistent, illegal activity. "75
The Respondent's unfair labor practices
destroyed the employees' freedom of choice by
frightening them into withdrawing their support of
the Union and were of such a nature as to have a
lingering effect and make a fair or coercion-free
election impossible . Moreover , it is illusory that the
lingering coercive effect of these egregious unfair
labor practices can be neutralized by conventional
remedies so as to ensure a fair election . Not only is
a fair election an unlikely possibility but it may be
years before the lingering effect of the Respon-
dent's unfair labor practices will have been dis-
sipated to the extent that the Union may regain
enough strength to satisfy the 30-percent require-
ments for the filing of a representation petition.76
The Circuit Court of Appeals for the Sixth Cir-
cuit has recognized that "a mere cease and desist
order ... may serve only to represent formal
acknowledgment of the law while the offender
maintains full possession of the fruits of its viola-
tion." N.L.R.B. v. Montgomery Ward & Co., 339
F.2d 889, 894.
' There is a substantial danger that the backpay award has degenerated
into "a license fee for union busting " Staff or Subcommittee on NLRB,
House Committee on Education and Labor , 87th Cong, Ist Sess, Ad-
ministration of the Labor -Management Relations Act by the NLRB 2
(Comm . Print 1961) See also Stevens 1, at 303-304."
r' "It bears emphasis that the protected collective activity-and conver-
sely the object of formidable employer opposition-was attempting to or-
ganize. A remedy 'to effectuate the policies of .. this [Act],' § 10(c),
As far as the employees who have been subjected
to the Respondent's unfair labor practices are con-
cerned ("Nor may we forget that the interests to be
protected are primarily those of employees ...."
Philip Carey Manufacturing Company v. N.L.R.B.,
331 F.2d 720, 735), a cease-and-desist order
(which they may never see) and the Respondent's
name attached to a notice "We will not" are not
really an assurance that the Respondent will change
its way of life and suppress its manifested propensi-
ty to engage in unfair labor practices and to frus-
trate the Act's policies and the employees' rights.
An intractable employer, who without compunction
has been found to have been a dissembler and is
unworthy of credence, must engender the belief
that he will, nevertheless, put into practice his
heretofore uttered threats even though he remains
silent . A more effective prophylactic is needed.
Acts are called for, not words. There must be a
valid, viable demonstration. Paltering is not
enough. An order to bargain will provide the
groundwork for such a demonstration.
An order to bargain accompanied by bargaining
in good faith will dispel the effect of the employer's
threats that the Union will never come in the plant
or that it will never talk with the Union or listen to
employee grievances. It will dispel threats that the
employer will never sign a contract or pay health
and welfare benefits, threats that it will cause the
arrest of union handbillers, threats that it will close
the plant before it will deal with the Union, and
threats to chastise union partisans.
Thus, the underlying objective of the Act to
promote collective bargaining will be obtained. Cf.
James B. Cary v. Westinghouse Electric Corporation,
375 U.S. 261, 265.
As is apparent the employees' organizational
campaign for a union of their choice has been frus-
trated. They have been overwhelmed with coercive
representation both as to the futility of choosing a
union as a bargaining agent and the lack of need for
the Union, whereas the Union, as the statute con-
templates , may have emerged as a useful and
worthwhile instrument for collective bargaining, an
eventuality which the employees had the right to
test . To countervail the effect of these representa-
tions of futility and lack of need, a bargaining order
will afford the Union an opportunity to demon-
strate its need and worth to the employees. Such an
order will not interfere with the employees' ulti-
mate redetermination of their desire to be
represented by the Union or the exercise of their
right to refrain from union activities, for after the
employer bargains with the Union for a reasonable
must dispel , compensate for, or at least neutralize , the frustrating effects of
persistent illegal activity " J. P. Stevens & Co v N LR B , supra, 541
'Cf. NLRB v. Wylie Manufacturing Company, 417 F.2d 192, 196
(C A 10) "The Board can consider an employer's unfair labor practices in
the light of their effect on election conditions and if it finds that there is
slight possibility of ensuring a fair rerun election because of past conduct
and that a bargaining order is better protection , it may issue such order."
THE LORAY CORP.
time (which the Trial Examiner fixes as a period of
at least 90 days following the posting of the recom-
mended notice ), the employees may seek a decer-
tification of the Union or can, if that is their plea-
sure, choose another labor organization as their
representative.
Wherefore the Trial Examiner recommends that
the Respondent be ordered to bargain in good faith
with the Union for a period of at least 90 days fol-
lowing the posting of the notice herein recom-
mended . If an understanding is reached within this
90-day period , the understanding shall be embodied
in a signed agreement in writing . The agreement
shall contain a recognition clause, in which the
Union is recognized as the exclusive representative
of all employees in the unit herein found ap-
propriate for the purposes of collective bargaining
in respect to rates of pay, wages , hours of employ-
ment, and conditions of employment . The agree-
ment shall take effect upon its ratification by a
majority of the employees in the unit herein found
appropriate . If there is a dispute as to this fact, it
shall be resolved by the Regional Director for Re-
gion 10.
In the event a contract is not ratified as above set
out, unless during the 90 -day period the Union
presents convincing evidence satisfactory to the Re-
gional Director for Region 10 that the Union has
been designated as the collective -bargaining agent
of a majority of the employees in the unit herein
found appropriate , the order to bargain herein shall
583
not constitute a bar to the resolution of a question
of representation , if one exists within the meaning
of the Act and the Board 's Rules and Regulations,
Series 8 , as amended , provided that during the in-
terim Respondent has complied in good faith with
the Recommended Order.
It is the Trial Examiner 's opinion that a bargain-
ing order is the only efficacious remedy under the
circumstances of this case.
It was wrong for the Respondent to frustrate the
aspiration of its employees to choose a collective-
bargaining agent . This was wrong , for "the avowed
and interrelated purposes of the Act are to en-
courage collective bargaining and to remedy the in-
dividual worker 's inequality of bargaining power . .
" N.L.R.B . v. Hearst Publication , Incorporated,
322 U. S. 111, 126 . The remedy herein recom-
mended corrects in part that wrong and gives vitali-
ty to the right . It serves to effectuate the purposes
of the Act which was the intent of Congress.
"Drawn to deal substantially with substantial
things, the National Labor Relations Act has been
from the beginning , it must continue to be, con-
sistently with its avowed purpose and the language
employed in the Act, broadly construed and as
broadly given effect to cope with and prevent the
mischiefs it was designed to meet and do away
with." N.L.R.B . v. Metallic Building Company, 204
F.2d 826, 828 (C.A. 5), cert . denied 347 U . S. 911.
[Recommended Order omitted from publica-
tion. ]