The Singer Co.

National Labor Relations Board - Board Decisions

Jun 30, 1965

153 N.L.R.B. 922 (N.L.R.B. 1965)

922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 1200 Rialto
Building, 906 Grand Avenue , Kansas City , Missouri , Telephone No. Baltimore 1-7000,
Extension 2733, if they have any question concerning this notice or compliance with
its provisions.
The Singer Company, Wood Products Division and United Broth-
erhood of Carpenters and Joiners of America , AFL-CIO. Cases
Nos. P6-CA-1731, 26-CA-1789, and 26-CA-1823-2-3. June 30,
1965
DECISION AND ORDER
On January 28, 1965, Trial Examiner Robert E. Mullin issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that Respondent did not engage in other alleged
unfair labor practices and recommended that the complaint be dis-
missed as to them. Thereafter, both the Respondent and the General
Counsel filed exceptions to the Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
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 briefs, and the entire record
in this case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations, except as modified herein.
1. In January 1964, the Union began an organizational campaign at
Respondent's plant. The Trial Examiner found, and we agree, that the
Respondent violated Section 8 (a) (1) of the Act when numerous super-
visors thereupon interrogated employees about this campaign and their
reaction to it, and criticized and threatened them with reprisals for
supporting it.'
'In view of our ultimate findings herein , we find it unnecessary to decide whether Re-
spondent also violated Section 8 (a) (1) of the Act when it asked employees to remove
union steward buttons . For the same reason, we find it unnecessary to decide whether
the crew leaders are supervisors within the meaning of Section 2 (11) of the Act or
whether they acted as agents of the Respondent.
153 NLRB No. 82.
THE SINGER COMPANY, WOOD PRODUCTS DIVISION 923
2. At the time of the union activity, Respondent had the following
longstanding rule:
No personal or outside business may be conducted during working
hours and no one is permitted to post or distribute any posters,
bills, notices, or other printed matter on Company property except
as authorized by the Works Manager.
Apart from the wording of the rule, the evidence satisfies us, as it did
the Trial Examiner, that Respondent applied the rule to prohibit union
activity even on the employees' free time. Thus, Foreman Burgess on
several occasions applied it to union activity during lunchtime recesses.
Although Burgess claimed this was due to his misunderstanding of the
rule, he never thereafter advised the employees that the rule did not
apply to their free time. Accordingly, we agree with the Trial Exam-
iner's finding that the employees were left with the clear impression
that the rule applied at all times in the plant. Under established Board
precedent cited by the Trial Examiner, such a broad prohibition vio-
lates Section 8(a) (1).
3. We agree with the Trial Examiner that Respondent violated
Section 8 (a) (3) and (1) by the discharges of C. H. Thomas and James.
L. Warnick.2
4. Employee Lyles was discharged allegedly for soliciting union
membership during work. Lyles engaged in the solicitation while get-
ting a drink of water. Donahue, the employee he solicited, was behind
him at the drinking fountain when he asked Donahue for the union
card Donahue had been given to sign. Donahue said it was still,
unsigned, and Lyles gave him a pencil. Donahue signed and returned
the card. The night foreman, William Timmons, saw the brief trans-
action but said nothing. Shortly after Lyles returned to work, his
foreman, Walker, warned him that he should not do outside business
on company time. No threat of disciplinary action was made. The
next day, however, Walker told Lyles he was being discharged for
doing outside business on company time the day before.
Employee Palmer was discharged allegedly for passing a union but-
ton to another employee during work. Palmer himself had begun
wearing a union button at work on May 15, and there can be no doubt
that his supervisor, as well as others in the plant, knew of his union
affiliation. On May 21, while Palmer was working, another employee
suggested that Palmer give a button to a third employee who was about
4 feet away. Palmer gave him the button. Jack Nance, the production
supervisor, was in the vicinity and saw Palmer passing something.
2 We find it unnecessary to decide whether Respondent also violated Section 8(a) (3)
when it transferred Warnick from the finishing department to department 19.
`924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Nance, he investigated, determined that it was a union
button being passed, and ordered Palmer's supervisor to discharge him.
The pretextual nature of both discharges is clearly shown by the
surrounding circumstances. 11,q-ien Lyles asked Donahue for his union
card, two supervisors who had authority to enforce the rules knew
of Lyles' activities, but neither chose to discipline him. Further, only
one of them thought the violation was even worth a warning. Yet the
next day, without explanation of his change of attitude, the supervisor
who already had warned Lyles against repeating the petty offense told
him he was discharged for that reason. As for Palmer, he took even
less time from his work, and the supervisor who observed the incident
took no action until he discovered that it was a union button which
was passed. As with Lyles, the extreme penalty of discharge was then
invoked.
The pretextual nature of the discharges is also borne out by the tes-
timony of old-time employee and then Supervisor Burgess, who said
that he understood no one had ever been discharged for violating the
rule against doing noncompany business on company time and, further,
no one had ever been discharged for a first violation of any rule.'
Another indication of the Respondent's effort to rid itself of active
union sympathizers was Foreman Watson's response to Platt's question
of how long he would last wearing a union button. Watson replied,
"They'll find some reason to fire you." Thus, we agree with the Trial
Examiner's conclusion that enforcement of the rule as the ground for
the discharges was only a pretext to cover the real motive; namely, an
opportunity to use employees Palmer and Lyles as examples of what
would happen to other employees who insisted on remaining active on
behalf of the Union.
We therefore find, in agreement with the Trial Examiner, that the
real reason for the discharge of Lyles and Palmer was not their minor
first infraction, but rather their active union adherence.
5. Finally, we affirm the Trial Examiner's finding that the discharge
of employee Burlison was for cause and did not violate Section
8(a) (3).
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that Respondent, The Singer Company, Wood
Products Division, Trumann, Arkansas, its officers, agents, successors,
3In line with this understanding as to the Respondent's policy, Burgess twice warned
employee Platt not to talk about the Union, but no discharge was invoked. Similarly,
Lyles' foreman merely warned him but did not discharge him after he solicited Donahue
at the drinking fountain.
THE SINGER COMPANY, WOOD PRODUCTS DIVISION 925
and assigns, shall take the action set forth in the Trial Examiner's
Recommended Order, as so modified :
1. Add the following to paragraph 1(e) of the Trial Examiner's
Recommended Order, and to the fifth indented paragraph of the
Appendix to the Trial Examiner's Decision :
"or from soliciting their fellow employees to join or support the
United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, or any other labor organization."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed by United Brothel hood of Carpenters and Joiners of America,
AFL-CIO, herein called Union or Carpenters, against The Singer Company, Wood
Products Division, herein called Respondent or Company, the General Counsel of
the National Labor Relations Board, by the Regional Director for Region 26 (Mem-
phis, Tennessee), on July 9, 1964, issued a consolidated complaint and notice of
hearing.' The complaint sets forth the specific respects in which it is alleged that
the Respondent violated Section 8(a)(1) and ( 3) of the National Labor Relations
Act, as amended, herein called the Act. The Respondent duly filed an answer in
which it conceded certain facts with respect to its business operations , but denied
all alleged unfair labor practices with which it is charged.
Pursuant to due notice, a hearing was held before Trial Examiner Robert E. Mullin
at Jonesboro, Arkansas, on July 27, 28, and 29, 1964. All parties appeared at the
hearing and were given full opportunity to examine and cross -examine witnesses, to
'introduce relevant evidence , to argue orally at the close of the hearing , and to file
briefs. The parties waived oral argument . After the hearing , the Respondent and
the General Counsel filed able and comprehensive briefs with me which have been
fully considered.
Upon the entire record in the case, and from his observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a New Jersey corporation, with an office and plant located at
Trumann, Arkansas , is engaged in the manufacture of sewing machine cabinets and
other wood products . During the 12-month period preceding the hearing, the
Respondent manufactured , sold, and shipped from this plant finished products valued
in excess of $50 , 000 directly to points outside the State of Arkansas , and during the
same period of time it purchased and received at the Trumann plant materials valued
in excess of $50,000 directly from points outside the State of Arkansas. Upon the
foregoing facts the Respondent concedes , and I find, that The Singer Company, Wood
Products Division , is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent concedes and I find that the Union is a labor organization within
the meaning of the Act.
'Prior to July 9, 1964 , when the Regional Director issued an order consolidating all of
the cases numbered in the above caption , he had issued a complaint on March 25 , 1964, in
Case No 26-CA-1731 and an amended and consolidated complaint on June 30 in Cases
Nos 26-CA-1731, 26-CA-1789, and 26-CA-1823. The chronology of the charges in-
volved in the present amended and consolidated complaint , all of which were filed in 1964,
is as follows- The original charge in Case No. 26-CA-1731 was filed on January 29, the
first amended eoarge on February 24, and a second amended charge on February 26 The
original charge In Case No. 26-CA-1789 was filed on April 6, a first amended charge in
that case on April 13, a second amended charge on April 16, a third amended charge on
Apru 27, a fourth amended charge on May 26, and a fifth amended charge on June 29.
The original charge in Case No 26-CA-1823 was filed on May 25, and the first amended
charge on June 29 . The charges in Cases Nos. 26-CA-1823 -2 and 26-CA-1823-3 were
filed on June 15.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The Respondent employs about 1,400 workers at its plant in Trumann, Arkansas.
In January 1964 the Union began an extended organizational campaign among these
employees. The complaint alleges that during the ensuing months the Respondent
discriminatorily terminated C. H. Thomas, Sharon D. Burlison, Gene Lyles, James L.
Warnick, and Stanley J. Palmer, that it maintained and enforced an invalid no-
solicitation rule, and that by various other acts and conduct during this period it
engaged in interference, restraint, and coercion of the employees in order to dis-
courage membership in, or assistance to, the Union. All of these allegations are
denied by the Respondent.
B. The union campaign; alleged interference, restraint, and coercion;
findings and conclusions with respect thereto
1. Sequence of events and conclusions as to alleged
violations of Section 8 (a)( I)
T. L. Carlton, a representative of the Carpenters, initiated the union campaign in
mid-January of 1964, by contacting numerous employees at the plant gates and
visiting them in their homes in the Trumann area. Employee Larry Warnick testified
that about January 30, LaPrelle Smith, foreman of the yards and watching depart-
ment, questioned him as to whether a union organizer had been to his house and
when Warnick replied in the negative, Smith suggested, "We had better leave well
enough alone, hadn't we." During this same period, Kenneth D. Farmer, another
employee, asked Ernest Martin what he thought of the Union. According to Farmer,
Martin's response was, "Well, it seems to me like it would be a good way to get the
plant closed down." Early in April, some of the employees started wearing union
buttons while at work. When Warnick and a coworker, Elmer Platt, reported to the
plant on April 10, the latter asked David Watson, foreman in the T & M department,
how long he and Warnick would last if they continued to wear union buttons
According to Warnick, Watson grinned and told them "They'll find some reason to
fire you."
Sometime later "no-union" buttons began appearing at the plant Alex Elrod, an
employee, testified that early in June he told Union Organizer Carlton that the "no-
union" buttons were bigger than the Carpenters button and that he wanted something
larger to wear. Carlton thereupon gave Carpenters steward buttons to Elrod and
several other employees, including Joe Simpson, David Jones, and Junior R. Spence.
On about June 3 these employees reported for work with the latter pinned to their
clothing. They were promptly brought into the office of George D. Rives, Jr., their
division manager, who asked that they remove the buttons on the ground that there
was no union in the plant and that for them to be wearing "steward" buttons while
at work constituted misrepresentation on their part. Rives assured them that they
could continue to wear their regular union buttons, but that they would be compelled
to take off the larger "steward" button.2
Elmer Platt testified that shortly after he and Warnick started wearing union buttons
on the job, their foreman, Charles Burgess, warned him that he was not to pass out
any union cards on company time. According to Platt, subsequently, during a lunch-
time recess about April 17, Van Parish, a coworker, came up to him and while Burgess
was nearby took a union card from Platt's shirt pocket. According to Platt, Burgess
immediately came forward, insisted that Parish give the card back, and, after he did
so, warned Parish that he should have nothing further to do with Platt. During this
same period and also during the noon hour when the employees were having lunch,
Platt was engaged in a discussion of the Union with Joe Lacey, a coworker. Accord-
ing to Platt, Burgess told him that he "could fire me for talking about the union,"
and that "I was a family man and I needed a job, and . . he hated to see me lose my
job there, but ... if he caught me talking in the aisle again, he would fire me." 3
There was testimony that after the employees in one department began wearing
-their union buttons to work, they were subjected to a degree of supervision that con-
stituted harassment. Thus, Elmer Platt testified that on an occasion in mid-April,
shortly after he began wearing a union button, he was singled out, first by his foreman,
a Rives' testimony as to this incident was In subtantial accord with that of the employees.
a Burgess ' testimony about these incidents largely corroborated that of Platt He
endeavored to excuse his conduct on the ground that he misunderstood the Respondent's
rule on solicitation . This will be discussed at greater length below.
THE SINGER COMPANY, WOOD PRODUCTS DIVISION 927
Charles Burgess, for criticism that he was looking up from his work and then, almost
immediately, by three other supervisors who arrived to join in the criticism. These
were William H. Bishop, foreman of the leg line in the machinery department, Dude
Wilcoxon, a supervisor in that department, and Floyd Manary, manager of the entire
division of which machinery was one department. According to Platt, the assembled
supervisors told him that he was not to look up while at his post and that if he did so
he would be fired. Burgess testified that Manary was the first to notice that Platt was
being careless in his work that morning and that after he (Burgess) had gone to
Platt's work station, Manary suggested that Burgess call Bishop and Wilcoxon. On
cross-examination, however, Burgess conceded that in a pretrial affidavit he had
averred that it was at his suggestion that Wilcoxon and Bishop were brought to the
scene.
Larry Warnick, another employee on the same production line as Platt, testified
that approximately 5 minutes after starting to work on the morning of April 10, the
date on which he began wearing a union button, Burgess came up to him and stated
that "if he saw me say one word to anybody, he was going to have to let me go, or fire
me, it was one of them there things." Warnick further testified that about 7:30 that
morning Burgess returned to the production line and began checking his work to
determine whether the legs on which he was working were "out of square," and that
shortly thereafter Burgess was joined by Foreman Bishop, Supervisor Wilcoxon, and
Division Manager Manary all of whom proceeded to criticize Warnick's work.
According to Warnick, about an hour later Foreman Bishop escorted him to the
personnel office where one of the personnel officers, in Bishop's presence, warned him
that if he could not run the cabinet legs "square" the Company would have to let him
go. Warnick credibly testified that throughout several years of employment at the
Respondent's plant this was the first time that he had ever been taken to the personnel
office for a reprimand by any foreman or supervisor.
Respondent's management representatives, Manary, Bishop, and Burgess testified
that Platt was told only that his working habits were careless and that he should be
more alert to any violation of the safety rules in the plant. On the other hand, Bishop
conceded that in his 9 years at the plant he could recall no other occasion, other than
the one about which Platt testified, when a group of four supervisors joined in deliver-
ing a reprimand to a single employee. Burgess, who was present when both Platt
and Warnick were admonished, could recall no similar instance at the plant when as
many as four representatives of management converged on a single employee to
deliver a warning about his work. Burgess further testified that at this time, out of
the 50 to 75 employees on his production line, only about 4 other employees, in addi-
tion to Platt and Warnick, were wearing union buttons. On the basis of the foregoing
evidence, it is my conclusion that the testimony of Warnick and Platt was credible.
It is my further conclusion that Burgess' statement to Platt, on the morning that the
latter appeared wearing a union button, to the effect that Platt would be discharged
if he said "one word to anybody," was coercive and a violation of Section 8(a) (1) of
the Act. The ostentatious grouping of supervision to criticize these two employees
immediately after their open acknowledgement that they were union adherents was
equally coercive and a further violation of Section 8 (a)( 1) of the Act.4 Although
LaPrelle Smith, Ernest Martin, David Watson, and Charles Burgess denied that they
had voiced any threats in the conversations attributed to them by Warnick, Farmer,
and Platt, it is my conclusion that the latter were the more credible. Accordingly, it
is my further conclusion that the Respondent violated Section 8(a) (1) of the Act by-
(1) Foreman Smith's interrogation of Warnick as to whether a union organizer had
been to the employee's home; (2) Foreman Martin's declaration to Farmer that the
Union "would be a good way to get the plant closed down"; (3) Foreman Watson's
comment after being questioned as to how long an employee could survive if he wore
a button that "They'll find some reason to fire you"; (4) Foreman Burgess' action in
compelling employee Parish to return an authorization card which he had secured
from Platt during the noon hour when the employees were on their own time; and
(5) Foreman Burgess' threat, voiced to Platt, after overhearing that employee discuss
the Union with a coworker during a luncheon recess, that he could fire Platt "for
talking about the union." It was likewise a violation of Section 8 (a) (1) of the Act
for Division Manager Rives to compel Alex Elrod and his associates to remove their
union steward buttons, as found above.
4 Lecil D. Evans, another employee, testified that about June 1, when he started wear-
ing a union button, Foreman Bennie Crews "got on" to him and watched him all the time.
Crews denied that he had engaged in any harassing of this or any other employee. Evans
was not an impressive witness and his testimony was both inconclusive and lacking in
particularity . For this reason, I will recommend that paragraph 12 of the complaint
be dismissed insofar as it alleged that Bennie Crews "harassed known union adherents."
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 Status of the crew leaders
The General Counsel alleged that Garland Rouse, Harold Barker, James Baker,
and others whom the Respondent classified as "crew leaders," in fact, had the status of
supervisors within the meaning of the Act, and that, through various acts and conduct
on their part, the Respondent further violated Section 8 (a) (1).
From the testimony of witnesses for both the General Counsel and the Respondent
it is undisputed that the crew leaders spend from 50 to 65 percent of their time on
manual work along with the rank-and-file employees. The rest of the time the crew
leader is occupied getting stock for the use of employees on his gang and otherwise
engaged in keeping the production line moving. Axel Elrod testified that Rouse, his
crew leader, kept the production workers supplied with hinges, screws, and other
material from the stockroom and "when he ain't doing that, he's working on the line.
He [also] relieves boys that's going to the restroom." Stanley J. Palmer testified that
Barker, his crew leader, "worked about 50 percent of the time and the rest of the time
he was looking to see that everybody had stock . . . . [W]hen we would get behind in
various stocks .... He would help us get caught up." In this connection it is likewise
undisputed that the crew leaders are authorized to move an employee from one posi-
tion on the assembly line to another place on the same line. Employees in the produc-
tion department are paid on a "gang rate" whereby the hourly pay for all of the
employees is dependent upon their productivity. The crew leader receives the gang
rate plus 5 percent. In practice, this results in the crew leader being paid about 6
cents an hour more than the rest of the gang.5
The Respondent denied that the crew leaders had any power to hire employees and
there was no evidence to the contrary. The Respondent further denied that the crew
leaders had any authority to discharge or effectively to recommend the termination of
an employee. At one point in his testimony, Foreman Bishop appeared to concede
that the crew leader at least had the authority to make an effective recommendation
for the discharge of an employee. Also, Larry Carter, a witness for the General
Counsel who had once been a crew leader, testified that J. W. Blasingame, his super-
visor, told him that he had the authority to fire any ineffective worker. He conceded,
however, that he had never actually exercised such powers. Blasingame denied ever
having told Carter that a crew leader had the authority to discharge anyone. Carter
had been crew leader for only 3 or 4 months when he was demoted early in 1964, after
which time he became active in the Union. His testimony on this subject was not
persuasive. For this reason I do not credit Carter's statement that during the short
period that he was a crew leader Blasingame told him that he was vested with author-
ity to discharge anyone. Neither was Bishop's statement, noted above, diapositive,
for his testimony, as well as that of others, made it clear that although the crew
leader's recommendation might be given serious consideration, the final decision was
actually made by the foreman or supervisor, and then only after an independent
investigation made by the latter. In the same connection there was also testimony
that employees made requests for time off to their crew leader. On the other hand, it
was clear that the latter had to relay these requests to the foreman who, in fact, made
the decision as to whether the employee request would be granted. Similarly, there
was testimony that Crew Leader Rouse accompanied W. A. Harrold, assistant super-
visor in his department, during the daily audit, or inspection, of work produced on
Rouse's assembly line. However, there was no evidence that any decisions as to the
quality of this work were made by anyone other than Harrold. On the contrary, it
was apparent that such decisions as Harrold made were based on his own independent
investigation.
In view of the foregoing findings, it is my conclusion that the General Counsel
has not established by a preponderance of the evidence that the Respondent's crew
leaders are vested with sufficient authority to have the status of supervisors within the
meaning of the Act. Cumberland Shoe Corporation, 144 NLRB 1268, 1270; Plastics
Industrial Products, Inc, 139 NLRB 1066, 1068; Proctor-Silex Corp., 131 NLRB 57,
58. Furthermore, in view of the evidence here, there appears no ground for the con-
tention, also urged by the General Counsel, that the crew leaders were at least
"agents" of the Respondent. J. P. Stevens Company, Exposition Plant, 147 NLRB
1133; Cabinets, Inc., subsidiary of Air Control Products, Inc., 130 NLRB 1378,
footnote 1. Accordingly, the Trial Examiner will recommend that so much of the
5 Foreman Bishop illustrated the wages paid the crew leaders by using as an example
the gang which earned $123 per hour. In this case the gang members would actually
be paid $ 1 25, the minimum wage, and the crew leader would get an additional 5 percent
on the latter figure , thereby receiving slightly more than $ 1.31 per hour
THE SINGER COMPANY, WOOD PRODUCTS DIVISION 929
complaint as alleges that the Respondent violated the Act through the conduct of
Crew Leaders Garland Rouse, Charles Burgess,6 Bill Connoers, Harold Barker, and
James Baker, be dismissed.
C. The Respondent's no-solicitation rule
1. The rule and its application
For sometime the Company has had in effect the following rule, applicable to all
employees:
No personal or outside business may be conducted during working hours and no
one is permitted to post or distribute any posters, bills, notices, or other printed
matter on Company property except as authorized by the Works Manager.
The General Counsel contends, and the Respondent denies, that this rule and the
manner in which it was enforced constituted a violation of Section 8(a) (1) of the Act.
Earlier herein it was found that during a lunch hour in April, when Foreman
Charles Burgess observed employee Parish secure a union card from his coworker
Platt, Burgess compelled Parish to return the card, warned Parish that he should have
nothing further to do with Platt, and thereafter warned the latter that he could be
fired for talking about the Union but that he (Burgess) hated to see Platt lose his job
because he knew that the employee had a family and needed work. At the hearing,
counsel for the Respondent sought to elicit testimony from Burgess to the effect that
his conduct on this occasion arose from a misunderstanding as to the no-solicitation
rule and because he did not realize that in practice the rule was not applied to an
employee's nonworking time. Burgess' testimony in this connection, however, did
not include any evidence that either Parish, Platt, or any other employee was ever
informed that the foreman had misapplied the rule Very obviously, the employees
were left with the clear impression that the rule applied at all times in the plant.
The Board and the courts have held that an employer may not prohibit his employ-
ees from distributing union cards or literature on their own time in nonworking areas
of the plant unless he can show special circumstances making the rule necessary in
order to maintain production or discipline. Stoddard-Quirk Manufacturing Co., 138
NLRB 615-623; Walton Manufacturing Company, 126 NLRB 697, 698-699, enfd
289 F. 2d 177 (C.A. 5); Southwire Company, 145 NLRB 1329; N.L.R B. v. United
Aircraft Corp. and Whitney Aircraft Div., 324 F. 2d 128, 130-132 (C.A. 2), cert.
denied 376 U.S. 951.
The Respondent does not contend that special circumstances justified the imposition
of the rule in question. Standing by itself, the prohibition in the rule against trans-
acting personal business or distributing printed matter during working hours is, of
course, valid. From the above findings, however, it is apparent that Foreman Burgess
applied the rule to the activities of Platt and Parish when they were off duty and on
nonworktime. This action tends to prove that working hours, as the phrase is used in
the rule, includes the activity of employees during nonworking time when they are
not on duty and when they are in nonwork areas. Such an application of the rule
renders it invalid. Stoddard-Quirk Manufacturing Co., supra; Miller Charles and
Company, 148 NLRB 1579; Minneapolis-Honeywell Regulator Company, 139 NLRB
849, 851-852. The rule is equally invalid on another ground. This is the require-
ment that the approval of the works manager be secured for any distribution of
"posters, bills, notices, or other printed matter ...." The Board has held that such a
limitation is invalid because it proceeds on an erroneous assumption that an
employer can predicate the exercise of a Section 7 right upon its own authorization."
J. R. Simplot Company Food Processing Division, 137 NLRB 1552, 1553; General
Aniline & Film Corporation, 145 NLRB 1215; Idaho Potato Processors, Inc., 137
NLRB 910, 911; Johnston Lawn Mower Corporation, 110 NLRB 1955, and 107
NLRB 1086, 1087. For these reasons, it must be held, and I so find, that the rule in
question violates Section 8 (a) (1) of the Act.
2. The discharge of Lyles and Palmer
Gene Lyles was first employed by the Respondent in May 1963. For a time he was
on the production line and thereafter worked as a timekeeper. Late in April 1964 he
was returned to production work on a "clipper," a machine that was used in cutting
9
Burgess was a crew leader until April 1, 1964, when he was promoted to foreman.
The Respondent does not contest its responsibility for his actions and conduct subsequent
to his promotion
796-027-66-vol. 15 3-6 0
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wood veneer. Lyles signed a union authorization card about April 23. Early in May,
he gave an authorization card to Donahue, a coworker. On May 6, upon learning
that his associate had lost that card, Lyles gave him another authorization and Dona-
hue promised that he would sign the card and return it to Lyles the next day. The
following day, while on duty at the plant and when getting a drink at the water
fountain, Lyles asked Donahue, who was also there but off duty at the moment, for
the card. On seeing that it was unsigned, Lyles offered his associate a pencil and
Donahue thereupon signed the card. William Timmons, the night foreman, was
nearby but said nothing. Shortly thereafter, Dewey Walker, Lyles' immediate
superior, came up to him and said, "Gene, I think you are doing other business on
Company time .... I may be wrong about you, but let's don't be doing it." Apart
from this caution by the foreman, Walker made no reference to any disciplinary
action and said nothing further. Not long after Lyles began work the following day,
Foreman Walker came up to his machine and told the employee that he was being
discharged for having done "other work on Company time" the day before. Lyles
was then escorted to the personnel office and terminated.
Stanley J. Palmer was first employed by the Company in 1954. Thereafter, except
for two short breaks in his employment and 3 years spent on duty with the United
States Navy, Palmer was continuously employed by the Respondent until the day he
was discharged on May 21, 1964. Significantly, at one point during his service and
for a period of about 8 months Palmer was a member of a special repair crew which
the Company sent to its retail outlets throughout the United States for the purpose
of repairing sewing machine cabinets.
Palmer was acquainted with the Union's organizing campaign from the start. On
May 14 he went to a union meeting and the following day he came to the plant wear-
ing a union button along with a number of the other employees. On May 21, during
the middle of his shift, a lady employee suggested to Palmer that he give a union
button to McMasters, another employee on the line. Palmer thereupon tossed a
Carpenters' button to McMasters who was about 4 feet away. His action was
observed by Jack Nance, production supervisor. Nance testified that after he had
seen Palmer hand something to another employee he questioned the latter as to what
it was and when he learned that it was a union button, he instructed Palmer's foreman
to discharge him. About 2 hours later, Foreman Melvin Dycus told Palmer that he
was being fired, effective immediately, for "soliciting during working hours."
The General Counsel contends that the discharge of Lyles and Palmer was in viola-
tion of the Act because it was based on an invalid no-solicitation rule, because that
rule was discriminatorily applied, and because the true motive for their termination
was the union activity of these two employees.
As found earlier herein, the no-solicitation, no-distribution rule in question was
invalid on its face. Further, there was evidence to support the contention that it was
discriminatorily applied. Numerous witnesses, including supervisors, testified that
various fund raising drives for the Boy Scouts, the Red Cross, and other charitable
causes were openly conducted during working hours at the plant. There was likewise
uncontradicted testimony that collections for flowers in cases of illnesses and funerals
were conducted among the employees while at work and with no opposition from
supervision. During this period also, many of the employees were wearing "no-
union" buttons. David Jones, an employee on the printed cabinet line, testified that
during the early part of June, his foreman, Joe Orr, had a supply of these "no-union"
buttons while on duty. At this time Jones himself was wearing a Carpenters button.
He testified that during the course of this particular day, Orr, in a bit of horseplay,
put one of his "no-union" buttons on a broomstick and pushed it up to where Jones
was working.? Similarly, Bobby Joe Simpson and Junior Spence, two other employ-
ees, testified, without contradiction or denial that they saw Crew Leader Garland
Rouse passing out "no-union" buttons during working hours at the plant. It is also
of some significance that during the period from February through July 196d, the
Respondent distributed several letters to its employees, over the signature of General
Manager Joe Crozier, in which the Company strenuously urged that its personnel
did not need a union. In these letters Crozier referred to the union organizers as
"Hutcheson's hirelings ... eager to get their hands on your $50,000 in Union dues"
and characterized the "union agents who are still hanging around Trumann ..." as
medicine men "peddling union `medicine' which they claim will cure anything that
ails you on your job." Some of these letters were mailed to the employees at their
7 Orr denied having participated in this incident His denial, however, as well as most
of his testimony, was given in a very belligerent manner which impressed me as being
less than frank. For this reason, Jones' testimony as to this incident is accorded
greater credence.
THE SINGER COMPANY, WOOD PRODUCTS DIVISION 931
homes, but some of them were distributed to the employees on the job.8 The General
Counsel conceded that the Respondent did not exceed the permissible limits of Section
8(c) in its letter campaign against the Union. Nevertheless, the freedom with which
the Company circulated these letters to the employees in contrast with the rigidity
with which it enforced its no-distribution rule against Lyles and Palmer puts in ques-
tion its claim to having enforced the latter rule impartially.
Earlier herein, it was found that Foreman Burgess violated the Act when he told
employee Elmer Platt that the Respondent's no-distribution rule forbade solicitation
at the plant during the noon hour and that for violation of the rule Platt could be
immediately dismissed. At the hearing, Burgess admitted that, other than Lyles and
Palmer, he knew of no one who had ever been discharged for violating the rule on
soliciting. He further conceded that he knew of no one else who had ever been dis-
-charged for breaking a plant rule for the first time.
From the foregoing evidence it is clear that the Respondent's rule against solicita-
tion was disparately applied. Thus, whereas the no-union proponents carried on their
activities with impunity, Platt was warned that passing an authorization card to a
coworker during his free time could result in his immediate dismissal and Lyles and
Palmer, for similar offenses, were abruptly fired, without warning and in the middle
of their shift. Insofar as the record discloses, neither had ever been disciplined
before. Palmer, in particular, had an excellent work record of many years' standing.
Under these circumstances, and in view of the findings set forth above, it is my con-
clusion that the dismissal of these two employees, allegedly for violation of the
Company's no-solicitation rule, was a pretext, and that the real motive for their
precipitate termination was the Respondent's desire to eliminate two well-known union
supporters from the payroll and thus discourage membership and activity on behalf
of the Carpenters. The discharge of Lyles and Palmer, therefore, violated Section
8 (a) (3) and (1) of the Act. I so find.
D. The discharges of Thomas, Warnick, and Burlison; contentions of
the parties; findings and conclusions with respect thereto
1. C. H. Thomas
Thomas started working for the Respondent in 1959. After about 4 years he
voluntarily quit for a short while. In September 1963, he returned to work and
remained in the Respondent's employ until his discharge in April 1964. When reem-
ployed in 1963, Thomas was assigned the job of pushing woodboxes in a department
of the plant under Foreman Edsel Kent. Thomas' duties required that he provide
woodboxes for those who were operating the ripsaws in the department so that scrap
lumber could be thrown in the boxes and then taken to a disposal area. At the latter
point the scraps of waste lumber were ground to chip cord in a machme commonly
referred to in the plant as the "hog." In addition to disposing of the waste lumber
for the ripsaw operators, Thomas was responsible for keeping the lengthy main aisle,
as well as an adjoining throughfare, clear of idle trucks and woodboxes.9
Thomas became interested in the Union in mid-January 1964, when he met Union
Organizer Carlton outside the plant gates. There he secured an authorization card
which he promptly signed and then began urging his coworkers to sign cards. Shortly
thereafter when Carlton was again at the plant entrance, Thomas engaged him in a
conversation about his efforts. At the time, Foreman LaPrelle Smith was a short
distance away. About a week later Thomas met Carlton again, this time at a point
about a half block from the plant. During the course of their conversation, Foreman
Jerry Hendrix was across the street After Thomas turned to leave the union repre-
sentative, Hendrix followed him. According to Thomas, Hendrix asked, "What was
them guys wanting, wanting you to join the Union?" Thomas testified that he
declined to answer the question on the ground that the subject of his conversation
with Carlton was confidential. According to Thomas, notwithstanding his effort to
avoid the subject, Hendrix questioned him as to whether he thought the Union would
get in the plant and why Thomas thought so. Hendrix conceded having had a con-
versation with the employee at the time and place in question, but he denied having
asked Thomas as to whether the organizers had asked him to join the Union. Upon
direct examination, Hendrix endeavored to establish that he and Thomas were family
friends. On cross-examination, however, he conceded that his actual acquaintance
8 E g , Bobby Joe Simpson testified , credibly and without contradiction , that Crozier's
letter dated July 14, 1964 , was handed to him by Assistant Supervisor W. A. Harrold
while he was at work on the production line.
6 The main aisle in that department was about 150 feet long and the ripsaws were
located on each side.
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the employee was a very casual one Hendrix was obviously less than frank in
his account of the conversation with Thomas, as a result of which the testimony of
the latter is credited as the more accurate version of what occurred.
Thomas testified that about the middle of February, Foreman Edsel Kent
approached him and stated:
Thomas, I don't believe I ever did talk to you about this Union ... I've talked
to most of these others, but I don't believe I have ever talked to you . .
Thomas I would like to know what you think about this Union . . . . I ain't
asking you now just to get to fire you....
According to Thomas, he thereupon became involved in a conversation with the
foreman in which he did not answer specifically the questions about his own sympa-
thies, but in which he expressed the view that the Union had won much support
because of certain company practices in the past. Kent testified that he had had a
conversation with the employee at the plant about this time and that it was about the
Union. According to the foreman, however, it was Thomas who initiated the con-
versation and that he himself never questioned the employee as to his views on the
Union. While on the stand Thomas gave the appearance of a very shy, retiring, soft-
spoken individual. That Thomas would have initiated the conversation in question
seems most unlikely to me. Thomas' own recollection of the entire conversation may
not have been entirely accurate. On the other hand, it was completely straightforward
and more convincing than Kent's denials
Thomas further testified that on an occasion in March when his work took him into
an area over which Foreman Smith had jurisdiction, the latter commented, while
looking at Thomas, "Yonder goes one of them there union men . . I think he's been
talking out of school." Thomas' testimony was never denied. Smith appeared as a
witness, but was asked no questions about this incident
On April 8 Thomas learned from Carlton that the Union would hold a meeting on
the night of April 9. Thereafter Thomas spread the word of this meeting among the
employees. The following day, Foreman Kent sent for Thomas and when he arrived
asked him whether he had been told about not keeping trucks out of the main aisle.
Thomas conceded that he had been so instructed but stated that it was difficult to
keep them out of the aisle at all times because so many people kept moving them
about. Kent then told him that another employee had knocked some stock off a truck
and damaged about $50 worth of it. Kent thereupon told Thomas that he was being
discharged and escorted the employee to the personnel office for his terminal inter-
view. While there, Kent described Thomas as a good worker but one who would
have to be discharged for not having kept trucks out of the main aisle. When ques-
tioned by the personnel officer as to this charge, Thomas explained that it was impos-
sible to spend all his time keeping trucks out of the aisle. According to Thomas, it
was necessary to help the hog operator in keeping that machine operating so that he
could empty his woodboxes promptly in order to have enough of them available for
the collection of scrap lumber. When the personnel officer declared that it appeared
that Thomas had been helping the hog operator when he should have been doing his
own job, Thomas replied that he had been carrying out his duties in the same way for
a long while and that no one had complained.
Although Kent testified that Thomas' primary job was keeping the aisles clear of
trucks and that the employee had no reason to be at the hog, there was substantial
testimony that Thomas' practice had been encouraged or condoned for many months
Junior D. Adams, the employee assigned to operate the chip cord machine known as
the hog, testified that from the time that Thomas began work as boxboy he had been
helping him whenever the hog was clogged or stopped up. According to Adams, the
hog stops up from 3 to 30 times a day and that a span of a few minutes to as much as
half an hour is required to get it back in operation. Adams testified that the boxboy
assists, when he is there with scrap lumber, by starting up the belt and letting the
materials come into the machine slowly while Adams himself pushes the scraps down
into the machine. According to Adams, Thomas had been helping him since Septem-
ber 1964. Adams further testified that at no time did any foreman or supervisor ever
tell him that Thomas was not supposed to give him this assistance.
Kent testified that on the day that Thomas was discharged an employee named
Brown was pulling a fork jack and that he misjudged the distance between the jack
and a truck that was in the aisle. As a result Brown struck the rear end of the truck
and damaged some of the materials on it. According to Kent, he immediately sent
for Thomas and informed him that he was being discharged for not keeping the
trucks out of the aisle On cross-examination, Kent testified that he told Brown that
he should not have attempted to eet by the truck in quesion and th2t the fork jack
operator admitted that he had badly misgauged the distance between his machine and
THE SINGER COMPANY, WOOD PRODUCTS DIVISION 933
the truck. On the other hand, Kent conceded that Brown was not even reprimanded,
much less discharged, for his involvement in the accident.1° Further, on cross-
examination, Kent conceded that he had seen trucks in the aisles ever since Thomas
had been working as a boxboy and that on only one occasion had he told Thomas not
to stay at the hog, notwithstanding the fact that he had seen him there several times.
Kent likewise testified that whereas at any given time there were from 50 to 60 trucks,
carts, and wooden boxes in his department, he could attribute only 3 accidents to
Thomas and that figure included the one on April 9 involving the fork jack operator.
The other two accidents involved a female employee named Betty Banks and another
which concerned Kent himself While on the stand, Thomas testified freely about
these accidents. According to Thomas, sometime in February, Banks sustained a
minor injury when he pushed a wood cart into the aisle and bumped into her.
Thomas testified that later, in a discussion with Kent, the latter told him that the
accident was not his fault. On the other occasion when Kent himself was allegedly
bumped by a wood cart, Thomas testified that at the time of the incident the foreman
made light of the matter and declared that he himself (i.e., Kent) "ought to have
been out of the way."
On cross-examination, Kent conceded that he could only recall two or three times
when he had spoken to Thomas about keeping the main aisle clear and that he had
noted each occasion in his log. Although Kent testified that he had been keeping a
log since early in 1963 the first notation in this record as to Thomas appeared in
February 1964. It is significant that this was during the same period that Kent inter-
rogated Thomas as to what his views were on the Union. Notwithstanding Kent's
-denial that he, either then or later, ever learned of Thomas' sympathy or affiliation
with the Carpenters, it is my conclusion, on the basis of the above findings, that the
foreman was well acquainted with Thomas' association with Union Organizer Carl-
ton. It is apparent that Thomas' work was not outstanding and that the Respondent
might have chosen to terminate him many months earlier, solely for his mistakes.
Kent, for example, testified that the matter of Thomas leaving trucks in the aisle had
been a problem almost from the time Thomas became the boxboy in September 1963.
However, "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 Company, 237 F. 2d 521, 525 (C.A. 8)
On the basis of the foregoing findings, particularly the Respondent's knowledge of
Thomas' identification with the incipient union movement, the abruptness of his dis-
charge, and the unconvincing reasons advanced to explain it, I conclude and find that
the real motive for this employee's summary dismissal was his identification with the
Carpenters. Although the Respondent may have had some cause for dissatisfaction
with Thomas' work, as the Court of Appeals for the Third Circuit once observed in
a similar case, "it apparently became intolerable only after he had joined the union."
N L R B. v. Electric City Dyeing Co, 178 F. 2d 980, 983.
2. James L. Warnick
Warnick was first employed by the Respondent in 1960. After working about a
year he voluntarily quit, but returned to the Company several months later. After
another period of months he again voluntarily left the Respondent's employ, but in
January 1963, he returned to work in the plant and remained there until his dis-
charge on May 20, 1964. During his last period of employment and until April 1964
Warnick was in the finishing department where he spent most of his time operating
a sanding machine that was known as a jitterbug.
In January, Warnick learned of the union campaign. On or about January 24, his
supervisor, Maurice Kelly, engaged him in a discussion of the organizational move-
ment and asked him, "Wouldn't you rather have things like they are now than have
a Union." 11 That very evening when Union Organizers T. L. Carlton and Donald
Lindsey visited Warnick at his home, he signed an authorization card for them.
About 4 days later, Foreman LaPrelle Smith questioned Warnick as to whether any
union representatives had been to see him When the employee replied in the nega-
tive, Smith cautioned him that if any organizers came to his home, Warnick should
10 During his examination , Kent was asked the following question and gave the answer
which appears below-
Q. You didn ' t say [to Brown ], the next time be more careful. If you are driving
a truck you ought to be able to go through You didn't tell him that, did you?
A. I don't recollect
"The quotation is from Warnick 's credited testimony which was undenied Kelly did
not appear as a witness.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not talk to them and should tell them to leave. A few days later when Carlton and
Lindsey were passing out circulars and meeting employees at the plant gate, Warnick
stopped to talk with them. As he did so, he noticed that Foreman Smith was in the
vicinity and only a short distance away. About March 11, J. W. Blasingame, fore-
man in the finishing department, came up to Warnick and observed, "I don't believe
the Union will get in." When Warnick made no comment, Blasingame added,
"Singer knows more than you think." To this, Warnick rejoined, "I don't doubt it." 12
Sometime during this period, Warnick began keeping a notebook record of com-
ments made in the finishing department. This practice was observed by his superiors.
Larry Carter, his crew leader at the time, testified that late in March, Blasingame told
him that Warnick was writing notes in a book and that Carter should make life diffi-
cult for the employee. Arnold Mullins, an employee who worked with Warnick,
testified that about the middle of March, Blasingame came to him and asked if he
realized that Warnick was keeping "a little black book." According to Mullins,
Blasingame declared at the time that Warnick's practice "ain't going to do him no
damn good ...." Carter testified that about April 2 he went to both Blasingame and
George Rives, the latter being the division head, to tell them that he had learned that
Warnick was a union member.13 That same day Warnick and several other employ-
ees were at the plant gate where they engaged in a conversation with Carlton, the
union representative. During the conversation Warnick secured a supply of union
cards from Carlton for distribution among his fellow employees. Warnick testified
that, again, Foreman LaPrelle Smith was nearby.14
On April 3, Blasingame told Warnick that he and one of the female employees were
being transferred to the organ line. Warnick asked Blasingame whether his work
was satisfactory and was told "Your work is fine. I've got no complaints on your
work .... Mr. Kelly [supervisor of the division] just said transfer Warnick and Erline.
I don't know the reason." According to Warnick, after being on the organ line 1 day,
Blasingame transferred him to what is known as department 19 where his foreman
was Gerald Speakman.15 On April 9 Warnick attended a union meeting and received
a Carpenters button which he wore to work the following day. Shortly after he
reported for work, Foreman Speakman ordered Warnick to accompany him to the
personnel office where Speakman reported that the employee's production was low.
There he was warned that a study would be made of the production rate which would
be required on the job he was then performing. Warnick testified credibly, and with-
out contradiction, that this was the first time while in the Company's employ that he
had been summoned to the personnel office for a reprimand. When first transferred
into Speakman's jurisdiction, Warnick was put to work assembling frames. He was
kept on this job only a few days, however, when he was assigned to operating a jig-
saw for an equally brief period. Thereafter, he received a succession of various jobs,
most of them lasting for only a day or two each, and some of which included sweeping
floors or cleaning a sink. From April 29 to May 1, Speakman assigned Warnick to
a 3-day period of training on frame construction. At the hearing, Speakman con-
ceded that until completion of this training, Warnick had no steady job. Thereafter,
he assigned the employee to assembling frames. Warnick testified that Speakman
constantly criticized his work and on May 20, in the middle of his shift, Speakman
told him that he was being discharged because his production rate was too low.
Warnick testified, credibly and without contradiction, that while in the finishing depart-
ment he had never been criticized for low production. He also testified that while
there he had worked overtime, but that this opportunity was never given him in
Speakman's department.
12 The quotation Is from Warnick's testimony Blasingame did not deny the comments
attributed to him. He testified that most of the conversation with the employee on this
occasion concerned the arrival at the plant on that day of a field examiner from the
Board's Regional Office.
13 Earlier herein, Carter was found to have been it none too reliable witness
On the
other hand, his testimony as related above was not contradicted or denied by either
Blasingame or Rives Blasingame admitted that he knew Warnick was a union member
and that he told Carter that Warnick's notebook would do the employee no good.
14 Smith did not deny or contradict this testimony by Warnick
15 Blasingame testified that Warnick was not actually transferred out of his (Blas-
ingame's) department until he reported to Speakman. According to Blasingame, prior to
that date, Warnick's work In other departments was characterized on the company records
as "loan labor."
THE SINGER COMPANY, WOOD PRODUCTS DIVISION 935
Speakman's testimony, in explanation of the reasons for his termination of War-
nick, was neither frank nor convincing. He conceded that Warnick had no regular
job in his department until April 29, that Warnick frequently had to wait for mate-
rials from other employees while operating a jigsaw, and that Warnick was moved
from one job to another as often as two or three times a day. Speakman testified
that about March 25 he started keeping notes on any reprimands he administered to
the employees under him. This notebook refers to reprimands that were given War-
nick on April 7, 8, 16, 17, and 22, but none thereafter. Speakman's notebook had
a reference to only one other employee besides Warnick and this referred to only a
single occasion. Some of the alleged shortcomings attributed to Warnick by his fore-
man did not withstand much scrutiny. Thus, on April 8 the notebook reference to
the employee charged him with having worked only 6 hours instead of 71/2. At the
hearing, however, Speakman conceded that on this particular day Warnick had had
an accident-sawdust got in his eyes and the 1i/2 hours not on the job had been spent
by the employee in going to the plant nurse and securing safety glasses Whereas
Speakman admitted that, not until completion of the training period on May 1 did
Warnick have a regular job as a frame assembler, his notebook has no reference what-
soever to any deficiencies of this employee after April 22. Speakman further admitted
that no employee in his section, other than Warnick, wore a union button.
On or about June 16, Arnold Mullins testified that Foreman J. M. Blasingame came
up to him and a coworker, Celis A. Massey, and asked whether Mullins would bring
him a copy of the Union's latest letter to the employees. During the course of the
conversation, Blasingame examined the union pin which Massey was wearing at the
time and then declared, "Well, I guess you boys remember Warnick, don't you?"
When Mullins and Massey acknowledged that they did, Blasingame went on, "He
was a good old boy, but he just talked too much " 16
The General Counsel alleges both that Warnick's transfer out of the finishing depart-
ment and his eventual discharge were discriminatory. These allegations are denied
in their entirety by the Respondent.
The Respondent offered evidence that at the time of Warnick's transfer out of the
finishing department there was a shortage of work on that production line and that
this was the reason that Warnick's transfer was necessitated. On the other hand, no
explanation was offered as to why Warnick was selected for involuntary reassignment.
At the time, several other employees had pending requests for transfers out of the
department. Celis Massey, for example, testified that prior to Warnick's departure
he had asked for a transfer several times, but to no avail. Blasingame conceded that
early in April other employees had asked for transfers, but that he said nothing to
them prior to transferring Warnick. On the day that Warnick was transferred,
Blasingame reassigned two women out of the finishing department, but Warnick was
the only male employee so affected.
Blasingame was well aware of Warnick's union sympathies and the penchant of
the latter for keeping a notebook record of activities in the finishing department.
Supervisor Kelly and Foreman Smith had talked with Warnick about the Union,
Smith had advised him not to let the organizers into his home, and thereafter he had
seen Warnick disregard this counsel and consult with Carlton and Lindsey at the
plant gates. While in the finishing department no one criticized Warnick's produc-
tion or his workmanship. Nevertheless, at a time when other employees were seeking
a transfer, Blasingame singled him out for involuntary reassignment to Speakman's
section. On this record, it is my conclusion that Warnick's transfer was not the result
of low production, poor work, or blind chance, but rather because, as a well-known
union supporter, insofar as Blasingame was concerned, "he just talked too much."
For this reason the transfer was discriminatory and by such conduct the Respondent
violated Section 8(a) (3) of the Act.
Speakman's explanation for his subsequent treatment of Warnick in department 19
was completely lacking in credence. On the basis of the findings set forth above, it
is my conclusion that, notwithstanding Speakman's testimony, Warnick's abilities and
efforts as a worker had not deteriorated, but that Speakman endeavored by frequent
changes in his job assignments and constant criticism to compel his departure. When
this treatment did not accomplish the desired result, and Warnick, the only union
button wearer in his section, continued to report for work, Speakman abruptly termi-
16 The quotation is from the credible testimony of Massey which was corroborated by
Mullins. Blasingame did not deny the substance of this conversation, but endeavored to
explain that his statement about Warnick had no reference to the union activities in which
the employee engaged. The interpretation of his remark which Blasingame offered at the
hearing, however, was completely lacking in conviction.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nated him in the middle of a shift for alleged low production. On these facts, I con-
clude and find that the real motive for Warnick's termination was not his purported
deficiencies as an employee, but rather his persistent adherence and support of the
Union Through Speakman's action in dismissing this employee for this reason, the
Respondent further violated Section 8(a) (3) of the Act. Finally, I find that the
Respondent also violated Section 8 (a) (1) of the Act when Foreman Smith interro-
gated Warnick about the union organizers and cautioned him that they were to be
ordered from Warnick's home if they ever appeared there.
3. Sharon D. Burlison
Burlison was first hired by the Company in 1959 and thereafter remained in its
employ until he was discharged in April 1961 for poor production. He was rehired
in November 1963 and was assigned to work on the printed cabinet line.
In January 1964 when the organization campaign was inaugurated Burlison signed
a union card. He attended a union meeting in March and another organizational
meeting that was held on April 9. He testified that at some time during this period
he solicited two to three of the other employees to sign cards. On April 16 he started
wearing a union button while at work. On April 21 he was discharged.
The cabinets produced by the employees on the printed cabinet line were inspected
in a section known as the daily audit area. On April 21, two cabinets in the inspec-
tion area had various defects which were attributed to Burlison. One cabinet had
a screw with sharp edges on it caused by improper use of a screwdriver. The other
had dents caused by hitting the cabinet with the wooden handle of a mallet, rather
than with its rubber head as the tool was designed to be used. Burlison conceded that
he had worked on these cabinets. He also conceded that there had been a number
of other complaints about his work during the preceding weeks. Thus, on April 20,
the audit disclosed a cabinet on which Burlison used an oversized screw that had
caused a bulge in the veneer. About April 16, W. A. Harrold, assistant department
supervisor, reprimanded Burlison because one of his cabinets had what was known
as a "high head hinge." Burlison acknowledged that the cabinet was his and that the
hinge had been installed improperly. Burlison testified that prior to this time he had
received very few reprimands. However, Harrold testified that on April 10 he had
reprimanded this employee for dents and scratches on his cabinet leaf covers that
were attributable to Burlison's not properly placing pads between the cabinet and the
leaf cover. Harrold further testified that about March 9 he reprimanded Burlison for
turning out a cabinet with a high screw in the leaf cover. Burlison did not deny
having been reprimanded for the various deficiences which Harrold attributed to him.
In his prehearing affidavit which was received in evidence, Burlison also conceded that
he had been warned in December 1963 and on March 27 and April 1 and 7, 1964,
about defective hinges.
The General Counsel alleges that Burlison was discharged, not for defective work-
manship, but for his identification with the Union from and after April 16 when he
began wearing a Carpenters button to work. It is true that Burlison was one of about
six employees in the department who in mid-April began wearing buttons.17 On the
other hand, the extent to which he engaged in other union activity was unclear for
there were numerous conflicts between Burlison's testimony at the hearing and the
sworn statements he made in extensive pretrial affidavits which were received in evi-
-denee. The General Counsel endeavored to establish that Burlison's alleged short-
17 There was also testimony by Bobby Joe Simpson that after this group of employees
started wearing the union insignia they went to Ezra Maglothin , the department manager,
to tell him that they were working for the Union but that in the meantime they planned
to do their jobs as they always had. According to Simpson , Maglothin replied , "Well,
don't talk to me about it . . . just go ahead and do your jobs and don't talk union on
-Company time . . . . It will be like it always was ; just one mistake and that's it."
Maglothin 's testimony as to this conversation was in substantial accord with that of
Simpson, except that he denied having threatened the men that in the event any one of
them made a single mistake that individual would be terminated . Significantly, on
cross-examination , Simpson conceded that Maglothin told them, "If you do your work
you don't have to worry about it [their union affiliation ] " Simpson's recollection as to
this incident was not completely persuasive . For this reason, and in view of Maglothin's
denial , it is my conclusion that during the conversation between the department man-
ager on the one hand and Simpson and his colleagues on the other , Maglothin did not make
any threats , veiled or otherwise , that support of the Union could result in an abrupt
discharge for a single mistake
THE SINGER COMPANY, WOOD PRODUCTS DIVISION 937
comings were minor compared with the volume of work that passed along the pro-
duction line. Burlison, however, admitted having been responsible for most of the
mistakes which were attributed to him. In one of his pretrial affidavits he also con-
ceded that in 1961 and long before the advent of the Union he had been discharged
by the Company for poor production. Although the matter is not entirely free from
doubt, on the basis of the present record, it is my conclusion that with respect to this
alleged discriminatee the General Counsel failed to prove by a preponderance of the
evidence that Burlison was terminated for his union activities rather than his poor
workmanship.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that the Respondent be ordered to cease and desist therefrom
and take certain affirmative action of the type conventionally ordered in such cases
as provided in the Recommended Order below, which I find necessary to remedy and
to remove the effects of the unfair labor practices and to effectuate the policies of
the Act.
Having found that the Respondent discriminatorily discharged C. H. Thomas on
April 9, Gene Lyles on May 8, James L. Warnick on May 20, and Stanley J. Palmer
on May 21, 1964, I recommend that the Respondent be ordered to offer them imme-
diate and full reinstatement without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of earnings that they may have suffered
from the time of their discharges 18 to the date of the Respondent's offer of reinstate-
ment. The backpay for the foregoing employees shall be computed in accordance
with the formula approved in F. W. Woolworth Company, 90 NLRB 289, with inter-
est computed in the manner and amount prescribed in Isis Plumbing & Heating Co.,
138 NLRB 716, 717-721. It will also be recommended that the Respondent be
required to preserve and, upon request, make available to the Board or its agents,
payroll and other records to facilitate the computation of backpay due.
As the unfair labor practices committed by the Respondent are of a character
striking at the root of employee rights safeguarded by the Act, it will be recommended
that the Respondent be ordered to cease and desist from infringing in any manner
upon the rights guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the Union is a labor organization,
all within the meaning of the Act.
2. By discriminating in regard to the hire and tenure of employment of C. H.
Thomas, Gene Lyles, James L. Warnick, and Stanley J. Palmer, thereby discouraging
membership in the Union, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The General Counsel has not proved by a preponderance of the evidence that
the Respondent. (1) violated Section 8(a) (3) and (1) by the termination of Sharon
D. Burlison; or (2) interfered with, restrained, or coerced its employees in the exer-
cise of the rights guaranteed by the Act, except by the acts and conduct found herein
to have been violative.
'a Earlier herein it was found that the transfer of James L Warnick to department 19
early in April 1964 was discriminatory and a violation of Section 8(a) (3) The backpay
for Warnick, therefore, must be so computed as to make him whole for any wages lost
as a result of his discriminatory transfer, as well as any loss of earnings incurred from
the time of his subsequent discharge.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record, and pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is recommended that the Respondent, The Singer Company, Wood
Products Division, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, or any other labor organization of its employees, by dis-
criminating in regard to their hire, tenure, or any terms or conditions of their
employment.
(b) Harassing or transferring employees because of their exercising rights specified
in Section 7 of the Act.
(c) Interrogating employees regarding or in connection with their union member-
ship, sympathies, or activities in a manner constituting interference, restraint, or
coercion within the meaning of Section 8 (a) (1) of the Act.
(d) Threatening employees with discharge or any other form of reprisal because
of their membership in, sympathy for, support of, or activity on behalf of any labor
organization.
(e) Promulgating, maintaining, or enforcing any rule prohibiting employees dur-
ing their nonworking time from distributing union literature in nonworking areas on
company property.
(f) In any other manner interfering with, restraining, or coercing employees in
the exercise of their right to self-organization, to form, join, or assist any labor organi-
zation, to bargain collectively through representatives of their own choosing, to engage
in concerted activities for the purposes of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
2. Take the following affirmative action which is necessary to effectuate the poli-
cies of the Act:
(a) Offer C. H. Thomas, Gene Lyles, James L. Warnick, and Stanley J. Palmer
immediate and full reinstatement to their former or substantially equivalent positions,
-without prejudice to their seniority or other rights and privileges, and make them
whole in the manner set forth in the section of the Decision entitled "The Remedy."
(b) Notify the above-named employees 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
of 1948, as amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary or appropriate
to analyze the amount of backpay due.
(d) Post at its plant in Trumman, Arkansas, copies of the attached notice marked
"Appendix." 19 Copies of said notice, to be furnished by the Regional Director for
Region 26, shall, after being duly signed by the Respondent's representative, be posted
by it immediately upon receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other material.
(e) Notify said Regional Director, in writing, within 20 days from the receipt of
this Decision and Recommended Order, what steps the Respondent has taken to
comply herewith.20
It is further ordered that the complaint be dismissed (a) insofar as it alleges that
the Respondent discriminatorily terminated Sharon D. Burlison, and (b) insofar as
it alleges any unfair labor practices, other than as herein specifically found.
"In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" In the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order".
211n the event that this Recommended Order be adopted by the Board, the provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
BERNARDIN, INC . 939
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership of our employees in, or activities on
behalf of, United Brotherhood of Carpenters and Joiners of America, AFL-CIO,
or any other labor organization, by discharging or otherwise discriminating
against any of our employees.
WE WILL NOT harass or transfer any employees because of their exercise of
rights specified in Section 7 of the Act.
WE WILL NOT unlawfully interrogate our employees concerning their union
activities or sympathies.
WE WILL NOT threaten our employees with discharge or any other form of
reprisal because of their membership in, sympathy for, support of, or activities
on behalf of, United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, or any other labor organization.
WE WILL NOT promulgate, maintain, or enforce any rule prohibiting our
employees during their nonworking time from distributing union literature in
nonworking areas of the plant.
WE WILL NOT in any other manner interfere with, restrain, or coerce employ-
ees in the exercise of the rights to self-organization, to form, join, or assist the
above-named, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in 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 offer C. H. Thomas, Gene Lyles, James L. Warnick, and Stanley J.
Palmer immediate and full reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority or other rights and privileges
enjoyed, and make them whole for any loss of pay suffered as a result of dis-
crimination against them.
THE SINGER COMPANY, WOOD PRODUCTS DIVISION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 746 Federal
Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No. 534-
3161, if they have any question concerning this notice or compliance with its provisions.
Bernardin , Inc., and District 153 of The International Association
of Machinists, AFL-CIO. Case No. 25-CA-2061. June 30, 1965
DECISION AND ORDER
On April 27, 1965, Trial Examiner George A. Downing issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged 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
affirmative action, as set forth in the attached Trial Examiner's Deci-
153 NLRB No. 91.