Raven Industries, Inc.

National Labor Relations Board - Board Decisions

Sep 19, 1969

178 N.L.R.B. 527 (N.L.R.B. 1969)

RAVEN INDUSTRIES, INC.
Raven Industries , Inc. and Allied Industrial Workers,
AFL-CIO. Case 18-CA-2706
September 19, 1969
DECISION AND ORDER
By MEMBERS FANNING, BROWN , AND ZAGORIA
On June 10, 1969, Trial Examiner Alba B.
Martin issued his Decision in this proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that is cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. He also
found that Respondent had not engaged in certain
other unfair labor practices and recommended that
the allegations of the complaint pertaining thereto
be dismissed. Thereafter, Respondent and the
General Counsel filed exceptions to the Trial
Examiner's 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.
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 briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations' of the
Trial Examiner with the modification noted below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified above, and hereby orders that the
Respondent, Raven Industries, Inc., Sioux Falls,
South Dakota, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified.
'We find merit in the General Counsel's exceptions to the Trial
Examiner's make whole recommendations We, accordingly. substitute for
the Trial Examiner's backpay remedy for all diseriminatees in this case the
Board 's general and usual requirement that the discriminatecs be made
whole for all losses suffered by reason of the discrimination against them
The determination of the extent of these losses is to be left to the
compliance stage of this proceeding
TRIAL EXAMINER'S DECISION
STATFYTENT OF ME CASE
ALBA B. MARTIN, Trial Examiner- This proceeding.
with all parties represented. was heard before me in Sioux
1-ails. South Dakota, on April 15 and 16, 1969, on
527
complaint of the General Counsel and answer of Raven
Industries, Inc., herein called Respondent and the
Company.' The principal issues litigated were whether
Respondent terminated three employee. Marcia Steward,
Caroline Illian, and Erma Newcomer, because of their
union activities and in order to discourage activity and
membership in Allied Industrial Workers. AFL-CIO.
herein called the Union After the hearing the General
Counsel and Respondent filed helpful briefs which have
been duly considered.
Upon the entire record and my observation of the
witnesses, I hereby make the following
FINDINGS AND CONCLUSIONS
1. THE BUSINFSS OF RESPONDENT
Respondent, a South Dakota corporation having its
principal office and place of business in Sioux Falls, South
Dakota. where it has three plants,' is engaged in the
manufacture. research and development of fiber glass
tanks, parachutes, balloons and outer wear clothing.
During the year prior to the issuance of the complaint on
Feburary 14, 1969, Respondent purchased goods and
services directly from places outside South Dakota valued
in excess of $5 million. During the same period
Respondent sold goods and services valued in excess of
$12 million, which were produced in South Dakota and
shipped directly by Respondent to places outside of South
Dakota. Respondent admitted, and 1 find, that at all times
material herein Respondent has been and now is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
Respondent has some 700 employees, about 500 of
whom are women Its largest division is the sewn products
division in which approximately 200 employees work in
Sioux Falls. Many of these are sewing machine operators
If. THE LABOR ORGANIZATION INVOLVED
Allied Industrial Workers, AFL-CIO, is now and has
been at all Limes material herein a labor organization
within the meaning of Section 2(5) of the Act.
inn. THE UNFAIR LABOR PRACTICES
A. Self-organization of Eniplovees and Respondent's
Opposition thereto
initial efforts at self-organization by employees
occurred in May 1968.' In late May Respondent's
president enclosed an antiunion letter to all employees
with their paychecks This letter told employees, among
other things, that no union can make or sell products or
offer security, and asked employees what they knew about
the union , what is the union promising , what does it
deliver, how much would it cost, and do the employees
need it. The letter contained no threats or promises of
benefit
When the union representative they had contacted
moved out of town, the employees tried to organize the
employees into the Union beginning in middle June
'The Union filed the charge on December 12, 1968, and the first
amended charge on February 3, 1969
'Respondent has another plant in Huron, South Dakota, which is not
herein involved
'All events herein occurred in 1968
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Present at a supervisory meeting in May were Vice
President Christensen , David Stavig, production manager
of the sewn products division , and the sewing supervisors
numbering about six. The supervisors were asked by
Christensen or Stavig "to listen for anything that was said
about the union [the first union] and not to discuss it with
the girls, and to bring back what we heard to the' office."
At least one supervisor . Violet Flaskey, responded in
subsequent days by reporting to Stavig that union
meetings were being held; information she had learned
from "hearing the girls talk , discuss them."
At one of the plants in Sioux Falls , called "the tunnel,"
on October 9. the day before the election mentioned
below , Vice President Christensen told the small group of
employees there (about four or five ) that "he thought that
all of us would go along with the Company , that we really
didn 't need any union , and that we were doing a fine job
on our work ." He "complimented us on how well
everybody was doing their work , that when we knew we
were about done with our work we didn ' t slack off or
anything , we kept right up with our quota ." This was the
credible and uncontradicted testimony of Erma
Newcomer.
At a secret election conducted by the Board on October
10. 190 votes were cast against the Union and 93 votes
were cast for the Union.
During the preelection period the few employees
working in the tunnel discussed the Union freely among
themselves . Dan Hudson said that he saw no need for the
Union , that he didn't think they needed one, and that
anybody who was for the Union "was looking for
trouble " Shortly after the election Hudson said that those
who had voted against the Union "knew which side their
bread was buttered on."
The General Counsel contended that Hudson was a
supervisor within the meaning of the Act and that these
remarks constituted threats of reprisal in violation of
Section 8 (a)(1) of the Act. As Hudson's remarks related
solely to the thinking of the employees and referred in no
way, expressly or impliedly , to what Respondent would
do, I find that they were views , arguments , or opinions
protected under Section 8(c) and not violations . Under the
circumstances it is not necessary to decide whether
Hudson was a supervisor under the Act.
I conclude from all the above evidence in this section A
that Respondent opposed the self-organizational efforts of
its employees , that for its own purposes Respondent
gathered what information it could concerning these
efforts, that Respondent sought to defeat the Union at the
election . and that in all of this Respondent did not violate
the law
B. Union Activity of Steward , Illian , and Newcomer,
and Company Knowledge thereof
Mrs Marcia Steward, a 23-year old sewing machine
operator, was one of the most active employees, and
possibly the most active employee, in both union
movements. She made the initial contact with the first
union in early May, and was the principal connecting link
between the employees and the Union beginning in
mid-June. With union representatives she visited
employees at their homes, tried to get cards signed with
some success. She held union meetings in her home. In
general she promoted the unions. All of this went on
throughout the summer, from May until September.
Caroline Illian, also, was very active in the
self-organizational movement. She telephoned employees
at their homes and spoke to them during lunches and
work breaks, trying to get them to sign up for the Union.
She went to union meetings and coffee parties.
Illian credibly testified that not many "girls" were
trying to get the Union in; that "the rest didn't want to
become involved all of a sudden"; and that most of the
"girls" with whom she had lunch and coffee "didn't say
anything" about the Union, "they were afraid to say
anything." "I more or less did all of the talking ....''
At the election Erma Newcomer served as an observer
for the Union. This occurred the day after Vice President
Christensen had expressed his thought to the tunnel
employees that all of them would go along with the
Company, as has been seen above, and was clear proof to
the Company that Newcomer was going with the Union.
The night before the election Newcomer had telephoned
Christensen that the Union had asked her to serve as its
observer. Under all the circumstances it is clear that
Respondent knew of Newcomer's assistance to the Union.
Production Manager Stavig testified that his first
knowledge that Steward was active in the union movement
was in mid-August. which was prior to the election of
October 10 and prior to the discharge of Steward and
Illian on November 19. It is certain, however, that
Respondent knew of Steward' s union activity prior to
mid-August. In late May, while Steward was still working
for the first union. Vice President Christensen called
Steward into his office and asked her if she was unhappy
and several times asked her if there was "anything you
want to tell me." The record suggests as the reason for
Christensen's questioning of Steward, nothing but an
effort to get Steward to talk about the union movement
then going on and the causes for it Knowledge was
further proven by the fact that on election day
Respondent was told by the Union that Steward was a
standby union observer at one of the polling places. In
addition to all of this Steward's active role in the union
movements could not have failed to come to Respondent's
knowledge through its news-gathering system set up by
Christensen in May among the supervisors.
The record shows also that Respondent knew of Illian's
sympathy for the Union. She was a steady luncheon
companion of Marcia Steward. On election day she
entered the reception room of the building where the
polling place was with Steward. Personnel Manager
Conradi was in the reception room, and obviously saw
them together, while they waited around the reception
room for a while until they could go up to the third floor
to vote. As they proceeded to the voting place they passed
another supervisor, who nodded to Illian as they passed
her. hurther. Respondent's news-gathering system must
have revealed to Respondent that one employee, Illian,
was doing "all of the talking" about the Union among the
employees with who she worked and associated.
C. Respondent's Policies and Procedures Concerning
Discipline and Discharge
An employee information booklet handed to new
employees by the Company had a heading, "Regulations
Governing Discipline and Discharge" (subject to approval
by an officer of the Corporation). Under a subhead.
"Dismissal Policy," Respondent told the new employees.
Few people have been fired by the management of
Raven. Whenever it has become necessary to discharge
an employee, it has been done only after careful
consideration of all factors involved and for one of the
following reasons:
RAVEN INDUSTRIES, INC. 529
1. Dishonesty.
2. Intoxication on the job.
3. Gross insubordination with superiors.
4. Misconduct in connection with his work.
5. Continued neglect of assigned duties.
As long as there is work available your job at Raven is
never in jeopardy if you make sure you are never in
violation of any of the above reasons or any policies the
Company may adopt.
In addition Respondent has, presumably for the use of
management, a policy and procedures + handbook. Its
current "Regulations Governing Discipline and
Discharge" set forth some 28 "infractions" for which
penalties arc prescribed For many infractions the
regulations provide one or two warnings before discharge.
The only infractions possibly relevant here are the
following
2. Wasting time, loitering, soldiering, leaving place of
work during working hours.
[Warnings for first and second offense. Discharge for
third offense.]
23. Deliberately restricting or interfering with output.
[Discharge for first offense.]
25. Failure to return from lunch or rest periods on
schedule.
[Warnings for first and second offenses, discharge for
third offense.]
Although Respondent had this written material for both
employees and management concerning discharge,
Respondent made no mention of it as a basis for any
discharge, to any dischargee or at the hearing
D. Discharge of Steward and Illian
At the time of their discharge, on November 19,
Steward and Illian were on layoff status. They were
among the 12 out of the 35 on the Aspen ski jacket line
who were laid off August 5 for failing to make the
minimum quantity on that line. Of the 13 laid off 4
including Steward and Illian were discharged on
November 19 and the remaining 9 were recalled to work
sometime after December 3. The record contains no
evidence as to why the two other than Steward and Illian
were terminated.
The only reason given in the termination letters to
Steward and Illian was that Respondent was terminating
them "rather than continuing to hold you on an indefinite
lay-off." Personnel Manager Conradi gave only this
reason to Illian in a postdischarge conversation in
December. At the hearing Respondent explained that in
October and November it had some 30 employees in
layoff status. It would not appear that laying off five
greatly reduced that number. Further, by the hearing
herein on April 15 all of these but the five terminated had
been taken back or given an opportunity to return. The
record showed that when these termination letters were
written Respondent was really not considering continuing
the layoff status of anyone.
At the time of the discharge of Steward and Illian
Respondent knew that "We were going to be needing
more people within the near future for other contracts."
In fact for the sewn products division in Sioux Falls
Respondent hired a number of employees in November
and December 1968, and approximately 36 employees
between about January 1, 1969, and the hearing herein on
April 15, 1969. These 36 were hired "for a great variety of
different kinds of sewing."
As Respondent knew when it wrote the termination
letters to Steward and Illian that it was going to hire
more employees shortly, as Respondent recalled all but
the four terminated, and as Respondent gave specific
alleged reasons at the hearing for the terminations, I
conclude that the reason given in the termination letters
and by Conradi to Illian after the discharge had no
connection with the real reason for the discharges. The
record contained no reason favorable to Respondent as to
why Respondent did not in these letters, and Conradi
verbally to Illian, give its alleged real reasons for the
discharges.
As stated at the hearing by Production Manager
Stavig, Respondent's reason for discharging Steward and
Illian was that "We felt [they] had not done what [they]
could have done for us on the Aspen ski jacket line, that
[they] deliberately held back on [their] production and
consequently did not deserve another chance to work with
our Company." Stavig admitted that Respondent never
talked to either of these two employees concerning this
serious charge and conclusion. He stated that he and
Personnel Manager Conradi felt that "The entire group
was not doing what we had hoped they would. We had to
evaluate on our own as to whether individuals had
deliberately held back. We didn't speak to either girl "
Nor did their supervisor, Vivian Bosch. or any other
official, speak to them about their alleged holding back.
Respondent's experiment with the Aspen ski jacket.
which it started making in June, was a fiasco. It hoped to
make 25,000 units but abandoned the project in October
after 5,000 units. It cost Respondent much more to make
each unit than it had estimated. In the summer a small
delegation even went to the Aspen Ski Wear Company in
Denver, Colorado, where the same jacket was made, to
try to get some ideas for improving production.
Supervisor Bosch of the Aspen line, one of those who
went to Denver, explained that
Some of the things we tried the way they were doing it,
but they were a plant that had been sewing these jackets
many more years than what we had and, of course,
were much more advanced, and, of course, there were
many things that we couldn't apply to our small group,
an inexperienced group
One idea they learned in Denver was "to sew the pocket
in first before they finished the whole pocket." Bosch
never relayed this idea to Steward or Illian, who were
sewing zipper pockets, though her testimony indicated she
assumed others on the line, supervisors or sewers, had.
Having started the project in early June. in early July
Respondent went to an individual quota system for each
girl in an effort to improve production. Finally
Respondent conducted a test week the week before the
August 5 layoff, and told the line at a meeting on July 27
that that test would determine their future rates of pay
and whether they met the minimum standard "to hold her
job." This latter phrase clearly meant hold the job on that
line, because no one was discharged August 5 and those
who failed to meet the minimum standard that week were
laid off, not discharged. Respondent did not contend
otherwise.
Production Manager Stavig testified that work on the
commercial lines, which included the Aspen line. was a
finer type of sewing than on parachutes. Respondent's
entire experience shown in this record proved that
Respondent's sewers, inexperienced in this fine type of
sewing, were unable to do the work on the Aspen line in
530 DECISIONS OF NATIONAL LABOR RELATIONS BOAR D
sufficient quantity to make it a profitable venture for
Respondent Yet only Steward and Illian and two others
were discharged out of the 35 on the line. It is evident
that discharging these two, or these four, did not cure
what was wrong and that Respondent did not think that it
would In fact the Aspen line was abandoned shortly
before their discharge.
Respondent was selling the jacket it was making the
test week to Aspen Wear for S5-$6, and it cost
Respondent $16 to make it. In view of Respondent's
heavy financial losses on the Aspen line for several
months, had Respondent really believed as it contended
that Steward and Illian were intentionally holding hack.
Respondent would surely have spoken to these two
employees and either discharged them long before (under
item 23 of its Regulations), or been satisfied that their
recalcitrance would cease.' On the preponderance of the
evidence in the entire record I find Respondent's defense
concerning its belief as to Steward's and fllian's lack of
effort unconvincing and unworthy of credence.
On their assignments on military work during their
entire previous employment history with Respondent,
Steward and Illian had demonstrated that they were
among Respondents best sewing machine operators. For
increased production Steward had been given step by step
raises from $1 25 per hour to $1.85 per hour, and Illian
from $1.25 per hour to $1.80 per hour Stavig testified
that Steward was one of Respondent's best sewers, and
had been the top producer of 60 at gore sewing on the
Mark 24 parachute. Illian was a very good seamstress.
better than average, but not in the same category with
Steward On numerous previous occasions, where there
were layoffs because the work on a given line was ending,
Steward had been reassigned rather than laid off. Neither
Steward nor Illian had ever been laid off before
Respondent could have retained these two operators,
one excellent and one very good, had it wanted to. by
reassigning them to military work where they had proven
their excellence at high quantity work, and where they had
been most of the time prior to their assignment to the
Aspen line. Stavig testified that at the time of the hearing
Respondent was making five different kinds of military
parachutes and a bag for a parachute. As has been seen
Respondent hired some new employees during November
and December and 36 between January 1 and April 15 for
a great variety of different kinds of sewing-which must
have included some military sewing. In any case, as of the
time of the hearing Respondent had some 200 employees
in the sewn products division, of whom only 35 were
shown to be in commercial work-on the Snowmobile line.
Steward credibly testified that on the Aspen line she
tried to make her quota but was unable to do so. that "I
tried the best I could to get the quality that I thought I
should have, and I just couldn't make it." I find it
impossible to believe that as good a sewer as Steward did
not try to make her production quota. particularly during
the test week. She understood Vice President Christensen
to say on July 27 when he announced the test week, that
those who did not make their quotas would be discharged,
and she did not impress me as one who would deliberately
court discharge by intentionally failing to make her quotas
'instead, when they were laid off Stavig told Illian and implied to
Steward that they would be called back
'I am not dissuaded from these findings by the testimonial opinion of an
acting supervisor , Mrs Buffett , that the union girls on the line weren't
really trying to do their job and that she tried to get the union organizer to
Respondent's deliberately-holding-hack defense was
presented primarily against Steward's discharge, and then
Stavig testified that "it was the same situation with
Illian " The frailty of this defense is particularly patent as
applied to Illian's discharge Illian worked on the Aspen
line only 2 or 3 weeks, during which she worked on more
than one lob: she was steady on the upper pocket job only
the last week, the test week, during which she increased
her production every day, as Stavig admitted to her he
knew when he laid her off on August 5. Thus she had
almost no training period on the line and went through
the test week on virtually a new assignment, one of the
hardest assignments on the line, as Stavig also admitted to
her he knew. Stavig volunteered to her that some sewers
find it "hard to sew on commercial where they can sew on
military" and added that "it they ever got a military
contract I would be called back." Although Illian did not
make her quota during the test week and while she was on
that line, it cannot be concluded on this evidence that she
was intentionally holding hack or that Stavig thought she
was. Under these circumstances Respondent's defense
cannot be credited
Conclusions- Upon the preponderance of the evidence
in the entire record considered as a whole I conclude that
Respondent discharged Steward and Lilian in order to get
rid of two active and outspoken prounion employees,
thereby discouraging further union activity in the plants in
Sioux Falls, Respondent thereby violating Section 8(a)(3)
and (1) of the Act. Respondent had won the election, but
it knew that as long as these two leaders were still in the
plants there was always the possibility of the reemergence
of the union spirit. An attempt to cover up this real
reason for the discharges is the only credible explanation
in the record as to why Respondent never told these
employees why they were being discharged, and as to why
it gave them the pretext that it was reducing the number
on layoff and then offered as its principal defense at the
hearing the unsupported and unproven defense that they
were intentionally holding back production. Had they been
intentionally holding back Respondent would have
discharged them rather than lay them off on August 5 and
would have told them the true reason for Respondent's
action. Thus 1 conclude that this reason was also a
pretext
E. Discharge of Erma Newcomer
As has been seen above, the day before the election
Vice President Christensen told the tunnel employees
including Newcomer that he thought all of them would go
along with the Company and that they were doing lire
work and kept up with their quota. That evening
Newcomer telephoned Christensen and told him she had
been asked to serve as a union observer. The following
day she served as the union observer at the "balloon
plant" where the tunnel employees voted.
But for a fire in the tunnel on December 3 the evidence
suggests that Newcomer would not have been discharged.
The lire closed down operations in the tunnel for several
months. The following day, December 4, Respondent had
the tunnel employees down at the main plant to make
tape recordings of their versions of the incident.
While Hudson and Bren were at the main plant on
December 4 they took the initiative to speak to Stavig
speak to an unidentified girl who was "being obnoxious " By their
demeanor before me it does not seem to me that either Mrs Steward or
Mrs Illian was the obnoxious one
RAVEN INDUSTRIES , INC. 531
about Newcomer. They expressed to him the hope that
when operations in the tunnel resumed he would send out
some girl in place of Newcomer. They didn't ask that
Newcomer be discharged, but only replaced. Stavig
indicated he would try to find some work for her in the
main plant and they left with the feeling that someone else
would be sent out to the tunnel Hudson then told
Newcomer they would probably have something for her to
do at the main plant. Instead of giving her other work
Stavig discharged Newcomer the following day. The
record contains no evidence that Stavig tried to find other
work for her before deciding to discharge her
In the severance interview Stavig told Newcomer he
was discharging her because of her attitude, that he didn't
"like her attitude." This was the first time any company
official had ever said anything to her about her attitude.
She replied that her attitude was the same then as it had
been for the past 2 1 /2 years, the length of time she had
been with the Company. He suggested that she sign a
paper that she was quitting. She refused. He said then
they would terminate her She asked if it was because of
the Union. He replied in the negative, saying that
everybody has his own opinion; but not denying that he
knew she was a prounion employee
At this time there were only four production employees
working in the tunnel. Dan Hudson (who had some
supervisory authority ), Dennis Bren, Marian Clary, and
Newcomer. Of these Newcomer was the only prounion
employee Both before and after the election she and Bren
and Hudson discussed the Union back and forth in a
"kidding" way. Hudson said that he saw no need for the
Union, that he didn't think they needed one, and that
everybody who was for the Union was looking for trouble.
Bren told her that if she wanted the Union she should go
work some place where there was a union. After the
election, as has been seen above, Hudson said that those
who didn't vote for the Union knew which side their bread
was buttered on.
When on December 4 Hudson and Bren recommended
to Stavig that he remove Newcomer from the tunnel,
Stavig knew that Bren was against the union movement
and must have known that Hudson was also. Early in the
campaign Bren had sought out Stavig and told him Bren
was not interested in the Union Stavig had told him it
was an election and not to worry about it. As for Hudson,
he had some supervisory authority and was in charge of
the work at the tunnel, to hold which job Respondent
must have been satisfied that he shared its views toward
the Union, which he did
In their discussion with Stavig on December 4 Bren and
Hudson had talked about Newcomer's attitude and had
cited several examples of her alleged shortcomings They
said she took too long on the breaks, that prior to the
election they overheard her tell Marian Clary that if you
put out more work they would expect more, and that
during the last 2 hours of her day when she was supposed
to help Clary at her job Newcomer did not work as hard
as she should have
At the hearing Newcomer credibly denied taking too
long on breaks or counseling Clary or any other employee
to restrict production. Clary was not called as a witness
and was not shown to be unavailable, nor did Respondent
produce any records concerning Newcomer's production,
although it kept daily records on all production in the
tunnel If Respondent intended to prove that Newcomer
was discharged because she deliberately restricted or
interfered with output. surely Respondent would have
attacked the matter head-on and produced the production
records and Clary.
Stavig testified that since there were no toilet facilities
in the tunnel, the tunnel employees used the facilities in
the balloon plant a block away, and that for this purpose
Hudson permitted them an extra 5 minutes more than the
customary breaktime. 11' Hudson had authority to grant
them this extra 5 minutes surely he had authority to see
that they didn't abuse it. He never spoke to Newcomer on
this score or any other subject concerning her that he and
Bren discussed with Stavig.
Newcomer's principal assignment had been the one in
the tunnel for well over a year, since the spring or fall of
1967. Several times during this period, when work was
temporarily at a halt because they were out of material or
were making a change in the balloon they were working
on, etc.. Newcomer would be temporarily reassigned
elsewhere and then called hack to the tunnel when
production there resumed. The fact that she was always
returned to the tunnel shows that Respondent considered
her work and work habits there satisfactory. Respondent
had never indicated the contrary to Newcomer.
Respondent offered no evidence as to when her alleged
had attitude had begun. There was no evidence that her
attitude ever changed. If she was not doing her share of
the work at the tunnel for about a year, it would seem
that word to that effect would have reached Stavig sooner.
In 2 1/2 years with Respondent Newcomer's wages had
advanced from $1 25 per hour to $1.80 per hour, which
advances compared favorably with those of Steward, an
admitted excellent producer and employee until her
troubles at the end. During this period Newcomer's work
was never criticized. A few weeks before her discharge
Vice President Christensen had told the tunnel employees,
including Newcomer, that they were keeping up with their
quota.
All of Respondent's written rules and regulations in
evidence relating to discipline and discharge have to do
not with attitudes of employees but with certain actions or
failures to act. Newcomer's alleged shortcomings related
most closely to infractions No 2 and 25 of Respondent's
"Regulations Governing Discipline and Discharge" quoted
above relating to leaving place of work during working
hours and failure to return from rest periods on schedule.
01' note is that these regulations require warnings for the
first two offenses, not precipitate discharge.
The preponderance of the evidence concerning the
Newcomer discharge leads me to the conclusion that as
understood by Stavig, Newcomer's "attitude" Bren and
Hudson were complaining to Stavig about was her
prounion sympathy and assistance at the time of the
election a few weeks before. Discharging her was a further
example to employees, along with the discharge of
Steward and Illian, that it was safer to leave the Union
alone Thus the discharge tended to discourage the revival
of any union spirit among employees
Upon the above facts and considerations and upon the
preponderance of the evidence in the entire record
considered as a whole I believe and find that Respondent
discharged Newcomer because of her sympathy and
activities and to discourage further union activity among
employees, Respondent thereby further violating Section
8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THI UNI-AIR LABOR PRACIICIES UPON
COMM[ RCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operations 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 of commerce.
V. THE REMEDY
I recommend the customary broad cease-and -desist
order and the affirmative relief conventionally ordered in
cases of this nature, where Respondent ' s unfair labor
practices were of a character which struck at the roots of
employee rights safeguarded by the Act.
The record showed that of the 13 laid off from the
Aspen line on August 5, 9 were recalled to work sometime
after they were sent letters on December 3 that they would
be recalled during December Had they not been
discharged it is fair to assume that Steward and Illian also
would have been recalled during December.
To remedy its discriminatory discharge of Steward and
Illian , Respondent will be required to reinstate Steward
and Illian as sewing machine operators on work on which
with reasonable effort they can make the average quota
being made by others on that work, without prejudice to
their seniority or other rights and privileges; and
Respondent will be required to make each whole for any
loss of pay suffered by reason of the discrimination by
paying her, from December 3. 1968, until the date of the
offer of reinstatement, a sum of money equivalent to the
average amount per hour paid to the nine from the Aspen
line who were recalled , or those among them who
remained with Respondent after their recall, during the
first 90 working days after their recall. Subtracted from
this amount will be her net earnings during the period
December 3, 1968, until the date of the offer of
reinstatement. The backpay shall be computed on a
quarterly basis in the manner prescribed by the Board in
F W Woolworth Company, 90 NLRB 289, with interest
thereon at 6 percent as ascertained by the formula
adopted in Isis Plumbing & Heating Co., 138 NLRB 716.
As for Erma Newcomer, the record showed that
Respondent followed a practice of reassigning to other
work employees who were temporarily out of work, and
only Newcomer was shown to have been terminated after
the fire. During the period the tunnel was out of operation
because of the fire Hudson was reassigned elsewhere. Bren
testified that he had been working for Respondent since
October 1965 and said nothing about being laid off while
operations were at a standstill because of the fire. The
record is silent as to Clary, but presumably she was
reassigned under Respondent's policy. Under these
circumstances it is fair to assume that Newcomer also
would have been reassigned during this period but for her
discharge. To remedy Respondent's discriminatory
discharge of Newcomer, Respondent will be required to
offer her reinstatement to her former position in the
tunnel or to substantially equivalent employment
acceptable to her, without prejudice to her seniority or
other rights and privileges, and to make her whole for any
loss of pay suffered by reason of the discrimination by
paying her a sum of money equivalent to the amount she
was earning at the tunnel, from the date of her discharge,
December 5, 1968, to the date of the offer of
reinstatement , less her net earnings during such period.
The backpay shall be computed on the same basis with
interest as is provided above for Steward and Newcomer.
As provided in the Woolworth case, I recommend
further that Respondent make available to the Board,
upon request , payroll and other records in order to
facilitate the checking of the amounts of backpay due.
Upon the basis of the foregoing findings of fact and the
entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Raven Industries , Inc., of Sioux Falls, South
Dakota, is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Allied Industrial Workers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. By discriminating in regard to the hire and tenure of
employment of Marcia Steward , Caroline Illian, and
Erma Newcomer , thereby discouraging membership in
Allied Industrial Workers, AFL-CIO, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) and ( 1) of the Act.
4. The aforesaid labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the preponderance of the
evidence in the entire record considered as a whole, I
recommend that Raven Industries, Inc., of Sioux Falls,
South Dakota, its officers, agents, successors, and assigns,
shall-
1. Cease and desist from:
(a) Discouraging membership in Allied Industrial
Workers, AFL-CIO, or any other labor organization of its
members, by discriminating in regard to the hire and
tenure of their employment or any term or condition of
employment,
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to
self-organization, to form labor organizations, to join or
assist Allied Industrial Workers, AFL-CIO, or any other
labor organization, to bargain collectively through
representatives of their own choosing and to engage in
concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to refrain
from any and all such activities.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Offer reinstatement to Marcia Steward, Caroline
Illian, and Erma Newcomer in accordance with the
recommendations set forth in "The Remedy" herein.
(b) Make whole Marcia Steward. Caroline Illian, and
Erma Newcomer, for any loss of pay they may have
suffered by reason of Respondent's discrimination against
them in accordance with the recommendations set forth in
"The Remedy" herein.
(c) Notify Marcia Steward, Caroline Illian , and Erma
Newcomer, 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.
(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
under the terms of this Recommended Order.
RAVEN INDUSTRIES, INC. 533
(e) Post at each of its plants in Sioux Falls, South
Dakota, copies of the attached notice marked
"Appendix "` Copies of said notice, on forms provided by
the Regional Director for Region 18 (Minneapolis,
Minnesota), after being duly signed by Respondent's
authoriLed representative, shall be posted by it
immediately upon receipt thereof. and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall he taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith 7
In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeal, the words "a decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
recommendation of the Trial Examiner ' s Decision.
WP WILL make whole Marcia Steward , Caroline
lllian, and Erma Newcomer for any loss of pay
suffered by them by reason of the discrimination
practiced against them , in accordance with the
recommendation of the Trial Examiner ' s Decision
Wi- Wii t 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, as
amended, after discharge from the Armed Forces.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
right to self-organization , to form labor organizations,
to join or assist Allied Industrial Workers. AFL-CIO,
or any other labor organization , to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purposes of
collective bargaining or any other mutual aid or
protection or to refrain from any and all such activities.
All our employees are free to become, remain, or
refrain from becoming or remaining members of Allied
Industrial Workers, AFL-CIO. or any other labor
organisation.
RAVEN INDLSIRIES, INC.
(Employer)
NOTICE TO ALL E_yiPL O'tEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
Wi- WILL otter to Marcia Steward. Caroline Illian.
and Erma Newcomer, immediate and full reinstatement
to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and
privileges previously enjoyed, in accordance with the
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 316 Federal
Building, 110 South Fourth Street, Minneapolis,
Minnesota 55401, Telephone 612-725-2618