Sledge Manufacturing Co.

National Labor Relations Board - Board Decisions

Oct 23, 1944

58 N.L.R.B. 1273 (N.L.R.B. 1944)

In the Matter of MOORE GROCERY COMPANY, DOING BUSINESS UNDER
THE STYLE AND TRADE NAME OF SLEDGE MANUFACTURING COMPANY
and UNITED GARMENT WORKERS OF AMERICA
Case No. 16-C-983.-Decided October 23, 1944
Mr. Robert F. Proctor, for the Board.
Mr. Sidney L. Samuels, of Fort Worth, Tex., and Mr. Roy Butler,
of Tyler, Tex., for the respondent.
Mrs. Irene Greathouse, of Dallas, Tex., for the Union.
Mr. Frederic B. Parkes, 2nd, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge duly filed by United Garment Workers of America,
affiliated with the American Federation of Labor, herein called the
Union, the National Labor Relations Board, herein called the Board,
by its Regional Director for the Sixteenth Region (Fort Worth,
Texas), issued its complaint dated February 12, 1944, against Moore
Grocery Company, doing business under the style and trade name of
Sledge Manufacturing Company, Tyler, Texas, herein called the re-
spondent, alleging that the respondent had engaged in and was engag-
ing in unfair labor practices affecting commerce, within the meaning
of Section 8 (1) and (3) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of
the complaint, accompanied by Notice of Hearing, were duly served
upon the respondent and the Union.
With respect to the unfair labor practices -the complaint alleged in
substance: (1) that from on or about June 1, 1943, to the date of the
complaint, the respondent, through certain named officers, agents, and
employees, disparaged and expressed disapproval of the Union, and
urged, persuaded, threatened, and warned its employees to refrain
from assisting the Union and from becoming or remaining members
of the Union; (2) that on or about July 31, 1943, the respondent dis-
charged Corea Webster and since that date has continuously failed
58 N. L. R. B., No. 232.
1273
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and refused to reinstate her for the reason that she joined or assisted
the Union or engaged in other concerted activities for the purposes of
collective bargaining or other mutual aid or protection; and (3) that,
by the above-stated acts, the respondent discriminated with respect to
the hire and tenure of employment and interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section
7 of the Act.
The respondent filed an answer, dated March 6, 1944, admitting
some jurisdictional allegations of the complaint, but denying that it
had engaged in the alleged unfair labor practices, and alleging affirm-
atively that Webster was discharged for the reason that she engaged
in boisterous talk during working hours about matters unrelated to
her work and that, when reprimanded by her supervisor, she failed to
comply with the directions of the supervisor and offended the super-
visor with a facial grimace and the use of obscene language.
Pursuant to notice, a hearing was held at Tyler, Texas, on March 6
and 13, 1944, before William F. Guffey, Jr., the Trial Examiner duly
designated by the Chief Trial Examiner. The Board and the respond-
ent were represented by counsel and the Union by its representative.
All parties participated in the hearing. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties. At the conclusion of all
testimony, the Trial Examiner granted, without objection, motions
by the Board and the respondent to conform the pleadings to the proof.
During the course of the hearing, the Trial Examiner made rulings on
other motions and on objections to the admission of evidence. The
Board has reviewed the rulings of the Trial Examiner made during
the course of the hearing and finds that no prejudicial error was com-
mitted. The Trial Examiner's rulings made at the hearing are hereby
affirmed.
On June 1, 1944, the Trial Examiner issued his Intermediate Report,
copies of which were duly served upon the respondent and the Union.
He found that the respondent had engaged in and was engaging in
unfair labor practices, within the meaning of Section 8 '(1) and (3)
and Section 2 (6) and (7) of the Act, and recommended that the re-
spondent cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. On June 19 and July 4,
1944, respectively, the respondent filed with the Board its exceptions
to the Intermediate Report and a brief. On July 6, 1944, the Union
filed a brief with the Board. A request for oral argument before the
Board was withdrawn and no oral argument was held.
The Board has considered the respondent's exceptions to the Inter-
mediate Report and the briefs, and the entire record in the case, and,
only insofar as the exceptions are consistent with the findings, con-
clusions, and order set forth below, finds them to have merit.
SLEDGE MANUFACTURING COMPANY 1275
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Moore Grocery Company, doing business under the style and trade
name of Sledge Manufacturing Company, is a Texas corporation
having its principal office and place of business at Tyler, Texas, where,
it is engaged in the manufacture and sale of men's and boys' clothing
and in the, manufacture of men's work clothing under contracts with
the United States Government. The materials used by the respondent
consist mainly' of drills, jeans, denims, twills, thread, buttons, and
other related articles. -During the 6-month period ending September
1943, the respondent purchased, in States other than the State of
Texas, for use at its Tyler Plant, materials valued at approximately
$422,256. During the same period, the respondent shipped to points
outside the State of Texas finished products for civilian use valued
at approximately $234,955, amounting to approximately 27.6 percent
of the total finished products for that period. In addition, the re-
spondent, during the same period, produced finished products under
its contracts with the United States Government valued at about
$90,730.
II. THE ORGANIZATION INVOLVED
United Garment Workers of America is a labor organization, af-
filiated with the American Federation of Labor, admitting to mem-
bership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
Peritus Rollins, a former employee, testif ed that in 1940, at a
time when the respondent was enlarging its plant and had advertised
for new employees, she went to the office of R. W. Honea, the respond-
ent's manager, and spoke to Honea about employment for a friend.
According to Rollins' uncontradicted testimony, Honea asked Rollins
if her friend had worked at a plant in which there was a union and
said, "We will not work anybody that has affiliated with or partici-
pated in any Union work anywhere at any time." We find, as did
the Trial Examiner, that Honea made the statement as related by
Rollins.
Dorotha Goff, a former employee, testified, without contradiction,
that about April 1943, she talked to several of the respondent's officials
and supervisory employees, including Howard Lancaster, a foreman,
about getting wage increases and that on one such occasion she told
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lancaster that,, if A. F. Sledge, the respondent's president, would not
talk to the employees about wage increases, the Union would. Ad-
cording to Goff, Lancaster replied that Sledge "would close the factory
up before he wculd let organized labor take over." Like the Trial
Examiner, we credit Goff's uncontradicted testimony and find that
Foreman Lancaster made the statement attributed to him by Goff.
The complaint alleges no unfair labor practices prior to June 1,
1943. We, therefore, do not find that the two foregoing statements
constitute unfair labor practices. They are set forth merely as back-
ground against which the alleged unfair labor practices are evaluated.
B. Interference, restraint, and coercion
1. Sequence of events
The Union began organizing the respondent's employees in the latter
part of May 1943. At about that time Irene Greathouse, an interna-
tional representative of the Union, discussed the organization of a
local of the Union with several of the respondent's employees and
-planned with them to distribute union membership cards and union
leaflets among the respondent's employees. Greathouse remained in
Tyler about a week during May, assisting the employees in their or-
ganizational activities. During this period, several employees signed
applications for membership in the Union.
Susanna Holder, a forelady employed by the respondent, testified
that, about the time the Union commenced its organizational activity
among the respondent's employees, a group of about three employees
inquired of Holder concerning her opinion of the Union and that she
replied, "Everybody can join the Union that wants to, and here is one
that isn't paying out any more money to them . . the garment work-
ers give us a dirty deal when we had a local . ." We find, as did the
Trial Examiner, that Holder made the above statement as related
by her.
On June 2, 1943, the respondent posted in its plant a large notice,
about 14 inches by 22 inches in size, printed in large letters and in red
ink, reading as follows :
NOTICE!
The Handling or Passing Out of Any
HANDBILLS OR CARDS
Is Positively Prohibited On
These Premises Without
Written Consent of Management
A. F. Sledge, President
SLEDGE MANUFACTURING COMPANY 1277
Rollins also testified that she attended a union meeting in July 1943,
at a downtown meeting hall and that, while the employees were gather-
ing for the meeting about 5 o'clock in the afternoon, she saw Foreman
Lancaster standing in a bowling alley, which was located across the
street from the meeting hall, and looking through the window of the
bowling alley toward the stairway used by the employees to enter the
meeting hall. According to Rollins, Lancaster was supposed to be
on duty at the plant until 5: 30. Lancaster did not appear as a witness
at the hearing and Rollins' testimony with regard to his presence near
the meeting hall is uncontradicted.
On August 7, the Union held a meeting at a hall in downtown Tyler.,
Nell Jay, an employee, testified that, as she and several other employees,
left the meeting, she saw Manager Honea standing in the driveway of
an automobile service station which was located one block from the
place where the union meeting was held. Jay further testified that,
shortly after leaving the union meeting, she telephoned Jewel Gregory,
a line supervisor in the plant, and told Gregory that she, Jay, had ob-
served Honea standing near the union meeting hall and apparently
watching the employees who attended the meeting. Jay testified that
Gregory replied, "I am sorry you went, all that had anything to do
with it are going to get fired." According to Jay, Gregory also stated
that, earlier the same day, Honea had asked Gregory if his informa-
tion that Jay had signed a union membership card was true aid that
Gregory had replied that, in her opinion, Jay had probably not signed
the union card because Gregory "had been too good" to Jay and; accord-
ingly, Gregory did not believe that Jay "would do that." Honea testi-
fied that the service station to which Jay referred was the station at
which he usually had his car serviced but that he did not recall being
there on the occasion in question. Gregory denied having any conver-
sation with Jay in regard to Honea's watching the union meeting.
She also denied that she told Jay of Honea's inquiry with regard to
Jay's signing a union membership card. The Trial Examiner, who,
observed the demeanor of the witnesses at the hearing, credited Jay's
testimony and did not credit the denials of Gregory. We agree with
the Trial Examiner 's resolution of this conflicting testimony.
2. Conclusions
The Trial Examiner found, and we agree, that the promulgation of
the rule prohibiting the distribution of handbills or cards on the re-
spondent's property was an unwarranted interference with the rights
guaranteed the employees in Section 7 of the Act, in that the rule pro-
hibited, on company property, concerted or union activities of em-
ployees on their free time, as distinguished from working time.
It is to be noted that the rule was not phrased in general terms pro-
hibiting the distribution of all literature on company property but,-
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rather forbade specifically only the "handling or passing out of
any handbills or cards" on the respondent's property. The rule is
accordingly clearly distinguishable from those general rules which we
have held to be within the province of an employer to promulgate in
the interest of keeping his plant clean and orderly.' Moreover, no
reason was advanced by the respondent, in the instant proceeding, for
promulgating the rule. In view of the language of the rule and of the
fact that the rule was promulgated within 2 months after the anti-
union statement of Foreman Lancaster and within a few days after
the commencement of the Union's intensive organizational campaign
in which handbills and cards were distributed and memberships in the
Union were obtained, and shortly after Forelady Holder's anti-union
remark, we find, as did the Trial Examiner, that the rule was promul-
gated for the purpose of interfering with the Union's campaign to
organize the employees and for the purpose of discouraging the
employees from joining the Union.2
The Trial Examiner also found that Lancaster had engaged in sur-
veillance of a union meeting but that Honea had not engaged in such
activity. Although the circumstances with regard to these activities
of Lancaster and Honea are somewhat suspicious, we nevertheless are
of the opinion and find that the evidence is insufficient to support a
finding that either Lancaster or Honea was spying upon the meeting
of the Union.
We find, as did the Trial Examiner, that Forelady Holder and Line
Supervisor Gregory were supervisory employees for whose con-
duct the respondent is responsible 3 and that, by the anti-union state-
ments of Holder and Gregory and by the posting of the notice set
forth above, the respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
' See Matter of Tabin-Picker & Co., 50 N. L. R. B. 928 ; Matter of North American Avia-
tion, Inc , 56 N L. R. B. 959 , Matter of The Goodyear Aircraft Corporation, 57 N. L. R B.
502 i
2 Cf Matter of American Pearl Button Company, 56 N. L. R. B. 613.
3 Line Supervisor Gregory had charge of a pants line at which 25 or 30 employees work.
Her duties required her to keep work moving on her line, to help operators who fell behind
in their work, and occasionally to substitute for any operator necessarily absent from her
machine for a short period of time. When the employees working on Gregory's line desired
permission to leave the plant before the end of working time , they made such a request
to Gregory who could "intervene" on behalf of the employees in such matters . Gregory
had authority to reprimand employees on her line for talking or engaging in other activity
which, in Gregory' s opinion , interfered with proper production . According to Gregory's
testimony, she promoted , demoted, and transferred employees on her line as circumstances
required, placed employees on jobs that they could do best, and told the employees on
her line what work to do. Forelady Holder-bad supervision over four production lines.
She supervised Gregory and employees who occupied positions on other lines comparable
to that of Gregory. Holder could transfer employees from one line to another at her
discretion. Upon these facts , it is clear that Gregory and Holder were supervisory em-
ployees and that the ordinary employees reasonably identified Gregory and Holder with
management Cf. International Association of Machinists v. N. L. R. B., 311 U. S. 72,
79-80, H J. Heinz v. N. L. R B , 311 U. S. 514, 518-20.
SLEDGE MANUFACTURING COMPANY 1279
C. The alleged discriminatory discharge of Corea Webster
The complaint alleges that Corea Webster was discharged because
of her membership . in and activity on behalf of the Union and because
of her concerted activity with other employees for their mutual aid
and protection . On July 28, 1943 , Webster signed an application for
membership in the Union and submitted it to the Union. On the
morning of July 31, 1943, the day on which she was discharged,
Webster engaged in a conversation with Vera May Holly, another
employee, concerning the Union. According to Webster's undisputed
testmony, Holly said during this conversation , among other things,
that she "was not going to work if she had to work under a Union,"
that she "would eat bread and water before she would work under a
Union," that she would not work at the same place where there was a
union, and that she thought all those who joined the Union were
"dumb." Webster, according to her own undisputed testimony, told
Holly that there was "no use to gripe about it, it might help our grand-
children ; just forget it," and that "it was everybody 's business if
they wanted to join" the Union. Holly testified that Webster also
stated that Holly would lose her job if the employees became organized
and she failed to join the Union. The Trial Examiner credited
Webster's and Holly's testimony and found that the substance of the
conversation between Webster and Holly was as related by them. We
agree with the Trial Examiner's evaluation of this testimony and with
his finding as to this conversation.
The respondent asserts that Webster was discharged (1) because- she
refused to cease talking and return to work when she was directed to
do so by Greogry , her supervisor ; ( 2) because she engaged , during
working hours , in loud and boisterous conversation which disrupted
her work as well as that of other employees ; and (3 ) because she was
insubordinate , having made a facial grimace and . used obscene lan-
guage when Gregory directed Webster to resume work.
Line Supervisor Gregory testified that, when she told Webster to
cease talking and resume work, Webster stuck out her tongue and told
Gregory in obscene language, to "kiss her" backside. Gregory's testi-
mony in this regard is corroborated by that of Holly, who was work-
ing near Webster at the time in question . Gregory's testimony is also
supported by the "testimony of Forelady Holder that Gregory im-
mediately reported to her that Webster had made the remark set forth
above and had stuck out her tongue at Gregory . Manager Honea testi-
fied that, after Webster's discharge, she admitted to him that she
had told Gregory "to kiss my so-and-so." Sally King, an employee,
testified that a few hours after the discharge, she was told by Webster
that she had made the remark to Gregory. Webster testified that
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she stuck out her tongue at Gregory in jest, but denied that she made
the obscene remark to Gregory.
Upon the entire record and from his observation of the witnesses,
the Trial Examiner found, and we concur in his finding, that Webster,
on the morning of her discharge, made a facial grimace to Line Super- -
visor Gregory and made the obscene remark which Gregory and the
other witnesses attributed to Webster.
Five or ten minutes after the above-related conversation between
Webster and Holly, Gregory informed Forelady Holder that Webster
and Holly were engaged in argument, that Webster was blocking pro-
duction, and that Webster had made the facial grimace and the
obscene remark as found above. Holder called Webster aside from
the other employees and told her that she was discharged for the
reasons that she was holding up production, had refused to resume
work upon the instruction of her supervisor, and had used obscene
language in speaking to her supervisor. Webster immediately ap-
pealed to Manager Honea, who ratified Holder's discharge of Webster
after talking to Holder and Gregory about it in Webster's presence.
Although the record indicates that the language used by Webster
on the occasion immediately preceding her discharge, may have been
neither uncommon nor shocking to her fellow employees, including
her supervisors, and although Webster was discharged 3 days after
she had joined the Union and immediately after *she had indicated her
approval of the Union to employee Holly, Nye do not agree with the
Trial Examiner's conclusion that Webster's discharge was discrimi-
natory. In our opinion, the respondent regarded Webster's obscene
remark and facial grimace as insubordination and discharged her
because of such conduct. The fact that Holly was not disciplined for
engaging in argument with Webster and thus blocking production is
not controlling since Holly did not engage in conduct comparable to
that of Webster. We therefore find that the respondent, by discharg-
ing Webster, did not discriminate in regard to her hire or tenure of
employment within the meaning of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III, above, occurring in connection with the operations of the re-
spondent 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.
SLEDGE MANUFACTURING COMPANY 1281
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order that it cease and desist therefrom and,
that it take certain affirmative action designed to effectuate the poli-
cies of the Act.
We have found that by promulgating and posting the rule prohib-
iting the "handling or passing out of any handbills or cards" on the,
respondent's property, the respondent interfered with, restrained,,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act. The deterrent influence of the promulgation
and posting of the rule can be removed only by a statement by the
respondent, properly publicized, to the effect that its employees are
free to exercise the rights guaranteed them by the Act without risk
of discrimination. We shall accordingly order that the respondent
post such a notice.
Since we have found that the respondent did not discriminate with
regard to the hire or tenure of employment of Corea Webster, within
the meaning of the Act, we shall order that the complaint be dismissed
as to her.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAw
1. United Garment Workers of America, affiliated with the Amer-
ican Federation of Labor, is a labor organization, within they meaning
of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
4. The respondent has not discriminated with respect to the hire or
tenure of employment of Corea Webster, within the meaning of the
Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
609591-45-vol . 58-82
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent, Moore Grocery Company, doing business under the style and
trade name of Sledge Manufacturing Company, Tyler, Texas, its
officers, agents, successors, and assigns shall :
1. Cease and desist from in any manner interfering with, re-
straining, or coercing its employees in the exercise of the right to
self-organization, to form labor organizations, to join or assist United
Garment Workers of America, affiliated with the American Federation
of Labor, or arty other labor organization, to bargain collectively
through representatives of their own choosing and to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Rescind immediately its rule prohibiting the distribution of
handbills and cards insofar as such rule prohibits union activity on
company property during the employees' own time;
(b) Immediately post in conspicuous places in and about its plant
at Tyler, Texas, and maintain for a period of at least sixty (60) con-
secutive days from the date of posting, notices to its employees stating :
(1) that the respondent will not engage in the conduct from which it
is ordered to cease and desist in paragraph 1 of this Order; and (2)
that the respondent will take the affirmative action set forth in
paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Sixteenth Region in
writing within ten (10) days from the date of this Order,,what steps
the respondent has taken to comply herewith.
AND IT Is FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the respondent has discriminated in
regard to the hire or tenure of employment of Corea Webster.