Acme Boot Co., Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1961

131 N.L.R.B. 1371 (N.L.R.B. 1961)

ACME BOOT COMPANY, INC. 1371
Acme Boot Company, Inc. and Bobby Lee Long and Donnie V.
Burgess and Gilbert K . Essex and Charles Gentry. Cases Nos.
10-CA-4308, 10-CA-44308-2, 10-CA-4308-3, aand 10-CA-4308-4.
June 28, 1961
DECISION AND ORDER
On September 27, 1960, Trial Examiner David London issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondent filed exceptions to the Intermedi-
ate Report and a supporting brief.
Pursuant to Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers herein to a three-member panel
[Chairman McCulloch and Members Rodgers and Leedom].
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 Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the Trial Examiner's findings, conclusions,' and
recommendations with the following exceptions and modifications :
We find, in agreeirient with the Trial Examiner, that the Respondent
violated Section 8 (a) (1) and 8 (a) (3) of the Act. In adopting the
8(a) (1) findings however, we rely solely on the Respondent's interro-
gation of LeFevre and Brown. The inquiries made by the Respondent
of employees Nash and Newman did not violate Section 8 (a) (1) under
the circumstances disclosed by the record.' The inquiry to Newman
regarding her "company" was ambiguous at best, and that made of
Nash was not coercive or otherwise violative of Section 8 (a) (1) in the
context in which it occurred.
The Board's Order in this case is restricted to the Respondent's
Cookeville, Tennessee, plant in view of the pleadings and record,
which reflect that this is the only location at which the Respondent's
unfair labor practices occurred.
ORDER
Upon the entire record in these cases, and pursuant to Section 10(e)
of the National Labor Relations Act, as amended, the National Labor
IIn reaching this Decision , however , we have placed no reliance on the findings of
"background" violations officially noticed by the Trial Examiner from the Board 's deci-
sion in Atlas Boot Manufacturing Co., Inc, 116 NLRB 565, or upon either of the decisions
of the Tennessee Department of Employment Security which were admitted as evidence in
this proceeding. Also, we note that Donnie V. Burgess is incorrectly referred to as
"Dennis Burgess" in the Intermediate Report and hereby correct this inadvertent error
2 Blue Flash Express, Inc, 109 NLRB 591.
131 NLRB No. 169.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that the Respondent, Acme Boot Com-
pany, Inc., Cookeville, Tennessee, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Boot & Shoe Workers' Union,
AFL-CIO, or any other labor organization of its employees, by dis-
charging, refusing to rehire, or in any other manner discriminating
against employees with respect to their hire and tenure of employment,
or any term or condition of employment to discourage membership in
a labor organization.
(b) Interrogating coercively its employees concerning their union
membership and activities in violation of Section 8 (a) (1) of the Act.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted ac-
tivities for the purpose 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 the Board finds will
effectuate the policies of the Act :
(a) Offer to Bobby Long, Donnie V. Burgess, Gilbert K. Essex, and
Charles Gentry immediate and full reinstatement to their former, or
substantially equivalent positions, without prejudice to their seniority
or other rights and privileges, and make each of them whole for any
loss of earnings he may have suffered as a result of the discrimination
against him, in the manner set forth in the section of the Intermediate
Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all
other records necessary to analyze the amount of backpay due under
the terms of this Order.
(c) Post at its plant at Cookeville, Tennessee, copies of the notice
attached hereto marked "Appendix." 3 Copies of such notice, to be
furnished by the Regional Director for the Tenth Region, shall, after
being duly signed by Respondent's authorized representative, be posted
by Respondent immediately upon receipt thereof, and be maintained
by it for a period of 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Tenth Region in writing,
In the event that this Order is enforced by a Decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
ACME BOOT COMPANY, INC. 1373
within 10 days from the date of this Order, what, steps Respondent has
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that Respondent threatened to discharge
its employees or that Superintendent Bean illegally interrogated em-
ployees Nash and Newman in violation of Section 8 (a) (1) of the Act.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in Boot & Shoe Workers'
Union, AFL-CIO, or in any other labor organization of our em-
ployees, by discharging or refusing to rehire employees because
they engage in union or other concerted activities, nor will we
discriminate in any other manner in regard to hire or tenure of
employment or any term or condition of employment, to discour-
age membership in a labor organization.
WE WILL NOT interrogate coercively our employees concerning
their union or other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection.
WE WILL NOT in any other matter interfere with, restrain, or
coerce our employees in the exercise of their right to form, join,
or'assist said Boot & Workers' Union, AFL-CIO, or any other
labor organization, to bargain collectively through representatives
of their own choosing, or to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
WE WILL offer to Bobby Lee Long, Donnie V. Burgess, Gilbert
K. Essex, and Charles Gentry immediate and full reinstatement
to their former or substantially equivalent positions, without pre-
judice to their seniority or other rights and privileges, and we will
make each of them whole for any loss of pay they may have suf-
fered as a result of our discrimination against them.
All our employees are free to become or refrain from becoming
or remaining members of the above union or any other labor organ-
ization.
ACME BOOT COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed, the General Counsel of the National Labor Relations
Board caused to be issued a consolidated complaint against Acme Boot Company,
Inc., hereinafter referred to as Respondent , alleging that Respondent had engaged
in violations of Section 8(a)(1) and (3) of the Labor-Management Relations Act,
as amended. In substance, the complaint, as amended at the hearing, alleges that
on or about specified dates, Respondent, acting through named agents and super-
visors, interrogated its employees concerning their union membership , activities, and
desires, and threatened to discharge them if they engaged in such activities. The
complaint further alleges that between October 2 and 16, 1959, Respondent dis-
charged, and thereafter failed and refused to reinstate, Bobby Lee Long, Donnie V.
Burgess, Gilbert K. Essex, and Charles Gentry, because of their membership in,
and activities on behalf of Boot & Shoe Workers' Union, AFL-CIO, hereafter called
the Union, and because they engaged in concerted activities for the purpose of col-
lective bargaining and other mutual aid and protection. By its answer, Respondent
denied the commission of any unfair labor practice and pleaded affirmatively that
Long, Burgess, and Essex were discharged for poor and unsatisfactory work, and
that Gentry was laid off for lack of work.
Pursuant to due notice, a hearing on the above pleadings was held before the
duly designated Trial Examiner at Cookeville, Tennessee, on April 26 to 28, 1960.
The General Counsel and Respondent were represented by counsel, participated in
the hearing, and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, to present oral argument, and to file briefs. On or about June
13, 1960, the parties filed a stipulation, executed by all the parties, agreeing that
the stenographic transcript of the hearing be corrected as described therein. The
stipulation is hereby approved, made a part of the record, and the transcript accord-
ingly corrected. Since the close of the hearing, briefs have been received from
the General Counsel and Respondent and have been duly considered. Motions,
on which ruling was preserved at the hearing, are disposed of in accordance with
the findings and conclusions that follow.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and at all times material herein has been , a New York corpora-
tion qualified to do business in the State of Tennessee , maintaining offices and
plants in the cities of Clarksville and Cookeville , Tennessee , where it is engaged in
the manufacture and sale of footwear. Respondent, during the year preceding the
filing of the complaint herein, manufactured, sold, and shipped finished products
valued in excess of $50,000 directly from its Tennessee plants to customers located
outside the State of Tennessee . I find that at all times material herein Respondent
has been engaged in commerce , and that its operations affect , and have affected,
commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Boot & Shoe Workers' Union, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The background
Respondent 's plant , where the events with which we are concerned took place, is
located at Cookeville, Tennessee, having a population of approximately 15,000,
and was acquired by Respondent in February 1956. Prior to that time, the plant was
operated by a predecessor corporation , Atlas Boot Manufacturing Company, Inc.,
hereafter referred to as Atlas. Respondent 's acquisition of ownership and control
was made without interruption of production or change in personnel . Indeed, as
Respondent states in its brief , "in order not to upset the personnel, . . . it was de-
cided simply to post a notice of change of ownership."
During March 1955, while the plant , was operated by Atlas, one Arthur Schultz,
in behalf of the Union , was in Cookeville seeking to organize Atlas' employees.
During that campaign, and in violation of the Act, Atlas' supervisory personnel,
including two against whom accusations are made in the instant proceeding , interro-
ACME BOOT COMPANY, INC. ' 1375
gated its employees, threatened them with reprisals because of their union activities,
engaged in surveillance of those activities, and discriminately discharged one em-
ployee because he engaged in union activity. At an election in the following month
to determine a collective bargaining representative for Atlas' production and mainte-
nance employees, the Union did not prevail.'
Though Schultz again appeared in Cookeville in 1956 and 1957, insofar as the
record discloses, no further attempt to organize Respondent's employees was made
until Schultz and another union representative came to Cookeville on or about
September 16, 1959, at which time Respondent had approximately 325 employees.
From that time, until several months thereafter, Schultz went to the parking lot ad-
joining the plant almost every workday. There, during the noon lunch period, while
employees ate their lunch in parked automobiles, Schultz sought to enlist their mem-
bership in the Union. During an evening shortly after his arrival, he visited the
homes of employees Clarance Nash and Ruth Newman for the same purpose.
B. Interrogation
On the morning following the visits just mentioned, Herman Bean, plant superin-
tendent, asked Nash if he had heard anything about the Union .2 Nash replied that
"they" had called on him the night before and informed him that "they" were go-
ing to organize the plant. Bean asked him how he felt about it and was told that
he was not "particularly interested in it." Bean then stated: "If the boys wanted a
union , why, let them have it." During the same day, Bean asked Newman whether
she had had company and she answered affirmatively without, however, identifying
her "company" of the previous evening. Though veiled in ambiguity, consideration
of Bean's inquiry when viewed in light of the entire record compels the conclusion
that it was designed by Bean to ascertain from Newman the extent of Schultz' ac-
tivity, and to have an effect on Newman's exercise of her guaranteed rights.
William Garrett left the plant on Friday, September 18,3 to take his wife to Nash-
ville for an operation. On returning to Cookeville during the afternoon of Septem-
ber 22, he called his foreman to advise that he would report back to work the
following day. His call was referred to Bean who asked him to come to the office im-
mediately as he wanted to talk to him. Garrett complied. After inquiring about
the health of his wife, Bean asked Garrett if he had heard the latest rumor and
Garrett replied that he had not When Bean stated that "there [was] a rumor
that the union [was] trying to come in," Garrett stated he had no knowledge of it
and would have nothing to do with it. As he left the office, Garrett met Supervisor
Fred Alcorn and asked him whether it was true that the union "was trying to get
back into the plant." Alcorn answered that it had been so rumored, and "he guessed
it was."
On or about September 23, the morning following an organization meeting con-
ducted by the Union, employee Lloyd LeFevre was asked by Foreman J. V. Thomas,
to whom he is related, whether he had attended the meeting the night before. When
LeFevre answered that he had, Thomas asked him to tell who was present. LeFevre
replied that he, his brother-in-law, James Goff, also employed by Respondent, and
"two barbers," not otherwise identified, had attended the meeting.
A few days before another union election conducted among Respondent's em-
ployees on December 30, Foreman Fred Alcorn asked employee Hayden Brown
how he "felt about the Union." Brown answered that to vote against it would be to
oppose his own interests.
On the entire record I,find that by Bean's interrogation of Nash as to how he felt
about the Union, by his interrogation of Newman concerning her "company" of the
evening before, by Thomas' inquiry of LeFevre as to whether he, and who else, had
attended the union meeting on September 22, and by Alcorn's interrogation of
Brown as to how he felt about the Union, Respondent violated Section 8(a)(1) of
the Act.
C. The discharge of Burgess and Essex
Dennis Burgess was employed as a heel scourer by Respondent from the summer
of 1956 to October 16, 1959. He attended the union meeting at the Gridiron Cafe on
I The findings contained in this paragraph have been officially noted from the Board's
decision in Atlas-Boot Manufacturing Co , Inc, 116 NLRB 565. They are deemed relevant,
although by no means controlling, in the determination of the issues involved in the present
proceeding.
2In the Board's decision referred to in footnote 1, supra, the Board specifically found
that Bean had unlawfully interrogated Atlas' employees concerning their union activities,
and had engaged in unlawful surveillance of those activities.
s Unless otherwise specified , all reference to dates herein is to the year 1959.
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 22 when he signed an application for membership in that organization.
Between September 22 and the day he was discharged, he solicited and secured the
signatures of 12 to 14 employees for membership in the Union. During the noon
lunch hour of "almost every day" of the same period, he "associated" with Schultz
in the parking lot while Bean and supervisors of Respondent drove or walked by in
a manner hereafter detailed. On one such occasion, while he was seated in an auto-
mobile, with Schultz "outside the car," his foreman, J. V. Thomas, drove by and
stopped his car 3 or 4 feet distant from Burgess. There, Thomas asked his sister,
who was walking by between his car and that in which Burgess was seated, whether
she wanted a ride. On another occasion during the same period, while Burgess and
Essex were seated in Charles Gentry's car with Schultz, Foreman Edward Scarlett
walked by and exchanged verbal greetings with Gentry accompanied by a wave of
the hand.
Gilbert Essex, employed by Respondent since May 20, 1957, was transferred to
heel scouring on July 20, 1959. He signed an application to join the Union at the
meeting of September 22, attended another meeting on October 6, and together with
Schultz visited the homes of employees to enlist their membership in the Union.
Shortly after 3:30 p.m. on the day following the union meeting of October 6, and
after all the machines in the plant had stopped running, employee Elmer Roberts
walked to where Burgess and Essex "were waiting for the whistle to blow." Burgess
asked Roberts why he had not attended the meeting of the night before. When
Roberts answered that he did not know a meeting was to be held, Essex said: "Well,
I want to see you at the next one." During the conversation, Essex observed that
Roberts was looking in a direction behind Essex and the latter, upon turning, dis-
covered his foreman, J. V. Thomas, standing directly behind him, less than 3 feet
away where Thomas could, and did, overhear the conversation of the three men.
Thomas told the group to "break it up."
On October 16, Thomas came to Burgess' workbench holding six or seven boots in
his hand. He told Burgess he had "bad work" and instructed him to report to the
office with his timecard. In passing Essex's machine he told him the same thing, and
both men went to the office where they found Bean and Foreman Scarlett. Bean
pointed to two cases of boots and remarked that they were "getting some bad
quality." Burgess picked up one of the boots and asked to be shown what was wrong
with it but got no reply. Thomas picked up another boot containing "rough marks"
which, however, according to Burgess who had been scouring for more than 3 years,
were "as good or the same as had been through there before." Essex stated that he
could not understand why it was that Burgess who had been scouring nearly 4 years
and whose work had always been "bragged" about, should, after the union campaign
started and in which the two men were "involved," suddenly be the subject of such
`rough" treatment. Essex twice stated that there was some other reason than bad
work for which the two men were being fired. Bean at first denied the accusation,
but when it was repeated later during the conversation, Bean added: "Maybe there is,
and maybe there isn't." 4
To sustain the allegations of the complaint that any or all of the alleged discrimi-
natees were discriminately discharged, the burden rests on the General Counsel to
establish by a preponderance of the evidence that Respondent was aware of the union
activities of each of these employees and discharged him for that reason. Respondent
not only denied that it had such knowledge, but pleaded affirmatively that Burgess,
Essex, and Long were discharged for cause-poor workmanship, and that Gentry
was laid off because of lack of work.
On the entire record I am convinced and find that Burgess and Essex were actively
engaged in union activities, that Respondent acquired knowledge thereof, and dis-
charged them because they had engaged in those activities.
,In arriving at that conclusion I am aware of the absence of direct evidence to
establish that Bean , or supervisory officials other than Thomas, had knowledge of the
union activities of any of the four alleged discriminatees involved herein. Though
the absence thereof has given me some pause, I do not think it fatal in this case in
light of what I consider strong circumstantial evidence to support a reasonable in-
ference that management officials responsible for the alleged discrimination must
have been aware of, or at least suspected, the active participation in such activities
4 When Bean was questioned by Respondent 's counsel as to whether he had made the
remark attributed to him in the text, he answered : "I don't remember. I want . . . I will
say no, since I don 't remember it." The uncertain nature of this denial was in contrast
to Bean's unequivocal testimony which was favorable to Respondent This , together with
the manner in which he expressed the denial , cause me to reject it and to credit instead
the Burgess and Essex version on which the findings contained in the text are based.
ACME BOOT COMPANY, INC. 1377
of all four alleged discriminatees . The principle that knowledge of union activities,
no less than discriminatory motive, may, and often of necessity must, be based upon
reasonable inference drawn from circumstantial evidence, is one firmly established by
judicial precedent. See e.g., N.L.R.B. v. Link-Belt Company, 311 U.S. 584, 602;
F. W. Woolworth Company v. N.L.R.B., 121 F. 2d 658, 660 (C.A. 2). Here, the
evidence hereafter detailed supports the inference that the union activities of the
four alleged discriminatees was known to, or suspected by, Respondent. This con-
clusion is fortified with respect to Burgess, Essex, and Long, by the fact that their dis-
charge occurred during the height of the union campaign in which they were engaged,
and that the record does not support Respondent's claim that they were selected for
discharge because of poor workmanship, and hence their discharge remains other-
wise unexplained.5 United Fireworks Mfg. Co., Inc., 118 NLRB 883, 887.
Though Superintendent Bean, and foremen Alcorn and Thomas conceded they
had heard rumors that the Union was trying to get into the plant, all three denied
any knowledge that the alleged discriminatees were involved in that activity. I do
not credit their denials. I was particularly impressed, unfavorably to Respondent's
claim of lack of direct knowledge that the Union was again waging its campaign, by
Bean 's studied attempt to avoid acknowledging that in September 1959, when Schultz
reappeared in Cookeville and associated with the alleged discriminatees in the parking
lot as heretofore found, he was able to identify Schultz as the same person who had
been actively engaged in the earlier union campaign which formed the background
for the Atlas case mentioned in footnote 1, supra. This, notwithstanding that Bean,
as superintendent of the plant, testified in that proceeding, which lasted 3 days, and
admittedly heard Schultz give testimony therein.e
The record abundantly establishes that commencing shortly after Schultz' arrival
on September 16 and his mingling with employees on Respondent's parking lot during
the noon lunch period,? Superintendent Bean and plant supervisors, including foremen
Alcorn and Thomas, began a constant practice, extremely seldom if ever engaged in
before, of walking through the parking lot, or driving their cars on a bumpy and
poorly conditioned driveway adjacent thereto, and where they could, in both in-
stances, observe Schultz and the employees who were associating with him. Accord-
ing to Gentry, "sometimes they would come up by the side of [them] and go around
the block and come in in front of [them]." 8 As a result of this practice, Bean and
the supervisors must have been, and in fact were, apprised of Schultz' association
with all the alleged discriminatees involved herein. Information that Burgess and
Essex were extremely active in their union activities was further acquired by Fore-
man Thomas when he overheard their conversation with Roberts culminating in
Essex's statement to Roberts, uttered in the nature of a directive or order, that he
attend the next meeting of the Union.
Turning now to Respondent's contention that it discharged Burgess and Essex
for poor workmanship, the record establishes that from May 20, 1957, until Essex
was discharged on October 16, 1959, he was employed under the supervision of Fore-
man Thomas. Until July 20, 1959, he was engaged primarily as a heel seat trimmer.
The testimony is uncontradicted that during that period Thomas complimented him
for his work and told him he was "as good a hand" as had ever worked for him.
Essex's transfer to heel scouring on July 20, 1959, was regarded in the nature of a
promotion, and gave him an opportunity to earn more money. The testimony is also
undisputed that after he had acquired some experience in his new work, Thomas
told him that his work was improving "very nicely."
Burgess, during his employment of nearly 41 years by Respondent as a heel
scourer, was often complimented by Thomas on the quality of his work, and was
told that "if all the work was as good as [his, Respondent] wouldn't have anything
to worry about." Though five men were engaged in scouring, Burgess was one of
5 Though, as previously indicated , Respondent 's answer pleads affirmatively that Burgess,
Essex, and Long were discharged for poor workmanship, practically all of Respondent's
"Brief and Argument" devoted to "Alleged Discriminatory Discharges" Is directed almost
exclusively to the argument that the General Counsel has failed to establish by a pre-
ponderance of the evidence that Respondent had knowledge of the union activities of the
alleged discriminatees, and this appears to be the crux of its defense
8 Bean attributed his failure to identify Schultz in September 1959, in part, to the.
fact that he had never been formally "Introduced" to him.
7 Long testified that "normally Schultz was all over the place."
8 The findings contained In the foregoing portion of this paragraph are based on a syn-
thesis of the credited testimony of Schultz, LeFevre, Long, Burgess, Essex, and Gentry.
Their testimony for the most part, if not entirely, stands undenied on the record.
599198-62-vol. 131-88
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the two men selected to work on sample boots destined for exhibition to prospective
customers.
Thomas testified that he made a memorandum of the occasions when he found
special cause to criticize employees for poor workmanship. At the hearing, he pro-
duced and read into the record memorandums pertaining to Burgess and Essex.
The notations he made referring to Burgess were dated September 16, 1958; May 21,
1959; September 29, 1959; October 6, 1959; October 9, 1959; and October 16, 1959.
With respect to Essex, the memorandums were dated August 15, 1959; September
30, 1959; October 9, 1959; October 14, 1959; and October 16, 1959.
It will thus be observed that during the first 3 years of Burgess' employment only
two critical memorandums were entered, but that during the midst of the union
campaign, and within a period of 18 days prior to his discharge, four such notations
were made. Concerning Essex, it will be recalled that he began heel scouring on
July 20, 1959, and that after he had acquired some experience Thomas told him
that his work was improving "very nicely." It seems reasonable, therefore, to infer
that this compliment was paid him after the notation of August 15, 1959, afore-
mentioned. Thereafter, not a single justification for a memorandum of criticism
apparently arose, also not until the union organization campaign was in full swing,
and during which time four such memorandums were entered within a period of 17
days prior to his discharge. The timing of these memorandums in the middle of the
union campaign becomes suspect in light of Respondent's testimony that the special
drive for improved quality began in July.
Burgess and Essex, however, were not the only ones of the five heel scourers who
were the subject of critical memorandums. Thus, Thomas testified that, as reported
on his memorandums, Tom Willoughby, employed as a heel scourer more than 4
years, was told on September 22, 1958, "for the last time to do better." Notwith-
standing this warning, Willoughby was the subject of three more critical memo-
randums on September 28, 1959, October 2, 1959, and again on October 9, 1959,
when he was once more told "if he couldn't do better, [Thomas] would have to get
someone that could." A week later, on October 16, the very day that Burgess and
Essex were fired, Thomas' memorandum reports that he brought some boots back to
Burgess, Essex, and Willoughby, and on which "the scouring was very poor quality."
Though Willoughby had two prior "last" warnings, he was not discharged, Burgess
and Essex were.
The foregoing analysis takes on additional significance when viewed in light of
the entire record which discloses that only union members were discharged,9 and
fails to reveal that any employees other than those with whom we are concerned were
discharged for poor workmanship while the alleged drive for improved quality was in
progress. Indeed, when Bean was asked to give the number of employees discharged
for "bad work" since October 16, 1959, he testified that this number would not exceed
five, and might only be four, but upon being pressed, admitted that either number
included the employees "who are involved in the case," four in number. This, not-
withstanding that the number of returned boots (concerning which more is detailed
immediately hereafter) mounted steadily each month from 417 in October 1959
to 931 in March 1960.10
Bean and Alcorn testified that Respondent undertook the special drive for im-
proved workmanship in the latter part of July 1959, because "they were getting
return boots from customers." According to Respondent's monthly reports of
returns, however, less boots were returned to the Cookeville plant during each of the
months of June, July, and August 1959, than during any one of the other 9 months
of that year. In September, a smaller number of boots were returned than in 7 other
months of 1959, And, while the testimony fails to establish the date of manufacture
of the returned boots, these records do cast doubt on the respondent's contention
that the discharges were made in a period when a special drive for improved work-
manship was demanded by the return of defective boots.
According to these reports, the average number of boots returned to the Cooke-
ville plant per month, in 1959 was 429 pairs.11 In January, February, and March
1960, the numbers similarly reported were 658, 885, and 931, respectively. Sig-
9 See Acme Wa8te Paper Company, 121 NLRB 18, citing N L It B. v. W C Nabors, d/b/a
W. C Nabors Company, 196 F 2d 272 (CA. 5), enfg. '89 NLRB 538; Southern Fui niture
Mann!acturtng Company v N Lit B., 194 F. 2d 59 (C.A. 5), enfg. 91 NLRB 1159
10 These statistics cast great doubt on, if indeed they do not contradict, Bean's testimony
that the quality of work throughout the plant was poor in September and October 1959
but has improved since that time
11 The Cookeville plant, through October 1959, was "running" 5,000 pairs of boots daily,
or approximately 110,000 pairs per month.
ACME BOOT COMPANY, IN C. 1379
nificantly, however, though all of these monthly reports of boots returned to the
Cookeville plant assign various specific and diverse reasons for the returns and
which reasons range in number from 27 to 52, never once was defective heel scour-
ing, for which Burgess and Essex were allegedly discharged, mentioned as a reason
for any of the returns.
When Bean was questioned directly "how the returns for heel scouring [were]
listed" on these reports, he gave a completely unresponsive and evasive answer. He
was then handed one of these reports, picked at random, and asked "under what topic,
if any, would any bad heel scouring of boots be listed?" He answered: "Well,
right here is one that it could be listed under-Inferior Heel Material. There is
another one here, Machine Damage. It could be listed under either one of those."
Surprisingly, however, the boots returned during that month because of "Inferior
Heel Material" constituted only 1 percent of the total number of boots returned
during that month, while those returned for "machine damage" constituted only 2.8
percent thereof. And, with respect to the latter category, Bean admitted that that
classification "could cover any one of perhaps a half a dozen, or a dozen different
operations." During the critical month of October 1959, when the discharges under
consideration occurred, "heel inferior material" constituted only 0.7 percent of the
returned boots, while "machine damaged," which, as has just been noted could de-
scribe as many as 11 imperfect operations other than heel scouring, only constituted
5.5 percent of the returns.12
Following Essex's discharge, he filed and received approval of his claim for unem-
ployment compensation by the Tennessee Department of Employment Security to
which ruling Respondent filed a protest. The protest being disallowed, Respondent
appealed therefrom to the department's appeals tribunal. Respondent participated
in the hearing on that appeal in support of its claim that Essex was "discharged for
poor quality work after being warned several times." After hearing the proffered
testimony, the appeals tribunal found and concluded that "the record fails to estab-
lish that [Essex] was negligent in the performance of his duties, or that his work
was of poorer quality than other persons doing substantially the same work with
substantially the same experience." 13
By reason of all the foregoing, I am convinced and find that neither Burgess nor
Essex were discharged for poor workmanship. Instead, I find and conclude that
they were fired because of their union activities, and that by doing so Respondent
violated Section 8(a) (1) and (3) of the Act.
D. The discharge of Long
Bobby Long was employed in the Cookeville plant by Respondent and its prede-
cessor from June 1955 until he was discharged on October 2, 1959, at which time
he was working as a toe former. During the evening of September 19, Schultz called
on him at his home and enlisted his aid in organizing Respondent's employees. Long
agreed to do so, signed an authorization card, and offered to arrange a meeting for
that purpose which was subsequently held at the Gridiron Cafe during the evening
of September 22. On Sunday, September 20, he "was out getting cards signed" and
continued that activity during following evenings for periods past midnight. From
that time until he was discharged, Long extended similar efforts in the smoking
booths at Respondent's plant and in the parking lot adjoining the plant during the
noon lunch periods. He constantly carried a supply of applications for union mem-
bership and "was the one that took care of all the cards." He obtained signatures to
approximately 23 or 24 of such cards, most of them between September 20 and
October 2. The record thus clearly establishes that Long was extremely active in
seeking to have Respondent's employees represented by the Union.
In considering Long's union activity, as well as Respondent's denial that it had no
direct knowledge of union activity in the plant but only by rumors, attention should
be called to a memorandum of September 28, 1959, made by Alcorn, Long's super-
"'Respondent also offered in evidence several memorandums from its main office in
Clarksville calling attention to poor workmanship, the last one being dated October 14,
1959. According to that memorandum, 32 pairs of boots were returned that day for
8 classified reasons, again however, without any complaint of heel scouring, special atten-
tion being called only to "poor fancy stitching "
33 Although the State board's decision is neither conclusive nor binding on me, "deci-
sions rendered by State Unemployment Compensations Agencies are relevant in Board
proceedings, and have some probative value." The Sun Company of San Bernardino,
California, 105 NLRB 515, 521; .4erovox Corporation, 104 NLRB 246; Republic Cotton
Mills, 101 NLRB 1475.
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visor, summarizing a talk he made to his whole department on that day. This meet-
ing occurred during the period in which it has previously been found Long engaged
in the solicitation of employees for union membership in the plant's smoking rooms.
Though no claim is otherwise made by Respondent that insufficient production or
loafing in the smoking rooms was then a problem, Alcorn, on September 28, for the
first time insofar as the record discloses, limited the number of employees who were
to gather in the smoking rooms to four.
On October 2, his foreman, Fred Alcorn, brought six shoes to Long, motioned the
other three toe formers to come over, and stated he wanted all four men to look at
the shoes. Alcorn testified that Long protested that the shoes in question were part
of "Robert's case." Nevertheless, the shoes apparently being in need of additional
work, Long, as well as Garrett, another toe former, offered to fix them, as all the
toe formers had on other occasions when defective shoes were returned, regardless
of who had originally, performed the work.14 Alcorn declined to let Long do so
and told him, instead, to punch out.
Long and Alcorn went to the office where Bean asked what had happened. Alcorn,
acting "sort of nervous," stated it "was bad quality work." Long protested that they
were unduly picking on him and, according to the undisputed testimony, several
times inquired if there was not another reason for firing him to which he received'
no reply. He was not allowed to go back into the plant for his personal belongings,
but was told that they would be brought to him.
Thereafter, Long, like Essex, filed and received approval of his claim for unem-
ployment compensation with the Tennessee Department of Employment Security to
which award Respondent filed a protest. Following the hearing on Respondent's
appeal from the denial of its protest, in which it sought to prove that Long "failed
to cooperate with the department manager by not producing good quality work
after being warned several times," the appeals tribunal concluded that the record
failed to establish that Long was guilty of misconduct connected with his work and
allowed the original determination of the agency to stand.15
During the more than 4 years that Long was employed in the plant he was several
times complimented on his work performance by Alcorn. On September 3, 1959,
he engaged in an argument with Alcorn over the manner in which eight white parade
boots had been "fixed" and was told that if he repeated it he would be fired.16 Never-
theless, shortly thereafter, in early September, Alcorn told him that he "was a good
hand, did good work, [and] was a fast hand." Of the four men who were engaged
as toe formers, Long was one of the two selected to work on sample boots for ex-
hibition to prospective customers. Six or seven months before his discharge, when
he asked to be transferred to another department, Bean told him that he had nothing
"but good reports" on him from Alcorn.
Alcorn testified he made written memorandums of his criticism of employees
"when it was something out of extraordinary-bad." The only notes he made on
Long prior to his discharge concerned the incident of September 3, 1959, described
above, and two other memorandums, both dated October 1, 1959, and reading as
follows:
#1. Bobby Long was told to stay at his machine and get quality on boots.
#2. I brought back a case of #700 boots that had bad toe and not baking
in around the toe and warned again.17
The testimony establishes, however, that three of the other four employees whose
memorandums were read into the record by Alcorn had as many or more, critical
memorandums in their files than Long. Thus William Garrett had 4, including 1
also dated October 1, 1959; Harry Lee had 3, 1 of them involving 77 boots; Doyle
Wilmouth had 4, 3 of them within a period of 12 days. There were also received
in evidence memorandums by Alcorn pertaining to two other employees under his
supervision. Thus, Alcorn had made 6 memorandums concerning poor work by
Lewis Martin, one of them involving 72 boots, and 5 such critical memorandums
pertaining to poor quality by Howard Bryant-all 11 having been occasioned between
September 29 and December 2, 1959, while a drive for improved quality was in
14 Long normally worked on 112 cases a day ; each case contained 24 boots, or a total
of 2,688 boots
ss See footnote 12, supra.
16 Alcorn testified, however, that during the heated discussion "one of the other boys.
said he run (sic] the boots" in question.
17 Alcorn conceded that only "some" of the boots in the case were involved.
ACME BOOT COMPANY, INC. 1381
progress.18 According to Alcorn, however, none of the others were discharged for
poor work. Indeed , he testified that the only time he had ever fired anyone for poor
work was "a couple of years ago."
On the entire record, I find and conclude that Respondent discharged Long on
October 2 because of his union activities, and that by doing so, it violated Section
8(a) (1) and (3) of the Act.
E. The discharge of Gentry
Charles Gentry was employed from July 1 to October 16, 1959, in Respondent's
packing department which has a total complement of 43 employees. He had three
tasks to perform-extracting "the wooden lining out of the shoe," X-raying the
bottom to ascertain if it had any tacks, and ironing out the top of the boot to remove
wrinkles.
At the request of Burgess , he signed an application to join the Union on October 5
and attended the meeting at the Gridiron Cafe on the following night. "Most days"
thereafter, he "stayed in [Schultz'] company" during the noon lunch period. While
sitting in the car with Schultz, Gentry's foreman, Ed Scarlett, Bean , Thomas, and
Alcorn passed or drove by. On some occasions during this period, the representa-
tives of management who had their cars parked in front of the plant "would go back
around the block and . come back to where" Gentry and the other employees
were parked. On one such occasion , when Gentry was seated in his car with Burgess
and Schultz, Scarlett passed and exchanged greetings with him.19 At the second
election conducted on December 30, Gentry served as an observer in behalf of the
Union.
On October 16, Bean received instruction from the Clarksville office to reduce the
Cookeville daily production from 5,000 pairs of boots to 4,800. Though Bean
testified that it would require a reduction of at least 500 pairs a day before a reduc-
tion in force in all departments would be made, he nevertheless told several of his
supervisory staff to be planning to see if they could reduce the number of employees,
thus apparently suggesting that further consideration would be required to determine
where the cut, if any, for the 200 pair reduction would be made. In this connection
Bean further testified that it normally took 8 to 9 working days from the time the
raw material entered the Cookeville plant until the finished product left the last
department-the packing department in which Gentry was employed.
About an hour before quitting time on the same day, October 16, Bean told
Scarlett "to be figuring his help to see if he could cut any labor on the cost of
shoes." 20 Though Bean had instructed him only to be "figuring his help to see" if
the staff could be reduced, and though Scarlett admitted he knew that "when a cut
in production is made at the plant . . . it takes . about 8 days from the time
the cut starts in the first department until it hits [his] department," he immediately
laid off Gentry and Rose Jackson. He told Gentry that "he had orders to lay [him]
off . . . due to a cut in production." 21 Jackson, who was then engaged in painting
white parade boots, was recalled immediately, did not lose a single working day, and
was still employed by Respondent at the time of the hearing herein.
Scarlett haltingly, and in apparent discomfort, tried to explain his termination and
recall of Jackson by testifying that when Bean talked to him about the reduction
he mentioned that at that season of the year they did not "run as many parade boots
as [they] do at other times," and that he "misunderstood Mr. Bean . . . as to the
different types of boots." Bean, however, in testifying concerning his conversation
with Scarlett pertaining to the reduction made no mention of this subject.
Gentry returned to the plant on the Friday following his termination to get his
check, and asked Scarlett whether there was any chance of getting called back to
work. Scarlett answered in the negative, "he sort of doubted it." According to
' The memos pertaining to Martin and Bryant were selected "at random" by Alcorn
from those he made concerning the 32 employees under his supervision in the lasting
department
19 Scarlett admitted he "could have seen them, . . , might have seen the boys," but did
not remember He also testified that from late September on, "there were constant
rumors" emanating from "employees, possibly foremen," that the Union was trying to
organize the plant.
20 Bean further testified that he told Scarlett that "there was going to be a cut in pro-
duction of 200 pairs a day." Scarlett, however, testified that "Bean didn't say [to]
what extent the cut in production was" to be.
21 Bean specifically denied that he told Scarlett to lay Gentry off.
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Scarlett, he further told Gentry that they had already cut production by 200 pairs
and that it "look[ed] like [they] might cut even more." In fact, no further reduc-
tion in production was made. Respondent maintained its production schedule at
4,800 pairs down through the time of the hearing herein. Gentry never went back
to the plant to ask for a job because he "didn't figure there was any use in it."
Consideration of all the probative evidence compels the finding that Gentry was
selected for termination on October 16 (the same day that Burgess and Essex were
fired) not for the economic reasons advanced by Respondent, but because he, too,
had been engaged in union activities.
Gentry's testimony that he had never been criticized for unsatisfactory work
stands uncontradicted. Scarlett testified that the sole reason he selected Gentry
for termination was that "he was youngest in length of service" in his department,
notwithstanding that he further testified that Respondent had no "policy" by which
seniority was made the determining factor in the layoff of employees.
Scarlett not only immediately recalled Jackson but arranged to transfer two men
to perform the tasks formerly performed by Gentry-LeFevre being so transferred
"the latter part of October," and Roberts on November 10. LeFevre, appearing
as a witness herein on April 26, 1960, testified that at that time he had been em-
ployed in the finishing department "around 5 or 6 months," indicating that his service
as a replacement for Gentry in the packing department was apparently limited to
November 10 when, to all indications, Roberts took over. Scarlett further testified
that at the time of the hearing he had exactly the same number of employees in his
department as he had on the day he terminated Gentry. It is clear, therefore, that
on October 16, and thereafter, Respondent was in need of the services of someone
in the packing department to perform the services previously rendered by Gentry.
Respondent's own records establish that on October 21, the third workday follow-
ing Gentry's termination, it hired three male employees followed by the hiring of
two more on October 26. Though no direct proof was offered, Gentry's description
of his work makes it reasonable to assume that the packing department utilized the
services of unskilled, or in any event less skilled, workers than those engaged in the
manufacturing process. Indeed, Scarlett testified that in July 1959 when, together
with Bean, he selected Gentry for hire from among 6 to 8 stranger applicants, he
chose him "because he looked husky and strong enough 'to do the work." It there-
fore seems strange indeed, that Respondent should transfer experienced employees
from skilled work to the less skilled work required in the packing department and
then, almost immediately, hire new employees for more skilled work such as:
"Knock midsole tacks, fine heel scouring, and back shoe." All this notwithstanding
Respondent's insistence herein that Gentry was not discharged but only laid off for
lack of work. Indeed, in the representation proceeding, Case No. 10-RC-4562,
culminating in the election of December 30, 1959, Respondent stipulated that
Gentry be considered an eligible voter and that he be permitted to vote in that
election without challange. At variance with this stipulation, however, was Bean's
testimony herein that he decided not to rehire Gentry "very shortly after he was laid
off" on October 16.
When Bean was questioned as to what caused 'him' to arrive at this decision he
testified that during a conversation with Scarlett at that time "about calling some
boys back in," Scarlett told him that Gentry "was very incapable." Scarlett, how-
ever, denied that he ever made any complaint of Gentry to Bean and testified that
Gentry was "a good worker, . worked all right." 22
I find that Respondent discharged Gentry on October 16 23 with no intention of
rehiring him, and that the reason advanced for his alleged layoff-lack of work-
was a mere pretext to cover the true reason for his discharge-his union activities.
By that conduct, Respondent violated Section 8(a)(1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE '
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of 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 of commerce.
22 Scarlett testified that In response to a "routine inquiry" made following the hiring of
new employees, he "might have reported" to Bean that he had to tell Gentry "to go from
one operation to another quite often " But, as stated in the text, Scarlett testified that
he never made "any complaint about it."
22 Layton Oil Company, 128 NLRB 252, footnote 6.
H. K. PORTER, INC.
V. THE REMEDY
1383
Having found that Respondent has engaged in certain unfair labor practices, I
recommend that it cease and desist therefrom, and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Boby Long, Donnie V. Burgess, Gilbert E. Essex, and Charles
Gentry were discriminated against with respect to their hire and tenure of employ-
ment, I recommend that Respondent be ordered to offer each of them immediate
and full reinstatement to their former or substantially equivalent position, without
prejudice to their seniority and other rights and privileges, and to make them whole
for any loss of earnings each may have suffered because of the discrimination against
him by payment of a sum of money equal to the amount he normally would have
earned as wages from the date of his discharge to the date of the offer of reinstate-
ment, respectively, less his net earnings during said period (Crossett Lumber Com-
pany, Inc., 8 NLRB 440), with backpay computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90 NLRB 289. I also
recommend that Respondent make available to the Board, upon request, payroll
and other records to facilitate the determination of the amounts due under this
recommended remedy.
Because of Respondent's prior record of unfair labor practices as disclosed in 116
NLRB 565, and because the discriminatory discharges herein for union or con-
certed activities go "to the very heart of the Act," 24 I am convinced and find that
there exists the danger of the commission of similar and other unfair labor practices.
I therefore recommend that Respondent be ordered to cease and desist from in any
manner infringing upon the rights guaranteed to its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Boot & Shoe Workers' Union, AFL-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Bobby
Long, Donnie V. Burgess, Gilbert K. Essex, and Charles Gentry, because of their
union and concerted activities, thereby discouraging membership in the above-named
labor organization, Respondent has engaged, and is engaging, in unfair labor prac-
tices within the meaning of Section 8 (a) (3) of the Act.
3. By interrogating its employees concerning their union activities Respondent
has violated Section 8 (a)( I) 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.
[Recommendations omitted from publication.)
24 N.L.R .B. v. Entwistle Mfg. Co ., 120 F. 2d 532 , 536 (C.A. 4).
H. K. Porter, Inc. and United Textile Workers of America, AFL-
CIO. Case No. 5-CA-1712. June 29, 1961
DECISION AND ORDER
On April 12, 1961, Trial Examiner A. Bruce Hunt issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent 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 copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report.
131 NLRB No. 166.