Davidson Rubber Co.

National Labor Relations Board - Board Decisions

Nov 7, 1961

134 N.L.R.B. 57 (N.L.R.B. 1961)

DAVIDSON RUBBER COMPANY 57
4. By refusing since September -29, 1960, to bargain collectively with the Union
in' good faith as the exclusive representative of the foregoing employees , Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8 ( a) (5) of the Act.
5. By such refusal to bargain , the Respondent has interfered with, restrained, and
coerced its employees in the exercise of their right to bargain collectively through
representatives of their own choosing and to engage in concerted activities for the
purposes of collective bargaining , thereby violating Section 8(a)(1) of the Act.
6. By threatening to close down its plant because of the advent of the Union, and
by promising to grant employees unilaterally the same benefits as they were seeking
through collective bargaining , the Respondent violated Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2( 6) and (7) of the Act.
[Recommendations omitted from publication.]
Davidson Rubber Company and United Rubber, Cork , Linoleum
and Plastic Workers of America , AFL-CIO. Case No. 1-CA-
3426. November 7, 1961
DECISION AND ORDER
On July 14, 1961, Trial Examiner David London issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case 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 Inter-
mediate Report, the exceptions and brief, and the entire record in this
proceeding,' and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Davidson Rubber
Company, Dover, New Hampshire, its officers, agents, successors, and
assigns shall :
1. Cease and desist from :
1 The Respondent 's request for oral argument is hereby denied as the record and the
Respondent 's brief adequately present the issues and positions of the parties
134 NLRB No. 7.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Discouraging membership in United Rubber, Cork, Linoleum
-and Plastic Workers of America, AFL-CIO, or any other ,labor
organization of its employees, by discharging or refusing to reinstate
any of its employees, or by discriminating in any other manner in
regard to their hire or tenure of employment or any term or condi-
tion of employment.
(b) Interrogating its employees concerning their union membership-
and activities in violation of Section 8 (a) (1) of the Act or requiring
them to surrender to it union literature.
(c) Engaging in surveillance of its employees with respect to their
union membership or activities. -
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of rights guaranteed them in Section 7
of the Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment as authorized by Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act of
1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Doris Griffin immediate and full reinstatement to her
former, or a substantially equivalent, position, without prejudice to,
her seniority or other rights and privileges, and make her whole for
any loss of earnings she may have suffered as a result of the dis-
crimination against her, 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 plants at Dover, New Hampshire, copies of the notice
attached hereto marked "Appendix.' 12 Copies of said notice, to be
furnished by the Regional Director for the First Region, shall, after
being duly signed by an authorized representative, be posted by Re-
spondent immediately upon receipt thereof and be maintained by it for
60 consecutive days thereafter, in conspicuous places, including all
places where notices to its employees are customarily posted. Reason-
able 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 First Region, in writing,
within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith.
2 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 "
DAVIDSON RUBBER COMPANY
APPENDIX
NOTICE TO ALL EMPLOYEES
59
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, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in United Rubber, Cork,
Linoleum and Plastic Workers of America, AFL-CIO, or in any
other labor organization of our employees, by discharging or re-
fusing to reinstate employees because they engaged in union and
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 discourage membership in a labor
organization.
WE WILL NOT coercively interrogate our employees concerning
their union or other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, nor will we
require them to surrender union literature.
WE WILL NOT engage in surveillance of our employees with re-
spect to their union membership or activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to form, join, or
assist said United Rubber, Cork, Linoleum and Plastic Workers
of America, AFL-CIO, or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
or to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
WE WILL offer to Doris Griffin immediate and full reinstatement
to her former or substantially equivalent position, without preju-
dice to her seniority or other rights and privileges, and make her
whole for any loss of pay she may have suffered as a result of our
discrimination against her.
All our employees are free to become or remain, or refrain from
becoming or remaining, members of the above union or any other labor
organization.
DAVIDSON RUBBER COMPANY,
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.
60 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
INTERMEDIATE' REPORT
STATEMENT OF THE CASE
Upon a charge duly filed by United Rubber, Cork, Linoleum and Plastic Workers
of America, AFL-CIO, herein called the Union, the General Counsel of the Na-
tional Labor Relations Board, by the Acting Regional Director for the First Region,
issued a complaint against Davidson Rubber Company, herein called Respondent,
alleging that it had violated Section 8(a)(1) and (3) of the National Labor Re-
lations Act, as amended, 61 Stat. 136, herein called the Act. With respect to the
unfair labor practices, the complaint alleges, in substance, that on or about January
27, 1961, Respondent discharged or laid off its employee Doris Griffin, and there-
after failed and refused to reinstate her, because she had joined or assisted the
Union or engaged in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection. The complaint also alleges that between
January 17 and February 15, 1961, Respondent interfered with, restrained, and
coerced its employees by conduct specifically described in the complaint. By its
answer, Respondent denied the commission of any unfair labor practice and pleaded
specially, with reference to the acts alleged to be in violation of Section 8 (a) (1) of
the Act, that "the same were privileged as free speech under the Constitution of
the United States of America and, in any event, not violative of the Act."
At the hearing held before the duly designated Trial Examiner at Dover, New
Hampshire, on May 17 and 18, 1961, the General Counsel, Respondent, and the
Union were represented by counsel. All parties were afforded full opportunity to be
heard, examine and cross-examine witnesses, and to file briefs. Since the close
of the hearing, briefs have been received from the General Counsel and the Re-
spondent which have been duly considered.
Upon the entire record in the case and my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material herein, a corporation duly or-
ganized under, and existing by virtue of, the laws of the Commonwealth of Massa-
chusetts. At all times relevant herein, Respondent has maintained its principal
office and two manufacturing plants at Dover, New Hampshire, where it has been
and is engaged in the manufacture, sale, and distribution of foam rubber products.
In the course and conduct of its business, Respondent causes and continuously has
caused at all times herein mentioned, quantities of foam rubber products to be sold
and transported from said plants in interstate commerce to States of the United
States other thanthe State of New Hampshire, which products are valued in excess
of $50,000 per annum. Respondent admits, and I find, that it is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The discharge of Griffin
The Union began its campaign to organize Respondent's employees in December
1960. During the latter part of that month, William H. Stapleton, a field representa-
tive for the Union, called on Doris Griffin, employed by Respondent, enlisted her
aid in that task, and gave her union literature and applications for membership in
that organization for distribution among Respondent's other employees. Griffin
accepted the assignment and agreed to talk about the Union "in her department and
in the lunch room." Thereafter, she passed out union cards in the lunchroom
during her break periods and also talked in the plant about the Union and what it
could do for the employees.
On January 17, 1961, Griffin attended a union meeting at the home of Patricia
March who had been discharged by Respondent in the preceding month. The March
residence is next door to the home of Robert Knight, an admitted supervisor of
Respondent, and is separated therefrom only by a common driveway approximately
10 feet wide. March testified, without contradiction,' that during the course of the
I Knight was not called as a witness.
DAVIDSON RUBBER COMPANY 6 1
meeting she observed Knight looking out from under the blinds of his living room
window "every time a car pulled in or went out."
Griffin was employed by Respondent from July 27, 1960, until January 27, 1961,
when her employment was terminated under circumstances hereafter detailed. She
was hired as a class B inspector on line 2, one of eight production lines in the
urethane department , where it was her duty to see that the automobile armrests
produced on that line were properly made, cleaned , inspected , and packed. Al-
together eight employees worked on that production line, three men engaged as
operator, clamper, and unclamper , four other girls and Griffin , who was the last
employee on the line. It wasthe duty of at least one of the other girls to clean the
armrests . Griffin, however, was provided with cleaning supplies for use if the arm-
rests required further cleaning.
After 5 to 6 weeks at the foregoing task, Griffin was asked to fill in for a girl ort
a week 's leave in the cushion department following which she was assigned to train:
a girl as an inspector for line 1. About 2 to 3 weeks later , she was assigned to,
assist an officer of Respondent on the production of the "upper trim" of the Ford
Thunderbird , a project then in the experimental stage. Thereafter , she also worked'
as an inspector of chrome stripping on Montclairs until that line was shut down
in the middle of January 1961 , when she was transferred back to inspection at which
task she was engaged on Friday, January 27.
At about 4 : 50 p.m. of that day, Leonard Hamilton , her supervisor , informed
her that he would "have to let [her] go." Though she asked him what he meant
by "let go, was [ she] fired, laid off, or what ," he merely repeated : "Just let go."
When she asked him why, he told her he didn 't know, that he was merely told to
let her go. Though she remonstrated that there were other inspectors with less
seniority , she was unable to get any information from him as to the extent of het
termination , or the reason therefor.
The findings contained in the preceding paragraphs are based on the credited testi-
mony of Griffin , who impressed me most favorably as a witness worthy of belief.
Hamilton 's testimony that he told her he was laying her off "because her line was
being dissolved and her past performance and because [ they] didn ' t have a training
program to train other inspectors to go on the other line , and that the other in-
spectors were superior," is not credited . His demeanor and manner of testifying
left me with the distinct impression that he was more concerned with acquitting
Respondent of liability herein than with testifying truthfully.
Griffin's reference to her seniority rights was occasioned by the "Employees'
Manual" issued by Respondent to govern the relationship with its employees. Ac-
cording to that manual , in the event a reduction in the work force is required, em-
ployees are to "be laid off according to their plantwide seniority in their classifica-
tion, except in unusually extenuating circumstances or when their skill or ability is
not equal to that of junior employees ." The manual further provides that inspec-
tors, "after exhausting their seniority within their classification , can then exercise
their seniority in the general factory classification."
Griffin testified that on the following Monday morning, January 30, she called
Floyd McDowell , Respondent's personnel manager, and several times asked him why
she was let go and why her seniority over several other girls did not prevail; that
she never got a direct answer as to why she was being laid off and , with respect to
her asserted seniority rights, he merely stated that seniority was "flexible"; that
when she asked who had made the decision to let her go he replied that he and two
or three others had done so ; that she then told him that she would have to assume
that it was "because of union activities " to which he replied "You said it , I didn't."
Stapleton , who was listening on an extension telephone , corroborated Griffin's ver-
sion of that conversation.
McDowell first denied that the word "union" was mentioned by Griffin in her
conversation with him . Later, however, he admitted that the Union did enter into
the conversation and testified with respect thereto as follows: "As I remember, she
made a statement to me that I believe, or.'I.bet I was laid off because of my asso-
ciation with the Union '; and as near as I can recall, my response was, `Do you
mean to tell me that you're associated with the Union?' and she said , `Of course
not'; `Well, then ,' I said, `obviously this could have had no bearing in the layoff."'
I find it incredible to believe that Griffin would first accuse Respondent of laying
her off "because of [her ] association with the Union" and, in almost the next
breath , vehemently deny such association . This, coupled with the evasive and con-
tradictory testimony offered by McDowell, has confirmed the judgment I formed at
the hearing that Griffin was more trustworthy of belief. Accordingly, I credit her
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
version of the telephone conversation detailed above, corroborated as it was by
Stapleton.
Though it was claimed by Respondent at the hearing that Griffin was only laid
off on January 27 because of an economic reduction of staff , McDowell testified that
Respondent now has no intention of ever recalling her to work.2 This, notwithstand-
ing the provision in the manual that "permanent employees will be recalled to work
in inverse order of lay-off," and that since January 27 , Respondent has hired several
new inspectors and at least 25 to 30 general factory employees , all of them without
prior experience . On the entire record I am convinced and find that Respondent
permanently discharged Griffin on January 27, 1961.
Griffin was hired on July 27, 1960, at a rate of $ 1.18 an hour and received two
increases thereafter until, 6 months later , on January 27, the day of her discharge,
she was receiving $ 1.42 an hour. And, because she "most always" met or exceeded
her production quota, she received additional incentive pay.
During the course of her employment she was complimented for her good work by
Exas, head of the entire urethane department , by Ferullo, Hamilton's predecessor in
charge of quality control , and was never warned nor reprimanded for her work
performance . Presumably , because of her competence , she was asked to train newly
hired inspectors . When work slackened in her department only 3 weeks after she
was first employed , and Ferullo told her "that he had one too many inspectors," he
had her transferred to general factory work "until such time as he needed another
inspector ." On Thursday , January 26, 1961, Exas told her she had "bumped" Yvonne
Been , another inspector who had less seniority than Griffin.
Hamilton was notified shortly after noon on January 27, by Exas , his department
head , that he would have to lay off two inspectors . At that time , Hamilton testified,
"there was no doubt in [his] mind that [ he] was going to let [ Griffin ] go." Though
he knew it was policy and "custom of the Company to offer Class B inspectors, prior
to layoff , an opportunity to work in general factory ," he consulted no performance
or seniority records pertaining to Griffin , nor did he consult the personnel manager
before selecting Griffin as his first layoff. He further testified that he arrived at this
decision so unhesitatingly and exclusively because of her work performance on line
1 during Tuesday and Wednesday of the same week. Thus, he testified that during
the afternoon of Tuesday , January 24 , a "clog-up" occurred at her post occasioned
by dirty armrests coming down her line which made it necessary for him to help her
for 15 to 20 minutes until the line was running smoothly again.
According to Hamilton , Exas came to him during the same afternoon and told
him there was trouble on line 1 .3 In response to Hamilton 's inquiry concerning
the cause of the trouble, Griffin told him that the "parts were too dirty, she couldn't
get them clean ," and he again found it necessary to help her get the line cleared
away. He conceded , however , that on this occasion some of the parts were so
dirty that they had to be returned to the "rework area where they clean parts" that
are rejected in the field. According to Hamilton , though he gave no detailed testi-
mony concerning thereto , "the same thing just repeated all over again , about two or
three times," on the following day, Wednesday , January 25.
Griffin, on the other hand, testified that the only time during the last week of her
employment her line became clogged was about 2 p in. of Thursday, when she went
to Hamilton and told him the armrests were "very dirty, so dirty that they could not
be cleaned . . . in the split second . which the inspectors were given to get" each
part washed and packed for shipment 4 As a result , her line became clogged for
about half-hour and she enlisted the aid of one of the girls on her production line
to clear up the line.
For the reasons heretofore indicated , I credit Griffin's version of her work per-
formance during the week ending January 27 , and reject that of Hamilton. In addi-
tion , Hamilton conceded that he found "a certain percentage of poor work" by other
inspectors and that on occasion he made written notations of such poor work in the
employee's personnel file, but he made no such memorandum for Griffin's file 5
Respondent 's own testimony establishes that on January 27, when Griffin was
allegedly laid off because of a reduction in force, she had greater seniority than at
2 Respondent 's alleged reason for this change in the status of Griffin from one who was
merely laid off, to one who will never be recalled , is disposed of in a later portion of this
report.
8 Exas made no mention of this alleged incident during his testimony
4 Hamilton testified that an inspector inspects and packs about 3,500 pieces during an
8-hour day, or approximately 437 per hour
5 This , notwithstanding, according to Hamilton's own testimony, that he was not ad-
vised of the need to reduce his staff until after noon of the following Friday, 2 to 3 days
after Griffin 's alleged poor performance.
DAVIDSON RUBBER COMPANY 63
least three other inspectors who were retained after that day. The record is also
conclusive that as a class B inspector she was entitled to the so-called "bumping"
rights against unclassified "general factory" employees as specified in Respondent's
Employees' Manual.
Hamilton, the supervisor who selected Griffin as the first inspector whose services
were to be terminated, testified that he made this selection "because of her ability
and . .. performance . on Tuesday and Wednesday of that week." Not only
have I discredited his version'of the extent of the difficulty on her line during those 2
days, but even if it be assumed , arguendo, that Griffin's line was clogged on more
than the one occasion concerning which she testified, the record fails to establish
that any of these incidents could be attributed to neglect or failure on the part
of Griffin to properly perform her job.
It was Griffin's duty during those 2 days to clean and pack about 437 armrests an
hour, or approximately 7 to 8 per minute, as these parts came to her at the end of
the production line. It is thus apparent, if any armrest was unduly dirty thereby re-
quiring more than normal attention by her, that the line would clog. Also, Hamilton
admitted that the clogging could even be caused by "a mechanical failure on the
machine, or the parts were not clean enough when they came down by . the
cleaning people on the production line itself . as distinguished from the inspec-
tor operation." In such cases Hamilton testified, "the inspector was trying to do two
people's jobs, one besides her own."
On the entire record I am convinced that the reason ascribed by Hamilton at the
hearing for his selection of Griffin for termination was but a pretext, and that the
true reason must be found elsewhere. Indeed, it was because no valid reason existed
for ignoring Griffin's semonty rights that Hamilton was unable to give her any reason
for her termination when she asked for an explanation on January 27.6
Not only was Griffin denied her seniority rights to remain as an inspector by the
retention of three junior inspectors, but she was also denied the established right as
prescribed by the Employees' Manual to exercise her plantwide seniority to replace
general factory employees, of whom there were 75 to 100 with less seniority.
McDowell, though admitting that he was not consulted until after Griffin was ter-
minated, testified that Griffin was not accorded this right because "she had not worked
in general factory at any prior date; and this would have meant laying off a trained
person and replacing her with an untrained person during an economic cutback."
Not only was his statement and the testimony of Exas, that Griffin had not previously
worked in the factory untrue as has heretofore been found, but McDowell admitted
he could not "remember any single situation in which [he] did not permit an in-
spector displaced from inspection to bump in general production." In addition Exas
testified "that any one who has seniority and has been kept any length of time should
be able to perform any type of job we have." Furthermore, McDowell admitted
that since January 27, Respondent has hired at least 25 or 30 general factory em-
ployees "off the street, without prior experience." Hamilton, upon being questioned
about the nature of general factory work, and concerning which he strangely seemed
to know very little, was asked why Griffin was not given an opportunity to work in
general factory prior to her layoff, testified that he did not know.
By reason of all the foregoing I find that on January 27, Griffin was discharged
from her employment without any intention by Respondent of ever recalling her and
that she was not merely laid off on that day as claimed by Respondent.? In view of
that finding, it is unnecessary for me to consider Hamilton 's testimony and that of
McDowell concerning a spot check Hamilton made on January 30 or 31, after
Griffin's discharge, when Hamilton allegedly found some extremely dirty parts in
boxes containing Griffin's identification as the inspector thereof. It was for this
reason , McDowell testified, that it was decided not to recall Griffin. In view of
Respondent' s determination on January 27, to permanently sever Griffin from its
employment, this evidence of alleged events discovered during the following week,
even if believed, could have played no part in the decision of the prior Friday.8
Notwithstanding the findings just announced , the ultimate question still remains
9 Exas admitted that in a telephone conversation on January 28, with Patricia March,
the latter asked him why Griffin was laid off and he replied that he "didn't know "
7 Layton Oil Company, 128 NLRB 252, footnote 6
8 Were it necessary for me to consider this phase of Respondent's defense, I would re-
ject it as not being established First, the mere fact that Hamilton testified that the
boxes in question contained Griffin's inspection slips does not prove conclusively that she,
in fact, inspected and packed those boxes Secondly, though McDowell testified it was
this alleged discovery that prompted his decision never to recall Griffin, his personnel
office on Tuesday, January 31, notified the New Hampshire Employment Security Office
that Griffin had been merely "laid off because of lack of work." [Emphasis supplied ]
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether Griffin was discharged because of her union activities. Unless that question
is answered affirmatively Respondent must be acquitted of any charge of discrimi-
nation proscribed by the Act. Though Respondent denied knowledge of Griffin's
union activities, consideration of the entire record compels the conclusion that it'
had such knowledge, and that Griffin was discharged because she engaged in such
activities.
Griffin's circulation of applications for union membership in the lunchroom dur-
ing break periods, and her further conversations with employees in the plant in
seeking union support, has heretofore been alluded to. In connection with that
activity, Exas admitted that he and other representatives of management had coffee
in the lunchroom two or three times a day. It is, therefore, not surprising that
during the course of a telephone conversation on January 28, when Exas was ques-
tioned by March as to why Griffin had been terminated Exas though professing ig-
norance of the reason therefor, admitted that because "news travels fast," he knew
that Griffin and three other girls were "affiliated with the Union."
It must also be deemed as admitted that Respondent watched the Union meeting
on January 17 at the March residence and in which meeting Griffin participated.'
Foreman Knight, who watched that meeting, was not called as a witness by Respond-
ent. His failure to testify warrants the inference that, if called, he could'not truth-
fully deny March's accusations, and that his testimony would not support Respond-
ent's contentions. Whitin Machine Works, 100 NLRB 279, 285, enfd. 204 F. 2d'
883 (C.A. 1).
Also of significance on this subject, was McDowell's response to Griffin's accu-
sation on January 30 that the circumstances compelled her to assume that she was
being discriminated against because of her union activities. McDowell's response
thereto that it was she, and not he, who was making the accusation does not impress
me as the normal response of a personnel manager who, as McDowell professed,
was completely unaware of any such activity by the accuser or by other employees.
Even if it be assumed, arguendo, that the record is devoid of direct evidence that
Respondent had knowledge of Griffin' s union activities, it would not alter my con-
clusion as to the true reason for her discharge. Experience in the administration
of the Act has demonstrated "that direct evidence is seldom obtainable when seek-
ing to probe an employer's mind to determine the motivating cause of his actions."
N.L R.B. v. Bird Machine Company, 161 F. 2d 589, 592 (C.A. 1), and cases cited
therein. It is for this reason that "direct knowledge of any employee's concerted
or union activities is [not] a sine qua non for finding that he has been discharged
because of such activities. On the contrary, there is well established Board and
court precedent that such knowledge may be inferred from the record as a whole."
Wiese Plow Welding Co., Inc, 123 NLRB 616. This is especially true here, where
Respondent, whose opposition to the entry of the Union into the plant was candidly
admitted, "has not shown any satisfactory reason for the divergence from its asserted
policy [on layoffs, thus justifying a rejection of] Respondent 's contention concerning
the reason for [Griffin's] selection for layoff." N.L.R.B. v. Bird Machine Com-
pany, supra. Also to be noted is the timing of the discharge shortly after the
opening of the union campaign and the active part played therein by Griffin, de-
scribed by Stapleton as the "key person" in that campaign.
Having found that Respondent had knowledge of Griffin's union activities and
that no valid reason for her discharge in fact existed, I can only conclude that the
reasons assigned by it were mere pretexts to cover Respondent's unlawful - desire
to put an early end to the Union's campaign, and to discourage its employees from
becoming members of the Union. By that conduct, Respondent violated Section
8(a)(3) and (1) of the Act.
Further Violations of Section 8 (a) (1) of the Act
On or about February 14, 1961, a substantial number of Respondent's employees
received, at their homes, a letter and a card which had been mailed to them by the
Union. On February 15, Exas approached employee Croteau at his machine and
asked him whether he "had received the union letter and the card." When Croteau
replied that he had, Exas asked him "to pass it in" as other employees had
already done. Croteau stated that he did not have the letter or card with him,
whereupon Exas requested that he bring them in which Croteau did on the following
day. Having lost the envelope in which the letter came, Exas asked him to sign
his name on the back of the letter and Croteau.complied.
After requesting Croteau to bring in his letter and card, Exas turned to employee
Ethyl Curtis, who was standing close by, and asked her if she had also received
such a letter. She replied that she did and, upon Exas ' request , took it out of her
DAVIDSON RUBBER COMPANY 65
pocketbook and gave it to him. During the same day, Croteau saw 10 to 15 such
letters sticking out of Exas' backpocket after observing "him going from belt to belt
and picking up letters and putting them in his backpocket." Exas testified that after
he received the first letter, he went into his office and read it, and that thereafter,
though he admittedly "knew what the letters were about," he asked for and received
10 to 12 such letters from various employees and turned them all over to McDowell.
By Exas' interrogation of Respondent's employees concerning the receipt of
union literature and his demand that the same be turned over to him, Respondent
interfered with, restrained, and coerced its employees in violation of Section 8(a) (1)
of the Act.
A similar conclusion is drawn with respect to Knight's surveillance of the Union
meeting at the March residence on January 17. It is, of course, true that Knight was
at liberty to place himself in his home where he was most comfortable, or otherwise
desired to be. Nor was he required to place himself where it would be physically
impossible for him to observe who was entering or leaving the March residence.
But where the undisputed record shows, as it does here, that Knight lifted a drawn
shade to observe who was driving in and out of the March driveway, I can only
conclude that Knight took that position not for his comfort or other innocent pur-
pose, but that he deliberately placed himself near that window for the surveillance
purpose described above. By that conduct, Respondent interfered with, restrained,
and coerced its employees in violation of Section 8(a) (1) 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 connection
with the operations of Respondent described in section I, above, have a close, inti-
mate, 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
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 Doris Griffin was discriminated against with respect to her
hire and tenure of employment, I recommend that Respondent be ordered to offer
her immediate and full reinstatement to her former or substantially equivalent
position, without prejudice to her seniority and other rights and privileges, and
to make her whole for any loss of earnings she may have suffered because of the
discrimination against her by payment of a sum of money equal to the amount she
normally would have earned as wages from January 27, 1961, to the date of offer
of reinstatement, less her net earnings during said period. Said backpay shall be
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 amount due under this recommended remedy.
In view of the nature of the unfair labor practices committed, the commission
of similar and other unfair labor practices reasonably may be anticipated. I there-
fore recommend that Respondent be ordered to cease and desist from in any manner
infringing upon 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. United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO,
is a labor organization within the meaning of the Act.
2. By discriminating in regard to the hire and tenure of employment of Doris
Griffin because of her union activities, thereby discouraging membership in the
above-named labor organization, Respondent has engaged in and is engaging in
unfair labor practices. within the meaning of Section 8(a)(3) of the Act.
3. By the discrimination mentioned immediately above, and by interrogating and
watching its employees concerning their union activities, and requiring them to sur-
render union literature, Respondent has violated Section 8(a)(3) 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.]
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