Fry Products, Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1954

110 N.L.R.B. 1000 (N.L.R.B. 1954)

1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
otherwise valid,' a bar to a representation proceeding during its ini-
tial 2-year period," with the one exception that an expired contract
temporarily extended until such time as the parties enter into a new
agreement will not be given such effect.' The majority, however,
expands the exception to embrace all contracts which are not viewed
from their very inception as being the final agreement between the
parties, upon the ground, apparently, that such contracts do not pro-
mote industrial stability." Certainly, though, the contract here in
-evidence, being terminable by its terms only by the parties entering
into a new agreement, is as productive of industrial stability as con-
tracts terminable at will which the Board has recently held to consti-
tute a bar for an initial 2-year period." The unfortunate effect of
the Board's decision will be to deny newly contracting parties the
salutary stabilizing effect of a contract bar where they have made
provision in their contract for possible revision upon further explo-
-ration of their new relationship. At any rate, we do not believe that
the position taken by the majority is consonant with past Board rul-
ings in this matter, and as new policy, we feel it is unwise. We would
find the contract a bar and dismiss the petition.
4 As noted in the majority decision , the contract now before us contains substantial
terms of employment and could , if the parties desired, serve as the basis of their rela-
tionship for a long period of time. Furthermore , there is no evidence in the record that
the contract was signed ( 1) at a time when there was no representative complement of
employees in the plant or (2) in order to forestall an election among the employees.
8 Rohm & Haas Company, 108 NLRB 1285 ; Sanson Hosiery Mills, Inc., 84 NLRB 654,
655 ; Faltrol Corporation, 74 NLRB 1307, 1309
8 See footnote 4, above.
10 The majority contends that its conclusion is in keeping with those past Board deci-
sions holding temporary extensions of recently expired contracts to be no bar. E. g.
Iowa Public Service, cited footnote 3, above. However , the majority reaches its con-
clusion by construing those cases as turning solely on the point that temporary contracts
are involved. In so doing , it finds to be immaterial the fact that each case cited in sup-
port of their position concerns a contract which recently expired and was only then tem-
porarily extended . We think the majority is wholly unwarranted in relegating this latter
factor in this case to insignificance . Certainly , the cases themselves offer no justifica-
tion for such an interpretation
n Rohm & Haas Co , supra
-FRY PRODUCTS, INC. and MARIE ATWOOD, EMMA WILLIAMS EVANS,
FAYE CARR AND ANNA RUTH MOORE. Case No. 9-CA-657. Novem-
ber 24,1954
Decision and Order
On May 19, 1954, Trial Examiner John C. Fischer 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 copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor practices
110 NLRB No. 169.
FRY PRODUCTS, INC. 1001
alleged in the complaint and recommended dismissal of those allega-
tions. Thereafter, the General Counsel filed exceptions to the Inter-
mediate Report and a supporting brief, and the Respondent filed a
reply brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the briefs, and the entire record in
the case, and finds merit in the General Counsel's exceptions. It
adopts the Trial Examiner's findings, conclusions, and recommenda-
tions with the following additions, exceptions, and modifications.'
1. The Trial Examiner found that the Respondent failed to recall
Faye Carr after a layoff period beginning March 4, 1953, because of
her incompetence, and not because other employees opposed her em-
ployment. We do not agree.
Carr was employed by the Respondent in November 1952 and laid
off with the other girls in the plant on March 5, 1953. The record is
clear that Carr was 1 of the 4 union protagonists in the plant 2 and
that Plant Manager McGhee was aware of her activities.3
Although the Trial Examiner found that nobody had anything
against Carr, there is substantial evidence that many employees linked
Carr with the three other union leaders, and because of this close asso-
ciation considered her persona non grata. Several employees testified
that they had refused to work with all four girls.' In fact, Virgie Lee,
the antiunion leader in the plant, testified that on March 10, when
McGhee told her to notify the girls to return to work, she objected
to the recall of all four Charging Parties, including Carr. Just as
the hostile women in the plant associated the four Charging Parties
together, McGhee also repeatedly linked them together in his testi-
mony. Thus, he testified that the reason he did not recall the four
girls was "because these people refused to work with them." Again
grouping the Charging Parties together, McGhee told Carr's mother
in June, after the unfair practice charges had been filed, that he did
not have "anything against any of the four girls that are off," and that
, As the Respondent did not file exceptions to the Trial Examiner's finding of viola-
tions of Section 8 (a) (1) of the Act, we adopt them without further comment.
2 The Trial Examiner found that the "original organizing campaign conducted by
Marie Atwood , Emma Williams Evans, Anna Ruth Moore and Faye Carr failed of its
purpose at the ballot box shortly after January 20, . . .
3 Thus, on March 13, Carr went to see McGhee about being recalled to work He told
her : "There is no damn union going to tell me what to do " During April , Carr asked'
McGhee if the reason why he did not want her back at work was because he thought
that "she was beginning the Union stir-up ." McGhee replied : "Weren't you?"
4 Employee Margaret Jeffries testified that on March 10 she told Virgie Lee she would
not work with the four girls . Employee Hafley testified that about April she heard
from Lee that the four girls would be recalled and she told Lee she would refuse to work
with them . Employee McKinney refused to work with Carr specifically because of a
petty grievance
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was dismayed at the "attitude of those girls working now, the way
they have treated those four girls." [Emphasis supplied.]
As to the ineptness finding of the Trial Examiner, we assume-
absent any rationale given by the Trial Examiner-that it was based
-on the Respondent's contention that Carr did not meet her minimum
production quota. However, Carr's work records during the 2-month
period preceding the March layoff do not show that she was the least
efficient member in her work group, but rather reveal evidence of pro-
gressive improvement.5 Indeed, in several instances, the piece-rate
figures for the other three women in the working group, who were
all hired about the same time as Carr, were lower than hers. Signfi-
cantly, although employees Holt, Carson, and Rigney also failed to
make their minimum production quotas, they were recalled after the
March layoff. Moreover, at the time of her layoff on March 5, McGhee
told Carr that she would be recalled when needed. He did not tell
her she was being permanently laid off because of incompetency.
We recognize that it is the prerogative of management to determine
which of its deficient operators it should terminate. The Respondent's
termination of Carr would not necessarily be discriminatory because
other operators with production deficiencies were retained. However,
these facts may properly be considered in the light of the entire record
in determining the motive for McGhee's failure to recall Carr. * Con-
sidering the foregoing facts, including the disparity of treatment of
Carr and the other women in her working group, and the fellow
employee hostility, we reject the Trial Examiner's finding that Carr
was not recalled because of ineptness. The preponderance of the
evidence persuasively establishes, and we find, that the Respondent
refused to recall Carr after the layoff period for the same reason that
-it failed to recall the other three Charging Parties and that it thereby
violated Section 8 (a) (3) and (1) of theAct.e
THE REMEDY
Although he found that the Respondent had on March 10, 1953,
discriminatorily refused to reinstate Atwood, Evans, and Moore, the
5 The parties stipulated that the payroll entry "75" indicated that the particular em-
ployee had made a minimum piece rate of 75 cents an hour for a specified period of time.
All the employees in the working group were hired about November 1952.
January 17 , employee Rigney made 37; Holt 31 ; Carson 40; and Carr 34.
January 24 , Rigney made 43; Holt 37 ; no entry for Carson ; and Carr 31.
January 31 , Rigney no entry ; Holt made 53 ; Carson made 53; and Carr 47.
February 7, Rigney made 31; Holt 40 ; no entry for Carson ; and Carr 45.
February 21, Rigney made 53; Holt 61 ; Carson 60; no entry for Carr.
February 28, Rigney made 46; Holt 42; Carson 67 ; no entry for Carr.
March 7, Rigney made 50 ; Holt 40; Carson 77; Carr made 68.
9 The Trial Examiner found that on March 10 , 1953, the Respondent had refused to
recall Atwood, Evans , and Moore to their old jobs after an economic layoff because of
pressure exerted by antiunion employees , thereby violating Section 8 ( a) (3) of the Act.
The Respondent has not excepted to this finding.
FRY PRODUCTS, INC. 1003
Trial Examiner recommended that the discriminatees not be rein-
stated and that they receive back pay only from March 10 to 26 because
on the latter date, Plant Manager McGhee intended to recall the dis-
,criminatees, but was "thwarted . . . by the refusal of the girls to
work with the three discriminatees because of the rumor." The
General Counsel has excepted to this recommendation on the ground
that the discriminatees, including Faye Carr, were not guilty of any
misconduct which would warrant a departure from the Board' s usual
reinstatement and back-pay remedy for the discrimination practiced
against them. We find merit in this contention.
The Trial Examiner's recommendation is based on his theory that
there were two separate stages in the Respondent's motivation for not
recalling the discriminatees : (1) On March 10 the Respondent acqui-
esced in the antiunion hostility of the majority of its employees and
therefore did not recall the discriminatees, which was unlawful;
(2) on March 26 it would have recalled the discriminatees, but for
the circulation of the morals rumor, which increased the hostility of
the antiunion employees towards the discriminatees and made their
job restoration a practical impossibility.' The Respondent therefore
did not recall the girls on March 26, which, the Trial Examiner asserts,
was lawful. This separate and dual motivation theory is not supported
by the evidence in the case and is also inadequate as a matter of law.
There is no evidence to support the Trial Examiner's conclusion
that on March 26, rather than before or later, Plant Manager McGhee
was prepared to recall the discriminatees but was prevented from
doing so by employee discontent generated by the morals rumor.
McGhee did not so testify. In fact, he testified only that the morals
rumor was already current on March 10, when he first decided not to
recall the discriminatees, and that it was the discontent generated by
the union movement and the morals rumor which together persuaded
him not to recall the discriminatees on that date.8 Nor is there any
evidence that McGhee communicated a change in his motivation to
the discriminatees or to other employees either on or about March 26.
Finally there is little convincing evidence that any of the women in
the plant had changed their minds about working with the union
protagonists and that but for the morals rumor they would have been
willing to resume working with them on or about March 26. Accord-
ingly, we reject the Trial Examiner's finding that the Respondent
would have reemployed the discriminatees on and after March 26,
7 This two stage theory of motivation is entirely that of the Trial Examiner. The
Respondent made no such contention either in its answer to the complaint or during the
course of the hearing.
8 McGhee was in error in stating that the rumor was current on March 10. The
credible evidence of other witnesses establishes that , as found by the Trial Examiner,
the rumor did not start until about March 20, after McGhee had decided not to recall the
.discriminatees.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but for the discontent among plant employees caused by the morals
rumor.
On March 10, as found by the Trial Examiner, the Respondent
discriminatorily denied reemployment to certain employees. It was.
therefore required to make them whole for the loss suffered by the
discrimination practiced against them and to reinstate them to their
jobs. The evidence is clear that, as found by the Trial Examiner,
none of the discriminatees was responsible either for starting or
spreading the morals rumor. They were not therefore guilty of any
misconduct. In these circumstances, the Respondent was in no better
position than any employer who refuses to reinstate an employee
lawfully entitled to such action because of the employer's honest but
mistaken belief that the employee has been guilty of misconduct.
As we view the situation, the statutory protection extended to
a blameless employee is a firm and clear guarantee, not one which
constantly varies with the correctness of the employer's opinion
or with accuracy of his sources of information. Nor does the Act
expose the innocent employee to the hazard of his employer's
mistake where the consequence of this mistake is to divest the
employee of a right guaranteed by the Act."
Accordingly, we find, assuming arguendo, that the Respondent's
motivation for not recalling the discriminatees changed on March 26,
this is no justification for not requiring the Respondent to remedy
the earlier unfair labor practice by the usual provision for reinstate-
ment and back pay.
In order to effectuate the policies of the Act, we shall issue the usual
order directing the Respondent to offer Marie Atwood, Emma
Williams Evans, Anna Ruth Moore, and Faye Carr immediate and
full reinstatement to their former, or substantially equivalent, posi-
tions 10 without prejudice to their seniority or other rights and privi-
leges. We shall further order the Respondent to make the aforemen-
tioned parties whole for any loss of pay they may have suffered by
reason of such discrimination, by payment to each of them of a sum
of money equal to that which each normally would have earned as
wages from the date of the discrimination to the date of the offer of
reinstatement, less her net earnings during such period.'1 In comput-
ing the amount of back pay due to the discriminatees for this period,
the customary formula of the Board set forth in F. W. Woolworth
Company, 90 NLRB 289, shall be applied, and the Respondent shall
make available to the Board payroll and other records to facilitate
9 N. L. R. B. v. Industrial Cotton Mills (Division of J. P. Stevens Co ), 208 F. 2d 87,
91 (C. A. 4), cert. denied 347 U. S 935.
10 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
11 Crossett Lumber Company , 8 NLRB 140.
FRY PRODUCTS, INC. 1005
the checking of the amount due. As the Trial Examiner did not find
that the Respondent discriminated against Faye Carr, and as he only
recommended that the Respondent make Marie Atwood, Emma
Williams Evans, and Anna Ruth Moore whole for any loss of earnings
they may have suffered by reason of the Respondent's discrimination
against them from March 10 to 26, 1953, the period from the date of
the Intermediate Report to the date of the Order herein shall, in
accordance with our usual practice, be excluded in computing the
amount of back pay due them.12
As a discriminatory discharge "goes to the very heart of the Act,"
we shall further order the Respondent to cease and desist from in
any manner infringing upon the rights of employees as guaranteed
by Section 7 of the Act.13
ADDITIONAL CONCLUSION OF LAW
By discriminating in regard to the hire and tenure of employment
of Faye Carr thereby discouraging membership in a labor organiza-
tion, the Respondent has engaged in unfair labor practices within
the meaning of Section 8 (a) (1) and (3) of the Act.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
Of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Fry Products, Inc., Liberty,
Kentucky, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging memberhip in any labor organization of its em-
ployees by discriminating in regard to their hire or tenure of employ-
ment, or any term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist any labor organization, to bar-
gain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to refrain from any
or all of such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Marie Atwood, Emma Williams Evans, Anna Ruth
Moore, and Faye Carr immediate and full reinstatement to their
11 Utah Conti action Co , 95 NLRB 196
13N L R B v Entwistle Mfg, Co, 120 F 2d 532 (C A. 4).
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
former, or substantially equivalent, positions without prejudice to,
seniority or other rights and privileges previously enjoyed, and make'
them whole for any loss of pay they may have suffered by reason of
the discrimination against them, in the manner described above.
(b) Upon request make available to the Board or its agents, for-
examination and copying, all payroll records and reports, social-
security payment records, timecards, personnel records and reports,,
and all other records necessary to analyze the amounts of back pay
due and the right of reinstatement under this recommended order.
(c) Post at its office at Liberty, Kentucky, copies of the notice at-
tached hereto as "Appendix A." 14 Copies of said notice, to be fur-
nished by the Regional Director for the Ninth Region, shall, after
being duly signed by the Respondent's authorized representative, be
posted by the Respondent immediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or coverd by any other
material.
(d) Notify the Regional Director for the Ninth Region, in writ-
ing, within ten (10) days from the date of this Decision and Order
what steps it has taken to comply therewith.
14 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 "
Appendix A
NOTICE TO ALI. 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, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in any labor organization
of our employees, by discriminating in regard to their hire or-
tenure of employment or any term or condition of employment-
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organi-
zation, to form, join, or assist any labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, and to refrain
from any or all of such activities, except to the extent that such
right may be affected by an agreement requiring membership in
a labor organization as a condition of employment as authorized
in Section 8 (a) (3) of the National Labor Relations Act.
FRY PRODUCTS, INC. 1007
WE WILL offer to Marie Atwood, Emma Williams Evans, Anna.
Ruth Moore, and Faye Carr immediate and full reinstatement
to their former or substantially equivalent positions without
prejudice to seniority or other rights and privileges previously
enjoyed , and make each whole for any loss of pay suffered by-
reason of the discrimination.
FRY PRODUCTS, 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.
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by the four individuals named in the caption, the Gen-
eral Counsel of the National Labor Relations Board, herein called respectively
the General Counsel and the Board, by the Regional Director of the Ninth Region,.
Cincinnati, Ohio, issued his complaint dated August 21, 1953, against Fry Products,,
Inc., herein called the Respondent or the Company, alleging that the Respondent
had engaged in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of
the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies,
of the charges and the complaint, together with notice of hearing thereon, were
duly served upon all parties. The complaint alleged that the Respondent discharged
Marie Atwood, Anna Ruth Moore, and Emma Williams on or about March 10„
1953, and discharged Faye Carr on or about April 14, 1953, because of their con-
certed activities for the purpose of collective bargaining and other mutual aid and
protection, and since said discharges, Respondent has failed and refused to rein-
state and does now fail and refuse to reinstate said individuals to their former or
substantially equivalent positions and also that Respondent did interfere with, re-
strain, and coerce, and is interfering with, restraining, and coercing, its employees
in the exercise of the rights guaranteed them in Section 7 of the Act. The Respond-
ent answered denying the alleged unfair labor practices and affirmatively plead that-
the discharges and refusal to reemploy were for cause.
Pursuant to notice, a hearing was held November 16 through 19, 1953, at Liberty,.
Kentucky, before John C. Fischer, the Trial Examiner duly designated by the Chief-
Trial Examiner. All parties were represented by counsel and all participated in_
the hearing. Full opportunity to be heard, to examine and cross-examine witnesses,-
and to introduce evidence pertinent to the issues was afforded all parties. Upon
motion by the General Counsel the complaint was amended to properly character-
ize the interested Union, the "United Construction Workers, affiliated with United-
Mine Workers of America," referred to herein as the Union. Both the General
Counsel and the Respondent's counsel presented extensive oral argument in closing-
and the General Counsel availed himself of the opportunity afforded by filing a
brief with the Trial Examiner. It was stipulated and agreed by all parties, after
their receipt of the official transcript of the hearings that certain corrections should
be made in this transcript. Such stipulated corrections were received by this Trial
Examiner on February 9, 1954, and upon motion duly made are hereby ordered
to be accomplished in the official transcript of the hearings.
Upon the entire record in the case, and from observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, at all times material herein, has maintained a sales office in,
Detroit, Michigan, and factories and plants in Danville, and Liberty, Kentucky, and'
is now and has been continuously engaged in the business of the manufacture and'-
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sale of automobile slipcovers. During the past 12 months, Respondent, in the
operation of its Liberty, Kentucky, plant, produced and caused to be shipped to
points located outside the State of Kentucky products which exceeded $400,000 in
value, and has caused substantial quantities of materials, supplies, and equipment
used by it to be purchased and transported into Kentucky from other States. It is
found that the Respondent at all times material hereto was and is now engaged in
interstate commerce within the meaning of Section 2 (6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
United Construction Workers, affiliated with United Mine Workers of America,
is a labor organization admitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
By way of exegesis, before I, the Trial Examiner, took the bench in the historic
Casey County Courthouse to hear this alleged unfair labor practice case, I was
accosted by the janitor and advised that the parties were trying to amicably settle
the matter because local feeling was running so high , and that the charges and
rumors involved were a disgrace to the county. When I finally called the hearing
to order and opened the case, all counsel importuned me to recess until 1 o'clock
in the hopes that it could yet be settled without trial. At the end of 3 hours, counsel
returned and reported that, unfortunately, a settlement had not been consummated.
Thereupon, it was stipulated that the witnesses should be sequestered and separated,
and when this was accomplished the trial proceeded.
Elaborating, the Regional Director issued his complaint charging that Respondent
had engaged in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (a) (1) and (3) of the Act, alleging that Respond-
ent discriminatorily discharged and refused to reinstate the four Charging Parties
because of their concerted activities for the purpose of collective bargaining and
other mutual aid and protection, and further that Respondent interfered with, re-
strained, and coerced its employees in the exercise of rights guaranteed them in
Section 7 of the Act. Respondent denied the unfair labor practices and plead that
the discharges were for cause. The issue was joined by Respondent's answer which
pleaded that on Monday, January 19, 1953, several employees of its Liberty plant
went to the office of its then manager and told him that they had been approached
on the preceding day at their homes by several persons who stated that they were
agents for United Mine Workers of America and were going to organize the Liberty
plant.
Shortly thereafter the plant manager went into the shop where the girl employees
operate sewing machines and do other work, and called a meeting. At the meeting
he expressed his views concerning the benefits that might be derived from member-
ship in a union; his views, so expressed, explained to the employees that the law
of the United States gave them the right to become members of a union; and if
the union was selected as a bargaining agent, Fry Products, Inc., would abide by
the law and negotiate with such union.
The plant manager further expressed the view that there were good and bad unions
and that if they were considering joining a union they should choose a union which
would help them. During this meeting one of the employees stated that she had
been informed by the organizers that other plants operated by Respondent at
Duluth, Georgia; Danville, Kentucky, and in Tennessee were all union shops, and
Respondent's manager informed the meeting that this was not true. Thereafter,
Respondent is informed and believes that some of the employees who had signed
union applications asked to have the same withdrawn. In March 1953, because of
a slackening in Respondent's business, all of the employees were laid off except the
men who were retained for maintenance purposes.
When new business was obtained and it was possible to reopen the plant, which
occurred in a relatively short period of time, approximately 10 days after the
general layoff, 10 girl employees were called back on 1 day, several days later
10 more were recalled, and others were recalled in such manner which is the usual
sequence after shutdown. With respect to the 4 complainants, Respondent had
no intention of recalling Faye Carr because she had not produced her piecework
minimum and was considered an incompetent employee and did intend to rehire
the other 3 complainants and the plant manager at Liberty, Kentucky, was so
instructed. The plant manager, in recalling girl employees, had adopted a method
of having an employee who was then working take the message to the employee to
FRY PRODUCTS, INC. 1009
be recalled , such system having been found to be effective in the past; said manager
called one Virgie Lee to his office to take the message to Pauline Patterson recall-
ing her to work and during the instruction conversation Virgie Lee asked him
who else was to be recalled to work and he told her , including the three complain-
ants Marie Atwood , Emma Williams Evans , and Anna Ruth Moore.
Virgie Lee left the manager's office and went into the plant. Shortly thereafter
the sewing machines stopped and said plant manager , accompanied by the plant
manager of Respondent at Danville , Kentucky , who was present, went into the
plant to find out what had happened , said representatives of Respondent found the
girls in a group away from their machines and one of the group , acting as spokes-
man, explained the reason for the stoppage as being that they had been informed
that the said three complainants were to be reemployed and that they did not want
to work with those girls.
There was a discussion from which it was apparent that the majority of the em-
ployees did not want to work with the three complainants and many of them said
that they would not work with complainants . No immediate decision was made, but
the girls were requested to return to work and told they would be advised what deci-
sion the management would take with respect to recalling the said three complainants.
The management thereafter decided it was more important to keep the plant work-
ing than to cause trouble by calling the said three complainants back to work and
advised the employees that the said complainants would not be recalled.
Respondent relies upon the fact that all of its contacts with its employees , in which
it expressed any views , made any arguments , or gave opinions through its executive
personnel , did not contain threats of reprisal or force or promise of benefits, and
that the same were permissible under the provisions of Section 8 (c) of the Labor
Management Relations Act of 1947.
After Respondent 's plant manager had talked to the employees on January 19,
1953 , a number of the individuals came to his office separately and talked to him
about their problems in having been approached for union membership . In each
such interview Respondent's plant manager restated the position of Fry Products, Inc.,
that it recognized the right of individual employees to become members of a union
and the right of unions to organize.
A meeting was held at the plant in Liberty, Kentucky , on April 16 , 1953, which
was attended by Walter Fry , Mack Pittard, Virgil Hoagland, Leo Easterman , and the
plant executives at Liberty , Kentucky . This meeting was not a banquet as charged
in the complaint , but was an afternoon snack which was organized on the morning
of the day it was provided , and the purpose thereof was to introduce to the employees
Messrs. Pittard and Hoagland , who had become affiliated with Fry Products, Inc.
During the course of this gathering the employees were informed of an increase in
their pay from 75 to 85 cents per hour , 2 weeks' vacation with pay , and holidays
with pay, but no double time was paid for attendance at this meeting. The trans-
mission of the information about increases in pay, et cetera, were made as a part of
a management program which had been contemplated and had been put into effect
earlier in a plant at Duluth , Georgia, manufacturing similar seat covers, in which
Walter Fry was the sole stockholder . Upon this answer were the issues joined.
Question
Thus it is clear that the main point to be decided is what was the reason of the
employees in refusing to work with the four, because their reason becomes the motive
of the Company-in absence of any other reason . Therefore the facts underlying
their reasons become relevant evidence . If their motive in refusing to work with
organizers engaged in protected concerted activities was antiunion , the Company is
culpable. The Board has held in cases too numerous for citation that an employer
may not discharge an employee or group of employees when another group or fac-
tion of employees refuses to work with the first group because of their pro or anti-
union activities . An employer is under a duty to insure that its right to hire, dis-
charge or transfer is not delegated to any antiunion or prounion group of employees.
Cf. Maiestic Metals Specialties, Inc., 92 NLRB 1854; Fred P. Weissman Co., 170
F. 2d 952 (C. A. 3).
B. The locale
The locale, Liberty, Kentucky , and certain background facts are necessary to appre-
ciate and understand the events of this case , which provide the answer to the main
question . Liberty, Kentucky , is a very small and isolated town located in Casey
County, in the center of the State of Kentucky . It is served by no railroad, and,
except for a daily intrastate bus, is dependent upon private auto transportation for
333207-53-vol 110-63
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ingress and egress. The surrounding back country is hilly, wooded, agricultural land.
It is, however , an old settlement , and justly proud of its traditions-peopled by a con-
servative citizenry, deeply religious and epitomizing the word liberty for which their
staid county seat is named. The area had been blighted by a searing drought for
nearly 3 years before the trial of this case. The only industry in the area, other than
timber and agriculture , is the automobile seat cover manufacturing conducted by
Fry Products, Inc., the Respondent, which employs about 60 seamstresses. Fry's half
million dollar annual operation was, and is possibly, the financial lifeblood of the
community.
C. Advent of the Union
The record will show that the Respondent purposely chose Liberty, Kentucky, as
the site of this manufacturing operation in order to get away from labor conditions
and the attendant strife of its home base in the Detroit area. It began business at its
Liberty plant in 1947. About the middle of January 1953, a union organizer for
the United Construction Workers, affiliated with United Mine Workers, visited Lib-
erty and prevailed upon certain of the seamstresses to undertake to bring the Union
into the plant. The record indicates that by January 19 some 29 of the 56 employees
approached had signed union cards supplied by the organizer-the vast majority of
whom later repudiated this Union. On this day, Plant Manager Lawrence B. McGhee
learned of the plan and addressed the employees, who had assembled in the plant
in response to directions given by Forelady Lena Bastin.
According to the accepted testimony of Charging Party Marie Atwood, he asked
whether the girls were trying to get a union and which union it was to be. Upon be-
ing advised , in answer to his inquiry, that the proposed union was Local 50 of the
United Mine Workers, McGhee told them that the organization of a union was their
privilege as individuals, but that he personally did not think they needed one-how-
ever, if they did organize, they should get another one. Further, he said he did not
feel that the "women there would want to be affiliated with a pick and shovel, which
this (Local 50) certainly was." He directed their attention to the recent Sunday
newspaper and is correctly quoted by the Charging Parties as saying in this connec-
tion: "Do you girls know what happened in Central City?" He said: "They tore
Central City all to hell-I think if you was going to get a union, you should try a
different one. AFL would be better." He added that he did not know what Mr. Fry,
the owner, and Mr Easterman, the superintendent, would say about this, but that he
had a telephone call in to them then.
It appeared that some of the women did not fully understand the implications of
the organization proposal or had been misinformed about the Union and in conclud-
ing his talk he offered to personally explain what he knew about the situation-par-
ticularly as it affected Respondent's plants in Georgia and Danville, Kentucky.
McGhee stated: "I would be tickled to death to help them with it" (give them infor-
mation on their problem). Some 50 or 60 percent of the people who were there at
that time came into his office to talk this thing over with him. The end result of
their entire thinking was that the great majority of the women withdrew their support
of the proposed unionization program, and most of the girls, except the four Charging
Parties, asked to withdraw even the cards which they had signed.
D. Withdrawal from the Union
The reasons assigned by the Charging Parties for such withdrawal from unioniza-
tion was that Manager McGhee intimidated them and put so much pressure on them
that they withdrew because of being in fear of losing their badly needed jobs. But,
Respondent's witnesses testified that they withdrew because of false information given
by the union organizer, false information given by the union sponsors, and threats of
reprisal by the union advocates. Having closely. observed all of the witnesses and
heard all of the testimony, I resolved this conflict in favor of Respondent's witnesses,
on the facts as hereinafter developed. (Cf. Universal Camera case, 340 U. S. 474.)
As previously intimated, one of the apparent characteristics of the indigenous popula-
tion of Liberty and its environs is the absolute freedom of individuals to hold their
own opinions-or to change their minds. As an example, with reference to the at-
titude of the ladies involved in this case toward their boss, it is significant that not
one of them addressed him as "mister," but always as "McGhee"-this also to his
face. This represented a feeling of absolute equality-was not an appellation of dis-
paragement and further, Manager McGhee did not possess the naked or covert power
to intimidate any one of the 38 witnesses who testified pro and con before me. The
vast majority simply decided they did not want , a union because of misrepresenta-
tions and threats-certainly not this Union, Local 50, United Mine Workers. This
fact is evidenced by results from a ballot box which was installed near the "coke" or
FRY PRODUCTS, INC. 1011
soft drink machine by some of the girls . All polled, except two , reversed them-
selves and voted against the Union . The caption on the ballot box read: "Do we
need a union in this shop ?" In this connection I find no merit in General Counsel's
contention that Respondent interfered with the union activity of employees by con-
doning the taking of a vote which ascertained the sentiments of employees with re-
spect to the Union . Whether McGhee had objected or not , been pleased or dis-
pleased , the results would have been the same with these women in their evidenced
frames of mind.
E. McGhee's attitude towards Atwood, Evans, and Moore
The leading actors in this real life drama are Marie Atwood and Manager McGhee.
McGhee's attitude toward Mrs. Atwood, and in fact toward three of the Charging
Parties in my judgment, is well illustrated by an incident which occurred a day or
two before all of the seamstresses, except pipers and inspectors, were laid off on
March 4 because of a shortage of work orders which resulted in a temporary shut-
down of the plant. In answer to Counsel Witman, she stated:
"We were finishing the work for the layoff and I had been told by McGhee at
different times when we were finishing for the layoff, there was a lot of the girls that
would rush and put work back to get the last work to do so they would stay the
longest. And he had told me to watch the girls and see that they didn't get anything
to work on until they had finished what they had. She [Rosalie King] came to me
for a truck. I asked her if she was all finished. She said she was. I pushed the
truck back to her machine and on the machine behind her lay parts of seat covers that
weren't finished. I asked her what it was and she said it was some work she planned to
do tomorrow. And I told her she couldn't have the truck because that would be keep-
ing some other girls from getting work that would be finished. And I went in the
office and told McGhee what she had done and he said, `Take the truck back up to
the front and tell her to finish what she has at her machine.' And I went back out
to get the truck, pushed it back up to the front, and she asked me what I went in and
told McGhee and I told her that he said for me to take the truck back and for her
to finish what she was working on. She went in the office to talk to him about it
and I went with her. While I was in there, I told him I was going to quit, that it
seemed to me any more there was nothing I could do to please the girls. And he
said, `Marie, you take orders from me and let the girls go to hell out there: He
said, `I give the orders, you do what I say.' And he said, `You can't quit, I don't
know who would take your place here. You are the best suited for this job, that is
why I gave it to you.' "
Ironically, when her colleagues and associates repudiated her leadership, McGhee
was unable to save her, and, indirectly it caused him to lose his own job. McGhee,
on cross-examination, also testified that both Anna Ruth Moore and Emma Evans
were competent employees whom he "would have been glad to have, all things be-
ing equal"-and he would be glad to have them back. As for Faye Carr: "When
we laid off, I had no intention of calling her back to work." I credit this testimony,
and find that McGhee discharged Faye Carr because she was incompetent and
inefficient.
F. Marie Atwood confronts McGhee
Thus, shortly after she was laid off, Mrs. Atwood telephoned McGhee and asked
him why she had not been called back to work according to seniority. In the course
of the conversation, he gave as his reason that they did not have many sets of seat
covers to make and he figured she would rather stay off and draw unemployment
compensation. Upon being pressed, McGhee invited her to come down to the office
if she wished to talk with him. This she immediately did, but when she and McGhee
sat down to discuss the matter, they were joined in his office by three other employees.
In answer to her question as to why she was not working he replied: "Well, as I told
you, there is no personal reason for it. We didn't have too many sets to make-[I]
can't talk to you without witnesses-now if you have got anything to say, say it."
Her reply was: "Well, I don't think you would want your witnesses to hear what
I have to say to you." [Emphasis supplied.] His answer was: "When I need you,
I will call you." Obviously, Mrs. Atwood was embittered after having faithfully
served the Company for some 5 years. But whether her hurt was deep enough to
have caused her to utter remarks, which rumor had it that she made, is, fortunately,
not for resolution here.
G. The first rumor
As heretofore alluded, most of the girls were laid off on March 4 because of a
work shortage. However, on or about March 10 many were called back to work,
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but none of the four Charging Parties were recalled. In fact, they have never been
recalled. Sequentially, it appears that on March 6, Mrs. Moore and Mrs. Atwood
met at Mrs. Carr's house out on the Lebanon Pike, and immediately thereafter a
rumor began circulating that the union organizing activities had been recommenced
by the Charging Parties. The truth or falsity of this rumor is not in issue, but it is
clear that such a rumor was current. Manager McGhee stated that he drove down
from Danville to Liberty on March 10 because he had heard of such activities. Of
course it was his privilege to thus legitimately inform himself. In this connection,
McGhee talked about this rumor of a new union with Supervisor Lena Bastin and
Mary Sanders. The inference would be unavoidable and inescapable that the mo-
tivating reason, in absence of any other reason, for McGhee's failure on March 10,
1953, and subsequently to recall, on basis of seniority, Atwood, Williams, and Moore
was that they were engaged in the protected activity of fomenting another union cam-
paign. But because of the ill feeling engendered, between January and March, by
the collapse of the unionization effort, McGhee decided to invoke a "cooling off
period," which gave rise to the rumor.
H. The rumor
Unfortunately for all of the parties, the Company, and the community, an astonish-
ing issue arose via General Counsel's questioning of Charging Party Anna Ruth
Moore when she testified: "The rumor was stated that she [Marie Atwood, one of the
Charging Parties] said that McGhee only kept us whores in the factory and then
he could take any of them in the office at any time, one at a time and lock the doors."
This witness, in response to my question, stated that the rumor as she heard it was that
"McGhee only kept the whores in the shop." To me, she stated that she first heard
the rumor in the city of Liberty "about the middle of April." Another version was
that McGhee fired all the honest girls but kept the whores. Thus was opened an evil
Pandora's box' Indicting the virtue of the mothers, sisters, and wives of many
families in the community far transcended the issue and question as to whether there
should be a labor union in the city's sole industrial plant. Under more auspicious
circumstances a union may have flourished. The breach or rift between the em-
ployees, then became, apparently, unbridgeable and irremediable-or at least was so
at the time of the trial-and solely because of the slander. In any event, this local
unfair labor practice case is here for resolution at the national level.
1. The author of the rumor
The reader must bear in mind that this rumor arose after March 10 when
McGhee failed to call back the Charging Parties and others.
The author of this malicious and malignant rumor was one Everett Sharpe, the
estranged husband of employee Mary Sharpe. She testified that after she was laid
off on March 4, she took a trip to Georgia, and upon her return some 2 weeks later,
on or about March 20, her husband quoted Mrs. Atwood as uttering the statement
constituting this rumor. This he denied on the stand, but I credit Mrs. Sharpe.
Mrs. Sharpe told it in the plant soon after her return to work, and thus the rumor
got general currency, she explained: "I just kept it to myself until I got tired of
hearing it." (It is quite possible that he was telling it before she returned.) Obvi-
ously, and as a matter of common knowledge, the whole community was shocked
and shamed. It was also common knowledge that this rumor became in June the
subject of a criminal slander suit in the county court. Of this, I took judicial notice.
J. Crux of the case
Upon the basis of nearly 600 pages of testimony of some 3 dozen affected seam-
stresses-dependent upon this work for their livelihood-the simple resolution of
the conflicts and credibility would dispose of this case if it had followed the usual
pattern. But, it did not-a shocking, shameful, and revolting rumor obscured the
truth, distorted the perspectives of employees, and caused emotion to be substituted
for reason. Fortunately, there were some witnesses who maintained their sense of
values. The real question is: Why did these 53 employees completely turn against
the 4 Charging Parties and refuse to work with them? The answer-the crux of
this case-is that they not only believed that they had been misled or tricked and
threatened concerning the Union, in addition to the fact that they personally disliked
certain of the charging parties but the prime motivating cause was the "rumor." It
is true that the rumor did not become extant until March 20, while the temporary
layoff ended about March 10 when the seamstresses began to be recalled-subject to
the -.cooling off period." Thus there are two separate stages of motivation involved.
FRY PRODUCTS, INC. 1013
It will be borne in mind that the original organizing campaign, conducted by Marie
Atwood, Emma Williams Evans, Anna Ruth Moore, and Faye Carr under the
auspices of Organizer Staton, failed of its purpose at the ballot box shortly after
January 20, or nearly 2 months before the rumor. Further, when Atwood and
Moore met at Faye Carr's house out on the Lebanon Pike on March 6 a rumor
began circulating that they were recommencing their union activities, and even
McGhee went down to Liberty to check on it, perhaps over the weekend. Recall-
ing that many had signed up for the Union, I am convinced that the key to the
majority's original motive of feeling that they had been misled and tricked is best
recited in McGhee's language: "but there was a lot of ill feeling over there about
their failure to organize a union." [Emphasis supplied.]
McGhee stated in this connection: "Between January 19, when this effort was
made to organize a union, and until the first part of March when we laid the shop
off, I don't know definitely what date that was, there had been a lot of little things
happening in the plant between the people and caused a bit of ill feeling, little petty
things that would be said in the ladies' toilet and at that time I would get an inkling
of it, and the women would call out about it, and back and forth at the noon hour.
It was just one of those things that is hard to pin down. But there was a lot of ill feel-
ing over there about their failure to organize a union." In testifying about why she
and many other of her friends were against the Union, Virgie Lee (strongly anti-
union) stated: "Well, I think most of them were against it. After Monday, after
they found out that they had been told that everyone had joined the Union, but
them, and got them to sign a card and went in and found it wasn't so, some turned
against it." She further stated "I don't know whether they were angry or not, but
they went and asked for their papers back because they had lied to them because
they told them everyone had joined the Union and they would have to [join] the
way I understand it." McGhee's characterization of Local 50 as a "pick and shovel
union" perhaps revulsed the women employees and added fuel to the fire, but this
expression of opinion is surely protected under the free speech doctrine in Section
8 (c) of the Act.
Counsel Witman argues that McGhee knew that the four girls were the foremost
union adherents in the January drive, and about March 10 he suspected they were
starting a new union movement. So because they had worked for the Union in Janu-
ary, and because he suspected they were starting anew to organize his employees,
he decided not to recall Atwood, Moore, Evans, and Carr. This reason is not ten-
able. Certainly after the election, McGhee had nothing to fear from them, and
he wanted and needed the production capacity of Atwood, Moore, and Evans.
Counsel also contends that they were no longer laid-off employees, but as a prac-
tical matter, they were discharged, and thus the discrimination as to them and the
violation of the Act occurred at that time-or, in the alternative, assuming arguendo
that there were no discrimination and discharge or. March 10, there was discrimi-
nation when the alleged refusal of the employees to work with Atwood, Moore, and
Evans took place. He also contends that there was no real attempt to recall the girls
at all, and that in order to support its position, Respondent Company must show that
the employees who were angry with the Charging Parties communicated their dis-
taste to McGhee at the time of the alleged refusal to work.
To say that McGhee knew of the unfriendly attitude of the vast majority toward
the three is to argue the obvious. Everyone in the plant knew it. In fact McGhee
later rebuked Virgie Lee and she quoted him to the others as saying: "You are tak-
ing the wrong attitude with regard to these girls." My conclusion, based on obser-
vation of all of the witnesses and upon the entire record, is that these independent
Kentucky mountain women would have told McGhee rather than have asked him
whether they would work with the girls whom they felt had let them down by falsi-
fying and misleading them as to numbers and proposing to organize what wars de-
scribed to the girls as a "pick and shovel union." The record is entirely clear that
many told him that they would not work with the four after the rumor.
K. Elaboration of McGhee's testimony
At the risk of being repetitive of redundant, but because of the very objectivity
of McGhee, his testimony is herewith recited in some detail. It should be borne
in mind that at the time he testified, he was no longer employed by Respondent.
His reputation and character had been erroneously impugned, and before taking the
stand to testify, he had been up all night attending and caring for his young daughter,
who had to undergo an operation. No witness could have been more objective,
under the circumstances. In recapitulation, Carl Staton, an organizer of United
Mine and Construction Workers Union, CIO, came to the home of Anna Ruth
Moore on January 8, 1953. On January 17, Staton again came to her home and
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during her absence left some union application blanks to be signed by prospective
members. Mrs. Moore went to Rosalie King's, the 2 then went to Marie Atwood's,
and together these 3 went to visit Alberta Williams. They next visited Louise
Murphy, Marie Sharpe, Faye Carr, and Margaret Jeffries, and passed by the homes
of other employees, but since the lights were out they did not go in. However, they
went back later and got signatures. According to McGhee's testimony, Marie
Sanders came into his office and asked if he knew there was an effort being made
to organize a union, and he told her that he had heard nothing about it. Being
advised that the union organizers had been moving around from house to house on
Saturday and Sunday (January 17 and 18) trying to find people to join the Union,
he asked her what union it was, but she did not know.
He testified: "I believe I asked her to find out what union it was if that was pos-
sible, and she sent Virgie Lee in and Virgie had some blank applications. And
from that, of course, I knew what the union was, and who. And well, that morn-
ing, after I talked to these 2 or 3 people I called a meeting of all of the people and
1 told them that I understood there was an effort to organize a union there and
I wanted them to distinctly understand that that was their privilege, if they felt like
they needed a union, that was up to the individual; personally I didn't think that we
needed one there. Also that if I was going to organize a union , that I would cer-
tainly go easy on it and get me a good one. I didn't feel like the women there would
want to be affiliated with a pick and shovel [union] which this certainly was. It
was United Mine Workers, Local District 50 and I told them also that if they felt
like they wanted to know anything about District 50, they could check the Sunday
paper and see what they had done in Central City. If they was interested in it,
and also that I was not going to offer them anything in any way or threaten them in
any manner, that was up to the individuals. If they felt like the Company needed
a union or the people needed a union, that was their privilege, but I would like to
know what the union had offered them and know what they said, and no one an-
swered me. They didn't seem to know. The fact of the matter is, the majority of
the people didn't know what union they were signing up with. I asked Emma
Evans and Ruth Moore, since they was being active in there in trying to organize
the Union, I felt like they should know what they had to offer. And they didn't
seem to know. They had no answer. And I believe that is all I had to say to them."
Q. Did you say anything to them about being free to come to your office and
come to talk to you?
A. Oh yes. One or two of the people asked me in a meeting there what it was
all about. . . . these organizers hadn't been around to see them, and I told the
people if they didn't understand or wanted me to give them any information, they
could feel free to come in the office and what little I knew about it, I would be
tickled to death to help them with it and that was all I had to say to them.
Q. Did any of the girls come in to talk to you?
A. Yes sir, I would say 50 or 60 percent of the people who were there at that
time came in the office to talk this thing over. They didn't know what they were
doing. I understand after some of them came in the office on their own, I didn't
send for any of them, they told me they had been told by these people and these
organizers that our plant in Danville had a union, or our plant in Georgia had a
union, also our plant in Tennessee. Well, I happen to know that we didn't have
a plant in Tennessee, we had no unions in the other two, so I told them that that
was just a song and dance that this union organizer was putting onto them so it
would make it easier to organize here.
Considering the calumny he had undergone, I reiterate that McGhee was very
objective in his attitude and entirely fair on the witness stand.
L. McGhee's version of the recall after "cool off"
McGhee's version of finally recalling the girls after the March layoff-which
version I accept-involved a conversation with Virgie Lee who had come into his
office to talk with him and Harry Brown, newly appointed Liberty manager.
McGhee stated: "Well, I came down here to help Mr. Harry Brown to call some
more people in. This was on a Thursday. [In light of the rumor of the 20th, this
was doubtless March 26.] I have forgotten the date. I was going to call them in
for Monday. Down in here you have a situation where a lot of the women live
so far back in the county they have no telephones, and we have to send messengers
out to call them in. And I had come down and was going to call in two sections.
Now, a section consists of five people, two pipers, one stitcher and two hemmers.
That makes a section. At that time, we were going to call back Pauline Patterson,
Moore, Emma Evans-I can't remember who all, that there was about 10 of them.
But these two women were on the list. We had made out the list in the section.
FRY PRODUCTS, INC. 1015
It was lying on the desk and we called Virgie Lee in to take a message to Pauline
Patterson who lives out near her. While she was standing there she noticed the
names on this paper and she asked me if I was going to call those two women back
to work and I told her I was. And she went out in the shop and Harry and I were
still in the office. And in a few minutes, most of the sewing machines were shut
down. There was no sewing going on. So Harry and I went out in the shop to see
what had happened. And the women were gathered up in groups 6, 7 and 8, and
I asked them what was going on, why weren't they sewing. I believe this Virgie
Lee said, `we understand you are going to call these two women back to work.' I
said, `yes, that's right.' She said, `we don't want them in here. We don't want to
set down and work with these people.' I said, `What do you mean by that state-
ment?' She said, `If they come to work, we are going out.' And I said, `Are you
talking for yourself or for everybody?' There was 8 or 10 around her, and they
said, `We all feel the same way about it.' Back in the back of the shop there was
another bunch of people and I went back and asked them the same thing and they
told me the same story, that they didn't feel like that they could set down and work
with these people and they felt like they shouldn't have to and if they came back
why they felt like they would have to go home. And I told them that I couldn't
pass on that, I would have to call the home office on that. I called Mr. Walter L.
Fry, Sr., in Detroit. And he asked me, `Do all the women feel that way?' I said,
`The majority of the people in the plant right now,' which was over 60 percent of
our employees, `feel that way now.' And he said, `Well, we certainly can't take a
chance on losing all those people to put back two or three people, so just don't call
them in."' I find that the "two or three" consisted of Evans, Moore, and Atwood
and did not include Carr at that time, because McGhee considered her inept and
inefficient.
McGhee testified that he informed the girls in the plant of the decision made by
management, stating: "I went out and told them I called the home office and talked
to Mr. Fry and he said that if they felt that way about it, then he couldn't see any-
thing else to do but just leave these people out, and as far as I knew, that was what
he had to do." McGhee stated that at the time of this incident there were no
union organizing activities going on to his knowledge, and that there was no question
or discussion of their union organizing activities as being a basis for their failure to
be recalled In this I find him to be correct because the first rumor was untrue and
Atwood, Moore, and Evans had been repudiated and ostracized by their associates.
In answer to Counsel Witman's question, "Mr. McGhee why weren't Emma
Evans, Ruth Moore, and Marie Atwood called back around March 10?" McGhee
answered, "Well, the reason we didn't call them back, those particular three people,
since their effort to organize a union had failed, they had been sort of hard to get
along with, with the rest of the people. Now, there was always an undercurrent
of ill feeling there, and after talking to Mr. Fry about it, we decided that we would
let things cool off some, get a cooling off period in there before we called these
people back." Instead of getting a "cooling off period," the morals rumor created a
crisis for the entire community which lodged the issues in the State court.
M. The galaxy of witnesses and their affidavits
A galaxy of witnesses appeared and testified during the trial of this case. The
General Counsel called 12 witnesses originally, several of whom were recalled for
additional testimony, and almost all were cross-examined by Respondent' s counsel.
General Counsel's witnesses were the four Charging Parties, Marie Atwood, Emma
Williams Evans, Anna Ruth Moore, Faye Carr, and included Marie Sanders, Grace
Cooley, Ola Carr, Hazel Bastin, Aline Ponder, Birdie Wilson Hill, and Everett
Sharpe. The Respondent's counsel examined and reexamined 21 original witnesses,
all of whom were cross-examined by General Counsel. They were Laurence B.
McGhee, Mary Sharpe, Virgie Lee, Rosalie King, Geneva Stafford, Vercie Wething-
ton, Frankie Bastin, Stanley G. Lemon, Ada Vanoy, Etwell Vest, Lucille Gilpin,
Mary Sanders, Margaret Jeffries, Lena Halley, Janie Goode, Effie Barlow, Joyce
Lane, Beulah Taylor, Carol Hatfield, Virginia McKinney, and Marie Sanders.
Respondent not only called these witnesses to testify, but proposed to introduce
into evidence affidavits given by most of them during the preparation of Respondent's
case, around April 27, 1953. Respondent's counsel also proposed to introduce into
evidence 15 similar affidavits made by Birdie Lee Wilson, Pauline Patterson, Elmer
Lee, Lola Lanham, Christine Sharpe, Lucille Coffman, Ruby Cooley, Onita Davis,
Earl Cooley, Laverne Steeval, Minnie Tarter, Louise Murphy, Virginia Charles,
Effie Atwood, and Minnie True, who were not called to testify. Counsel Witman
objected to the introduction of any of the affidavits on the grounds that these affi-
davits were executed after the charges were filed, being an effort of the Respondent
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to determine what was in the minds of the girls at the time they may or may not
have refused to work with the Charging Parties. Since the persons were available
for direct examination, he contended that an affidavit executed later, around April
27, reflecting back on what might have been their state of mind would not be the
best evidence, and therefore was incompetent as well as immaterial and irrelevant.
He pointed out that they were taken only to assist the Company in the preparation
of its defense. Respondent's counsel contended that it was not proposed to submit
the affidavits for the purpose of proving the truth of what was contained in the
affidavit, but to show the fact that such affidavits were made and were delivered to
the Employer and the Employer had them before him in making his decision refusing
to employ the four girls. Counsel Witman argued that the discharges occurred on
or about March 10, when the decision was made not to call these four back to work.
He contended that the question is what was in the mind of the Company and what
were the facts at the time these girls were not recalled. I reserved final ruling on
this point until writing this report, but I concur with the General Counsel, as I
intimated during trial, that these affidavits are irrelevant and incompetent as evidence
on the question at issue. The witnesses were there and available and gave direct
testimony as to what the situation was at the time of the discharges. The direct
testimony they gave presumably covered all the admissible matter recited in affidavits
and the General Counsel was afforded an opportunity to cross-examine---of which
opportunity he took full advantage. The 15 affidavits executed by witnesses who did
not testify are merely cumulative and would not serve any useful purpose if ad-
mitted-subject to the first objection that they are not the best evidence. En passant,
even if admissible, the evidence contained in the affidavits would not need to be
relied upon in this decision, since the direct testimony covers the cogent facts.
General Counsel also argued that the Respondent made no effort to call these girls
back and therefore the question as to whether the other girls had grievances against
them is not even reached , contending Mr. McGhee and Mr . Fry gave so little con-
sideration to their recall that they never even communicated with the four, thus mak-
ing the grievances immaterial . However , the record is replete with evidence of
McGhee's intention and attempt to call these girls back to work . In passing, at the
time of the criminal slander case in the county courthouse on June 9, McGhee was
talking to Faye Carr's irate mother and he told her: "I would take her [Faye] back
tomorrow if I could , but she signed a paper and I can't take her back . I don't have
anything against any of the four girls that are off . I would hire them all back to-
morrow if I could . that is the one thing I hate worse about it than anything, the
attitude of those girls working now, the way they have treated those four girls." This
is in line with McGhee's helpless posture at the time of the layoff when he told Virgie
Lee "You are taking the wrong attitude with regard to those girls ." To him in his
then predicament , Carr's unfair labor charge was insignificant and "because she
signed a paper" constituted only a specious excuse given to an angry mother , not the
reason for a discriminatory discharge. In fact Faye Carr was only a minor satellite
in the Atwood axis. Nobody had anything against her , she was simply inept.
N. Facts bearing on the mixed motives
It is difficult to conceive of evidence more material in the good or bad faith, or in
the motive of the Company in not recalling these girls , than is the direct evidence
given on the stand by the girls who were unwilling to work with the four Charging
Parties at the time McGhee proposed to call them back. McGhee had never demon-
strated any illegal antiunion sentiments , and Mr. Fry was in Detroit, manifestly
unaware of all the facts which were glaringly apparent to McGhee. Certainly there
can be no question that after March 20 when the second rumor became current, which
indicted the morals of all of the women remaining on the job, that management was
powerless to pacify these outraged girls-their motivation had changed.
That this case is one of mixed motives is well stated by Counsel Witman who refers
to "this rather mixed up situation on the date of management's refusal to recall"
when he even suggests that we have here a subterfuge where McGhee may have said
to Virgie Lee that he might recall them and that she then approached them and
asked them whether they wanted to work with the girls. I, however, believe this pos-
sibility to be negatived by McGhee's criticism of her and the others that "they were
taking the wrong attitude" toward the girls whom he was willing to recall in the
interests of harmony and in getting production . Determination of motive, being
always the result of circumstantial evidence , can never be either absolute in the sci-
entific or philosophic sense . In this case the mixed motives might appear to be inex-
tricably intertwined as both counsel suggested . Even so, from an impartial and
exhaustive study of the complete record, I find and hold that the mixed motives can
chronologically be separated as before and after the rumor.
FRY PRODUCTS, INC. 1017
In the mass of testimony given by the company witnesses-other than the rumor-
two facts stand out which illustrate the reasons for basic opposition to the Charging
Parties as known to McGhee. The first and most voluminous was a general dislike
of 1 or more of 3 of the Charging Parties, namely, Marie Atwood, Emma Williams
Evans, and Anna Ruth Moore. (No one seemed to have any personal animosity
toward Faye Carr.) The second concerned the manner in which the three conducted
the union organizing effort which resulted in a fiasco. My impression of the three
was that they possessed not only strong characters but were dominant women, sub-
ject to resentment and even envy by some less forceful persons. Certainly they were
leaders until they failed through faulty tactics. The evidence shows that the cause
of animosity toward Marie Atwood was that she played favorites in the distribution
of the seat cover material. It appeared that there were three kinds of covers to be
sewed: Ford, Pontiac, and Chevrolet. The Fords were the most difficult to work
on at piece rates and several girls complained and charged that she favored her
friends in delivering the Pontiac and Chevrolet material, or in giving them the more
heavily laden trucks, thus enabling her friends to make more money. Whether true
or not they believed it and held it against her.
The cited cause of those who disliked Emma Evans was that she, a very rapid
seamstress, would do her part of the seat covers first and then take the easier parts of
other girls' piecework, which resulted in their making less money because of having
the remaining and more difficult parts to sew. Anna Ruth Moore, also a rapid
worker, was described on the witness stand as being greedy and unfair in her work
and of taking others' work. Witnesses complained of her simultaneously starting to
work on two trucks of seat covers thereby depriving other sections of a truck when
piecework ran short. Thus she and her group made more money at the expense of
other sections. True or untrue, they are entitled to their motivating opinions and
prejudices.
One young lady, Janie Goode, impressed me as being a paragon of virtue and of
truth. This opus being a report rather than a legal decision, and, because of the
reliance I have placed on her recital of the absolute facts, her explanatory and reveal-
ing testimony is quoted verbatim, subject to my rulings of exclusion, as follows:
Q. (By Counsel Zinn.) Are you employed by Fry Products, Miss Goode?
A. Yes, I am.
Q. How long have you been employed by Fry Products?
A. Well, the last time it will be six years in February, the 24th.
Q. Were you employed in January of this year?
A. Yes, I was.
Q. And when did your work stop after January of this year for a short period
of time?
A. Yes, I think it was in March.
Q. You were laid off in March?
A. Yes.
Q. Do you know about when it was?
A. It was along the first of March. I don't know what day.
Q. Can you tell us about when you came back to work after this layoff?
A. I lacked one day of being off a week.
Q. So that you were back in the plant before the middle of March?
A. Yes, I imagine I was.
Q. Do you know Ruth Moore?
A. Yes, I do.
Q. Do you know Emma Evans?
A. Yes, I do.
Q. And do you know Marie Atwood?
A. Yes, sir.
Q. What was your position; what work did you do in the plant?
A. I was an overedger.
Q. Did you, at any time, work with any of the girls you have named now
as knowing?
A. Yes, I did.
Q. Did you have any complaints about the way they performed their work
with you?
A. Well, the way Marie Atwood worked, she could hold us up if she wanted
to on our work.
Q. And did she?
A. Yes, she did.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. How would she do that?
A. Well, part of the work was easier than the other . Pontiacs was easier to
do than the Fords. We were supposed to get a Ford and a Pontiac. We got five
Fords in a row . That wasn 't fair . The other girls was treated better at that
time.
Q. They got the Pontiacs then?
A. Yes.
Q. And that would enable them to make more money?
A. To make more money than we did.
Q. Now did you work between Emma Evans and Rosalie King at any time?
A. Yes, I did.
Q. What did you observe between Rosalie King and Emma Evans in connec-
tion with their work?
A. Well, I overedged for both of them; both those girls piped. And Rosalie
would take the hard part and Emma would take the easiest part to do. When it
come to a four door, Rosalie would have to do the front part and that was the
hardest. And the rear part, if Rosalie didn't get to hers, why Emma would
get it.
Q. And there again that meant more money for Emma Evans?
A. For Emma, yes.
Q. Did you ever have any talks with anyone in the plant after you had been
recalled from this layoff about girls coming back to work, being recalled to
work?
A. Yes.
Q. Did that conversation involve Ruth Moore, Emma Evans, Marie Atwood
and Faye Carr?
A. Yes.
Q. Who did you have the talk with?
A. Virgie Lee.
Q. Will you explain the circumstances of that conversation; what was said?
A. Well, Virgie come around one afternoon and wanted to know if we
wanted to work with those girls after we had heard what they had said. We
told her we didn't.
Q. What did she say to you, Virgie Lee?
A. Well, she asked me if I wanted to work with them things. That is what
she called them.
Q. Was anything said about them coming back to work?
A. Yes, they was going to be called back on Monday morning.
Q. And did she tell you how she knew they were coming back on Monday
morning?
Mr. WITMAN • Mr. Examiner-I am sorry, I beg your pardon.
(Question read.)
Mr. WITMAN• Mr. Examiner, I will object on the ground that what Miss Lee
told this witness is obviously hearsay.
Trial Examiner FISCHER: Let her answer. Go ahead and answer.
Mr. ZINN: Read the question.
(Question reread.)
A. I think she told me McGhee said they were coming back on Monday
morning if us girls would work with them. We didn't want to work with them
after we heard what they said.
Q. (By Mr. Zinn.) Now when you say "we," can you name the other girls?
A. Well, Birdie Hill, Joyce Lane and Grace Cooley.
Q. They were in your group?
A. They were in my group.
Q. And you heard them say the same thing to Virgie Lee?
A. Yes
Q. Were you approached about joining the Union?
A. Yes. The Union man was at my house.
Q. What did he tell you about the Fry Products Plants?
A. He told me Fry's had a Union in every plant they had except this one,
and Danville, and they were working on both of them.
Mr. WITMAN: Mr. Examiner, again I object as I did previously as to what
the Union man said. That is completely irrelevant to this proceeding.
Trial Examiner FISCHER: Your objection is overruled; let's continue with
the examination.
FRY PRODUCTS, INC. 1019
Q. (By Mr. Zinn .) Did you find that that representation was true or untrue?
A. Well, I found out they didn 't have a plant in Tennessee . I told the Union
man I didn't know they had a plant in Tennessee . But I knew they had one
in Georgia . And he said, "Oh, yes, they have a plant in Tennessee."
Q. Did you find out that the plants other than the plant in Danville had
Unions in them?
A. McGhee said they didn 't have any in Georgia . It was a mistake.
Q. Did McGhee talk to you individually about the Union?
A. I don't think he did.
Q. Did he talk to the girls generally at one time?
A. He called us all up on Monday morning in a bunch and talked to us.
He heard that there was a Union man around trying to organize a Union.
Q. Can you repeat, or will you repeat, what Mr. McGhee said in that talk
to you on the Monday morning you refer to?
A. I don't know everything said, but I do remember him saying , "Girls, if
you all feel like you need a Union, better yourself by getting a Union , pick out
a good one." I do remember that. But there was one of the girls said they
heard me and Lucille Gilpin was working for the Union and that made me
mad and I didn' t understand everything McGhee told the bunch.
Q. Did you make an affidavit at one point in April in Mr. Lemon's office?
A. I sure did.
Q. I show you Respondent 's Exhibit No. 11 and ask you if your signature
appears there?
A. Yes, that's mine.
Q. Is that the affidavit you refer to as having made?
A. Yes.
Q. Will you tell how you happened to make that affidavit and what you did?
A. I just went over and told him what I had heard about what the girls had
said about us. And I refused to work with them.
Q. Did anyone of the management tell you to go over there?
A. No, they didn't.
Q. They offered you an opportunity to go, did they?
A. They said that the lawyer-the county attorney was free for us to talk to
if we wanted to go over and talk to him. So I went over and talked to him.
Q. As a result of your talk, you signed this affidavit?
A. Yes, I did.
Mr. ZINN • Take the witness.
[The matter involved in the affidavit is excluded-Trial Examiner.]
CROSS-EXAMINATION
Q (By Mr. Witman.) Miss Goode , how long have you worked for Fry
Products?
A. It will be six years the 24th of February.
Q And how many women work for Fry Products, Miss Goode?
A. Well, I just don ' t know.
Q. Would you say about 50 or 60? And women generally like to talk
among themselves during rest periods and gossip a little bit?
A. Yes, some of them do and some of them goes out and gets coffee and
something to eat at 9:30 and 2:30.
Q. Is there generally a lot of women talk around the plant9
A. There is people talking over there all the time.
Q. As long as you have been there, there has been a lot of chat and talk?
In other words, just women talk?
A. Well, sure. If a bunch of women get together they are going to talk.
The same with men. I see a bunch of men standing out there talking, too.
Q. Miss Goode , did you refuse to work with a girl because she talked too
much?
A. Yes.
Q. You would?
A. Yes.
Q. Or gossip too much?
A. Yes.
Q. Who, for example?
A. Marie Atwood.
Q. How about Emma Evans9
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Well, I didn't hear that Emma Evans said anything.
Q. Why did you put in your affidavit that you would rather not work with
Emma Evans because she did a lot of unnecessary gossiping and talking?
A. Because they was all together.
Q. But you never heard her doing any gossiping or talking? You just said
that before. Now, Miss Goode, this rumor only concerned Mrs. Atwood,
didn't it?
A. Yes.
Q. And it didn't have anything to do with Mrs. Emma Evans or Mrs. Moore
or Mrs. Carr?
A. No.
Q. And you couldn't blame them for what Mrs. Atwood might have said,
could you?
A. Well, it looked like they was all together.
Q. In what respect, you mean all working for the Union?
A. No, they was just all got together after they were laid off.
Q. This was after the layoff then, is that it? You weren't concerned with
the working conditions; you were concerned with the way they were acting
after they were laid off?
A. Yes.
Q. And if Mrs. Atwood brought Fords to the group in which you were in,
I suppose it made it hard for everyone?
A. They were harder to do than Pontiacs, yes.
Q. Wasn't Mrs. Evans in that group?
A. Yes, she was.
Q. Wouldn't it be strange that these good friends, Mrs. Evans and Mrs.
Atwood, were making it difficult for one another?
A. They weren't friends all the time.
Q. When was this that Mrs. Atwood brought these Fords instead of Pontiacs
to your group?
A. Well, I just don't remember that day.
Q. Can you tell me whether it was within the last year?
A. Yes, I think it was.
Q. Towards near the layoff?
A. Yes.
Q. About that time when Mrs.-
A. It was before the layoff.
Q. Would you say between January and the layoff?
A. Well, I can't remember the date.
Q. It was about the time that these girls were working for the Union, wasn't
it, Miss Goode?
A. I don't remember whether it was about the time or before or after, but
the one that loads the trucks can make it hard for the rest of the girls if they
want to, or they can make it easy for them.
Q. Yes, but making it hard it makes it hard for the whole group, right?
A. Yes.
Q. Now, Miss Goode, the time that Virgie Lee asked you if you would work
with these girls, she came around to you, didn't she, and said, "Will you work
with these girls?"
A. She came to me and Grace Cooley.
Q. And she said, "Do you want to work with these girls that are coming
back?" Is that what she said?
A. Well, she said, "Do you girls want to work with them things." That's
the very way she said it.
Q You didn't tell her you wouldn't work with them until she asked you, is
that right?
A. I don't remember telling her. I might have told her; I can't remember
everything that has happened.
Q. Now I didn't quite understand, I am not completely familiar with the
way this is, I didn't quite understand this business about the front part and
the back part.
A. Well, on a four door, the front cushion and back rest is all fastened to-
gether. It is a lot harder than a rear cushion and a rear back rest. The reat
cushion and back rest is lot easier made on a four door. You can make more
money.
Q. And who was it that took the easier parts?
A. Emma Evans.
FRY PRODUCTS, INC. 1021
Q. And left the hard parts for whom?
A. She left the hard parts for Rosalie King.
Q. You say she left the hard parts for Rosalie King?
A. Rosalie started the hard part first.
Q. And thus Emma, having the easier piece , would make more money?
A. Yes.
Q. Wasn't it true, Miss Goode, that the harder part carried a higher piece rate?
A. It carried a higher piece rate, but it was harder to do.
Q. So you got more money?
A. But you could make a whole lot more on the rear part than you can the
front part. I can myself and I am an overedger.
Q. Now, Miss Goode, as I understand it, the trucks are brought to you with
three trays on it. A complete set of seat covers is on one side and a complete
set is on the other side. The front seat cover , the back of the front seat, and
the back seat cover and the back of the back seat, is that correct?
A. Yes.
Q. Now isn't it customary for the girl to go down one side and work down
one side pulling them out? Is that the way it is generally done?
A. Yes.
Q. Now what was it that was supposedly to have been done by Mrs. Moore.
I beg your pardon, was that Mrs. Evans that worked with Rosalie King? She
would start on the top and cut over to the other side and do the top of the other
side?
A. She would get her part done. Or get the facings done on it and get some of
Rosalie's she would make it easier on herself.
Q. Don't you cut right across the front of the truck?
A. No, she didn't cut across the top.
Q. Weren't Rosalie's on one side?
A. The hard part was on top on a four door. The easier part was on the
bottom.
Q. She didn't go down each side; she started on the top and cleaned off the
whole top, is that it?
A. That is the way she was supposed to do.
Q. She was supposed to go across the top and not down the side , is that it?
A. Do the top part first.
Q. On both sides of the truck?
A. No, on her side.
Q. Miss Goode, did you have occasion to observe the way Mrs. Atwood
worked?
A. Well, I just didn't like the way she rolled the trucks back to us.
Q. What about Mrs. Evans, did you object to the way she worked?
A. Well, it didn't bother me, because I make my money. It didn't make
no difference who made the seat covers , but it did bother Rosalie.
Q. Now was your group located in the back of the plant?
A. Yes, the back row of the machines.
Q. Did you think that Ruth Moore was a good piper, Miss Goode?
A. She was a fast piper, yes.
Q. Did you ever tell McGhee you thought she was good?
A. McGhee knew she was fast.
Q. Did you ever tell him you thought she was good?
A. I don't know whether I did or not. I don't remember.
Q. Who was it that asked you to sign a Union card, Miss Goode?
A. Well, the Union man brought one and left it with me on Saturday, just
after noon time. And he told me to make up my mind whether I wanted to
sign it or not and give it to Ruth Moore or Emma Evans, and I signed one be-
fore Lucille Gilpin and Emma Evans. They come to my house on Monday
night, I think it was.
Q. Miss Goode, is it your opinion that the Fry Company is not fair in giving
you not enough of the piece rate for one type of seat cover to make up for the
fact that it is harder?
A. Well, I am satisfied with what I make.
Q. You like your working conditions there?
A. Yes.
Q. And what did you do about the Union card; did you sign it, Miss Goode?
A. I signed it on the one that Emma Evans and Lucille Gilpin asked me to
sign , and I kept mine at home, the one the Union man gave me.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. You still are not favoring the Union , are you?
A. No, not after he said that he had a Union in every plant except this one
and Danville , and I found out later he didn 't have any . He was trying to trick
us getting into one . That is the way it seemed to me.
Q. Do you think Emma Evans was a good piper?
A. Yes, she was all right . We have several good pipers over there.
Q. Do you think the plant could use a few more pipers as good as Emma?
A. I don't know whether they could or not.
Q. Did you ever tell Emma you thought she was a good piper?
A. Yes. They have good hemmers, too.
Q. Who would you say was the best worker between Rosalie King and Emma
Evans?
A. Well, Emma was the fastest.
Q. Rosalie wasn't making her piece rates at that time , was she?
A. She didn't make her piece rates until after I told her she had better start
her front cushions and rear cushions or she never would make them. I said
start doing your facings on the rear back rest and rear cushions and if there
was any to be handed out to anybody else, let them get the front.
Q. Miss Goode , you are sure that Grace Cooley was among the girls that
you talked with at the time you had the discussion with Virgie Lee about call-
ing people back? f
A. She was setting at the sewing machine right beside me , why shouldn't I
be sure?
Q. Did she say anything to you?
A. I don 't remember her saying anything to me.
Q. What you mean she may have heard your discussion?
A. Oh, yes.
Q. Did she tell Virgie Lee she wouldn't work for these girls?
A. I think she did.
Q. You are not sure?
A. I have heard a whole lot of them say they wouldn 't work with them after
they heard what they did.
Q. Can you say for sure now whether Grace Cooley was one of them at that
time?
A. I can't say for sure , but she was in the bunch.
Q. Did Rosalie King ever hold up your work, Miss Goode?
A. I don't know that she did.
Q. Did you ever complain about her holding up your work?
A. No.
Q. You never told anyone?
A. No. I have been without work a lot of times over there because the
pipers weren't fast enough for me.
Q. Would that include Rosalie King?
A. It would include all the pipers that I have ever worked with . Some are
easier to do than others. Then I would have machine trouble and when I had
machine trouble I would get piled up that I couldn 't see my way out for a while.
Q. Now did you say you refused to work with Faye Carr this time you talked
to Virgie Lee?
A. I didn't have anything against Faye Carr.
Q. What did you say to Virgie Lee?
A. I just refused to work with them after I heard what was said.
Q. Did you name names to Virgie Lee?
A. I don't think I did.
Q. You just said, "I refuse to work with them"?
A. Yes. She knew who I meant.
Q. She knew because you had discussed it before?
A. Everybody in the shop had talked about it, or I imagine they had.
Q. Well, did they?
A. Usually when anything happened , we all knew about it.
Q. I have discovered that, yes. Usually, do you imagine that you talked
about it before Virgie Lee or you had talked about it?
A. I imagine Virgie was right around with me.
Q. You have seen a lot since this Union business started?
A. Oh, I have seen a lot of that for the last several years.
Mr. WITMAN : I have no further questions.
Mr. ZINN: No questions.
FRY PRODUCTS, INC. 1023
Mrs. Effie Barlow impressed me as a straightforward witness whose testimony
epitomizes the sentiments of the women who refused to work with the four. A
portion of her 13 pages of testimony is quoted herewith:
Q. (By Counsel Pittman.) Now what about Emma Evans?
A. Well, Emma Evans made a threat on me about when I signed that Union
paper.
Q. What was it she said about that?
A. She told me if I didn't sign it-she said, "We are going to have a Union
in here and if you don't sign this, I am going to see you don't have no job."
Q. What did she tell you when she-what else did she tell you when she
asked you to sign the card?
A. She told me everybody else had signed it but me when they brought the
papers down there that night. Her and Ruth came to my house and asked me
to sign it and I said, "No, I would rather not until I see McGhee." They said,
"No, we don't want McGhee to know about this and everybody else has signed
it but you ." I signed it . When I got back to the factory the next morning I
found out I had been tricked into it, so I asked for my papers back.
Q. And it was then that she told-
A. That was then she said they was going to have a Union; if I didn't sign,
I wouldn't have no job.
Q. Of course, you heard of the rumor that had started there about the em-
ployees and Mr. McGhee? •
A. I did.
Q. Was that pretty prevalent through the factory there?
A. It was a rumor all through the factory. Everybody was awfully upset
about gossip like that.
Q. Now did you have information after the layoff there that the Fry Prod-
ucts Company was going to recall these four girls?
A. Yes, I did. Mr. McGhee said they was going to. He didn't say the
four.
Q. What did he say?
A. He said, "I am going to call Emma Evans" and I said, "Well, if you are
going to call her, you just might as well call them all." He said, "No, I am going
to call Emma now." So we just said, "No, we are not going to work with
any of them."
Q. Did you tell him that?
A. I told Mr. McGhee that.
Q. Now was there any disturbance among employees out in the plant about
that after they found out about that?
A. They just all said they wasn 't going to work with them out in the plant.
The testimony of Joyce Lane, which I accept, is illustrative of the modus operandi
of Emma Williams Evans in her organizing efforts. I have concluded that she
coerced and misled some of her associates and retribution was inevitable.
Q. (By Counsel Pittman.) Now, Miss Lane, did anyone approach you about
signing a Union card?
A. Yes, Emma Williams come to my house one Sunday afternoon and asked
me if , called me out on the porch, wouldn't go in, and asked me if any of the
girls, or the Union man had ever been to my house, and I told her they hadn't.
And she asked me if I wanted to sign. She said they was trying to organize a
Union. She was working trying to help organize, and I told her I didn't know
much about a Union, and we just kept talking on, and I told her I would
rather wait.
Q. Did she make any threats to you about it?
A. Yes, she did.
Q. Tell the Court what that was.
A. She said she would see to it personally-first she told me the majority
had done signed. She said everybody but Margaret Jeffries and Virgie Lee had
done signed. She said the ones that don't sign wouldn't get to work. She said,
"I will see to it personally the ones that don' t sign in this Union won't get to
work."
Q. Did you then sign it?
A. No, I didn't sign it. I told her I would see her later.
Q. Did you sign one later?
A. Yes, I signed it later, maybe Wednesday or Thursday night.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Tell the Court under what circumstances you signed it.
A. I signed it in front of my neighbor's house. I was down at one of my
neighbor's and they come to my house and I wasn't at home and my folks told
them where I was at. So they came on down there to Francis Brown's and
called me out and I signed it in the car with Emma Williams and Lucille Gilpin.
And she told me that night that she had talked to the Union man and said the
Union man told her, "I will see to it the ones that don't sign this Union, won't
work." And she told me up there on the porch that night. She said this Union
man told me that he called Washington last night and they have got a Union
in every place in Tennessee, Georgia, Detroit, and I said, "Well, Emma, I
didn't know they had a shop in Tennessee." She.said, "I didn't either, but that
is what the man told me." And she said, "They have got one everywhere
except here and Danville."
Q. And, of course, you did depend on this work there?
A. Sure, I depend on the work.
Q. It was under those circumstances you signed the Union card?
A. That's right. If I knowed I could work on like I was, I wouldn't have
signed for the Union without losing my job.
Q. And you did tell McGhee and the other workers there that you would
not work with these girls, with Ruth Moore and Marie Atwood and Emma
Evans?
A. Yes.
0. Conclusions of Board and Respondent attorneys
Counsel W. P. Witman for the General Counsel, after a masterful presentation
of his case-in-chief, in his marshalling argument at the hearing and in his compre-
hensive brief contended that this difficulty at the plant was in fact a dispute between
the four Charging Parties who were union adherents, members, and supporters on
one hand, and a group of employees who were very much opposed to having a union
in their plant. This latter group was led by the violently antiunion Virgie Lee. He
pointed out that counsel for Respondent Company, in his oral argument to the Trial
Examiner, has admitted that this was the situation. Respondent Counsel Zinn
stated:
I suppose we would have to go to the "Who done it's" and say this is the
case of the man in the middle, Fry Products being the middle, and here is a
group of girls that want to organize this plant so that a union , a stranger, will
represent them, and another group of girls who do not want to organize this
plant and who are such strong characters that they feel they can deal directly
with the Employer and take care of their rights with that sort of negotiation.
Respondent counsel also said:
I think your Honor will conclude, as I have, in sitting here and trying to analyze
these witnesses' testimony, that you have three girls on the one side, and here
was Virgie Lee, a strong character, who didn't like the Union, was on the other
side, and here was Marie Sanders, another strong character who didn't like
the Union, she was on this side. . . . So that is only reasonable to suppose
that McGhee, being around there, couldn't help but know what was going on
and that the two factions were opposing each other.
Again, Respondent counsel said:
Here you have the two groups. One wants to organize; the other group doesn't
want to organize.
In addition, Respondent counsel stated:
Now, from that it is obvious that the vote that had been taken, which had dis-
closed not wanting a union, had narrowed the thing down so that there was a
little group that wanted it and a large group that did not want it. That little
group was having trouble in the plant. All of the testimony of the witnesses
as to the complaints that they had to make and so forth goes to show that they
were getting critical of these peoples Some of the things that happened didn't
mean much. Probably before the union activity had been started with these
girls they wouldn't have meant a thing, but it did mean something to these girls
after this thing started, and the feeling became very strong.
Witman said the employer, in accepting the determination of its employees that the
Charging Parties should not work, cannot escape responsibility. Respondent coun-
sel stated that the employer was in the middle of two hostile groups:
FRY PRODUCTS, INC. 1025
There isn't any way of getting away from the fact that the management was told
that they [the girls who were working] were going to quit. They wouldn't
work with them [the Charging Parties], so don't we have this sort of situation,
two factions, one wanting a union, another wanting no union. As a result of
the conflict, strong feelings, strong enough feelings that one group was willing,
to say, "We don't want to have anything to do with the others." Now, under
those circumstances isn't an employer obligated to separate his employees who,
tell them they don't want to work with this group, these girls, "we are going
to quit if you do," is he obligated to say, "I am bringing them back anyway."
He argued that "these admissions by Respondent counsel confirm that the reason
that the fellow employees of the four Charging Parties were angry with the Charging
Parties if in fact they did refuse to work with them, was because of their resentment
against the four girls because they worked for the Union. And even if there was no,
violation on March 10, in late March or early April the Company chose between
two opposing groups, and chose at its peril to keep the group of employees who were
opposed to the Union. The choice was the Company's to make, and it was made in
violation of the Act. Thus, even assuming that Mr. McGhee made a complete
attempt to recall Moore, Atwood and Evans, which Counsel for the General Counsel
denied, and assuming he met with strong resistance from a substantial number of
employees, which Counsel for General Counsel also denies, Mr. McGhee was in the-
position of adopting the reason of the other employees for refusing to work with
the four girls-their reason became his reason. Thus, this is not a case where the
employees were angry at the Charging Parties because of activities of the Charging-
Parties without the protection of the Act." In light of the evidence recited and relied-
upon, only in part of this theory do I find myself in accord with either counsel.
Concluding Findings
(1) Discrimination
Upon the basis of the entire record, I conclude that the motive of Respondent's:
Manager McGhee in failing to recall on March 10 Charging Parties Marie Atwood,
Emma Williams Evans, and Anna Ruth Moore according to their seniority was to.
gain a "cooling off period" in the interests of plantwide harmony. I hold that his.
decision to temporarily separate his prounion and antiunion employees, even in
the interests of plant harmony, to be discriminatory and violative of Section 8
(a) (3) and (1) of the Act.
I find further that it was his intention, and that he attempted to call back all of-
them except Faye Carr, whom he considered inefficient and incompetent, but that:
he was thwarted in his attempt to recall, on or about March 26, by the refusal
of the girls to work with the three discriminatees because of the rumor. The rumor-
far transcended the "little petty things," the union activity and the resentment
occasioned by being misled, and it clearly and understandably became an obsession
with the girls which motivated their refusal to work together after March 26. This
motive then became Respondent's reason in not recalling them, an entirely legal
one, and it continued to be the reason up to the end of the hearing.
(2) Interference, restraint, and coercion
In his closing argument and in his brief, General Counsel detailed 29 separate:
instances of patterned conduct which the Board and courts have universally held
to be violative of Section 8 (a) (1) of the Act i as interfering with, coercing, and
restraining the Company's employees in the exercise of rights guaranteed them by
Section 7 of the Act. It is established upon the basis of credited testimony that the-
interrogations and the statements were made by the named Respondent officials,
and I find that such course of conduct constitutes acts of interference, restraint,
and coercion in violation of Section 8 (a) (1) of the Act.
Evidence supporting the allegation of interrogating employees concerning their
knowledge of union activity, their connection and affiliation with the Union, and
their sympathy for the Union, follows:
1. Marie Atwood testified that Mr. McGhee motioned her to come into his office
and asked her what she heard about the girls trying to get a union, and whether she
1 Stan lard-Coosa-Thatcher Company, 85 NLRB 1358; Syracuse Color Press, Inc, 103°
NLRB 377. 379 ; H J Heinz Co, v N L. R B, 311 U S 514; N L R B. v Tennessee.
Coach Company, 191 F 2d 546 (C A 6).
338207-55-vol. 110-66
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thought a union was needed. He also asked her why she thought a union was
needed.
2. On another occasion Marie Atwood testified that Mr. McGhee asked her how
the union was coming on, and he asked her if she had seen the union man.
3. Marie Atwood testified that Mr. McGhee, in his speech of January 19, asked
the girls about their trying to get a union, and that he wanted to know what union
it was. He then directly asked Anna Ruth Moore what union it was.
4. Marie Atwood testified that Mr. McGhee asked her, about the time he made
his speech, if she had voted in the ballot box.
5. Marie Atwood testified that a day or two before she was laid off Mr. McGhee
asked her again how the union was coming. He also asked her if she passed out
union cards and asked her if she had seen the union man again.
6. Marie Atwood testified that on or about January 19 she was in Mr. McGhee's
,office and he asked here how the union was coming on, and whether she saw the
union man.
7. Marie Sanders testified that in his speech on January 19 Mr. McGhee asked
the girls what union they were working for.
8. Marie Sanders testified that in a conversation in Mr. McGhee's office he asked
her what she thought about the union and how she thought the girls felt about it.
Mr. McGhee also asked her if she thought a union would help her.
9. Emma Williams Evans testified that Mr. McGhee, in his speech of January 19,
asked the girls about their trying to get a union, asked whether it was Local 50,
and directly asked Anna Ruth Moore if it was Local 50.
10. Emma Evans testified that on or about January 23 Mr. McGhee asked her
if she voted in the ballot box.
11. Emma Evans testified that on or about January 23 Mr. McGhee called her
into his office, and asked her if she signed a union card.
12. Emma Evans testified that Mr. McGhee stated that she met the union man
over on the Lebanon Pike. The manner in which this statement was made indi-
cates that Mr. McGhee expected an answer and that his statement was actually a
question.
13. Emma Evans testified that Mr. McGhee asked her why she didn' t give union
cards back to the girls when they asked for them. He also asked her when she would
see the union man again.
14. Aline Ponder testified that on January 19 Mr. McGhee asked which union it
was, why they thought they needed a union, and what did the union have to offer.
He also asked Mrs. Evans, when he made his speech on January 19, 1953, to speak
up, and asked her what it was all about. He asked how much money the union
offered.
15. Aline Ponder testified that Mr. McGhee talked with her in his office on or
about January 21, 1953, and asked her if she had seen the union representative,
did she read the union blank, and did she find out what the union had to offer.
16. Faye Carr testified that Mr. McGhee asked her if they were trying to get an-
other union.
17. Faye Carr testified that when she asked Mr. McGhee if he thought she began
the union activity, he queried, "Weren't you?"
18. Faye Carr testified that Mr. McGhee, in his speech of January 19, asked what
union it was, and asked Anna Ruth Moore if it was Local 50. He also asked what
the union offered.
19. Hazel Bastin also confirms previous testimony about Mr . McGhee's speech
of January 19.
Evidence supporting the allegation of advising and informing employees that the
Respondent was aware of their affiliation with and activity on behalf of the Union
follows:
Emma Evans testified that on or about January 23 Mr. McGhee called her into
his office and told her the names of the girls whom Emma Evans visited when she
passed out union cards.
Evidence supporting the allegation of threatening employees with reprisals for en-
gaging in activity on behalf of the Union follows:
1. Emma Evans testified that in her January 23, 1953, conversation with Mr.
McGhee he stated that this was one time she had her neck stuck out. Set in a con-
versation about the Union, this is obviously a threat.
2. Aline Ponder testified that Supervisor Lena Bastin told her on or about June
22, 1953, that it didn't look good to the Company for her to associate with the four
girls (Atwood, Evans, Carr, and Moore).
3. Marie Atwood testified that around Christmas 1950 Mr. McGhee told her that
one of the reasons Mr. Fry moved the plant from Detroit to Liberty was to get
away from the union ; and that "You can 't work here with a union."
FRY PRODUCTS, INC. 1027
4. Marie Atwood also testified that in his speech of January 19, 1953, Mr. McGhee
said that he didn't know what Mr. Fry and Mr. Easterman would say about the
union activity, and that he had a call in to them. The method in which Mr. McGhee
announced he was reporting to his superiors obviously conveys a threat of reprisal.
5. Faye Carr testified to the same effect as Marie Atwood in paragraph num-
bered 4, supra.
Evidence supporting the allegation of interfering with the efforts of employees to
obtain signatures of other employees on union cards follows:
Emma Evans testified that on or about January 23 Mr. McGhee asked her why
she didn't give the other girls' union cards back to them.
Evidence, not protected as free speech, supporting the allegation of advising and
informing employees that Respondent would not work with the Union, that Re-
spondent would not have a union in the plant, and that Respondent would not oper-
crate the plant if a union came in, follows:
1. Aline Ponder testified that Mr. Fry, president of,the Company, in his speech
on or about April 16, 1953, told the girls "if you get a union, I will give the plant
to the union because I won't have anyone coming in and telling you girls and me
what to do."
2. Mr. McGhee testified that President Fry said at the same meeting that if the
employees had a union , he would give the plant to the union , and he wouldn't run
the shop.
3. Faye Carr testified Mr. McGhee told her no union was going to tell him what
to do.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent , set forth in section III, above , to the extent that
they have been found to constitute unfair labor practices , occurring in connection
with the operations of the 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 , as defined in Section 2 (6) and (7) of the Act.
V. THE REMEDY
Since it has been found that the Respondent has engaged in certain unfair labor
practices , it will be recommended that it cease and desist from said unfair labor prac-
tices and take certain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent discriminated with respect to the hire and tenure
of employment of Marie Atwood , Emma Williams Evans, and Anna Ruth Moore
by failing to recall them because of their union and concerted activities , it will be
recommended that Respondent make them whole for any loss of earnings they may
have suffered by reason of the Respondent 's discrimination against them from
March 10 to 26, 1953 . It will also be recommended that the Respondent make avail-
able to the Board, upon request , payroll and other records to facilitate the checking
of the amount due.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case , the undersigned makes the following:
CONCLUSIONS OF LAW
1. United Construction Workers, affiliated with United Mine Workers of America,
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 Marie
Atwood, Emma Williams Evans, and Anna Ruth Moore thereby discouraging mem-
bership in a labor organization , Respondent has engaged in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act.
3. By interfering with , restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent did not discharge Faye Carr for discriminatory reasons as
alleged in the complaint.
[Recommendations omitted from publication.]