Nebraska Bag Co.

National Labor Relations Board - Board Decisions

Dec 22, 1958

122 N.L.R.B. 654 (N.L.R.B. 1958)

654 DECISIONS . OF NATIONAL LABOR RELATIONS BOARD
against him to the date of offer of reinstatement , less his net earnings during said
period, and in a manner consistent with Board policy set out in F. W. Woolworth
Company, 90 NLRB 289 and Crossett Lumber Company, 8 NLRB 440.
It will be further recommended that the Respondent, upon reasonable request,
make available to the Board and its agents all payroll and other records pertinent
to the analysis of the amounts due as back pay.
Since the violations of the Act which the Respondent committed are related
to other unfair labor practices proscribed by the Act, and the danger of their
commission in the future is reasonably to be anticipated from its past conduct,.
the preventive purposes of the Act may be thwarted unless the recommendations
are coextensive with the threat. To effectuate the policies of the Act, therefore,
it will be recommended that the Respondent cease and desist from infringing in
any manner upon the rights guaranteed by the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case , the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-
CIO, is a labor organization within the meaning of 2(5 ) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Lemon
Fields, John Miller , James Trent, Adell Metcalfe, Kenneth Barlow, Jack Barlow,
and Junior Coleman, thereby discouraging membership in the above-named labor
organization , the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (3) of the Act.
3. By interfering with, restraining , and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging 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.
[Recommendations omitted from publication.]
Nebraska Bag Company and Robert H. Silver, Trust Account of
Harry L. Silver, Trust Account of Steven J. Silver, and Trust
Account of Jeanne M. Silver, d/b/a Nebraska Bag Processing
Company and Textile Workers Union of America , AFL-CIO
Robert H . Silver, Trust Account of Harry L. Silver , Trust Ac-
count of Steven J. Silver, and Trust Account of Jeanne M.
Silver, d/b/a Nebraska Bag Processing Company and Textile
Workers Union of America , AFL-CIO. Cases Nos. 17-CA-1227
and 17-RC-2573. December 22, 1958
DECISION AND ORDER
On May 23, 1958, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. He also recommended
that the Board set aside the results of the election conducted by
it on August 13, 1957, in Case No. 17-RC-2573 and that the Board
order the holding of an election, at the earliest appropriate time,
122 NLRB No. 75.
NEBRASKA BAG PROCESSING COMPANY 655
among the employees in the appropriate bargaining unit. There-
after, the Respondents filed exceptions to the Intermediate Report
and a supporting brief,' and the General Counsel filed a memo-
randum in support of the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed .2 The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in these cases, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner insofar as consistent with
our decision herein .3
(1) We find, in agreement with the Trial Examiner, that the
Respondents have violated Section 8(a) (1) of the Act. In so doing,
we rely on the following conduct, as found by the Trial Examiner :
encouragement of, and offering assistance to, employees to withdraw
from the Union4 by statements of Forelady Eaton to various em-
ployees that anyone who had signed "the little blue book" could
come to her in confidence, and she would see that they could get out
of the Union without anyone knowing about it; threats by Eaton's
statement to employees that if the Union came in Mr. Silver
would "go wholesale" and lose the business of a large customer.5
Eaton's statement to Barges that "if Bess and Mildred keep on
fooling around with the union I'll have to lay them off," Attorney
Levin's statement to employee Stroud that "we know how each
and every one of you voted,"6 and Silver's statement to certain
employees on the day of the election that a representative of an
important customer was in the plant and the employer would prob-
ably lose its contract if the employees elected by to represented by
1 The Respondents' request for oral argument is hereby denied as the record, briefs,
and exceptions adequately present the issues and the positions of the parties.
2 Subsequent to the hearing and the issuance of the Intermediate Report, the Respond-
ents filed a motion to reopen the case. Attached to the motion was an affidavit by witness
Enid Rheingans, repudiating certain testimony she had given at the hearing. The motion
was made "for the purpose of the transmission of the evidence enclosed" and to offer
other proof. The General Counsel submitted a memorandum in opposition. As the
Respondents had an opportunity to be heard at the hearing, to cross-examine the witness,
and to introduce relevant evidence, we cannot now consider the affidavit filed after the
hearing and not subject to cross-examination, as evidence. Iron Castings, Inc., 114
NLRB 739, footnote 1. Nor will we reopen the record for submission of such affidavit
and relitigation of the matters involved. Moreover, the conclusions of interference with
the election and violation of Section 8(a) (1) of the Act would follow, even if Enid
Rheingans ' testimony were discounted.
S We find no merit in the Respondents' contention that the remarks and conduct of the
Trial Examiner were "prejudicial" to the presentation of its case.
4 Atlanta Paper Company, et el., 121 NLRB 125; General Marine Corporation, 120
NLRB 1395.
5A. J. Showalter Company, 64 NLRB 573, 578.
6 Cf. R. J. Oil & Refining Co., Inc., 108 NLRB 641, 649 , footnote 10.
°656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a union; unlawful interrogation7 by Levin's questioning of Stroud
as to what she knew about unions, and Levin's questioning of em-
ployee Baldwin as to "who was for us and who was against"; and
interference with the right of employees to engage in proper or-
ganizational activity by Eaton's instructions to employees on the
day of election to remove their union buttons.8
. We place no reliance on the Trial Examiner's finding that the
speeches of Street and Larson as well as that of Silver violated
Section 8 (a) (1). In our opinion these speeches contained no threats
of reprisal or force or promise of benefits and came within the
protection of Section 8(c) of the Act.
2. We find, in agreement with the Trial Examiner, that the Re-
spondents have also violated Section 8(a) (3) of the Act. Like the
'Trial Examiner we believe, and find, that Schaumann, Ellison,
Barges, Goatcher, and Davenport were discharged for their union
activity. We are unable to conclude, as urged by the Respondents,
-that Schaumann and Ellison were discharged because of insufficient
production, that Barges was discharged for absenteeism, and that
-Goatcher and Davenport were discharged because of profane ut-
terances. To the contrary, the evidence sustains the conclusion that
the reasons advanced by the Respondents for the discharges were
mere pretexts to justify discharges for union activity.
3. As Nebraska has a Right to Work Law, we shall, in agreement
with the General Counsel, delete from the Trial Examiner's recom-
mended Order herein the proviso "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), as guaranteed in Section 7 thereof."
4. As we are administratively advised that the Respondents have
moved their plant to Ralston, Nebraska, we shall also provide that
they shall post copies of the notice at Ralston, and any other loca-
tions where they may be engaged in business.
5. Like the Trial Examiner, we find that the Respondents inter-
fered with the employees' free choice in selecting a bargaining
representative and that the election should be set aside and a new
election directed. We base our agreement on the following incidents
found by the Trial Examiner which occurred between July 25 and
August 13, 1957, the respective dates of the stipulation for consent
election and the election : the discriminatory discharge of employee
Barges; the instructions of Forelady Eaton to employees to remove
7 As we find the interrogation, in the context in which it occurred, to constitute inter-
ference, restraint, and coercion, we conclude that it was unlawful. Blue Flash Express,
Inc., 109 NLRB 591.
8 As the Respondents do not contend , and we do not find, that special circumstances
,existed making necessary a rule prohibiting the use of union insignia in order to maintain
discipline and uninterrupted production, we conclude that Eaton's instructions were un-
lawful. Kimball Glass Company, 113 NLRB 577.
NEBRASKA BAG PROCESSING COMPANY, 657,
their union buttons on the day of the election; and the statement
of the managing partner, Silver, on the day of the election to certain
employees that a. representative of an important customer was in
the plant and the employer would probably lose the contract of the.
customer if the employees voted to unionize the plant.
ORDER
Upon the entire record in these cases, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that Nebraska Bag Company
and Robert H. Silver, Trust Account of Harry L. Silver, Trust
Account of Steven J. Silver and Trust Account of Jeanne M. Silver,
d/b/a Nebraska Bag Processing Company, their officers, agents,
successors, and assigns shall:
1. Cease and desist from : -
(a) Discouraging membership in Textile Workers Union of Amer-
ica, AFL-CIO, or any other union of their employees by discharging
employees or by discriminating in any other mariner in regard to
their hire, tenure of employment, or by any other term or condition
of employment.
(b) Encouraging, or offering assistance to, employees to withdraw
from the Union.
(c) Threatening employees with possible loss of employment or
other economic detriment should the plant be unionized.
(d) Interrogating employees concerning their membership in,
or activities in behalf of, Textile Workers Union of America,
AFL-CIO, or any other labor organization in a manner constituting
interference, restraint, or coercion in violation of Section 8(a) (1) of
the Act.
(e) Interfering with the right of employees to wear union buttons,
or engage in other proper organizational activity.
(f) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist Textile Workers Union
of America, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in other activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any and all
such activities.
2. Take the following affirmative action which we find will ef-
fectuate the policies of the Act :
(a) Offer to Bessie Schaumann, Mildred Ellison, Josephine Barges,
Verna Goatcher, and Mary Davenport, immediate and full reinstate-
505395-59-vol. 122-43
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment to their former or a substantially equivalent job, without
prejudice to their seniority rights and privileges; make the said
Bessie Schaumann, Mildred Ellison, Josephine Barges, Verna
Goatcher, and Mary Davenport whole for any loss of earnings in
the manner set forth in -section V of the Intermediate Report; and,
upon request, make available to the Board or its duly authorized
agent or agents, for examination and copying, all payroll records,
social-security payment records and reports, and all other records
necessary to analyze the amount of back pay due and the rights of
employment under the terms of this Order.
(b) Post at their plant and offices in Ralston, Nebraska, or any
other place in which they may be engaged in business, copies of the
notice attached hereto marked "Appendix."9 Copies of said notice, to
be furnished by the Regional Director for the Seventeenth Region,
shall, after being duly signed by the representatives of each of the
Respondents, be posted by the Respondents immediately upon receipt
thereof, and maintained by them for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices
to its members are customarily posted. Reasonable steps shall be
taken by the Respondents to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for the Seventeenth Region, in
writing, within ten (10) days from the date of this Order what
steps the Respondents have taken to comply therewith.
IT IS FURTHER ORDERED that the election held on August 13, 1957,
is Case No. 17-RC-2573, be, and it hereby is, set aside, and that such
proceeding be, and it hereby is, remanded to the Regional Director
for the Seventeenth Region for the purpose of conducting. a new
election at such time as the Regional Director determines that the
effects of the Respondents' unfair labor practices and interference
with the election have been remedied.
s 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
NOTICE .TO ALL. EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :,
WE WILL NOT discourage membership in Textile Workers
Union of America; AFL-CIO, or discourage activity in support
NEBRASKA BAG PROCESSING COMPANY 659
of that organization, or any other labor organization, or dis-
courage any employee from exercising the right secured to him
or her under the National Labor Relations Act by means of
discriminatory discharge or discriminating in any manner in
regard to hire, or tenure of employment, or any term of condi-
tion of employment.
WE WILL NOT encourage or offer assistance to employees to
withdraw from the Union or threaten employees with possible
loss of employment or other economic detriment should the
plant be unionized; or interrogate employees concerning their
membership in, or activities on behalf of Textile Workers Union
of America, AFL-CIO, or any other labor organization in a
manner constituting interference, restraint, or coercion in viola-
tion of Section 8 (a) (1) of the Act ; or interfere with the right
of employees to wear union buttons, or engage in other proper
organizational activity; or in any manner interfere with, re-
strain, or coerce our employees in the exercise of the right to
self-organization, to form labor organizations, to join or assist
Textile Workers Union of America, AFL-CIO, or any other
labor organization, to bargain collectively through representa-
tives of their choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities.
WE WILL offer Bessie Schaumann, Mildred Ellison, Josephine
Barges, Verna Goatcher, and Mary Davenport, immediate and
full reinstatement to their former positions and make them whole
for any loss of pay suffered.
NEBRASKA BAG COMPANY AND ROBERT H.
SILVER, TRUST ACCOUNT OF HARRY L.
SILVER, TRUST ACCOUNT OF STEPHEN J.
SILVER AND TRUST ACCOUNT OF JEANNE
M. SILVER, D/B/A NEBRASKA BAG PROC-
ESSING COMPANY,
Employers.
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 AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On August 13, 1957, pursuant to a stipulation for certification upon consent
election approved by the Regional Director on July 25, 1957, an election by secret
ballot was conducted under the direction and supervision of the Regional Director
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the .Seventeenth Region. Case, No..17-RC-2573. Textile Workers Union of
America, AFL-CIO, had petitioned, prior to that election, for certification as
representative for the purposes of collective bargaining of the classes of employees
who participated in the election, they having been found and agreed to constitute
an appropriate bargaining unit. The voting unit included all production and
maintenance employees of Nebraska Bag Processing Company exclusive of truck-
drivers, office 'clerical employees, and professional employees, supervisory em-
ployees, and guards, as defined in the Act. The payroll period ending date for
eligibility to vote in the election was July 23, 1957.1
On August 16, 1957, the Union filed objections to alleged conduct said to
:have affected the result of the election. On September 17, 1957, the Union filed
a charge, claiming the commission of unfair labor practices, substantially encom-
passing the alleged conduct set forth by the Union in its objections to conduct
affecting the results of the election. After the filing of the first amended charge
by the Union on February 7, 1958, the General Counsel, by the Regional Director,
issued a complaint and notice of hearing dated February 7, 1958, against the
Respondents Bag Company and Bag Processing Company, alleging violations of
Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, (61
Stat. 136), herein called the Act, as constituting unfair labor practices within the
meaning of Section 2(6) and (7) of the Act. Case No. 17-CA-1227. On the
same day, the Regional Director issued and served upon the Bag Processing Com-
pany and the Union, as parties to Case No. 17-RC-2573, his report on the elec-
tion, the-objections to the result of the election and on a challenged ballot, and
recommendations to the Board in which he recommended that the Board direct that
a hearing be held upon the issues raised by certain objections numbered 1, 2, 5,
and 6, as stated in his report and on the issues raised by the additional facts
uncovered by the investigation "since these circumstances appear to reveal a serious
abuse and violation of the Board's processes and thus raise substantial and material
issues with respect to conduct affecting the results of the election." On February 25,
1958, the Board caused an order to be entered, directing a hearing to be held on
the issues raised by the objections of the Union concerning the results of the elec-
tion in Case No. 17-RC-2573, and providing for the consolidation of the hearing
in that case with the similar questions raised by the issuance of the complaint in
Case No. 17--CA-1227.2
The complaint alleges that at various times on or about June 15, 1957, and par-
ticularly during the months of June, July, and August 1957, the Bag Company and
the Processing Company (a) threatened employees with reprisals if they engaged in
or continued their union or other concerted activities; (b) engaged in surveillance
of employees' union and other concerted activities and created the impression of
such surveillance; (c) promised to its employees benefits, including wage raises, if
its employees discontinued their union or other concerted activities or voted against
the Union; and (d) unlawfully questioned employees about their union or other
concerted activities and about those of other employees. The complaint further
alleges that the Bag Company and Processing Company terminated the employ-
ment of five employees, two on July 2, 1957, one on July 26, 1957, and two on
August 14, 1957, in violation of Section 8(a)(1) and 8(a)(3) of the Act.3
Nebraska Bag Company , a corporation , will sometimes be referred to herein as the Bag
Company and the partnership , Nebraska Bag Processing Company, may be referred to as
the Bag Processing Company. Textile Workers Union of America, AFL-CIO, will some-
times be called the Union . The Regional Director for the Seventeenth Region is called
the Regional Director , and the General Counsel or hip counsel will be called General
Counsel. _.. __... ._ ...
_. .
n On February 27, 1958, the Board caused an order to be entered correcting its order of
February 25, 1958, in a minor respect.
- s The relevant provisions of Act, as amended ( 61 Stat. 136, 29 U.S.C., Secs. 151, et seq.),
areas follows :
RIGHTS OF EMPLOYEES
SEC. 7. Employees shall have the right to self-organization , to form, join, or assist
labor organizations , to bargain 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 shall also have the right to refrain
from any or all of such activities except to the extent that such right may be affected
NEBRASKA BAG PROCESSING COMPANY .661
The objections on which the Petitioner Union predicated its request that the
election be set aside are summarized as follows:
1. A forelady advised employees on the morning of the election that they would
have to remove their union buttons.
2. The managing partner of the Bag Processing Company told several employees
that a certain customer would cancel its contract with the Employer if the Union
was "voted in."
5. One employee or former employee had been placed on the eligibility list and
was permitted to vote although the Employer knew that this employee was not
eligible under the terms of the stipulation.
6. Several discriminatory charges which took place prior to the election affected
its outcomes
The consolidated matters came on for hearing before the undersigned Trial
Examiner at Omaha, Nebraska, on March 19, 1958, and the taking of testimony
was concluded on March 28. After opportunity for oral argument was waived
by all parties, the hearing was ordered closed on April 30, 1958.
A verified answer to the complaint in Case No. 17-CA-1227 was filed on Febru-
ary 14, 1958, the answer effectively denying the allegations of violations of the
Act as set forth in the complaint. On the issues drawn by the complaint and
answer and on the statement of objections, issue was joined at hearing. At the
hearing, the General Counsel and the Respondents were represented by counsel and
the Union was represented by two international representatives of the AFL-CIO and
an international representative of the Textile Workers Union of America, AFL-CIO,
petitioner in Case No. 17-RC-2573.
Upon the entire record in this consolidated matter, from his observation of the
witnesses, and after careful consideration, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE NEBRASKA BAG COMPANY AND NEBRASKA BAG
PROCESSING COMPANY
1. Nebraska Bag Company, a corporation, maintains its office and place of busi-
ness in Omaha, Nebraska, and during the year 1957, sold merchandise valued in
excess of $100,000 to customers outside the State of Nebraska. Nebraska Bag
Company is engaged in the business of selling burlap and other bags.
2. Nebraska Bag Processing Company is a partnership consisting of Robert H.
Silver, president of Nebraska Bag Company and the trust accounts of Harry L.
Silver, Steven J. Silver, and Jeanne M. Silver, respectively. Its principal place of
business is located at Omaha, Nebraska, in the same building as that of Nebraska
Bag Company, the corporation. Nebraska Bag Processing Company is engaged
in the business of repairing used burlap and other bags, and for this purpose uses
machinery owned by Nebraska Bag Company. Between October 1, 1956, and
July 1, 1957, Nebraska Bag Processing performed services valued at in excess of
$125,000 for employers engaged in commerce within the meaning of the Act.
3. Nebraska Bag Company and Nebraska Bag Processing Company constitute
one integrated operation and thus are a single employer within the meaning of
the Act. Each is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
by an agreement requiring membership In a labor organization as a condition of
employment as authorized in section 8(a) (3).
UNFAIR LABOR PRACTICES
SEC. 8.(a) It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7;
(3) by discrimination in regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage membership- in any labor
organization :
(c) The expressing of any views, argument, or opinion, or the dissemination
thereof, whether in written, printed, graphic, or visual form, shall not constitute or
be evidence of an unfair labor practice under any of the provisions of this Act, if
such expression contains no threat of reprisal or force or promise of benefit.
• The complaint alleges that the Bag Company and Bag Processing Company constitute
one integrated operation and thus are a single employer within the meaning of the Act.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nebraska Bag Company is now a corporation and existed as a corporation for
a number of years prior to October 1, 1956. On the latter date, the Nebraska
Bag Processing Company, a partnership, came into existence. After that date
Nebraska Bag Company, the corporation, engaged in the selling of goods and
materials and at the same time rented the facilities in the same building and
premises occupied by it to Nebraska Bag Processing Company, the partnership.
The premises are owned by the corporation, the machinery used by the partnership
:is rented to the partnership by the corporation and there is a community of
:interest in the whole of the operation as between the corporation and the partner-
ship. Robert H. Silver is the dominant owner and president of the corporation;
':Robert H. Silver through various trusts is a partner with the beneficiaries of the
,trusts5 and the whole of the community of interests lies in a more or less integrated
'operation. Robert H. Silver, president of the corporation, is the managing partner
of the partnership. Employees of the corporation are Silver, Eva Quigley, treasurer
and office manager of both corporation and partnership, and Robert L. Brown,
who carries the title of general superintendent and who is paid by the corporation
which is reimbursed for services performed by Brown for the partnership. The
corporation is compensated for the selling of rental space, salaries, telephones,
and other services by the partnership at a stated rate found by statistical methods
according to the findings of their firm of accountants. At the present time the
corporation is reimbursed for such facilities at a flat rate of $1,200 per month.
Robert H. Silver, president of the corporation and managing partner of the
partnership, is compensated by payment to him for his services from each source.
Brown, the general superintendent, is on the payroll of the corporation and as
noted the services he renders to the partnership are compensated for by payment
from the partnership to the corporation. Eva Quigley, is an officer of the cor-
poration and performs services as office manager for the corporation and the
partnership. Prior to October 1, 1956, all employees engaged in the operations
of the Bag Company, the corporation, were compensated by check from that
corporation. After that date payroll changes were made, so that the employees
involved in these present cases, except for Silver, Quigley, Brown, and Street, a
truckdriver, were compensated by check of the Bag Processing Company, the
partnership.
Prior to October 1, 1956, the Nebraska Bag Company, the corporation, engaged
in both buying used burlap and cotton bags, renovating them and selling them and
also servicing those kinds of bags owned by others. After that date, apparently
due to the initiative and resource of Silver, the servicing end of the business grew
to the point where it seemed advisable to management to separate the two opera-
tions. At the present time, the corporation is principally a selling and servicing
outfit organized to sell its services to the Bag Processing partnership and at the
same time be able to operate freely in the buying and selling of bags. However
that may be, the integrated management is of the kind that here make the two
employers a single employer within the meaning of the Acts
II. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Case No. 17-CA-1227
1. Union Activities
On about June 24, 1957,7 Elmer Dowell , a field representative of the AFL-CIO
in Omaha, Nebraska , received a telephone call from one Mrs. Bessie Schaumann,
a sewing machine operator employed by the Bag Processing Company, who in-
quired from him as to how the employees of that employer could become members
of a union . On June 27 , Dowell met with Schaumann and some nine employees
5 His sons and his daughter,
e N.L.R.B . v. Federal Engineering Company, 153 F. 2d 233 (C.A. 6) ; N.L.R.B. v.
Somerset Classics, Inc ., 193 F. 2d 613 ( C.A. 2), cert. denied sub nom. Modern Mfg. Co.,
Inc. v. N.L.R.B . at al., 344 U . S. 816; cf. N.L .R.B. v. Condenser Corporation of America,
128 F . 2d 67 (C.A. 3).
7 Unless otherwise particularly noted, all dates hereinafter mentioned are for the
year 1957,
NEBRASKA BAG PROCESSING COMPANY 663
at her home and outlined to them the way to go about organizing into a union.
On June 29, about 15 employees attended a meeting at Schaumann's home, and
signed union -authorization cards, indicating their desire to join thethe Union and be
represented by it for the purposes of collective bargaining. On July 1, Dowell
directed a letter to Robert Silver, president of the Bag Company and partner in
the Bag Processing Company, in which Silver was advised that the Union had
been notified by the requisite number of employees and held authorization cards
to the effect that these employees desired to be represented by the Union. Sub-
sequently, at a meeting between Dowell and J. R. Stocker, another international
representative of the AFL-CIO, and Silver, Irvin C. Levin, attorney for the Re-
spondent and Employer, and a field representative of the Regional Office of the
Board, a stipulation was entered into dated July 24 and thereafter an election was
conducted under the direction of the Regional Director and his representative on
August 13. The tally of ballots immediately after the election was held showed
that 19 ballots had been cast in favor of the Union, and equal number against
union representation, and there was 1 challenged ballot, not counted.
Equally active with Schaumann in initiating the organizing effort was Mildred
Ellison, a sewing machine operator. After speaking to Dowell on June 24,
Schaumann talked to Ellison and the next morning before or during a break
period or periods or during lunch break, Schaumann and Ellison talked to some
of the girls employed by the Respondent-Employer and a number of them signed
a memorandum book presented by Ellison indicating their desire to become
members of the Union. It was after the girls signed what has been referred to
as the "little blue book" that the first meeting was arranged at Schaumann's home
on June 27. At the June 29 meeting, cards were signed as noted above and
other blank cards were given to a number of the girls for distribution and solicita-
tion of signed cards from other employees.8 According to the testimony of Silver
and Jennie Eaton, Eaton as forelady was in nearly complete charge of work of
the employees in her department. She supervised those of the employees who
worked as sewing machine operators , who worked on blowing or cleaning machines,
and who worked as, sorters or counters. Silver seldom went on any of the three
floors of the- plani, and his efforts generally were devoted to selling and managing.
During the times material hereto, Silver delegated the powers of hiring and firing
to Eaton . Robert Brown , during these times was and now is the supervisor in
charge of receiving , shipping, maintenance , bag supplies , and ordinary repairs of
machinery , including several sewing machines used for the repair of burlap and
cotton bags . Under Brown , several employees are engaged in the receiving and
shipping departments in work generally regarded as common labor. A truck-
driver is employed, who works directly under Silver. This truckdriver, Merle
Street, drives leased automotive equipment consisting of trailer trucks and vans,
and works on regularly established routes in Nebraska, Iowa, and Minnesota,
picking up and delivering bags to customers of either one of the two companies.
Street has no connection with the operations of the plant other than picking up
goods at the plant dock, delivering them to customers of either of the companies,
picking up bags to be returned to the plant, and delivering bags to the plant at
the end of a particular journey after covering a designated route.
On July 10 at about 7:20 a.m. there was a gathering or a meeting of the female
employees supervised by Eaton, on the second floor of the factory or plant just
before work was scheduled to begin at 7:30 a.m. The meeting was called by
Eaton. According to the testimony of those witnesses called by the General
Counsel, she mentioned the Union, and told the girls that anyone who had signed
"the little blue book" could come to her in confidence and she, Eaton, would see
that they could get out of the Union without anyone knowing about it. Eaton is
further quoted as having said then that if the Union came in Mr. Silver would
"go wholesale" and that Purina Ralston (a large customer), would not do busi-
ness with them. Other witnesses testified to remarks made by Eaton to the effect
that if the girls would come to her one by one she would get them out of the
Union and no one would know about it. According to Eaton, there was the
s Schaumann testified that just before she called Dowell, she had asked Jennie Eaton,
the forelady in charge of the female employees involved herein, what she (Eaton) would
think about a union in the plant, and that Eaton had replied that it might be a good
thing. Eaton denied she made such a statement. The testimony of Eaton will be com-
mented upon below; the Trial Examiner will discredit Eaton as being an unreliable
witness, and in view of his findings would, if necessary for the ultimate determination
of this case, credit Schaumann's testimony concerning this conversation as showing that
Eaton had early knowledge of the interest of Schaumann in union organization.
664 DECISIONS ' OF NATIONAL LABOR ' RELATIONS BOARD
usual conversation among the girls at: about that time and all she said was that
she was the supervisor and could ' not talk about the Union ; she denied' any of
the statements attributed to her concerning the "little blue book " or any other
remarks she was said to have made. It clearly appears from the record and
from the testimony of credible witnesses that this meeting or conversation among
the girls was initiated by Eaton before the 7:30 bell rang to signal the beginning
of work and continued for at least a few minutes after the ringing of the bell.
On the afternoon of the same day, July 10, Street , the'truckdriver , addressed
the girls just before they started to work after the midday meal recess. According
to Street , he had heard about the organizing efforts going on in the plant, and
wanted to tell the girls about his experience as a member of the Teamsters Union.
According to Eaton , Street approached her and asked to talk to the girls and she
told him he could talk to them but not during working hours. At any rate, Street
did talk to the girls and told them of his disapproval of unions based upon his
experience as a member and as a nonunion member . What he did precisely say
is not clear from the record ; there is testimony to the effect that he . told the group
that Mr . Silver had asked him to address them , denied by Street , ' Eaton, and
Silver . According to Silver he learned about the episode only after he returned
from a short absence from his office at the plant . Since the duties of Street were
completely detached from the work of the employees who were interested in the
Union, one is moved to wonder why he, of his own volition, should undertake to
speak to them concerning the inadvisability or uselessness ' of membership in a
union . Street testified that he approached Eaton and suggested to her that he
would like to address the girls because of his opposition to their joining of the
Union; that Eaton'arranged for him to talk to the group just before they began
work after their noon mealtime; and that he did advise the girls that he had
learned that -a union was not beneficial to members. This substance of testimony
by Street was confirmed by Eaton. According to them,. neither Silver nor Levin
nor any other representative of the Employer had any advance notice that Street
was to speak to the group of 'employees at the time he did. In the whole context
of this case, the testimony of Eaton and Street in this respect is incredible.
It will be recalled that the Company and the Union had entered into a stipula-
tion for a consent election on July 24. On July 29, the employees were called
together, and were addressed by one Orville Larson, a person not employed by
the Company but who previously had been and later had accepted a position with
a union. Larson was introduced either by Eaton or Levin and proceeded to tell
the girls about his unfortunate experiences as a member of a union; that he had
been a union worker, that he was laid off from his job because the union sup-
ported someone with less seniority than he had and that he would advise against
the girls joining the Union . Levin and Larson engaged in a question and answer
period, with Levin leaving before Larson made his talk. Some witnesses said
Silver was present at this meeting-others said they did not see him there or
did not remember whether he was present or not. This meeting took place on
the Company's premises , and occurred during working hours.
At the close of work on Friday, August 9, in the presence of Levin, Silver read
a speech to the assembled employees in his office. He first announced that anyone
who wanted to was free to leave and could take their paychecks with them. He
then said before reading his remarks, that he was interested in the welfare of the
employees and that in his opinion they needed no union to improve the good
conditions existing in the plant. In his written speech he set forth the fact that
each employee on the eligible list was entitled to vote by secret ballot and vote
according to his or her conviction; that the Company wanted each employee to
exercise his or her own judgment as to what was best and that the Company
would not interfere in any respect if they decided to select the Union to represent
them. Those employees who testified were fully agreed that although Levin was
present he had little if anything to say at this meeting, attended by Brown and
Eaton and Quigley, the office manager and treasurer of the Respondent-Employer.
There is no testimony that any employee left this meeting before Silver had
finished reading his speech. The talk or speech of Silver appears below (foot-
note 13).
By itself, this talk was within the permissible area of free speech under the
meaning of Section 8 (c) of the Act. Its timing, and within the context of this
case, makes it susceptible to question as to whether it was proper.
On the morning of August 12, before the employees were due to start work,
a number of them met at a street corner about a block away from the plant and
union buttons were handed to each of them for display on their blouses. Upon
reporting to work on the following morning, those employees who were wearing
the union button were instructed by Eaton to remove them as being likely to cause
"NEBRASKA ' BAG PROCESSING COMPANY 665
accident.. The. . employees removed the buttons. The testimony shows • without
contradiction except from Eaton that the girls. ordinarily, wore costume jewelry
such as earrings, brooches, .bracelets, and rings. No complaint-ever was made
by. Eaton. or any other representative of management or any. instruction 'issued
concerning the.wearingof small articles of adornment. At any rate; union buttons
were not worn on the day of election.
i ^ .(a) ^ The discharges of Schaumann and Ellison
Bessie Schaumann and Mildred Ellison had been ,active in promoting; -.and in
tact were the first to attempt to interest fellow employees in membership in the
Union. - After discussions with. other, employees on the, afternoon of June 24,
Schaumann called Dowell, a, field representative of the AFL-CIO, and it was at
her house on June ,27 and again on June 29,. that the, female, employees -of the,
Employer met to initiate the Union's organizational effort. . After the meetings at
the Schaumann house on June 27 and 29, Schaumann and Ellison actively solicited
membership in the :Union. At the end of the workday, on July 2, at about
4:30 .p.m,. Eaton discharged Schaumann and Ellison on the sole, ground that they
were not "keeping up with , production." .
Approximately 1 week before the, discharge of Schaumann and Ellison, a quota
system, said by Silver to have been in effect for a number of years -requiring the
production from sewing machine operators .of approximately 500 bags to be re-
paired each day, began to be enforced by the Company, in the sense that the
counter was required to check carefully the number of burlap . or cotton bags
repaired by each sewing machine operator on each workday. Eaton was supposed
to know that sewing machine operators were required to repair at least 500 bags
on an average on each day of work; Eaton testified that she gave the machine
operators considerable leeway and that they were not actually required to repair
this number of bags daily. During the times material herein, the Bag Processing
Company had in operation seven automatic sewing machines. Five were 45-K 76
model Singer sewing machines, one a cotton bag patcher and one 133 model
Singer sewing machine. These machines were from 5 to 11 years old; the ones
assigned to Ellison and Schaumann were approximately 7 years old.
In the sewing operation it, appears that considerable trouble is experienced at
times by the machine operators, caused by maladjustment of tension in the
thread through either a failure of the bobbin or through vibration of the machine;
either condition may throw the adjustment of thread out of balance so that the
needle does not operate properly during the process of sewing. Brown attended
to major adjustments; Eaton was able to make adjustments; and the machine
operator herself was taught how to adjust tension by use of a set-screw to make
the adjustment necessary to give proper tension of the thread, so that the sewing
process could continue without interruption.
Schaumann testified, as did Ellison, that Eaton had not at any time discussed
their low production with her and that each of them was unaware of the fact
that they were supposed to repair bags according to "quota." On the other hand,
Silver said that Eaton had strict instructions to dispense with the services of any
sewing machine operator who could not do at least 500 bags each day. Each
employee testified that they experienced almost continuous trouble with their
machines and that with respect to "quota," they at the time of their discharge,
were told that they had failed to keep reasonably within the quota requirement
and were being discharged for lack of production. Forelady Eaton testified that
she had advised each one of the sewing machine operators that if they made
425 bag repairs a day, it would be acceptable. This statement of Eaton's was
contradicted by Silver, who said that the quota of 500 bags per day had been
set up long ago; he implied that Eaton did not have the authority to advise the
sewers that 425 bags a day was acceptable.
The serving process encompasses the repair or closing of holes in bags either
by stitching or by the application of a patch. Bags vary in requirements for re-
pair-bags may have 1, 2, or 3 or more holes and still be repairable.
Production figures for each of the five sewing machine operators were kept
only between June 24 and July 2. Ruth Miller Stroud had been instructed by
Eaton to make a count of bags repaired by each of the five sewing machine op-
erators and upon request to furnish any machine operator with her production
count for a particular day during this time. After July 2, the date on which
Schaumann and Ellison were discharged, Eaton took over the count from Stroud
and did not thereafter make the production figures available to individual machine
operators. Examination of the records kept by Stroud show comparatively wide
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fluctuations in production for each of the operators during this short period, and
that the 500 bag quota was not often met.
Annie Johnson and Ann Ernest, machine operators, testified that they had been
told by Schaumann or Ellison, or both, that they were working too fast and that
they ought to slow down. Johnson, on the basis of the few statistics made avail-
able, and according to her own testimony,.was the fastest worker and turned out
more repaired bags than any other of the sewing machine operators. Ernest, too,
was a fast worker. (The machine operators were paid on an hourly basis, no
bonus or premiums being provided for excess of quota.)
A great deal of time was taken at the hearing on the question of whether or not
the sewing machines were in proper order so that Schaumann and Ellison could
not possibly turn out more than some 250 to 475 bags per day, approximately,
or whether they deliberately engaged in a "slowdown" in an effort to persuade
other machine operators not to work so hard. There is in the record testimony
to the effect that Annie Johnson, the most productive worker, was asked not to
work so fast, and as noted, Ernest was also talked to concerning her production.
However, in the absence of compelling testimony in support of an actual slow-
down situation, the evidence cannot support the contention that Schaumann and
Ellison deliberately promoted a move to curtail production. The testimony of
Annie Johnson and Ann Ernest impressed the Trial Examiner more as an ex-
pression of poor recollection rather than statements actually made to them by
either Schaumann or Ellison, or both. Annie Johnson obviously was inimical to
Schaumann and Ellison and decidedly opposed to any motion of union organiza-
tion; Ernest, while testifying clearly with respect to her work at the times men-
tioned, had no clear recollection on cross-examination of other activities of
Schaumann or Ellison or any other of those employees who were active in the
Union. The Trial Examiner, therefore, is impelled to accept the testimony of
Schaumann and Ellison and to reject the testimony of Johnson and Ernest.9
Schaumann and Ellison had almost continuous trouble with their machines;
Johnson said that she had never had any trouble with her machine, a 45 K 76
model, and Grace Ferro, another sewing machine operator, testified to about the
same effect as Johnson with regard to the operation of her machine. On the
whole context of evidence, however, including that of Brown and Eaton, it seems
unreasonable to believe that neither Johnson nor Ferro ever experience difficulty,
since testimony not only of Brown and Eaton, but the testimony of other sewing
machine operators show that there was constant trouble with respect to mal-
adjustment on machines caused either by bobbin trouble or by vibration.
Company management was fully aware of the fact that Ellison and Schaumann
were leaders of the unionization movement and this knowledge was imparted to
them long before actual organization was effected. It seems clearly apparent that
the sudden enforcement of a daily production quota for the sewers occurred
simply because the employers sought to establish a basis for the discharge of these
two active union members. Neither Schaumann nor Ellison was ever warned
about the consequences of not meeting the so-called quota-they were summarily
discharged by Forelady Eaton without ever having been cautioned concerning
their alleged failure to repair the required number of bags which, it is said, the
quota system required. Eaton herself admitted on the witness stand that there
was no fixed quota of 500 bags per day; she arbitrarily reduced it to an acceptable
425 bags per day and it is obvious that she made no effort whatsoever to inform
or notify any of the employees under her direct supervision that they were re-
quired to meet the 500 bag quota or have their employment terminated.
The daily count for so-called quota purposes was immediately discontinued when,
according to the figures reflected from the daily count, it was shown that neither
Schaumann nor Ellison had repaired 500 or more bags per day. The General
Counsel argues and the Trial Examiner agrees that the keeping of this count for
the short period involved was directed particularly against Schaumann and Ellison,
two of the most active of the union adherents, merely to give color of justified
employer action to effect their discharges. As the General Counsel points out,
even if the employer's production figures were to be credited, the Respondents
have not even attempted to explain why other employees not meeting that quota
were retained in employment. Were these figures to be accepted it would show
that each one of the five sewing machine operators should have been discharged
with the sole exception of Johnson, who did repair 500 or more bags on 2 or
3 different days during this short period of time. The reason advanced by the
9 Josephine Barges, discharged July 26, testified that on or about July 1, Eaton told
her that "if Bess and Mildred keep on fooling around with the Union I will have to lay
them off." The discharge of Barges is discussed below.
NEBRASKA BAG PROCESSING COMPANY 667
Respondents for the discharge of Schaumann and the discharge of Ellison must
be considered as mere pretext. The Trial Examiner believes and finds that each
of these employees was discharged by reason of her union activity and interest,
and for her concerted activity, with other employees, for the purposes of col-
lective bargaining.
(b) The discharge of Josephine Barges
Josephine Barges was hired on September 17, 1956, by Eaton and was put to
work by Eaton. She was discharged on July 26, 1957. She was active in and
one of the leaders of the unionization attempt. Her activities were well known
to Eaton.lo
Due to the sudden illness of her son during the week prior to her discharge,
she had been absent for several days. When she was called in to Silver's office
on the day of her discharge, she was told by him that she had been absent for
4 out of 7 working days immediately prior to that date; she told Silver that she
was a married woman with a family and could not be expected always to report
to work as steadily as.those of his employees who did not have family respon-
sibilities; she explained at the hearing that she took that position because of the
unusual circumstances during the time mentioned and that she was unable to report
to work because of family problems. There is no evidence of a history of
absenteeism against her and her discharge rested solely on her failure to report
for work on the 4 days out of the 7 before July 26.
Although, on the basis of the testimony of Silver, Forelady Eaton was charged
with the responsibility for hiring and firing except in exceptional case, Barges
was fired by Silver and at the time Attorney Levin was present. Quigley said
that on July 26, she saw Barges in the plant offices at about 12:30 p.m.; that
Silver and Levin were there and that Silver questioned Barges about her previous
absences. Quigley testified that Barges spoke of her family responsibilities and
said she could not be expected to work as regularly as other employees who did
not have such family problems. Quigley testified that a discussion ensued con-
cerning a recommendation for Barges, after the latter had been informed that
she was being discharged, and that finally it was agreed that Silver would give
Barges a recommendation without mention of the cause of her discharge. Ac-
cording to Barges, and the Trial Examiner believes her, she did not at any time
receive any form of recommendation for future employment with another potential
employer from Silver or any other official of the Company. The Trial Examiner
does not believe that her absences were the true reason for her discharge, but
he does believe and finds that her absences were seized upon as a pretext by the
Employer to terminate her employment because of her union activities.ll
(c) The Discharges of Verna Goatcher and Mary Davenport
Verna Goatcher was employed by the Bag Company for the period January
1954 to August 1955, and was hired by Eaton as an employee of the Bag Process-
ing Company on September 17, 1956. She worked until the date of her discharge
before the beginning of work on August 14, 1957. She was quite active in union
organizational efforts. She signed the "little blue book," signed a union au-
thorization card at a meeting at Schaumann's home, and thereafter solicited and
obtained the signatures of Mary Davenport and two other employees to author-
ization cards. Eaton during the latter part of June asked her "if Mabel had signed
the blue book" and told her that she thought the Union would be a good thing.
About July 5, Enid Rheingans told Goatcher that Eaton had asked her [Rhein-
gans] if Verna could be trusted; that Rheingans said "yes," and after that Eaton
asked Rheingans if Goacher would talk to Silver. Goatcher said she would talk
to Silver, that she had nothing to hide, and Eaton then arranged a meeting with
Silver in his office. At that meeting, according to Goatcher, Silver in the presence
10 See footnote 9, supra.
11 Compare the discharge of Barges for absenteeism with the treatment accorded
Harryman prior to and on the day of election. See pages 672-673, infra. Further disparity
of treatment of employees as between Barges and others is demonstrated by an incident
which occurred only a short time before the time of Barges' discharge. The record re-
flects that Silver found Forelady Eaton and Parrish drinking in a public bar on the same
day that Eaton had reported in as being ill and unable to work and Parrish had notified
the Company that she could not report to work because of the illness of her father.
No action was taken by management, and not only was Eaton not subjected to discipline
of any kind, but Parrish did not incur the penalty of discipline or discharge.
668- DECISIONS OF` NATIONAL LABOR RELATIONS BOARD
6,f: Eaton suggested that he would be willing to make her an assistant to Eaton_
with ' the possibility of about '10' cents an hour pay , increase ; Goatcher then said,
she - told - Silver . and Eaton that she did- not think she' was qualified to do the job.;
.According to Goatcher ; the subject of union organization was-brought up. Some
3 days later Goatcher and several other of the female employees were , called in- to
the office of Silver ; he at that time informed them.that on the advice of his attor-
ney he could not grant the promised payAricreases because it would amount to an
interference with ,, union activities . At the . hearing Silver testified that. he had
'offered increases to several of the girls if they would assume duties of a supervisory
stature in the particular operation in which they respectively '-were ^ engaged. For
instance , Annie Johnson was asked 'if'she would undertake to watch the other sew-'
ang machine operators.ia
Goatcher was present at each . of the' meetings of employees on July 10, as .was
Josephine Barges and Mary Davenport :, Their testimony is convincing : Eaton at'
the morning meeting called the girls together and informed them that if they would:
come to her singly she would arrange to have each ' of them withdrawn from the
Union and no . one would be the wiser ;. that at the afternoon meeting, ' Street, the,
truckdriver , informed , them that he 'had been asked to address them ' and that he'
wanted to give them his views as to the advisability of employees becoming mem
bers of the Union. -
Goatcher was observer for the Union at the ' polls on the day of the election,,
August 13.
The election was conducted at the plant shortly before closing time. After the
ballots were cast , a number of employees together with President Silver, Attorney.
Levin, Forelady Eaton , and Superintendent Brown while standing on the loading
dock at the shipping entrance of the building observed Goatcher driving by in her
automobile . Davenport was sitting in the front seat at Goatcher 's -right , nearest.
the loading dock . As the car went slowly by, Davenport leaned partly out the
window and ejaculated a vulgar word containing an epithet toward the group
gathered , on the dock . The result of the balloting had just been announced, and
it seems clear enough that Davenport uttered the vulgar or offensive phrase in a
moment of pique at the result of the election.
On the following morning, August 14, as Davenport and Goatcher entered the
plant just before 7:30 a.m. to go to work, they were intercepted by Eaton, who
told each of them that she was wanted in Silver 's office. They went there, and
were met by Silver and. Attorney Levin . Eva Quigley was there ; Superintendent
Brown came in a few minutes later. He was followed by Ruth Miller Stroud.
Silver then told the two girls that he could not manage his business properly if
employees were permitted to call him names such as he was called the day before,
and that therefore they were being discharged for the use of vulgar or profane
language. According to Goatcher and Davenport , Silver told them that Davenport
was being fired for the use-of vulgar language and that Goatcher was being fired
for union activities while at work . Two checks were handed to each one of these
employees : one for the payroll period of the week before to the then current week,
and another for her services on Monday and Tuesday , August 12 and 13. One
check handed each girl was dated August 10 , the other August 13 , the latter check
being made out by Office Manager Quigley on that morning (August 14) at the
time these employees were discharged.
At the time Goatcher and Davenport were discharged Eaton was present, al-
though the actual discharge was effected by Silver with his attorney at his side.
Witnesses called by the General Counsel testified that it was usual and not
uncommon for off-color or vulgar language to be used by some employees during
the course of their day's work at the plant, and that they had heard Eaton, among
others, use language not customarily used but which might be sometimes be used
in the plant. On the other hand, witnesses called on behalf of the Respondents
testified that never had they heard any off-color, coarse , vulgar, or profane lan-
guage used by any employee or supervisor or other person.
12 During the preelection period , Silver promised wage raises to female employees, other
than Goatcher-.to employees Morlan, Elsie Brown , Johnson, and Partida. Silver did not
remember making an offer of a wage raise to Parrish and categorically denied having made
a promise of a' pay raise to Goatcher . According to him, the employees to whom wage
increases were offered were those who were to act as subforewomen in the department
where employed ; he did not reach the point where he was able to describe what the new
duties of the newly created subforewoman job would entail in the way of additional
responsibility , separate from their jobs as workers, or whether they would have other
special duties or functions to perform in such a job.
NEBRASKA BAG PROCESSING COMPANY 669
At the time he discharged Goatcher and Davenport, Silver, in the presence of
Attorney Levin, expressed dismay in having been the recipient of the epithet
uttered by Davenport and said by him to have been joined in by Goatcher.
Although, as Silver said he believed, the ejaculation or epithet had been directed
to him and his attorney, it seems that the punishment meted out was extremely
harsh. Ultimate and final dismissal from the job in the circumstances seem only
to show another pretext for dismissing from employment of the Respondents of
two active union members. The Trial Examiner does not believe that vulgarity
or profanity never was used in the plant of the Respondents, nor does he believe:
that the atmosphere, verbally, was so clean as the Respondents would have it
appear. Factory employees, as is well known, do not always employ the language
used in polite formal society while at work.
(d) Other Employer Activities
Employees called by the General Counsel testified concerning the overall activi-
ties of the Employer during the period beginning about June 24 through and after
the time of the election on August 13; other employees called on behalf of the
Respondents, in sum delivered the following credible facts:
Ruth Miller Stroud was employed on August 23, and worked until October 24,
1957, when she left her employment of her own volition. She was solicited by
Schaumann and Ellison for membership in and joined the Union on July 27; she
was present at both of the meetings or gatherings of July 10; her testimony fully
confirms that of the five employees who were discharged on July 2, on August 14,
and the other one on July 26.
Stroud was employed as a sorter of bags, and during the period June 24 to
July 2 was the person who counted the bags repaired or worked on by Schaumann,
Ellison, Annie Johnson, and the other two sewing machine operators. A few days
after July 2 she was summoned to the president's office, at which time she was
asked by Attorney Levin in the presence of Robert Silver what she knew about
unions. Se said that she knew nothing about the Union, and that was why she
was attending its meetings. She was asked by Silver and Levin about her "count
slips" on Schaumann and Ellison, these slips having been her daily interim report
on bags she picked up and counted from time to time during the day for record
of work done by each of the sewing machine operators. Stroud was present at
the time Goatcher and Davenport were discharged on the morning of August 14
and she said that Levin at that time told her "we know how each, and everyone
of you voted." She said further that after the discharge of Schauann and Elli-
son she was instructed to give her daily counts to Eaton on a slip of paper rather
than entering each count in her record book, then being kept by her, and that
Eaton instructed her that thereafter she would make the entries. Stroud, acredible
witness, also testified that Ellison, Schaumann, and Ernest, all sewing machine
operators, did not leave holes in bags sewed on by them, while other machine
operators did not perform a full job of repair and some bags had to be set aside
for further repair.
Enid Rheingans, a credible and apparently disinterested witness, testified that in
middle morning or early afternoon of August 13 (the date of election), 'she, 'while
at work with another employee, Parrish, was approached by Silver who told the
two that he would lose his contract with one of his largest customers if the Union
won the election. Later, in September, she called upon Silver in his office to obtain
her vacation, paycheck Wand at that time Silver asked her why he should help her
if she was aiding the Union. She had called for her vacation check, she said,
because her regular paycheck had been garnisheed.
Barbara Baldwin was employed by the Bag Processing Company from March 4
to November 29, 1957, when she voluntarily left the employment of the Company.
She, too, was present at the two meetings said to have been called 'by Eaton on
July 10, at the July 29 meeting when Larson spoke to the girls -in the presence of
Silver and Levin, and at the August 9 meeting in Silver's office. She related that
on July 23 she was sent to the office by Eaton and was' interviewed by Silver and
Levin; that Levin had a list of employees and asked her "who was for us and
who was against." She said that on about August 15 Levin spoke to "all the girls"
and explained why Davenport and Goatcher had been fired and that Levin had
said that he and Silver knew that the girls "had voted as they thought best." She
said that she was again called into the office on September 27 and questioned about
a statement she had given to a field representative of the Regional Office of the
National Labor Relations Board. Annie Johnson, Alice Sands, Sandra Franklin
Metcalf, Claude Metcalf, and others in their testimony were fully agreed' that
Street, during the speech he made to the group on July 10, and-Larson who spoke
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the group on July 29, and Silver and Levin at the meeting on August 9, had
made no mention of the Union or "unionization ," except that Levin and Silver at
the times they were present had told the female employees that they could vote by
secret ballot and vote as they desired.13 These witnesses called by the Respondents
:almost invariably could remember nothing that was said by Street, Levin, or Lar-
son, except that they did not oppose the unionization of the employees in the
plant. Such negative testimony can not stand against the plain facts . The testi-
mony of these witnesses is, therefore, disregarded by the Trial Examiner.
On the difficult question of credibility, the Trial Examiner has decided that
Eaton's testimony is not worthy of belief in hardly any respect. Eaton denied
that she had asked Barges any questions concerning the Union ; she said that she
did not say that she would have to lay off Schaumann and Ellison ; she denied
'3 The text of the speech made by Silver on August 9 is as follows :
It is with deep gratitude to many of you that I talk today . I am reading this
because I have learned that some of you have given statements that are untrue to
the Union and that you have signed such false statements . If any of you want a
copy of this statement for the union , you may have it. Just for the asking.
As you know, on Tuesday, August 13th, 1957, there will be an election and it
will be for the purpose of determining whether or not you want to be represented
by the Textile Workers Union.
I am asking for the courtesy of saying a few words to you. Just a few simple
statements , before you vote.
If any of you wish to leave, you may do so and I will hand you your checks now.
Nothing will be held against you by reason of your doing this.
First of all, I should like to ask all of you to vote . It is your duty to cast a ballot
so that the results will be the wishes of all of you and not the desires of just a few.
Your ballot is a secret ballot, known only to you and to your God. It will be a
plain ballot, which you will make In private . You yourself will drop it in the ballot
box and only you will ever know how you voted. You may have signed a Union Card
but you may still vote against the Union ; and you have the privilege of voting for
the Union , If you wish, even if you haven 't signed a Union card . It is a Free Election.
The organizers have told you that the Union will get you better wages and better
working conditions; Let us consider this. We are limited today, on what price we
can get for our work. At the present moment we are facing some 'serious conditions
in our business . We are competing with other companies and we are trying to make
jobs for all of our people . If our product and our price cannot compete with others,
then we could not pay the money for your jobs and all of you would lose. I believe
you recognize this to be fair.
We are hoping that conditions will change in the future and if they do, all you
will benefit.
No one has come to us with any request before this union organization started.
We had no opportunity of working with you. This was done behind our backs.
Now, as to working conditions . We are ahead of our competitors in this industry.
Has the Union told you any place where the working conditions are better or the
wages are higher : I am sure they could not . Yet we have been trying to make certain
improvements and have even been dealing on a better building , hoping to improve
things for you.
We, have valued , the;'personal friendly relationships that have existed. You have
been at liberty to come to us about any matter whatsoever . If the Union, wins, you
will lose this right , which you now have, to deal directly with us. If the Union wins,
the personal relationship ends and will disappear and we no longer will deal with
you directly. We would not penalize you nor be unfriendly to you but you do lose
that right. Remember that the privileges that you have today were gotten for you
without the help of any Union and it won't require any Union to keep them for you
or to get you further benefits.
I have placed no blame on any one but it is a fact that it Is mainly in union shops
that strikes and disturbances occur. Think of the loss of time-and the wages lost.
It) ,is our desire to, give employment to everyone who seeks it. You don't have to
join a union to work here and you won't have to join a union to receive the benefits.
If there Is no union , you will be able to keep your full earnings from your labors, as
we may find it necessary to deduct your union dues and give it to a union official
under union conditions . We want fair play for all of our people . All of you come
and vote. Vote your conscience. Let no one scare you into anything against your
wishes. Let no one tell you that your employer is unfair to you, if you know
different.
I thank you.
NEBRASKA BAG PROCESSING COMPANY 671
that she was responsible for the discussion on the morning of July 10; she denied
that she ever mentioned the "little blue book"; she denied that she had failed to
advise any new. employee of the established quota for the production of repaired
bags on the sewing machines; she denied that she had told Ellison that Silver would
not tolerate a union in his plant; in substance, she denied completely all state-
ments and comments attributed to her in connection with the activities of the
employees under her supervision concerning their union activities. (Affirmatively,
Eaton did say that two sewing machine operators were discharged for lack of
production.) 14
On the crucial issues involved herein, the Trial Examiner is impelled to disre-
gard, almost completely, the testimony of Forelady Eaton.
Her testimony affirmatively was to the effect that she had, several weeks before
the discharge of Schaumann, spoken to her in regard to her production and that
Schaumann had told her that she, Schaumann, had a nervous condition and might
have to quit. The observation of the Trial Examiner of the condition of Schau-
mann was quite to the contrary. Eaton testified that she had admonished Ellison
concerning her lack of production; she said that she had overheard Ellison tell
Annie Johnson to slow down in her work but that later on cross-examination
Eaton testified that she did not overhear Ellison but that Johnson told her what
Ellison had said in regard to "slowing down." Among other discrepancies in the
testimony of Eaton, she testified that she had searched the records of the Bag
Company and the Bag Processing Company and there was no record of employ-
ment for 1949 of either Schaumann or Ellison, nor did she remember that either
worked there in 1949. Eaton had been a longtime employee of the Bag Company
and later the Bag Processing Company. Records were produced which conclu-
sively established that Schaumann was employed by the Bag Company in 1949.
Eaton could not remember when her first attention was drawn to the organiza-
tional efforts of the employees except that she said once that it was in August and
again she said it was in July. With respect to the wearing of union buttons, on
cross-examination she said that she had told three girls they could not work while
wearing the union button. She also said it was not at all usual for girls at work
to wear any article of personal adornment-that she herself always took her ear-
rings off and put them in her jacket pocket. Her testimony in this respect, as on
other matters mentioned above, is directly opposite to the testimony of other
persons whose testimony the Trial Examiner considers credible.
In connection with the vulgar expression which is made a part of this case by
the discharge of Goatcher and Davenport, Eaton testified that profanity or the
use of vulgar language was absolutely prohibited in the plant . In this respect, as
the record in this case clearly reflects, there is a conflict of testimony; the Trial
Examiner is impelled to believe that the employees as well as the supervisors and
officers of the Company at times did use vulgar or profane expressions.
Summary with Respect to Case No. 17-CA-1227
The facts set forth above in summary show that Ellison , Schaumann , Barges,
Davenport , and Goatcher were discharged for reasons directly connected with their
activities in support of the union organizational effort. In point of time, the
Employer, whether it be the Bag Company or the Bag Processing Company or
both, chose appropriate times to discharge leaders in the union movement . Ellison
and Schaumann first were discharged , then Barges was discharged , and then, after
the results of the election were known , Davenport and Goatcher were fired the
morning after the election . Each discharge is proven to have been motivated by
pretext only-the reasons given for each one of the discharges are specious on the
whole context of fact.
With respect to Schaumann and Ellison , why could not other sewing machine
operators who did not attain the so-called quota be fired ? Why with respect to
Barges did not other employees with records of absenteeism , be fired ? Why with
respect to Goatcher and Davenport were not other employees on the day after the
election , fired ? These academic questions have an academic answer . Circum-
stances show that these five employees were fired purely and simply for the reason
that they were active union members . The employer exercised means to discour-
age other employees from being outspoken in favor of union organization. The
Trial Examiner in so finding, is cognizant that it is apparent on the record that:
Schaumann and Ellison sewed a normal number of bags for repair although not
meeting the so-called "quota"; Barges was admittedly away from work; and Daven-
14 The two employees were identified as Ollie and Kuhn. Their service records were
not produced at the hearing.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
port uttered the phrase which offended the sensibilities of the president and man-
aging director of the corporation and the partnership. However, pretext is appar-
ent in whole context; it is clear on the whole record herein that these five employees
were fired not for the reasons stated, but because of their union activities.
The pattern of company behavior during the period of attempted union organi-
zation leads the. Trial Examiner to find that:
1. Ellison, Schaumann, Barges, Davenport, and Goatcher were discharged upon
pretext and that the basis of each discharge, express and implicit upon the whole
record of the case, is that each was discharged because she was engaged in activi-
ties in support of the Union and in concerted activity and each of them was so
engaged for the purpose of collective bargaining and other mutual aid or protec-
tion, as was their right under Section 7 of the Act.
2. By speeches promoted by management made by Street and Larson, employees
were impliedly warned that there would be effort made on the part of management
to discourage membership in the Union or any concerted activity by any employee
in furtherance of mutual aid and self-organization.
3. The talk read by Silver on the eve of election, in whole context, deviates
from the expression of views permitted under Section 8(c) of the Act.
. The establishment, suddenly, of a formal system of keeping quota figures for
the production record for an employee working on a sewing machine, the quick,
unannounced establishment of a rule against absenteeism, and-the like announce-
ment of a management rule (if it can be called such) against the use of vulgar
language, all occurred or were put into effect during the comparatively short period
after the Respondents were informed of the interest of their employees in union
organization. The Trial Examiner finds, on the whole record. in this case, a planned
and deliberate course of action by Employers to discourage, interfere with, and
interrupt any concerted activity on the part of any of their employees to engage
in mutual aid or self-protection.
B. Findings with respect to Case No. 7-RC-1227
The Eligibility of Margaret Harryman
to Vote in the August 13 Election.
The vote of Margaret Harryman at the August 13 election was challenged after
she had voted in that election.
Objections to conduct said to have affected the result of the election were filed
on August 16, 1957. The objections, as stated, involved herein, are sustained on
the basis of the following facts, considered in connection with the findings made
in Case No. 17-CA-1227:
Margaret Harryman was employed on April.12; and on August 13 she reported
for work and was given about 2 hours of light duty, after' which she cast her
ballot. On August 14, she returned to work on the blower and continued to work
there. According to stipulation of counsel taken from employment records of the
Company during this period she worked as follows:,.Sick, Friday, February 28;
hospitalized March 4;. discharged. March .19; Worked, or was on payroll ; until
July 12, went to hospital on that date and was there until August 12; .August 13,
2 hours, recorded light .work on the third floor., .
Harryman was not at work between July 12. and about ,'noon. on August 13.
Whether or-not she worked at her assigned job on August 13 could be. reasonably
doubted since she, appeared in her street clothes and, 'according to her, worked in
the same apparel on the third floor of the establishment .until, it ,was time for her
to cast her vote in the.election.is•
The following competent and credible testimony'; appears ;in. the, record:
On July 17, Josephine Barges conversed with Forelady Eaton about Harryman's
condition and on July 19, Eaton. told Barges, that. Harryman had been laid off.
Verna' Goatcher saw Harryman- at, the polls on August 13, she ,did not observe
Harryman working at her, former , or'.any job; that previously on about July .17
Eaton told Goatcher. that she was, going to lay Harryman off if she did not stop
drinking ,and that on July 19, Eaton told •Goatcher„she. had, "pulled Harryman's
card." Mary, Davenport worked ' on the same,. job as, Harryman as a partner.
Davenport testified that Harryman• did not,, work immediately prior to or on elec-
tion day so far' as she knew and that Eaton previously told her (Davenport) that
if Harryman did not sober up she would have to let her go,.and later told Daven-
15 The work required from an employee around the blower ordinarily calls for the use
of old clothing or the wearing of jeans and blouses. Harryman, according to her, testi-
mony, did not change her apparel on the day of election.
NEBRASKA BAG PROCESSING COMPANY 673•
port that she had "pulled her card." Davenport testified that prior to July 12,
Harryman had appeared at work in an intoxicated condition and Eaton testified.
that Harryman had been absent at the times mentioned because of illness.
Eaton denied talking to Barges about Harryman either on July 17 or July 19..
Eaton said that: Harryman, during the last period she was ill in the hospital,.
called Eaton; the call came before Harryman went to the hospital, to advise Eaton
that she was going there, and that Eaton after her discharge saw Harryman in
Harryman's room but not at the hospital. Eaton said she had called at Harry
man's apartment on the Friday preceding Monday, August 12, and talked to her
there and at that time Harryman had told her that she was ready to come back
to work. Eaton testified that prior to August 13, she had made no advance
arrangement for Harryman to come in on that day; that when Harryman did
report she said she was ready to go to work and thereupon Eaton took Harryman
to the third floor of the factory to start back to work. She said Harryman worked.
for about an hour; that she had punched Harryman's timecard in, but that Eva.
Quigley later punched her out. Eaton also testified that Harryman's timecard was.
in the rack on Monday, August 12, and on August 13, and said she saw Harry-
man at Harryman's room in the hotel on the Friday before August 12. As noted„
Harryman says she left the hospital on August 12, the Monday before the Tuesday
of the election. The only thing made out of this muddle of testimony as between
Harryman and Eaton is that there was some prior arrangement between them for
Harryman to report to work on August 13. If, as Harryman says, she left the
hospital on August 12,. she could not have talked to Eaton in her room in her hotel
on Friday, August 9.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of Nebraska Bag Company, a corporation, and.
Nebraska Bag Processing Company, a partnership, described in section 1, above,
have a close, intimate , and substantial relation to _ trade, traffic, and commerce
among the several States of the United States and tend to lead to labor disputes.
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices, it
will be recommended that they cease and desist therefrom in any and all respects.
and take affirmative action designed to effectuate the policies of the Act.
Having found that the Respondents have discriminated with respect to the em-
ployment of. Bessie Schaumann, Mildred Ellison, Josephine Barges, Verna Goatcher,.
and Mary Davenport, the Trial Examiner will recommend that each of these em-
ployees be offered immediate and full reinstatement to her former or substantially
equivalent position occupied by her at the time of her discharge, and made whole
for the loss of pay she may have suffered as the result of the discrimination against:
her by payment to' her of a sum of money equal to that which she would have
earned as wages from the date of her discharge to the date of the offer of rein-
statement, less her net earnings. The loss of pay should be computed on a quar-
terly calendar basis in accordance with the formula adopted by the Board in.
F. W. Woolworth Company, 90 NLRB 289, earnings in. one particular quarter to,
have no effect upon back-pay liability for any other quarter. It will be further
recommended that the Respondents make available to the Board'or its duly author-
ized agent or agents, upon request, payroll and other records, necessary to facilitate
back-pay computations.
The Trial Examiner is of the opinion that the unfair labor practices found herein
disclose a planned' course of conduct displaying a deliberate intent on the part of'
the Respondents in opposition to the purposes of the Act and indicates the likeli-
hood of' the Respondents resorting to other acts of interference, restraint, and
coercion, in violation of the Act. . He•therefore will recommend that the Respondent
be ordered to cease and desist from. in any manner infringing upon the rights of'
'employees as guaranteed in Section 7 of the Act.
r, Upon!the basis of the foregoing findings of fact, and upon the entire record in,
the case, the Trial. Examiner makes the following:
CONCLUSIONS OF LAW
1. Textile Workers Union of America, AFL-CIO,. is a labor organization withini
the meaning of Section 2(5) of the Act.
505395-59--vol. 122-44
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By discriminating in regard to the hire or tenure of employment of Bessie
Schaumann , Mildred Ellison , Josephine Barges, Verna Goatcher , and Mary Daven-
port, the Respondents have engaged in and are engaging in an unfair labor practice
within the meaning of Section 8 (a)(3) of the Act.
3. By such discrimination, and by interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act, the
Respondents have engaged in and are engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, through surveillance and interrogation
of its employees , and warnings and threats to them , the Respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section 8(a) (1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Water Rasmussen d/b/a C. Rasmussen & SonsandjPaul• Swallick
Local 469, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Paul Swallick.
Cases Nos. 922-CA-75 and 22-CB-24. December 29, 1958
DECISION AND ORDER
On June 12, 1958, Trial Examiner Lee J. Best issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
spondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, Respondent Local
469 and the General Counsel filed exceptions to the Intermediate
Report with supporting briefs.'
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error has been com-
mitted. The rulings are hereby affirmed. The Board has considered
the Intermediate Report, the exceptions and briefs, and the entire
record in this case and adopts the Trial Examiner's findings and
conclusions only to the extent that they are consistent with the
findings and conclusions set forth below.
1. We find, in substantial agreeti exit' with the r{al F!$ er,
that Rasmussen had discriminated in regard to the: hire and tenure
of employment of Paul Swallick, thereby violating Section 8(a) (3)
and (1) of the Act by the following conduct :
(a) Prematurely laying off Swallick on July 26, 1957, pursuant to
the union-security provision of the contract because he had failed to
straighten out his union book or otherwise to obtain membership
.1 As Respondent Rasmussen filed no exceptions to the finding that it violated Section
8(a)(1) and ( 3) of the Act, we shall adopt the findings without comment except as
otherwise stated herein.
122 NLRB No. 85.