Johnson-Stephens & Shinkle Shoe Co.

In the Matter Of JOHNSON-STEPHENS & SHINKLE SHOE CO. and BOOT & SHOE WORKERS UNION, AFL Case No. ]4-C-779.-Decided December 30, 1943 DECISION AND ORDER On September 17, 1943, the Trial Examiner issued his Intermediate 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 out in the copy of the Intermediate Report attached hereto. Thereafter, the respondent filed exceptions to the Intermediate Report and a brief in support of the exceptions. Pur- suant to notice duly served upon all parties, a hearing for the purpose of oral argument was held before the Board in Washington, D. C., on November 9,1943, in which the respondent and the Union participated. The Board has considered the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings , conclusions, and recommendations of the Trial Examiner with the exceptions and qualifications hereinafter set forth. 1. The Trial Examiner found that in the course of an address to the employees of the Vandalia plant in June 1941, President Stephens "threatened to close the plant, if labor trouble developed there." We do not agree with this finding. The speech was admittedly made prior to the commencement of the organizational activities of the Union at the plant and hence could not have been made with refer- ence to any union activities. The speech was a conciliatory one, fol- lowing immediately after -the settlement of grievances which had caused a sit-down strike; it included an announcement of a 10-percent wage increase to all employees. It seems most unlikely that a threat to close the plant would have been included in a speech made under these circumstances. Moreover, a number of the Board's witnesses, including employees Pryor, Perry, Hunter, and Bauman, while testi- fying that a reference to labor trouble was made in the speech, did 54 N L. R. B, No. 27. 189 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not testify that any threats to close the plant were uttered. Board witness Lola Bruce qualified her original testimony that Stephens made the threat to close the plant, by stating that she "could be mis- taken." One of the Board's witnesses who did testify to hearing the threat, Pummill, president of the Organizing Committee, attributed a further statement to President Stephens which, in view of other evidence could hardly have been made by Stephens-a fact which tends to discredit Pummill 's version of the speech. According to Pummill, Stephens told the employees that "he moved out to this plant to get away from labor trouble and if they had labor trouble out there they would move the plant away from there ." The uncon- tradicted testimony of Stephens discloses that the respondent estab- lished the plant at Vandalia in 1924 in the course of a regular expansion of 'a growing and successful business, that it did not close any of its other plants and move its machinery to Vandalia, and that the respondent had had no union trouble when the Vandalia plant was established. On this state of the record we are not convinced that Stephens made a threat to close the plant in the course of his speech. 2. We do not concur in the Trial Examiner's conclusion that,Evans was laid off because of her union activity and that Cripe, who at the time of the lay-off was not a member of the Union , was laid off "to cover up the real reason for Evans' lay-off" and "to make it appear that Evans was not laid off for union activity." While the lay-off of two old employees, who had good records, for failure to report on a Saturday appears to be rather harsh punishment , the choice of the punishment is a prerogative of the employer and such harshness does not of itself establish a discriminatory motive . The evidence leads us to conclude that the lay-off was the result of Foreman Carlin's conclusion that Evans and Cripe had deliberately flouted his own and Floorlady Snow's authority by taking Saturday off without a good excuse and despite Snow's denial of their request for time off , rather than because of Evans' union activity . When Carlin discovered that Evans and Cripe were absent and asked Floorlady Snow the reason, Snow told him that she did not know why they were absent as she had told them to be there.' It appears that the particular operation was already undermanned and that Evans' and Cripe's absence would aggravate the situation and interfere with production in other opera- tions by creating a bottleneck. Carlin directed Snow to send Evans I Evans admitted that, in reply to her request to take Saturday off, Floorlady Snow told her that "she would like for me to come in to work, for they had a lot of work and she needed me." Snow testified that, after this conversation her understanding was that Evans was coming. Cripe testified that she simply "hollered" to Snow across the conveyer that "she might not be in tomorrow for work" and that Snow might not have heard her. Snow testified that Cripe did not ask her for permission, although Cripe might have done so and she might not have heard Cripe because of the noise. JOHNSON-STEPHENS & SHINKLE SHOE CO. 191 and Cripe to him when they came in. Carlin testified that when Evans came to see him on Monday, she told him that she had not appeared for work on Saturday because she went to St. Louis with her husband, and that she "had told Sis (Snow) that she didn't think she would ( come in), but she didn't give no reason why she wasn't going to be in." Evans testified that after Foreman Carlin asked "why she wasn't there Saturday," he charged that she "deliberately laid off from work and did not tell them about it." Carlin also testi- fied that he did not think Evans had a reasonable excuse and that he therefore did not consider the lay-off harsh. Foreman Carlin had met Cripe and her husband in the downtown section of Vandalia on Saturday evening and concluded that she too did not have a " reason- able excuse" for staying away from work. Both Evans and Cripe testified that in their experience with the respondent no employee was either laid off or discharged for failure to work on Saturday. Carlin testified, however, that he had laid off "quite a few employees" for failure to report to work, and cited the cases of •a "vamper" and a "sample girl." Evans further testified that her sister who was absent from work on the same Saturday because she was unable to get a ride down to the plant, was not penalized, and that another employee, James McDowell, who failed to report for work on Monday and thereby forced five other employees on his team to stop their work, was also neither laid off nor discharged. The record does not disclose the precise circumstances under which the absences of these two employees occurred, nor does it establish that there was not reasonable excuse for them. Evans' sister was supervised by another forelady and McDowell was employed in a different department, and it does not appear that Foreman Carlin was aware of their absences. In any event, both Evans' sister and McDowell were union members, so that any disparity, in the handling of Evans' case as compared with theirs cannot be attributed to discriminatory treatment as between non-union and union members' Moreover, Evans' union activities do not appear to be so conspicuous as to justify an inference that respondent had knowledge of such activ- ities. Evans joined the Union in the latter part of February 1943, attended a few meetings and talked to four girls during noon hour about signing up with the Union, one of whom later joined the Union. Admittedly, she never wore a union button, nor did she ever discuss 2 We do not agree with the Trial Examiner's conclusions with respect to the case of Goldie Marks , a non-union employee who did not appear for work on the same Saturday, but who was not laid off. Marks worked on an operation which followed that of Evans and Cripe, and her case is distinguishable from Evans in that the conversation between Snow and Marks might reasonably be considered as having terminated in tacit permission for Marks to stay off, or at least in a misunderstanding . Particularly in the light of the fact that Evans' sister and McDowell , both union employees, were absent, without penalty, we do not think that the Marks' case properly supports an inference that there was dis- parity of treatment as between non-union and union employees. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union with supervisory employees. Carlin denied that he knew of Evans' union membership and activities , which, in view of the fact that he supervised about 400 employees in his department , does not seem incredible . In inferring such knowledge, the Trial Examiner relied principally upon a . statement which he found Carlin made to Dwight Cripe in explaining Evans' lay off,-that Evans "talks too much." Carlin expressly denied this statement. Assuming that Car- lin did make such a statement , we do not think it necessarily follows that, as-the Trial Examiner found, "the subject matter of Evans' talk of which Carlin complained must have been the Union as there is no evidence of other things of which she talked." Even if it be as- sumed that the respondent knew of Evans ' membership and activities, there appears to be no reason why the respondent should have singled Evans out df a large union membership for discriminatory treatment when there were other employees who were much more prominent in the union movement. For the foregoing reasons , we find that Evans and Cripe were not discriminatorily laid off and that by laying them off respondent did not engage in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. The Trial Examiner found that "du ing an organizational drive of the Union, without showing the necessity therefor, it (the respond- ent) has enforced more rigid rules concerning the movements and talking of its 'employees than it had formerly done." Respondent concedes that it imposed restrictions upon the movements of em- ployees between departments and upon employees congregating and speech-making in the plant. It contends that such restrictions were necessary in order to prevent troubles and fights among the employees and to 'maintain discipline and to prevent loss of production during the union campaign . Particularly in view of evidence showing a substantial increase in visiting and congregating among the employees during the organization drive, as well as a background of labor dis- putes which included sit-down strikes and a breakdown of discipline prior to the organizational drive, we are not prepared to find that the promulgation of such restrictions was unreasonable or discriminato- rily motivated .3 Indeed, a restriction upon visiting between the de- fense workers and shoe workers on the fourth floor during lunch hours was not unreasonable since the defense workers and shoe workers worked in different parts of the floor and had different lunch hours. Visiting between them would interfere with their respective opera- tions. In the application of the restriction to employees Merriman and Bruce , contrary to the finding of the Trial Examiner, we believe that the evidence permits an inference that these employees were vis- s Cf. Matter of Peyton Packing Company, Inc, 49 N. L. R. B. 776. JOHNSON-STEPHENS & SHINKLE SHOE CO. 193 sting in the part of the floor occupied by the defense workers when they were ordered back to their machines. We find, however, that in certain other instances in its application of the restrictions upon employees' conduct, the respondent went beyond the scope of permissible and reasonable regulation of such conduct and interposed unreasonable im- pediments to self-organization of its employees. Thus, Foreman Hourigan told Dubiel that solicitation of union membership was not permissible unless it was done outside the plant, and further told Rine that he must be 70 feet from the plant before he could sign up anyone. Foreman Carlin similarly ordered Perry not to talk about the Union in the plant. These restrictions against personal solicita- tion on company property were not limited to working hours and therefore were unreasonable in the absence of evidence that special circumstances required such a rule to maintain production or discipline.' 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, Johnson-Stephens & Shinkle Shoe Co., Vandalia, Illinois, and its officers, agents, successors, and assigns shall : 1. Cease and desist from in any manner interfering with, restrain- ing, or coercing its employees in the exercise of 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 concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take -the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post immediately in conspicuous places in its place of business in Vandalia, Illinois, and maintain for a period of at least sixty (60) consecutive days from the date of posting notices to its employees stating that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraph 1 of this Order; (b) Notify the Regional Director for the Fourteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. - AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the respondent discriminated against Howard Shackelford, Nor= man Ellsworth, Frances Evans, and Thelma Cripe, within the mean- ing of Section 8 (3) of the Act, be, and it hereby is, dismissed. * Matter of Peyton Packing Company, supra. 567000-44-vol. 54-14 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MR. GERARD D. REILLY took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr. Ryburn L. Hackler, for the Board. Mr. Ethan A. H. Shepley, of St. Louis, Mo., for the respondent. Mr. Frank Kappel, of St. Louis, Mo. and Mr. J. W. McGonigal, of Mount Vernon, Ill., for the Union. STATEMENT OF THE CASE Upon a second amended charge filed on August 11, 1943, by Boot & Shoe Workers Union, AFL, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fourteenth Region (St. Louis, Missouri), issued its complaint dated August 11, 1943 , against Johnson-Stephens & Shinkle Shoe Co., herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and ( 3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notices of hearing thereon, were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged, in substance, that the respondent: (1) since on or about March 1, 1943, interfered with, re- strained, and coerced its employees at its Vandalia, Illinois, plant by (a) urging, warning, and threatening its employees against their joining, remaining mem- bers of, or assisting the Union or any other labor organization, ( b) making derogatory statements concerning the Union and its leadership and questioning employees concerning their union activities and affiliations ; and (2 ) discharged the following named employees at its Vandalia plant on or about the dates set opposite their names and thereafter refused to reinstate them because they joined and assisted the Union and engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection : Howard Shackelford, March 25, 1943 Norman Ellsworth, March 26, 1943 Frances Evans, April 3, 1943. At the hearing, the Board moved to amend the complaint to include the name of Velma Cripe as a dischargee on or about April 3, 1943. This motion was granted without objection. In its answer dated August 17, 1943, the respondent admitted the allegations of the complaint as to the nature of its business, but denied that it had engaged in any unfair labor practice. Pursuant to notice, a hearing was held from August 23 through August 25, 1943, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and the Union by organizers and participated in the hearing. All parties were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues. At the close of the hearing, the respondent made a motion to dismiss the complaint. This motion was denied. The Board moved to conform the pleadings to the proof. This motion was granted without objection The parties, upon request of the undersigned, argued JOHNSON-STEPHENS & SHINKLE SHOE CO. 195 orally before him . They were also given an opportunity to file briefs with him, but no briefs were filed. Upon the record thus made and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a Missouri corporation having its principal office and place of business at St. Louis, Missouri. It is engaged at its Vandalia plant in the manufacture, sale, and distribution of women's novelty shoes for civilian use and of leggins and holders for pick mattocks for the armed services of the United States. During the past year the respondent purchased materials worth more than $500,000 for use in its Vandalia plant. Approximately 100 percent of these materials came from States other than the State of Illinois. During the same period the respondent manufactured products at its Vandalia plant ^ worth more than $500,000. Approximately 100 percent of these products was shipped to places outside of the State of Illinois. II. THE ORGANIZATION INVOLVED Boot & Shoe Workers Union is a labor organization affiliated with the American Federation of Labor and admits to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion; organizational efforts In June 1941, there was a work stoppage in the Vandalia plant of the respond- ent. As a result, the respondent's president, Howard V. Stephens, visited the plant. While he was there he addressed his employees. Among other things, he testified that he told them that for about 16 years the respondent had had "a happy family" in Vandalia; that he thought that they were making a'fine product, and that to continue "that quality of product and that happy family it was necessary for the employees as well as the management to be satisfied and to work in complete harmony." He also threatened to close the plant, if labor trouble developed there.' During the latter part of August 1941, the Union began to organize the Vandalla plant; but this effort ended within 2 months, as the Union could only get a few employees to sign application cards. The Union next commenced organizing the plant in February 1943 and held its first meeting in the middle of that month. It was still carrying on its campaign at the time of the hearing. In the latter part of February 1943, Bessie Merriman, an employee in the respondent's fitting room, during her lunch hour, was in a part of the room in which she did not work. Walter Kline Carlin, her foreman,' told her to go back i This finding is based upon the testimony of Lola Bruce, Frank Dublel, Joseph Pummill, and Ivan Rine, employees of the respondent. All of them appeared to be reliable wit- nesses, were present at the June 1941 meeting, and, under an order excluding witnesses, did not hear testimony of others before testifying. Rine also testified that Foreman Albert Hourigan, who was conceded by the respondent to represent management, in March 1943, spoke to Rine of Stephens' remark about closing the plant if there was labor ti ouble and said, "He is a man of his word, and be will do that very thing." Though Stephens and Hourigan denied that they made the statements attributed to them, the undersigned credits the Board's witnesses. 2 The respondent conceded that all foremen, including Carlin,- could hire and discharge, were supervisory employees, and represented management. 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to her machine. She was wearing a union button at the time. In the 14 years that she had worked at the Vandalia plant she had never been ordered to stay by her machine, but had moved freely from department to department at noon. At about the same time, Lola Bruce, another employee in the fitting room, was given a similar order by Carlin. She had, during her noon hour, for 10 or 15 minutes, been visiting a friend who had been sick. Bruce's previous experience of about 14 years had also been that an employee could visit another employee during the lunch hour. The excuse given by Carlin for these orders was that shoe workers were interrupting those engaged in defense work, whose lunch hour was different from that of other employees. However, no evidence was offered that Merriman and Bruce were visiting defense workers when they were ordered back to their machines. At about this time, John Frank Senik, Superintendent of the Vandaha plant, instructed the foremen not to permit employees to go from department to department, even when the employees in different departments were not working, and he also told them not to permit groups to gather nor to allow speeches to be made in the plant. He testified that he issued these orders because he thought that, in the absence of such orders, there might be "trouble" during the organiz- ing campaign. He conceded that, up to that time, there had never been any physical violence in the plant. By way of enforcement of the rules against making speeches, Senik told Merri- man that he had heard that she was to make a talk in the factory and that she should not do so. Also, at approximately this same time, the undenied evidence is that Carlin told Freeda Perry, an employee in the fitting room, not to talk- about the Union in the plant.' During the first part of March, 1943, Albert Hourigan, foreman in the cutting department,' told Orville Pryor, an employee in that department, that the Union "wasn't worth a damn" and that the Union was "just a bunch of dirty crooks". About this same time, he told Ivan Rine that unions were "just ready to take off a man and never give anything" and that they were "a bunch of rats." Also, about the first of March, Hourigan told Kenneth Smith, an employee in the cutting room, that the Union would not do "any good," since the Union scale in a town the size of Vandalia would be 70 cents per hour and that Smith would not be satisfied to work for such a wage, as he was already making more than that. He likewise told Denver Hunter, another employee in the cutting room, that, if the Union "came in," it would help no one to make more money. He also advised Pryor and Rine that, if the plant was unionized , wages would be down to 70 cents per hour. In March, Hourigan told Hunter that, if the Union "got in," the employees could not go downstairs when they desired to get candy or similar things and that there would be no candy girl going around through the plant. About the first of March, Hourigan asked Rine if he liad joined the Union and Rine said he had not. Hourigan told Rine that he did not think the Union would help him, and said that he did not understand why Rine should want to join it. On another occasion, Hourigan remarked to Rine that he had on a "pretty nice button" (referring to a Union button) and added, "Well, I am afraid it won't do you any good." During March, he also asked Hunter what he meant "by signing up with the Union" and said that doing that would not, get Hunter "any 8 This finding is based on the testimony of Perry, who appeared to be a credible witness. Though Carlin denied that he made this statement, from his observation of the witnesses and on all of the record the undersigned credits Perry. 4 See footnote 2, supra, concerning the authority of foremen 'JOHNSON-STEPHENS & SHINKLE SHOE CO. 197 place".` During March, Charles Low, foreman of the lasting room, asked Lee Rush, who worked under him, in what way Rush thought the Union "would help " B Rush was wearing a Union button when Low spoke to him. The undenied testimony of Beryl Milton was that, about 2 months after her employment by the respondent in December 1942, William Hull, assistant foreman to Hourigan,7 inquired of her if site had been asked to join the Union. Upon re- ceiving a reply in the negative, he told her that the Union was "all right," but that, if he were in her place, he did not believe that he would join the Union. He said , further, that, for one who had worked for the respondent no longer than she had, he did not think that the Union would do her any good. About the middle of March, 1943, Don Dewald, who was assistant foreman in the respondent's defense department, went up to Eldon Bruce, took hold of his Union button, and said, "Look here at Junior (referring to Bruce), he is wearing one of these, too." Approximately a week later, while Bruce and Norman Ellsworth, another employee in the defense department, were talking to one of the women workers about signing a Union application card, Dewald came to them and inquired of Ellsworth, "Norman, do you belong to that too?" Ellsworth replied that he did. Thereupon, Dewald told them that defense workers could not belong to the same Union as the other employees of the respondent. About the first of March, Hourigan told Frank Dubiel, who worked under him, that he had heard that Dubiel, Pryor, and Bill Cary were "running around and trying to push the union up," s and asked him if this was correct. Dubiel replied that it was not so, and asked who had given Hourigan his information. Hourigan replied that lie would be a "doggone fool" to tell Dubiel. At approxi- mately the same time, Rine, during a lull in his work, asked an employee to sign one of the Union's authorization cards. When he returned to the board at which he worked, Hourigan told him that he had no right to ask anyone to join the Union or to get anyone to sign an authorization card unless this was done out- side of the factory. When Rine told Hourigan that he thought this could be done if it was not a hindrance to work, Hourigan replied, "You must be seventy feet from the factory before you sign up anyone." Hourigan testified that he did not tell employees this, but that he told them that he had heard that this was-the law. The undersigned credits Rine. In March, 1943, Genevieve Snyder, a cutter, asked Hourigan to assist her in the cutting of some material. During their conversation, which was overheard by Dubiel, reference was made to the improper way in which Carl Freema1n, an- other cutter who had joined the Union and who wore his union button to work, had cut material for the same type of shoe. Hourigan said to Snyder, "Some damned day some of those fellows joining the Union are going to work them- selves out of a job."' At about the same time, Lillie P. Snow, a floorlady in the 6 These findings are based upon the testimony of Hunter, Pryor, Rine, and Smith, all of whom appeared to be credible witnesses and none of whom were in the hearing room before they testified. The direct testimony of Hourigan, who denied having made some of these statements and did not recall having made others, was unrealistic in that much of it con- sisted of an almost unbroken succession of denials of statements and conduct attributed to him The undersigned credits the Board's witnesses 6 Low denied that-he ever talked about the Union to Rush Rush appeared to be a cred- ible witness, and, from his observation of the witnesses and on all of the record, the under- signed credits Rush, on whose testimony this finding is based. 7 The respondent conceded that assistant foremen could recommend the hiring and dis- charging of employees, could criticize their work, and were supervisory employees repre- senting management 8 This finding is based on the testimony of Dubiel. Though Hourigan denied that he made this statement, the undersigned credits Dubiel. 9 This finding is based on the testimony of Dubiel. Though Hourigan denied that he made this statement, the undersigned credits Dubiel. 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fitting room,l0 told Mary Baumann, an employee in the fitting room, that those who were wearing their badges would be laid off." Though the respondent finally posted a notice in its Vandalia plant stating that its attitude in regard to unions was one of complete neutrality , this was not done until April 23, 1943, after the facts stated above under III A. had all occurred. - The undersigned has found that the respondent has threatened to shut down its Vandalia plant if it had labor trouble there ; that, during an organizational drive of the Union, without showing the necessity therefor, it has enforced more rigid rules concerning the movements and talking of its employees than it had formerly done; that it has told employees that they could not carry on Union activities in the plant, without limiting that bar to their working hours ; that it has spoken disparagingly of the Union to its employees ; that it told employees that the Union would do them no good -and that wages would be lower and privileges would be lost if the plant was unionized ; that it has warned an em- ployee against joining the Union; that it has inquired of employees concerning their Union membership and organizational activities , and has prophesied that 'Union members would be laid off or discharged . It, Is further found that by these acts the respondent has interfered with , restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act and that its posting of a belated neutrality notice had no effect on this finding. . B. Discrimination with respect to hire and ' tenure of employment 1. The alleged discriminatory discharge of Shackelford Shackelford was employed by the respondent the first part of February 1943, and left its employ about March 25, 1943. The day after he began working for the respondent,' he was solicited by Roman Newarth, an employee of the respondent, to sign a Union application card and he did so. His only Union activity thereafter consisted of wearing a union button and of expressing his opinions to fellow employees concerning Union matters. The respondent knew that Shackelford had signed the card the day after beginning work and that he, among many other employees , wore union buttons, but there is no evidence that it knew of his talks with other employees. The respondent was informed of the signing of the card by Edward Charles Williams, one of its employees and a witness for the Board. When Williams told Low that Shackelford was a brick- layer and that it would be hard for him later to get a job in thatccapacty if, while he belonged to the bricklayer's union, he refused to sign the Union's card, Low said, "If I had been in his shoes I would have signed it." During the few weeks which Shackelford was employed by the respondent, he was tried on three jobs, the last one of which was hammering shoe shanks. The day before Shackelford left the respondent's employ, he and Newarth were discharged because Newarth, at Shackelford's request, clocked out for him some time after Shackelford had left the plant for lunch. In doing this, it was made to appear on Shackelford's time card that he had worked longer than he had. Though he was doing piece work, this would result in greater pay for him, if it gave him more overtime than he would otherwise have. As a result of these 30 The respondent conceded that Snow had authority to recommend the hiring and dis- charging -of employees and that she was a supervisor and represented management. 13 This finding is based on the testimony of Baumann . Though Snow denied that she made this statement , Baumann was a reluctant Board's witness and the undersigned finds that testimony given by her which was adverse to the respondent was given solely for honesty's sake and should be accepted as true. The undersigned credits Baumann. JOHNSON-STEPHENS & SHINGLE SHOE CO. 199 discharges, there was a work stoppage in the lasting room in which these men had worked, and they were ordered back to work that afternoon. Foreman Low had previously complained to Shackelford of the manner in which he hammered shanks, and, the morning after Shackelford's discharge and reinstatement, Low again reprimanded him on the way in which he performed this operation and told him to hammer as instructed' However, Shackelford refused to hammer as told, because, he claimed, it cut down his production a third. Senik and Low noticed that Shackelford still was not doing as he had been ordered. Shackelford testified that about 3 o'clock that afternoon Low again told Shackelford how to hold shoes when hammering them. In reply, he told Low that he wanted a dollar's worth of work for 30 cents. Low then told, him that be should either hammer the shoes as he was instructed to do or that he should not touch them. Thereupon, Shackelford left his work. He testified, further, that he went to see Joe Pummill, the Union representative at the plant; that he and Pummill saw Low that afternoon ; and that, when Pummill asked Low if Shackelford was "fired," Low said that he was not fired but that Low had nothing for him to do. Thereupon, according to Shackelford, Pummill told him, that, if he was not discharged, he should go back to work. Low then told him that, if he could not hammer shoes as he was told, he should not touch them and added that it would. have to be Shackelford or Newarth. Pummill cor- roborated Shackelford's testimony as far as it went, except as to the time of this conversation, which he said took place the next morning. He testified, further, that, when Low said that there had to be a choice made between Shackelford and Newarth, he also said that Newarth had been with the respondent longer than Shackelford. The undersigned was very favorably impressed with Pummill and credits his version of Low's statement and his testimony as to the time when this conference occurred. Low testified that, after telling Shackelford how to hammer, Shackelford jerked off his apron, threw it down, said, "If I cannot hammer my method I will quit," and walked away. He also testified that, later that afternoon, Shackelford returned to the lasting room and asked Low if he didn't like-, him because he was wearing a Union button. When Low told Shackelford that that made no difference to him, Shackelford said he could prove the contrary by bringing an employee to see Low. He went in search of the employee but he soon returned, told Low that he could not find him, and left for the day. The next morning, according to Low, Shackelford again tried to get this employee to talk with Low. This time Shackelford found the employee, Edward Charles Williams, but the latter refused to see Low. The testimony of Low was that Shackelford and Pummill then came to see him. As already stated, the credited testimony of Pummill was in accord with that of Low as to the time when this conference occurred. Low also testified that Shackelford had made no attempt to go to work that morning and that, by the time Pummill and Shackelford visited him, Low had replaced Shackelford with Newarth. Though Shackelford testified that he had not been replaced by Newarth prior to the holding of the meeting between Low, Pummill, and himself, his testimony; as previously stated, was that this conference occurred on the afternoon of the day on which he left the respondent's employ and not on the following morning, as has been found by the undersigned to be the fact. Low did not claim that he had made the 12Though, during his testimony, Shackelford stated that Low had never complained of his hammering except on the day that Shackelford left the respondent's employ, at another point in his testimony, in answer to very clear questions , lie stated that Low had spoken to him "not over five times about the way in which he should hammer, and that he per- sisted in hammering his own way right up to the end." Shackelford was only spoken to twice concerning his hammering on the day he left the respondent 's employ. `ZOO DECISIONS OF NATIONAL LABOR RELATIONS BOARD replacement on the afternoon that Shackelford stopped work . Low's statement is intelligible only if Newarth had taken Shackelford 's place as testified to by Low, and the undersigned finds that that had occurred. The undersigned finds, further, that Shackelford, rather than to follow the instructions of his foreman , quit his job. According to his own testimony, Shackelford was told to stop work only if he would not obey orders. He ad- mitted further that he did stop work and there is no evidence that he offered thereafter to return to work. But, even if the respondent's contention that Shackelford quit were unreasonable, the facts clearly show that, if Shackelford was discharged, his dismissal was reasonably, based on his refusal to follow instructions. The evidence shows that Shackelford insisted on hammering shoes the way he wished to. This was ample ground for his discharge. More- over, it is not shown that Shackelford's Union activity played any part in the termination of his employment by the respondent. The statement of Low to Pummill and Shackelford that it would have to be Newarth or Shackelford has no tendency to prove that Shackelford was dis- charged for Union activity. Low was not saying that he had to discharge one of two Union members who had, 2 days before, been the objects of concerted activity in the form of a work stoppage. Shackelford had not reported for work after he had stopped working and Low had replaced him with Newarth. Low was merely saying that there must be a choice between these men for Shackelford's old job, and, as Pummill testified , Low thought that, as between the two men, both of whom belonged to the Union, he should choose Newarth, since Newarth had been with the respondent longer than Shackelford. 2. The alleged discriminatory discharge of Ellsworth For some time prior to his discharge, Norman Ellsworth had been employed on war work in the respondent's Vandalia plant. It was known to, the respond- ent that he belonged to, and was soliciting for, the Union The undenied testi- mony of Eldon Bruce, an employee in the respondent 's defense department, was that one day Bruce and Ellsworth were trying to get another employee to sign a Union application card . Foreman Dewald walked over to them and inquired, "Norman, do you belong to that, too?" To this, Ellsworth replied that, he •did. Both Bruce and Ellsworth wore Union buttons in the plant. About March 26, 1943, Ellsworth was working at a machine with two other operators . Eldon testified that they had no more back work than usual and "were cutting up and kidding with each other" when Dewald came by. The suggestion in Eldon's testimony is that Dewald joined in this "cutting up and kidding," but this is not clear. Eldon's complete testimony on the subsequent events is as follows : Dewald walked past the table where Ellsworth was working and said to him, "You better hurry up there , you are getting behind." Ellsworth replied, "I am putting out all I can put out right now." Dewald walked to the further end of Ellsworth's table, came back, and said to Ellsworth, "You are fired for that." Again he walked the length of the table, returned and said to Ellsworth, "I mean it. Get your slip and get out of here." The only other evidence concerning this episode is the undenied testimony of Louise Smith, - another employee in the respondent's defense department. She heard none of the original conversation between Ellsworth and Dewald , but, after -it was concluded,- Ellsworth said to her , "I guess I told him off." Dewald had started to walk away from Ellsworth when the latter spoke to Smith. Smith testified that she thought that Dewald could have heard what Ellsworth said to her. After Ells- worth spoke to Smith, Dewald came back and discharged him. Neither Dewald nor Ellsworth testified. Prior to the hearing the former had left the employ of the respondent and the latter could not be found at the time thereof. JOHNSON-STEPHENS & SHINKLE SHOE CO. 201 The undersigned finds that Ellsworth was not discriminatorily discharged, but that he was dismissed for what he said to Ellsworth, all of which may not have been testified to, and for his boast to Smith. It was not shown that Ellsworth's Union activity was the cause of his discharge. On the other hand, although De- wald's action may have been hasty and ill-advised, there was some foundation for it which was in no way connected with Ellsworth's Union activity. When the latter informed Smith that he had "told off" his foreman, Dewald might well have believed that this would injure plant morale and lessen his authority over those whom he supervised. In such a situation, a foreman might reasonably believe that it was necessary to discharge the employee who, made such a statement to overcome, as far as possible, the unfavorable effect thereof upon his prestige and to help guard against the recurrence of a similar situation. 3. The lay-offs of Evans and Cripe Prior to their lay-offs, Frances Evans had worked for the respondent for over 6 years and Thelma Cripe had worked for it for about 18 years. Also, prior thereto, Evans signed a Union authorization card, attended Union meetings, and, during the noon hour, while they were at their machines, solicited four employees to sign Union cards. In one instance, she was successful. Gripe did.not,sign a Union card-nor engage in.any Union activity before she -was laid off. On Friday afternoon, April 2, 1943, Evans told Snow, her floorlady'13 that her husband was going to St. Louis on Saturday, April 3, and that, therefore, she had no way of getting to work, and she asked permission to take Saturday off. Snow told her that there was a lot of work to do and that Evans was needed the next day. On the same afternoon, according to Gripe's testimony, her sister having gotten word to leave to join the WAAC's, Gripe, without giving any reason therefor, told Snow that she might not be in the next (lay and Snow said nothing. On the other hand, Snow, on direct examination, testified that Gripe said nothing after she was told to report for work Saturday, but she admitted on cross-examination that Gripe might have asked to be off Saturday, as there was considerable noise in Snow's department at the time in question. Apparently, Snow had not heard Gripe say anything about being off, since Dwight Gripe, her husband, who was also an employee of the respondent, testified that, when, on Monday, he told Snow that his wife would not be in to work, as her sister had gotten word to join the WAAC's, Snow replied that his wife should have let her know earlier of her desire to lay off, as she knew that Snow would have "gladly let her off." 14 NeitheryEvans nor Gripe came to work on Saturday Carlin, noticed that they were not at work and told Snow to send them to him on Monday. When Evans returned to work Monday, Snow sent her to see Carlin. Without inquiring into her version of her absence on Saturday, Carlin told Evans that she was laid off. This was the first tune that Evans had not come to work on Saturday when requested to do so Snow told Gripe that his wife was laid off. On April 2, Goldie Maiks,-a non-union employee, who worked on an operation - which followed that of Evans and Gripe, had also asked permission to take Saturday off. She did not work, but she was not laid off. Snow explained that she had given her permission not to work. Snow's testimony as to this incident was, in part, as follows. "She [Marks] just said to me she said, `Sis, 'I won't be to work tomorrow, I- am going to St. Louis.' I said, "Oh, no you aren't.' I thought she was kidding. She said, 'I am going to St. Louis with my 11 It will be recalled that it was Snow who told employee Baumann that those who were wearing buttons would be laid off. 14 Dwight Cripe appeared to be a particularly credible witness. Furthermore, he had lost one hand and he would scarcely wish to run the risk of losing his job by displeasing the respondent by telling a false story. The undersigned credits him. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD husband tomorrow night.' So I supposed that she was just kidding, you know, and when she didn't show up, why, I found out she was telling me the truth. But she did ask, I guess to go, so I couldn't lay her off when she asked like that." At another point in her testimony, Snow said that, when Marks told her that she was going to St. Louis, Snow informed her that they had a great deal of work which had to be gotten out. The undersigned finds that Snow did not give Marks permission to lay off Saturday. A few days later, Cripe asked Carlin. "Why did you lay my wife off? Do you have anything against her?" He replied, "No. I haven't a thing against her, she is a good worker." When Cripe asked Carlin whether he was going to take his wife back to work, Carlin said, "Between you and me, I did not intend to fire her. I am going to call her back solve day . . . I could not lay one of the girls off without laying them both off, and one of the girls talks too much." He explained that that one was Evans." The facts show that the true reason for the discharge of Evans was not the fact that she did not gb to work on Saturday but that she talked too much. This was shown primarily by Carlin's statement to Cripe when he asked Carlin if he was going to take his wife back to work. This conclusion is further supported by the fact that Marks, a lion-union employee, was not laid off, though she did not go to work Saturday, April 3, after she was told that she was not to lay off that day. It is also significant that Evans had been with the respondent many years and had never before failed to work on Saturday when asked to do so. The subject matter of Evans' talk of which Carlin complained must have been the Union, as there is no evidence of other things of which she talked. The under- signed finds that Evans was discriminatorily laid off. Though Cripe was not laid off because of her Union activity, she was laid off to cover up the real reason for Evans lay-off. If she were not laid off for failure to appear for work on Saturday and Evans, who worked at the same job as she did, was laid off for not coming to work, the difference in treatment between a Union and a non-union employee would be noticeable. On the other hand, it was not so essential to lay off Marks to cover up the real reason for Evans' lay-off as it was to lay off Cripe, since Marks was working on a different job than they were. The undersigned finds that Cripe's lay-off was linked with that of Evans to make it ap- pear that Evans was not laid off for Union activity and he, therefore, finds that Gripe's lay-off was cliscriminatory.18 By thus discriminating in regard to the hire and tenure of employment of Evans and Cripe, the respondent discouraged membership in the Union and interfered with, restrained, and coerced its em- ployees in the exercise, of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent ,set forth in Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. i V. THE REMEDY Since it has been found that the respondent has engaged in unfair labor prac- tices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I" Though Carlin denied that he told Cripe that Evans talked too much and that he could not lay off one of these employees without laying off the other , the undersigned credits Cripe. 16 Matter of American Rolling Hill Company, Middletown, Ohio and Steel Workers Or- JOHNSON-STEPHENS & SHINKLE SHOE CO. 203 , It has been found that the respondent has engaged in a course of conduct calculated to restrain and coerce its employees in the exercise of the rights guaranteed them in Section 7 of the Act. It will therefore be recommended that the respondent cease and desist from such actions. It has been found that the respondent discriminatorily laid off Frances Evans and Thelma Cripe. Each of these employees was later reemployed by the re- spondent in a different department than that in which she was employed at the time she was laid off, each is satisfied with her new work and does not wish to be reinstated to her former position. It will therefore be recommended only that the respondent make Evans and Cripe whole for any loss of pay that they may have suffered by reason of their lay-offs by payment to each of them of a sum equal to the amount which she would normally have earned as wages from the day of her lay-off to the date of her reinstatement less her net earnings, if any, during such period" Having found that the respondent did not engage in unfair labor practices by discharging Howard Shackelford and Norman Ellsworth, it will be recom- mended that the complaint be dismissed as to them. Upon the basis of the foregoing facts, and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. Boot & Shoe Workers Union, affiliated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exer- cise 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 (1) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Frances Evans and Thelma Cripe, thereby discouraging membership in Boot & Shoe Workers Union, AFL, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5 In terminating the employment of Howard Shackelford and Norman Ells- worth the respondent has engaged in no unfair labor practice within the mean- ing of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondent Johnson-Stephens & Shinkle Shoe Co. and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in Boot & Shoe Workers Union, AFL, or in any other labor organization' of its employees, by in any manner discriminating in regard to their hire and tenure of employment ; ganizing Committee Local No. 1865, affiliated with the Committee for Industrial Organiza- tion, Ashland, Kentucky, 43 N. L R. B. 1020, 1154-1155 14 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in -connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for the respondent's discrimination against him and the consequent necessity of his seeking employment else- where. See Matter of, Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L R. B. 440. Monies received for work performed upon Federal, State, county, municipal, or other work- relief projects shall be considered as earnings. See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) In any other manner interfering with, restraining, or coercing its em- ployees of the exercise of 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 concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Make Frances Evans and Thelma Cripe whole for any loss of pay they may have suffered by reason of the respondent's discrimination against them by payment to each of them of a sum equal to that which she normally would have earned as wages from the date of her lay-off to the date of her reinstatement, less her net earnings 18 during said period ; (b) Post immediately in conspicuous places in its place of business in Vandalia, Illinois, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employes stating: (1) that the respondent will not engage in the conduct from which it is recommended that it cease and desist in paragraph 1 (a) and (b) of these recommendations; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) of these recommendations, and that its, employees are free to remain or,become members of the Boot & Shoe Workers Union, AFL, or any other labor organiza- tion, and that the respondent will not discriminate against any employee because of membership or activity in that, or any other, labor organization ; (c) Notify the Regional Director for the Fourteenth Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps the respondent has taken to comply herewith. It is also recommended that, unless on or before ten (10) days from the date of the receipt of this Intermediate Report, the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring it to take the action aforesaid. It is also recommended that the complaint be dismissed insofar as it alleges that the respondent has engaged in unfair labor practices by discharging Howard Shackelford and Norman Ellsworth. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 2-as amended, effective October 28, 1942-any,party may within fifteen.(15) days from date of the entry of,the, order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington, D. C, an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceed- ing (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. As further pro- vided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days after the date of the order transferring the case to the Board. CART. C. WHEATON Trial Examiner Dated September 17, 1943 18 See footnote 17, supra.