Westex Boot & Shoe Co.

In the Matter Of WESTEx BOOT & SHOE COMPANY and AMERICAN FEDERATION OF LABOR Case No. 16-CA-38.-Decided March, 30, 1949 DECISION AND ORDER On December 20, 1948, Trial Examiner Josef L. Hektoen 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 recommended that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions and a supporting brief to the Intermediate Report. Pursuant to the provision of Section 3 (b) of the Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this proceeding to a three-man panel consisting of the undersigned Board Members.* The Board has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief filed by the Respondent, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations z of the Trial Examiner, with the additions and modifica- tions set forth in the Order below : ORDER Upon the entire record in this case, and pursuant to Section 10 (c) •of the National Labor Relations Act, as amended, the National Labor *Chairman Herzog and Members Houston and Gray. 1 We find that the Respondent , when it discharged Hazel Booth , Leonard L. Booth, Betty it. Finch, and Cecil Holton on December 4, 1947, had knowledge of the fact that these employees had attended the meeting at the home of Hazel Booth on December 3, 1947. 1 We also find, and the record clearly indicates , a manifest hostility by the Respondent to the efforts of its employees to organize , and an intent on the part of the Respondent to interfere generally with the rights of its employees, as guaranteed by the Act. Therefore, in accordance with the recommendation of the Trial Examiner, we shall order, inter alga, that the Respondent cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed by section 7 of the Act. 82 N. L. R. B., No. 61. 497 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board hereby orders that the Respondent, Westex Boot & Shoe Company, Wichita Falls, Texas, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in American Federation of Labor, or in any other organization of its employees, by discharging refusing to reinstate, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employ- ment; (b) Interrogating its employees concerning, or threatening them with economic reprisal because of, their union affiliations, activities, or sympathies, or in any other manner interfering with, restraining, or coercing its employees in the exercise of the right of self-organiza- tion, to form labor organizations, to join or assist American Federa- tion of Labor or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining, or other mutual aid or protection, and to refrain from any and all such activi- ties except to the extent that such right may be effected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Betty R. Finch, Hazel Booth, Leonard L. Booth, Cecil Holton, J. E. Hewitt, Horace Gillespie, and Olen E. Stonecipher, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; (b) Make whole the afore-mentioned employees for any loss of pay they may have suffered by reason of the Respondent's discrimination against them, by payment to each of them a sum of money equal to the amount each normally would have earned as wages from the date of discrimination to the date of the Respondent's offer of reinstatement, less the net earnings of each during said period; (c) Post at its Wichita Falls, Texas, plant, copies of the notice attacaled hereto as "Appendix A." 3 Copies of such notice, to be fur- nished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, In the event this Order is enforced by a Decree of a United States Court of Appeals, there shall be inserted before the words, "A DECISION AND ORDER" the words, "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." WESTEX BOOT & SHOE COMPANY 499 including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Sixteenth Region in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX A 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 interrogate our employees concerning, or threaten them with economic reprisal because of, their union affiliations, activities, or sympathies; or in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self -organization, to join or assist AMERICAN FEDERATION OF LABOR or any other labor organization, 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, or to refrain from any and all such activities except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the National Labor Relations Act. WE WILL OFFER to Betty R. Finch, Hazel Booth, Leonard L. Booth, Cecil Holton, J. E. Hewitt, Horace Gillespie, and Olen E. Stonecipher, immediate and full reinstatement to their former or substantially equivalent positions, and make them whole for any loss of pay suffered as a result of the discrimination against them. All our employees are free to become or remain members of the above-named Union or any other labor organization except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the amended Act. WE WILL Nor discriminate in regard to the hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. WESTEx BOOT & SHOE COMPANY, Employer. Dated:--------------------------- By------------------------- (Representative) (Title) 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. James R. Webster, for the General Counsel. Messrs. Otis E. Nelson and Lee Sellers, of Nelson, Montgomery and Robertson, .of Wichita Falls, Tex., for the Respondent. Mr. Lester Graham, of Abilene, Tex., for the Union. STATEMENT OF THE CASE Upon an amended charge filed on August 6, 1948, by American Federation of Labor, herein called the Union, the General Counsel of the National Labor Re- lations Board,' by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued his complaint dated August 9, 1948, against Westex Boot & Shoe Company, 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 (a) (1) and (3) and Section 2 (6) and (7) of the Na- tional Labor Relations Act, 49 Stat. 449, as amended by the Labor Management Relations Act, 61 Stat. 161, herein called the Act. Copies of the complaint, accompanied by notice of hearing and the amended charge, 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) on or about December 4, 1947, discharged Betty R. Finch, Hazel Booth, Leonard L. Booth, and Cecil H. Holton on or about Febru- ary 19, 1948, discharged J. E. Hewitt and on or about June 10, 1948, discharged Horace Gillespie and Olen E. Stonecipher 2 and since such dates refused to re- instate them because they joined or assisted the Union and engaged in other concerted activities; (2) at various times on and after December 4, 1947, by certain named officers and agents interrogated its employees concerning their union affiliation and activities and urged, threatened, persuaded, and warned them against assisting or becoming or remaining members of a union; and (3) by these acts interferred with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. The Respondent thereafter filed its answer admitting the allegations of the complaint with respect to its business but denying the commission of any unfair labor practices. Pursuant to notice, a hearing was held at Wichita Falls, Texas, from August 31 through September 3, 1948, before the undersigned Josef L. Hektoen, the Trial Examiner duly appointed by the Chief Trial Examiner. The General Counsel and the Respondent were represented by counsel and the Union by its representa- tive ; all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the opening of the hearing, counsel for the Respond- ent presented written motions previously filed with the Regional Office, as follows: (1) to strike certain portions of the complaint; (2) to dismiss the com- ' The General Counsel and his representative at the hearing are herein called the General Counsel, and the National Labor Relations Board is herein called the Board. 2 This name appears as Stonecypher in the record. However, exhibits in Case No. 16- RC-45, of which the undersigned was asked to take judicial notice, show the above spelling to be correct. WESTEX BOOT & SHOE COMPANY 501 plaint ; and (3) to make the complaint more definite and certain. The motions were denied by the undersigned' Oral argument and the filing of briefs were waived by the parties. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, Westex Boot & Shoe Company, is a Texas corporation with its office and factory in Wichita Falls, Texas, where it is engaged in the manu- facture and sale of boots, shoes, and fancy cowboy boots. During the year 1947, it bought raw materials valued at more than $100,000, about 90 percent thereof from points outside the State of Texas. During the same period, it sold finished products valued at more than $250,000, about 50 percent thereof being shipped by it to points outside the State of Texas. The Respondent admits that it is engaged in commerce within the meaning of the AAct. U. THE ORGANIZATION INVOLVED American Federation of Labor is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Background and major issues 4 The Respondent operates a plant employing some 35 to 45 production workers, both male and female. Its officials on the scene are Vice-President and General Manager T. B. Wilkes, Sr., Assistant Manager T. B. Wilkes, Jr., Foreman Hugh Burch, of the fitting and cutting department, and Foreman T. F. Jenkins, of the bottoming department. During the frequent absences of Wilkes, Sr., on ac- count of illness, Wilkes, Jr., is in charge of the plant. There are but two pro- duction departments. Until July 31, 1947, the employees had been earning 7 hours' overtime pay for Saturday work. On that day, however, overtime was suspended and a 40- hour week was instituted. On October 1, 1947, however, overtime was restored and continued until December 3, 1947, when the Respondent posted a notice at the time clock stating that overtime for Saturday, December 6 and 13, pur- portedly to enable the employees to attend football games on these dates, would be suspended." On the evening of December 3, some 25 employees gathered in the home of employee Hazel Booth. They discussed the matter of loss of overtime, deter- 8 Both in his answer and motion to strike , counsel for the Respondent contents that American Federation of Labor is not a labor organization within the meaning of the Act. This contention was and is rejected upon the basis of the Decision and Direction of Election Issued by the Board on May 25, 1948, in Matter of Westea Boot f Shoe Company, Case No. 16-RC-45, stating in part "Petitioner [American Federation of Labor] is a labor organization within the meaning of the Act. Matter of American Fruit Growers, Inc., 75 N. L. R B. 1157". Counsel for the Respondent also presented a motion for subpenas, but since the Regional Office has issued them before the hearing, no ruling on this motion by the undersigned was required. 4 The record contains little or no dispute as to the facts narrated in this section. 5 According to Wilkes, Jr., overtime was "officially" terminated on December 17. 838914-50-vol. 82 33 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mined to protest the consequent loss of pay to Wilkes, Sr., the following day, and signed a paper of "solidarity." On the following day, December 4, the management interviewed some 10 to 14 employees, as Wilkes, Sr., related, ". . . to find out what the trouble was."' At the close of the day, the Respondent discharged Hazel Booth, at whose home the meeting had been held, her brother-in-law, Leonard Booth, and employees Hewitt and Holton, all of whom had also been present. The same evening, a number of employees met with Union Organizer George Acker- man who received a number of application cards and dues payments from those present. On December 12, the Union filed its initial charge, a copy of which was received by the Respondent on December 17, alleging the discharges to have constituted unfair labor practices. On the same day, December 17, the Union filed its petition for certification of representatives in Case No. 16-RC-45. On December 19, the Respondent held a Christmas party in the plant, gifts were distributed, and those present and, all employees were given a $10 bonus. Wilkes, Sr., made an address to the assemblage which is the subject of further consideration in a succeeding section hereof. The employees continued their organizational activities, and on February 2; 1948, they were granted a charter for Local 573 by Boot and Shoe Workers' Union (AFL). At that time dischargee Leonard Booth was president of the group. He was succeeded by employee Gillespie, whose discharge is herein- after considered. Employee Hewitt was elected vice president when the char- ter was received. On February 19, the Respondent discharged Hewitt. On April 1, the Board conducted a hearing in Wichita Falls on the Union's petition and on May 25, issued its decision and direction of election. Notices of election were posted on June 2, and on June 8, an election of the Respondent's production and maintenance employees was conducted.' Employee Stonecipher acted as observer for the Union at the election and shortly before it, went over the eligibility list for use thereat with Wilkes, Sr. The Union lost the election by 22 to 14 of the valid ballots counted. On June 10, the Respondent discharged Gillespie and Stonecipher. Shortly thereafter the members surrendered their Boot and Shoe Workers' charter and on June 18, the Board closed its files in the representation case. Then the major events in issue are the seven discharges, while the December 4, 1947, management interviews, the December 19 Christmas party talk by Wilkes, Sr., and sundry other activities by the four members of management throughout the period in question must also be dealt with. B. Interference, restraint, and coercion on December 4, 1947 Employee Leonard Booth credibly testified that on December 4, 1947, the day after the Hazel Booth meeting, Foreman Jenkins approached him in the plant and asked about the meeting purportedly held at his, Booth's, house the night before,' that Booth denied having had such a meeting, and that Jenkins then e So far as is disclosed by the record, no concerted protest was made. It is undisputed that management became aware of the meeting of the night before early on the morning of December 4. 8 Only the Union appeared on the ballot which provided that the employees vote for or against representation by it. 9 There appears to have been an initial misapprehension on the part of management, soon dispelled , that the meeting had been held at Leonard Booth's home rather than at that of his sister-in-law, Hazel Booth. WESTEX BOOT & SHOE COMPANY 503 told him that employee discharges would occur as a result thereof. Employee Stonecipher credibly testified that on the same day, Jenkins also asked him about attending the meeting, inquired as to the leadership of the group, sug- gested that they included employees Hewitt and Hrazel Booth, and told Stone- cipher that if he continued his activities, he would be discharged by the Re- spondent. Employee Gillespie credibly testified that on the same day, Jenkins likewise spoke to him, inquired as to whether he had attended the meeting and receiving a non-committal answer, told him that those participating in the activity would get into trouble with the Respondent. Jenkins, who categorically denied the remarks attributed to him, by the three employees, was a most unimpressive witness, whose reiterated "No" in answer to questions put to him by counsel for the Respondent asking whether he had said what counsel then read from the record, was not convincing. In the light of the findings hereinafter made, his appraisal of the witnesses' credibility, and upon the entire record, the undersigned finds that Jenkins spoke to Booth, Stonecipher, and Gillespie substantially as they testified. Employee J. C. Niebrugge credibly testified without denial, and the under- signed finds, that on December 4, Foreman Burch asked him if he had attended. the meeting of the previous evening, and that Niebrugge truthfully answered that he had not. On the afternoon of December 4, as has been stated above, the four members of the Respondent' s management called a number of employees to the plant office. Among them were Hewitt, Stonecipher, and Hazel Booth. Hewitt testi- fied that Wilkes, Sr., after asking whether he had attended the Booth meeting, which Hewitt denied having (lone, stated that no union would be permitted in the plant, that he, Wilkes, could go out into the street and readily obtain ample, substitutes capable of performing the tasks of the employees, that Hewitt would get a 2 weeks' "trial" if he kept his "mouth closed" and that he would accomplish nothing by joining a union. Stonecipher testified that, although he had attended the meeting, lie denied having done so when asked by Wilkes, that the latter then stated that lie had definite knowledge that such a meeting had been held, that rather than permit a union to come into the plant he would close it, and finally told Stonecipher that if he intended to participate in union activities, he could leave the plant without further ado. Hazel Booth testified that when she denied having had a meeting at her home, Wilkes, joined by one or more of those present, insisted that she had and urged that she admit that fact, but that she remained adamant and was excused. Asked on direct examination by counsel for the Respondent whether the meet- ing the night before had any bearing on his having conducted these and other interviews on December 4, Wilkes, Sr, answered, "I was trying to find out what the trouble was." He volunteered that he said nothing of "any meeting" because he knew of none "and I never-never said to any employee-he couldn't belong to a union." He further testified that he had never asked any employee whether he had attended a meeting at the home of either Hazel or Leonard Booth. He also denied threatening to close the plant if a union came In. On cross -exami- nation by the General Counsel, however, he admitted having asked the employees about the meeting 10 and that his part in the proceedings was "to find out what 30 At page 490 of the record appears the following colloquy : By the General Counsel: Q. . . . when they were called into your office, one at a time, did anyone mention the meeting of the night before? 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was the trouble ... if there was dissatisfaction, and whether we could remedy it." In the light of this testimony by the vice president and general manager of the Respondent, and upon all of the circumstances revealed by the entire record, the denials or failures of rdtollection by and of Wilkes, Jr., Jenkins, and Burch as to what was allegedly said by Wilkes, Sr., are rejected, as are his own. The undersigned finds that he spoke to Hewitt, Stonecipher, and Hazel Booth sub- stantially as they testified. By the questioning by Jenkins of Leonard Booth, Stonecipher, and Gillespie, regarding the December 3 meeting and by his threats to them of discharge by the Respondent for their concerted activities, by the questioning of Niebrugge by Burch respecting the meeting, and by the questioning of Hewitt, Stonecipher, and Hazel Booth regarding the meeting by Wilkes, Sr., and by his threats to Hewitt and Stonecipher to replace the employees, close the plant, and to dis- charge Stonecipher if he persisted in his union activities, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. C. The discharges of December 4, 19417 As noted, at the close of business on December 4, the Respondent discharged Betty R. Finch, Hazel and Leonard Booth, and Cecil Holton. Since their timing and the Respondent's purported reasons therefor lend themselves to such treat- ment, they will be considered as a group. All 4 had participated in the meeting of some 26 employees the night before. With at least half the employees of a small plant engaged in such a pursuit, the interest of the Respondent' s manage- ment, as has been noted above, was acute. Both the Booths had been the subject of the management's close attention and questioning regarding it and it is found, from all of the surrounding circumstances, that the Respondent had knowledge of the fact that the meeting occurred in Hazel Booth' s home. The Respondent, according to the Wilkeses, suffered a decline in orders during 1947, and in November of that year, the management held conferences respecting a reduction of staff. The two foremen were told to check on the employees under them and about 10 a. m. on December 4, the day after the meeting, they were asked for the names of two employees in each of their departments whose services the Respondent might dispense with. Jenkins named Leonard Booth and Holton, while Burch supplied the names of Finch and Hazel Booth. Informed by Jenkins of the events of December 3 at about 3 p. m. on December 4, Wilkes, Sr., imme- diately replied, according to his own testimony "Well, we have already made our decision. Give the names to the pay-roll clerk, and their checks will be ready for them this evening." Betty R. Finch: Finch worked for the Respondent from May 9 to December 4, 1947, when she was discharged. She attended the December 3 meeting at Hazel Booth's home. She worked as a stitcher under Foreman Burch, who on Decem- Footnote 10-Continued By WILxas, Sr.: A. No one knew anything about it. Q. I thought you told me a while ago that you knew at the break at 3 : 00 p . m. about the meeting. A. I knew, that was the talk , but these employees all denied it. Q. Yes. Well, you said no one knew anything ; you meant you didn't-you hadn't heard or didn't know of a meeting? A. I knew what the foremen told me ; that was hearsay. But when we asked the employees if they been attending these meetings, they knew nothing about it. Q. Oh, you did ask them? A. Yes. WESTEX BOOT & SHOE COMPANY 505 ber 4 told her she was being discharged for an incident which occurred during November when she looked at a wage schedule of the employees which was lying on the desk of the Respondent's bookkeeper. The Respondent gave her a 5-cent increase in pay in November and it is undenied, and the undersigned finds, that Foreman Burch had complimented her on her work and told employee Hazel Booth that Finch would make a "good hand." Leonard L. Booth: Booth began work for the Respondent in March 1947, as a bottomer under Foreman Jenkins. He had had more than 10 years' experience, having been a bootmaker since 1936. In May 1947, Wilkes, Sr., praised his work. He attended the December 3 meeting and, as has been noted above, for a time was thought by management to have conducted it at his home. Hazel Booth was his sister-in-law. On the morning of December 4, Jenkins prophetically warned him that the Respondent would discharge one or more employees as a consequence thereof. At closing time that afternoon, Jenkins handed him his check, told him he was being discharged "for the benefit of the Company," adding that he would be glad to give Booth a recommendation at any time and that his work was more than satisfactory, and Booth left the plant. Thereafter Booth was the subject of great interest on the part of the Respond- ent. Employee A. L. Williams testified without denial, and the undersigned finds, that shortly after Booth's discharge, Wilkes, Sr., summoned him to the office and sharply questioned him regarding his alleged presence in an automobile with Booth, that Williams denied having been with Booth and that Wilkes, Jr., there- after apologized to Williams for his having wrongly been so accused, the cause having been a case of mistaken identity. Employee Niebrugge was called into the office following Williams' departure. He testified without denial, and the undersigned finds, that about a week after Booth's discharge, he had a conversa- tion with Booth across the street from the plant. The following day, Wilkes, Sr., asked him if he liked his job, and upon Niebrugge answering that he did, asked what he had been talking to Booth about. Niebrugge answered that they "were just talking" and the interview was concluded. The Respondent's position is that it discharged Booth at this time because of his action in early September in having a pair of his own boots repaired in the plant at a retail cost of $15, without a "ticket." The evidence reveals that matter was disposed of, however, when Booth agreed with Wilkes, Sr., to repay the amount due the Respondent by weekly payments" On January 15, 1948, Booth telephoned Wilkes, Jr., about the possibility of obtaining a letter of recom- mendation from the Respondent. Wilkes asked Booth to come into the office stating that he wanted to talk to him first. Booth appeared at the Respondent's office and found both Wilkes, Sr., and Jr., there. Wilkes, Sr., after telling Booth that he was sorry to have discharged him, asked him about any other employees who might be active in the Union and if employee Hewitt was one of them. Booth answered that he did not know, but that he was rather confident that he was not. Wilkes, Sr., replied that he had been planning to discharge Hewitt because he thought Hewitt was an active union man, but had not done so because he had not had a replacement for him. Wilkes then prepared a letter of recom- mendation for Booth, stating that he had omitted the real reason for Booth's discharge, i. e., "active in the Union," because that would prevent the latter from obtaining employment elsewhere. Wilkes, Sr., then signed the letter and handed it to Booth" n Booth had made none at the time of his discharge. 12 The findings with respect to the events of January 15 are based upon the undenled and credible testimony of Booth which the undersigned accepts. ,506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hazel Booth: Booth began work for the Respondent about March 1, 1947, as a fancy stitcher on special order boots and was discharged on December 4 of that year. She was an experienced employee, having worked in leather off and on since 1926, at one time for Wilkes, Sr., for a period of 3 years in another com- munity. She began work for the Respondent at 70 cents per hour and was raised to 80 cents about 3 weeks before her discharge. Her work had received praise from Wilkes, Jr" ' As found above, she housed the December 3 meeting and on the afternoon of the following day was the subject of inquiry from the four managerial officials. At about quitting time on that day, December 4, Fore- man Burch handed her her check, saying the Respondent thought it best to let her go. He did not answer her question as to what she had done to cause this drastic step. The Respondent adduced evidence to show that she had ordered two pairs of boots for her children and had received a special employee discount thereon. On one pair there arose a misunderstanding and Booth complained of it to Wilkes, Jr., and the foreman somewhat heatedly. Wilkes, Jr., testified that her complaints and the "disturbance she created" were the sole cause of her discharge, but on ,cross-examination by the General Counsel, and introduction of documentary evidence respecting the matter, he admitted that she was due a refund and that she had a legitimate grievance. Cecil H. Holton Holton began work for the Respondent late in February of 1947, under Foreman Jenkins. He attended the December 3 meeting and on December 4, the Respondent discharged him. Holton testified without denial, and the undersigned finds, that Jenkins on two occasions praised his work. In August he received a 10-cent increase in hourly pay. When he was discharged, Jenkins told him it was for the "good of the company," but it is undenied, and the undersigned finds, that Jenkins also told Holton that he was not being dis- charged for poor work. This did not satisfy Holton and he thereupon inter- viewed the Wilkeses. Jr. told him that he was "an instigator -or antagonizer" 14 and was being discharged on that account. The Respondent's position is that Holton, who was a veteran trainee, simply did not learn the work, that if he had not been discharged, it would have had to raise his pay in accordance with Veterans Administration rules, that he com- plained to other employees respecting his pay, and thereby caused disturbance in the plant. Jenkins, on the other hand, testified that Holton was chosen for discharge because he was in the habit of indulging in unexcused absences and that when he was absent, Jenkins had to do his work. Conclusions with respect to the four discharged Granting that business necessity may have indicated a reduction in force, the Respondent's timing of the discharges, together with its questioning and threaten- ing employees on the same day, its knowledge of the fact that Hazel Booth's home was the scene of the December 3 meeting, Wilkes' January 1948, explanation to Leonard Booth of the real reason for his discharge, its contradictory reasons for the discharge of Holton, and the fact that it waited an appreciable length of time to discharge Finch for her alleged misconduct in looking at confidential material, as well as the Respondent's intensely anti-union attitude epitomized by the acts 13 On January 16, 1948, Booth asked for and obtained from Wilkes, Jr., a recommenda- tion from the Respondent and signed by him stating that her work was "of excellent and first-rate quality." According to Booth's undenied testimony, which the under- signed accepts, Wilkes told her at the time that "It is nothing but the truth. . . . You are a good stitcher." 14 Holton's undenied testimony which the undersigned accepts. WESTEX BOOT & SHOE COMPANY 507 and statements of Wilkes, Sr., Burch, and Jenkins, combine to convince the under- signed that the real reason for the Respondent's discharge of the four employees was their activity on behalf of the Union and their attendance at the December 3 meeting. Upon the preponderance of the credible evidence, he so finds. By these discharges and by Wilkes' questioning of Williams and Niebrugge respecting Booth as well as statements to the latter, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. D. Continuing interference, restraint, and coercion Employee George Lovett credibly testified that on December 515 he was sum- moned to a meeting with the four representatives of the Respondent's manage- ment at which Wilkes, Sr., asked him what he knew of the Hazel Booth meeting, that he did not answer directly, that Wilkes then asked him if he were a union sympathizer to which he answered that he did not know much about it, where- upon Wilkes told him that if he was, he could leave forthwith, but that if he was not, he might stay on the job, adding that rather than have a union in the plant, Wilkes would go East and stay with his wife's relatives, and that in the East it was not permissible for a member of management to speak to members of the rank and file without permission and that he did not want that in his plant. As has been found above, Wilkes, Sr., had used substantially the same approach in dealing with a number of employees on the preceding day. Furthermore, he admitted on cross-examination by the General Counsel, that although he could not recall having so informed any employee, he had heard that conditions, such as allegedly described by him to Lovett, obtained in the East and that he did not want them in his plant. The undersigned therefore rejects Wilkes' denial and finds that the conversation took place substantially as described by Lovett 16 Employee Williams testified without denial, and the undersigned finds, that shortly after the December 4 discharges, Wilkes, Sr., asked him if he had been asked to join the Union and if he would do so if he were asked, that Williams replied that he knew nothing of it, whereupon Wilkes asked him if he desired to remain as an employee, to which he replied in the affirmative. On December 19, the Respondent conducted a Christmas party for the em- ployees in the plant. As stated above, presents were distributed, a $10 bonus was given the employees, and Wilkes, Sr., made a short talk, in the course of which, according to former employees George Patusek and Mary Reeves, he stated that he would give the employees raises in pay if he saw fit but that he wanted no outsiders or a "third party" endeavoring to obtain increases for them. Former employee Frances Hill testified that she could recall no such statement and her husband, Alvey, also a former employee, testified that he did not. Wilkes, Sr., flatly denied making such a statement but on cross-examination by the General Counsel, volunteered, "I didn't want to defeat the purpose of the party, spoil a holiday by bringing up anything that would be unpleasant." The under- signed was particularly impressed by Reeves as a witness. She had voluntarily on July 19, 1948, quit her employment with the Respondent after about a year's tenure. Patusek was a reliable witness. The Hills, on the other hand, were not particularly impressive, and Wilkes, as found above, was not always reliable. Upon the entire record in the case, and upon his appraisal of the witnesses, the u He had been absent from the plant on December 4 on account of the illness of his father. 1s Wilkes, Jr., testified that he could not recall that Wilkes, Sr., addressed Lovett as found above, but that had he done so, he would have recalled it. His denial, if it be such, rejected. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD undersigned is convinced and finds that Wilkes made the statement attributed to him by Patusek and Reeves. Patusek, who voluntarily quit work for the Respondent after the June 8, 1948, election , credibly testified that about a month after the Christmas party, Fore- man Burch asked him whether he was a union member, and upon Patusek's answer in the negative, told him it was a good thing because membership would get him into trouble with the Respondent as it had in the case of several employees in the past, adding that if the Union penetrated into the plant, the Respondent would close it down and all of the employees would lose their jobs. Employee Winston Stowe credibly testified that during February 1948, Burch asked him if he had been asked to join the Union, that he answered equivocally and that about a month later Burch stridently insisted upon Stowe 's telling him if he knew anything of the Union, adding that he wanted no lies, that Stowe denied knowledge of the Union , and that Burch thereupon stated that the Respondent had discharged several employees on account of their union activities, would discharge more in order to stamp out the Union, and that if Stowe planned to aid the union movement in any fashion , he should definitely recopsider his stand. Burch, like Jenkins, was not an impressive witness, and like him, denied his alleged statements in answer to the same type of questioning . Since, as has been found above, Burch was reporting facts when he told Patusek and Stowe that their concerted activities had caused the Respondent to discharge other employees , the undersigned finds that Burch spoke to the two employees substan- tially as they testified. By Wilkes' questioning of and threats of the loss of their jobs if they were sympathetic to the Union to Lovett and Williams , his clear threat made at the December 19 party that if a union came into the plant the quesion of increases in pay might not be favorably acted upon , and by Burch's questioning of and threats to Patusek and Stowe, the Respondent has interfered with , restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. E. Hewitt's discharge J. E. Hewitt : " Hewitt worked for Wilkes , Sr., for a time in 1943, and late in 1945, joined the staff of the Respondent at Wilkes ' request. He was doing "rough-rounding and edge-trimming" in the bottoming department under Foreman Jenkins at the time of his discharge on February 19, 1948, and was Jenkins` sole assistant in such work at the time . Hewitt was an experienced leather worker, having worked in the field since 1928. He began work for the Respondent at $6 per day and was earning $8 when discharged. During 1947, Wilkes, Sr., complimented him on his work. Hewitt attended the December 3 meeting at Hazel Booth's home and on the following afternoon , as has been found above, was the subject of searching inquiry by the four members of the Respondent's management , and told by Wilkes, Sr., that replacements for him and all other employees could be found on the street and that he was staying on at his task with the Respondent only at the latter's sufferance . On February 2, 1948, he was elected vice president of the Boot and Shoe Workers' Union, and on Feb- ruary 19, Jenkins gave him his final check saying that Wilkes, Sr ., apparently expected that he accomplish an identical amount of work with less help and that he did not seem to be able to keep a "good hand." The Respondent contends that it discharged Hewitt on account of the fact that "along about the fall of 1947, Bill's work fell off from what he had been 17 Sometimes called "Bill" in the record. WESTEX BOOT & SHOE COMPANY 509 doing," and that since orders were still lagging, a continuing reduction of force was taking place. Hewitt testified that on December 4, Foreman Burch inquired of him as to his attendance at the meeting the night before, adding that Burch would not work in the plant if a union came into it. Burch could not initially recall the con- versation and finally denied it. He has been found to have been an unreliable witness. The undersigned finds that he spoke to Hewitt as the latter testified. As has been found above, Wilkes, Sr., on January 15, told Leonard Booth that he was planning to discharge Hewitt on account of his being an active union proponent. He is found to have carried out his plan a month later. By this discharge and by the questioning by Burch of Hewitt, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. F. The final discharges Horace Gillespie: Gillespie worked for the Respondent as a laster from Novem- ber 8, 1943, to June 10, 1948, when he discharged him. As found above, on December 4, after his having attended the Hazel Booth meeting, Foreman Jenkins had occasion to caution Gillespie respecting concerted activities, stating that those who engaged in them would find themselves in difficulties with the Re- spondent. He began work at 40 cents an hour and was earning 90 cents when discharged.18 Both Wilkes, Sr., and Jenkins had complimented him on his work. Gillespie was elected president of the Union in March 1948, and had previously been its guide, or doorman. He continued as president until the Union sur- rendered its charter after its defeat on June 8, 1948. He solicited and obtained numerous union applications during his free time and off the Respondent's premises. The Respondent contends that it discharged Gillespie because in April 1948, it found that "We were having too many boots torn open during the lasting operations . . ." and that Wilkes, Jr., at that time gave orders to Foreman Burch (not to Jenkins who was Gillespie's supervisor), "to keep a check" on what was happening and that on the basis of Burch's investigation and opinion, Wilkes gave "instruction with reference to the discharge of Mr. Gillespie." Except for his conversation with Gillespie, Foreman Jenkins was not questioned regarding his employment history nor discharge and although he followed Wilkes, Jr., on the witness stand, Foreman Burch gave no testimony respecting him. Olen E. Stonecipher: Stonecipher worked for the Respondent for about half a year ending in 1943, returned to work after his military service on December 31, 1945, as a bottomer under Foreman Jenkins, and continued as such until he was discharged on June 10, 1948. As found above, on December 4, 1947, Jenkins interested himself in the Hazel Booth meeting, asking Stonecipher if he had attended it, who the "leaders" were, and warning him that those who participated would get into trouble with the Respondent and be discharged by it. Stonecipher was also the subject of interrogation by the management on the afternoon of December 4 and told by Wilkes, Sr., that he would close the plant rather than have the union penetrate it and that if Stonecipher intended to engage in union activities, he should resign his employment but that since he was doing good work, the Respondent was anxious to retain him as an employee. Stonecipher is Gillespie's last increase was accompanied by a letter dated March 5, 1948, from the Respondent stating in part : "Do to your loyalty and cooperation during the time you have been employed here, we are glad to raise your wage from eighty-five to ninety cents." t was signed by Wilkes, Sr. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD acted as observer for the Union at the election of June 8 had previously checked the eligibility list with Wilkes, Sr. As has been found, the Union lost the election. Two days thereafter, the Respondent discharged Stonecipher as "incompetent." The Respondent contends that it discharged Stonecipher because in May 1948, he had trimmed the soles of certain boots shown at an exhibition in Dallas "too close" and because he had also similarly trimmed an order of nine pairs of boots which were returned by the customer to the Respondent. Conclusions as to Gillespie and Stonecipher Without resolving the question of the workmanship of Gillespie and Stone- cipher, it seems clear to the undersigned that but for their union membership and activity the Respondent would not have discharged them. Gillespie was president of the Union and had actively solicited many applications for membership therein. In a small plant, such as that of the Respondent, the fact of his having been one of the leaders of the Union must be considered to have been known to the Respondent. It had shown itself most knowledgeable respecting the Union and its protagonists heretofore and Wilkes, Jr , testified that although that fact had nothing to do with their discharges, he had heard that both Gillespie and Stonecipher were members of the Union. As to Stonecipher, his union member- ship and activity became notorious when he acted as observer for the Union at the June 8 election. Both employees had been warned by management to give up their union proclivities on pain of the loss of their jobs. The undersigned is convinced, and upon the entire record finds, that the Re- spondent discharged Gillespie and Stonecipher not for the reasons advanced by it but because it desired to rid itself of them on account of their union membership and their leading roles in the activities on behalf of the Union. By such dis- charges, the Respondent has interfered with, restrained, and coerced its employees in the exercise of 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 its operations described in Section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices , it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent discriminatorily discharged Betty R. Finch, Leonard L. Booth, Hazel Booth, Cecil H. Holton, J. E . Hewitt, Horace Gillespie, and Olen E . Stonecipher. It will therefore be recommended that the Respondent offer to said employees immediate and full reinstatement to their former or substantially equivalent positions ,19 without prejudice to their seniority 19 The term "former or substantially equivalent positions " is intended to mean "former positions wherever possible , but if such positions are no longer in existence, then to sub- stantially equivalent positions ." See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, 65 N. L. R. B. 827. WESTEX BOOT & SHOE COMPANY 511 or other rights and privileges, and that it make the seven named employees 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 of money equal to that which he or she normally would have earned as wages from the date of the respective discharges to the date when, pursuant to the recommendations herein, the Respondent shall offer them reinstatement, less the net earnings of each during said period 20 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. The American Federation of Labor is a labor organization, within the mean- ing of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Betty R. Finch, Hazel Booth, Leonard L. Booth, Cecil H. Holton, J. E. Hewitt, Horace Gillespie, and Olen E. Stonecipher, thereby discouraging membership in the American Federation of Labor, 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 its 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 commerce, within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record herein, the undersigned recommends that the Respondents, Westex Boot & Shoe Company, Wichita Falls, Texas, its officers, agents, suc- cessors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in the American Federation of Labor, or in any other labor organization of its employees, by discriminatorily discharging or re- fusing to reinstate any of its employees, or by discriminating in any other man- ner in regard to their hire and tenure of employment, or any term or condition of employment ; (b) Interrogating its employees concerning their union affiliations, activities, or sympathies, or in any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor or- ganizations, to join or assist the American Federation of Labor, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collec- tive 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) Offer to Betty R. Finch, Hazel Booth, Leonard L. Booth, Cecil H. Holten, J E Hewitt, Horace Gillespie, and Olen E. Stonecipher immediate and full re- 20 See Matter of Crossett Lumber Company , 8 N L R B. 440, 497-498; Republic Steel Corporation v. N. L R. B , 311 U. S. 7. 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD instatement to their former or substantially equivalent positions, without prej- udice to their seniority or other rights and privileges ; (b) Make whole said seven named employees for any loss of pay they may have suffered by reason of the Respondent' s discrimination against them, in the manner set forth in the section entitled "The remedy," above ; (c) Post at its plant in Wichita Falls, Texas, copies of the notice attached here- to and marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a„period of at least sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material ; (d) Notify the Regional Director for the Sixteenth Region in writing, with- in ten (10) days from the receipt of this Intermediate Report, what steps the Respondent has taken to comply herewith. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report and Recommended Order or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46 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 from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 20th day of December 1948. JosEF L. HEKTOEN, Trial Examiner. APPENDIX A NOTICE To ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner 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 : WESTEX BOOT & SHOE COMPANY 513 WE WILL Nor in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist AMERICAN FEDERATION OF LABOR or any other labor organiza- tion, 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. WE wILL oFFER to the employees named below immediate and full rein- statement to their former or substantially equivalent positions without prej- udice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Betty R. Finch Cecil H. Holton Hazel Booth J. E. Hewitt Leonard L. Booth Horace Gillespie Olen E. Stonecipher All our employees are free to become or remain members of the above-named Union or any other labor organization. We will not discriminate in regard to hire and tenure of employment against any employee because of membership in or activity on behalf of any such labor organization. WESTEX BOOT & SHOE COMPANY, Employer. Dated-------------------------------- By -------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.