Sharp Point Fish Hook Co.

WRIGHT & McGILL COMPANY 1035 Order Upon the basis of this Supplemental Decision and the entire record in the case, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board hereby orders that the Respondent, The L. B. Hosiery Co., Incorporated, and Lee Maisel, doing business as Myerstown Hosiery Mills, Myerstown, Pennsylvania, their officers, agents, successors, and assigns, shall pay to the employee listed below, who was found to have been discriminated against by the Respondents by a Board Decision and Order issued on March 10, 1950, as enforced by a decree of the Court of Appeals for the Third Circuit entered on April 18, 1951, the following amount of net back pay : Paul Garnet Net back pay from March 28,1949, to August 1, 1949______ $1, 221.74 Net back pay from August 1, 1949, to March 30,1950______ 2, 349.76 Total net back pay______________________________ $3,571.50 WRIGHT & MCGILL COMPANY AND A. D. MCGILL AND S. M. WRIGHT, CO-PARTNERS, D/B/A SHARP POINT FISH HOOK COMPANY and INTER- NATIONAL BROTHERHOOD or TEAMSTERS , CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA, DELIVERY DRIvERs, WAREHOUSEMEN AND HELPERS , LOCAL UNION No. 435, AFL. Case No. 30-CA-201. February 5,1953 Decision and Order On June 11, 1952, Trial Examiner Howard Myers issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondents had engaged in and were engaging in certain unfair labor practices in violation of the Act, and recommending that they cease and desist therefrom, and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto.' Thereafter, the Respondents filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this proceeding to a three-member panel [Chairman Herzog and Mem- bers Murdock and Peterson]. I Because no exceptions have been filed to the Trial Examiner 's recommendations that the 8 ( a) (3) allegations as to Bingham and Benedict be dismissed , we adopt such recom- mendations without further comment. 102 NLRB No. 103. 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed.' The Board has considered the Intermediate Report, the Respondents' ex- ceptions and brief, and the entire record in this case,3 and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except to the extent that they are inconsistent herewith' 1. We agree with the Trial Examiner that the Respondents Wright McGill Company-' and Sharp Point Fish Hook Company " are in- dividually responsible for certain unfair labor practices involved in this proceeding. However, in addition, we find that the Respondents are jointly and severally responsible for all of such unfair labor prac- tices. As a basis for so finding we adopt the findings in the Inter- mediate Report to the effect that S. M. Wright is president, A. D. McGill, vice president, and Mary Kline, treasurer of Wright-McGill; that S. M. Wright and A. D. McGill are the partners and sole owners of Sharp Point; that both Respondents share the same premises for many of their operations; that virtually all fishhooks made by Sharp Point are purchased by Wright-McGill; that clerical employees for both Respondents are usually carried on the Wright-McGill payroll; that transfers of employees occur between both Respondents; and that hiring is done by A. D. McGill and Mary Kline for both Respondents. Furthermore, it clearly appears, on the basis of abundant evidence in the record, that there exists a common direction of labor policies for both Respondents. 2 The Respondents in their exceptions contend that they were prejudiced because the complaint gave them inadequate notice of alleged violations of Section 8 (a) (1)'. We find no merit to this contention . Not only did the complaint specify, beyond mere statutory language, the nature of the acts complained of, the complaint was amplified at the hearing where the Trial Examiner granted in part the Respondents ' motion for particularization so as to show the approximate dates of the alleged violations and the identity of the Respondents or their agents involved . Moreover, the hearing was held at intervals over a week and at no time during the hearing did the Respondents claim surprise or ask for an adjournment. See N. L. R. B. v . Remington Rand, Inc., 94 F. 2d 862 (C. A. 7) ; Premier Worsted Mills, 85 NLRB 985, enfd. 183 F. 2d 256 (C. A 4). 8 Although the record shows clearly that Respondents' Exhibits Nos. 14, 1.5, and 16 were received in evidence , the record also contains references to them as rejected exhibits. These exhibits have been fully considered as received in evidence. 4 The Intermediate Report contains the following minor misstatements , none of which affect our agreement with the conclusions of the Trial Examiner : ( 1), The record indi- cates that 5 rather than 4 persons engaged in handbilling on September 24; (2) while the record shows that all those employees found to have been discriminated against were satisfactory workers, only 1 or 2 were "admittedly excellent" workers; (3) that portion quoted in the Intermediate Report of McGill 's (presumably A. D. McGill ) statement to Banks at the time of her discharge concerning poor steel is corrected to read ". . . we are getting in a poor grade of steel at present and we just can't continue those kind of hooks"; (4) Brewer did not testify that Endicott was not present when O 'Canna told Ferrell off; and ( 5), although the record shows that Endicott was present when O'Canna told Ferrell off at the plant on October 10, 1951 , the record does not clearly indicate that O'Canna, after her arrival at the plant that day, was told by Endicott to go into Ferrell's department to tell her off or that O'Canna was accompanied by Endicott into Ferrell's department. S Hereinafter referred to as Wright-McGill. 6 Hereinafter referred to as Sharp Point. WRIGHT & McGILL COMPANY 1037 In view of the foregoing circumstances, we find that the Respondents are joint employers of the employees involved in this proceeding and are therefore jointly and severally responsible for the unfair labor practices found herein.' 2. The Trial Examiner found, and we agree on the basis of the pertinent facts set forth in the Intermediate Report," that the Respond- ents interfered with, restrained, and coerced their employees, in violation of Section 8 (a) (1) of the Act. In so finding, however, we do not rely separately on the fact referred to by the Trial Exam- iner, that L. S. McGill during his surveillance of the handbilling on September 22, 1951, looked at each employee who accepted a handbill in a "defying manner." We agree that the conversation between Wright and Forelady Endicott on September 22, 1951, violated Section 8 (a) (1) for the following reasons : About 15 minutes before noon, on September 22, 1951, as testified to without denial by Ferrell, who was the Union's most active adherent, Wright and Endicott came over to within 4 or 5 feet of her while she was working, whereupon Wright said to Endicott, so that Ferrell could hear, "Lay off ... all the extra help you don't need and keep the good workers and the ones that are loyal to the Company," to which Endicott replied, "yes, that is ° See Somerset Classics, Inc, 90 NLRB 1676, enfd. 193 F. 2d 613 ( C. A. 2) ; Mission Oil Company, 88 NLRB 743; Olin Industries, Inc, 97 NLRB 130. 8 As pointed out by the Respondents in their exceptions and brief, the Trial Examiner, in his "Concluding findings" with respect to violations of Section 8 (a) (1) inadvertently stated that Reynolds told Vernen on September 24, that those employees seen "in groups talking about the Union" would be released from their employment . This statement, as correctly set forth by the Trial Examiner under his previous findings 6f "Pertinent Facts," was made by Wright, in Marques' presence at the foremen's meeting on September 24. We agree with the Trial Examiner that this statement is a violation of Section 8 (a) (1). A similar discrepancy in his "Concluding findings" is the Trial Examiner 's statement that it is undisputed that the foremen at the September 24 meeting were instructed to ascertain the feelings of certain employees concerning the Union and to advise those employees « ho had received authorization cards not to return them immediately because the Respondents felt they could straighten things out. Also, as previously set forth by the Trial Examiner in his findings of "Pertinent facts," this statement, as testified to by Vernen, was made to Vernen by Reynolds concerning what took place at the foremen's meeting on Reynolds' return from such meeting. After Vernen's latter testimony, em- ployee Marques at the behest of the Respondent was recalled as a witness for further cross-examination . Although Vernen's testimony is otherwise undisputed, Marques, who was present at the foremen 's meeting and later when Reynolds spoke to Vernen, testified that he could not recall such instructions being given at the foremen's meeting and denied that Reynolds made such a statement to Vernen. However, in agreement with the Trial Examiner, we credit Vernen's rather than Marques' testimony in this respect, particularly in view of Marques' labored and evasive testimony during his second appear- ance as a witness . However, as Vernen's testimony is uncorroborated hearsay as to what actually was said at the foremen 's meeting, we find only that Reynolds' statement to Vernen In this regard is a violation of Section 8 (a) (1) of the Act. The Respondents in their exceptions also contend that the Trial Examiner erred in his "Concluding findings" in finding that surveillance by Wright, A. D. McGill, and L. S. McGill was not denied. The record shows that, although observation of the handbilling is not denied , the length of time and purpose of such observation is disputed. As the record amply supports the Trial Examiner's findings with respect to the Respondents' observation of the handbilling, we find, in agreement with the Trial Examiner , that such conduct violated Section 8 (a) (1) of the Act. 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a good idea." It seems clear that by alluding to "the ones that are loyal to the Company" Wright was referring to the union activities of the employees. We find, under the circumstances, that Wright's statement constitutes interference, restraint, and coercion in violation of Section 8 (a) (1) of the Act." Although not noted in the Intermediate Report, employee Fabrizius testified without denial that on one occasion during the latter part of September 1951, Forelady Oliver of her department asked her "What about the Union?" and on another occasion during the same period asked her if she "was going to be a good little girl and be loyal." We further find that these interrogatories by Oliver are violations of Section 8 (a) (1) of the Act. 3. We are satisfied, as was the Trial Examiner, that Banks, Williams, Ferrell,1° Engel," Giffin, Peterson, Miller, Wonn, O'Canna, and Horkans were all discriminatorily discharged within the meaning of the Act. That a discriminatory plan prompted the selection for discharge of all the above-named individuals is particularly indicated by evidence that a grossly disproportionate number of union adherents were discharged. Thus, during September and October 1951, just as the Union's active organizational campaign was getting started, the record shows that, out of a possible maximum of 14 or 15 employees discharged,- 11 were active union adherents. These 11 union ad- herents included the 10 dischargees above mentioned and Bingham, as to whom the Trial Examiner recommended dismissal of the com- plaint. Of the 10 employees whom the Trial Examiner found to be discriminatorily discharged, all, with but 1 or 2 possible exceptions, had signed union-authorization cards, and were among the Union's 9 See The Advertiser Company, Inc ., 97 NLRB 604, 617; Jamestown Veneer and Plywood Corporation, 93 NLRB 101, enfd. as mod 194 F. 2d 192 (C. A 2). 10 The Respondents contend that Ferrell was never discharged . In adopting the Trial Examiner's finding with respect to Ferrell, we find that she was discharged upon her return to the plant to work on October 22, 1951. 11 The Respondents contend that Engel quit her job. In adopting the Trial Examiner's finding that Engel was discriminatorily discharged , while we agree that the reason given Engel for her discharge by her supervisor (the fact that she was dissatisfied with her work ) was not the real reason and that L . S. McGill undoubtedly overheard her prounion remarks at the October 22 handbilling , we do not find , as did the Trial Examiner, that the foregoing reason given Engel was one based "solely" on the fact that she was so over- heard. However, above and beyond circumstantial evidence , the handbilling incident adverted to is direct evidence of knowledge on the part of the Respondents of Engel's union sympathies. 12 Although the record affirmatively shows that only 11 employees were discharged, the Respondents in their exceptions and brief contend that the charges show a number of other employees discharged . An examination of the charges reveals that they allege a total of 6 other employees as discharged in violation of the Act. Thus, various of the charges allege that Benedict, Auxier, Melick, and Campbell were discharged and that Fabrizius and Gomez were constructively discharged . Of these, only Benedict was named in the complaint. If anything , the record indicates that Benedict, as to whom the Trial Examiner recommended dismissal of the complaint , left her job because of sickness at home. Gomez, the only 1 of the 6 to testify, stated that she quit her job . As to the remaining 4, there is no evidence as to their union activities or employment status. How- ever, even if we were to assume that these 4 were discharged , the number of known union adherents among those selected for discharge is grossly disproportionate. WRIGHT & McGILL COMPANY 1039 most active supporters. Thus, 3 of the 10, namely Ferrell, Banks, and Williams, were among the 5 employee leaders of the Union's organizational drive 13 The remaining 7 employees spoke favorably of the Union among the other employees. These facts, when coupled with the various warnings to employees to refrain from union ac- tivities and the statements by Wright about keeping only loyal em- ployees and discharging those talking about the Union, are clearly persuasive of a discriminatory plan 14 In attempting to meet a strong prima facie case established against them by the General Counsel, the Respondents attempted to show that economic causes and technological displacement necessitated the discharges in question.15 The Trial Examiner found and we agree that the Respondents have failed to establish such necessity. In their exceptions and brief, the Respondents contend that the Trial Exam- iner erred in finding that a certain document contained no evidence of orders on hand and was unreliable with respect to loss of business. We find this contention without merit. The document in question contains a statistical summary of the Respondents' monthly production, sales, and inventory for the years 1950 and 1951. Although these statistics show that sales during the months of August, September, and October of 1951 were substantially less than the comparative monthly sales for 1950, it also shows that the total sales for 1951 had substantially increased over 1950. More- over, when we consider the fact that the Respondents' business is sea- sonal in nature, some variations in comparative monthly sales in dif- ferent years are not unusual. Thus, although not mentioned by the Respondents, sales for the months of January, February, March, April, May, June, November, and December, 1951, were substantially higher than sales for the corresponding months of 1950. The Respondents also specifically urged that a decrease in orders necessitated the layoffs in the sorting room. However, the statistics so offered contained no information as to orders on hand. On the other hand, certain sorting room employees at the time of their dis- charge were shown record books containing orders which their super- visor claimed could not be filled because of a shortage of steel to which he ascribed their discharge. We are satisfied by our findings above, and the shifting and con- flicting reasons assigned by the Respondents for their discharge, that is The other two employee leaders consisted of Bingham, above referred to, and Vernen, who remains employed 14 W. C. Nabors Company, 89 NLRB 538, enfd. 196 F. 2d 272 ( C. A. 5) ; Granite State Machine Company, 80 NLRB 79. 99. '6 Thus, the Respondents contend that the layoff in the sorting room was due primarily to a decrease in orders and that Banks and Williams were discharged primarily for reasons of technological displacement. Ferrell was told that there were no orders . Obviously no reasons were advanced at the hearing by the Respondents for the discharges of Ferrell and Engel, in view of the Respondents' contentions that they were never discharged. See footnotes 10 and 11 , supra. 1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees in question were in fact selected for discharge for anti- union considerations rather than those assigned by the Respondents115 In any event, even though it be assumed that a reduction in force was economically or otherwise advisable, the grossly disproportionate number of union adherents selected for discharge nevertheless com- pels a finding that antiunion discrimination prompted such discharges. And we so find.17 Accordingly, we shall enter our usual order cover- ing both the 8 (a) (1) and (3) violations found herein. Order 18 Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Wright & McGill Company and A. D. McGill and S. M. Wright, Co-Partners, d/b/a Sharp Point Fish Hook Company, Denver, Colorado, and their offi- cers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, De- livery Drivers, Warehousemen and Helpers, Local Union No. 435, affiliated with American Federation of Labor, by discharging or re- fusing to reinstate any of its employees or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of their employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activ- ities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. is Granite State Machine Company, Inc., 80 NLRB 79, 94. There is a large turnover in the Respondents' business and a practice to transfer employees back and forth between various departments as needed Although there is prior testimony by Banks that , on the day of her discharge , she happened to be in the stockroom when a new employee was told to hang up her coat and that , at the time, she had learned from Supervisors Mount and Ferguson that there was an opening in the lure department, the only evidence introduced on this point by the Respondents was A. D. McGill's testimony that he had no recollection whether or not any new employees were hired or interviewed during the period in question. 37 U. S. Trailer Manufacturing Co., 82 NLRB 112, 127, enfd. 184 F. 2d 521 (C. A. 8) ; Granite State Machine Company , Inc., 80 NLRB 79, 99. 11 The Trial Examiner in his recommended order inadvertently recommended that Giffin be reinstated. As Giffin was reemployed on January 11, 1952, we shall merely order that she be made whole for any loss of pay suffered. WRIGHT & McGILL COMPANY 1041 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Virginia Banks, Stanley Williams, Lucille Miller, Gladys O'Canna, Alice Engel, Geraldine Horkans, and Mary Ferrell immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges. (b) Make whole Virginia Banks, Stanley Williams, Lucille Miller, Gladys O'Canna, Alice Engel, Geraldine Horkans, and Mary Ferrell for any loss of pay they may have suffered by reason of the discrim- ination against them by payment to each of them of a sum of money equal to the amount which he or she normally would have earned as wages from the date of their respective discharge to the date of the Respondents' offer of reinstatement, less his or her net earnings, dur- ing said period. (c) Make whole Mildred Peterson, Vera Giffin, and Ruth Wonn for any loss of pay each may have suffered by reason of the discrimination against them, by payment to each of them of a sum of money equal to the amount which she normally would have earned as wages from the date of her respective discharge to the date she was reinstated. (d) Upon request, make available to the Board or its agents for examination and copying all payroll records, social-security payment records, timecards, personnel records and reports, and all other rec- ords necessary to analyze the amounts of back pay due and their right of reinstatement under the terms recommended herein. (e) Post at their plant or plants in Denver, Colorado, copies of the notice attached hereto marked "Appendix A." 19 Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being duly signed by Respondents' representa- tives, be posted for sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to employees cus- tomarily are posted. Reasonable steps shall be taken by the Re- spondents to insure that said notices are not altered, defaced, or cov- ered by any other material. (f) Notify the Regional Director for the Seventeenth Region, in writing, within ten (10) days from the date of this Order what steps Respondents have taken to comply therewith. IT Is FURTHER ORDERED that the complaint be dismissed insofar as it alleges that the Respondents discriminated against Ernest Bing- ham and Adeline Benedict in violation of Section 8 (a) (3) and (1) of the Act. 19 In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 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 INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, DELIVERY DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL UNION No. 435, affiliated with AMERICAN FED- ERATION 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 of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the National Labor Relations Act. AVE WILL OFFER TO Virginia Banks, Stanley Williams, Lucille Miller, Gladys O'Canna, Alice Engel, Geraldine Horkans, and Mary Ferrell immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of our discrimination against them. WE WILL make Mildred Peterson, Vera Giffin, and Ruth Worm whole for any loss of pay suffered as a result of our discrimina- tion 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 not discrim- inate in regard to hire or tenure of employment or any term or con- dition of employment against any employee because of membership in or activity on behalf of any such labor organization. WRIGHT & MCGILL COMPANY AND A. D. MCGILL AND S. M. W RIGHT, CO-PARTNERS D/B/A SHARP POINT FISH HOOK COMPANY, Employers. By ----------------------------------------------------- (Representative ) ( Title) By ----------------------------------------------------- (Representative) (Title) Dated -------------------- WRIGHT & McGILL COMPANY 1043 This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a fourth amended charge duly filed on March 6, 1952, by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Delivery Drivers, Warehousemen and Helpers, Local Union No. 435, affiliated with American Federation of Labor, herein called the Union, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel and the Board, by the Regional Director for the Seventeenth Region (Kansas City, Missouri), issued his complaint on March 10, 1952, alleging that Wright & McGill Company, herein called Wright-McGill, and A. D. McGill and S. M. Wright, co-partners, d/b/a Sharp Point Fish Hook Company,' herein called Sharp Point,' had engaged in, and were engaging in, unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, herein called the Act. Copies of the complaint and the fourth amended charge, together with notice of hearing thereon, were duly served upon Respondents and the Union. With respect to the unfair labor practices, the complaint, as amended at the hearing, alleged in substance that Respondents (1) since on or about September 1, 1951,3 by means of certain stated acts and conduct interfered with, restrained, and coerced their respective employees in the exercise of the rights guaranteed in Section 7 of the Act and (2) for the purpose of discouraging membership in, or activity on behalf of, the Union, discharged 12 named em- ployees on certain stated dates during September and October, and for the same reasons failed to reinstate a substantial number of them. Respondents duly filed a joint answer denying the commission of the alleged unfair labor practices. Pursuant to notice, a hearing was duly held in Denver, Colorado, from March 24 through April 1, 1952, before the undersigned, the duly designated Trial Examiner. The General Counsel and Respondents were represented by counsel, the Union by an official thereof. Full opportunity was afforded the parties to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the conclusion of the General Counsel's case-in-chief, the undersigned granted Respondents' motion to strike the testi- mony of Virginia Banks with respect to a certain conversation she had with Al Zimmerman. At the conclusion of the taking of the evidence, the under- signed granted the General Counsel's unopposed motion to conform the plead- ings to the proof with respect to minor inaccuracies. Respondents' counsel then moved to dismiss the complaint for lack of proof. Decision thereon was reserved. The motion is disposed of in accordance with the findings, conclu- sions, and recommendations hereinafter set forth. Oral argument was then had in which counsel for Respondents and the General Counsel participated. The parties were then advised that they might file briefs with the undersigned on or before April 21, 1952' A brief has been received from counsel for Respondents which has been carefully considered. 1 The name of Paul A. Nelson was erroneously included in the complaint and in certain other formal papers as being a member of the partnership of Sharp Point. 2 Collectively Wright-McGill and Sharp Point are called herein Respondents. 8 Unless otherwise noted, all dates refer to 1951. 4 At the request of Respondents' counsel the time was extended to May 1, 1952. 1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESSES OF RESPONDENTS Wright & McGill Company, a Colorado corporation, has its principal offices and place of business in Denver, Colorado, where it is engaged and during all times material herein has been engaged in the manufacture, sale, and distribu- tion of artificial flies, snelled hooks, and kindred fishing equipment. During 1951, Wright-McGill purchased raw materials and equipment valued in excess of $100,000 of which approximately 75 percent represents out-of-State purchases. During the same year its out-of-State shipments aggregated about $50,000. Sharp Point Fish Hook Company, a copartnership consisting of A. D. McGill and S. M. Wright, has its principal offices and place of business in Denver, Colorado, where it is engaged in the manufacture and sale of fishhooks, and in the building of machinery necessary to the manufacture of fishhooks. During 1951 Sharp Point's out-of-State purchases of raw materials and equipment amounted to about $75,000. During the same year, about $50,000 worth of its products were shipped to points located outside the State of Colorado. Upon the above undisputed facts, and the record as a whole, the undersigned finds that during all times material herein each Respondent was, and now is, engaged in commerce within the meaning of the Act. IT. THE ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Delivery Drivers, Warehousemen and Helpers, Local Union No. 435, affiliated with American Federation of Labor, is a labor organization admitting to membership employees of each Respondent. III. THE UNFAIR LABOR PRACTICES A. Introduction Stanley M. Wright is president of Wright-McGill, A. D. McGill is vice president, and Mary Kline is treasurer. Wright and McGill are partners and the sole owners of Sharp Point. All the latter's manufacturing operations are performed at 1463 York Street, Denver, Colorado, where Wright-McGill has its main offices and many of its operating departments. Virtually all the fishhooks manufactured by Sharp Point are purchased by Wright-McGill. On behalf of the latter concern, McGill and Kline interview and hire applicants for jobs. In some instances, the satisfactory applicant is hired by Sharp Point and at other times by Wright-McGill. While separate pay- roll and personnel records are kept by Sharp Point and Wright-McGill, the cleri- cal employees thereof are "usually" carried on the Wright-McGill payroll. On occasions employees of Sharp Point are transferred to Wright-McGill and vice versa. B. Interference, restraint, and coercion 1. The pertinent facts About June 1, 1951, Mary Ferrell, a Wright-McGill employee, contacted the Union for the purpose of inducing it to organize the employees here involved and during the ensuing few months she discussed unionization with her coworkers. WRIGHT & MCGILL COMPANY 1045 As some of the employee-witnesses credibly testified "rumors" were current In the plant during the summer to the effect that the Union was attempting to organize the employees. That Respondent had knowledge of this activity is evidenced by the undenied and credible testimony of Stanley Williams who testi- fied that in or about August he overheard a conversation wherein Foreman Joe Laulinger asked employee Mitchell, "How's the Union, Mitchell" and Mitchell replied, "Well, I guess It's going pretty good as far as I know."' The Union, however, did not commence an active organizational campaign until September because it wanted to await Respondents' busier season, when more persons would be hired, and because it first wanted to ascertain whether the employees actually desired unionization.' During that month, Ferrell, aided by employee Ernest Bingham, intensified her efforts on behalf of the Union by visiting the employees at their homes where she discussed union membership. On September 15 Williams signed a union-authorization card and handed it to Ferrell. On the same day, Banks gave Ferrell her signed authorization card. Two days later Banks was laid off, purportedly for business reasons, and on September 18 Williams was laid off for the same purported reasons. About 15 minutes before noon on September 22, Wright entered Wright-McGill's nylon coiling department and told the forelady thereof, Mary Endicott, to lay off the extra help and only keep the good workers and those "loyal to the Com- pany" to which direction Endicott replied, "that is a good idea." Shortly before noon that day, September 22, Banks, Alex Rein, a then business agent of the Union, and two other union representatives appeared at the plant's entrances and, as the employees were leaving the plant, handed out union hand- bills. Almost immediately after the distribution began Wright, McGill, and the latter's brother, L. S. McGill, the foreman of Wright-McGill's shipping depart- ment, came out of the plant and took positions near the distributors. For about 20 minutes, while the bulk of the employees were leaving the plant, Wright stood within 2 feet of Banks' right, while she was attempting to give handbills to the employees, and McGill stood about the same distance to her left' Wright then returned to the plant. McGill, however, remained for about an hour or an hour and a half sitting on a railing near where Banks was distributing handbills! Throughout the several hours Rein was distributing handbills, L. S. McGill, after engaging Rein in a short conversation, remained alongside of Rein even when Rein would walk back and forth in front of the plant handbilling the em- ployees. According to Rein's credited and undenied testimony, L. S. McGill, in a defying manner, looked at each employee as the employee took a handbill from Rein. Rein further credibly testified without contradiction that he handed a handbill to Foreman Walter Reynolds, who, after reading it, crumpled it and threw it away ; that Reynolds then spoke to L. S. McGill about the disadvantages which would flow from the plant's unionization ; and that when Reynolds saw two employees take handbills, Reynolds said to them, "if [you] were smart [you would] do the same thing [I] did with [mine], and that [is] to throw" the hand- bills away. Contrary to Respondents' contention in their brief, the undersigned finds that Laulinger and Mitchell were referring to the Union here involved for no other union was being "rumored" around the plant at the time of the aforesaid conversation. "The Union's 1942 campaign to organize Wright-McGill 's employees was unsuccessful. ' Due to positions taken by Wright and McGill, Banks was able to hand out only about five handbills. 8 Because the employees ' working hours were staggered the distribution covered a ,period of several hours. 250983-vol. 102-53-67 1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gladys O'Canna testified that upon leaving the plant on September 22 she was given a handbill and an authorization card by Banks ; that as she stood reading them A. D. McGill asked her what she intended to do with the authorization card ; that she replied that she did not know ; that McGill then asked, "Are you going to mail it?" to which she again replied that she did not know ; and that McGill then remarked, "You'd better not." McGill testified that he could not remember seeing O'Canna on the day of the handbilling. After much prodding by Respondents' counsel, he finally testi- fled that he did not see nor talk to her that day. Respondents' counsel argued that since O'Canna was a deaf mute, it was not possible for her to hear what, if anything, McGill might have said to her that day. Counsel, however, overlooks the fact that O'Canna, to a certain extent, is a lip reader. In the light of the entire record, including the general consistency of O'Canna's testimony coupled with other facts in the case which are either undisputed or otherwise clear, the undersigned is convinced and finds O'Canna's version of what tran- spired and what was said by her and McGill on September 22 to be substantially in accord with the facts. Employee Lauren Vernen ° testified without contradiction and the undersigned finds, that on the morning of September 24, while he was talking to another employee about the latter signing a union-authorization card, Foreman Reynolds walked up to them and said, "I'd advise you not to say anything like that around here" ; that thereupon the other employee walked away ; and that Reynolds then said, ... if the Union did [come] in, why we'd lose our vacations and we'd lose our bonuses, and other privileges that we do have . . . at the plant, and that we would get less hours and as far as the Wage Stabilization Board was concerned, our wages could not be raised whether the Union was there or whether it was not. That afternoon, September 24, McGill, under the erroneous assumption that Daniel Marques was a supervisor, invited him to attend a foremen's meeting. McGill opened the meeting and read from a prepared statement. During the course of McGill's reading, Wright broke in several times. According to Marques' credited testimony, Wright said on one occasion that if the Union successfully organized the Respondents' plant, the employees' customary Christmas bonuses might be eliminated. Marques further testified, and the undersigned finds, that Wright also said at that meeting, "if we see anybody in groups talking about Union, we have no alternative but to release them." At the conclusion of the aforesaid foremen's meeting, Reynolds, accompanied by Marques, returned to their department. There Reynolds told Vernen, his brother, Leland Vernen, and Assistant Foreman Johnson that he and Marques had attended a foremen's meeting; that, through error, Marques had been in- vited instead of Johnson ; that the foremen were told, among other things, "they should find out who was the best men in their department and the feelings of those men towards the Union, whether they were in favor of it or whether they were against It"; and that the foremen were instructed to ascertain what employees had received union-authorization cards and to advise those admitting receiving them that it was not important to immediately return the cards to the Union (presumably signed) since Respondents believed they could "straighten out things" In their own way. • Also referred to in the record as Lauren Vernon. WRIGHT & McGILL COMPANY 1047 2. Concluding findings It is manifest from the above recital of the credible evidence that Respondents, and each of them, in violation of Section 8 (a) (1) of the Act, interfered with, restrained, and coerced their respective employees in the exercise of their right to self-organization guaranteed by Section 7 of the Act. The testimony, sum- marized above, upon which this finding rests, is mostly undisputed. Thus, it is not denied that Foreman Reynolds told Lauren Vernen on September 24 that if the Union came into the plant the employees would lose their bonuses and other privileges and that those employees seen "in groups talking about Union" would be released from their employment ; that at the September 24 foremen's meeting, the foremen were instructed to ascertain the "feelings" of certain employees with respect to the Union and to advise the employees admitting receiving union- authorization cards not to immediately return the cards to the Union because Respondents believed they could "straighten out things" in their own way ; that Wright and the two McGills kept under surveillance the distribution of the union handbills ; that Reynolds told two employees that if they were smart they would do as he did and throw away the union handbills ; and that Wright, in Marques' presence, stated at the 'September 24 foremen's meeting that if the Union success- fully organized the plant, the employees' customary Christmas bonus might be eliminated. Furthermore, although disputed, the record is clear that McGill told O'Canna on September 22 that she had "better not" mail an authorization card to the Union. C. The discriminatory discharges 1. Pertinent facts On Monday, September 17, about an hour before quitting time, McGill called Banks into his private office and, in the presence of Wright, informed Banks that he was going to let her "go." When Banks asked whether she was being dis- charged because her work was unsatisfactory, McGill replied in the negative, adding that the reason for the discharge was because, to quote from Banks' credible testimony, "we are getting in a poor grade of steel at present and we just can't continue to make hooks which rust." Banks then inquired whether she could not be transferred to another depart- ment, as was Sharp Point's custom in the past 10 McGill replied there was no opening for her. When Banks asked, "Well, then, why did you hire a woman this morning [for] the stockroom" when you could have transferred me," McGill and Wright each replied that he did not know of such new hiring. Banks then stated that such was the fact "because I happened to be in the stockroom when [the new employee] was told to hang [up] her coat." To that statement Wright and McGill merely remarked that they would look into the matter of the new hiring. Banks then asked if she could not be transferred to the lure department, adding that she knew there was an opening there because the foreman of that depart- ment had said so, that her then foreman, Paul Mount, had asked her the previous week if she knew of anyone who desired a job, that she had informed her daughter of the opening, and that her daughter had intended to take the job but that her daughter declined it when her daughter received a raise in wages at the place where she was then employed. Neither McGill nor Wright made any comment with respect to Banks' remarks about the opening in the lure department. 10 Banks' employment commenced on March 22 , 1947. She had been employed mainly in the eying department. She also performed work in the sorting room and also worked in the department which made artificial lures. 11 The stockroom is also called the sorting room. 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In response to Banks' statement that there were sufficient unfilled orders to keep her busy for over a month, McGill said he was going to discontinue the man- ufacture of large hooks because of the poor grade of steel Sharp Point had been receiving. The discussion ended when Banks requested and was promised a letter of recommendation. The next day, Banks called at the plant and informed the information clerk that she came to get a letter of recommendation and therefore would like to see either McGill or Wright. The information clerk left her desk and when she returned told Banks that both McGill and Wright were engaged and neither could see her. Banks then stated to the clerk that she was going to California and would like to have the letter. The clerk again left her desk and when she returned told Banks to wait for the letter. The letter handed to Banks reads as follows : To Whom it May Concern : This is to advise that Virginia Banks has worked for us for several years. We have always found her honest , industrious and a good worker in all respects and it is with regret that circumstances beyond our control make it necessary that she has to sever connections with us. Wright & McGill Company By A. D. McGill At the hearing, McGill testified that Banks was laid off because "We were heavily overstocked on fish hooks of all sizes, and especially the large sizes" and because "we had had serious complaints" regarding the fishhooks rusting, which he said was "probably due to defect in the steel wire " Sharp Point had been receiving. McGill also testified that Banks' termination was also due to the fact that "orders had slowed up on our large hooks materially." On September 18, Williams, who had been in Sharp Point's employ for about 10 years, except for the 2 years he was in the Armed Forces during World War II, was told by McGill, "Well, it looks like we are going to have to lay you off" because a large quantity of large hooks had been returned and "we are losing money on account of the returns." In response to Williams' statement that he was only temporarily replacing an employee in the eying department and there- fore the defective work could not be attributed to him, McGill merely stated, "We are cutting forces and we will have to let you go." When Williams re- minded McGill that he "had been a faithful employee-with 10 years' seniority," the latter replied, "Well, in Wright-McGill plants seniority don't mean" any- thing. McGill admitted, however, according to Williams, that Williams had been a faithful employee and "a crackerjack of a worker." About 10 days after his termination, Williams returned to the plant shortly belore quitting time for the purpose of straightening out his social-security records, insurance, and other matters. After concluding his business , Williams went Into one of the operating departments . While Williams was waiting for an employee named Al, who had already finished his day's work, to change his clothes, McGill came into the department and asked Williams what he was doing there. When Williams replied that he was waiting for Al to change his clothes, McGill stated, "You shouldn't be here." Thereupon Williams left the plant. He later met Al outside of the plant and the two proceeded to a nearby tavern. While drinking their first beer, McGill and Wright "stormed in the door-and ordered Al to come out. ..." Both McGill and Wright then repri- manded Al for drinking beer on company time. When Al explained that he had finished his day's work, McGill and Wright stated, "it looked bad for the Com- pany for an employee to drink beer." The undersigned is convinced, and finds, WRIGHT & MCGILL COMPANY - 1049 that McGill and Wright engaged in this unusual behavior because they knew Williams was a union adherent and that they feared that he might induce Al to support the Union's cause. Williams further credibly testified that his work was never adversely criti- cized; that Supervisor Jack Wolf said on the occasion when Wolf asked him to replace employee Mullins, "I think you are a good man for the jab. Would you please come upstairs right now. . . . Come up and get us out of the hole, we are 90 days behind the orders and we are losing business" ; that Foreman Laulin- ger said to him about 2 months before his termination, "Carl James is on vacation. You are the only one in this department ... that understands [James' job]. Would you be kind enough to go over and run it for us because we need the hooks." In an attempt to prove that Williams was a careless and inefficient worker, Respondents called Arthur E. Mullins as a witness. Mullins, a nonsupervisory employee, testified that some unnamed operators in the nylon coiling department had complained to management on several occasions regarding Williams' in- ability to properly repair the machines and he was called upon to repair them. Mullins' testimony is far from convincing and it certainly does not overcome or rebut the heretofore summarized positive testimony of Williams. Furthermore, McGill, who was in the hearing room throughout the hearing, did not deny the comments attributed to him by Williams regarding the quality of Williams' work, although he testified that Williams did not properly adjust the machines in the nylon coiling department and since "he was the youngest man adjusting machines in that department and we had a drop in business on nylon coiling and we had no need for two men in that department on adjusting the machines," we transferred Williams to another department. Under the circumstances, the undersigned rejects testimony of McGill and Mullins regarding Williams' work- manship and finds that Williams was a capable and efficient workman. On October 2 Alice Engel, who had been a Wright-McGill employee since 1946 and for approximately 41/. years immediately prior to October 2 had worked in the fly department under the supervision of Lucille Oliver, was discharged. Engel credibly testified without contradiction that about an hour before quitting time on the day of her discharge, Oliver told her, after mentioning, to quote Engel, "some silly stuff that I had been talking about her," that she was being discharged because she was dissatisfied with her work ; that she replied that she was dissatisfied simply because she did not consider it fair that new employees should receive as their starting rate the same rate paid her despite her 5 years of service ; that before leaving the plant that day she was told that a check for the wages due would be mailed to her ; that she returned to the plant about a week later because she had not received the promised check even though she had twice telephoned the plant for it ; and that before McGill gave her the check he attempted, but without success, to induce her to sign a card attesting to the fact that she had not been discharged but had voluntarily terminated her employment. Engel further testified, and the undersigned finds, that she was not satisfied with her job because of the low pay she had been receiving and the unlikelihood of her earning more money at Wright-McGill; and that she had told other em- ployees of her dissatisfaction, several of whom were likewise dissatisfied with their jobs. At the hearing, Respondents' counsel stated on the record "the company's reason for laying [Engel] off is that she laid off herself, she got in a fight with Lucille [Oliver] just like she said she did." With due deference to Respondents' counsel, the record is absolutely devoid of any evidence that Engel had a fight with Oliver. 1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned is convinced, and finds, that the reason given Engel for her discharge (dissatisfaction with her work) was not the real reason for her termination but was a manufactured one based solely upon a comment Engel made at the time she was handed a union handbill on September 22, and which 'comment L. S. McGill undoubtedly overheard. Regarding the remarks she made at that time" Engel credibly testified that she said to the person handing her the leaflet, "it was a good thing they were getting the union in there, maybe we'd get more money . . . the company could afford it." McGill testified that when Engel returned to the plant for her check, he asked her why she "was leaving us"; that Engel replied she was "dissatisfied with the flies that were given her to tie, and that she had had a misunderstanding with the floorlady and she considered herself discharged" ; that he told her he did not consider her discharged because he had spoken to Oliver, "and that wasn't the understanding of [Oliver], that she was discharged"; and that he then stated to Engel she could return to her department and work there or work elsewhere in the plant. Upon the entire record in the case, the undersigned finds Engel's version of the above-mentioned interview with McGill to be substantially in accord with the facts. This finding is buttressed not only by the plausibility of Engel's testimony, when consideration is given to the surrounding circumstances, but also by the fact that Engel impressed the undersigned as an honest, sincere, and forthright witness, while McGill did not so impress the undersigned. About 45 minutes after Engel had been discharged, Sharp Point laid off 5 sorting room employees, namely, Lucille Miller,' Adeline H. Benedict, ° Vera Giffin,' Mildred M. Peterson,16 and Ruth Wonn" At the same time Gladys O'Canna "a and Geraldine Horkans,'° who worked in the same sorting room but were Wright-McGill employees, were laid off. Paul Mount, the foreman of the sorting room, told each of the aforesaid seven persons when he laid them off, according to the credible evidence, that the reason therefor was lack of steel. In an effort to substantiate the neces- sity for the layoffs, Mount showed Miller, Wonn, and Peterson certain record books containing orders which Mount claimed could not be filled because of the shortage of steel. When queried by one of the employees as to the length of the layoff, Mount stated that there was sufficient steel on hand to last until the first of the year and if additional steel was received the employees would then be recalled. At the hearing, Wright, McGill, and Mount testified that the sorting room employees laid off were selected solely on a seniority basis, and each denied that union membership or activities of those laid off played any part in their determination in making the selection. In fact, McGill denied that he had any knowledge that the Union was endeavoring to organize the Sharp Point employees until he was so advised by Wright sometime in the latter part of 13 L. S. McGill was standing about 15 feet from Engel when she made the remark. "Miller was first employed in November 1949. In August 1950 she quit and was rehired the following November 6. is Benedict did not testify, but her personnel record indicates that she was originally emlloyed on March 17, 1947, and that her employment was not continuous. 'a Giffin's employment started on September 17, 1951. Peterson's employment started on January 10, 1951. i4 Wonn worked from the last part of 1949 until March 22, 1950, and then continuously from September 27, 1950. 1s O'Canna worked January 27 until May 7, 1950, from the fall of that year until the following February 24, and from September 11951 until her layoff. " Horkans , also referred to in the record as Geraldine Horkins , did not testify. Her personnel record indicates that her employment with Wright-McGill started March 26, 1951. WRIGHT & MCGILL COMPANY 1051 November. He testified that he was led to believe that the Union was or- ganizing only the Wright-McGill employees because the September 22 handbills were addressed to them, plus the fact that the original, the first amended, and the second amended charges filed herein alleged violations by Wright-McGill only. Such testimony clearly demonstrates McGill's complete lack of candor as a witness, for admittedly the record reveals that on September 24 McGill and Wright addressed a joint meeting of Wright-McGill and Sharp Point foremen and instructed them regarding the part they were to play in the employees' unionization plans. Moreover, the original charge, which was received by Wright-McGill on October 5, alleged that 4 named persons were discriminatorily discharged, 3 of whom were Sharp Point employees. Wright testified that the sorting room layoffs were due primarily to (1) lack of orders, (2) overproduction, and (3) "the people in that department weren't doing as good a work as expected." McGill testified that the seven employees in the sorting room were laid off because (1) "We were very heavily overstocked on hooks. In fact, our in- ventory on hooks was almost double what it normally should be" and (2) that department was overstaffed "for the amount of business that we were doing." Mount testified that the layoff was due to (1) overproduction, (2) lack of storage space, and (3) decrease in orders. The Respondents' accountant, Clifford W. Kirkley, testified in support of Re- spondents' contention that the aforesaid layoffs were due to business reasons. In the course of his examination, there was received in evidence certain statis- tical information showing the monthly sales, production, and inventory for 1950 and 1951. No information was offered, however, through Kirkley, or otherwise, with respect to the orders on hand for 1950 and 1951. Mary Ferrell commenced her employment with Wright-McGill on February 3, 1950, and worked continuously in the nylon coiling department, except for two brief periods when she worked in the fly department. On October 10 Gladys O'Canna, who had been laid off on October 2, returned to the plant. While there, she was told by Forelady Endicott and 3 nonsuper- visory employees that she should go into Ferrell's department and tell Ferrell "off." O'Canna, accompanied by Endicott and the 3 employees, went into Fer- rell's department. Regarding what there transpired in the presence of Endicott and the 3 employees, Ferrell credibly testified as follows : Q. And what did she (O'Canna) say? A. She said, "Why did you tell me to sign that Union card so I could lose my job?" And I said, "Well, Gladys, you will be able to come back to work." And she said, "No, I won't. Mr. McGill said never because I signed the Union card," . . . I hope you lose your job and can't find another one." . . . I can't find another job." I said, "Well, Mr. Rein [the Union's business agent] will find you a job." And she said, "No, he won't." In order to refute the testimony of Ferrell and O'Canna regarding the above- described incident, Respondents called Patsy Brewer as a witness. Brewer, who like O'Canna is deaf, testified that Endicott was not present when she and two other employees advised O'Canna to " tell off" Ferrell, nor was Endicott present when O'Canna did "tell off" Ferrell. Mullins also testified that he did not see Endicott leave her department on October 10 prior to O'Canna coming into it. Mullins' testimony, with respect to the O'Canna-Ferrell incident, is as unconvincing as his testimony regarding Williams and hence the undersigned does not credit it. Likewise, Brewer's testimony is not credited because heir 1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD demeanor while on the witness stand clearly indicated to the undersigned that she was not telling the true facts.20 At the conclusion of the O'Canna-Ferrell incident, Endicott took O'Canna to McGill's office where, in Endicott's presence, the following ensued, according to O'Canna's credible and undenied testimony : Q. What was said to you by Mr. McGill? A. Well, I told him I had mailed the union card without knowing what would happen and he said, "Well, we all like you here and I think you will be coming back with us in a short time." Q. Yes? A. And I asked him why they hadn't fired Mary Ferrell along with the rest of us because she was the one ... who started it all, and he said they probably wouldn't be having her with them much longer ... he told me to just sit tight until they called me back to work. On Saturday, October 13, while at home, Ferrell cut her hand. The following Monday, Ferrell telephoned the plant, explained her accident, and stated that she probably would be away for the entire week. Upon receiving her doctor's permission and assurance that she could return to her job, Ferrell went to the plant on October 22 and informed Endicott that she was ready to return to work. Endicott, who left Ferrell in order to obtain a check for Ferrell, evidently reported Ferrell's presence to McGill, for upon En- dicott's return, she told Ferrell that McGill would like to see her. Ferrell fol- lowed Endicott's suggestion and went to McGill's office, where the following, ac- cording to Ferrell's credible testimony, transpired : ... [McGill] said he'd like to see my hand, so I removed the bandage and showed it to him and he said, "My, you have an awful hand. You won't be able to work for a long time." And I said, "Well, my doctor told me I could come back to work." And he said, "You might get lockjaw or some infection from the dye, you might lose a finger that way, you shouldn't come back to work for a long time." And then he called Mr. Wright in and Mr. Wright said, "Oh, no, you shouldn't come back to work with a hand like that," he said, "besides that we don't have any orders. ... You keep in touch with us and we will call you back." About 3 weeks after the aforesaid interview with Wright and McGill, Ferrell telephoned Endicott and informed Endicott that her hand was completely healed and she would like to return to work. Endicott replied, "We don't have any orders at all." When Ferrell asked whether Endicott would recall her when new orders came in, Endicott replied in the af$rmative ; whereupon Ferrell gave Endicott her telephone number. Ferrell has not been recalled. 2. Concluding findings Respondents contended at the hearing and in their brief that the General Counsel's case falls with respect to the discharges because he did not prove that Respondents had actual knowledge of the union membership or activities of the complainants prior to their respective discharges. This contention is with- out merit except as to Bingham and Benedict n The credible and undenied testimony reveals that Foreman Laulinger was aware of the Union's organizational activities in or about August, that these 20 It is significant to note that, although Endicott and the two nonsupervisory employees are not deaf, they were not called as witnesses. 21 The cases of these two employees are discussed more fully below. WRIGHT & McGILL COMPANY 1QW activities were "rumored" about the plant throughout the summer months, and that McGill knew Ferrell was the leader of the Union in the plant before she was discharged. The record reveals, moreover, sufficient facts upon which an inference of dis- crimination may reasonably be drawn that Respondents knew of the union activities of all the dischargees (except Bingham and Benedict), i. e., dis- charging only persons who had signed union-authorization cards and not dis- charging persons not signing such cards, Respondents' failure adequately to explain this phenomenon, and Respondents' opportunity to discover the identity of those signing authorization cards. Indeed, even if a specific finding could not be made based upon the direct evidence that Respondents had actual knowl- edge of the union activities of the dischargees in question, the other facts found, in and of themselves, reasonably justify the inference that Respondents were motivated by union considerations in selecting the employees to be terminated. In N. L. R. B. v. Link Belt Co., 311 U. S. 584, there was no direct evidence as to the employer's knowledge of the union membership or activities of the dis- charged employees. The Court nonetheless sustained the inference of discrim- ination, declaring at page 602: The Board was justified in relying on circumstantial evidence of discrim- ination and was not required to deny relief because there was no direct evidence that the employer knew these men had joined the Amalgamated and was displeased or wanted to make an example of them. Also, in N. L. R. B. v. Chicago Apparatus Co., 116 F. 2d 753 (C. A. 7), the court sustained the Board's finding of discrimination despite the fact that it did not appear from the direct evidence that the employer knew that the employee was a member of the union there involved." Where, as here, an employer operates a comparatively small plant, it is reasonable to infer that the employees' union activities soon come to the attention of the employer." Upon the entire record, moreover, a finding is justified that Respondents selected the complainants, except Bingham and Benedict, for discharge on a discriminatory basis. That a grossly disproportionate selection of union adher- ents for layoff is persuasive of a discriminatory plan has been repeatedly held by the courts." It was therefore incumbent upon Respondents to offer adequate proof negating the inference that the employees had been selected to be laid off on a discriminatory basis. Respondents failed to do so. In the face of the persuasive evidence of discrimination, coupled with the fact that the dischargees here found to have been discriminated against were, in most instances, admit- tedly excellent workers and of long tenure, there can be no question of Respond- ents' duty to go forward with probative evidence of refutation.' No plausible explanation whatever was offered by Respondents other than that business reasons compelled the reduction in force. With respect to the sorting room employees, Respondents maintained that the reduction was made according 32 See also F. W. Woolworth Co. v. N. L. R. B., 121, F. 2d 658 (C. A. 2). n See Angwell Curtain Company, Inc. v. N. L. R. B., 192 F. 2d 899 (C. A. 7) ; N. L. R. B. T. Abbott Worsted Mills, Inc., 127 F. 2d 438 (C. A. 1) ; Quest-Shon Mark Brassiere Co., 80 NLRB 1149; Kallaher and Mee, Inc., 87 NLRB 410; F. W. Woolworth Co., 90 NLRB 289. 24 F. W. Woolworth Co. v. N. L. R. B., supra; Hamilton-Brown Shoe Co. v. N. L. R. B., 104 F. 2d 49 (C. A. 8) ; N. L. R. B. v. Bachelder, 120 F. 2d 574 (C. A. 7) ; Montgomery, Ward A Co., Inc. v. N. L. R. B., 107 F. 2d 555 (C. A. 7) ; Agwilines, Inc. v. N. L. R. B., 87 F. 2d 146 (C. A. 5). 25 N. L. R. B. v. Remington Rand, Inc., 94 F. 2d 862 ( C. A. 2) ; Montgomery Ward & Co. Inc. v. N. L. R. B., supra. 105 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to seniority. However, when Mount's attention was called to the retention of his sister-in-law, Shirlee Mae Fancher, who presumably had less seniority than Wonn, Miller, or Peterson, he testified that Faucher was retained because she did some stenographic work. Moreover, when Williams requested McGill to consider his 10 years' seniority in the plant, McGill brushed the request aside by saying, "in Wright-McGill plants seniority don't mean" anything. In view of the inadequacy and inconsistencies of Respondents ' explanations for the discharges found herein and Respondents ' unconcealed antiunion hos- tility, coupled with the unreliable evidence regarding its claimed loss of busi- ness, a finding is clearly warranted that the employment of Banks, Williams, Engel, Wonn, Miller, Peterson, O'Canna, Giffin, Horkans, and Ferrell was terminated because of their union activities and sympathies . In N. L. R. B. v. May Department Stores Co., 154 F. 2d 533 ( C. A. 8), the court said at page 538, regarding a situation similar to the one presented here, that there is a "broad scope of inference open ... on questions of motive and discrimination, where the evidence indicates a desire to thwart or nullify unionization efforts, either generally or as to a particular employee -organization." And where, as here, the employer has shown strong opposition of its employees' unionization "a very convincing case of discharge for cause would have to be made to make unreasonable a conclusion that [the] discharge was because of union affiliation." 26 The shifting and unsupported grounds assigned by Respondents for selecting the complainants ( except Bingham and Benedict ) for termination are further persuasive indications that antiunion reasons rather than the reasons asserted by Respondents accounted for the selection 22 Upon the entire record in the case, the undersigned finds that Wright-McGill discriminatorily discharged Alice Engel, Gladys O'Canna, Geraldine Horkans, and Mary Ferrell, and that Sharp Point discharged Virginia Banks, Stanley Wil- liams, Vera Giffin , Mildred Peterson , Lucille Miller, and Ruth Wonn in violation of Section 8 (a) (3) of the Act, thereby discouraging membership in the Union and interfering with, restraining, and coercing their respective employees in the exercise of the rights guaranteed in Section 7 of the Act. D. The alleged discriminatory discharges According to Ernest Bingham's personnel record, he worked continuously for Sharp Point from April 1, 1946, until October 1, 1951, at which time be was discharged. Wright testified without contradiction, 28 and the undersigned finds, that about a week before Bingham was discharged he saw Bingham talking to the female packing room operators ; that he reprimanded Bingham for doing so during business hours ; that several days later he saw Bingham sitting on a desk when Bingham was supposed to be working ; that he reprimanded Bingham for loafing during working hours ; and that when he again saw Bingham loafing, "just as he had been [doing] the other mornings," he discharged Bingham after he had 28Dannen Grain and Milling Co. V. N. L. R B., 130 F. 2d 321, 328 (C. A. 8). N The courts have frequently recognized that shifting explanations by an employer for the discharge of an employee may warrant an inference that the true reason was the employer's hostility to the union. See N. L. R. B. v. Crystal Spring Finishing Co., 116 F. 2d 669 (C. A. 1)^; N. L. R. B. v. Gail Towne Mfg. Co., 114 F. 2d 376 (C. A. 2) ; N. L. R. B. V. Condenser Corp., 128 F. 2d 67 (C. A. 3).; N. L. R. B. v. Eclipse Moulded Products Co., 126 F 2d 576 (C. A. 7). And this is so even where the employer has "plausible grounds" for the discharge. United Biscuit Co . v. N. L. R. B., 128 F. 2d 771, 776 (C. A. 7). 28 Bingham did not testify. WRIGHT & McGILL COMPANY 1055 inquired of Bingham's superior whether Bingham had been loafing on the job and had received an affirmative reply. The undersigned is not unmindful of the fact that Bingham was one of the most active union adherents and that the reason noted on Bingham's personnel record for the discharge is, "Lack of work, reducing force." Nevertheless, the undersigned is of the opinion, and finds, that there is insufficient evidence in the record to sustain the allegations of the complaint that Bingham was discrim- inatorily discharged. Accordingly, the undersigned will recommend that the complaint as to Ernest Bingham be dismissed. The only evidence with respect to Adeline Benedict's employment" with Sharp Point is that it commenced on March 17, 1947; that her employment was broken sometime prior to July 3, 1947; and that on the latter date she was rehired and thereafter worked continuously until October 2, 1951. Upon Benedict's personnel card the following appears : Sickness at home. Work was O. K. Would rehire. Very good worker. Had to leave on account of sick boy. Since there is no evidence (1) that the above-quoted notation referred to Benedict's 1947 separation or to her 1951 separation, or (2) that Benedict signed an authorization card or otherwise engaged in any union activities, or (3) that Sharp Point suspected Benedict of being active in, or sympathetic toward, the Union's efforts to organize Respondents' plant, prior to October 2, 1951, the undersigned finds that the evidence is insufficient to warrant a finding that Benedict was discharged in violation of the Act. Accordingly, the undersigned will recommend that the allegations of the complaint with respect to Adeline Benedict be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in con- nection with the operations of Respondents as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and such of them as have been found to constitute unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents, and each of them, have engaged in unfair labor practices violative of Section 8 (a) (1) and (3) of the Act, the undersigned will recommend that they, and each of them, cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Wright-McGill has discriminated in regard to the hire and tenure of employment of Gladys O'Canna, Alice Engel, Geraldine Horkans, and Mary Ferrell, the undersigned will recommend that Wright-McGill offer each of them immediate and full reinstatement to their former or substantially equiva- lent position,* without prejudice to their seniority or other rights and privileges. The undersigned will also recommend that Wright-McGill make the aforesaid four named persons whole for any loss of pay they may have suffered by reason of Wright-McGill's discrimination against them, by payment to each of them of a sum of money equal to the amount she would have earned as wages from the date 'B Benedict did not testify. 10 See The, Chase National Bank of the City of New York, ,an Juan, Puerto Rico, Branch, 65 NLRB 827. 1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of her respective discharge to the date of Wright-McGill's offer of reinstatement, less her earnings during said period."' Having found that Sharp Point has discriminated in regard to the hire and tenure of employment of Virginia Banks, Stanley Williams, Vera Giffin, Lucille Miller, Mildred Peterson, and Ruth Wonn, the undersigned will recommend that Sharp Point offer Banks, Williams, Giffin, and Miller immediate and full rein- statement to their former or substantially equivalent positions," without preju- dice to their seniority and other rights and privileges. The undersigned will also recommend that Sharp Point make Banks, Williams, Giffin, and Miller whole for any loss of pay they may have suffered by reason of Sharp Point's discrimina- tion against them, by payment to each of them of a sum of money equal to the amount he or she would have earned as wages from the date of his or her respec- tive discharge to the date of Sharp Point's offer of reinstatement less his or her net earnings during said period. The undersigned will further recommend that Sharp Point make Peterson and Wonn whole for any loss of pay they have suffered by reason of Sharp Point's discrimination against them, by payment to each of them of a sum of money equal to the amount she would have earned as wages from the date of her respective discharge to the date she was reinstated, less her net earnings during said period. Loss of pay shall be paid in accordance with the formula enunciated by the Board in F. W. Woolworth Company, 90 NLRB 289. Having found that there is insufficient evidence in the record to sustain the allegations of the complaint that Ernest Bingham and Adeline Benedict were discriminated against, the undersigned will recommend that the complaint as to them be dismissed. The unfair labor practices found to have been engaged in by the Respondents are of such a character and scope that in order to insure the employees here involved their full rights guaranteed by the Act, it will be recommended that Respondents cease and desist from in any manner interfering with, restraining, and coercing their respective employees in their right to self-organization" Upon the basis of the foregoing findings of fact, and upon the record as a whole, the undersigned makes the following : CONCLUSIONS OF LAW 1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Delivery Drivers, Warehousemen and Helpers, Local Union No. 435, affiliated with 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 their respective employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondents, and each of them, have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By discharging and discriminating in regard to the hire and tenure of em- ployment of Gladys O'Canna, Alice Engel, Geraldine Horkans, and Mary Ferrell, thereby discouraging membership in the Union, Wright-McGill has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (a) (3) of the Act. 4. By discharging and discriminating in regard to the hire and tenure of employment of Virginia Banks, Stanley Williams, Vera Giffin, Lucille Miller, n See Crossett Lumber Co., 8 NLRB 440. 33 Peterson was reinstated on December 18, 1951 , and Wonn on January 14, 1952. ° See May Department Stores v. N. L. R. B., 826 U. S. 376. BLUE PLATE FOODS, INC. 1057 Mildred Peterson„ and Ruth Wonn, thereby discouraging membership in the Union, Sharp Point has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 6. Sharp Point did not violate Section,8 (a) (3) of the Act by discharging Ernest. Bingham and Adeline Benedict, as alleged in the complaint. [Recommendations omitted from publication in this volume.] BLUE PLATE FOODS, INC. and WAREHOUSE EMPLOYEES UNION #322, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN AND HELPERS OF AMERICA, AFL. Case No. 5-CA-578. February 5, 1953 Decision and Order On November 12, 1952, Trial Examiner Ralph Winkler 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 forth in the copy of the In- termediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed. The rulings made by the Trial Examiner are hereby affirmed. The Board has considered the intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Blue Plate Foods, Inc., Richmond, Virginia, its agents, successors, and assigns, shall: 1. Cease and desist from : (a) Threatening to close down its plant or to lay off employees or to remove operations because of union activities, and holding out union benefits to cause employees to desist from union membership and activities. 'Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to.a three -member panel [ Members Houston, Murdock, and Styles], 102 NLRB No. 104.