Acme Boot Manufacturing Co., Inc.

164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment against any employee because of membership in or activity on behalf of any labor organization CROSBY CHEMICALS, INC., Employer. Dated ................. BY............................................................................................. (Representative) (Title) This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced, or covered by any other material ACME BOOT MANUFACTURING COMPANY, INC. and UNITED RUBBER, CORK, LINOLEUM & PLASTIC WORKERS OF AMERICA, CIO. Case No. 10 -CA-1394. May 29, 1953 DECISION AND ORDER On February 26, 1953, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above - entitled proceed- ing, finding that the Respondent had engaged in and was engag- ing 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 Intermediate Report attached hereto. He also found that the Respondent had not engaged in other unfair labor practices alleged in the com- plaint and recommended dismissal of those allegations. There- after, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' The Board 2 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Intermediate Report,4 the Respondent's 1 The Respondent's request for oral argument is hereby denied because the record, includ- ing the Respondent's exceptions and brief, in our opinion, adequately present the issues and the positions of the parties 2 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, Styles, and Peterson]. 3 The Respondent excepted to the Trial Examiner granting the General Counsel's motion that the official papers in connection with the original charge filed on October 23, 1951,-be amended to change the name of the Respondent from "Acme Boot Corporation" to "Acme Boot Manufacturing Company, Inc " The Respondent conceded at the hearing that it had received all papers in connection with this charge, and disclaimed any element of surprise. Accordingly, we find no merit in this exception See Lee E Stine, d/b/a Fairchild Cafeteria, 92 NLRB 809. 4 The Trial Examiner found that the General Counsel failed to prove by a preponderance of the evidence the allegation of the complaint that the Respondent discriminatorily selected Edith Hiett Clark for layoff because of her activities on behalf of the Union As no exceptions have been filed to this finding, we adopt it pro forma. Moreover, as the General Counsel did not except to the Trial Examiner's failure to find that the Respondent interrogated its employees concerning their union activities during the months of June and July 1951, we shall dismiss this allegation. 105 NLRB No 19. ACME BOOT MANUFACTURING COMPANY, INC 165 exceptions and brief , and the entire record in this case,s and finds merit in the Respondent's exceptions for the reasons set forth below. The Trial Examiner found that the Respondent discriminator- ily: (1) Selected Flora Perry, Magga Lee Doty, Maurice Glendon Appleton, Isabel Harrell, Clayton Nosbusch, Gilbert Baggett, Daniel McElroy, and Buford Appleton for layoff in May and June 1951, and thereafter failed to recall them when jobs became available; (2) refused to recall Mildred Richmond to work when positions became available; and (3) discharged Aubrey Gulledge. A. The Respondent ' s layoff and recall policy On September 5, 1946, the Union was certified as the bar- gaining representative of the Respondent ' s employees. Sub- sequent thereto, the Union and the Respondent executed a con- tract which provided: Layoffs and recalls to work after layoffs, shall be governed within each of the several departments, by length of service, ability and qualifications by prior similar ex- perience within the department to perform the work. On April 9, 1948, the Union was decertified. On September 11, 1950, the Respondent circularized a document among its employees which set forth the policy with respect to such matters as grievance procedures, vacations, bonuses, seniority, and leaves of absences. Contained in this "statement of policy" was the procedure governing layoffs which coincided with the above provision in the contract. This statement further provided that seniority would terminate after a layoff of 3 months or more. In November' 1950 it became necessary for the Respondent to cut back production and reduce inventories. As a result, 175 employees were laid off in December 1950 and January 1951. Shortly thereafter, the Respondent consolidated its 2 plants, apparently to reduce duplication of operations. In a letter distributed to its employees under date of February 12, 1951, the Respondent explained the layoffs and stated that "Of course, layoffs were based strictly on seniority." In a subsequent letter to an employees ' committee at the plant, 6 the Respondent stated, in connection with these layoffs, that it s The Intermediate Report contains a number of inaccuracies, some of which will be corrected below. The following minor inaccuracies are hereby corrected: (1) Page 181, lines 51-52, substitute the name Nosbusch for McElroy; (2) page 182, line 37, change the date of the Respondent's statement of policy from September 12 to September 11; (3) page 182, line 45, change the date ofRichmond's layoff from May 19 to May 15; (4) page 184, line 29, page 185, line 8, and page 189, line 46, substitute "charge" for "complaint"; and (5) change the name "Welsh" to "Welch." 61t appears that this committee was established after the Union was decertified in 1948, and acted as the bargaining representative of the Respondent's employees until approximately March 1, 1951. The committee membership included claimant Buford Appleton 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "analyzed each department and laid off those employees with the lowest seniority status," and "if we would have laid off employees on a strictly job seniority basis there would have been a great many of our old employees laid off." After opening a new organizational campaign, the Union in- formed the Respondent on February 8, 1951, that it represented a majority and requested recognition. This the Respondent re- fused on the ground that it doubted the Union's majority. Thereafter, the Union filed a petition, and an election was scheduled for April 20, 1951. After the Union's claim for recognition, the Respondent deferred further layoffs lest they be interpreted as an anti union gesture. During early May 1951, the Respondent's vice president, Cohen, informed General Superintendent Humbert that the desired reduction in inventories had not been achieved, and directed a further cutback of production. This was conveyed to Plant Superintendent Dabbs, who instructed the foremen to make the necessary reductions in their departments. Consequently, 63 employees were laid off in May and an ad- ditional 18 in June. Included were the 10 individuals as to whom the Trial Examiner found discrimination. The General Counsel conceded, and the Trial Examiner found, that the layoffs in May and June, as well as those which oc- curred in the preceding December and January, were economi- cally necessary. The Trial Examiner, however, stated that "According to the oral testimony of the Respondent's witnesses all layoffs at the plant were based strictly upon seniority,"7 and accordingly he found that the Respondent, by laying off and failing to recall certain individuals, violated its "statement of policy," apparently interpreting this "statement" to mean that length of service alone was controlling. He also found that the Respondent disregarded its policy by refusing to transfer these individuals to jobs in other departments held by employees with less seniority. He further found that in rehiring employees when business improved, the Respondent recalled employees laid off in December 1950 and January 1951 in preference to those laid off in May and June 1951, thereby violating its policy that layoffs for 3 months terminated seniority. The Respondent contends that: (1) Ability and qualifications, as well as length of service, were considered in making the May and June layoffs; (2) it had never made it a practice to transfer employees during times of layoffs; and (3) the Re- spondent felt obligated to consider for recall employees who had been laid off in December and January. (1) Humbert testified that under the Respondent's layoff policy, the more efficient operator, rather than the one that had been there longer, was retained, and that the same criterion had always applied to recalls after layoffs. Dabbs, as well as Forelady Pace, corroborated this testimony. As instances of the operation of this policy, Dabbs testified, and the record establishes, that in various departments a number of em- 7 We do not find, as the Trial Examiner apparently did, that the Respondent's brief, filed with the Trial Examiner , offered "verbatim" support for this finding. ACME BOOT MANUFACTURING COMPANY, INC. 167 ployees not identified with the Union were laid off while em- ployees with less seniority in their job classifications were retained. In the light of the foregoing uncontradicted testimony and of all the evidence in this regard, it is difficult to perceive the basis for the Trial Examiner ' s finding that "all layoffs at the plant were based strictly upon seniority ." The Trial Examiner in fact contradicts this finding by basing his dismissal of the complaint as to Clark in part upon "the substantiation given to Dabbs' claim that ability played a part in his decision to lay off Clark." (2) With respect to the Respondent ' s transfer policy, Dabbs testified that the Respondent provided advancement opportuni- ties for individuals seeking them by transfers to better jobs in other departments . If a layoff became necessary in the new department , the transferee must have worked there at least 6 months to avail himself of his overall seniority and compete in that department . A transferee employed in the new de- partment less than 6 months at the time of a layoff was given an opportunity to return to the old department and compete there on the basis of total length of service , ability, and qualifications. No witnesses recalled any transfers during the layoffs in December and January. Neither Thomas Elliott nor Gilford Hall , who had worked as foremen for the Respondent and who testified for the General Counsel, testified that the Respondent transferred employees interdepartmentally at times of lay- offs.8 Accordingly, we are not convinced that the Respondent had a policy of transferring employees with greater seniority to other departments in the event of layoffs.9 (3) The Trial Examiner found that the Respondent violated its "statement of policy" by recalling employees laid off in December and January while failing to recall the alleged disc riminatees . Various employees testified that they believed seniority was lost by a 3-month absence from work . However, as the Trial Examiner noted , Humbert explained the recall of employees laid off in December and January on the ground that "those employees were equally entitled to their jobs because of the fact that they had been employed for some length of time and they must eat like anyone else ." Flora Perry also testified that when she applied for reinstatement , Humbert promised to call her back when openings occurred , and stated that he "had 39 of his old girls and boys that were laid off to call back." gHall testified that employees had been transferred to other departments in January 1951 as a result of the Respondent 's consolidation of its two plants, but this involved transfers between plants rather than interdepartmental 9It should be noted, in this connection , that the Respondent's "statement" provides that "Layoffs , . shall be governed within each of the several departments , by length of service, ability and qualifications by prior similar experience within the department to perform the work" (emphasis supplied) Moreover, all the Respondent 's supervisors, including Elliott and Hall, testified that seniority operated on both a departmental and job basis . None contended that seniority operated plantwise 291555 0-54-12 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While the Respondent did not adhere to the 3-month rule in recalling employees, we are unconvinced that its departure from this rule was motivated by antiunion considerations. The record discloses that several employees laid off in May and June who had greater seniority than the alleged discriminatees and were not shown to be connected with the Union were not recalled while employees laid off in December and January were, and that employees laid off in May, who were identified as union adherents, were recalled after 3 months while other employees laid off less than 3 months, who were not connected with the Union, were not rehired. On the basis of the foregoing, and the entire record, we find, contrary to the Trial Examiner, that: (1) The Respondent considered, as its "statement of policy" reveals, ability and qualifications, as well as length of service, in layoffs and recalls to work; (2) the Respondent did not have a policy of retaining employees with greater seniority by transferring them to other departments during layoffs; and (3) while the Respondent did not adhere to its 3-month "loss of seniority" rule, its departure therefrom was not motivated by union animus. B. Union activity The Union commenced its new campaign to organize the Respondent's employees in January 1951. According to Inter- national Representative Cramer, a preliminary meeting was held early that month which was attended by Buford Appleton, Maurice Glendon Appleton, and two other employees. Cramer further testified, and the Trial Examiner found, that another meeting was held on January 11 at which an informal organizing committee was established with Buford Appleton as chairman, Christy Cawley as secretary, and Edith Gunnels, Bill McCor- mack, Aubrey Gulledge, Magga Lee Doty, Eileen Johnson, Mildred Richmond, Willard Elliott, Clayton Nosbusch, Maurice Glendon Appleton, Isabel Harrell, Edna Gray, Flora Perry, Daniel McElroy, Katherine Gulledge, and Jean Milliken 1° as members. Cramer testified that as he did not have access to the plant to solicit membership or distribute literature, these duties devolved solely upon the members of the committee. However, Gilbert Baggett, who was not named by Cramer as a member of this committee, testified that he had solicited on behalf of the Union and distributed literature, as did Edith Clark, and Buford Appleton testified that James Smith, also not a member of this group, had been active in getting cards signed. Various witnesses called by the General Counsel, whom Cramer named as members of the committee, testified that they distributed union cards and literature on company property 10 The Trial Examiner omitted the name of Jean Milliken in naming this group. The Inter- mediate Report is accordingly corrected. References to the "committee" hereinafter pertain to this informal organizing committee of the Union. ACME BOOT MANUFACTURING COMPANY, INC. 169 during nonworking hours, and that they did not conceal this activity . None of these witnesses , except Buford Appleton, mentioned during their examination that they were members of the committee, and, in fact, Maurice Appleton testified that he was not aware of any committee having been established. Buford Appleton, on direct examination, disclaimed any knowl- edge of a committee having been formed, while on redirect he stated that such a committee was established. He referred to himself as president of the union group, but could name no other officers. While the Trial Examiner found that "The members of this group were active in the plant soliciting members, handing out application cards, and distributing union literature as well as attending the various meetings of the union group," he failed to find that the Respondent was aware of the existence of any such committee, the membership thereof, or, with the exception of McElroy, that the Respondent observed these individuals engaging in union activities. We do not find that the Respondent had such knowledge. The Trial Examiner found that the Respondent, between February 8, 1951, when the Union made its claim for rec- ognition , and April 20, 1951, when the election was held, interrogated employees concerning their union activities, told employees it knew which ones were members of the Union, and threatened to close the plant if the Union was successful.ii The Trial Examiner also found that after the election, which the Union lost by a vote of 193 to 147, "activity on behalf of the Union died out completely and immediately as did the Respondent's interrogation." However, although the employees whom the Trial Examiner found to have been interrogated and threatened by the Respondent testified that they had apprised Cramer of these incidents prior to the election, the Union filed no objections to the election nor a timely charge based thereon. It is against this background of a necessary economic reduction, a policy of considering ability as well as seniority in layoffs, and a complete absence after the election of union activity by employees or of antiunion activity by the Respondent that the cases of the individuals found to have been discriminated against must be considered. C. The alleged discrimination 1. Mildred Richmond: The General Counsel conceded, and the Trial Examiner found, that the Respondent did not dis- criminate against Richmond by selecting her for layoff on May 15, 1951. However, the General Counsel alleged, and the Trial Examiner found, that the Respondent, in violation of 11 As these events occurred more than 6 months prior to the filing of the original charge on October 23, 1951, the Trial Examiner found, and we agree, that they may not be found to constitute unfair labor practices. The Trial Examiner did, however, properly rely upon these events as background. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act, failed to recall Richmond when jobs for which she was qualified became available because of her union activity. The Respondent excepted on the ground that the record did not show knowledge by the Respondent of Richmond ' s union activities . Richmond testified that on several occasions during luncheon conversations she informed her forelady , Pace, of her union membership , but that she never apprised her coforeman, Elliott, thereof , although she sought to intimate that he over- heard her prounion comments during sidewalk conversations because " I made it a point he could hear ." However, Pace denied any mention to her of Richmond ' s union connection. Elliott, a witness for the General Counsel, failed to sub- stantiate Richmond's assertion attributing knowledge to him. The Trial Examiner did not resolve the credibility issue presented by Richmond ' s claim of knowledge and Pace's denial. Instead , he imputed such knowledge to the Respondent apparently in reliance upon Elliott ' s statement , which Richmond testified was made to her at the home of Elliott ' s mother in March 1952 when she asked Elliott about reinstatement, that it was no use asking Humbert as he had already " `hit the ceiling' on several occasions when asked to take back the individuals he knew to be for the union ." 12 However, in his testimony , Elliott did not mention having any conversation with Richmond during March 1952, or making any such state- ment to her , or in fact ever asking Humbert to take her back 13 Moreover , Richmond was not one of the employees whom the Trial Examiner found in the background incidents were identified by supervisors as known union members. On the basis of the foregoing , and of the entire record, we are not convinced that the General Counsel has established by a preponderance of the evidence that the Respondent ' s failure to recall Richmond was motivated by antiunion considerations. 2. Flora Perry : The Trial Examiner found that the Respond- ent unlawfully failed to adhere to its "statement of policy" in selecting Flora Perry for layoff on May 29, 1951, and in failing to reinstate her before November 17 , 1951, the date on which she was rehired , because she was active on behalf of the Union . In reaching this conclusion , the Trial Examiner observed that "The evidence is . . . clear that the Respondent knew that Perry was active on behalf of the Union . . . ." The Respondent challenged this finding. Although Cramer testified that Perry was a member of the committee, which was established on January 11, 1951, Perry did not claim to be a member , and, in fact, testified that she did not join the Union until the latter part of January or the beginning of February. While she stated that she had dis- tributed union literature and solicited membership inthe plant, tzIn his Intermediate Report, the Trial Examiner erroneously stated that Richmond was informed of Humbert's statement by Dabbs Richmond testified that she received this in- formation from Elliott i3Accordiug to Richmond 's testimony she asked Elliott about reinstatement in March 1952, and made a second inquiry of hint "a few weeks later " Elliott left the Respondent 's employ sometime in March 1952 ACME BOOT MANUFACTURING COMPANY. INC. 17 1 there is no evidence as to the Respondent's knowledge of these activities. The Trial Examiner did not find any preelection interrogations or threats directed at Perry, nor that any supervisor adverted to Perry as a known union sympathizer. Under the circumstances, we do not find that the General Counsel has sustained the burden of proving that the Respondent knew of Perry's union activity, nor does the record, in our opinion, justify an inference that the Respondent's selection of Perry for layoff, or its failure to recall her immediately when jobs became available, was impelled by antiunion animus. 3. Magga Lee Doty: The Trial Examiner found that Doty was selected for layoff on May 29, 1951, "contrary to her seniority rights as well as her ability because of her known activity on behalf of the Union in violation of Section 8 (a) (3) of the Act." In finding that the Respondent has knowledge of Doty's union activities, the Trial Examiner relied upon Doty's testimony concerning a conversation with Foreman Welch prior to the election on April 20. Doty testified that Welch asked her at work what she thought about the Union, that she answered that she did not know and queried Welch as to his thoughts on the subject, and that Welch replied that he could tell Doty the name of everyone who favored the Union, mentioned Sykes, Nosbusch, Buford Appleton, and Hettie Carpenter, and said that Doty "had him on the fence; he didn't know whether I was for it or against it, so at the time I didn't tell him that I was, and he kept on and on and on, just mentioning it at different times." On another occasion, Doty testified Welch told her he had "heard I was a union steward, . . . and he told me the union was a good thing, but he wished it was some other union besides the CIO." The Trial Examiner did not find that Welch knew that Doty was a member of the committee, that Welch ever resolved his doubt as to Doty's union sympathies, or that any other supervisor was apprised of her union adherence. While the matter is not entirely free from doubt, we do not believe that the record establishes the Respondent's knowledge of Doty's union activities or a discriminatory motive in selecting Doty for layoff. 4. Maurice Glendon Appleton: The Trial Examiner found that the Respondent selected Maurice Glendon Appleton for layoff on May 29, 1951, and thereafter failed timely to reinstate him because he engaged in union activities. In finding that the Respondent had knowledge of Glendon's union adherence, and that this knowledge prompted his selection for layoff in disregard of seniority, the Trial Examiner pointed to Glendon's presence during several conversations between his brother, Buford, and Foreman Welch concerning the Union. We fail to perceive how this evidence establishes such knowl- edge on the part of the Respondent. Buford testified that on several occasions before the election he had conversations with Welch concerning the Union at which Glendon, Willard Elliott, and James Smith were present, although Buford could recall with specificity but one such conversation. Smith, who 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was a union member, also could recall only one conversation. Elliott, whom Cramer named as a member of the committee, did not allude to this incident in his testimony. Neither Buford, Glendon, Elliott, nor Smith testified that Welch acknowledged them to be union adherents or remotely suggested that Welch indicated that he was aware of Glendon' s or Buford ' s union activities. Moreover, Glendon was not one of the employees whom Doty testified were identified as union members by Welch during a conversation which she had with Welch prior to the election. Accordingly, we find, contrary to the Trial Examiner, that the record does not establish that the Respondent was aware of Glendon's union affiliation or that the Respondent' s selection of Glendon for layoff was motivated by a desire to rid itself of a known union adherent.ta 5. Isabel Harrell: When Harrell was laid off, she had been pregnant for 3 months. The Respondent conceded that employees with less seniority were retained, but contended that Harrell requested that she be laid off because of her pregnancy. The Trial Examiner found that this defense contained "patent improbabilities," that in fact the Respondent laid off Harrell because of her prominence in union activities, and that its discriminatory motive was further evidenced by a showing that the Respondent retained 25 employees in the department who had less seniority than Harrell and who were "not shown to have any connection with the union." The Trial Examiner did not assign any reason for his conclusion that the Respondent knew of Harrell's union activity. Indeed, as in the cases of some of the other complainants, he apparently based his finding of such knowledge on the ground that Harrell was named as a member of the committee, solicited membership, and distributed literature, although he conspicuously failed to find that the Respondent was aware of this committee, of its membership, or of the fact that Harrell was active in union affairs. Accordingly, we perceive no basis for finding that the Respondent had knowledge of Harrell's union adherence. Nor can we impute such knowledge to the Respondent because, as the Trial Examiner noted, it retained employees junior in seniority to Harrell. Elizabeth Smith, who had less seniority and was retained in the same job classification, was identified by Harrell as a union member. Moreover, Jean Milliken and Edna Gray, who were named by Cramer as members of the committee and who also had less seniority than Harrell, were retained- -Milliken in the same classification as Harrell held." We are unable to conclude, on the record before us, that the Respondent knew of Harrell's union adherence and was 14 in this connection, we note that Willard Elliott, a member of the committee, was retained although another employee in his department with greater seniority who had no identifiable union connection was laid off, and that James Smith, also active in the Union, was retained. is Gray and Milliken were identified by Cramer as members of the committee, although the Trial Examiner omitted Milliken's name from the list. ACME BOOT MANUFACTURING COMPANY, INC 173 motivated thereby in selecting her for layoff on May 29, 1951. 6. Clayton Nosbusch: The Trial Examiner found that the Respondent laid off Clayton Nosbusch on May 29, 1951, and thereafter failed timely to reinstate him when jobs became available because of his known union activities. The Respondent conceded that it became aware of Nosbusch's union affiliation through Dabbs' interrogation of Nosbusch prior to the election of April 20, but contended that Nosbusch's selection for layoff was occasioned solely by the fact that he was incapable of performing satisfactorily in the job classifications of those employees with less seniority who were retained, and that he was recalled when jobs for which he was suited became avail- able. At the time of his layoff, Nosbusch was employed in the Goodyear department as a "sole layer." Two other employees who were also laid off had much greater seniority than Nosbusch and were not identified as connected in any way with the Union. However, because four employees with less seniority were retained in the job classifications of "stitch separator," "assembly," "cement soles," and " pegging," the Trial Examiner found that the Respondent violated its "statement of policy" with respect to seniority. Plant Superintendent Dabbs testified that Nosbusch was not a stitch separator, that "he had only run regular for a very short time, in what we call the old factory," that he was not an experienced operator on the pegging machine, and that he had never cemented soles or assembled. While Nosbusch testified that he could ably perform these duties, he admitted on cross-examination that he had done stitch separation for approximately a few hours a week until 1949 when, as Dabbs stated, the old factory was merged with the new. The Trial Examiner nevertheless concluded that Dabbs' statement as to Nosbusch's ability "does not appear to have been justified." In support of this conclusion, the Trial Examiner observed that Andrew Bowers , who had the same job classification as Nosbusch when he was laid off in January 1951, was rehired in July in the lasting department under the classification of "utility" and was assigned to Nosbusch's work at an undis- closed , date thereafter, and that the Respondent made no effort to recall Nosbusch in July although Bowers had lost his seniority by an absence in excess of 3 months while Nosbusch retained his. The record reveals, however, that Bowers was rehired in the classification of "crowning" rather than "utility," a job which Nosbusch admitted he could not perform, that no employees had been hired as "sole layers" before Nosbusch was recalled on November 14, 1951, and that Nosbusch was informed at that time that as soon as an opening occurred in his former classification he would be assigned to it. On December 6, when Bowers left, Nosbusch returned to sole laying. Dabbs explained that Nosbusch was not theretofore assigned to that job because Dabbs believed that Bowers was more proficient at it, and that in fact Bowers had performed 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sole laying operations before Nosbusch did. While Nosbusch claimed at one point that Bowers did not exceed him in produc- tion, he later admitted that on occasions Bowers ran more boots than he did. On the basis of the foregoing, and in view of our finding that the Respondent, in laying off and recalling employees, considered ability and qualifications as well as length of time an individual had been out of work, and was not adhering to its 3-month rule during this period, we find that while the Respondent knew of Nosbusch's union activities, the evidence does not establish that the Respondent laid him off or delayed recalling him on account of those activities. 7. Gilbert Baggett: Baggett was classified as "lining cutter" in the cutting department. At the time of his layoff on May 31, 1951, he was performing odd jobs in the department, "cutting underlays part time and linings." The Trial Examiner found that the Respondent laid off Baggett and thereafter refused to reinstate him because the "Respondent knew or suspected" that he was active on behalf of the Union. In doing so, he relied upon an inquiry of Baggett by Foreman Nixon. Further- more, the Trial Examiner observed that certain individuals who were not active union adherents and had less seniority than Baggett were retained in jobs which Baggett was capable of performing and were recalled to work in preference to Baggett. Baggett, whose uncontradicted testimony formed the basis for the Trial Examiner's findings herein, testified that approxi- mately 2 months prior to the election Foreman Nixon approached him and inquired what he thought about the Union. Baggett stated that "I never would give him no satisfactory answer." is Baggett admitted that he never told Nixon or any supervisor that he was active in or a member of the Union. Cramer did not name Baggett as a member of the committee, nor did Baggett claim such membership. Furthermore, the record discloses that Edith Gunnels, who was cutting underlays and was retained when Baggett was laid off, was named by Cramer as a member of the committee." While the Trial Examiner stated that the Re§pondent did not have "even a suspicion that Gunnels was active on behalf of the Union" and that therefore her retention did not dispel any discriminatory intent on the Respondent's part in laying off Baggett, this statement is belied by his earlier assertion that Gunnels was "active in the plant soliciting members, handing out application cards, and distributing union literature i6In his intermediate Report, the Trial Examiner stated that Nixon "inquired as to his [Baggett's] union affiliation without securing a definite answer." Nixon's inquiry, however, was concerned only with what Baggett thought of the Union. 17 Baggett testified that the job of cutting underlays was handled "mostly by ladies." At the time of his layoff, he, Gunnels, and Mildred Johnson, as well as 3 other female employees, were engaged in this operation, and only Gunnels and Johnson were retained. Moreover, of the 9 employees laid off in May and June in the cutting department, 2 were senior to Baggett. The Trial Examiner pointed out that Baggett and the 2 employees who were senior to him "apparently were selected on other bases as they stood much higher in seniority than the other 6 " ACME BOOT MANUFACTURING COMPANY, INC. 175 as well as attending the various meetings of the union group." Moreover, it appears that at least one of the employees recalled by the Respondent was identified both by Baggett and Cramer as a union member, contrary to the Trial Exam- iner's observation that "none of these individuals [who wert recalled] had been interested in the union movement."1B On the basis of the foregoing, we are unable to find that the Respondent had knowledge of Baggett's union activities or membership and was thereby motivated in laying him off or failing to recall him. 8. Daniel McElroy: The Trial Examiner found that, shortly before the April election, Humbert and Dabbs called McElroy into Humbert's office and reprimanded him for soliciting union membership and distributing literature in the plant on company time, concluding with Dabbs telling McElroy, "We just wanted you to know that we can tell a skunk when we see one." The Trial Examiner further found that on June 29, 1951, the Respondent laid off McElroy from his position of "joining" in the bottoming department because of his union activities, and not for the reason advanced by Dabbs that McElroy was less capable than another employee with less seniority in the same job classification who was retained.19 Dabbs testified that when the layoffs were being made in May and June, the Respondent required a production of approximately 1,500 pairs of boots a day, that 1 joiner should have been capable of running off approximately 1,800 to Z,000 pairs a day, and that an employee named Ray Smith, who had less seniority than McElroy, was capable of producing 2,000 pairs a day and was therefore retained. He further testified that, as McElroy could handle only 1,100 to 1,200 pairs daily,21 his retention would have necessitated keeping another employee to help him, and that, in fact, this was necessary during McElroy's employ. The Trial Examiner observed that production was not the only reason for selecting McElroy for layoff because Smith's production for July, the first month he worked alone, was less than 1,500 pairs daily, and the Respondent hired a new employee on August 22 "before production exceeded 1,500 per day." However, the record does not bear out this observation. The Respondent's annual vacation week occurred the first week in July. During the balance of the month, consisting of 17 working days, Smith processed 25,954 pairs of boots, or an average of 1,527 pairs a day. During August, in which there were 23 working days, Smith is Three of the four employees recalled to work in the cutting department had been affected by the layoffs in January 1951. 19The Trial Examiner attributed a second reason to Dabbs for laying off McElroy, namely, in order to make room for former Foreman Hall. While making no specific finding with respect thereto, the Trial Examiner intimated that this reason lacked merit because Hall did not replace McElroy at the latter's machines However, the record establishes that Dabbs did not advance this reason for laying off McElroy, Rather, McElroy received this information from Red Vick, an individual not shown to be a supervisor, who had no authority to, and did not, select McElroy for layoff. 20 In reference to Dabbs' testimony concerning McElroy's production, the Trial Examiner inadvertently stated that McElroy could produce - "11,000 to 12,000 pairs" rather than 1,100 to 1, 200. 17 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD worked upon 43,073 pairs, or a daily average of approximately 1,872 pairs. Manifestly, production for each of the months involved exceeded the Respondent's daily requirements. Ac- cordingly, we do not agree with the Trial Examiner that Smith's production did not meet Dabbs' asserted standards. Nor do we agree that hiring a new employee as a joiner on August 22 without recalling McElroy, or retaining employees with less seniority than McElroy in job classifications which McElroy stated he could perform, violated the Respondent's "own statement of policy." As we have found, ability and qualifications, as well as length of service, were factors in making layoffs and in recalling employees. As a matter of fact, an employee with greater seniority than McElroy was laid off in the bottoming department a month before McElroy was. Accordingly, while we find that the Respondent had knowledge of McElroy's union activities, the record fails to establish that the Respondent was motivated by an antiunion design in laying him off on June 29, 1951, or that its treatment of him was inconsistent with its general policy regarding layoffs and recalls to work. 9. Buford Appleton: The Trial Examiner found, and we agree, that Buford Appleton was the leader of the union group at the Respondent's plant. He further found that the Respondent violated the Act by laying off Buford on June 29, 1951, and retaining an employee with less seniority, in disregard of its seniority policy, in order to remove an active union adherent. The Respondent conceded that it had knowledge of Buford's union affiliation, but denied that that was a factor in his layoff. At the time of his layoff, and for 31- years prior thereto, Buford was regularly assigned to the duties of "stitcher" in the Goodyear department. Only one other employee in that department, James Smith, held that classification and he was retained although he had less seniority than Buford. Dabbs explained'that Smith was retained because at the time Buford's layoff, and for some time previously, Smith was actually performing assembly work, a job which Buford concededly had never done. Dabbs further testified, and the record establishes, that in January 1951, when the Respondent con- solidated its plants, 2 former foremen were transferred to the Goodyear department, and 1 with 18 years of stitching experience was assigned to stitching. The record also reveals that Smith was not assigned to stitching work until sometime after Buford's layoff,g and that no stitcher had been hired from June 29, the date of his layoff, until December 31, the date on which he was recalled to work in that job classification. 21 Dabbs testified that Smith was assigned to assembly work about 2 months before Buford's layoff, and did no stitching thereafter until a few days before Buford was recalled. Smith stated that he had done stitching in 1951, was transferred to assembly work about 3 weeks before ISuford's layoff, and returned to stitching a week after that layoff, which would have been during the vacation week. However, we do not find this variance as to when Smith returned to stitching material. ACME BOOT MANUFACTURING COMPANY, INC. 177 In support of his finding that the Respondent laid off Buford in disregard of its seniority policy, the Trial Examiner asserted that Buford was laid off "exactly 21 days after "the Respondent had ceased laying off in order to reduce production," and that the "Respondent began hiring machine operators in the Goodyear department as early as June 11, 1951, but failed to recall Buford." These assertions are not borne out by the record. Of the 17 employees laid off in June, at least 3 were laid off during the 21 days preceding Buford's layoff, and no employees were hired in the Goodyear department that month. Moreover, the statement that the Respondent hired machine operators in the Goodyear department on June 11 but failed to recall Buford is irrelevant as Buford was not laid off until almost 3 weeks after that date. In view of the foregoing, as well as the facts that an employee with greater seniority than Buford, who was not identified with the Union, was laid off before Buford was; that James Smith, who was retained, was, according to Buford's testimony, active "in signing cards"; and that the employees rehired in the department before Buford was had been affected by the layoffs in December and January, we are not convinced that the Respondent discriminated against Buford because of his known union activities. 10. Aubrey Gulledge: The Trial Examiner found that the Respondent discharged Gulledge because he had engaged in union activities and not, as the Respondent contended, because his work was not satisfactory. Gulledge was discharged on June 28, 1951, by Dabbs. Gulledge testified, and the Trial Examiner found, that prior to the election in April, he told Foreman Thomas Elliott that he, Gulledge, was a member of the Union, and that Elliott thereupon expressed the hope that the Unionwouldbe successful. Gulledge further testified that about Z weeks after the election, Elliott informed him that Humbert told Elliott that he, Humbert, "was going to have to get rid of part of the union bunch on the floor." Elliott, a witness for the General Counsel, made no mention during his testimony of these conversations with Gulledge, nor indicated that he conveyed any information concerning Gulledge's union affiliation to Dabbs, who dis- charged Gulledge, or to any other supervisor. The Trial Examiner further found that in May 1951, Dabbs spoke to Elliott concerning the impending layoffs and showed him a list of the employees in the fitting department. This list, Elliott testified, contained some 10 to 30 check marks beside certain names including the name of Gulledge. Elliott conceded, however, that he was never told what the check marks represented, nor was he told to lay off the employees whose names had been checked.' He specifically stated that neither Dabbs nor Humbert ever directed him to lay off Gulledge. 22 Elliott testified that the selection of employees for layoffs in the department was made by Coforelady Pace. 17 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While Gulledge ' s union affiliation came to the attention of Elliott, Elliott played no part in Gulledge's discharge, and the evidence fails to establish that Dabbs, who had the sole responsibility for dismissing Gulledge , was aware of Gulledge's union activities. Accordingly, although this issue, like some of the layoff cases previously discussed , is not free from doubt , we find that a preponderance of the evidence does not establish that the Respondent was motivated in discharging Gulledge by antiunion considerations .23 [The Board dismissed the complaint.] 23See Goldblatt Bros., Inc., 79 NLRB 1262. Intermediate Report STATEMENT OF THE CASE This matter arises upon a complaint dated April 8, 1952,1 by the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board, respec- tively, through the Regional Director for the Tenth Region (Atlanta, Georgia), against Acme Boot Manufacturing Company, herein called the Respondent, which alleged, in substance, that the Respondent had (1) laid off or discharged and thereafter failed and refused to reinstate 11 named employees because of their membership in and activities on behalf of the Union; (2) in various enumerated ways since June and July 1951, interfered with, restrained, and coerced its employees thereby violating Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947, 61 Stat, 136, herein called the Act. The Re- spondent duly filed its answer admitting certain allegations of the complaint but denying the commission of any unfaii labor practices. Copies of the various charges, complaint, and notice of hearing thereon were duly served upon the Respondent and the Union. Pursuant to notice, a hearing was held from September 22 to September 26, 1952, in Clarksville, Tennessee, before the undersigned Trial Examiner. The General Counsel and the Respondent were represented by counsel and the Union by an international representative. All parties participated in the hearing and were given full opportunity to be heard, to examine and to cross-examine witnesses, to introduce evidence, bearing upon the issues and to present oral argument and file briefs and proposed findings of fact or conclusions of law or both. The General Counsel argued orally at the conclusion of the hearing and the Re- spondent filed a brief on November 28, 1952. Upon the entire record in the case, and from his observation of the witnesses the under- signed makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Acme Boot Manufacturing Company is now, and has been at all times material herein, a corporation organized under and existing by virtue of the laws of the State of Tennessee. The Respondent maintains its principal office, plant, and place of business at Clarksville, Ten- nessee, where it is engaged in the manufacture and sale of leather cowboy boots. The Re- spondent, in the course of its business operations, during the 12-month period ending January 1, 1952, which date is representative of all times material herein, purchased raw materials, equipment, and supplies of a value in excess of $1,000,000, of which more than 90 percent was purchased outside the state of Tennessee and shipped in interstate commerce to the Respondent at Clarksville, Tennessee. During the same period, the Respondent sold finished i The complaint is based upon an original charge filed October 23, 1951, and subsequently amended by United Rubber, Cork, Linoleum & Plastic Workers of America, CIO, hereinafter called the Union. ACME BOOT MANUFACTURING COMPANY, INC. 179 products valued in excess of $1,000,000, of which more than 99 percent was sold and shipped' in interstate commerce to points beyond the State of Tennessee. The Respondent admits , and the undersigned fords, that the Respondent is engaged in commerce within the meaning of the Act. II, THE LABOR ORGANIZATION INVOLVED United Rubber , Cork, Linoleum & Plastic Workers of America , CIO, is a labor organization admitting to membership the employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The background2 On September 5, 1946, the Union was certified as the bargaining representative of Re- spondent's employees as a result of an election previously held on June 25 , 1946, in Case No. 10-R-1861. Following the certification of the Union , numerous bargaining conferences were held. One of the principal issues in dispute was the question of seniority --the Union insisting upon plantwide seniority , to which the Company would not agree. Futile bargaining conferences were held between the parties in October , November, and December, 1946 , and the early part of January 1947. Because of this futility the Union called a strike at the plant on January 16, 1947. During the strike there was a considerable amount of violence -- rocks being thrown, and quite a number of people hurt. Bargaining negotiations continued during the strike and resulted in a contract being executed between the Company and the Union on April 15, 1947, at which time the strike ended and the strikers returned to work. The contract thus signed between the Union and the Respondent contained the following seniority clause: Layoffs and recalls to work after layoffs , shall be governed within each of the several departments , by length of service , ability and qualifications by prior similar experience within the department to perform the work. The Union was decertified on April 9, 1948 , as the result of an election held on March 17, 1948, in Case No. 10-RD-12. On September 11, 1950, there were distributed by the Respondent to the employees state- ments embodying the Respondent 's policy as to grievance procedure , vacations , Christmas bonus, seniority , and leaves of absence. Under the statement as to seniority there was a pro- vision to the effect that seniority would be terminated after a 3-month layoff, together with the following language: Layoffs and recalls to work after layoffs shall be governed with each of the departments by length of service, ability and qualifications by prior similar experience within the department to perform the work. Around the middle of November 1950 , Sidney E . Cohn , vice president and treasurer of the Respondent and active operating head of the business , realized that his firm and the footwear industry in general were definitely heading into a recession ; that it was necessary that the Company's inventory --the largest in its history --be cut down and that in order to do this it would be necessary to cut production . He thereupon ordered General Superintendent J. O. Humbert to cut production. The Respondent 's finished boot inventory on November 30, 1950, amounted to $474 ,646.46 whereas it had only been $105,362.61 on November 30, 1949. In complying with this order, the plant produced in December 1950 , only 1,500 pairs of shoes as compared to a monthly average of approximately 60,000 pairs theretofore. There- after the plant produced on an average of about 40 ,000 pairs of shoes per month or about 2 As the events found herein occurred more than 6 months prior to the filing of the original charge in this case, none of these events under the terms of Section 10 (b) of the Act may be found to constitute unfair labor practices . But under well -known precedents these events are admissible upon the question of the motivation behind subsequent events which themselves occurred within the 6-month period. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD two-thirds of the monthly production prior to December 1950. The finished boot inventory stood on November 30, 1951, at $220,320.24.9 In December 1950, 79 employees were permanently laid off and in January 1951, 96 addi- tional employees were laid off on a permanent basis. In a letter to its employees dated February 12, 1951, the Respondent reported to the employees that, "of course, (these] lay- offs were based strictly on seniority." According to the oral testimony of the Respondent's witnesses all layoffs at the plant were based strictly upon seniority.4 Thus it appears that there was economic justification for a reduction in production which, in turn, required a reduction in the number of employees.5 The Union began its second attempt to organize the Respondent's employees when em- ployees Buford Appleton and Maurice Glendon Appleton met with International Representative Joseph Cramer in Clarksville early in January 1951. On January 11, 1951, a general meeting for the employees of the Respondent's plant was held in the union hall at Clarksville under the chairmanship of Buford Appleton. At this meeting an informal organizing committee was set up with Buford Appleton named chairman and Christy Cawley secretary. Among others who attended the meeting of January 11, and were therefore considered to be a part of this informal committee, were Edith Gunnells, Bill McCormack, Aubrey Gulledge, Magga Lee Doty, Eileen Johnson, Mildred Richmond, Willard Elliott, Clayton Nosbusch, Glendon Appleton, Isabelle Harrell, Edna Gray, Flora Perry, Daniel McElroy, and Katherine Gulledge. The members of this group were active in the plant soliciting members, handing out application cards, and distributing union literature as well as attending the various meetings of the union group,6 On February 8, 1951, the Union informed the Respondent by letter that it represented a majority of the employees in the appropriate unit at the plant and requested the right to recognition and to bargain with the Respondent. By letter dated February 13, 1951, the Re- spondent's attorney denied these requests on the grounds that the Respondent had no proof that the majority of the employees had actually selected the Union as their representative. A petition for certification by the Union was thereupon filed with the Board. On March 2, 1951, and again on April 19, 1951, Vice-President Sidney Cohn made speeches to the assembled employees in which he very clearly expressed his opinion that the Re- spondent did not want a union in the plant for a variety of reasons. The General Counsel frankly acknowledged at the hearing that these speeches as evidenced by the manuscripts thereof were protected under Section 8 (c) of the Act in that they contained neither threats nor promises of benefits but he contended that, in accordance with the oral testimony of a number of his witnesses, Cohn had interpolated certain remarks not found in the manuscript wherein he threatened to close the plant if the Union succeeded in coming in. The manuscript does contain certain statements to the effect that the Respondent would close its plant in the event of another strike by the Union rather than run the risk of violence The statement as con- tained in the manuscript would be protected by Section 8 (c) of the Act. It could easily have been misunderstood by the casual listener--or the inference arising therefrom may have remained more firmly imbedded in the listener's mind than the actual words. The under- signed believes that that is what happened to those persons who testified that a threat to close had been made. The undersigned believes that Cohn read the speech from the manu- script but that the listeners remembered the inference therefrom. However, the under- signed does find from these two speeches that the Respondent was definitely opposed to the idea of having a union in the plant again. In line with the expressions of opinion made by Cohn in his speeches, Superintendent Dabbs took employee Dan McElroy to the office of General Superintendent J. O. Humbert a week prior to the election of April 20, 1951, and accused McElroy of having handed out union cards in the plant. When McElroy denied this charge, Dabbs stated that he had the story 3Respondent's figures also show that 20,959 more pairs of boots were produced in 1949 than were shipped; that 35,532 more pairs were produced than shipped in 1950, but that in 1951, 49,649 more pairs were shipped than had been produced during that year. Thus there were 6,842 more pairs of boots in the inventory on November 30, 1951, than there had been in the inventory of November 30, 1949, although the dollar value of the 1951 inventory was $220,320.24 as against $105,362.61 for 1949. No doubt a part of this increase in dollar value ,was due to the increased price of boots. 4 The above findings have been adopted almost verbatim from the Respondent's brief. 5 The General Counsel does not dispute the fact that a layoff was economically necessary. 6 At this time and for some period in the past there had been in existence in the plant an "employees' committee" which dealt with the Respondent. Of the above Buford Appleton, Christy Cawley, and Willard Elliott had been elected members of this employees' committee. ACME BOOT MANUFACTURING COMPANY, INC. 181 "straight" from an employee who had refused to join the Union . Humbert then ordered McElroy not to solicit in the plant. After Humbert had reminded McElroy that they were still friends , Dabbs said as McElroy was leaving the office : "I just wanted you to know we can tell a skunk when we see one." 7 During this same preelection period Dabbs inquired of employee Clayton Nosbusch if he were "for the Union." Nosbusch answered that he would not he about it, that he was for the Union. Whereupon Dabbs stated that "he would have to give him credit for admitting it" and added : "Well, I can put my finger on just about everyone that is for the Union. I was against the Union the last time and I am against it this time too."8 In addition to these top officials , various foremen interrogated employees regarding their union adherence or sympathies and threatened that the plant would close down if the Union came in. In one such conversation Foreman Ben Welsh told employees Buford Appleton, Glendon Appleton , and James Smith that "Mr. Cohn and them had decided if the Union did come in that they were going to shut the plant down , 9 ... even if they did not shut the plant down , we could rest assured they 'd find out who [the leaders of the union movement] were and fire us ." Welsh also informed employee Doty that he, Welsh , "could tell [her] every- body in there that was for [the Union]." Welsh even named various employees whom he claimed were interested in the Union , all of whom were union leaders and a majority of whom were subsequently laid off. Similar antiunion remarks were made by various other foremen of the Respondent 's plant. As these remarks are found here on the question of motivation only, the undersigned sees no necessity for making further findings as to statements by other supervisors. From this evidence the undersigned finds that the Respondent 's supervisory personnel had a clear idea as to the identity of those employees who were most vitally interested in the union organizational campaign and was also opposed to the unionization of the employees. On April 20, 1951 , an election was conducted by the Board among the employees of the Respondent in the appropriate unit in which the Union was defeated by a vote of 193 to 147. Thereafter activity on behalf of the Union died out completely and immediately as did the Respondent 's interrogation. A5 found heretofore, in accordance with Cohn's instructions of November 1950, the Re- spondent in December and January had laid off 175 employees in order to reduce production. After these curs and after learning of the activity on behalf of the Union , Respondent deter- mined not to lay off any further employees for fear that such a move might be interpreted as an antiunion gesture. At least there were no layoffs after December 1951, until May 1952. .However, on May 15 and May 22, 1951 , the Respondent laid off some 60-odd employees including 10 employees who had been active on behalf of the Union and in June 1951, some 7While the testimony is not definite that Dabbs was the speaker who made the above-quoted remark, the context of the evidence indicates that it was Dabbs, rather than Humbert, and it is so found. This finding coincides with the estimates of the characters of those two men made by the undersigned during their appearance on the witness stand. Regardless of which man actually made the remark, it is clear that the other did not contradict the speaker. It is also notable that the Respondent admitted that this episode occurred . Respondent's brief contends that Humbert 's objection to the solicitation was to such solicitation on company time and property , an objection the Respondent could hardly make conscientiously in view of the time and the place that the Respondent itself solicited nonunion votes during the two speeches by Cohn. The facts indicate no such limited purpose. BDabbs denied having made this last -quoted remark during his testimony but admitted the remainder of the episode. Dabbs carefully explained that Nosbusch was the "only" employee he knew to have been a union member and the only employee he, Dabbs, had interrogated on the subject - -completely forgetting apparently the McElroy interrogation. Dabbs' own volunteered testimony to the effect that he complimented McElroy for "admitting" his union adherence indicates that the interrogation of McElroy was not his first or only interrogation of an employee on the subject. The undersigned did not find Dabbs a trustworthy witness for reasons which will appear throughout this report. 9The denial of this by Welsh was based upon the fact that he claimed that he had no in- formation as to whether the plant would closedown or not. However, there was other evidence in the record by a credible witness that , at a foreman 's meeting, Humbert had warned the supervisor that they had better work against the Union or they would not have any jobs as Cohn and himself would be the plant 's only employees , In view of the number of the super- visors who warned employees of the possibility of a plant closedown, it would seem that these supervisors were not without some information on the subject. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 17 other employees were laid off including Buford Appleton. On June 28, 1951, the Respondent discharged Aubrey Gulledge allegedly for performing bad work. The General Counsel concedes that the reduction in production and in personnel at this time was caused by the economic situation then confronting the Respondent. It is so found. The General Counsel, however, does contend that the Respondent discriminated against 10 of the union adherents who were laid off at this time by selecting them for layoff because of their union activity and adherence and in contravention of the Respondent's usual seniority policy. This becomes the issue in this case. B. The layoffs 1. Mildred Richmond Unlike some other departments in the plant, the selection of employees of the fitting room for layoff was made by Foremen Elliott and Pace. When Superintendent Dabbs originally approached Elliott to inform him of the impending layoff, Dabbs showed Elliott a list of employees of the department containing checks before the names of certain of the employees therein.io Elliott objected to laying off those individuals whose names had been checked and insisted upon making the layoff in his department in accordance with strict seniority. Dabbs argued that such a method of layoff would deprive the Respondent of employees he considered to be more valuable to the Respondent. However, Elliott prevailed and the layoff was made by Elliott and Pace from a seniority list prepared by Pace. The layoff in this department, unlike several other departments, began at the bottom of the seniority list and moved steadily upward until the requisite number of employees had been laid off. The only exceptions to this in the fitting department were certain jobs which, because of their nature, had to be per- formed by men. The General Counsel acknowledged that there was no discrimination in the selection of the employees in the fitting-room department. But he did contend that in the case of Rich- mond, the Respondent discriminated against her in refusing to reinstate her subsequently. The evidence on that phase of the case shows that about March 1952, Richmond asked Foreman Elliott if he could reinstate her at which time Elliott said that he would ask Humbert. Richmond made further inquiry a few weeks later and was told by Dabbs it was no use asking Humbert to take her back as he had already "hit the ceiling" on several occasions when asked to take back the individuals he knew to be for the Union. Humbert in effect corroborated when he testified at the hearing: We feel that those employees [laid off in December-January] were equally entitled to their jobs because of the fact that they had been employed for some length of time and they must eat like anyone else. However , this "feeling" on the part of the Respondent was directly contrary to its own statement of policy given to its employees on September 12, 1950, which stated that "layoff and recalls to work after layoffs" shopld be governed by seniority. The Respondent had another policy to the effect that an employee lost his seniority right after a layoff extending 3 months or more. Although the Respondent insisted upon applying this policy to the 10 employees involved here, its employment record indicates that a large majority of the employees laid off in the December-January layoff'had lost their seniority rights under the rule prior to their reemployment. Despite this alleged rule, Respondent's record proves that Margie Sutter, a utility girl in the same position as held by Richmond at the time of her layoff on May 19, 1951, was rehired on July 30, 1951, following her (Suiter's) layoff of January 2, 1951, although, at the time Suiter was rehired, she had obviously lost all seniority rights while Richmond still retained hers. However, the Respondent rehired Suiter without making any effort to reinstate Richmond as required by its own "statement 10 Originally Dabbs denied that the seniority list he showed Elliott contained any such check marks. Thereafter Dabbs recalled that he had checked certain names on the list shown to Elliott but claimed that he had merely checked off the names of the fancy stitch operators because they were valuable employees the Respondent did not care to lose. He denied that these checks had anything to do with the employees to be laid off. Elliott mentioned the names of the fancy stitchers whom Dabbs had checked, all of whom turned out to be union adherents of whom a large majority were laid off. At least one name checked was not that of a fancy stitcher. ACME BOOT MANUFACTURING COMPANY, INC. 183 of policy." In addition, Richmond was experienced as a pull strap cutter but the Respondent chose to employ one Louise Jenkins, a newcomer to the Respondent's employ, on September 17, 1951, to perform that operation without attempting to recall Richmond. Respondent attempted to explain its failure to recall Richmond on the ground that she had injured her 2 arms in 2 separate automobile accidents and, therefore, could not work on a machine. This, however, does not explain the reemployment of Suiter or Jenkins in prefer- ence to Richmond on the very same jobs Richmond had satisfactorily performed up to the time of her layoff in May and subsequent to the above-noted accidents. The Respondent also attempts to argue that one Josephine Hinton, who was also a union adherent as active in the department as Richmond, was also laid off in May and not recalled, thus supposedly showing that there was no discrimination as to Richmond. However, showing that there might be other cases of discriminatory treatment does not explain the discrimina- tory treatment of Richmond. If the Richmond case were an isolated single instance, the undersigned would be inclined to excuse it as a "mistake" or an "inadvertance" but, in view of the pattern established by the Respondent in the subsequent cases of layoff discussed here, the undersigned believes that the Respondent intentionally discriminated against Richmond by failing to recall her because she had been active on behalf of the Union and, therefore, finds that the Respondent's failure to recall Richmond amounted to a violation of Section 8 (a) (3) of the Act. 2. Flora Perry Flora Perry, whose seniority dated from February 2, 1948, was laid off from the bottoming department on May 29, 1951. During the consolidation of the Respondent's two factories in January of that year, Perry had been transferred from the packingroom to the bottoming de- partment. At the time of her layoff her job classification was "inked heels and edges." During her employment at the factory she had also washed bottoms and done other jobs in the depart- ment. When Foreman Blackwell handed Perry her check on May 29, 1951, Perry objected that others with less seniority than she were being retained and asked why that should be. Blackwell answered: "I don't know, you will have to talk to Dabbs." The following testimony given on direct examination by Dabbs is revealing: Q. (By Mr. Martin) I notice the name of Flora W. Perry, inked heels and edges. A. Yes, sir. Q. And white some with lesser seniority than she were laid off, were 2 or 3 retained in the department with lesser seniority? What is the explanation of that, Mr. Dabbs? A. Well, she, no jobs down through that she could do whatsoever. Q. In other words, you do not consider she was capable? A. Capable of doing any of those jobs. Q. Holding any of the jobs of the employees retained there under her in seniority? A. No, sir, I do not. Q. All right, sir. TRIAL EXAMINER WILSON: May I ask one question there, please? MR. MARTIN: Yes, sir. TRIAL EXAMINER WILSON: I notice that Flora Perry is listed under job classification as inked heels and edges. THE WITNESS: Yes, sir. TRIAL EXAMINER WILSON: That the next employee [on the seniority list]is given a job classification of heels and edges . Is that the sane job? THE WITNESS: That is the same thing, yes, sir. Q. (By Mr. Martin) As between Flora Perry and Eula Frances Suiter [the next lower employee on the seniority list referred to above], why was Flora Perry laid off and Eula Frances Suiter retained? A. Flora Perry had only inked a very short time and she could not keep up production and that girl we had to talk to all the time to keep her coming along, and Eula Frances Sutter had been inking heels and edges ever since she had been with the Company. Q. In other words, that was another case in which ability and qualification was con- sidered? A. That is right. The girl, Perry, had only been on the job a very few weeks. The testimony of Dabbs creates the impression that each so-called "job classification" was based upon skill. The fact is to the contrary. Most jobs under consideration here were, 291555 0 - 54 - 13 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in fact, unskilled positions. The "job classifications" given on the exhibits prepared by the Respondent were actually no more than concise descriptions of the work then being done by the particular employee. Instance after instance taken from the records proves that new and unskilled employees were capable of holding and performing the work in most,any of these so-called job classifications. In addition to the example given in Dabbs' testimony above, these same exhibits show a multiplicity of job descriptions fitting extremely similar operations as in the case of "washing bottoms," "cleaning bottoms," and "washing soles," all of which are unskilled jobs for which no training is necessary. Thus Dabbs suddenly was forced to ' alter his position on why he had selected Perry for layoff when it developed that the job classifications of "inked heels and edges" and "heels and edges" were, in fact, the same operation and that Perry enjoyed greater seniority than Sutter by some 4 months. In addition Dabbs retained Odessa Jenkins and Roy Smith who were respectively 7 months and 1 year and 7 months junior in seniority to Perry and were per- forming jobs which Perry was capable of performing. In addition the record is clear that the Respondent hired one Carlene Evans, a new employee, on August 14, 1951, for the exact position Perry had been performing at the time of her layoff. The evidence is also clear that the Respondent knew that Perry was active on behalf of the Union while the evidence is equally clear that Suiter, Jenkins, Smith, and Evans were either nonunion or inactive in that regard. Furthermore Perry, having been transferred from the packing department within 6 months of her layoff, had seniority rights in that department also. Her seniority in that department is shown to be superior to no less than 19 employees who were retained and who were per- forming unskilled jobs. On this record it is impossible not to conclude that the Respondent both selected Perry for layoff in order to discriminate against her because of her union activity but also failed to rehire her in accordance with Respondent's own "statement of policy" for the same reason in violation of Section 8 (a) (3) of the Act. Respondent did reinstate Perry on November 27, 1951; subsequent to the issuance of the complaint in this case in which Perry was listed as one of those discriminated against, thus effectively ending the further accumulation of back pay owing to Perry. 3. Magga Lee Doty Magga Lee Doty, whose seniority dated from October 17, 1947, was listed on the payroll of April 29, 1951, under the job classification of "spanking ." She was the only employee in the department having that job classification. Dabbs explained the reason Doty was laid off in the following testimony given on direct examination: Q. (By Mr. Martin) Mr. Dabbs, I notice the name of Magga Lee Doty, job classifica- tion, shanking, laid off May 29, 1951; and I noticed that there was several other em- ployees in that department with lesser seniority than she who were retained and she was laid off. For instance, immediately under her name is Woodrow Mullins, John Ford and James Smith. First, I will ask you were they men's jobs or ladies' jobs, the ones Mullins, Ford and Smith were doing? A. Those were men's jobs. Q. Now, coming down, I do see the names of two ladies down there. One Ruth Glisson as a stitch separator and Ora May Stagner, cementing soles. Had Magga Lee Doty had any experience at cementing soles or a stitcher or why were those two ladies kept and she was laid off? A. Mrs. Doty had no experience on the stitch separator and very little on cementing soles. Not enough to keep the job going. Q. Well, what was the respective abilities of Ruth Glisson and Ora May Stagner on those jobs, if you know, as compared with, of course, Magga Lee Doty? A. I don't really think Mrs. Doty could do either one of those jobs correctly and keep production going. At that time , I know she couldn't on the stitch separator which she had never done before and she had been on cementing soles only a few days and I know she couldn't keep that up. Regarding this last contention made by Dabbs , the Respondent in its brief with admirable candor says: "It must be admitted that Dabbs appears to have been mistaken about this." ACME BOOT MANUFACTURING COMPANY, INC. 185 The facts prove that at the time of Doty's layoff on May 29, 1951, Doty had been - thanking for only a few months while her other 31 years at the plant had been spent at "cementing soles" as compared to the 8 months of experience which Stagner had. The record further proves that Laura Ellis whom the Respondent laid off in the Goodyear department on January 4, 1951, was reemployed to "cement soles" on August 13, 1951, at which time Doty still retained her seniority rights although Ellis had lost hers under the Respondent 's 3-month layoff rule. No attempt was made to recall Doty at this time. In fact Doty was not recalled until after the complaint had issued with her name being listed therein as one of those alleged to have been discriminated against. She was reemployed on December 31 and has been working for the Respondent since that time so that her back pay should end as of December 31, 1951, As in the prior cases the Respondent knew that Doty was an active union adherent while the persons retained to do jobs which she was capable of performing were also known to be either nonunion or not active. It is to be recalled that Foreman Ben Welsh was the man who, like Dabbs, had bragged to Doty that he could tell everyone in the Union and who, thereafter , inquired of Doty as to whether or not she was the union steward. Under these circumstances it appears quite clear that Dabbs selected Doty for layoff con- trary to her seniority rights as well as her ability because of her known activity on behalf of the Union in violation of Section 8 (a) (3) of the Act, ii 4. Edith Hiett Clark Edith Hiett Clark, listed on the payroll of April 29 under the job classification of "wash boots ," was among those laid off in the packing department on May 29 . As noted heretofore the job of "wash boots ." "sole washer, " etc., were unskilled jobs requiring little, if any, training. Clark was admittedly laid off out of strict seniority as others with the same job classification but with lesser seniority were retained --and others who had been laid off in January were rehired before Clark was offered reinstatement on November 19, 1951. She refused reinstatement because at that time she had another job which she preferred. On December 13 she did return to the Respondent's employ and later in July 1952 voluntarily quit that employment in order to seek an "easier job." She joined the Union and distributed some union leaflets but did not attend union meetings. There is nothing in the record to indicate that the Respondent had any knowledge of her union membership or activity except the general statement by Dabbs and Welsh that they could put their finger on all iinian members . Her activity on behalf of the Union was limited. Dabbs explained that he decided to lay off Clark instead of someone junior to her on the seniority roster because Clark was not as good a worker as those retained. Although Clark disputed this contention ; she did in effect substantiate it in part at least by voluntarily quitting in order to seek an "easier job;" In view of the doubt as to the Respondent's knowl- edge of Clark 's membership and activity aad in view of the substantiation given to Dabbs' claim that ability played a part in his decision to lay off Clark , the undersigned is unable to find upon the preponderance of the evidence that the General Counsel sustained his burden of proof that the Respondent actually discriminated against Clark because of her union activity and will, therefore , recommend that the Clark case be dismissed. 5; Maurice `Gi`e'ndon Appleton Glendon Appleton; classified on the April 29 payroll as "heeler and utility" with seniority from October 1947, is the brother of Buford Appleton, the recognized head of the move towards unionization . Glendon was laid off in the bottoming department on May 29, 1951. On the Respondent 's payrolls the job classification of "utility " apparently had different connotation's. In some de0artinents it meant that the employee could do most of the jobs in the department and could and did fill in on any operation as required. In other departments "utility " apparently meant a very menial , unskilled occupation. In Glendon 's case, contrary to Dabbs' contention , it apparently meant that he was capable of doing, and had performed, most of the jobs in the department. ii In this case, as in other cases here involved , the Respondent cited as evidence that no discrimination was practiced against the individuals involved the fact that other members of their family by blood or marriage either had or had not been laid off at the plant. The question of personal relationships has little, if anything, to do with discrimination based solely upon the union activities of the individual involved. 1 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Glendon was present at several conversations about the Union between Foreman Welsh and his brother, Buford. One of these conversations has been referred to at length heretofore and also in the discussion of Buford's layoff and so will not be reiterated here. Suffice it to say that Respondent knew of Glendon's activities on behalf of the Union. Ten employees with less seniority than Glendon and whose work Glendon was capable of doing were retained in the bottoming department when Glendon was laid off on May 29. Others whose work Glendon was capable of performing and who had been laid off in the January layoff were reemployed before Glendon was reinstated on November 21, 1951, after the charge in this case had been filed. After Glendon had been laid off, his place was taken by Dan McElroy, also a known and active union adherent, who just 1 month later was also laid off discriminatorily as found hereinafter. Because of Glendon Appleton's known union sympathy and activity, because admittedly Respondent's own seniority rules were violated in selecting Appleton for layoff (as well as in failing to reinstate him subsequently), the undersigned believes and , therefore, finds that the Respondent discriminated against Maurice Glendon Appleton on May 29, 1951, because of his union membership and activities in violation of Section 8 (a) (3) of the Act. 6. Isabel Harrell Isabel Harrell employed in the job classification of "dress boots" was also laid off in the packing department on May 29 although three others in the exact job classification junior to Harrell in seniority were retained and numerous others doing other jobs which Harrell was qualified by experience to perform, several of whom had been laid off in January, were reemployed soon after Harrell was laid off. Harrell joined the Union, was active on its behalf in soliciting memberships , attending meetings , and distributing leaflets . Two of those junior to Harrell and not laid off in the department were identified on the record as having been connected with the Union. But 25 others in the department not shown to have had any connection with the Union were also retained in the department. The Respondent's brief acknowledges, as it had to under the facts, that Harrell was laid off without regard to seniority. Respondent' s defense rests upon the claim by Dabbs during his testimony that Harrell had requested her layoff so that she could draw unemployment compensation until her pregnancy reached the 7-month point when such compensation ceases. Harrell was 3 months pregnant when laid off but testified credibly that she intended to work for 4 months before quitting and denied positively that she had ever requested a layoff. As respects Dabbs' credibility on this point, it must be noted that, so far as this record indicates, there was no advance notice given to the employees of the impending layoff of May 29 as they were merely handed their checks at the end of the day's work. Therefore it would be highly improbable that Harrell would have asked for a layoff at this time when she had no knowledge that a layoff was impending. This conclusion is buttressed by the fact that Hettie Carpenter who was likewise pregnant at this time and who also, according to Dabbs, requested her layoff was not in fact laid off by Dabbs until about 2 weeks after the general layoff of May 29. As must be evident by this time, Dabbs was not infallible in his testimony. The undersigned, therefore, must conclude in accordance with Harrell's credible testimony that she did not request a layoff. Despite an indefinite suggestion in the Respondent's testimony, there appears to have been no rule as to when a pregnant employee would have to cease working at the Respondent's plant. The uncontradicted evidence shows that most women worked through the seventh month. In fact one case is noted in this record where an employee worked a full day the day before the birth of her child. Due to Harrell's prominence in union activities, the obvious discrimination in the Re- spondent's use of its seniority principles in her case, and the patent unprobabilities of the defense asserted by the Respondent, the undersigned is constrained to find the Respondent selected Isabel Harrell for layoff contrary to seniority in order to discriminate against her because of her union membership and activities in violation of Section 8 (a) (3) of the Act. Harrell became a mother on November 24, 1951, and testified that she did not desire rein- statement by the Respondent. Therefore, her back pay should cease on September 24, 1951, at which time Harrell would have voluntarily ceased her employment with the Respondent. The Respondent maintained in its brief that any award of back pay to Harrell would amount to a penalty but faded to indicate wherein the making of such an award in this case would be any different than awarding back pay to any employee who had been discriminated against. The undersigned, therefore, finds that this contention is without merit. ACME BOOT MANUFACTURING COMPANY, INC. 187 7. Clayton Nosbusch Nosbusch, listed on the payroll of April 29 in the job classification of "sole layer" in the Goodyear department, was selected for layoff by Dabbs and actually laid off on May 29, 1951, by Foreman Ben Welsh, who informed Nosbusch at that time that he "imagined" that the layoff was "Permanent." At the time of this layoff Dabbs retained four employees in the department who were junior to Nosbusch in seniority by more than a year. Dabbs testified at the hearing that Nosbusch could not have done the work of any of these four. As in the similar case of Flora Perry, this observation by Dabbs does not appear to have been justified. It is noteworthy in this connection that the man who was operating Nosbusch's machine in November 1951 was one Andrew Bowers who had been laid off from the department on January 8, 1951, at which time he was classified as "laying soles" --apparently the very same classification as "sole layer." Bowers was rehired on July 30, in the lasting depart- ment under the classification of "utility" --but no effort was made to recall Nosbusch even though his seniority rights were still in existence while those of Bowers had lapsed. It is quite obvious that Welsh's remark about the permanence of Nosbusch's layoff was well considered although, after the filing of the charge, the Respondent reinstated Nosbusch on November 14, 1951. Dabbs admitted that he interrogated Nosbusch at his machine one day prior to the April 20 election as to his union membership and admitted making the remark at that time that he, Dabbs, would have to give Nosbusch "credit" for admitting his membership. It is, therefore, quite clear, and the undersigned finds, that the Respondent selected Clayton Nosbusch for layoff contrary to its own seniority policy in order to discriminate against him because of his union activities and membership in violation of Section 8 (a) (3) of the Act. 8. Gilbert Baggett Gilbert Baggett, classified as "lining cutter," was laid off on May 31 by Foreman Nixon, who selected the personnel in the cutting department for layoff and who prior to the April election had inquired of Baggett as to his union affiliation without securing a definite answer. iz Baggett had been active on behalf of the union soliciting members, passing out literature, and attending union meetings as the Respondent knew or suspected from the inquiry made of him by Nixon. In the cutting department 6 of the 9 employees laid off were the 6 lowest on the seniority roster. The other 3 apparently were selected on other bases as they stood much higher in seniority than the other 6. In Baggett's case he was the lowest of the "lining cutters" to be laid off but was perfectly capable of doing the work of several employees with lesser seniority who were retained. In fact, Baggett had been doing the work done by those with lesser seniority than himself.i3 Without making any attempt to rehire Baggett, the Respondent on July 11, 1951, reemployed Etta Hazel Biter as "cuts linings" although Biter was a "machine operator" in the bottoming department when laid off on January 4, 1951. On July 16, 1951, it hired Pauline Wyatt to 'cut underlays" although she had been laid off from the Goodyear department as "in seam trimmer" on January 4. On August 6, 1951, it rehired Doris Davis, the lowest on the cutting department seniority roll, as a "lining cutter" although Davis had been laid off on May 15 after working only since February 28, 1950. Also on August 6 Respondent employed Claude Baldwin on the "cut out" machine in the cutting department, although when Baldwin had been laid off on January 8, he was listed as "breast scourer" in the bottoming department. The evidence shows that none of these individuals had been interested in the union movement. It is therefore evident that the Respondent did not desire to employ or reinstate Gilbert Baggett because of his interest in the Union and' that the Respondent discriminated against him in selecting him for layoff on May 31, 1951, in violation of Section 8 (a) (3) of the Act. izThe last portion of this finding is made upon the uncontradicted testimony of Baggett. Foreman Nixon did not appear as a witness. i3The Respondent points out in the brief that Edith Gunnels, one of those retained whose work Baggett could have done, was another employee who was active on behalf of the Union but was retained as proof of the lack of a discriminatory intent on its part. However, there is no showing that the Respondent had even a suspicion that Gunnels was active on behalf of the Union at the time of the layoff as it did with Baggett. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 9. Daniel McElroy McElroy , classified as "jointing" in the bottoming department with seniority dating from January 1947 , was told by Dabbs on June 29 that he was being laid off in order to reduce production and in order to make room for a former foreman named Hall . He was laid off as of that date. Shortly before the April election , Dabbs and Humbert took McElroy to task for soliciting memberships in the plant as found heretofore. This reprimand ended with Dabbs telling McElroy: "We just wanted you to know that we can tell a skunk when we see one ." In its brief the Respondent contended that the Respondent was merely objecting to McElroy's activities on company time and property . If thatwere the object of the Respondent's 'reprimand, the Respondent went far beyond that purpose and engaged in coercive tactics in an apparent effort to stop union activity. While laying off McElroy , Dabbs retained Ray Smith, classified as "joining," 14 although his seniority was junior to that of McElroy by 1 year and 8 months. Dabbs' explanation for this choice was that Smith could do 2,000 pairs of shoes per day so that he alone could handle the plant's 1,500 pair production per day while , if McElroy with the production of 11 ,000 to 12 ,000 pairs had been retained , Respondent would have had to keep 2 men on that job. In this connection, it is interesting to note that on August 22, 1951, the Respondent hired Gordon Hawkins, a new employee , for the job classification of "joints" but failed to recall McElroy whose seniority at that time was still in existence according to the Respondent's own statement of policy . It would thus appear that production was not the only reason that Dabbs selected McElroy for layoff even if the Dabbs' testimony , disputed as it was, should be accepted at face value. It is also interesting to note that the July produc- tion which is the only month that Ray Smith worked by himself was less than 1,500 pairs per day and that, even before production exceeded 1,500 per day , the Respondent hired Hawkins. As for the second reason given by Dabbs , i.e., to make a place for ex-Foreman Hall, Hall, the individual involved , testified that he never operated a machine in the bottoming department but, on the contrary, was placed at inspecting and that he was, therefore, not in- volved in the layoff of McElroy at all. In addition McElroy was qualified by experience to fill the job classification of "heel scourer " and "breast scourer " for which position Dabbs retained men junior to McElroy in seniority and subsequently hired beginning August 8 , 1951, others who had previously been laid off either in January or in May. McElroy was rehired November 26, 1951 , after the charge in this case had been filed. Under all the circumstances of this layoff out of seniority and allegedly for reasons which were not accurate , the undersigned is convinced and therefore finds that the Respondent laid off Daniel McElroy on June 29, 1951 , in order to discriminate against him because of his activities for and on behalf of the Union in violation of Section 8 (a) (3) of the'Act. 10. Buford Appleton Also laid off in the Goodyear department on June 29, upon the orders of Dabbs,15 was Buford Appleton , the chairman and/or president of the Union and, without question , its most active and energetic adherent , as the Respondent well knew. During the campaign prior to the April 20 election , Foreman Welsh had warned the Appleton brothers , Buford and Glendon , that "Mr. Cohn and them had decided if the Union did come in that they were going to cut the plant down and ... even if they didn't shut the plant down, we could rest assured they 'd find out who we were and fire us ... it was done before and it would be done again." When Welsh handed Buford his dismissal check , he told Buford that he , Buford , "was a good man. He hated to do it, but I shouldn 't expect anything more." On the question of the discriminatory nature of the selection of Buford for layoff, the Respondent's record shows that Buford was a "stitcher " with seniority dating from March 3, 1947 . The only other stitcher in the department was James Smith , who had signed a union card but was not active in behalf of the Union and whose seniority began as of July 13, 1948. 14 "Jointing" and "joining" are admittedly identical operations. 15 This finding is made on the credited testimony of the Respondent 's witness , Foreman Ben Welsh , despite the claim made by Dabbs that the foremen of the various departments selected the employees for layoff. It is clear that, except for the fitting department and cutting room . Dabbs actually selected the individual employees to be laid off. ACME BOOT MANUFACTURING COMPANY, INC. 189 Dabbs explained his selection of 'Buford for layoff as necessitated by the fact that in the consolidation of the 2 plants, 2 former foremen had lost their supervisory status and Buford's machine was needed to keep 1 of them busy. As this consolidation and demotion must actually have occurred in January, this explanation on its face appears strange. Over and above that, however, employee James Smith, another stitcher with lesser seniority than Buford who had joined the Union but was not active on its behalf, testified positively that except for a period of possibly 3 weeks, he had performed the work in the department previously done by Buford, that a couple of weeks before Buford's layoff he, Smith, had been transferred from his stitcher machine but that a week or so after the layoff, he had been transferred back to Buford's machine. On this point, Dabbs testified that Smith had been transferred from the Goodyear department 2 months before the June 29 layoff and was not transferred back to the department until 4 days before Buford's return on December 31, 1951. However, neither of the demoted foremen involved testified and the April 29, 1951, payroll carrying Smith as of that time as a stitcher confirms Smith's testimony but not Dabbs'. The Respondent made no effort to corroborate Dabbs from records under its control so that it is a fair inference that Dabbs made another of his mistakes in this instance especially as Smith, the man directly involved and who should know, testified credibly and positively to the contrary. It is also to be noted that, while the Respondent contended that Buford's layoff was occasioned by the reduction in production, Buford was actually laid off exactly 21 days after the Re- spondent had ceased laying off in order to reduce production and after the Respondent had commenced to rehire employees. The only other employee supposedly laid off at this time in order to reduce production was Daniel McElroy, whose case has been discussed above, hardly enough to affect production. The Respondent began rehiring machine operators in the Goodyear department as early as June 11, 1951, but failed to recall Buford. The Respondent also argued that there can be no discrimination against Buford for the reason that, if it had not laid off Buford, it would have had to lay off James Smith, another union man. This argument is fallacious on several counts. First the layoff of Buford was much more desirable from an antiunion standpoint than that of Smith based solely upon the fact that Buford was a recognized leader of the union movement while Smith, although having executed a union card , was inactive. Next, the Respondent was not faced with a choice between Buford and Smith for the reason that Smith was not the lowest employee on the seniority list by at least six employees doing relatively unskilled work which either Buford or Smith was capable of performing. Although both Buford and Smith were classified as "stitchers," there were other jobs which each was qualified to perform then being performed by others in the department with less seniority than either. Furthermore, the records of the Respondent prove that a considerable number of the employees of the department who had been laid off in January performing relatively unskilled jobs were rehired for work in the department beginning in July 1951, although the Respondent did not choose to recall Buford despite its stated policy contained in its "statement of policy" to the employees regarding "recalls from layoffs." Thus the undersigned is convinced that Foreman Welsh's remark that Buford should not have expected anything more than a layoff explains why the Respondent so completely dis- regarded its own seniority policy in selecting Buford for layoff and in failing to recall him to work until December 31, 1951, long after the complaint in the case had been issued. Accordingly, the undersigned finds that the Respondent violated Section 8 (a) (3) of the Act in selecting Buford for layoff on June 29, 1951, and in failing to recall him to work thereafter. C. The discharge of Aubrey Gulledge Gulledge had been employed "rubbing side seams" in the fitting department for all but about the first 6 months of his period of employment which began in October 1947. In addi- tion to regular production, Gulledge rubbed the sample boots and did all the rubbing on the Respondent's extra special boots made specifically for movie stars and others. On both these jobs the Respondent would use only its best workmen. Because it had had difficulties in the rubbing operation the Respondent at some unspecified time in the past had increased its staff of seam rubbers to 4, 2 (Gulledge and Skinner) rubbed the seams which ultimately became the inner seams next to the leg and 2 others rubbed the outside seams in a subsequent operation. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Prior to the April 20 election, Gulledge and his wife, Katherine, were both active on behalf of the Union , soliciting members , distributing leaflets , and attending union meetings. Katherine Gulledge acted as the union observer during the election. Prior to that election Gulledge told Foreman Elliott that he was a member of the Union to which Elliott answered that he hoped that the Union would succeed . About 2 weeks after the election Elliott told Gulledge that Superintendent Humbert had told him , Elliott , that he, Humbert, "was going to have to get rid of part of the union bunch on that floor." At the time of the first layoffs in May 1951 Dabbs talked to Foreman Elliott about the impending layoff in the plant . He had a list of the employees of the department in his hand. Some 10 to 30 of the names on this list had been check marked by Dabbs . The names of both the Gulledges had been so marked . " It was at this time that Elliott insisted that the layoffs in his department would have to be made in accordance with strict seniority if he was to have anything to do with them. During this argument Elliott protested that Katherine Gulledge was too valuable an employee to be laid off. Dabbs departed without resolving the issue but returned sometime later and told Elliott to make the layoff as he wanted to and in accord- ance with seniority although by so doing the Respondent would lose some valuable employees. Elliott did lay off in the fitting room in strict accord with seniority and from the bottom of the seniority roster. Neither Gulledge was laid off in these reductions in force. 17 On June 28 , 1951, Dabbs brought a letter from a customer , rejecting a pair of boots because of the poor seams , together with 2 boots to the 4 seam rubbers . Ile reprimanded them and demonstrated how a boot should be rubbed . Admittedly no one knew who had rubbed the boots which Dabbs held in his hand. Also admittedly the seams on these boots were bad although there was a dispute between Dabbs and Gulledge as to whether the seams were caused by poor rubbing or whether they were due to poor joining, a prior operation. Either at this same time or a very short time thereafter1R that same day, Dabbs inspected some boots upon which Gulledge had just finished work . After inspecting the boots he told Elliott that the work was bad on them and that there was only one thing to do : fire Gulledge. He thereupon told Gulledge that he would have to discharge him because of poor workman- ship. Gulledge was thereupon paid off and has never worked for the Respondent since. As Gulledge was leaving the plant that day Elliott informed him that he , Elliott, had nothing to do with the discharge and, in fact, considered that Gulledge 's work was as good as it had ever been. Dabbs maintained that for a period of 6 months or more the Respondent had been having complaints about the rubbing , that many times during this period the rubbers had been reprimanded for poor workmanship but that Skinner's work thereupon improved while Gulledge's did not. Gulledge denied that his work had not improved but admitted that, like every other employee in the plant , he had had imperfect work returned to him and that, again like every other employee in the plant , his foreman had attempted to improve his work. The story of Dabbs is not convincing . The discharge of an employee immediately following the rejection of a pair of boots by a customer on the grounds of imperfect workmanship, for which no one knew who was responsible and the discovery of some other imperfect work by a workman, appears so drastic to the undersigned as to be improbable - -unless there were some reason other than "bad work" to cause the discharge . Especially is this so when the discharged employee had for 3 years or more been doing work which the Re- spondent, like any other manufacturer , would require to be as perfect as possible; i.e., work on samples and the extra special high -priced boots for such good advertisements as movie actors , etc. It is more especially so when , as here, it was questionable whether the faulty workmanship was done at the employee 's machine or at a prior operation. Ap- parently Gulledge's work had been satisfactory to the inspectors in his department . In this connection it is enlightening to know that Skinner, the other operator on the same work as Gulledge, voluntarily quit the Respondent 's employ on July 20 and , although, according to i6Dabbs contended at the hearing that he had checked the names of all the fancy stitchers in the department and claimed that the check marks had nothing to do with the layoff . Elliott, however, testified that Aubrey Gulledge's name was also marked although he was not a stitcher. 17Dabbs testified that he instructed Foremen Elliott and Pace to lay off in strict accordance with seniority from the bottom of the seniority roster. This testimony would be more con- vincing if the other departments under Dabbs' supervision had followed that practice as obviously as it was followed in the fitting departments. IB These findings are a synthesis of the testimonies of Dabbs , Gulledge , and Foreman Elliott, none of which agree in toto although the last two are the closest to agreement. ACME BOOT MANUFACTURING COMPANY, INC. 191 Dabbs, his work had also been the subject of criticism, was rehired by the Respondent on August 13 and was still in the Respondent's employ at the time of the hearing. Skinner, however, although in favor of the Union, had not been active in its behalf. The Respondent's brief points to the length of time which had elapsed between the cessation of union activities immediately after the April 20 election and the date of the discharge on June 28 as proof of a lack of discriminatory motivation on the part of the Respondent in the discharge of Gulledge. This so-called proof is more than offset by the fact that on June 28-29, the Respondent by discharge or by layoff eliminated Gulledge, Buford Appleton, and Dan McElroy, all of whom the Respondent recognized as the staunchest and most active of all the union adherents in the plant. Thus in a 2-day period the Respondent rid itself of the 3 most active leaders in the union movement. It must be also recalled that the reasons given by the Respondent for the layoff of the latter 2 employees was "reduced production"- -even though there had been only 1 other employee laid off purportedly for that reason for a period of 3 weeks prior to that date and during that 3 weeks the Respondent was actually rehiring em- ployees rather than reducing production. The undersigned is convinced, and therefore finds, that the real reason the Respondent discharged Gulledge, as well as laid off Buford Appleton and Dan McElroy, was that he was an active and prominent leader in the union movement, as were the other two individuals named to the Respondent 's admitted knowledge, and that the alleged poor workmanship was merely the pretext by which the Respondent attempted to cover up the fact that the real reason for the discharge was the union activity of Gulledge. The discharge of Aubrey Gulledge was, therefore, in violation of Section 8 (a) (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent had engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent discriminated against Mildred Richmond, Flora Perry, Magga Lee Doty, Glendon Appleton, Isabel Harrell, Clayton Nosbusch, Gilbert Baggett, Daniel McElroy , Buford Appleton , and Aubrey Gulledge, by either discriminatorily selecting them for layoff, discriminatorily refusing to recall them in accordance with the seniority policy, or discharging them because of their union activities, it will be recommended that the Respondent reinstate those of the above named who have not heretofore been reinstated, restore to them their seniority rights and other rights and privileges as though they had never lost their employment, and make them whole for any loss of pay which each of them may have suffered by reason of the Respondent's discrimination against them in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289. Upon the consideration of the record as a whole , the undersigned is convinced the Re- spondent's conduct in discriminating against the above- named employees as it did indicates an attitude of opposition to the purposes of the Act generally. In order, therefore , to make effective the interdependent guarantee of Section 7 of the Act, thereby minimizing industrial strife, which burdens and obstructs commerce, and thus effectuate the policies of the Act, it will be recommended that the Respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. United Rubber, Cork, Linoleum & Plastic Workers of America, CIO, is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment and in the terms and conditions of employment of Mildred Richmond, Flora Perry, Magga Lee Doty, Glendon Appleton, Isabel Harrell, Clayton Nos busch, Gilbert Baggett, Daniel McElroy, Buford Appleton, I 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Aubrey Gulledge, thereby discouraging membership in United Rubber, Cork, Linoleum & Plastic Workers of America, CIO, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 3. By interfering with, restraining, and coercing the employees in the exercise of the 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. 5. The Respondent committed no unfair labor practice as regards Ruth Hiett Clark. [Recommendations omitted from publication.] 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: 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 United Rubber, Cork, Linoleum & Plastic Workers of America, CIO, 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. WE WILL offer to the employees named below immediate and full reinstatement to their former or substantially equivalent positions restoring all seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Mildred Richmond Clayton Nosbusch Flora Perry Gilbert Baggett Magga Lee Doty Daniel McElroy Glendon Appleton Buford Appleton Isabel Harrell Aubrey Gulledge 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 or tenure of employ- ment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. Acme Boot Manufacturing Company, Inc., Employer. Dated ................ By.............................................................................................. (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. THE CARBORUNDUM COMPANY and DISTRICT LODGE 76, LODGE 689, INTERNATIONAL ASSOCIATION OF MA- CHINISTS, AFL, Petitioner. Case No. 3-RC-1141. May 29, 1953 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before William J. Cavers, hearing officer. The hearing officer ' s rulings made 105 NLRB No. 16.