Polynesian Arts, Inc.

542 DECISIONS OF -NATIONAIJ LABOR RELATIONS BOARD to hire or tenure of employment or any term or condition of employment against any employee because of his membership in or activity on behalf of any such labor organization. CAMP AND MCINNES, INC, ALAMO DIVISION, Envployer'. Dated-------------------- By--------------------------------------------- (Representatne ) ( 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. POLYNESIAN ARTS, INC. and UNITED PACKINGHOUSE WORKERS OF AMERICA, CIO and NATIONAL BROTHERHOOD OF OPERATIVE POTTERS, LOCAL UNION No. 227, AFL, PARTY TO THE CONTRACT . Case No. 9-CA-k341. Augv3t 8, 1952 Decision and Order On January 5, 1952, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the Act, 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. Thereafter, the Respondent filed exceptions to the Intermediate Re- port and a supporting brief. The Board 1 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 Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations.2 Order Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Polynesian Arts, Inc., May- field, Kentucky, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Dominating or interfering with the formation or administra- tion of, or contributing support or assistance to, National Brotherhood of Operative Potters, Local Union No. 227, AFL, or any other labor organization. - I Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its powers In connection with this case to a three-member panel [ Chairman Herzog and Members Houston and Murdock]. 2 With respect to the 8 (a) (2) issue, see Jack Smith Beverages . Inc., 94 NLRB 1401. 100 NLRB No. 86. POLYNESIAN ARTS, INC. 543 (b) Recognizing National Brotherhood of Operative Potters, Local Union No. 227, AFL, or any successor thereto, as the representative of any of its employees for the purpose of dealing with Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. (c) Performing or giving effect to any contract with National Brotherhood of Operative Potters, Local Union No. 227, AFL, or any successor thereto, relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. (d) Engaging in surveillance of its employees in the exercise of their rights guaranteed in Section 7 of the Act. (e) Discouraging membership in United Packinghouse Workers of America, CIO, or any other labor organization of its employees, by discriminatorily discharging any of them or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Packinghouse Workers of America, CIO, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized in Section 8 (a) (3), of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Withdraw and withhold all recognition from, and completely disestablish, National Brotherhood of Operative Potters, Local Union No. 227, AFL, as the representative of any of its employees for the purpose of dealing with Respondent concerning grievances, labor dis- putes, wages, rates of pay, hours of employment, or other conditions of employment. (b) Offer Vivian Montgomery and Dorothy Webber immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make each of them whole, in the manner set forth in the section of the Intermediate Report entitled "The Remedy," for any loss of wages suffered as a result of the discrimination against each of them. (c) Upon request, make available to the National Labor Relations Board or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to determine the amounts of 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD back pay due and the rights of reinstatement under the terms of this Order. (d) Post in its plant at Mayfield, Kentucky, copies of the notice attached to the Intermediate Report and marked "Appendix C." 3 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by Respondent's repre- sentative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Ninth Region, in writing, within ten (10) days from, the date of this Order, what steps the Respondent has taken to comply herewith. 3 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" in the caption thereof, the words "A Decision and Order." In the event that this Order ii enforced by a decree of the United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pur- suant to a Decree of the United States Court of Appeals, Enforcing an Order." Intermediate Report and Recommended Order STATEMENT OF THE CASE The disputed matters in the above-captioned proceeding concern allegations that Polynesian Arts, Inc., herein called Respondent, (1) "interfered with the forma- tion and administration and contributed financial and other support to" National Brotherhood of Operative Potters, Local Union No. 227, AFL, herein called the AFL; (2) discriminated against Vivian Montgomery and against Dorothy Web- ber ; and (3) engaged in surveillance of a meeting of its employees then being con- ducted by United Packinghouse Workers of America, CIO, herein called the CIO. The issues, framed by a complaint, as amended, and an answer, were fully liti- gated at a hearing before the undersigned on October 15, 16, and 17, 1951. At the close of the hearing the undersigned took under consideration a motion to dismiss the complaint. This motion is now disposed of in accordance with the following findings and conclusions. After the close of the hearing, briefs were received from counsel for the General Counsel and from counsel for Respondent which have been considered in the preparation of this report, There is no dispute concerning the following matters and the evidence reveals and the undersigned finds that : (1) Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the National Labor Relations Act, as amended, herein called the Act; 1 (2) the AFL and CIO are labor organizations within the meaning of Section 2 (5) of the Act; and (3) no union-shop author- ization election was held as was required by the Act during the period of time involved herein. 'Respondent engages in Mayfield , Kentucky, in manufacture and sale of pottery. Annual purchases of raw materials are in excess of $100,000, 75 percent of which is shipped to Respondent's plant from sources outside the State of Kentucky. Annual sales are in excess of $400,000, 60 percent of which is shipped to points outside the State of Kentucky. POLYNESIAN ARTS, INC. 545 As indicated above, Respondent denied the unfair labor practices alleged and set forth affirmative defenses, hereinafter discussed. Upon the entire record in the case and from his observation of witnesses, the undersigned makes the following findings of fact, conclusions of law, and recom- mendations Formation and Recognition of AFL Previous to March of 1951 Respondent's employees had not been organized by any union. The CIO had attempted organization in 1949 but had failed to achieve a majority in an election held in June 1949. On or about March 6, 1951, C. Frank Dales and James Slaven, representatives of the National Brotherhood of Operative Potters, AFL, contacted H. H. Gantt, president, principal stockholder and person "responsible for the direction" of Respondent, and asked Gantt whether he had any objections to the AFL organiz- ing the employees. Gantt agreed to call a meeting of the employees and "tell them, ask them if they want a potter's union and if they approve a hundred percent, I will go along with them. If they don't I will fight you just the same as I fought the CIO two years ago." The next day, on or about March 7, 1951, at Gantt's direction, a general meet- ing of all employees was announced over the plant loudspeaker. The meeting was held in front of Respondent's plant, on company property, and was attended by Gantt, H. C. Bell, recording secretary of Respondent and Respondent's busi- ness and personnel manager, the two AFL representatives and most of the em- ployees. Gantt informed the employees that Respondent was contemplating sell- ing the pottery and that he thought it was to the employees' advantage to have a union and recommended to them a union that was familiar with the pottery industry. Gantt then introduced Dales and Slaven to the employees and stated he desired the employees to cooperate with them. The AFL representatives thereupon explained the benefits of the AFL organization to the employees. Upon the conclusion of the meeting, the employees returned to their work. A short time later Dales and Slaven, accompanied by supervisory employees of Re- spondent,' distributed, throughout the pottery, application cards for membership in the AFL. These cards were left at the work benches of the employees. About the time the cards were being distributed or shortly thereafter, Mrs. Gantt, a supervisor, told the employees in the decorating shop that she "wanted us to know that she and Mr. Gantt were for this union a hundred percent and she recom- mendgd that we sign the cards." When employee Vivian Montgomery asked per- mission to leave the plant Mrs. Gantt asked her if she had signed the card. Montgomery said no, but she would "see about it" when she got back and Mrs. Gantt said that was "all right." Dales and Slaven returned for the cards. On this occasion Slaven was accom- panied by Mrs. Gantt. When Slaven and Mrs. Gantt approached Dorothy Webber and asked if she had signed the card Webber "told them no, I hadn't, because I 2 The testimony concerning the incidents involved in this proceeding is conflicting and contradictory and the findings of fact made herein result from the undersigned 's attempt to reconcile the evidence and determine what probably occurred . The findings of fact are based upon a consideration of the entire record and observation of witnesses. All evidence,on disputed points is not set forth so as not to burden unnecessarily this report However, all has been considered and where required resolved. In determining credibility the undersigned has, considered , inter alia, the demeanor and conduct of witnesses ; their candor or lack thereof ; their apparent fair-ness, bias , or prejudice ; their interest or lack thereof ; their ability to know, comprehend , and understand matters about which they have testified ; and whether they have been contradicted or otherwise impeached. The superintendent accompanied Dales and Huston Carrico, assistant superintendent, accompanied Slaven. 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hadn't had time. My work backed up on me " Mrs Gantt then told Webber, "You have got time now. Stop and sign it." Webber signed the card. When Montgomery, who had left the plant after the card distribution, re- turned, Mr. Gantt asked her whether she had signed the AFL card. -Montgomery told him "no.'t Mr. Gantt then asked if she "was going to go ahead and sign it" and Montgomery responded that she "didn't want to" and asked him "why did he want us to have this union when he fought it [the CIO] so hard twb years ago." Mr. Gantt said "he didn't intend to have the CIO in" and asked Montgomery whether she was "going to sign that card." Montgomery said, "I will sign it, but I don't know if I will vote for the Union." Montgomery then signed the card and gave it to Mr. Gantt. When employee Mary Marvey Burgess refused to sign the card, Mr. Gantt called her and asked her to sign and she told him she "wouldn't do it." Mr. Gantt re- sponded, "Won't you?" and Burgess said, "No." Mr. Gantt then said, "Just re- member I gave you the chance." After the cards had been picked up, Respondent and the AFL executed an agreement stating: Agreement of March 7, 1951- Whereas, it is the desire of the representatives of the employees of Poly- nesian Arts, Inc. belonging to the National Brotherhood of Operative' otters and Polynesian Arts, Inc. to promote mutual cooperation and harmony nd to formulate rules for the guidance of the parties. Now, therefore, in consid- eration of their mutual promises, the parties hereto agree as follows : Whereas, the employer (Polynesian Arts, Inc.) agrees to, and does by this agreement, recognize the National Brotherhood of Operative Potters as the collective bargaining agent for the employees of Polynesian Arts, Inc. plant and the Polynesian Arts, Inc. agrees to meet with the representatives or a chosen committee of the National Brotherhood of Operative Potters to handle and adjust grievances for any of the Company Employees, who desire such a committee to represent them. In view of the foregoing mutual agreement it is hereby understood that the above parties will meet on March 16th to negotiate a contract between the duly appointed representatives of the Polynesian Arts, Inc. employees, be- longing to the National Brotherhood of Operative Potters and Polynesian Arts, Inc. In witness of the above agreement between said parties they have hereto affixed their signatures. On or about March 8, 1351, another meeting of employees, during that after- noon, was announced over the plant loudspeaker." This meeting was held in Respondent's decorating shop. Mr. Gantt, Eulalya Rogers, supervisor over the decorating shop, and Huston Carrico, assistant superintendent, were present at this meeting. Dales and Slaven again tried to sell the AFL to the employees: At'the request of the AFL representatives a vote was taken as to whether the employees desired representation by the AFL. Over objections by some of the employees present, this vote was by a show of hands. A majority of the votes were in favor of the AFL. However, nine employees, including Montgomery, Webber, and Burgess,' voted against such representation. Also, at the sug- gestion of the AFL representatives, departmental representatives "to draw up the contract and to represent each department" were elected. 4 Respondent had exclusive control over the use of the loudspeaker equipment. e Burgess' employment with Respondent ceased in May 1951. There is no issue herein concerning this termination of employment. POLYNESIAN ARTS, INC. 547 On or about March 13, 1951, another meeting of employees. during that after- noon, was announced over the plant loudspeaker This meeting was held in the decorating shop and was attended by Mr. Gantt, the AFL representative, and the employees At this meeting Mr. Gantt read a contract which had been prepared by Respondent and AFL representatives and requested a vote as to u hetl:er the employees "would accept it or not." A vote was taken and the contract was rejected. Mr. Gantt was "quite displeased" with the results of the vote and remarked that "he would like to see the sheep from the goats and the ones that was against him step out the door " Either Dales or Slaven told Gantt he couldn't do that and the employees were not separated into groups After rejection of the contract, Gantt and -the AFL representatives (Dales, Slaven, and some of the employees) left the decorating shop and revised some of the provisions of the contract. They then returned to the decorating shop and a vote was taken on this revised contract. The employees voted to accept it Within the next few days a document authorizing Respondent to check off dues and initiation fees to the AFL was circulated in the plant' Montgomery and Webber indicated reluctance to sign this document but signed it after talk- ing, in the decorating shop, with AFL representatives Burgess refused to sign the document and stated that she had not signed an authorization card. About 10 minutes later, Mr. Gantt, as indicated above, asked her to sign and when she refused, remarked, "Just remember I gave you the change " ° On or about March 14, 1951, Respondent and the AFL executed a collective bargaining agreement. This agreement provides, inter alia: It is specifically understood that all employees except office force-foremen and supervisors, shall become members of the Union, and all new employees shall become members of the Union within thirty (30) days after being hired. As noted above, no union-shop authorization election had been held as was then required by the Act. No deductions were made from employees' pay for time spent at the various meetings where the AFL was discussed and for activities on behalf of the AFL, although the activities, noted above, occurred during working hours. Through- out the period of AFL organization, Respondent furnished various company facilities to the AFL, in effect, giving the AFL the "run of the plant." When Vivian Montgomery left the plant about noon on or about March 7, 1951 (after the distribution of AFL application cards, as noted above), she contacted a local CIO representative. After work that day Montgomery and Webber met with a CIO representative and arranged for a CIO meeting to be held the next day. Such a meeting was held the next day at the Cardinal Inn which was owned by Montgomery's husband. CIO pledge cards were distributed. On or about March 7, 1951, the CIO addressed a letter to Respondent (which was received by Respondent March 8, 1951), informing Respondent that the CIO represented a majority of the employees, that for Respondent "to engage in collective bargaining with any other organization at this time would be illegal under the provisions of the Management-Labor Relations Act," and that the CIO was filing a representation petition with this Board. On March 12, 1951, the CIO filed a representation petition.' The Regional Director for this Board informed Respondent of the filing of this petition and sent Respondent a copy ' The revised contract provides for a "check off of monthly dues and assessments " Mr Gantt denied that lie asked Burgess to sign the card His denial is not cred'ted ' Case No 9-RC-1 160 227260-13-col 100--36 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereof, which was received on March 13, 1951. As noted- above, after- notice of the CIO claim to represent the employees involved, Respondent executed a collective bargaining agreement with the AFL. Upon the entire record in this matter, the undersigned finds that Respondent formed, dominated, and interfered with the formation and administration of the AFL and contributed material support thereto within the meaning of Section 8 (a) (2) and (1) of the Act, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 thereof. Surveillance During the last part of February or the early part of March 1951, Eulalya Rogers, decorating room supervisor, and Irene Pearce, an employee of Respondent then friendly with Rogers, went in -an automobile to observe a CIO meeting which they thought was scheduled to be held at the Cardinal Inn. However, no such meeting was held that night. They were more successful on or about March 17, 1951. On the latter date, Rogers and Pearce, seated in an automobile across the street from a CIO meeting, observed and made notes concerning employees of Respondent at such meeting. This activity was observed by the employees as they left the meeting. It is well settled that such espionage upon employees engaged in concerted activities infringes their rights under Section 7 of the Act, and consequently violates Section 8 (a) (1) thereof. N. L. R. B. v. Fruehauf Trailer Co., 301 U. S. 49, 54-55; Pennsylvania Greyhound Lines, 303 U. S. 261, 270; Carolina Mills, Inc., 92 NLRB 1141; Wood Mfg. Co., 95 NLRB. 633. Vivian Montgomery Montgomery entered Respondent's employ about October 13, 1947. She worked at various jobs in the plant until she was laid off on April 24, 1951. During the organizational campaign conducted by the CIO in 1948, Mont- gomery actively attempted to persuade her fellow employees to vote against the CIO. Her anti-CIO sentiments were well known by Respondent at this time. As noted above, Montgomery contacted the CIO following the initial meeting at which-employees were solicited to join the AFL and, during the period of activity on behalf of the AFL, voiced to Respondent her opposition to the AFL. As noted above, Montgomery and Webber on or about March 7, 1951, made arrangements for a CIO meeting which was held the next day at the Cardinal Inn. Montgomery and Webber solicited attendance for this meeting. :In; addi- tion, Montgomery and Webber visited employees at their homes and solicited membership in the CIO. About March 9, 1951, Montgomery and Webber, accompanied by certain repre- sentatives of the CIO, who were not employees of Respondent, distributed CIO leaflets to the employees of Respondent as they left the plant. While engtged in this activity they were observed by Mr. Gantt and other officials of Respondent who were standing in the plant doorway. Mr. Gantt testified Montgomery and Webber were the only employees of Respondent he observed distributing CIO handbills during this organizing effort by the 010. About the middle of March 1951 Montgomery and other employees composed an announcement of a CIO meeting to be held that week, which was posted on the plant bulletin board. The meeting was held as-scheduled. This is the meeting that Eulalya Rogers and Irene Pearce observed from an automobile parked across the street from the meeting place. Montgomery and Webber attended this meeting. POLYNESIAN ARTS, INC. 549 On or about April 23, 1951, Montgomery and Webber again distributed CIO leaflets in front-of Respondent's plant at the end of the work day. The next day, on or about April 24, 1951, Montgomery reported for work as usual. Either that morning or "right after lunch" Montgomery stated "out loud" : Has anybody got a nickel , I have got to have a Coca-Cola ; I have indigestion. Montgomery then left the decorating shop , and went to another room in the plant and obtained a Coca-Cola . She returned immediately to the decorating shop, where she drank the Coca-Cola. Neither Mrs. Rogers , supervisor of the decorating shop, nor any other official of Respondent said anything to Mont- gomery about this incident until about 4 p. in. that day when Montgomery was called to Mi. Gantt's office. Gantt told Montgomery she was being laid off temporarily for "insubordination and breaking the rules." Montgomery asked for an explanation-what she had done-and Gantt said, "You drank this Coca- Cola and it wasn't rest period." Montgomery stated she had indigestion and got the Coca-Cola to relieve that condition and that she knew "it wasn't rest period." Montgomery told Gantt that she did not get permission from her super- visor to leave the decorating shop but that it was not necessary to secure such permission to get an Alka Seltzer and she assumed the same situation prevailed when she needed a Coca-Cola to relieve indigestion. Gantt stated "in the future, everyone has to ask the permission of their supervisor before they leave out of the decorating shop." Montgomery then asked a second time how she had been insubordinate and Gantt criticized Montgomery for distributing leaflets for the CIO and told her he didn't think it was fair to him and the plant that she was going around distributing handbills . Montgomery remarked that what she did after 4:30 was her business and wasn't any of Gantt's and was told by Gantt to get out.' On or about May 3, 1Q51, Montgomery again distributed CIO leaflets to em- ployees as they left the plant . That evening she received a letter from Respond- ent dated May 3, 1951, stating: Please be advised that the reason for your separation of employment was for insubordination and that you are hereby notified that such separation was permanent as of April 24, 1951. That night Montgomery also received from Respondent a copy of a form used to advise the State Division of Unemployment Insurance concerning separations from employment. This notice was dated April 26, 1951, and stated Montgomery was discharged for misconduct-discharged for insubordination. Irene Pearce frequently remained in the plant after working hours and assisted Rogers, supervisor - of the decorating shop. On one of these occasions during the period involved herein, Pearce observed Rogers handling uncompleted (wet) lamps being produced by Montgomery 10 Handling the lamp while wet "makes a very bad mark on the lamp " and makes it a defective lamp . Rogers remarked to Pearce at this time (while handling the wet lamp) "some way, some how, I will get rid of her [Montgomery] yet" for starting the CIO in the plant. On another occasion during the period of time material herein Rogers instructed Pearce to follow Montgomery into the rest room to "see what she is up to, if she is signing anyone up." Sometime in August 1951, employee Charlene Frizzell paid a social call on Montgomery at the latter's home. "The next night or the next one" Rogers called ° Montgomery 's and Gantt 's testimony concerning this conversation differ concerning details . In the light of the entire record and the demeanor of witnesses , Montgomery's version appears more likely and the undersigned finds the facts to be as stated above 1° Rogers' denial of this conduct is not credited by the undersigned 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at Frizzell's home In the course of the conversation Rogers and Frizzell dis- cussed the union situation at the plant and in this connection also discussed Montgomery's discharge for drinking "a "Coca-Cola on company time" and Rogers stated that she (Rogers) had been watching her (Montgomery) for a long time before she caught her drinking a Coca-Cola. Respondent contends that Montgomery was discharged because of insubordina- tion. Respondent did not make clear to the undersigned the precise manner in which Montgomery was insubordinate but did offer testimony by several wit- nesses concerning certain improper conduct by Montgomery. An examination of this evidence reveals that it contains qualities which ordinarily would cause a trier of the fact to pause before accepting such testimony. Thus, it is general, vague, and in several instances contradictory, and it is lacking as to particulari- ties concerning dates and circumstances" Furthermore, it reveals an effort to construct a case and to cover tip the real reason for the discharge. In addition, most of Respondent's witnesses, notably Mr. and Mrs. Gantt, H. C. Bell, and l7ulayla Rogers, were eager and garrulous witnesses who frequently volunteered information and were prone to exaggerate and expand their testimony. Although Respondent made much of the Coca-Cola incident, Mr. Gantt char- acterized this as a minor episode. In addition, the record reveals that no other employee was discharged or laid off for getting a Coca-Cola and that Montgomery was not warned prior to April 24, 1951, that such action might subject her to it layoff or discharge. Respondent's witnesses tried to make it appear that Montgomery frequently used the telephone without permission contrary to plant rules. Here again the evidence is not convincing that Montgomery did use the telephone without permission or that such conduct, if it occurred, would be considered a matter of such importance as to warrant disciplinary action. Respondent's witnesses made much ado about a radio which Montgomery kept at her working place, claiming that it was disturbing to the employees in the decorating shop. However, the evidence reveals that Montgomery had this radio at the plant for over 2 years ; that during this period she frequently turned the volume up or down depending upon the requests of the employees and of Respondent's supervisory personnel, and that when requested she removed the radio from the shop and from the plant Furthermore, the complaints made (when does not appear) by the employees concerned the volume of the plant loudspeaker and were not directed primarily to the use of Montgomery's radio. The undersigned is not convinced that this radio had anything to do with Re- spondent's decision to discharge Montgomery. Respondent's witnesses also testified concerning Montgomery's "leaving the plant without permission " While the evidence reveals that Montgomery left the plant frequently without the permission of Rogers, the supervisor in the department where Montgomery worked, it does not establish that she left with- out permission from some other person in authority. Usually Montgomery left the plant at the request of and on behalf of Mrs. Gantt. The record does establish that on one occasion (when it is not clear) Montgomery left the plant after talk- ing with Bell about leaving and after rejecting his suggestion that she clear with Rogers. Under all of the circumstances the undersigned is not persuaded that Montgomery's leaving the plant was a factor considered by Respondent in arriv- ing at its determination to discharge Montgomery. v Mrs Gantt's testimony that "I won't be pinned clown what month or anything else" is ilinst,ative of the character of this evidence POLYNESIAN ARTS, INC. 551 Respondent's witnesses also testified that Montgomery disposed of defective material by breaking it in the shop, therefore causing a loud and disturbing noise. It was a practice to destroy defective material by breaking it, and even if Mont- gomery did so in such a manner as to cause a loud and disturbing noise the evidence is not convincing that this was the reason for Montgomery's discharge. The record is lacking concerning the details of the connection between this con- duct, if it occurred, and Montgomery's discharge. The undersigned believes and finds that the evidence in this case demonstrates that the discharge of Montgomery was due, not to the reasons assigned therefor, but to her CIO membership and activity. It stretches credulity too far to be- lieve that there was only a coincidental connection between Montgomery's en- thusiastic solicitation upon behalf of the CIO and the abrupt termination of her employment. Dorothy Webber Webber commenced her employment with Respondent in August 1948. For approximately the first year of her employment she worked on the gold line." Thereafter she was transferred to an inspecting job.3e This latter job required Webber to be constantly on her feet. About 6 or 8 months after becoming an inspector Webber was advised by a physician that because of certain "female trouble" she should take some time off from work and should get a job that would not require her to stand Webber told Mrs. Gantt what the physician had advised and was immediately given a week off Upon her return to the plant Webber was taken off the inapecting• job and given a job as an extra bander" This job permitted Webber to perform her work sitting down. After about 2 months Webber was promoted to the main banding job-made a chief bander. Subsequently an extra bander was assigned to assist her. In March 1951, following the commencement of the AFL and CIO activities, Webber, after securing permission, took off 2 days because of illness-virus pneu- monia. Upon her return to the plant Mr. Gantt accused Webber of being absent without permission. Webber denied being absent without pen mission. At the conclusion of the conversation about this subject matter Mr Gantt said: From now on, you will exchange places with the girl who has been helping you band. You will take her job and she will take yours. Thus Webber again became an extra or assistant bander.15 When Montgomery was laid off on April 24, 1951, as noted above, that left vacant a job on the "loading line." 1° Upon reporting to work on April 25, 1951, Webber was met by her supervisor, Rogers, and told that she was being assigned a job on the loading line. Webber stated she was not going to do that work. Rogers then "turned and left the decorating shop " Webber was not given any reason for this transfer."T Webber went to the office and conferred with H. C. Bell, recording secretary of Respondent and Respondent's business and personnel manager. Webber requested Bell to write a check for her pay. Bell asked her "why" and Webber told Bell she was being assigned "a job they knew I couldn't 12 Painted the handles of the lamps and the different things on the lamps that had to be painted gold 11 Stood at the end of a line and inspected completed lamps to see if they were ready for the kiln. " A bander puts gold bands on lamps. 15 The pleadings herein do not raise an issue with respect to this transfer. A-job at the conveyor belt, putting lamps on the belt and pushing them along the line. 1a Rogers testified she told Webber she ( Webber ) was being transferred "to a different job" and that Webber then quit before being told she was being put on the loading line. The undersigned finds the facts to be as stated above. 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD do and rather than to spend another 6 months in doctor bills, I would quit." Bell answered he was "sorry" 18 and gave Webber a check. The line-loading job was less desirable than the decorating job which Webber had been performing. Also it was a job which normally was filled on a seniority basis-this work (line-loading) going to employees junior in service with Re- spondent. On this occasion seniority was not followed-there were a number of decorators capable of doing this work who had less seniority than Webber. Respondent contends that Webber was ordered transferred to "line loading" because of her tardiness and absence record. Respondent apparently contends that Webber's lateness in reporting for work and absences from work seriously affected its operations and that its operations would not be so seriously affected if Webber worked on line-loading. A determination with respect to this latter contention does not appear required in view of the findings hereinafter made with respect to Respondent's major premise-that Webber was transferred because of her tardiness and absence record. A complete and adequate analysis and comparison of records concerning tardi- ness and absences of employees cannot be made herein since only a limited num- ber of such records were made a part of this proceeding. Only the time cards for Dorothy Drew, Sue Hall, Johnny Mae Myers, Lucille George, decorators, and for Webber were received in evidence in this proceeding. These time cards purport to reflect the number of times said employees were late or absent during the period from January 1, 1951, to April 21, 195]. However, this record does not contain a complete set of time cards for each of these employees covering this period of time. Thus, there is no time card for Drew for the weeks ending 2/3, 2/10, 3/3, 3/10, 3/31, 4/14, and 4/21 ; for Hall for the weeks ending 1/20, 1/27, 3/31, 4/14, and 4/21; for Myers for the weeks ending 3/31, 4/14, and 4/21; and for George for the weeks ending 3/3], 4/14, and 4/2]. In addition these time cards do not reflect whether the latenesses and absences recorded were excused or otherwise condoned. According to the undersigned's computation these time cards do, however, reveal that between January 1, 1951, and April 21, 1951, Drew was late reporting for work in the morning at least 27 times. Hall 32 times, Myers 22 times, George 5 times, and Webber 24 times. They also reveal that Drew was absent at least 3 days : Hall 111//c days: Webber 15 %c days : Myers 4 days; and George 4 (lays. The tables attached hereto as Appendix A and Appendix B are self-explanatory. It is significant that H. C. Bell, a witness anxious to give testimony prejudicial to Montgomery and Webber, testified that Webber was ordered transferred to "line loading" pursuant to his direction and when asked why she was so trans- ferred failed to mention her tardiness and absence record and indicated it was because she was an extra bander and familiar with "the numbers" (familiar with Respondent's operations). It is also noteworthy that Webber's immediate supervisor, Rogers, did not specify the reasons for the proposed transfer of Webber to "line loading." Rogers did testify that Webber was not efficient as a chief bander because "her speed was never too good" and voluminous produc- tion (by Webber) frequently resulted in illness, fainting on the job and absence due to illness and that for these reasons Webber was given an assistant bander to help her with her banding operations, and to this extent did infer that pos- "Bell's testimony coneerning this incident is confusing and contradictory and that portion thereof which conflicts with the testimony of Webber is not credited by the under- signed Nevertheless , it does appear from Bell's testimony , and the undersigned finds, that Webber expressed fear that "someone was gunning for her" because of "some union activities" and stated that she thought it was "just a matter of time " before she would be discharged and that she "might as well go now " POLYNESIAN ARTS, INC. 553 sibly her "inefficiency" played a part in the decision to transfer Webber to "line loading." The undersigned is persuaded by a preponderance of the evidence that Webber was not transferred to "line loading" because of her tardiness and absence record and hereby rejects this contention of Respondent. As noted above, Webber and Montgomery played the leading role in attempting to solicit employees for the CIO and in distributing CIO leaflets-activities which Respondent immediately, actively, and vigorously opposed. In view of this, Webber's physical condition, about which Respondent was fully aware,' the sequence of events, and the failure of Respondent's contention with respect to Webber,"to stand up under scrutiny" it appears and the undersigned, finds that Respondent, anticipating that Webber would not accept a job requiring her to stand and that it could thus rid itself of this CIO leader, singled out Webber for transfer to "line loading"-an assignment to more arduous and less agree- able work In these circumstances, the undersigned believes and finds that Webber's termination of employment was not voluntary, but was tantamount to a discharge and was a discharge because of her membership in and activity on behalf of the CIO-amounted to a discriminatory constructive discharge. (See Saxe-Glassman Shoe Corporation, 97 NLRB 332.) Ultimate Findings and Conclusions In view of the foregoing, and upon consideration of the entire record, the under- signed finds and concludes that : 1. By forming, dominating, and interfering with the formation and administra- tion of the AFL and by contributing support and assistance thereto, Respondent engaged in unfair labor practices within the meaning of Section 8 (a) (2) and 8 (a) (1) of the Act. 2. By engaging in surveillance of CIO meetings, Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) thereof. 3. By discriminating in regard to hire and tenure of employment of Vivian Montgomery and Dorothy Webber, Respondent engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (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. THE REMEDY Having found that Respondent has engaged in unfair labor practices in viola- tion of Section 8 (a) (1), (2), and (3) of the Act, the undersigned will recom- mend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. The undersigned is convinced, and finds, that the present existence of the AFL and Respondent's continued recognition thereof constitute a continuing obstacle to the full exercise by the employees of the rights guaranteed them under the Act. Therefore, in order to effectuate the policies of the Act and to free the em- ployees from the effects of Respondent's unfair labor practices, the undersigned will recommend that Respondent withdraw all recognition from the AFL as a 19 As noted above, Webber, because of her physical condition, was transferred from a job which required her to stand to a job where she could work while sitting. In addition, Webber had a tendency toward fainting and several times fainted while at work Bell testified he was completely aware of her physical condition 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of any of Respondent's employees for the purpose of dealing with Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and that Respondent com- pletely disestablish the AFL as such representative. Respondent's conduct in executing the contract with the AFL constituted unlawful assistance to the AFL and this contract is a means whereby self- organization and genuine collective bargaining by the employees is frustrated. The undersigned, therefore, recommends that Respondent cease and desist from giving any effect to said contract or to any renewal, extension, modification, or supplement thereto. Nothing herein shall be taken to require Respondent to vary the wages, hours, seniority, and other substantive features of its relations with the employees which Respondent has established in performance of the said con- tract or any revision, extension, renewal, or modification thereof. Having found that Respondent unlawfully discriminated against Vivian Mont- gomery and Dorothy Webber, it will be recommended that Respondent offer Mont- gomery and Webber immediate and full reinstatement to their former or substan- tially equivalent positions,20 without prejudice to their seniority or other rights and privileges. It will also be recommended that Respondent make whole Mont- gomery and Webber and each of them, for any loss of pay they may have suffered by reason of the discrimination against them. The losses of pay shall be com- puted from the date of the discrimination to the date of a proper offer of reinstate- ment. In computing the losses of pay, the customary formula of the National Labor Relations Board shall be followed. See P. W. Woolworth Company, 90 NLRB 289. The scope of the unfair labor practices discloses a purpose to interfere with, restrain, and coerce employees in the exercise of the rights guaranteed in Section 7 of the Act and that danger of other unfair labor practices in the future is to be anticipated from the course of Respondent's conduct in the past. In order, there- fore, to make effective the interdependent guarantees of Section 7 of the Act and effectuate the policies of the Act, it will be ; ecommended that Respondent cease and desist from in any manner infringing upon the rights guaranteed in the Act. [Recommendations omitted from publication in this volume.] Appendix A Week Ending-Tardiness 1/6 1/13 1/20 1/27 2/3 2/10 - 2/17 - 2/24 - 3/3- 3/10 - 3/17 - 3/24 -- 3/31- 4/7- 4/14 -- 4/21 Total -- Drew------------------- - 2 - 2 - 5 - 2 - (1) (1) 3 4 (1 ) (1) 4 3 (1) 2 (1) (1) 27 Hall --------------------- 3 1 (1) (1) 4 2 4 5 5 2 3 2 (I) 1 (1) (1) 32 Webber----------------- 0 0 3 1 1 2 1 3 5 3 2 0 0 0 3 0 24 Myers------------------- 4 5 1 2 4 2 0 1 1 1 1 0 (1) 0 (1) (1) 22 George------------------ 0 3 0 0 2 0 0 0 0 0 0 0 (1) 0 (t) (1) 5 I No time card for this period in evidence. 20 In accordance with the Board's consistent interpretation of the term, the expression "former or substantially equivalent position" is interpreted to mean "former position wlieiever possible and if such position is no longer in existence, then to a substantially equivalent position." See The Chase National Bank of the City of New York, San Juan, .Puerto Rico, Branch, 65 NLRB 827. POLYNESIAN ARTS, INC. Appendix B Week Ending-Number of Days Absent 555 1/6 1/13 1/20 1/27 2/3 2/10 2/17 2/24 3/3 3/10 3/17 3/24 3/31 4/7 4/14 4/21 1 Total Drew-------------------- 0 0 0 0 (1) (1) 1 0 (') (') 0 1 (1) 1 (1) (1) 3 Hall--------------------- 1 435 (1) (1) 135 1 134 0 0 0 0 0 (i) 135 (1) (1) 1135 Webber---------------- 1 5 0 1 135 234 1 0 0 35 0 1 0 1 34 1 1555 Myers------------------- 0 0 0 1 0 0 1 0 1 0 0 0 (1) 1 (1) (1) 4 Qeorge------------------ 1 0 0 0 0 34 2 0 0 0 0 0 (1) 135 (1) (1) 4 I No time card for this period in evidence. Appendix C 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 HEREBY DISESTABLISH NATIONAL BROTHERHOOD OF OPERATIVE POTTERS, LOCAL UNION No. 227, AFL, as the representative of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and we will not recognize it or any successor thereto for any of the above purposes. WE WILL NOT dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. WE WILL NOT give effect to any and all agreements and contracts, supple- ments thereto, or modifications thereof, or any superseding contract with NATIONAL BROTHERHOOD OF OPERATIVE POTTERS, LOCAL UNION No. 227, AFL, or any successor thereto. WE WILL NOT engage in surveillance of employees exercising their rights guaranteed in the National Labor Relations Act. WE WILL NOT discourage self-organization or concerted activities among our employees for their mutual aid and protection as guaranteed in Section 7 of the Act or discourage membership in UNITED PACKINGHOUSE WORKERS OF AMERICA, CIO, or any other labor organization, by discriminating in any manner in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the excercise of their right to self-organization, to form labor organizations, to join or assist UNITED PACKINGHOUSE WORKERS OF AMERICA, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL offer Vivian Montgomery and Dorothy Webber immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed and we will make whole said employees for any loss of pay suffered as a result of the discrimination against them. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become, remain, or to refrain from becoming or remaining, members of any labor organization except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the National Labor Relations Act. POLYNESIAN AnTs, 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. JERRY FAIRBANKS , INC. and STUDIO CARPENTERS LOCAL 946, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL INTERNATIONAL ALLIANCE OF THEATRICAL AND STAGE EMPLOYEES AND ITS LOCAL UNION 44 and STUDIO CARPENTERS LOCAL 946 , UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL JERRY FAIRBANKS, INC. and JACK A. BAER. ,Cases Nos. 21-CA-1090, 21-CB-349, and 21-CA-1166. August 8,1952 Decision and Order On January 28, 1952, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled proceeding, finding, as set forth in the Intermediate Report attached hereto, that the Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety. Thereafter, the charging Union filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.1 We agree with the Trial Examiner's finding that the Respondent Company did not violate the Act by adopting a policy of hiring its I The request of the charging Union for oral argument Is denied, inasmuch as the record, including the exceptions and brief, adequately present the issues and the positions of the parties. We note and correct the following inadvertent inaccuracies in the Intermediate Report, which do not affect the Trial Examiner's findings nor our concurrence therein : (1) The correct citation to the representation case referred to in section III, A , of the Report Is Jerry Fairbanks, Inc., 21-RC-1719; ( 2) the two versions of the terminal conversation between Latham and Price were given by the latter and not by Latham ; and (8) Pluso was not "laid off at the same time as Price," late in March 1951 , as Price was not employed at all by the Company during that month ; it was Gores, not Price, who was laid off at or about the same time as Pluso in the latter part of March. 100 NLRB No. 87.