Ripley Manufacturing Co.

RIPLEY MANUFACTURING COMPANY 47 Ripley Manufacturing Company and Southern Illinois District Council, International Ladies' Garment Workers Union, AFL- CIO. Case No. 26-CA-1240. October 10, 1962 DECISION AND ORDER On August 1, 1962, Trial Examiner William Seagle issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. There- after, the General Counsel and the Charging Party filed exceptions to the Intermediate Report, and supporting briefs. 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 McCulloch and Members Rodgers and Fanning]. 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 briefs, and the entire record, and adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board dismissed the complaint.] INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge filed March 23, 1962, a complaint dated May 7, 1962, was issued against the Respondent, charging it with the discriminatory discharge of Dorothy Jacobs, one of its employees, in violation of Section 8(a)(1) and (3) of the Act. The answer of the Respondent admitted the discharge of Dorothy Jacobs on or about February 9, 1962, but denied that it was in violation of the Act. Issue thus having been joined, Trial Examiner William Seagle held a hearing with respect to the charge at Ripley, Tennessee, on June 20, 1962. At the close of the taking of testimony, counsel for the General Counsel presented oral argument, and subse- quently filed a brief. Counsel for the Respondent and for the Charging Party waived oral argument but, subsequent to the hearing, they both filed briefs. All three briefs have been duly considered. Upon the entire record in the case, and based upon my observation of the wit- nesses, I hereby make the following: FINDINGS OF FACT 1. THE RESPONDENT The Respondent, Ripley Manufacturing Company, is now, and at all material times has been, a Tennessee corporation, operating a garment manufacturing plant at Ripley, Tennessee . During the past 12 months, the Respondent, at its Ripley plant, received goods and material valued in excess of $50 ,000 directly from points outside the State of Tennessee, and during the same period , shipped finished products valued in excess of $50,000 directly to points outside the State of Tennessee. Jurisdiction is not disputed. 139 NLRB No. 3. 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED Southern Illinois District Council, International Ladies' Garment Workers Union, AFL-CIO, is now, and at all material times has been, a labor organization that has sought to organize the employees of the Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICE The present proceeding is an aftermath of another one against the same Respondent in 1961 in which it was charged with unfair labor practices in violation of Section 8(a) (1) and (3) of the Act. After a hearing that ran from November 28 to De- cember 5, 1961, the Trial Examiner found that the Respondent had violated Section 8(a)(1) and (3) of the Act by keeping under surveillance a meeting of its em- ployees on April 27, 1961; by discriminatorily shutting down its manufacturing operations and laying off the employees engaged in such operations during the period from April 28 to June 7, 1961; and by discriminatorily laying off and there- after refusing to reemploy six employees named Garrett, Reece, Emerson, Russell, Escue, and Medile.I The Trial Examiner also found, however, that the Respondent had not committed other alleged acts of interference, restraint, or coercion, including the surveillance of another meeting, and that the Respondent had not discriminated with respect to the employment tenure of seven other employees named Kilpatrick, Dew, Hill, Steelman, Belton, Howard, and Scallions. The Respondent filed excep- tions to the Trial Examiner's Intermediate Report which are still pending before the Board. It appears from the Intermediate Report in the prior proceeding, as well as from the evidence before me in the present proceeding, that Jerry Perlstein, an Interna- tional representative of the Union, arrived in Ripley, Tennessee, on April 25, 1961, for the purpose of attempting to organize the Respondent's employees; that the first organizational meeting occurred at the home of Rubye Garrett, one of the employees, during the evening of April 26; and that nine of the Respondent's employees-among them was Dorothy ("Dottie") Jacobs, the complainant in the present proceeding- were present at this meeting. Dorothy Jacobs signed a union authorization card at this meeting. The employment history of Dorothy Jacobs shows that she first applied for a job at the Respondent's Ripley plant on January 9, 1960. She was not hired at that time. But a few months later Bill Thompson, a local merchant in Ripley, and a good friend of Milton G. Rosenfeld, the president of the Respondent, asked the latter if he could not find a place for Dorothy Jacobs. Consequently, Rosenfeld had her come in, and she was given an aptitude and dexterity test which new and inexperienced employees had to take. She did so poorly in these tests that she was not given a job. Several months later, however, Thompson, accompanied by Jacobs' uncle, a Tennessee highway patrolman, came to see Rosenfeld again, and renewed his request that he find employment for her. Rosenfeld told Thompson that he would try again but, after checking her application, he again decided not to give her employment. After a few more months had elapsed, however, Joe H. Walker, Rosenfeld's local attorney, came to see the latter, accompanied again by Jacobs' uncle, the Tennessee highway patrolman, and asked Rosenfeld as a special favor to find employment for her. As Rosenfeld was then planning to open a second plant, the Boydston plant, and needed learners, he agreed to employ her there, and she started work as a presser at the Boydston plant on October 20, 1960. Within a few days it became apparent that Jacobs was unsatisfactory as a presser, but because of her backing she was transferred to the main Ripley plant and put in the cutting department where she was assigned to the job of spreading cloth, as well as doing minor repair and adjustment work. She worked there until the next slack season when she was laid off on February 11, 1961. As she was in a layoff status until June 7, 1961, she was not involved in the shutdown that occurred on April 28. When employees began to be recalled on June 7, she was among those recalled, for the supervisors who were making the decisions with respect to the recall of employees were aware of Rosenfeld's special interest in her. She continued to work at the Ripley plant as a spreader in the cutting department from June 7, 1961, to February 9, 1962, when she was discharged. The circumstances relating to the discharge of Dorothy Jacobs were related both by Rosenfeld and by C. R. Hargett, who in the fall of 1961 had been made supervisor of the cutting department in which she worked. Both testified as adverse witnesses called by the General Counsel. 1 The evidence In the present proceeding shows that Garrett and Eicue were reemployed by the Respondent on June 11, 1962. RIPLEY MANUFACTURING COMPANY 49 According to Rosenfeld, he began to notice in his movements about the factory in January 1962 that Jacobs had no interest in her work. She was often away from her table and was not paying any attention to her work. He had never thought much of her work but he now became concerned because her work was deteriorating rather than improving. It was his general policy not to discharge even an unsatis- factory employee until the beginning of the slack season but he spoke to Hargett about Jacobs, and Hargett told him that she was not doing good work. He, there- fore, told Hargett that he was free to discharge her. Hargett testified that he spoke to Jacobs about the poor quality of her work a number of times before her discharge but that she ignored his strictures. Indeed, it was reported to him that, after he had spoken to her about her work and was walking away, she would stick her tongue out at him. He had to carry more bad work back to her than in the case of any other employee. Several weeks before her discharge, when he asked her to do some recuts on linings, she failed to do them altogether, and just before her discharge she cut some linings too short. Some of the other employees in the cutting department began to ask Hargett what would happen to them if they stood around the way Dottie did. He delayed, however, in discharging her because there was some rush work and because Faye Dew, the spreader with whom she worked, had to have an operation. Hargett finally told Jacobs that he was discharging her at 4:15 p.m. on Friday, February 9, 1962,2 while the employees were having a meeting in the cafeteria. He asked her to stay, and told her that he had some bad news for her, that he had to let her go. She asked why, and he told her that it was because of her bad work. She then asked if she could talk to Rosenfeld but Hargett told her that the latter was not around but that she could talk to his son, Bob Rosenfeld. She did talk to Rosenfeld's son but he told her that he had to accept the recommendation of her supervisor, and refused to intervene. That same evening Dorothy Jacobs' mother called Hargett and asked why her daughter had been dismissed, and Hargett told the mother what he had already told the daughter, namely, that it was because of her unsatisfactory work, although he added that letting her go was "the hardest thing" he had ever done. The unsatisfactory nature of Dorothy Jacobs' work and the scandalous nature of her behavior as an employee are fully established by the record. At least a half dozen of her fellow employees-among them was Faye Dew with whom she worked when spreading-gave testimony that is in entire agreement with Rosenfeld's and Hargett's characterizations of her work, and three of these witnesses were called to testify on behalf of the General Counsel. In adidtion, three of the Respondent's supervisors who had occasion to observe her work, gave testimony that was entirely in harmony with that of her fellow employees. There can be no doubt, therefore, that she deserved to be fired. Having forced herself upon Rosenfeld in the first place, she apparently became convinced that she could get away with almost anything, and behaved accordingly. The General Counsel, indeed, concedes that Jacobs was an unsatisfactory employee and that the Respondent had a sound reason for discharging her. He submits, how- ever, that a contributing cause of her discharge was her union activity. But the only factors to which he has pointed in support of this contention are the general anti- union animus with which the Respondent has been charged; the fact that Jacobs was the only participant in the union meeting of April 26, 1961, who was recalled in June 1961; and an alleged coincidence between the date of her discharge and the Respond- ent's first discovery of her union activity. It seems to me that these factors do not add up to very much. Assuming, for the sake of argument, that the Respondent possessed a union animus, it is still incumbent on the General Counsel to prove by a fair preponderance of the evidence that it played a part in the discharge of Jacobs. As the court said in N.L.R.B. v. T. A. McGahey Sr., et al., d/b/a Columbus Marble Works, 233 F. 2d 406, 410 (C.A. 5): "The finding of 8 (a) (1) guilt does not automatically make a discharge an unlawful one, or by supplying a possible motive, allow the Board without more to conclude that the act of discharge was illegally inspired." 3 Her recall from layoff status early in June 1961 is readily explainable in terms of the special favoritism that gave her job in the first place, and her recall then could have significance only if it were known whether Rosenfeld had knowledge at this time of her attendance at the union meeting 2 Hargett testified that the discharge of Jacobs occurred on a Thursday or Friday. The calendar shows, however, that February 9, 1962, was a Friday. 8 Quoted in Sears, Roebuck and Company, 123 NLRB 1236, 1255. Despite his finding that Rosenfeld possessed union animus , the Trial Examiner in the prior proceeding failed to find that all of Rosenfeld's employment actions were discriminatory. 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on April 26, and of her signing the union authorization card. If he had such knowl- edge, it would virtually exonerate him from any discriminatory motive in discharging her later. On the other hand, if he lacked such knowledge, her prior recall can have little significance. As for the coincidence between Rosenfeld's alleged acquisition of knowledge con- cerning Jacobs' union activity and the timing of her discharge, this coincidence is, in the first place, far from exact, since he is supposed to have acquired this knowledge on November 29, the second day of the hearing in the prior proceeding, when testi- mony was first given that Dorothy Jacobs was among those present at the union meeting of April 26, and her actual discharge did not occur until February 9, which would be more than 2 months after the acquisition of such knowledge. Moreover, even if it be assumed that Rosenfeld's decision to discharge her was actually made early in January, more than a month elapsed before it wast carried out. In the second place, I do not believe that it has been satisfactorily shown that Rosenfeld, prior to Dorothy Jacobs' discharge, had actually acquired knowledge of her attendance at the union meeting of April 26. I credit his testimony that he was not actually present at the hearing on the morning of its second day when the testi- mony concerning the meeting was given. He was then actually at the factory taking care of a customer. The witnesses for the General Counsel could not possibly have remembered some 7 months after the event whether Rosenfeld was present during the whole of the second day of the hearing. I also credit Rosenfeld's testimony that he was sick in a St. Louis, Missouri, hospital at the time of the issuance of the Inter- mediate Report in the prior proceeding, and that he did not get to read it, therefore, until a few weeks before the hearing in the present proceeding. But, even if I were to assume that Rosenfeld did in fact know prior to the discharge of Jacobs that she had attended the union meeting of April 26, the knowledge which he would have thus obtained almost a year after the event, when the union campaign was quiescent, amounted to so little that a rational man would have paid little atten- tion to it, and Rosenfeld struck me as a rational man. As a rational man, he would at least have sought to find out whether this was Dorothy Jacobs' only flirtation with the Union. Moreover, the record shows that there was no further union activity on her part. She did not attend any subsequent union meeting; she made no attempt to solicit members for the Union; she did not discuss the Union with any of the employees in her department or with her supervisor, Hargett; and she was not a witness at the hearing in the prior proceeding, nor did she even attend any of its sessions as a spectator. She did not content herself, moreover, with mere inactivity. She actually signed a petition to the effect that she wanted the union people to stop bothering her. This petition had, apparently, been circulated in the factory after her recall in June 1961. In any case in which an employer has long endured an employee with whose serv- ices he had every reason to dispense, his loss of patience when a union campaign has been launched always is, to be sure, a circumstance of suspicion. But, if a worm will turn, surely it is not surprising that an employer will eventually do the same. This is all the more credible in the case of Rosenfeld in view of the fact that he had so long resisted the pressure upon him to give her employment at all. Of course, it is also possible that Rosenfeld was one of those unforgiving individuals who will harbor a grudge for a long period of time but this can be no more than a speculation. Another possible speculation is that Rosenfeld finally removed Dorothy Jacobs' immunity be- cause of some change in his relationship with one or more of her backers. About such a change, Rosenfeld would naturally be rather reticent. In any event, suspicion and speculation are not enough, particularly when there is a perfectly valid reason for a discharge. While the existence of such a reason does not necessarily exonerate an employer, it certainly makes it imperative that it be established by truly persuasive evidence that he also harbored a discriminatory motive. As for Hargett, who actually fired Dorothy Jacobs, there is not the slightest evi- dence that he had any knowledge of her very limited union activity, or that he was actuated by antiunion bias in general. He was, in fact, in no way involved in the charges of unfair labor practices that were involved in the prior proceedings. His evidence shows, moreover, that even after his conversation with Rosenfeld about Dorothy Jacobs he made every reasonable effort to bring about an improvement in her work. It is hardly surprising that he should have decided to fire her after he had learned that she was sticking her tongue out at him behind his back. CONCLUSIONS OF LAW 1. The Respondent , Ripley Manufacturing Company, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. DANIEL O'CONNELL'S SONS, INCORPORATED 51 2. Southern Illinois District Council, International Ladies' Garment Workers Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Dorothy Jacobs on February 9, 1962, the Respondent did not commit any unfair labor practice in violation of Section 8(a) (3) and (1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law , and upon the entire record in the case, it is recommended that the complaint be dismissed. Daniel O'Connell's Sons, Incorporated and Omer Fortin and Hoisting and Portable Engineers, Local No. 4, International Union of Operating Engineers, Party to the Contract Hoisting and Portable Engineers, Local No. 4, International Union of Operating Engineers, and its business agent, Larry P. Salvucci and Omer Fortin and Daniel O'Connell's Sons, Incorporated, Party to the Contract. Cases Nos. 1-CA-3552 and 1-CB-723. October 10, 1962 DECISION AND ORDER On June 20,1962, Trial Examiner Lloyd Buchanan issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief and the Respondent Union filed a brief in oppo- sition to the General Counsel's exceptions. 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 Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report and the entire record in the case, including the excep- tions and briefs, and hereby adopts the findings, conclusions, and recommendation of the Trial Examiner. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER The complaint herein (issued January 30, and amended March 2, 1962, and at the hearing; charges filed August 14 and 16, 1961) alleges that, since about April 1, 1961, the Company has violated Section 8(a)(3) and (1) of the National Labor 139 NLRB No. 13. 672010-63-vol. 139-5